Jatinder Kumar Prop. Sulekh Chand Sham Lal, MANSA V. The Income Tax Officer, MANSA

ITA 156/ASR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7728 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 14-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Keywords: Business income; Loose papers
• Section: 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.622(ASR)/2014 ASSESSMENT YEAR: 2005-06 JATINDER KUMAR PROP. SULEKH CHAND SHAM LAL, GRAIN MARKET, MANSA. PAN:ABHPG-6210C VS. I INCOME TAX OFFICER, WARD 1(4), MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUDHIR SEHGAL & MS. JY OTSNA RESPONDENT BY :SH. RAHUL DHAWAN (LD. DR) I.T.A. NO.156(ASR)/2016 ASSESSMENT YEAR: 2006-07 JATINDER KUMAR PROP. SULEKH CHAND SHAM LAL, GRAIN MARKET, MANSA. PAN:ABHPG-6210C VS. I INCOME TAX OFFICER, WARD 1(4), MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY :SH. J.K. GUPTA (ADV.) RESPONDENT BY:SH. RAHUL DHAWAN (LD. DR) DATE OF HEARING: 21.08.2017 DATE OF PRONOU NCEMENT:07.11.2017 ORDER PER N. K. CHOUDHRY: THE ASSESSEE HAS FILED THE AFORESAID APPEALS SEPARATELY A GAINST THE ORDER DATED 02.07.2014 & 15.01.2016 PASSED BY THE LEARNED CIT(A), BATHINDA FOR ASST. YEARS:2005-06 & 2006-07 RESP ECTIVELY. 2. THE ISSUES IN BOTH THE APPEALS ARE IDENTICAL AND SIMIL AR, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY, TH E FACTS AND GROUNDS RAISED IN APPEAL NO.622(ASR)/2014 HAVE BEEN TAKEN INTO ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 2 CONSIDERATION FOR DECISION, HOWEVER, THE DECISION OF ITA NO.622(ASR)/2014 WAS ALSO COVERED THE ITA NO.156(ASR)/20 16 AS WELL. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL I N ITA NO.622(ASR)/2014. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE RE-O PENING OF THE CASE OF THE ASSESSEE AFTER FOUR YEARS FROM THE END OF THE ASSES SMENT YEAR UNDER APPEAL. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE RE-OPENING OF THE CASE ON THE BASIS OF THE PHOTOCOPY OF THE DUMB AND FABRICATED DOCUMENTS SUPPLIED BY THE COMPLAINANT WITH OUT MAKING AN INQUIRY IN THE MATTE R BY THE AO. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT GIVING THE BENEFITS OF THE ADDITIONS MADE IN THE IMMEDIATE PREVIOUS ASSESSMENT YEAR 2004-05 AS THE S AME HAS THE CONCRETE EXISTENCE. 4. THAT THE COMPLAINANT HAS BEEN DECLARED SHAKA ITI BY S.P.(H), MANSA. SO, NO RELIANCE CAN BE PLACED ON HIS BOGUS ALLEGATI ON/COMPLAINT WHICH DO NOT RELATE TO THE BUSINESS OF THE ASSESSEE. THE ASS ESSEE HAS FILED A CRIMINAL COMPLAINT IN THE COURT OF LAW AGAINST THE COMPLAINA NT. SO, OUT OF GRUDGE HE IS MAKING THE COMPLAINTS. ACCORDINGLY, THE RE-ASSES SMENT IS LIABLE TO BE QUASHED. ACCORDINGLY, THE ADDITIONS ARE ALSO LIABLE TO BE DELETED. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C1T(A) ERRED IN UPHOLDING THE ADDITIONS OF ALLEGED PURCHASES OF VARIOUS GOODS AND GROSS PROFIT ON THE ALLEGED SALES OF VARIOUS GOODS ON THE BASIS OF A PHOTOCOPY OF THE ALLEGED ACCOUNT STATEME NT, THE ORIGINAL OF WHICH WAS NOT PRODUCED, WHICH DO NOT RELATE TO THE BUSINE SS OF THE ASSESSEE. EVEN THE COMPLAINANTS AS WELL AS ALLEGED SELLERS/PU RCHASERS WERE NOT PRODUCED FOR CROSS EXAMINATION. ACCORDINGLY, THE WH OLE OF THE ADDITIONS ARE LIABLE TO BE DELETED. 6. THAT IN THE ALTERNATIVE, ONLY PROFIT OF 2% ON T HE TOTAL SALES OF VARIOUS GOODS AND SALES DETERMINED OF PURCHASES CAN BE ADDE D. THE LEARNED AO HERSELF HAS APPLIED THE RATE OF 10% IN THE ASSESSME NT YEAR 2011-12. 7. THAT NO SEPARATE ADDITION OF RS.494758/- (WRON GLY MENTIONED BY THE CIT(A) AS RS.588848/- IN PARA 6.2 OF THE APPELLATE ORDER) ON ACCOUNT OF PURCHASES OF KINKI CAN BE MADE AS THERE WAS A SALE OF VARIOUS GOODS FOR RS.969200/- PRIOR TO THE DATE OF PURCHASES OF VARIO US GOODS AS PER ALLEGED ACCOUNT STATEMENT 8 . THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.94090/-. ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 3 9. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT DIRECTING THE AO TO TAK E ACTION AGAINST THE OTHER PERSONS MENTIONED IN THE ALLEGED ACCOUNT STAT EMENT. WE CAN NOT RELY PARTLY ON THIS STATEMENT. SO, ALL THE ADDITIONS ARE LIABLE TO BE DELETED 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE BEING AN INDIVIDUAL PROPRIETOR TO CONCERN NAMELY M/S SH. SALASAR RICE MILLS AND M/S. SHRI SULEKH CHAN D SHAM LAL AND HAD FILED ITS RETURN OF INCOME FOR THE ASST. YEAR:2005- 06 AT RS.2,31,770/- DATED 11.10.2005 AND THE SAME WAS PROCESSED U/S 143(1) OF THE I.T. ACT AND ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.2,91,770/- VIDE ORDER DATED 03.01.2007 AND THE NO TICE U/S 148 OF THE I.T. ACT WAS ISSUED ON 26.03.2012 AFTER RECORDING T HE REASONS FOR INITIATING PROCEEDINGS U/S 147 OF THE I.T. ACT WHILE SER VING UPON THE ASSESSEE ON 27.03.2012. IN RESPONSE TO WHICH THE ASSESSEE FILED WRITTEN REPLY ON 23.10.2012 BY STATING THAT THE RETURN OF INCOME FOR T HE ASST. YEAR: 2005-06 WHICH WAS ALREADY FILED BY THE ASSESSEE MAY BE T REATED AS FILED IN RESPONSE TO NOTICE U/S 148 OF THE INCOME TAX ACT,1961 . THEREAFTER, STATUTORY NOTICES WERE NOT ISSUED FOR PRODUCTION OF COMPLE TE BOOKS OF ACCOUNT AS WELL AS THE OPPORTUNITIES WERE OFFERED TO TH E ASSESSEE TO DEFEND HIS CASE AND FINALLY THE ADDITION OF RS.9,69,200 /- WAS ADDED BACK AS UNRECORDED INCOME OF THE ASSESSEE IN DIFFERENT HEAD S AND IN ADDITION TO UNRECORDED SALE THE AMOUNT OF RS.4,94,758/ - WHICH THE ASSESSEE HAS ALSO MADE INVESTMENT IN PURCHASE OF RICE BROKEN KINKI WHICH HAS NOT BEEN DISCLOSED IN THE RETURN OF INCOME WAS A LSO ADDED U/S 69 OF THE ACT AS UNEXPLAINED. THE ASSESSING OFFICER ALSO A DDED RS.14,400/- AS THE INTEREST ACCRUED ON 1,60,000/- BY APP LYING INTEREST RATE @ 9% AND FURTHER ADDITION OF RS.1,37,684/- AS NE T PROFIT FROM SULEKH CHAND SHAM LAL, MANSA. THE ASSESSMENT ORDER WAS CHALLENGED BY THE ASSESSING OFFICER BEFORE THE LD. CIT(A), WHO ALTHOUGH DELETED THE SOM E OF THE ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 4 DISALLOWANCE, HOWEVER, CONFIRMED THE DISALLOWANCE OF RS.9 ,69,200 AND RS.5,88,848/- ON ACCOUNT ON UNACCOUNTED SALES AND UNACCOUNT ED PURCHASES. 4. THE ASSESSEE PREFERRED THE INSTANT APPEAL , ON FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE LD. CIT(A), WHO ALTHO UGH RAISED THE LEGAL GROUNDS WITH REGARD TO THE REOPENING OF THE ASSE SSEE ON THE BASIS OF NOTICE U/S 148 VIDE NOTICE DATED 06.03.2012 ON THE GROUND THAT THE SAME WAS ISSUED BEYOND 4 YEARS, HOWEVER, DURING THE COURSE OF ARGUMENT, THE LD. AR FAIRLY SUBMITTED THAT HE DOES N OT INTENDS TO PRESS THE LEGAL GROUNDS AND WANTS TO CONTEST THE CASE ONLY ON T HE BASIS OF FACTS AND THE LD. AR SUBMITTED THAT:- A. A COMPLAINT WAS RECEIVED IN THE CASE OF THE ASSESSE E BY THE ASSESSING OFFICER FROM ONE SH. RADHEY SHAM, WHO WAS THE EX- EMPLOYEE OF THE ASSESSEE. THE PHOTOCOPIES OF CERTAI N FORGED DOCUMENTS WERE SUPPLIED BY THE SAID COMPLAINANT, WH O WAS TERMINATED FROM THE SERVICES, SHOWING ALLEGED SALES OF RICE BRAN, BARDANA, PHUCK, RICE ETC. OF M/S SALASAR RICE MILL S. THE SAID ALLEGED DOCUMENTS BEARING NO. 1 TO 13 ARE FORMING P ARI OF THE PB AT PAGE- 41-44. THE SAID ALLEGED DOCUMENTS ALSO CON TAINED INFORMATION REGARDING THE ALLEGED PURCHASES AS MADE BY THE ASSESSEE. THE ASSESSING OFFICER FROM THE DOCUMENTS PROVIDED BY SAID PERSON, CALCULATED THE DIFFERENCE OF THE PURC HASES AND SALES AS NOT REFLECTED IN THE BOOKS OF ACCOUNTS AND MADE THE ADDITION. IN THIS CONNECTION, IT IS SUBMITTED THAT THE STATEMENT OF PROP. SH. JATINDER KUMAR WAS DULY RECORDED, WHICH IS PLACED AT PAGES 6 TO 10 OF THE JUDGMENT SET, IN WHICH, HE HAS CATEGORICA LLY STATED THAT THESE DOCUMENTS DO NOT BELONG TO HIM AND, AS SUCH, NO ADVERSE VIEW COULD BE TAKEN ON THE BASIS OF SUCH DOCUMENTS, PA RTICULARLY, WHEN THESE HAVE NOT BEEN FOUND DURING THE COURSE OF SURV EY/SEARCH OPERATIONS AND ALSO, THERE ARE NO SIGNATURES OF THE ASSESSEE. IT WAS ALSO THOROUGHLY EXPLAINED BY THE ASSESSEE THAT THE EX-EMPLOYEE OF ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 5 THE ASSESSEE HAS DONE FRAUD WITH HIM AND DUE TO CIV IL CASE IS PENDING BEFORE THE COURT AGAINST HIM. HE HAS PREPAR ED THOSE DOCUMENTS ONLY IN ORDER TO HARASS THE ASSESSEE. BUT THE ARGUMENTS OF THE ASSESSEE WAS NOT CONSIDERED BY THE DEPARTMEN T AND ACCORDINGLY ADDITION ON ACCOUNT OF UNRECORDED SA LES AND