Sh. Ramesh Kaila, Chandigarh V. DCIT, Chandigarh

ITA 204/CHANDI/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8314 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-05-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S PHANI KISHORE
• Keywords: Unexplained expenditure; Business income; Search and seizure; Loose papers; Document seized; Documents seized
• Section: 69C; 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B , CHANDIGARH , !' #$ % & ' ($ , BEFORE: SHRI SANJAY GARG, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO.204/CHD/2015 / ASSESSMENT YEAR : 2011-12 SH.RAMESH KAILA, H.NO. 1383, SECTOR 33 C, CHANDIGARH. THE D.C.I.T., CENTRAL CIRCLE-II, CHANDIGARH. ./PAN NO: ADOPK1141R /APPELLANT /RESPONDENT ! /ASSESSEE BY: SHRI VINEET KRISHAN, ADV. ' ! / REVENUE BY : SHRI G.S.PHANI KISHORE, CIT DR # $ % /DATE OF HEARING : 07.05.2019 &'() % /DATE OF PRONOUNCEMENT: 03.07.2019 /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON [(IN SHORT CIT(A)] DATED 27. 1.2015 PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS ACT), RELATING TO ASSESSMENT YEAR 2011-12. ITA NO.204/CHD/2015 A.Y.2011-12 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE ORDER PASSED UNDER SECTION 250(6) BY T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) (CENTRAL), GUR GAON IN APPEAL NO. 129-C/CIT (A) (C)/GGN/13-14 DATED 27.01.2015 IS CONTRARY TO LAW AND FACTS OF THE CAS E. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS. 13,58,500/- MADE BY THE ID. ASSESSING OFFICER ON THE BASIS OF BACKSIDE OF P AGE NO.3 OF ANNEXURE-I (PARTY V-5) WHICH IS A DUMB DOCU MENT. NO ADDITION CAN BE MADE ON THE BASIS OF A DUMB DOCUMENT. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS. 4,50,000/- MADE BY T HE ID. ASSESSING OFFICER ON THE BASIS OF BACKSIDE OF PAGE NO.4 OF ANNEXURE-I (PARTY V-5) WHICH IS A DUMB DOCUMENT. NO ADDITION CAN BE MADE ON THE BASIS OF A DUMB DOCUMEN T. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS.15,22,710/- ON THE BA SIS OF BACKSIDE OF PAGE NO.9 OF ANNEXURE-3 (PARTY V-5) WHICH IS A DUMB DOCUMENT. NO ADDITION CAN BE MADE O N THE BASIS OF A DUMB DOCUMENT. 5. THAT THE APPELLANT CRAVES TO ADD, AMEND OR AL TER ANY GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING O F APPEAL WITH THE PERMISSION OF THE HON'BLE INCOME TA X APPELLATE TRIBUNAL, CHANDIGARH. 3. AT THE OUTSET ITSELF, IT WAS POINTED OUT THAT TH E SOLE ISSUE IN THE PRESENT APPEAL RELATES TO ADDITION MAD E ON ACCOUNT OF CERTAIN ENTRIES IN THE DOCUMENTS SEIZED DURING THE SEARCH, REMAINING UNEXPLAINED. DRAWING OUR ATTE NTION TO THE FACTS OF THE CASE IT WAS POINTED OUT THAT A SEA RCH & ITA NO.204/CHD/2015 A.Y.2011-12 3 SEIZURE OPERATION U/S 132(1) OF THE ACT WAS CONDUCT ED ON 30.6.2010 IN VTC GROUP OF CASES. SUBSEQUENTLY ASSES SMENT PROCEEDINGS WERE INITIATED U/S 153A OF THE ACT BY I SSUING STATUTORY NOTICES. DURING THE ASSESSMENT PROCEEDING S, THE ASSESSEE WAS CONFRONTED WITH THE PHOTOCOPIES OF THE SEIZED DOCUMENTS AND ASKED TO EXPLAIN THE CONTENTS OF THE SAME. AFTER CONSIDERING THE REPLY OF THE ASSESSEE THE A.O . MADE ADDITION ON ACCOUNT OF ENTRIES IN THE FOLLOWING DOC UMENTS REMAINING UNEXPLAINED: DOCUMENT NO. PAGE NO. AMOUNT OF ADDITION A-1 3(BACKSIDE) RS.13,58,000/- A-1 4(BACKSIDE) RS. 4,50,000/- A-3 9 RS.15,22,710/- 4. THEREAFTER