UNRECORDED PURCHASES WAS MADE BY THE AO BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE ACT. THE A O AT THE TIME OF MAKING THE ADDITION RELATING TO UNRECORDED SALES HE LD THAT THE GP ON UNRECORDED SALES IS 100% AS THE ASSESSEE HAS MAJORL Y DONE THE GOVERNMENT MILLING. B. FURTHER, DURING THE COURSE OF CIT(A) PROCEEDINGS, T HE WORTHY CIT(A) PARTLY DELETED THE ADDITION RELATING TO UNRECORDED SALES BY MAKING THE ADDITION TO THE EXTENT OF GP RATE ON THOSE SALE S. THE ADDITION RELATING TO UNRECORDED PURCHASES WAS UPHELD AS SUCH BY THE WORTHY CIT(A). C. AT THE OUTSET, IT IS SUBMITTED THAT THE ENTIRE BAS E OF THE ADDITION IN THE CASE OF THE ASSESSEE ARE THE PHOTOCOPIES OF THE DOCUMENTS WRITTEN IN THE HANDWRITING OF THE EX-EMPLOYEE OF TH E ASSESSEE I.E SHRI RADHEY SHAM. THE SAID ALLEGED DOCUMENTS ARE FO RMING PART OF THE PB AT PAGES 41 TO 44. THE SAID ALLEGED DOCUM ENTS WERE NEITHER PREPARED BY THE ASSESSEE NOT OBTAINED FROM THE PREMISES OF THE ASSESSEE OR FOUND DURING ANY SURVEY AND SEAR CH OPERATION. THE ONLY PLEA THAT THE SOME OF THE FIGURES MATCHED WITH THAT OF THE BOOKS OF ACCOUNTS OF THE ASSESSEE CANNOT PROVE THAT THE ENTIRE FIGURES BELONG TO THE ASSESSEE. IT IS ONLY A MISCHI EF ON THE PART OF EX-EMPLOYEE TO SHOW THAT THESE ARE GENUINE DOCUMENT S. D. THE FACT THAT THE EX-EMPLOYEE OF THE ASSESSEE HAS COMMITTED A FRAUD AND CRIMINAL CASE BEEN FILED IN THE COURT OF THE MANSA ALSO ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 6 PROVES THAT SH. RADHEY SHAM HAS PREPARED THOSE DOCU MENTS ONLY TO HARASS THE ASSESSEE. IT IS OBVIOUS THAT SH. RADH EY SHAM OUT OF GRUDGE AND TO PUT UNDUE PRESSURE ON THE ASSESSEE HA S MADE SUCH BOGUS DOCUMENTS SO THAT THE CRIMINAL CASE MAY BE WI THDRAWN. IT IS ALSO WORTH TO MENTION HERE THAT RADHEY SHAM HAS BEEN DECLARED SHAKAITI BY THE S.P (H), MANSA AS HE IS HABITUAL OF MAKING COMPLAINTS AGAINST THE PUBLIC IN VARIOUS DEP ARTMENTS. REFER TO PAGES 1 TO 5 OF JUDGMENT SET. E. IT IS ALSO A MATTER OF FACT THAT RADHEY SHAM WAS NO T PRODUCED FOR CROSS EXAMINATION ON THE VARIOUS FIXED DATES BY THE AO. SUCH INFORMATION BEING COLLECTED AT THE BACK OF THE ASSE SSEE CANNOT BE RELIED UPON. REFER TO LETTER AT PAGE 45 OF PB-I REA D WITH OUR REPLY, DATED 20.03.2013 REPRODUCED AT PAGES 2 TO 3 OF THE ORDER AND TO THE CIT (A), AT PAGES 50 TO 54. F. THE PLEA OF THE AO THAT THE SOME OF THE FIGURES TAL LIES WITH THE BOOKS OF ACCOUNTS OF THE ASSESSEE DO NOT PROVE THAT THE ASSESSEE HAS MADE SALES AND PURCHASES OUTSIDE THE BOOKS OF A CCOUNTS. IT IS FACT THAT RADHEY SHAM WAS AN EMPLOYEE OF THE ASSESS EE TILL THE YEAR UNDER CONSIDERATION. HE WAS VERY WELL AWARE OF THE PARTIES WITH WHOM THE ASSESSEE IS REGULARLY DEALING. RADHEY SHAM MIGHT ALSO BE HAVING THE COPY OF BALANCE SHEET IN HIS POS SESSION. SO PUTTING SOME FIGURES WHICH ARE ALREADY FORMING PART OF BOOKS OF ACCOUNTS OF THE ASSESSEE CANNOT PROVE ANYTHING. G. THE ENTIRE ADDITION HAS BEEN MADE ON THE BASIS OF S URMISES AND CONJECTURES. THE ALLEGED INFORMATION REGARDING THE PURCHASE OF BROKEN RICE (PB PAGES 41-44) DO NOT CAR RY ANY DETAIL OF THE PARTY FROM WHOM PURCHASES HAVE BEEN D ONE BY THE ASSESSEE. SIMILARLY, IN THE CASE OF UNRECORDED SALE S OF RICE BRAN ALSO (PB PAGES 41-44), THERE ARE NO NAMES OF THE PARTIES TO ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 7 WHOM SALES HAVE BEEN MADE. IT IS TOTALLY OUT OF CON TEXT THAT THE DEPARTMENT HAS MADE THE ADDITION ONLY ON THE BASIS OF HANDWRITTEN DOCUMENTS WHICH IS NOTHING BUT A DUMB D OCUMENT. HAD THE TOTAL OF SUCH DOCUMENT BEEN IN CRORES, THEN WHAT COULD THE DEPARTMENT HAD DONE? THE DEPARTMENT BEFORE TAKI NG ANY ACTION AGAINST THE ASSESSEE MUST HAVE ENQUIRED REGA RDING THE COPIES OF ANY PROOFS IN THE FORM OF OCTROI RECEIPTS , WEIGHT (KANDA) RECEIPTS, PURCHASE OR SALE BILLS FROM RADHEY SHYAM OR MADE ENQUIRIES FROM THE PARTIES WHOSE NAMES APPEARED IN THE PAPERS. IF THE DEPARTMENT IS ACCEPTING AND MAKING ADDITIONS ON THE BASIS OF SUCH FRAUDULENT DOCUMENTS, THEN ANY PERSON WOULD FI LE ANY FORGED DOCUMENTS AGAINST ANY PERSON IN ORDER TO SATISFY HI S PERSONAL GRUDGE. IF A PERSON CAN GO ALL THE WAY TO FABRICATE THE DOCUMENTS AND PROCEED TO COMPLAIN WITHOUT GAINING ANY ADVANTA GE, IT IS QUITE POSSIBLE THAT HE COULD FABRICATE ENTRIES ON SOME SH EETS ON PAPERS BY INCORPORATING SOME GENUINE ENTRIES ALSO TO GIVE A COLOUR OF GENUINENESS OF SUCH ENTRIES. HOWEVER, IT IS A CASE, WHERE THE ORIGINALS ARE NOT BEING PRODUCED OR NOT BROUGHT ON RECORD AT ALL; WHICH BURDEN SQUARELY LAY ON THE A. O., BUT WHICH HE MISERABLY FAILED TO DISCHARGE. BESIDES, RELIANCE IS BEING PLA CED ON THE JUDGMENT OF CHIRANJI LAI STEEL ROLLING MILLS REORTE D IN 84 ITR 222 (PETH)-HC, PLACED AT PAGES 99 TO 103 OF PB IN WHICH ON SIMILAR FACTS AND DOCUMENTS FOUND FROM THE THIRD PARTY IN T HE SHAPE OF BAHI AND THE ADDITION WAS DELETED ON NON PRODUC TION OF ORIGINAL. H. BESIDES THAT IT IS SUBMITTED THAT DESPITE OUR REPEA TED REQUESTS FOR ORIGINAL DOCUMENTS TO BE PRODUCED AND FOR CROSS EXA MINATION, BOTH THE ASSESSING OFFICER AND CIT (A) HAVE NOT PROVIDED SUCH OPPORTUNITY TO THE ASSESSEE AND, THEREFORE, NO ADDI TION CAN BE MADE ON ACCOUNT OF THESE DUMP DOCUMENTS, SPECIALLY, WHEN NO CROSS EXAMINATION HAVE BEEN ALLOWED. RELIANCE IS BE ING PLACED ON THE FOLLOWING JUDGMENTS). ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 8 I) ANDAMAN TIMBER INDUSTRIES VS/ COMMISSIONER OF CENTR AL EXCISE PLACED AT PAGES 146 TO 150 II) ACIT VS GREAT INDIA STEEL FABRICAT ORS IN ITA NO. 746/CHD/2014, PLACED AT PAGE 11 TO 39 TTAT , CHANDIGARH BENCH, CHANDIGARH. RELEVANT PAGES ARE 31,32,33. III) PR.CIT VS BEST INFRASTRUCTURE (INDIA) PVT. LTD. PLACED AT PAG ES 65 TO 98 RELEVANT PAGES ARE 91 ST 92. IV) CIT VS SUNIL AGGARWAL AS REPORTED IN 379 ITR 367, D ELHI HIGH COURT PLACED AT PAGES 104 TO 110 RELEVANT PAGE IS 1 05.' THE FACTS ARE IDENTICAL SINCE IN THAT CASE ALSO, T HE ADDITION WAS MADE ON THE BASIS OF PAPERS SUPPLIED BY EX-EMPLOYEE . I LASTLY, IT MAY BE STATED THAT THERE IS JUDGMENT OF HONBLE SUPREME COURT WITH REGARD TO AUTHENTICITY OF SEIZED DOCUMEN TS/LOOSE PAPERS FROM 3TD PARTY PREMISES DURING SURVEY OR SEARCH OPE RATIONS AND IN THE RECENT JUDGMENT IN THE CASE OF COMMON CAUSE VS UNION OF INDIA AS PLACED IN THE JUDGMENT SET AT PAGES 40 TO 49. IT HAS BEEN HELD THAT SUCH DOCUMENTS HAVE NO AUTHENTICITY AND CANNOT BE RELIED UPON. IN OUR CASE, THE FACTS ARE MORE STRONGER SINC E THESE DOCUMENTS, WERE NOT FOUND DURING SURVEY OR SEARCH O PERATIONS, BUT PROVIDED BY SOME PERSON TO THE ASSESSING OFFICER AN D, THUS, NO RELIABILITY CAN BE PLACED ON SUCH DOCUMENTS ON ACCO UNT OF BINDING JUDGMENT OF HONBLE SUPREME COURT, THIS HAS BEEN FO LLOWED BY THE AHMEDABAD BENCH OF THE ITAT IN ITA NO. 1502/AHD/201 5,IN THE CASE OF NISHANT CONSTRUCTION PVT. LTD. PLACED IN TH E JUDGMENT SET AT PAGES 50 TO 64. 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDE RS PASSED BY THE AUTHORITIES BELOW AND SUBMITTED THAT THE ORDER HA S BEEN PASSED ON LOGIC, WELL REASONS AND DOES NOT REQUIRE TO BE INTERFER ED WITH. ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 9 6. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTA NCES OF THE CASE, AS IN THE INSTANT CASE, ALL THE GROUNDS ARE INTERCON NECTED WITH EACH OTHER, THEREFORE TAKEN SIMULTANEOUSLY FOR ADJUDICA TION. IT REFLECTS THAT THE ASSESSEE HAD FILED RETURN WHICH WAS PR OCESSED U/S 143(2) OF THE ACT, HOWEVER, LATER ON COMPLAINT WAS RECEIVED BY THE ASSESSING OFFICER FROM ONE SH. RADHEY SHAM WHO WAS EX-EMP LOYEE OF THE ASSESSEE AND WHO HAVE APPLIED PHOTO COPIES OF CERTAIN DOCUMENT REGARDING THE ALLEGED PURCHASES, THEREFORE, THE ASSESSING OFFICER FROM THE SAID DOCUMENTS CONCLUDED THE DIFFERENCE OF PURCHASES AND SALES WHICH WERE NOT REFLECTED IN THE BOOKS OF ACCOUNT AND MAD E THE ADDITION WITHOUT CONSIDERING THE STATEMENT OF THE ASSESSEE WHICH WA S DULY RECORDED BY THE ASSESSING OFFICER IN WHICH HE HAS CATEGORICAL LY STATED THAT THE SAID DOCUMENTS DO NOT BELONGS TO HIM AND AS SUCH NO ADVERSE VIEW COULD BE TAKEN ON THE BASIS OF SUCH DOCUMENTS PARTICUL ARLY, WHEN THE SAME HAVE NOT BEEN FOUND DURING THE COURSE OF SURVE Y/SEARCH OPERATIONS AND EVEN OTHERWISE THERE ARE NO SIGNATURES O F THE ASSESSEE AND IT WAS ALSO EXPLAINED TO THE ASSESSING OFFICER THAT TH E SAID PERSON IS AN EX-EMPLOYEE OF THE ASSESSEE HAVE BEEN DONE FRAUD WIT H THE ASSESSEE ON WHICH THE CIVIL CASES ALSO PENDING IN THE CIVIL COURT AND IN RETALIATION THE SAID PERSON HAS PREPARED THOSE DOCUMENTS ONLY IN ORDER TO HARASS THE ASSESSEE. IT IS WORTHWHILE MENTIONED HEREIN THAT THE SAID ALLEGED DOCUMENTS WERE NEITHER PREPARED BY THE ASSESSEE N OR RECOVERED FROM THE PREMISES OF THE ASSESSEE OR FOUND DURING ANY SEAR CH OR SURVEY OPERATION AND S.P., MANSA, DECLARED SH. RADHE SHAM A S SHAKAITI WHICH MEANS IS IN HABIT OF MAKING COMPLAINTS AGAINST THE PUBLIC IN VARIOUS DEPARTMENTS. 