THE LD.COUNSEL FOR THE ASSSESSEE DREW OUR ATTENTION TO EACH OF THE DOCUMENTS AND MADE ARGUMEN TS IN SUPPORT OF HIS CONTENTION THAT NO ADDITION ON ACCOU NT OF ENTRIES CONTAINED IN THESE DOCUMENTS WAS WARRANTED. THE LD.COUNSEL FOR THE ASSSESSEE FIRST DREW OUR ATTENTI ON TO THE DOCUMENTS FORMING PART OF ANNEXURE A-1 BEING THE BA CKSIDE OF PAGE-3 AND PAGE-4, REPRODUCED IN THE ASSESSMENT ORDER AND COPY OF WHICH WAS ALSO FILED BEFORE US AT PAGE- 5 AND PAGE-4 OF THE PAPER BOOK DATED 5.3.2019 RESPECTIVE LY AS UNDER: ITA NO.204/CHD/2015 A.Y.2011-12 4 ITA NO.204/CHD/2015 A.Y.2011-12 5 5. REFERRING TO THE ABOVE, LD.COUNSEL FOR THE ASSES SEE POINTED OUT THAT ADDITION OF RS.13.58 LACS & RS.4.5 LACS PERTAINED TO THE ENTRIES WHICH APPEARED STRUCK OFF. IT WAS ITA NO.204/CHD/2015 A.Y.2011-12 6 POINTED OUT THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAD EXPLAINED EACH AND EVERY DOCUMENT OF ANNEXURE A-1 VIDE SEVERAL LETTERS FILED .OUR ATTENT ION WAS DRAWN TO LETTER DATED 6.3.2013, PLACED AT PAPER BOO K PAGE NO.20, EXPLAINING THE CONTENTS OF ANNEXURE A-1 AS U NDER: ANNEXURE A-1 PAGE NOS.1 TO 2 THESE ARE SOME ROUGH CALCULATIONS BY M/S SAKSHI ENTERPRISES AND DO NOT PERTAIN TO THE ASSESSEE. PAGE NOS.3 TO 4 THESE PERTAIN TO CHEQUE PAYMENT BY M/S SAKSHI ENTERPRISES, M/S SAKSHI FILLING STATION, M/S PUNJAB FILLING STATION AND M/S VERMA TRANSPORT CO. TO VARIOUS PARTIES, WHICH HAS DULY BEEN REFLECTED IN THE BOOKS OF ACCOUNTS OF RESPECTIVE FIRMS. THESE FIRMS ARE BEING ASSESSED TO INCOME TAX UNDER FOLLOWING PANS:- NAME OF THE FIRMS PANS 1. M/S SAKSHI ENTERPRISES ABJFS0646J 2. M/S SAKSHI FILLING STATION BAJPS4935C 3. M/S PUNJAB FILLING STATION AADFV5397G 4. M/S VERMA TRANSPORT CO. AAAFV8311P THEREAFTER THE CONTENTS OF LETTER DATED 11.3.2013 PLACED AT PAPER BOOK PAGE NO.29 ,WAS POINTED OUT TO US EXPLAINING THE ENTRIES IN ANNEXURE A-1 AS UNDER: ANNEXURE A-1 PAGE 1-2 THESE ARE DETAILS OF CASH WITHDRAWALS FRO M SAKSHI ENTERPRISES BANK ACCOUNT ON DIFFERENT DATES. EXTRACT OF BANK ACCOUNT IN THE BOOKS OF SAKSHI ENTERPRISES IS ENCLOSED HEREWITH. IN PAYMENT ENTRIE S, RS 784000 & RS 50000 HAVE BEEN PAID TO EMPLOYES OF FIRM M/S SAKSHI ENTERPRISES AS IMPREST FOR FURTHER PAYMENTS AGAINST REGULAR EXPENSES OF THE FIRM. OTHER PAYMENTS ARE ALSO BUSINESS PAYMENTS MADE UNDER VARIOUS HEADS FOR ITA NO.204/CHD/2015 A.Y.2011-12 7 REGULAR BUSINESS OPERATIONS. THE COPIES OF BALANCE SHEET OF SAKSHI ENTERPRISES FOR THE AY 2008-09 TO 2011-12 ARE ATTACHED HEREWITH. PAGE 3-4 THESE ARE SOME CHEQUES PAYMENTS MADE BY DI FFERENT FIRMS AS EXPLAINED EARLIER. EXTRACTS OF COPIES OF ACCOUNTS OF THESE FIRMS ARE BEING ENCLOSED HEREWITH . - CHEQUE OF 2 LAC WAS PAID BY SAKSHI FILLING STA TION TO SAKSHI ENTERPRISES, COPY OF ACCOUNT ATTACHED. - CHEQUE OF 3 LAC WAS PAID BY SAKSHI FILLING STATIO N TO VERMA TRANSPORT CO., COPY OF ACCOUNT ATTACHED. - LOAN OF RS. 4 LAC (BALANCE) DUE FROM PUNJAB FILLI NG STATION TO M/S SAKSHI ENTERPRISES (LILAC - 7 LAC), COPY OF ACCOUNT ATTACHED. - CHEQUE OF 2.5 LAC WAS PAID BY PUNJAB FILLING STAT ION TO VERMA TRANSPORT CO, COPY OF ACCOUNT ATTACHED - CHEQUE OF 15 LAC WAS PAID BY SAKSHI ENTERPRISES T O M/S NARAIN & CO., COPY OF ACCOUNT ATTACHED. - 1DBI 22L - BALANCE WITH IDB1 BANK AT A PARTICULAR TIME IN JUNE 2010 - LIABILITY OF 9 LAC DUE TO VERMA TRANSPORT