6.1 . WE REALIZE THAT IN THE INSTANT CASE SH. RADHEY SHA M WAS NEVER BEEN PRODUCED FOR GROSS EXAMINATION ON THE VARIOUS DATE S FIXED BY THE ASSESSING OFFICER, THEREFORE, THE INFORMATION BEING CANNO T BE RELIED UPON AND IN THE INSTANT CASE, THERE ARE MANY FLAWS AS OR IGINALS OF ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 10 DOCUMENTS WERE NEITHER BEEN PRODUCED NOR BROUGHT ON RE CORD AT ALL AND THE ASSESSING OFFICER ONLY RELIED UPON THE PHOTOSTAT DOCU MENTS AND DESPITE REPEATED REQUESTS BY THE ASSESSEE, THE ASSESSING OFF ICER AND/OR CIT(A) FAILED TO PRODUCE/PROVIDE SH. RADHEY SHAM AND /OR DOCUMENTS FOR GIVING OPPORTUNITIES TO THE ASSESSEE FOR CROSS EXAMINA TION AND TO CONFRONT WITH THE DOCUMENTS. 6.2 WE ARE IN COMPLETE AGREEMENT WITH THE LD. AR THAT R ECENTLY THE HONBLE APEX COURT IN THE CASE OF COMMON CAUSE VS. UNI ON OF INDIA LAID DOWN THE RATIO THAT FOR AUTHENTICITY OF SEIZED D OCUMENTS/LOOSE PAPER FROM THIRD PARTY PREMISES DURING SURVEY OF SEARCH OPERATION HAVE NO AUTHENTICITY AND THEREFORE, CANNOT BE RELIED UPON. AS IN THE INSTANT CASE THE FACTS ARE MORE STRONGER BECA USE THE ALLEGED DOCUMENT ON WHICH THE DEPARTMENT AS RELIED UPO N WERE NEVER BEEN FOUND DURING SURVEY OR SEARCH OPERATION BUT IN F ACT, THE SAME HAVE BEEN PROVIDED TO THE ASSESSING OFFICER BY A PERSON AGAINST WHOM THE ASSESSEE HAS RIVALRY WHICH FACT CAN BE CONFRONTED FROM THE P OLICE REPORT AND CIVIL PROCEEDINGS. 6.3 EVEN OTHERWISE, RECENTLY, THE ITAT, AMRITSAR BENCH IN THE CASE OF SH. ASHOK KUMAR LUTHRA VS. ADDL. CIT IN ITA NO. 596( ASR)/2015 DEALT WITH THE LOOSE PAPER SEIZED DURING THE SEARCH OPERATION FROM THIRD PARTY. THE CONCLUDING PART OF THE ORDER IS REPRODUCED H EREIN BELOW. 7. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCU MSTANCES OF THE CASE AND ALSO RIVAL SUBMISSIONS OF THE PARTIES AS W ELL AS JUDGMENTS RELIED UPON BY THE ASSESSEE AS IT IS EVIDENT FROM T HE MATERIAL THAT THE ASSESSEE IS REGULARLY DEALING WITH M/S KAARTIKE GOL D ENTERPRISES FOR PURCHASE OF GOLD BULLIONS AND JEWELLERY AND THE SAM E ARE DULY ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND SALE/PURCHASE MADE THROUGH REGULAR BANKING CHANNEL, HOWEVER, THE SEARCH WAS CONDUCTED BY DDI(INV.), AT THE BUSINESS PREMISES OF M/S KAARTIKE GOLD ENTERPRISES AND DURING THE COURSE OF SEARCH, CERTAIN HAND WRITTEN LOOSE PAPERS AS WELL AS TRAIL PAPERS W ERE FOUND ON WHICH THE WORD LUTHRA BOBBY WAS MENTIONED, ON THE BASIS OF WHICH ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 11 THE REVENUE AUTHORITIES ASSUMED THAT THE AMOUNT TO THE TUNE OF RS.73,62,215/- PERTAINS TO THE APPELLANT/ASSESSEE. FURTHER THE STATEMENT OF MR. SUMIT KUMAR PARTNER OF KAARTIKE GOLD ENTERPRISES WAS RECORDED BY ASSESSING OFFICER ON 3 RD JAN. 2014 AS WELL AS BY THE LD. CIT(A) ON 5.8.2015 ON WHICH BASIS THE CIT(A) ALSO CONFIRMED THE ADDITION. LET US PERUSE THE RATIO LAID DOWN BY THE APEX COURT IN V.C SHUKLAS CASE (SUPRA) THAT ENTRIES IN THE JAIN HAWALA DIARIES, NOTE BOOK S AND FILE CONTAINING LOOSE SHEETS PAPER NOT IN THE FORM OF BOOKS OF ACCOUNTS AND HAS HELD THAT SUCH ENTRIES IN LOOSE P APERS/ SHEETS ARE NOT RELEVANT AND NOT ADMISSIBLE U/S 34 O F THE EVIDENCE ACT, AND THAT ONLY WHERE THE ENTRIES IN TH E BOOKS OF ACCOUNTS REGULARLY KEPT, DEPENDING ON THE NATURE OF OCCUPATION, THAT THOSE ARE ADMISSIBLE. FURTHER AS TO VALUE OF THE ENTRIES IN THE BOOKS OF ACCOUNT, THAT SUCH STATEMENT SHALL NOT ALONE BE SUF FICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY, EVEN IF THEY ARE RELEVANT AND ADMISSIBLE AND THAT THEY ARE ONLY CORR OBORATIVE EVIDENCE. IT HAS BEEN HELD EVEN THEN INDEPENDENT EV IDENCE IS NECESSARY AS TO TRUSTWORTHINESS OF THOSE ENTRIES WH ICH IS A REQUIREMENT TO FASTEN THE LIABILITY. FURTHER THE APEX COURT LAID DOWN THAT MEANING OF ACCOUNT BOOK WOULD BE SPIRAL NOTE BOOK/ PAD BUT NOT LOOSE SHEETS. THE FOLLOWING EXTRACT BEING RELEV ANT IS QUOTED HEREIN BELOW. 14 . IN SETTING ASIDE THE ORDER OF THE TRIAL COURT, TH E HIGH COURT ACCEPTED THE CONTENTION OF THE RESPONDENTS THAT THE DOCUMENTS WERE NOT ADMISSIBLE IN EVIDENCE UNDER SECTION 34 WI TH THE FOLLOWING WORDS: 'AN ACCOUNT PRESUPPOSES THE EXISTENCE OF TWO PERSON S SUCH AS A SELLER AND A PURCHASER, CREDITOR AND DEBTOR. ADMI TTEDLY, THE ALLEGED DIARIES IN THE PRESENT CASE ARE NOT RECORDS OF THE ENTRIES ARISING OUT OF A CONTRACT. THEY DO NOT CONT AIN THE DEBITS AND CREDITS. THEY CAN AT THE MOST BE DESCRIBED AS A MEMORANDUM KEPT BY A PERSON FOR HIS OWN BENEFIT WHI CH WILL ENABLE HIM TO LOOK INTO THE SAME WHENEVER THE NEED ARISES TO DO SO FOR HIS FUTURE PURPOSE. ADMITTEDLY THE SAID D IARIES WERE NOT BEING MAINTAINED ON DAY-TO-DAY BASIS IN THE COU RSE OF BUSINESS. THERE IS NO MENTION OF THE DATES ON WHICH THE ALLEGED PAYMENTS WERE MADE. IN FACT THE ENTRIES THE RE IN ARE ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 12 ON MONTHLY BASIS. EVEN THE NAMES OF THE PERSONS WHO M THE ALLEGED PAYMENTS WERE MADE DO NOT FIND A MENTION IN FULL. THEY HAVE BEEN SHOWN IN ABBREVIATED FORM. ONLY CERTAIN ' LETTERS' HAVE BEEN WRITTEN AGAINST THEIR NAMES WHICH ARE WIT HIN THE KNOWLEDGE OF ONLY THE SCRIBE OF THE SAID DIARIES AS TO WHAT THEY STAND FOR AND WHOM THEY REFER TO. X X X X X X X X X X X X X X X 17. FROM A PLAIN READING OF THE SECTION IT IS MAN IFEST THAT TO MAKE THERE UNDER IT MUST BE SHOWN THAT IT HAS BE EN MADE IN A BOOK, THAT BOOK IS A BOOK OF ACCOUNT AND THAT BOO K OF ACCOUNT HAS BEEN REGULARLY KEPT IN THE COURSE OF BUSINESS. FROM THE ABOVE SECTION IT IS ALSO MANIFEST THAT EVEN IF THE ABOVE REQUIREMENTS ARE FULFILLED AND THE ENTRY BECOMES AD MISSIBLE AS RELEVANT EVIDENCE, STILL, THE STATEMENT MADE THEREI N SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON W ITH LIABILITY. IT IS THUS SEEN THAT WHILE THE FIRST PART OF THE SE CTION SPEAKS OF THE RELEVANCY OF THE ENTRY AS EVIDENCE, THE SECOND PART SPEAKS, IN A NEGATIVE WAY, OF ITS EVIDENTIARY VALUE FOR CHA RGING A PERSON WITH A LIABILITY. IT WILL, THEREFORE, BE NEC ESSARY FOR US TO FIRST ASCERTAIN WHETHER THE ENTRIES IN THE DOCUMENT S, WITH WHICH ARE CONCERNED, FULFILL THE REQUIREMENTS OF TH E ABOVE SECTION SO AS TO BE ADMISSIBLE IN EVIDENCE AND IF T HIS QUESTION IS ANSWERED IN THE AFFIRMATIVE THEN ONLY ITS PROBATIVE VALUE NEED BE ASSESSED. 18. 'BOOK' ORDINARILY MEANS A COLLECTION OF SHEETS OF PAPER OR OTHER MATERIAL, BLANK, WRITTEN, OR PRINTED, FASTENE D OR BOUND TOGETHER SO AS TO FORM A MATERIAL WHOLE. LOOSE SHEE TS OR SCRAPS OF PAPER CANNOT BE TERMED AS 'BOOK' FOR THEY CAN BE EASILY DETACHED AND REPLACED IN DEALING WITH THE WORD 'BOO K' APPEARING IN SECTION 34 IN MUKUNDRAM V. DAYARAM A D ECISION ON WHICH BOTH SIDES HAVE PLACED RELIANCE, THE COURT OBSERVED:- 'IN ITS ORDINARY SENSE IT SIGNIFIES COLLECTION OF SHEETS OF PAPER BOUND TOGETHER IN A MANNER; WHICH CANNOT BE DISTURBED OR ALTERED EXCEPT BY TEARING APART. THE BINDING IS OF A KIND WHICH IS NOT INTENDED TO THE MOVEABLE IN THE SENSE OF BEING UNDONE AND PUT TOGET HER AGAIN. A COLLECTION OF PAPERS IN A PORTFOLIO, OR CL IP, OR STRUNG TOGETHER ON A PIECE OF TWINE WHICH IS INTEND ED TO BE UNTIED AT WILL, WOULD NOT, IN ORDINARY ENGLISH, BE CALLED A BOOK.... I THINK THE TERM 'BOOK' IN SECTIO N 34 AFORESAID MAY PROPERLY BE TAKEN TO SIGNIFY, ORDINAR ILY, A COLLECTION OF SHEETS OF PAPER BOUND TOGETHER WITH T HE INTENTION THAT SUCH BINDING SHALL BE PERMANENT AND THE PAPERS USED COLLECTIVELY IN ONE VOLUME. IT IS EASIE R HOWEVER TO SAY WHAT IS NOT A BOOK FOR THE PURPOSES OF ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 13 SECTION 34, AND I HAVE NO HESITATION IN HOLDING THA T UNBOUND SHEETS OF PAPER, IN WHATEVER QUANTITY, THOU GH FILLED UP WITH ONE CONTINUOUS ACCOUNT, ARE NOT A BO OK OF