CO WAS CLEARED OUT OF IDBI BANK, COPY OF ACCOUNT ATTACHED. - CHEQUE OF 3 LAC WAS PAID BY SAKSHI ENTERPRISES SA IL TO SAKSHI FILLING STATION, COPY OF ACCOUNT ATTACHED. OUR ATTENTION WAS ALSO DRAWN TO LETTER DATED 13.3.2013 AT PAPER BOOK PAGE NO.90 AS UNDER: IN RESPECT TO QUERY RAISED IN RESPECT TO SEIZED DOCUMENTS ANNEXURE AL-PAGE 3 TO 4, PLEASE REFER TO OUR EARLIER REPLIES FILED IN THIS REGARD. AS REQUIRED BY YOUR G OODSELF, COPIES OF ACCOUNTS OF ALREADY REFERRED FIRMS ALONGWITH COP IES OF RELEVANT BANK STATEMENTS ARE BEING ENCLOSED HEREWIT H. RELEVANT PORTIONS OF DOCUMENTS HAVE BEEN HIGHLIGHTE D FOR YOUR REFERENCE PLEASE. ITA NO.204/CHD/2015 A.Y.2011-12 8 6. THE LD.COUNSEL FOR THE ASSSESSEE THEREAFTER STATED THAT THE ENTRIES ON ACCOUNT OF WHICH ADDITIO N HAD BEEN MADE WERE ALL ENTRIES WHICH WERE STRUCK OF F AND, THEREFORE, WERE NOT IN RELATION TO ANY TRANSAC TION INCURRED BY THE ASSESSEE. THE LD.COUNSEL FOR THE ASSSESSEE CONTENDED THAT THE SAID TRANSACTIONS WERE NEITHER DATED, NOR THEIR NATURE EVIDENT FROM THE DOCUMENT. THEREFORE, CLEARLY THESE WERE DUMB ENTRIE S/ DOCUMENTS AND NO ADDITION WAS WARRANTED ON ACCOUNT OF THEM. THE LD.COUNSEL FOR THE ASSSESSEE CONTENDED THAT THE SAID ENTRIES HAD BEEN TREATED AS UNEXPLAI NED EXPENDITURE AS PER SECTION 69C OF THE ACT BY THE REVENUE WITHOUT ANY BASIS SINCE THE DOCUMENT SHOWED NO DESCRIPTION ABOUT THE NATURE OF THE TRANSACTION AND THE REVENUE HAD NOT FOUND ANY CORROBORATIVE EVIDEN CE WHICH COULD FORM THE BASIS FOR TREATING IT SO. THEREAFTER OUR ATTENTION WAS DRAWN TO DOCUMENT A-3, PAGE 9 REPRODUCED IN THE ASSESSMENT ORDER AT PAGE 7 AS UNDER: ITA NO. 204 9 204 /CHD/2015 A.Y.2011-12 ITA NO.204/CHD/2015 A.Y.2011-12 10 WITH REFERENCE TO THE SAME THE LD.COUNSEL FOR THE ASSSESSEE SUBMITTED THAT THE EXPLANATION REGARDING THIS DOCUMENT WAS ALSO SUBMITTED ALONGWITH THE EXPLANATION OF ALL PAGES OF THE DOCUMENT A-3 IN THE LETTERS FILED TO THE A.O. AS STATED ABOVE AS UNDER: LETTER DATED 06.03.2013 ANNEXURE A-3 PAGE NO.9 IT APPEARS TO BE SOME CASH GENERATED OUT OF THE SALE OF DIESEL AND PETROLEUM PRODUCTS, WHICH IS DEPOSITED IN THE BANK FROM TIME TO TIME. HOWEVER, NO DESCRIPTION AND DATE HAS BEEN MADE AS SUCH IT IS A DUMB DOCUMENT. LETTER DATED 11.03.2013 ANNEXURE A-3 PAGE NO.9 IT APPEARS TO BE SOME CASH GENERATED OUT OF THE SALE OF DIESEL AND PETROLEUM PRODUCTS, WHICH IS DEPOSITED IN THE BANK FROM TIME TO TIME. HOWEVER, NO DESCRIPTION AND DATE HAS BEEN MADE AS SUCH IT IS A DUMB DOCUMENT. 7. THE LD.COUNSEL FOR THE ASSSESSEE SUBMITTED THAT THE EXPLANATION GIVEN BY THE ASSESSEE WAS SUBSTANTIATED WITH AN ENTRY OF RS.50,000/- REFLECTE D IN THE SAID DOCUMENT BEING REFLECTED IN THE BANK ITA NO.204/CHD/2015 A.Y.2011-12 11 STATEMENT, REPRODUCED AT PAPER BOOK PAGE NO42. FURTHER THE LD.COUNSEL FOR THE ASSSESSEE REITERATED HIS SUBMISSIONS MADE FOR THE DOCUMENTS IN ANNEXURE A-1, AS THE TRANSACTION BEING UNDATED AND THE NATUR E NOT BEING MENTIONED, THE SAID DOCUMENT WAS A DUMB DOCUMENT AND THERE WAS NO BASIS WITH THE REVENUE TO HOLD THE SAME AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING CASE LAWS FOR THE PROPOSI TION THAT BEFORE AN ADDITION U/S 69C OF THE ACT CAN BE MADE FOR UNEXPLAINED EXPENDITURE IT HAS TO BE ESTABLISHED THAT EXPENDITURE HAS BEEN INCURRED AND THE DOCUMENT BEING A DUMB DOCUMENT CANNOT SOLELY FORM THE BASIS OF ADDITION IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE: 1. CIT VS. M/S KHOSLA ICE & GENERAL MILLS, IN ITA NO. 208 OF 2011(P&H) 2. M/S KHOSLA ICE & GENERAL MILLS VS. DCIT (INVESTIGATION) IN ITA NO.32/CHANDI/2002 (I.T.A.T., CHANDIGARH). 3. M/S JESA RAM VISHAN NARAIN VS. DCIT, IN ITA NO.585/CHANDI/2003 (I.T.A.T.,CHD.) 4. DCIT VS. SHRI AMARJIT SINGH DHINGRA, IT(SS)A NO.6/CHD/2007 (I.T.A.T., CHD.) 5. ACIT VS. M/S BRINSAR FOODS PVT. LTD. IN IT(SS)A NO.47/CHD/2005 (I.T.A.T., CHD.) ITA NO.204/CHD/2015 A.Y.2011-12 12 8. THE LD.DR ON THE OTHER HAND REITERATED THE FINDINGS OF THE A.O AND THE CIT(A) THAT THE ASSESSE E HAD GIVEN NO EXPLANATION VIS A VIS THE IMPUGNED ENTRIES AT ANY STAGE DESPITE SPECIFICALLY BEING CONFRONTED WITH THE SAME AND DESPITE THE FACT THAT ADMITTEDLY THE ENTRIES WERE MADE BY THE ASSESSEE HIMSELF AND EVEN STRUCK OFF BY HIM ONLY. LD.DR EMPHASIZED THAT THE ASSESSEE HAVING OWNED THE DOCUMENT ,THE ONUS SQUARELY LAY ON HIM TO EXPLAIN T HE ENTRIES AND COULD NOT BE DISMISSED AS DUMB DOCUMENTS WITHOUT ANY REASON JUST ON THE WHIMS AND FANCIES OF THE ASSESSEE. LD.DR CONTENDED THAT IN TH E ABSENCE OF ANY EXPLANATION GIVEN BY THE ASSESSEE, T HE REVENUE WAS WELL WITHIN ITS RIGHTS TO DRAW ADVERSE INFERENCE. RELIANCE WAS PLACED ON THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. KRISHNAVENI AMMAL, 158 ITR 823 (MAD) FOR THE PROPOSITION THAT IF THE BEST EVIDENCE IS NOT PLACED BEFORE THE COURT AN ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT. LD.DR FURTHER POINTED OUT THAT NO BENEFIT CAN BE DERIVED BY THE ASSESSEE FROM THE PROPOSITION LAID D OWN BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF KHO SLA ITA NO.204/CHD/2015 A.Y.2011-12 13 ICE & GENERAL MILLS(SUPRA) SINCE THE SAID CASE IS DISTINGUISHABLE ON FACTS WITH THE DOCUMENT NOT HAVI NG BEEN ACCEPTED BY THE ASSESSEE IN THAT CASE WHILE IN THE PRESENT CASE THE DOCUMENT HAS BEEN ACCEPTED BY THE ASSESSEE. LD.DR POINTED OUT THAT THE CIT(A) HAD EXAMINED EACH AND EVERY ENTRY AND THEREAFTER GIVEN HIS FINDINGS VIS A VIS THE IMPUGNED ENTRIES REMAINI NG UNEXPLAINED. OUR ATTENTION WAS DRAWN TO THE FINDING S OF THE LD.CIT(A) AT PARA 5.1 FOR THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED ENTRIES IN DOCUMENT A-1 AS UNDER: 5.1 I HAVE CONSIDERED THE ASSESSEES SUBMISSIONS AND THE IMPUGNED ORDER. THE SEIZED DOCUMENT IS A SPIRAL PAD IN WHICH THE DAY TO DAY EXPENDITURES OF THE ASSESSEE AND IT BUSINESS CONCERNS ARE RECORDED. THE BACK OF PAGES 3 AND 4 OF THE DOCUMENT WERE ALSO FOUND TO REFLECT EXPENSES TO THE EXTENT OF RS.13,58,500/- AND RS.4,50,000/- RESPECTIVELY. AS THE ASSESSEE NEITHER OFFERED ANY EXPLANATION NOR RECONCILED THE ENTRIES WITH REGULAR BOOKS OF ACCOUN T EXPENSES, THE AMOUNTS INVOLVED WERE ADDED U/S 69C AFTER INVOKING THE PROVISIONS OF SEC.292C OF THE I.T.ACT, 1961. IN APPEAL IT WAS REITERATED THAT THERE COULD BE NO EXPLANATIONS FOR A DUMB DOCUMENT CONTAINING NO DATES SIGNATURE OR NATURE OF TRANSACTION, WHILE ALS O CONTENDING THAT THE ENTRIES WERE ALSO STRUCK OFF. CASE LAWS WERE QUOTED TO SUPPORT THAT ADDITIONS COULD NOT BE MADE ON THE BASIS OF SUCH DUMB DOCUMENTS. ITA NO.204/CHD/2015 A.Y.2011-12 14 THE FACT OF THE MATTER IS THAT THE DOCUMENT WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE. THE ASSESSEE HAS ALSO NOT DENIED THAT THE SAID DOCUMENT (A-1) IS A SPIRAL PAD CONTAINING RECORDING OF HIS D AY TO DAY EXPENDITURES. IN OTHER WORDS, HE HAS NEITHE R DENIED THE OWNERSHIP OF THE PAD NOR THE NATURE OF THE ENTRIES. SO WHEN THE OBVERSE ENTRIES ARE NOT DISPUTED, THEN HOW CAN THE ENTRIES ON THE REVERSE SIDES BE SAID TO BE DUMB IN NATURE, WHEN THE SAME ARE CLEARLY DECIPHERABLE? IN THE CASES CITED IN SUPPORT, THE DOCUMENTS HAVE BEEN DISOWNED BY THE ASSESSEE WHICH IS NOT THE CASE HERE. ON A PERUSAL OF THE SCANNED COPIES IN THE BODY OF THE IMPUGNED ORDER, IT IS SEEN THAT THE NARRATIO NS ARE CRISP AGAINST WHICH SPECIFIC FIGURES HAVE BEEN CLEARLY MENTIONED. OF THE SEVEN ENTRIES ON BACK OF PAGE 3, SIX HAVE BEEN STRUCK OFF WITH A LINE. THE UNSTRUCK ENTRY CLEARLY IS SAIL TO SAKSHI 3L. IT TRANSPIRES THAT SAKSHI ENTERPRISES IS A PROPRIETARY CONCERN OF THE ASSESSEE AND DEALS WITH STEEL- CONTRACTS FOR HANDLING/TRANSPORTING OF STEEL FROM DOCK-YARD. IN FACT THE ASSESSEE HAS ANOTHER PROPRIETARY CONCERN STYLED 'SAKSHI FILLING STATIO N AND ONE OF THE ENTRIES (THOUGH HAS A LINE DRAWN OVE R IT) NOTES PUNJAB TO SAKSHI FILLING STATION WITH THE FIGURE OF 22000. ANOTHER ENTRY IS RINL TO PB 5L. SAKSHI ENTERPRISES (RINL) IS MENTIONED IN THE COMPUTATION OF INCOME FILED BY THE ASSESSEE. THE ASSESSEE EXPLAINED THAT THE BUSINESS INCOME OF SAKSHI ENTERPRISE HAS BEEN DETERMINED U/S 44AD. NOTHING HAS BEEN STATED IN WHAT MANNER SAKSHI FILLING STATION HAS BEEN ACCOUNTED FOR. AS FOR THE BACKSIDE OF PAGE 4, THE NARRATIONS ARE BRIEF BUT CLEARLY IDENTIFIABLE, WITH AMOUNTS AN D DATES (IN SOME CASES). THE AO HAS CONSIDERED ONLY THE SUM OF 4.5 L FOR WHICH THE NARRATION IS CASH TO PB FILLING. AN ENTRY ABOVE MENTIONS PB FILLING TO SAKSHI 4L. THE OTHER NARRATIONS ARE VFLTPN WHICH ASSESSEE IS A PARTNER), IDB1, CANARA BANK AND SO ON. THE ASSESSEE HAS SOUGHT TO BRUSH OFF THE ENTRIES AS SCRIBBLES ON DUMB DOCUMENTS, WHEN IN ITA NO.204/CHD/2015 A.Y.2011-12 15 REALITY THE DOCUMENT IS A PART AND PARCEL OF ASSESSEE'S SUMMARY/RECORDING OF TRANSACTIONS. IT IS THEREFORE CRYSTAL CLEAR THAT ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE THE ONUS CAST UPON HIM U/S 292C. THUS, THE ADDITIONS U/S 69C OF RS.13,58,500/- AND RS.4,50,000/- ARE CONFIRMED FOR REASONS DISCUSSED ABOVE. ASSESSEE FAILS ON THESE TWO GROUNDS OF APPEAL. AND TO PARA6.1 FOR THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED ENTRIES IN DOCUMENT A-3 AS UNDER: 6.1 1 HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS AND THE IMPUGNED ORDER. THIS DOCUMENT IS ALSO FOUND TO BE A SPIRAL PAD IN WHICH THE DAY TO DAY EXPENDITURES OF THE ASSESSEE AND ITS BUSINESS CONCERNS ARE RECORDED. THE TOTAL AMOUNT OF EXPENSES RECORDED ON THIS DOCUMENT IS RS.15,22,710/-. AS THE ASSESSEE NEITHER OFFERED ANY EXPLANATION NOR RECONCILED THE ENTRIES WITH REGULAR BOOKS OF ACCOUNT EXPENSES, THE AMOUNT WAS ADDED U/S 69C AFTER INVOKING THE PROVISIONS OF SEC. 292C OF THE I.T. ACT, 1961 IN APPEAL ASSESSEE STUCK TO THE SAME EXPLANATION, REITERATING THAT THERE COULD BE NO EXPLANATIONS FOR A DUMB DOCUMENT CONTAINING NO DATES, SIGNATURE OR NATURE OF TRANSACTION, WHILE ALSO CONTENDING THAT IT WAS NOT HIS HANDWRITING. SAME CASE LAWS WERE QUOTED TO SUPPORT THAT ADDITIONS COULD NOT BE MADE ON BASIS OF SUCH DUMB DOCUMENTS. HERE TOO, THE RELEVANT DOCUMENT WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE. THE ASSESSEE HAS ALSO NOT DENIED THAT THE SAID DOCUMENT (A-1) I S A SPIRAL PAD CONTAINING RECORDING OF HIS DAY TO DAY EXPENDITURES. IN OTHER WORDS, HE HAS NEITHER DENIED THE OWNERSHIP OF THE PAD NO THE NATURE OF THE ENTRIES. SO AGAIN WHEN THE PAD AND THE EXPENDITURE ENTRIES ARE NOT DISPUTED, THEN HOW CAN THE ARITHMETICAL FIGURE ON THE REVERSE OF PAGE 9 BE SAI D TO BE DUMB IN NATURE? IN THE CASES CITED IN SUPPORT , ITA NO.204/CHD/2015 A.Y.2011-12 16 THE DOCUMENTS HAVE BEEN DISOWNED BY THE ASSESSEE WHICH IS NOT THE CASE HERE. ON A PERUSAL OF THE SCANNED COPY ON PAGE 7 OF THE ORDER, THE SUMS MENTIONED ARE UNAMBIGUOUS BY MEANS OF ADDITIONS AND SUBTRACTIONS, APART FROM THE NAME NANDA AND SKR AGAINST WHICH 50000 AND 100000 ARE MENTIONED. I AM AFRAID ASSESSEE'S ATTEMPT TO BRUSH OFF THE ENTRIES IS NOT ACCEPTABLE AS IT IS VERY UNLIKELY THAT HE IS NOT IN THE KNOW OF T HE NATURE OF THE ENTRIES OR WHAT THE SUMS REPRESENT. THE ENTRIES IN THE PAD REPRESENT EXPENDITURES SO LOGICALLY THE SUMS AT THE BACKSIDE HAVE TO BE DIRECTLY RELATED TO SUCH TRANSACTIONS. NEEDLESS TO SAY THE SUMS LEADING TO THE TOTAL OF RS. 15,22,710/ - ARE ALL WRITTEN AT THE BOTTOM OF THE PAGE AND ARE A LSO CORRESPONDING WITH THE JOTTINGS ON THE PAGE ITSELF. THUS, I AM INCLINED TO UPHOLD THE ACTION OF THE AO IN PLACING THE ONUS ON THE ASSESSEE U/S 292C AND MAKING THE ADDITION U/S 69C IN THE BACKDROP OF ASSESSEE REMAINING TIGHT-FISTED IN HIS RESPONSE TO THE DOCUMENT. THEREFORE, ASSESSEE FAILS ON THIS GROUND. 9. LD.COUNSEL FOR THE ASSESSEE COUNTERED BY STATING THAT THE DATE MENTIONED IN DOCUMENT A-3 DID NOT RELATE TO THE IMPUGNED YEAR AND THEREFORE IN ANY CA SE COULD NOT BE SAID TO RELATE TO THE YEAR UNDER CONSIDERATION. IT WAS FURTHER CONTENDED THAT THE ENTRIES WERE NOT IN THE ASSESSES HANDWRITING. 10. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ISSUE BEFORE US RELATES TO ADDITION MADE ON ACCOUNT OF CERTAIN NOTINGS/ENTRIES IN THE DOCUMENTS FOUND DURI NG SEARCH CONDUCTED AT THE ASSESSEES PREMISES. ITA NO.204/CHD/2015 A.Y.2011-12 17 11. AS PER SECTION 292C OF THE ACT, WHERE ANY DOCUMENT IS FOUND IN THE POSSESSION OF A PERSON DURING SEARCH, THE PRESUMPTION IS THAT IT BELONGS T O THE ASSESSEE AND THE CONTENTS THEREOF ARE TRUE. THE RE IS NO DISPUTE VIS--VIS THIS POSITION OF LAW. THE O NUS, THEREFORE, TO EXPLAIN THE CONTENTS OF THE DOCUMENTS FOUND DURING SEARCH RESTS SQUARELY ON THE ASSESSEE AND WHERE THE ASSESSEE FAILS TO OFFER ANY EXPLANAT ION, MEANING TO THE CONTENTS OF THE DOCUMENT HAVE TO BE GIVEN ON THE BASIS OF SURROUNDING CIRCUMSTANCES RELATING TO THE SAID DOCUMENTS. IN OTHER WORDS, THE DOCUMENTS AND ITS CONTENTS HAVE TO BE READ AS A WHOLE. MEANING CAN ALSO BE DERIVED FROM ANY CORROBORATIVE MATERIAL FOUND RELATING TO THE CONTEN TS OF THE DOCUMENTS. ACCORDINGLY, AFTER GIVING MEANING TO THE DOCUMENT AND ITS CONTENTS IT IS TO BE SEEN WHET HER ANY ADDITION HAS TO BE MADE WITH RESPECT TO THE SA ME IN THE HANDS OF THE ASSESSEE AS PER LAW. A DUMB DOCUMENT, AS A COROLLARY THEREFORE IS ONE TO WHICH NO MEANING CAN POSSIBLY BE ASCRIBED. 12. APPLYING THE ABOVE POSITION OF LAW TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE DOCUMENTS IN ITA NO.204/CHD/2015 A.Y.2011-12 18 DISPUTE I.E. DOCUMENT A-1 AND A-3 WERE FOUND AT TH E ASSESSEES PREMISES DURING SEARCH. FURTHER, UNDENIABLY THE ASSESSEE HAD NOT DENIED BEING IN KNO W OF THE SAID DOCUMENTS HAVING EXPLAINED THE MAJORITY OF THE CONTENTS IN THE SAID DOCUMENTS VIDE ITS LETT ER FILED TO THE A.O. DATED 6.3.2013, 11.3.2013 AND 13.3.2013, AS REPRODUCED ABOVE. IT WAS STATED THAT THE DOCUMENT CONTAINED CASH AND BANK ENTRIES RELATING T O CERTAIN FIRMS WHOSE NAMES FIND MENTION THEREIN. THE SAID EXPLANATION OF THE ASSESSEE HAS BEEN ACCEPTED BY THE REVENUE ALSO. IT WAS ONLY CERTAIN CONTENTS/ENTR IES IN THE TWO DOCUMENTS, WHICH WERE STRUCK OFF, FOR WHICH THE ASSESSEE OFFERED NO EXPENDITURE AND CLAIM ED THEM TO BE DUMB DOCUMENTS/ENTRIES, WITH NO DATE OR DESCRIPTION OF THE ENTRY MADE THEREIN. 13. CONSIDERING THE FACT THAT MAJORITY OF THE CONTE NTS OF THE DOCUMENTS WERE IN THE KNOWLEDGE OF THE ASSESSEE AND OWNED BY HIM AS BEING SO, WE FAIL TO UNDERSTAND HOW HE COULD HAVE BRUSHED OFF THE STRUCK OFF ENTRIES AS BEING MERE SCRIBBLINGS WITH THEIR NA TURE AND DATE UNKNOWN AND THUS DUMB ENTRIES. AS RIGHTLY POINTED OUT BY THE LD.CIT(A) ,THE ENTRIES WERE ITA NO.204/CHD/2015 A.Y.2011-12 19 DECIPHERABLE. THE LD.CIT(A) HAS DECIPHERED THE SAME ALSO, WHICH HAS NOT BEEN REBUTTED BY THE LD.COUNSEL FOR THE ASSESSEE. IT IS IMPOSSIBLE THAT A DOCUMENT CONTAINING A RECORDING OF CERTAIN TYPE OF TRANSACTI ON BY THE ASSESSEE MAJORILY, WOULD CONTAIN SCRIBBLING OR MEANINGLESS NOTINGS IN BETWEEN FOR NO RHYME OR REASON. UNDOUBTEDLY, ALONGWITH OTHER ENTRIES THESE STRUCK OFF ENTRIES WERE ALSO MADE BY THE ASSESSEE WHICH FACT HE HAD NOT DENIED AND, THEREFORE, WHEN H E KNEW THE NATURE OF OTHER ENTRIES, HE MUST BE FULLY AWARE OF THE NATURE OF THESE STRUCK OFF ENTRIES ALS O. A DOCUMENT CANNOT BE TREATED PARTLY AS SPEAKING AND PARTLY AS DUMB WITHOUT GIVING ANY BASIS FOR THE SAM E, AND MERELY ON THE WHIMS AND FANCIES OF THE ASSESSEE . THE ASSESSEE HAS TO COME UP WITH A PLAUSIBLE EXPLANATION FOR STATING THAT CERTAIN ENTRIES DID NO T REVEAL ANYTHING OR WERE CLEARLY DUMB ENTRIES, WHILE ADMITTING THE REST TO BE MEANINGFUL. THE ASSESSEE H AD CORRELATED THE CONTENTS OF OTHER ENTRIES ALSO WITH ENTRIES IN THE BOOKS OF ACCOUNT OF SOME FIRM AS MENTIONED IN THE LETTERS FILED TO THE A.O. AND THE ENTRIES RELATED TO A SPECIFIED PERIOD. THEREFORE, F OR THE ABOVE REASONS, WE ARE NOT IN AGREEMENT WITH THE ITA NO.204/CHD/2015 A.Y.2011-12 20 CONTENTION OF THE LD.COUNSEL FOR THE ASSSESSEE THA T THE ENTRIES IN DOCUMENTS-A-1, BACKSIDE OF PAGES 3 A ND 4 OF THE PAPER BOOK AMOUNTING IN ALL TO RS.13,58,500/- AND RS.4,50,000/- RESPECTIVELY WERE DUMB ENTRIES WHOSE NATURE AND PERIOD WAS UNKNOWN. THE RELIANCE PLACED BY THE LD.COUNSEL FOR THE ASSES SEE ON VARIOUS CASE LAWS, WE FIND, ARE OF NO ASSISTANCE TO THE ASSESSEE SINCE THEY ARE ALL DISTINGUISHABLE ON FACTS. IN THE SAID CASES THE DOCUMENTS WERE COMPLETELY DISOWNED BY THE ASSESSEE, WHILE IN THE IMPUGNED CASE THE ASSESSEE HAS OWNED THE DOCUMENTS, EXPLAINED MAJORITY OF ITS CONTENTS AND TREATED ONLY A FEW ENTRIES AS DUMB. 14. BUT HAVING SAID SO, WE FIND THAT THE REVENUE HA S TREATED THE SAME AS UNEXPLAINED EXPENDITURE WITHOUT GIVING ANY BASIS FOR TREATING THEM SO. NEITHER THE A.O. NOR THE CIT(A) HAS RECORDED ANY FINDINGS VIS--VIS THE NATURE OF THE CONTENTS OF THE DOCUMENT-A-1 TO THIS EFFECT, ON THE BASIS OF WHICH ALONE THEY COULD HAVE ARRIVED AT THIS CONCLUSION, NOR THERE IS ANY FINDIN G OF ANY CORROBORATIVE MATERIAL OR EVIDENCE FOUND BY THE M ITA NO.204/CHD/2015 A.Y.2011-12 21 TO HOLD THE ENTRIES AS BEING IN THE NATURE OF UNEXPLAINED EXPENDITURE. 15. WHAT IS EVIDENT, THEREFORE, IS THAT NEITHER THE ASSESSEE HAD DISCHARGED ITS ONUS OF EXPLAINING THE SAID ENTRIES WHETHER DUMB/OTHERWISE, NOR HAS THE REVENUE GIVEN ANY BASIS FOR ARRIVING AT THE CONCLUSIONS THAT THEY WERE IN THE NATURE OF UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. THERE I S THEREFORE, WE FIND, NO BASIS FOR ARRIVING AT ANY CONCLUSION REGARDING THE NATURE OF THESES ENTRIES. IN THESE CIRCUMSTANCES, THE ONLY JUSTIFIED COURSE OF ACTION, IN OUR VIEW, IS TO RESTORE THE ISSUE BACK T O THE A.O. TO ADJUDICATE IT AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE AO IS DIRECTED TO GIVE A CLEAR FINDING AND BASIS FOR ARRI VING AT WHATEVER CONCLUSION HE ARRIVES AT REGARDING THE NATURE OF THE IMPUGNED CONTENTS OF THE DOCUMENTS AN D THEREAFTER ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. THE ASSESSEE, IS FREE TO SUBMIT WHATEVER EVIDE NCE HE CONSIDERS FIT IN SUPPORT OF ITS EXPLANATION. 16. NOW TAKING UP PAGE NO.9 ONE DOCUMENT A-3, WE FIND THAT THE ASSESSEE HAS OWNED THE DOCUMENT AND ITA NO.204/CHD/2015 A.Y.2011-12 22 EVEN GIVEN A GENERAL DESCRIPTION OF ITS AS BEING SO ME CASH GENERATED OUT OF SALE OF DIESEL AND PETROLEUM PRODUCTS, WHICH WAS DEPOSITED IN THE BANK FROM TIME TO TIME. THE ASSESSEE HAS REITERATED THIS EXPLANATI ON TIME AND AGAIN IN THE LETTERS FILED TO THE A.O. AND AS NOT RETRACTED THE SAME. THEREFORE, THE DOCUMENT, IN THE FACE OF THE GENERAL EXPLANATION OF THE CONTENTS OF THE SAME, CANNOT BE TREATED AS DUMB DOCUMENT. HAVING GIVEN A GENERAL EXPLANATION, THE ASSESSEE CANNOT NOW TAKE A U TURN AND SAY THAT IT WAS A DU MB DOCUMENT. AT THE MOST, THE ASSESSEE MAY NOT BE IN A POSITION TO GIVE A COMPLETE EXPLANATION REGARDING T HE SAME BUT HE CANNOT SAY THAT THE DOCUMENT HAS NO MEANING. WE THEREFORE REJECT THE ASSESSEES CONTENT ION VIS--VIS THIS DOCUMENT ALSO THAT IT WAS A DUMB DOCUMENT. 17. FURTHER AS IN THE CASE OF DOCUMENT A-1 PAGE 3 AND 4, BACKSIDE, THE REVENUE IN THE CASE OF THIS DOCUMENT ALSO HAS GIVEN NO BASIS FOR ARRIVING AT TH E CONCLUSION THAT THE ENTRIES IN THE DOCUMENT REPRESENTED UNEXPLAINED EXPENDITURE OF THE ASSESSEE THEREFORE, AS HELD BY US IN THE CASE OF ANNEXURE-A- 1, ITA NO.204/CHD/2015 A.Y.2011-12 23 PAGE 3 AND 4, BACKSIDE IN THE ABSENCE OF ANY EXPLANATION VIS--VIS THE CONTENTS AND DOCUMENT BOT H BY THE ASSESSEE AND THE REVENUE, WE CONSIDER IT FIT TO RESTORE THIS ISSUE ALSO BACK TO THE A.O. TO ADJUDIC ATE THE SAME AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO ADD, THE ASSESSEE BE GIVEN DUE OPPORTUNITY OF HEARI NG AND IS FREE TO ADDUCE ALL EVIDENCES IT WISHES TO RE LY UPON IN SUPPORT OF HIS CONTENTIONS. 18. IN EFFECT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- % & ' ($ (SANJAY GARG) (ANNAPURNA GUPTA) /JUDICIAL MEMBER )* /ACCOUNTANT MEMBER ,% /DATED: 03 RD JULY, 2019 * $ * '* +,-, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # . / CIT 4. # . ( )/ THE CIT(A) 5. ,/0 1 , %1 , 23405 / DR, ITAT, CHANDIGARH 6. 046$ / GUARD FILE '* # / BY ORDER, / ASSISTANT REGISTRAR