ACCOUNT WITHIN THE PURVIEW OF SECTION 34.' WE MUST OBSERVE THAT THE AFORESAID APPROACH IS IN ACCORD WITH GOOD REASONING AND WE ARE IN FULL AGREE MENT WITH IT. APPLYING THE ABOVE TESTS IT MUST BE HELD THAT T HE TWO SPIRAL NOTE BOOKS (MR 68/91 AND MR 71/91) AND THE TWO SPIR AL PADS (MR 69/91 AND MR 70/91) ARE BOOKS WITHIN THE MEAN ING OF SECTION 34, BUT NOT THE LOOSE SHEETS OF PAPERS CONT AINED IN THE TWO FILES (MRS 72/91 AND 73/91). FURTHER IN THE CASE OF THE COMMON CAUSE (A REGISTER ED SOCIETY AND ORS VS. UNION OF INDIA & ORS. INTERLOCU TORY APPLICATION NOS. 3 & 4 OF 2017 IN WRIT PETITION (CI VIL) NO. 505/2015, THE APEX COURT DEALT WITH THE LOOSE SHEET S AND WAS PLEASED TO HELD THAT IT IS APPARENT FROM THE AFORESAID DISCUSSION THAT LOOSE SHEETS OF PAPER ARE WHOLLY IRRELEVANT AS EVIDENCE B EING NOT ADMISSIBLE U/S 34 SO AS TO CONSTITUTE EVIDENCE WITH RESPECT TO THE TRANSACTIONS MENTIONED THEREIN BEING OF NO EVID ENTIARY VALUE. FURTHER THE APEX COURT IN PARA NO.22 WAS PLEASED TO HELD THAT IN CASE OF SHARA, IN ADDITION WE HAVE THE ADJUDICATION BY THE INCOME TAX SETTLEMENT COMMISSIO N. THE ORDER HAS BEEN PLACED ON RECORD ALONG WITH I.A. NO. 4. THE SETTLEMENT COMMISSION HAS OBSERVED THAT THE SCRUTIN Y OF ENTRIES ON LOOSE PAPERS, COMPUTER PRINTS, HARD DISK , PEN DRIVES ETC. HAVE REVEALED THAT THE TRANSACTIONS NOTED ON D OCUMENTS WERE NOT GENUINE AND HAVE NO EVIDENTIARY VALUE AND THAT DETAILS IN THESE LOOSE PAPERS, COMPUTER PRINT OUTS, HARD DISK AND PEN DRIVE ETC. DO NOT COMPLY WITH THE REQUIREME NT OF THE INDIAN EVIDENCE ACT AND ARE NOT ADMISSIBLE EVIDENCE . IT FURTHER OBSERVED THAT THE DEPARTMENT HAS NO EVIDENCE TO PRO VE THAT ENTRIES IN THESE LOOSE PAPERS AND ELECTRONIC DATA W ERE KEPT REGULARLY DURING THE COURSE OF BUSINESS OF THE CONC ERNED BUSINESS HOUSE AND THE FACT THAT THESE ENTRIES WERE FABRICATED, NON-GENUINE WAS PROVED. IT HELD AS WELL THAT THE PCIT/DR HAVE NOT BEEN ABLE TO SHOW AND SUBSTANTIATE , THE NATURE AND SOURCE OF RECEIPTS AS WELL AS NATURE AND REASON OF PAYMENTS AND HAVE FAILED TO PROVE EVIDENTIARY VALUE OF LOOSE PAPERS AND ELECTRONIC DOCUMENTS WITHIN THE LEGAL PA RAMETERS. THE COMMISSION HAS ALSO OBSERVED THAT DEPARTMENT HA S NOT BEEN ABLE TO MAKE OUT A CLEAR CASE OF TAXING SUCH I NCOME IN THE HANDS OF THE APPLICANT FIRM ON THE BASIS OF THESE D OCUMENTS. IT IS APPARENT THAT THE COMMISSION HAS RECORDED A FINDING THAT TRANSACTIONS NOTED IN THE DOCUMENTS WE RE NOT GENUINE AND THUS HAS NOT ATTACHED ANY EVIDENTIARY V ALUE TO ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 14 THE PEN DRIVE, HARD DISK, COMPUTER LOOSE PAPERS, CO MPUTER PRINTOUTS. SINCE IT IS NOT DISPUTED THAT FOR ENTRIES RELIED ON IN THESE LOOSE PAPERS AND ELECTRONIC DATA WERE NOT REGULARLY KEPT DURING COURSE OF BUSINESS, SUCH ENTRIES WERE DISCUS SED IN THE ORDER DATED 11.11.2016 PASSED IN SAHARA'S CASE BY T HE SETTLEMENT COMMISSION AND THE DOCUMENTS HAVE NOT BE EN RELIED UPON BY THE COMMISSION AGAINST ASSESSEE, AND THUS SUCH DOCUMENTS HAVE NO EVIDENTIARY VALUE AGAINST TH IRD PARTIES. ON THE BASIS OF THE MATERIALS WHICH HAVE B EEN PLACED ON RECORD, WE ARE OF THE CONSIDERED OPINION THAT NO CASE IS MADE OUT TO DIRECT INVESTIGATION AGAINST ANY OF THE PERSONS NAMED IN THE BIRLA'S DOCUMENTS OR IN THE DOCUMENTS A-8,A-9 AND A-10 ETC. OF SAHARA. NOW, WE ARE COMING TO THE INSTANT CASE AS IT IS APP ARENT FROM THE RECORD AS WELL AS FROM THE ORDERS PASSED B Y THE AUTHORITIES BELOW THAT CERTAIN LOOSE PAPERS WERE SE IZED FROM M/S KAARTIKE GOLD ENTERPRISES ON WHICH IN SOME OF T HE ENTRIES SOMEWHERE BOBBY SOMEWHERE LUTHARA SOME WHERE BOBBY LUTHRA HAVE BEEN WRITTEN. AS THE DEPARTMENT HAS FA ILED TO PROVE THAT THE SAID DOCUMENTS ARE BOOKS OF ACCOUNTS AND REGULARLY MAINTAINED ON DAY TO DAY BASIS IN THE COU RSE OF BUSINESS AND THE ALLEGED DOCUMENTS ARE RECORDS OF T HE ENTRIES ARISING OUT OF A CONTRACT, THEREFORE, THE SAME CAN AT THE MOST BE DESCRIBED AS A DOCUMENT KEPT BY A PERSON FOR HIS OW N BENEFIT WHICH WILL ENABLE HIM TO LOOK INTO THE SAME WHEN TH E NEED ARISES TO DO SO FOR HIS FUTURE PURPOSES. EVEN OTHERWISE SUCH DOCUMENT SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABI LITY EVEN IF THEY ARE RELEVANT AND ADMISSIBLE BECAUSE THE SAME A RE ONLY CORROBORATIVE EVIDENCE AND TO SUBSTANTIATE THE LIAB ILITY AGAINST A PERSON, INDEPENDENT EVIDENCE IS NECESSARY AS TO T RUST WORTHY OF THOSE ENTRIES WHICH IS A REQUIREMENT TO FASTEN T HE LIABILITY. AS IN THE INSTANT CASE, THE STATEMENT OF PARTNER OF KAARTIKE GOLD ENTERPRISES WAS ALSO RECORDED BY LD. AO AS WELL AS LD. CIT(A) AND IT REFLECTS FROM BOTH OF THE STAT EMENT THAT THERE IS NO DIRECT ALLEGATION/CLAIM AGAINST THE ASS ESSEE AND EVEN OTHERWISE THERE IS NO CONSISTENCY IN THE STAT EMENT OF THE SAID PERSON AND FURTHER HE HAS SUBMITTED THAT THERE ARE MANY LUTHRAS IN THE FIELD OF JEWELLERY BUSINESS. FURTH ER THE AUTHORITIES BELOW LOST SIGHT TO THE PROVISIONS OF L AW AS ENUMERATED IN SECTION 132(4) OF THE ACT THAT NO PRE SUMPTION CAN BE DRAWN U/S 132(4A) AGAINST STRANGER OR 3 RD PERSON BECAUSE IN THE INSTANT CASE, NO SEIZED PAPERS WERE EVER BE EN RECOVERED FROM THE ASSESSEE IN THE INSTANT CASE AND THE PRESU MPTION CAN ONLY BE DRAWN AGAINST THE PERSON FROM WHOSE RECOVER Y OF ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 15 SEIZED PAPER HAVE BEEN TAKEN PLACE. THEREFORE, IN T HE INSTANT CASE, THE PRESUMPTION HAS BEEN DRAWN MERELY ON THE BASIS OF SURMISES, CONJECTURE AND SUSPICION AS NO INCRIMINAT ING MATERIAL HAVE BEEN RECOVERED FROM THE ASSESSEE. IT IS MOST IMPORTANT TO OBSERVE THAT THE STATEMENT OF MR. ASHOK KUMAR PARTNER OF THE M/S KAARTIKE GOLD ENTERP RISES WAS NEVER ALLOWED TO BE CONFRONTED BY THE ASSESSEE, ALT HOUGH THE SAME WAS USED AS INCRIMINATING STATEMENT ALONG WITH INCRIMINATING DOCUMENTS TO FASTEN THE LIABILITY UND ER CHALLENGE AGAINST THE ASSESSEE. THIS SHOWS THE COMPLETE DENIA L OF JUSTICE AS WELL AS VIOLATED THE RULE OF AUDI ALTERAM PARTE M BECAUSE NO STATEMENT CAN BE USED UNTIL AND UNLESS OPPORTUNI TY HAS BEEN GIVEN TO THE PERSON IN SUFFERANCE. EVEN OTHERWISE FROM THE LETTER HEAD SEIZED FROM THE PREMISES OF M/S KAARTIKE GOLD ENTERPRISES, IT SHOWS A ROUGH ESTIMATE DATED 10 TH MARCH, 2012 AND IT REFLECTS FROM THE RECORD THAT ON THE BASIS OF THAT ESTIMATE, THE INVOICE NO. 153 DATED 10.03.2012 WAS ISSUED CONFIRMING THE SAID ESTIMATE BY RAISING BILL OF RS.9,94,705/- AND EVEN OTHERWISE IT IS NOT DISPUTED BY THE REVENUE DEPARTMENT, THEREFORE, THE CONTENTION O F THE LD. DR AND THE OBSERVATIONS OF THE REVENUE AUTHORITIES HAV E NO LEGS TO STAND THAT THE LETTER PAID WAS RECEIVED DURING THE COURSE OF SEARCH AT THE PREMISES OF M/S KAARTIKE GOLD ENTERPR ISES IS INCRIMINATING DOCUMENT TO FASTEN LIABILITY UPON THE ASSESSEE. FURTHER IN OUR CONSIDERED VIEW NOT A SINGLE INDEPEN DENT EVIDENCE/ INCREMENTING DOCUMENT HAS BEEN SEIZED FRO M THE ASSESSEE AND NOT EVEN A SINGLE PLACE, THE NAME OF T HE ASSESSEE FIRM I.E., LUTHRA JEWELLERS, OR THE NAME OF THE PRO PRIETOR ASHOK LUTHRA APPEARS FROM LOOSE SHEETS. FROM THE AFORESAID CONSIDERATION AND CONCLUSION, TH E ADDITION SUSTAINED BY THE LD. CIT(A) DESERVES TO BE SET ASIDE AND HENCE, THE ADDITION OF RS.73,62,158/- STANDS DE LETED. 6.4 ON THE AFORESAID CONSIDERATION AND CONCLUSION, WE ARE OF THE CONSIDERATION OPINION THAT THE ASSESSING OFFICER CANNOT BE MADE AN ADDITION ON THE BASIS OF PHOTOSTAT DOCUMENTS SPECIFICALLY IN VIEW OF THE FACT THAT NEITHER ORIGINAL OF THE SAME HAVE EVER BEEN PRODUCED FOR CONFRONTATION BY THE ASSESSEE NOR THE PERSON WHO HAVE PRO DUCED THE ITA NO.622 & 156 (ASR)/2014 &16 ASST. YEARS: 2005-06 & 2006-07 16 SAID DOCUMENTS WAS EVER BEEN BROUGHT FOR CROSS EXAMINATION BY THE ASSESSEE TO DEFEND HIS CASE IN PROPER MANNER. THEREFORE, W E ARE OF THE CONSIDERED OPINION THAT THERE WAS COMPLETE DENIAL OF JU STICE WHICH AT ALL CANNOT BE ALLOWED, HENCE WE ORDER FOR DELETION OF TH E SAID ADDITION MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON THE BASIS OF PHOTOSTAT DOCUMENTS BY SETTING ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND TO ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STANDS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.1 1.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07.11.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER