DCIT, Ludhiana V. Sh. Harvinder Pal Singla, Bathinda

ITA 246/CHANDI/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7206 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH GUPTA
• Keywords: Income from undisclosed sources; Document seized; Reason to believe; Documents seized
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !'#, $ !% ' . '.. . ( , )* !% BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 246/CHD/2017 / ASSESSMENT YEAR : 2009-10 THE D.C.I.T., CENTRAL CIRCLE-III, LUDHIANA. VS SH.HARVINDER PAL SING LA , H.NO.21605, GALI NO.6/1A, POWER HOUSE ROAD, BATHINDA ./ PAN NO: ACOPP5360N / APPELLANT / RESPONDENT / REVENUE BY : SHRI ASHISH GUPTA, CIT(DR) / ASSESSEE BY : SHRI SUDHIR SEHGAL, ADV. ! ' # / DATE OF HEARING : 18.03.2019 $%&' # / DATE OF PRONOUNCEMENT : 16.04.2019 )+/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 15.11.2016 OF CIT(A)-5, LU DHIANA PERTAINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUND: 1. THAT THE LD.CIT(A), LUDHIANA HAS ERRED IN LAW A ND ON FACTS IN DELETING, THE ADDITION OF RS. 1,11,56,000/- WITHOUT APPRECIATING THAT THE NARRATION OF THE ENTRIES MADE IN THE SEIZED DOCUMEN T ANNEXURE A-5 PAGE 99 CLEARLY MENTIONS THE DATES OF PAYMENTS MADE I.E. 28.05.2008 / 24.08.2008 / 27.08.2008 / 05.12.2008// 23.11.200871 28.08.2011 I.E. PERTAINS TO A.Y.2009-10 AND THE DETAILS OF PAYMENTS MADE/ARE ALSO CLEARLY MENTIONED IN THE AFORESAID SEIZED DOCUMENT AND THE ASSESSEE FAILED TO DISCHARGE THE ONUS REGARDING' THE EXPLANA TION OF THE ENTRIES AND SOURCE OF PAYMENTS. 2. THE LD. AR AFTER READING OF THE AFOREMENTIONED GROUND BY THE CIT DR TOOK STRONG OBJECTION TO THE WORDING OF THE SPE CIFIC GROUND ALLEGING THAT APART FROM THE DATE 23.11.2008 ALL THE OTHER DATES MENTIONED IN THE MONTH OF MAY, AUGUST AND DECEMBER WERE INCORRECT TO THE EXTENT THAT 2008 WAS NOT MENTIONED IN THE LOOSE DOCUMENTS DESCRIBED AS A-5, PAGE 99. EVEN FOR THE DATE 23.11.2008 IT WAS SUBMITTED THAT IT WAS ALSO INCORRECT AS THE MONTH IS INCO RRECT AND IT SHOULD BE READ AS 23.01.2008 INSTEAD OF 23.11.2008. IN THE SEIZED ITA 246/CHD//2017 A.Y. 2009-10 PAGE 2 OF 15 DOCUMENT FOR ALL THE OTHER DATES, IT WAS SUBMITTED THAT T HE YEAR 2008 IS NOT MENTIONED AT ALL. IT WAS ALSO HIS SUBMISSIONS THAT T HE SAID DOCUMENT DOES NOT MAKE ANY REFERENCE TO ANY PAYMENT HAVING BEEN MADE AND THUS REFERENCE TO THAT EXTENT IN THE GROUND IS BASED ON NO MATERIAL. IT WAS ALSO HIS SUBMISSION THAT THE VERY ADDITIO N OF RS.1.11 CRORES ITSELF IS BASED ON THE INFERENCE THAT THE ROUGH NO TING MAKES A MENTION OF AMOUNTS IN LAC WHEREAS THERE IS NO BASIS FOR SU CH INFERENCE. THE SAID DOCUMENT, IT WAS SUBMITTED, EVEN OTHERW ISE HAS ALREADY BEEN CONSIDERED BY THE I.T.A.T. AS BELONGING TO THE COMPANY WHEREIN THE ASSESSEE AND HIS WIFE WERE DIRECTORS. THUS, IT WAS ARGUED THAT THE ISSUE EVEN OTHERWISE, STANDS DECIDED BY THE IT AT IN A CONSOLIDATED ORDER DATED 05.01.2016 ITSELF CONSIDERING SAM E TYPE OF NOTINGS FOR THESE ASSESSMENT YEARS. THUS, THE REFERENCE TO INCORRECT FACTS IN THE DEPARTMENTAL GROUND WAS OBJECTED TO AS TH ESE, IT WAS SUBMITTED, ARE JUST ROUGH NOTINGS BELONGING TO THE COMP ANY, THUS INFERENCES THAT THE AMOUNTS ARE MENTIONED IN LACS ETC. WE RE STATED TO BE INCORRECT. EVEN OTHERWISE, IT WAS HIS SUBMISSION THAT T HE APPEAL WAS NOT MAINTAINABLE AS APART FROM RELYING UPON THE IMPUG NED ORDER WHICH ITSELF HAS RELIED UPON THE CONSOLIDATED ORDER OF THE I.T.A.T., THE ASSESSEE HEREIN WOULD ALSO REITERATE THAT THE ITAT HAS NOTED THAT THE DOCUMENTS PERTAINED TO THE COMPANY OF THE ASSESSEE WH ICH WAS UNDERTAKING ROAD CONTRACTS. APART FROM THAT, IT WAS HIS S UBMISSION THAT IT DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATIO N AND SINCE IT IS A REPLICA OF A DOCUMENT CONSIDERED BY THE I.T.A.T. IN THE AFORESAID CONSOLIDATED ORDER AS SEIZED DOCUMENT DESCRIBED AS PAGE NO.12 OF ANNEXURE-2, THE DEPARTMENTAL GROUND BEING WRONGLY WORD ED AND BASED ON INFERENCES EVEN OTHERWISE, IS NOT MAINTAINABLE. 3. CONSIDERING THE SUBMISSIONS ON BEHALF OF THE ASSESSEE THE LD. CIT DR BEFORE PRESENTING HIS ARGUMENTS IN THE PRESENT A SSESSMENT PROCEEDINGS WAS REQUIRED TO TAKE A CALL ON THE ISSUES PO INTED OUT BY THE LD. AR. ACCORDINGLY, HE WAS REQUIRED TO ADDRESS WHET HER HE WOULD WANT TO AMEND THE GROUND IF THERE WERE ANY FACTUAL MISTA KES IN ITS WORDING. 4. THE LD. CIT-DR STATED THAT HE DOES NOT NEED TIME TO MODIFY THE GROUND AND THE DEPARTMENT CAN ARGUE THE APPEAL ON TH E BASIS OF THE GROUND WHICH THE AO HAS FINALIZED AFTER CONSIDERING THE REC ORD. IT WAS HIS SUBMISSION THAT IN ALL FAIRNESS TO AN EXTENT THE ASSESSEES OBJE CTION ITA 246/CHD//2017 A.Y. 2009-10 PAGE 3 OF 15 DO HAVE SOME BASIS. HOWEVER, IT WAS HIS STAND THAT THE G ROUND DOES NOT REQUIRE ANY MODIFICATION AS HE WAS CONFIDENT THAT ON C ONSIDERATION OF THE SEIZED DOCUMENTS DESCRIBED AS A-5, PAGE 99, HE WOULD BE ABLE TO SHOW THAT THE YEAR IS CORRECTLY TAKEN AND ALSO THE D ATE 23.11.2008 IS CORRECTLY MENTIONED. THE ARGUMENTS ON BEHALF OF THE ASSE SSEE THAT IT WAS 23.01.2008, REFERRING TO THE DOCUMENTS, IT WAS SUBMITTE D WAS INCORRECT ON FACTS. 4.1 ADDRESSING THE OBJECTIONS THAT THE OTHER DATES PERTAIN TO 2008, IT WAS HIS SUBMISSION THAT SINCE IN THE SAID DOCUMENT ONE OF THE DATES IS 23.11.2008. NO DOUBT FOR THE OTHER DATES MENTIONED FOR TH E MONTHS OF MAY, AUGUST AND DECEMBER ETC., IT WAS SUBMITTED THAT TH E YEAR 2008 WAS NOT MENTIONED. HOWEVER, THE INFERENCE OF THE A.O. CONS IDERING THE DATE 23.11.2008 IT WAS LOGICAL FOR THE REVENUE IN THE CIRCUM STANCES TO ASSUME THAT ALL THE OTHER DATES ALSO PERTAINED TO 2008, IS A CORRECT INFERENCE WHICH IS NOT SHOWN TO BE INCORRECT. THE OBJECT ION OF THE ASSESSEE THAT IT IS A CASE OF INCORRECT INFERENCE THAT TH E AMOUNTS MENTIONED IN THE DOCUMENT WERE IN LACS, IT WAS HIS SUBMISS ION, CAN ALSO BE SHOWN TO BE A CORRECT INFERENCE. REFERRING TO TH E SEIZED DOCUMENT, COPY OF WHICH IS AVAILABLE AT PAPER BOOK PAGE NO .1 OF ASSESSEES PAPER BOOK, IT WAS HIS SUBMISSION THAT ON PER USAL, IT WOULD SHOW THAT IN ONE OF THE AMOUNTS MENTIONED WITH THE NAR RATION OF BG THE AMOUNTS MENTIONED IS 3.19. IT WAS HIS SUBMISSION THAT THE INFERENCE THAT IT IS A BANK GUARANTEE, HAS BEEN ACCEPTE D BY THE ITAT AS REFERENCE TO THIS FACT HAS BEEN MADE THOUGH THE ISSU E HAS BEEN DECIDED AGAINST THE REVENUE. HOWEVER, ACCEPTING THAT B.G STANDS FOR BANK GUARANTEE, IT WAS HIS SUBMISSION THAT 19 CANNOT B E PRESUMED TO BE AN AMOUNT OF 19 PAISE AND THUS NECESSARILY HAD T O BE RS.3,19,000/-. THUS, THE INFERENCE THAT THE AMOUNTS MENTIONED AR E IN LACS IS A CORRECT INFERENCE WHICH HAS NOT BEEN SHOWN TO BE WRONG. ACCORDINGLY, THE AMOUNT MENTIONED IN THE GROUND OF 1.11 C RORES ODD IS AN INFERENCE WHICH IS CORRECT ON FACTS. 4.2 ADDRESSING THE OBJECTION ON BEHALF OF THE ASSESSEE TH AT THESE WERE NOT DETAILS OF PAYMENTS IT WAS HIS SUBMISSION THAT WH EN THESE ARE READ ALONGWITH THE SEIZED DOCUMENT, THE MENTION OF T HE BANK GUARANTEE AGAIN SUPPORTS THE WORDING OF THE GROUND. A PART FROM THAT IN THE SAID LOOSE DOCUMENT, IT WAS HIS SUBMISSION THERE IS A MENTION ITA 246/CHD//2017 A.Y. 2009-10 PAGE 4 OF 15 RIGHT ON TOP AS TO BRAR. THUS, IT WAS ARGUED THAT THE SE NECESSARILY HAVE TO BE PAYMENTS. 4.3 ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE WORDING OF THE GROUND ON THE BASIS OF THESE FACTS IS CLEARLY DEMONSTRATED. 5. PROCEEDING TO ADDRESS THE DEPARTMENTAL GRIEVANCE, THE LD. CIT DR WAS REQUIRED TO ADDRESS THE SPECIFIC FINDING OF THE CIT(A ) UNDER CHALLENGE. AFTER READING PARA 4.3 OF THE IMPUGNED ORDER, THE LD. CIT DR REFERRING TO THE FACTS, AS AVAILABLE IN THE ASSESSMENT ORDE R, SUBMITTED THAT A SEARCH WAS CONDUCTED UPON THE ASSESSEES RES IDENTIAL PREMISES ON 18.2.2011. IN THE ORIGINAL RETURN FILED ON 31.3.2010, THE AS SESSEE HAD DECLARED AN INCOME OF RS.19,63,266/-. ACCORDINGLY, NOTICE U/S 153A DATED 13.6.2012 WAS ISSUED TO THE ASSESSEE. IN RES PONSE TO THE SAME, THE ASSESSEE DECLARED AN INCOME OF RS.19,47,390/- A S PER RETURN FILED ON 31.8.2012. COPIES OF THE SEIZED MATERIAL WAS MADE AVAILABLE TO THE ASSESSEE. THE SEIZED DOCUMENT, IT WAS SUB MITTED, HAS BEEN EXTRACTED IN PARA 2.2 BY THE A.O. THE ASSESSEE WA S REQUIRED TO EXPLAIN THE SAME AND THE ASSESSEES SUBMISSION WAS THAT THESE PAYMENTS WERE REPLICA OF PAGE NO.12 OF ANNEXURE-2. IT WA S HIS SUBMISSION THAT NO DOUBT THE ASSESSMENT ORDER IS VERY BRIEF BUT THE FACT REMAINS THAT THE ASSESSEE'S EXPLANATION HAS BEEN REJECTED. THE LD. CIT-DR WAS REQUIRED TO ADDRESS WHETHER ANY STATEMENT RECORDED OR QUESTIONS ETC. HAD BEEN ASKED DURING THE SEARCH IN REFER ENCE TO THE SAME. HOWEVER, THE LD. CIT-DR STATED THAT NO STATEMENT ETC. HAS BEEN REFERRED TO. RELYING UPON THE FACTS AS MENTIONED IN THE A SSESSMENT ORDER AND THE EVIDENCES AVAILABLE, THE CONCLUSION ARRIVED A T BY THE CIT(A) ON FACTS, WAS STRONGLY ASSAILED. 6. THE LD. AR, ON THE OTHER HAND, INVITING OUR ATTENTION TO THE SEIZED DOCUMENT, REITERATED HIS SUBMISSION MADE AT THE OPENING OF THE HEARING WHEREIN THE DEPARTMENTAL GROUND RAISED HAD BEEN ASSAILED AS NOT MAINTAINABLE. ON A READING FROM THE CONSOLIDATED ORDER OF THE I.T.A.T. IT WAS HIS SUBMISSION THAT IT CAN BE SEEN THAT T HE FIGURES MENTIONED WERE MORE OR LESS IDENTICAL TO WHAT HAS BEEN MENTIONED IN PAGE NO.12 OF ANNEXURE-2. NARRATION OF SIMILAR NATURE WHIC H IS LIKE THIS DOCUMENT HAS ALREADY BEEN CONSIDERED BY THE I.T.A. T. AND THE I.T.A.T. IT WAS SUBMITTED, HAS GIVEN A CONCLUSIVE FINDING AT PAGES 36 TO 50 IN THE ORDER DATED 5.1.2016 IN ITA NO.456 TO 458/CHD/ 2014 AND ITA 246/CHD//2017 A.Y. 2009-10 PAGE 5 OF 15 ITA NO.462/CHD/2014 PERTAINING TO THE APPEALS OF THE REV ENUE FOR 2005-06, 2010-11 AND 2011-12 ASSESSMENT YEARS AND CR OSS APPEALS OF THE ASSESSEE FOR 2005-06 ASSESSMENT YEAR. RELYING UPON THE SPECIFIC FINDING AT PAGES 36 TO 50, SOME OF WHICH HAS BEEN EXTRA CTED IN THE ORDER OF THE CIT(A) ALSO, IT WAS HIS SUBMISSION THAT THE DE PARTMENTAL APPEAL DESERVES TO BE DISMISSED. REFERRING TO THE EXTRACT OF THE CIT(A)S ORDER IN THE CONSOLIDATED ORDER OF THE I.T.A.T. AT PAGE 3 6 WHEREIN PARA 17 OF THE CIT(A) FOR 2010-11 ASSESSMENT YEAR HAS BEEN E XTRACTED, WHICH WAS THE IMMEDIATELY SUCCEEDING ASSESSMENT YEAR, IT WAS HIS SUBMISSION, IT CAN BEEN SEEN THAT THE TRANSACTION IN THE DOCUMENT FOUND HAS BEEN CONSISTENTLY HELD TO BE BELONGING TO THE TRANSACTION OF VARIOUS PROJECTS EXECUTED BY M/S SINGLA ENGINEERS & CON TRACTORS PVT. LTD., BATHINDA. IN THE SAID COMPANY, IT WAS HIS SUBMISSION, THE ASSESSEE IS A DIRECTOR ALONGWITH HIS WIFE. THE ASSESSEE HAS BEEN CARRYING OUT PROJECTS/TENDER DESCRIBED AS BATHINDA TALWANDI SABO SARDULGARH ROAD (FOUR LANNING) INCLUDING MISCELLANEOUS WORK AND MAINTENANCE OF ROAD FOR FIVE YEARS IN GURTA GADI SC HEME. THE SEIZED DOCUMENT IT WAS SUBMITTED, HAS BEEN CONSIDERED TO BE BY THE ITAT AS PERTAINING TO THE SAID COMPANY. AT THE TIME OF SURVEY/SE ARCH, THE ASSESSEE HAS SURRENDERED AN AMOUNT OF RS.4 CRORES IN ORDER TO BUY PEACE AND HAS RETURNED THE SAME AND HAS PAID DUE TAX ON THE SAME. THE LD. CIT DR WAS REQUIRED TO ADDRESS THE AFORESAID C LAIM. THE LD. CIT DR SUBMITTED THAT THE ASSERTION OF THIS FACT IS CORRE CT. THE SURRENDER HAS BEEN HONOURED AND DUE TAXES HAVE BEEN PAID. IT WAS SUBMITTED THAT IT FURTHER PROVES THAT THE INCOME PERTA INED TO THE ASSESSEE. THE LD. AR TOOK STRONG OBJECTION TO THE SAID ARGUMENT. IT WAS HIS SUBMISSION THAT MERELY BECAUSE THE ASSESSEE HA S BEEN FAIR TO OWN THE SURRENDER MADE IN GOOD FAITH BY PAYING DUE TAXES THEREON A ND HAS NOT RETRACTED FROM THE SURRENDER MADE. THE SAID A CT OF GOOD FAITH CANNOT GO AGAINST THE ASSESSEE AS FIRSTLY THE AMOUNT D ID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION; SECONDLY THE SAID DOCUME NT HAS ALREADY BEEN CONSIDERED BY THE I.T.A.T. AS BELONGING TO THE COM PANY WHEREIN THE ASSESSEE WAS A DIRECTOR AND; THIRDLY THE DOCUMENTS OF SIMILAR NATURE HAVE BEEN CONSIDERED TO BE BELONGING TO THE ASS ESSEE COMPANY. THUS ON ALL COUNTS, THE APPEAL OF THE REVENUE WAS NOT MAINTAINABLE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. HOWEVER, BEFORE WE ADDRESS THE ISSU ES, IT IS ITA 246/CHD//2017 A.Y. 2009-10 PAGE 6 OF 15 APPROPRIATE TO FIRST EXTRACT THE RELEVANT DOCUMENT WHICH IS THE SUBJECT MATTER OF CONSIDERATION IN THE PRESENT PROCEEDINGS I.E. THE SEIZED DOCUMENT ANNEXURE A-5 PAGE 99. THE SAME HAS BEEN EX TRACTED IN THE ASSESSMENT ORDER ITSELF. FOR READY REFERENCE, THE RELEVA NT EXTRACT IS REPRODUCED HEREUNDER FROM PARA 2.2 OF THE ASSESSMENT ORDER : 7.1 FOR THE SAKE OF COMPLETENESS, IT IS APPROPRIATE TO ALS O CONSIDER HOW THE ISSUE WAS DECIDED BY THE AO WHICH IS BROUGHT OU T FROM THE FOLLOWING EXTRACT : THE ASSESSEE WAS REQUESTED TO FILE EXPLANATION OF THESE ENTRIES AND SOURCES OF THESE PAYMENTS. THE ASSESSEE VIDE LETTER DATED 20.0 2.2013 HAS STATED THAT THESE PAYMENTS ARE REPLICA OF PAGE NO 12 OF ANNEXURE 2, H OWEVER IT IS SEEN THAT THOSE .PAYMENTS WERE MADE DURING FY 2010-11 RELEVANT TO A Y 2011-12. AS SUCH THE PLEA OF THE ASSESSEE DOES NOT HAVE ANY FORCE. SINCE THE ASSESSEE HAD FAILED TO EXPLAIN THE SOURCE OF THESE PAYMENTS I.E.LLL.56 LAC S THESE ARE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S271(L)(C) ARE INITIATED SEPARATELY ON THIS ACCOUNT FOR CONCEALING THE PARTI CULARS OF INCOME. 7.2 THE FACT THAT THERE WAS COMPANY BY THE NAME OF SI NGLA ENGINEERS & CONTRACTORS PVT. LTD. WHEREIN THE ASSESSEE HAD A SHARE TO THE EXTENT OF 69.6% WAS ALSO FACT NOTICED BY THE AO AND IS EVIDENT FROM PARA 2.1 PAGE 2 OF THE ASSESSMENT ORDER WHICH IS ALS O EXTRACTED HEREUNDER FOR THE SAKE OF COMPLETENESS : 2.1 DURING THE ASSESSMENT PROCEEDINGS IT HAS BEEN OBSERVED THAT THE ASSESSEE RAISED LOANS FROM THE M/S SINGLA ENGINEERS & CONTRACTORS PVT. LTD. AMOUNTING TO RS. 6,00,000/-. THE ASSESSEE IS HAVING 69.6% OF SHA RE HOLDING IN THE COMPANY DURING THE RELEVANT PERIOD. THE PROVISION OF SECTIO N 2(22) ARE ATTRACTED. THE ASSESSEE NO OFFERED ANY EXPLANATION ON THIS ISSUE. THE AMOUNT OF RS.6,00,000/- IS BEING ADDED BACK TO THE TOTAL INCOME OF THE ASSE SSEE. 7.3 IT IS SEEN THAT THE CIT(A) CONSIDERED THE ISSUE IN THE LIGHT OF THE FOLLOWING SUBMISSIONS WHICH HAVE BEEN EXTRACTED IN PARA 3 O F THE S. NO AMOUNT REMARKS 1 2LACS PAYMENT MADE ON 28.05.2008 2 25LACS PREPAID AMOUNT 3 24LACS PAYMENT MADE ON 14.08.2008 4 3.19LACS B.G 5 12LACS PAYMENT MADE ON 27.08.2008 THROUGH MANDEEP 6 10LACS PAYMENT MADE AGAINST PATIYALA SIRHIND ON 27.10.2008 7 L10LACS PAYMENT MADE ON 05.12.2008 FROM BATHINDA 8 2 LACS PAYMENT MADE ON 23.11.2008 9 5 LACS PAYMENT MADE ON 28.11.2008 10 15IACS CDS 11 2 LACS - 12 1.56 LACS DUBAI TOTAL 111.56 LACS ITA 246/CHD//2017 A.Y. 2009-10 PAGE 7 OF 15 IMPUGNED ORDER AT PAGES 7 TO 11 AND ARE REPRODUCED H EREUNDER FOR THE SAKE OF COMPLETENESS : 3. THE AR HAS ARGUED THAT THE HON'BLE ITAT HAS ALRE ADY CONSIDERED THE DOCUMENT RELIED UPON BY THE AO AND FURTHER OBSERVED THAT THE RE WAS NO DATE MENTIONED ON THE DOCUMENT. THE ATTENTION OF THE AR WAS DRAWN TO THE ORDER DATED 05.01.2016 OF THE HON'BLE ITAT (PASSED IN ITA NOS. 456, 457 458 /CHD/2014, A.Y. 2005-06, 2010-11 & 2011-12 IN THE CASE OF SH. HARVINDER PAL SINGLA) REFERRED BY THE AR IN THE SUBMISSION AND POINTED OUT THAT DOCUMENT 'PAGE NO. 99 OF ANNEXURE A-5' HAS NOT BEEN DISCUSSED BY THE HON'BLE ITAT. AS REGARDS THE DATE ON THE DOCUMENT, IT WAS FURTHER POINTED OUT THAT AGAINST ONE FIGURE OF '5' AT THE BACK SIDE OF PAGE 99 A DATE AS '28.01.2008' IS MENTIONED. THE AR WAS REQUE STED TO GIVE HIS COMMENTS IN VIEW OF THE ABOVE FACTS. IN RESPONSE THE AR FILED T HE FOLLOWING COMMENTS ON 9.11.2016:- 'REG: SH. HARVINDER PAL SINGLA, BATHINDA, ASSESS MENT YEAR 2009-10. WE HAVE TO VERY HUMBLY SUBMIT THAT WE HAVE ALREADY FILED A DETAILED SUBMISSION IN THE ABOVE SAID CASE AND THE MATTER HA S BEEN HEARD BY YOUR GOODSELF ON SOME OF THE DATES ALSO. YOUR GOODSELF HAD DESIRED US TO FILE SUBMISSION WITH REGARD TO SOME ALLEGED DATE ON THE SEIZED DOCUMENTS AND , FOR WHICH, WE ARE SUBMITTING HEREUNDER T HE DETAILED REPLY ALONGWITH SUMMARY OF OUR ARGUMENTS AS ADVANCED DURI NG THE COURSE OF PREVIOUS HEARING. WE ARE ALSO DRAWING A COMPARISON OF THE TWO SEIZED DOCUMENTS HAVING IDENTICAL NOTINGS AND THE FIN DINGS OF THE ITAT ON ONE OF THE DOCUMENT, WHICH HAVE BEEN CONSIDERED B Y THE HON'BLE ITAT WHILE DECIDING THE APPEAL FOR SOME OF THE YEARS AND ALL SUCH FACTS HAVE BEEN EXPLAINED BELOW IN. A SUMMARY MANNER AND NO AD DITION IS CALLED FOR. WE HAVE BEEN ASKED TO EXPLAIN REGARDING THE DATE 28 .1.2008 MENTIONED ON PAGE 99 OF ANNEXURE A-5 OF THE BASIS OF WHICH ADDIT ION OF RS. 111.56 LACS HAS BEEN MADE IN PARA 2.2 OF THE ASSESSMENT ORDER. THE DETAILED WRITTEN SUBMISSION ALREADY BEEN FILED AT THE TIME OF EARLIE R HEARING, IN WHICH, IT HAS BEEN STATED AS UNDER:- I). THE AMOUNT OF RS. 2,25 ETC. HAS BEEN WRITTEN WI THOUT ANY DENOMINATION AND SAME CANNOT BE EXTRAPOLATED BY PRESUMING THAT T HESE ARE IN LACS, BUT THE AO IN PARA 2.2 OF THE ASSESSMENT ORDER EXTRAPOL ATED THE FIGURE OF 2, 25 AS 2 & 25 LACS AND SO ON AND WHICH IS FACTUALLY INC ORRECT AND ALSO CERTAIN WORD OF 'PAYMENT AND YEAR' HAS BEEN PRESUMED BY THE ASSESSING OFFICER WHILE PASSING THE ORDER U/S 143(3)/ 153A. THE SEIZE D DOCUMENTS BEAR TESTIMONY TO ABOVE SUBMISSIONS. II). THE WORD ESTIMATE HAS BEEN WRITTEN ON THE TOP OF THE SEIZED DOCUMENT AND WHICH HAS BEEN SUMMARILY IGNORED. III). NO EVIDENCE WAS BROUGHT ON RECORD DURING THE COURSE OF POST SEARCH ENQUIRY OR ASSESSMENT PROCEEDINGS TO PROVE THAT THE NOTINGS ON THE LOOSE PAPER REPRESENTED UNDISCLOSED PAYMENTS MADE BY THE ASSESSEE FOR WHICH THE SOURCE COULD NOT BE EXPLAINED. FURTHER NOTINGS OH THE LOOSE PAPER HAS NOT BEEN CORROBORATED WITH ANY EVIDENCE AVAILABLE O N RECORD OR FROM THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH. IV). IT WAS ALSO BROUGHT ON RECORD DURING THE COURS E OF ASSESSMENT PROCEEDINGS THAT THE ONLY SOURCE OF INCOME OF THE A SSESSEE IS SALARY FROM M/S SINGLA ENGINEERS & CONTRACTORS PUT. LTD, AND IN TEREST INCOME AND THIS FACT HAS ALSO BEEN STATED BY THE AO IN PARA OF THE ASSESSMENT ORDER AND NEITHER DURING THE COURSE OF SEARCH, ANY OTHER SOURCE OF INCOME HAS BEEN IDENTIFIED. V). IT WAS ALSO BROUGHT ON RECORD DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE SAME FIGURE HAVE BEEN MENTIONE D IN ANNEXURE A-2 BACKSIDE A-12 AND, THIS FACT, HAS BEEN MENTIONED B Y THE AO IN PARA 2.2 PAGE 2 OF THE ASSESSMENT ORDER. ITA 246/CHD//2017 A.Y. 2009-10 PAGE 8 OF 15 VI) DURING THE COURSE OF APPELLATE PROCEEDINGS IT W AS STATED THAT THE ASSESSING OFFICER HAD CONSIDERED DOCUMENT NO. 12 BA CKSIDE OF ANNEUXRE A-2 IN A. Y.2011-12 AND ALSO FOR THE SAME ENTRIES T HE ADDITION HAS BEEN MADE IN A. Y.2009-10 FOR WHICH THE NOTINGS ARE ON P AGE 99 ANNEXURE A- 5. VII) LD. ASSESSING OFFICER HAS MENTIONED THE RELEVA NT ANNEXURES IN THE ORDER AS PASSED BY HIM FOR THE ASSESSMENT YEAR UNDER CONS IDERATION, BUT WHILE REPRODUCING THE DOCUMENT NO. 99 ANNEXURE A-5, AS MENTIONED IN PARA 2.2 PAGE-2 OF THE ASSESSMENT ORDER, HAS PRESUM ED MANY THINGS I.E. YEAR AND ALSO THOUGH, NOTHING HAS BEEN MENTION ED AGAINST THE FIGURES, BUT THE ASSESSING OFFICER HAS PRESUMED AT NUMBER OF PLACES THE WORD PAYMENT MADE' AND THE 'YEAR', WHICH IS FACTUALLY IN CORRECT AND WE HAVE ALSO ENCLOSED THE SEIZED DOCUMENT IN THE PAPER BOOK AT PAGE 10. THE RELEVANT DOCUMENT NO. 99 ANNEXURE-5 HAS BEEN REPROD UCED BY THE ASSESSING OFFICER BY PRESUMING CERTAIN THINGS AS UN DER:- VIII)SIMILARLY, WHILE PASSING ORDER FOR ASSTT. YEAR 2011-12, THE ASSESSING OFFICER HAS CONSIDERED THE DOCUMENT NO. 12 BACKSIDE OF ANNEXURE A-2, RELEVANT TO ASSESSMENT YEAR 2011-12 AND IN WHICH AGAIN, HE H AS PRESUMED CERTAIN WORD LIKE 'PAYMENT', WHICH IS ALSO FACTUALLY INCORR ECT AND, HOWEVER, WE ARE REPRODUCING WHAT HAS BEEN MENTIONED BY THE ASSESSIN G OFFICER IN THE ORDER FOR ASSTT. YEAR 2011-12 (PARA 2.5 PAGE-4 OF THE ASS ESSMENT ORDER). DOCUMENT NO. 12 BACKSIDE ANNEXURE A-2 RELEVANT TO A .Y. 2011-12 (AS PER AO'S ORDER) S.NO. DATE AMOU NT (IN LACS) REMARKS 1 28.05.2010 2 THROUGH BRAR 2 14.07.2010 2 PAYMENT MADE FROM CHANDIGARH 3 14.07.2010 3.19 BG ISSUE 4 27.08.2010 12 PAYMENT MADE FROM MANDEEP 5 27. 10.2010 10 ADJUSTMENT OF PATIYALA ACCOUNT 6 05.12.201O 10 PAYMENT GIVEN FROM BATHINDA 7 23.11.2010 2 PAYMENT FROM THROUGH AJITPAL SINGH 8 28.11.2010 5 PAYMENT FROM THROUGH MANDEEP 9 22.04.2009 15 ACCOUNT CDS TO AJITPAL SINGH TOTAL 61.19 S.NO. AMOUNT REMARKS 1. 2LACS PAYMENT MADE ON 28.05.2008 2. 25LACS PREPAID AMOUNT 3. 24LACS PAYMENT MADE ON 14.08.2008 4. 3.19LACS B.G 5. 12 LACS PAYMENT MADE ON 27.08.2008 THROUGH MANDEEP 6. 10 LACS PAYMENT MADE AGAINST PATIYALA SIRHIND ON 27.10.2008 7. 10 LA.CS PAYMENT MADE ON 05.12.2008 FROM BATHINDA 8. 2LACS PAYMENT MADE ON 23.11.2008 9. SLACS PAYMENT MADE ON 28.11.2008 10. 15 LACS CDS 11. 2LACS - 12. 1.56LACS DUBAI TOTAL 111.56 LACS ITA 246/CHD//2017 A.Y. 2009-10 PAGE 9 OF 15 IX) THE HON'BLE ITAT, CHANDIGARH BENCH WHILE DECIDI NG THE APPEAL FOR ASSTT. YEAR 2011-12 HAS CONSIDERED THIS DOCUMENT AND HELD THAT ON ACCOUNT OF THE NOMENCLATURE OF THE ENTRIES IN THE SEIZED DOCUMENT AS REPRODUCED IN ASSTT. YEAR 2011-12, THERE IS SOME MENTION OF CDS, BANK GUARANTEE, ON CERTAIN ADJ USTMENT OF PATIALA ACCOUNT AND THESE NOTINGS CANNOT BE SAID TO BE RELATABLE TO THE ASSESSEE, BUT THEY ARE RELATABLE TO SINGLA ENGINEERS & CONTRACTORS PVT. LTD. AND FOR TH AT THE BENCH HAD RELIED UPON THE DETAIL OF THE VARIOUS CONTRACTS AS UNDERTAKEN BY SI NGLA ENGINEERS & CONTRACTORS PVT. LTD. FROM ASSTT. YEAR 2008-09 TO 2011-12, WHICH DET AIL HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 104 TO 108 AND WORK CONTRACT COPIES H AVE BEEN PLACED AT PAGES 109 TO 113 OF THE PAPER BOOK AND IN SUCH DETAIL, OF THE CO NTRACTS UNDERTAKEN BY THE COMPANY, THERE IS CLEAR MENTION OF PATIALA- SIRHIND ROAD, JO INT VENTURE OF CDS AND, THUS, THE NOTINGS ARE RELATABLE TO THE COMPANY ONLY. FOR YOUR GOODSELF'S READY REFERENCE, THE RELEVANT PARA 61 IS AS UNDER:- 'AFTER CONSIDERING RIVAL SUBMISSIONS, WE DO NOT FIN D ANY MERIT IN THE DEPARTMENTAL APPEAL. THE ID. CIT(APPEALS), AFTER AP PRECIATION OF THE SEIZED PAPER, CORRECTLY DELETED AND ADDITION. THE F IGURE OF 6.67 HAS BEEN TAKEN FROM BG REFUND WITHOUT BRINGING ANY EVID ENCE ON RECORD THAT IT WAS UNACCOUNTED PAYMENT. THE DESCRIPTION OF BG WOULD NORMALLY MEAN 'BANK GUARANTY' REFUNDED AND CANNOT B E TAKEN TO BE UNACCOUNTED INCOME OR EXPENDITURE OF ASSESSEE. THE DESCRIPTION ON THIS PAPER IS NOT SELF SPEAKING AND WOULD NOT LEAD TO ANY PURPOSE. THERE ARE CUTTINGS AND OVER WRITINGS IN SEIZED PAPE R. FURTHER, IN THE SEIZED PAPER, IT IS MENTIONED AS 'TENDER PURPOSE' W HICH CLEARLY SHOWS THAT IT RELATES TO THE COMPANY OF THE ASSESSEE, IN WHICH ASSESSEE WAS A DIRECTOR. THEREFORE, NO ADDITION CAN BE MADE IN T HE HANDS OF THE ASSESSEE INDIVIDUALLY. THERE IS ALSO NO BASIS FOR M AKING THE ADDITIONS WITHOUT ANY DENOMINATION IN THE SEIZED PAPER. 10 HA S BEEN ASSUMED AS 10 LACS, THEREFORE, DECISION OF DELHI HIGH COURT IN THE CASE OF GIRISH CHAUDHRY (SUPRA) SQUARELY APPLIES IN THE FAVOUR OF THE ASSESSEE. THE DOCUMENT IS NOT SELF SPEAKING AND IS WITHOUT ANY CO RROBORATIVE EVIDENCE ON RECORD. THE ID. CLT(APPEALS), THEREFORE , CORRECTLY HELD IT TO BE A DUMB AND NON-SPEAKING DOCUMENT. THE DECISION IN T HE CASE OF RAVI KUMAR (SUPRA) ALSO APPLY IN THE FAVOUR OF THE ASSES SEE. X) THUS, FROM THE ABOVE COMPARISON OF THE NOTINGS A S MADE IN ONE OF THE AUNEXURE, WHICH HAS BEEN SAID TO BE RELATABLE TO ASSTT. YEAR 2009-10 AND ANOTHER ANNEXURE HAVING SIMILAR TYPE OF NOTINGS, THESE HAVE BEEN V. CONSIDERED BY THE ASSESSING OFFICER IN ASSTT. YEAR 2011-12 AND, THUS, IT IS CLEAR THAT THEY RELATE TO SINGLA ENGINEERS & CONTRACTORS PVT. LTD, AND NOT TO THE ASSESSEE, WHO WAS ONLY A DIRECTOR IN THE COMPANY AND THE 'COMPANY WAS FORMED ONLY FROM ASSTT. YEAR 2 008-09. THUS, THE FOLLOWING SUMMARIZED SUBMISSIONS CAN BE MADE:- A) THE NOTINGS OF PATIALA-SIRHIND AS MADE IN DOCUMENT NO. 99 ANNEXURE A-5, WHICH HAVE BEEN RELATED BY THE ASSESSING OFFICER TO ASSTT. YEAR 2009-10, IS VERY MUCH A CONTRACT ALREADY REFLECTED IN THE TURNO VER OF THE COMPANY, AS PER DETAIL OF THE CONTRACTS TAKEN BY THE COMPANY FOR VA RIOUS YEARS, PLACED AT PAGES 104 TO 108 OF THE PAPER BOOK AND COPY OF WORK CONTRACT ON PAGE 109-110 OF THE PAPER BOOK. B) SIMILARLY, CDS IS ALSO ONE OF THE CONTRACT PLACED A T PAGES 111 TO 113 OF THE PAPER BOOK AND, THUS, CANNOT BE SAID TO BE RELATED TO THE ' ASSESSEE, AT ALL. C) THE 'BG' STANDS 'BANK GAURANTEE', THIS IS GIVEN YEAR AFTER YEAR WITH RESPECT TO VARIOUS CONTRACTS AND CANNOT BE SAID TO BE RELAT ABLE TO ASSESSEE. XI). THEN, IT IS SUBMITTED THAT THE WRITER OF THE D OCUMENT IS SH. HARVINDER PAL SINGLA, WHO IS ONLY WORKING DIRECTOR IN THE COMPANY ALONG W ITH HIS WIFE AND THESE DOCUMENTS HAVE BEEN WRITTEN BY HIM AND SOME OF THE DOCUMENTS WERE SEIZED FROM THE BUSINESS PREMISES AT BATHINDA AND PART OF THE DOCUMENTS FOR DIFFERENT PERIOD HAVE BEEN SEIZED FROM THE RESIDENTIAL HOUSE AT CHANDIGARH. IN FACT, SINCE THE CONTRACTS OF PATIALA- SIRHIND AND OTHERS, THEY HAVE BEEN CONTINUING FOR 3 -4 YEARS AND, AS SUCH, THE DETAILS OF THE SAME RUNS INTO DIFFERENT YEARS AND I.E. THEY HAVE COMMON NOMENCLATURE IN BOTH THE DOCUMENTS. ITA 246/CHD//2017 A.Y. 2009-10 PAGE 10 OF 15 XII). BUT ONE THING IS CERTAIN AND WHICH FINDING HAS BEEN UPHELD BY THE HON'BLE IT AT, CHANDIGARH BENCH, CHANDIGARH AS PER PARA QUOTED ABO VE THAT THESE DOCUMENTS BELONG TO THE COMPANY ONLY AND NOT TO THE INDIVIDUA LS AND, THEREFORE, THE ASSESSING OFFICER HAS FACTUALLY ERRED IN MAKING THE ADDITION IN THIS YEAR AND THE ISSUE IS SQUARELY COVERED BY THE FINDING OF THE HON'BLE IT A T IN THE CASE OF THE ASSESSEE ITSELF. XIII). WITHOUT PREJUDICE TO ABOVE WHICH HAVE DEMONS TRATED ABOVE WITH REGARD TO ONE ALLEGED DATE, WHICH YOUR GOODSELF HAS STATED TO BE 28.01.2008 IN ANNEXURE A~5, PAGE 99, IT IS SUBMITTED THAT THOUGH, WE RELY ON THE SUB MISSIONS AS MENTIONED ABOVE, BUT STILL ALTERNATIVELY, IT MAY BE STATED HERE THAT THI S ENTRY DOES NOT EVEN PERTAIN TO THE YEAR UNDER CONSIDERATION AND, AS SUCH, THERE IS NO BASIS OF MAKING SUCH ADDITION BY PRESUMING CERTAIN THINGS AS HAS BEEN MADE BY THE AS SESSING OFFICER. IN VIEW OF THE ABOVE, IT IS VERY HUMBLY PRAYED THAT THE ADDITION AS MADE BY THE ASSESSING OFFICER MAY, PLEASE, BE DELETED AND OBLIG E.' 7.4 CONSIDERING THESE, THE CIT(A) QUA THE SAID ISSUE CONCLUD ED THE ISSUE IN FAVOUR OF THE ASSESSEE WHICH FINDING OF FACT AND LAW IS ASSAILED BY THE REVENUE IN THE PRESENT PROCEEDINGS. THE RELEVAN T EXTRACT OF THE SAME IS REPRODUCED HEREUNDER : 4. THE COPIES OF THE SEIZED DOCUMENT PAGES REFERRE D BY THE AO WERE ALSO CALLED FOR AND PLACED ON FILE. ON THE BASIS OF THE ABOVE SUBMISSIONS AND PERUSAL OF SEIZED DOCUMENTS, THE VARIOUS GROUNDS OF APPEAL TAKEN BY T HE APPELLANT ARE DECIDED AS UNDER:- 4.1 X X X 4.2 X X X 4.3 GROUND OF APPEAL NO. 3 PERTAINS TO ADDITION OF RS. 1,11 A 56,000/- CM THE BASIS OF SEIZED DOCUMENT 'ANNEXURE A-5 PAGE 99 ON A CCOUNT OF VARIOUS FIGURES TAKEN BY THE AO AS PAYMENTS MADE BY THE ASSESSEE. THE AO MENTIONS THAT THE ASSESSEE WAS REQUESTED TO FILE EXPLANATION OF ENTRIES AND SOURCE OF PAYMENT BUT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF PAYMENTS I.E. 1.11. 56 LACS. THUS, ADDITION OF RS. 1,11,56,000/- WAS MADE BY THE AO TO THE TOTAL INCOME OF THE ASSES SEE. THE FACTS OF THE CASE, THE ORDER PASSED BY THE A.O. , THE BASIS OF ADDITION MADE BY THE AO AND THE ARGUMENTS OF THE AR DURING THE APPEL LATE PROCEEDINGS HAVE BEEN CONSIDERED. THE AR HAS ARGUED THAT AGAINST THE NOTI NG IN THE DOCUMENT REFERRED BY THE AO THERE IS NO DATE AS HAS BEEN MENTIONED BY TH E AO IN THE ASSESSMENT ORDER. IN SUPPORT, THE AR HAS DRAWN ATTENTION TO THE COPY OF SEIZED DOCUMENT FILED IN THE PAPER BOOK AND ON THIS BASIS ARGUED THAT NO REASON HAS BEEN GIVEN BY THE AO FOR ADOPTING THE YEAR AS RELATING TO A.Y : 2009-10. IT HAS ALSO BEEN ARGUED THAT SIMILAR FIGURES WERE MENTIONED IN 'ANNEXURE A-2 PAG E A-3.2_ (BACK SIDE)''AND THE AO HAS CONSIDERED THOSE ENTRIES IN A.Y. 2011-12 FOR MAKING THE ADDITION BUT THE ADDITION MADE HAVE BEEN DELETED PARTLY BY THE CIT(A ) AND BALANCE BY THE HON'BLE ITAT. THE AR HAS FILED COPY OF THE ITAT ORD ER ALSO AND 'ARGUED THAT SIMILAR TYPE OF ENTRIES HAVE BEEN HELD TO BE BELONG ING TO THE BUSINESS CONCERNS WHERE THE ASSESSEE IS A DIRECTOR AND NOT TO THE ASS ESSEE IN HIS INDIVIDUAL CAPACITY. IT HAS ALSO BEEN ARGUED THAT THE AMOUNTS HAVE WRONGLY BEEN PRESUMED BY THE AO TO BE IN LACS WHEN NOTHING OF SUCH SORT IS MENTIONED I N THE DOCUMENT. AS PER AR, THE COMPANIES IN WHICH THE ASSESSEE IS DIRECTOR, ARE EN GAGED IN THE BUSINESS OF EXECUTING WORK CONTRACTS AND THE ENTRIES IN THE DOCUMENT ARE ROUGH NOTINGS RELATABLE TO THE ESTIMATES OF VARIOUS TENDERS FOR WHICH THE DETAITS OF WORK CONTRACTS EXECUTED HAVE BEEN FILED IN THE PAPER BOOK AS WAS SUBMITTED TO TH E HON'BLE ITAT AND THE HON'BLE ITAT HELD THE SIMILAR ENTRIES ON OTHER DOCUMENTS AS NOT BELONGING TO THE ASSESSEE INDIVIDUALLY IN THE A.Y. 2011-12 (VIDE ITS ORDER DA TED 05.01.2016 PASSED IN ITA NO. 456, 457 & 458/CHD/2014 IN THE CASE OF SH. HARVINDE R PAL SINGLA, A.Y. 2005-06, 2010-11 & 2011-12). THE AR SUBMITTED THAT THE CONTR ACTS OF PATIALA- SIRHIND AND OTHERS HAVE CONTINUED FOR 3 TO 4 YEARS AND AS SUCH THE DETAILS OF THE SAME RUNS INTO DIFFERENT YEARS I.E. THEY HAVE COMMON NOMENCLATURE IN BOTH THE DOCUMENTS I.E 'PAGES 12 & 13 OF ANNEXURE A-2' CONSIDERED DURING A SSESSMENT YEAR 2011-12 AND 'PAGE 99 OF ANNEXURE A-5' CONSIDERED DURING A.Y. 20 09-10 WHICH IS UNDER ITA 246/CHD//2017 A.Y. 2009-10 PAGE 11 OF 15 CONSIDERATION. THE AR HAS FILED A CHART SHOWING SIM ILARITY IN THE ENTRIES ON THE TWO DOCUMENTS TO DEMONSTRATE THIS POINT. AFTER PERUSAL OF THE HON'BLE ITAT ORDER DATED 05.01 .2016 REFERRED ABOVE, IT IS SEEN THAT THE HON'BLE ITAT HAS HELD IN PARA 45 AT P AGE 39 OF ITS ORDER THAT WHEN THE TENDERS HAVE BEEN FLOATED BY THE COMPANY OF THE ASS ESSEE, THERE IS NO REASON TO BELIEVE THAT SEIZED PAPER WOULD PERTAIN TO THE INDIVIDUAL A SSESSEE. IT IS NOT CLARIFIED FROM THE SEIZED PAPER HOW THE ADDITION OF RS. 1,87,35,000/- HAVE BEEN MADE AGAINST THE ASSESSEE. NO CORROBORATIVE EVIDENCE WAS ALSO FOUND DURING THE COURSE OF SEARCH TO PROVE IF ANY EXPENDITURE IS MADE BY ASSESSEE IN IND IVIDUAL CAPACITY OUTSIDE THE BOOKS OF ACCOUNT. THEREFORE, SEIZED DOCUMENT COULD NOT BE SA ID TO BE BELONGING TO THE ASSESSEE INDIVIDUALLY. SINCE, NO BASIS OF THE ADDITION HAVE BEEN EXPLAINED, THEREFORE, ASSESSING OFFICER FAILED TO EXPLAIN THE BASIS OF THE MATERIAL AS TO HOW THIS ADDITION HAS BEEN MADE AGAINST THE ASSESSEE. AS REGARD THE QUERY ABOUT THE FIGURE AND DATE ON PA GE 99 (BACK SIDE) OF ANNEXURE A-5, THE AR SUBMITTED THAT THE FIGURES CANNOT BE PR ESUMED TO BE IN LACS AND THE EXTRAPOLATION OF THE FIGURES LIKE 2, 25 AS 2 LACS A ND 25 LACS IS FACTUALLY INCORRECT AND THE AO HAS PRESUMED THE WORDS LIKE 'PAYMENT AND YEAR' WHEN NO SUCH WORDS OR YEAR IS MENTIONED ON THE DOCUMENT. THE AR SUBMIT TED THAT THE WORD ESTIMATE HAS BEEN WRITTEN AND THE FIGURES ARE RELATABLE TO M /S SINGLA ENGINEERING AND CONTRACTORS PVT. LTD. BECAUSE THE NOTING LIKE 'CDS' , 'BG' AND 'PATIATA-SIRHIND' MENTIONED IN DOCUMENT 'PAGE NO.99 OF ANNEXURE A-5' WERE ALSO MENTIONED IN THE 'PAGES 12 & 13 OF ANNEXURE A-2' AND BACK SIDE OF PA GE-12 OF ANNEXURE A-2, WHICH HAVE BEEN HELD BY THE HON'BLE ITAT TO BE PERTAINING TO THE BUSINESS CONCERNS OF THE ASSESSEE AND NOT TO THE ASSESSEE INDIVIDUALLY AND H ENCE SIMILAR VIEW IS REQUIRED TO BE TAKEN FOR THE YEAR UNDER CONSIDERATION ALSO. THE AR DREW ATTENTION TO FINDING OF THE ITAT RELATING TO A.Y. 2011-12 IN PARA 61 AT PAGE 52 OF THE ORDER DATED 05.01.2016 REFERRED ABOVE, WHICH IS REPRODUCED BELOW: '61. AFTER CONSIDERING RIVAL SUBMISSION, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE LD. CIT(A), AFTER APPRECIA TION OF THE SEIZED PAPER, CORRECTLY DELETED THE ADDITION. THE FIGURE O F 6.67 HAS BEEN TAKEN FROM BG REFUND WITHOUT BRINGING ANY EVIDENCE ON REC ORD THAT IT WAS UNACCOUNTED PAYMENT. THE DESCRIPTION OF BG WOULD NO RMALLY MEAN 'BANK GUARANTY' REFUNDED AND CANNOT BE TAKEN TO BE UNACCO UNTED INCOME OR EXPENDITURE OF ASSESSEE. THE DESCRIPTION IN THIS PA PER IS NOT SELF SPEAKING AND WOULD NOT LEAD TO ANY PURPOSE' THERE ARE CUTTIN GS AND OVER WRITINGS IN SEIZED PAPER. FURTHER, IN THE SEIZED PAPER, IT IS M ENTIONED AS 'TENDER PURPOSE' WHICH CLEARLY SHOWS THAT IT RELATES TO THE COMPANY OF THE ASSESSEE, IN WHICH ASSESSEE WAS A DIRECTOR. THEREFO RE, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE INDIVIDUALLY. THE RE IS ALSO NO BASIS FOR MAKING THE ADDITIONS WITHOUT ANY DENOMINATION IN TH E SEIZED PAPER. 10 HAS BEEN ASSUMED AS 10 LACS, THEREFORE, DECISION OF DELHI HIGH COURT IN THE CASE OF GIRISH CHAUDHARY (SUPRA) SQUARELY APPLI ES IN FAVOR OF THE ASSESSEE. THE DOCUMENT IS NOT SELF SPEAKING AND IS WITHOUT ANY CORROBORATIVE EVIDENCE ON RECORD. THE LD. CIT(A), T HEREFORE, CORRECTLY HELD IT TO BE' A DUMB AND NON-SPEAKING DOCUMENT. THE DECISI ON IN THE CASE OF RAVI KUMAR (SUPRA) ALSO APPLY IN FAVOUR OF THE ASSESSEE. ' IN VIEW OF THE ABOVE FINDINGS GIVEN BY THE HONBLE ITAT, THERE IS MERIT IN THE ARGUMENT OF THE AR THAT THE ENTRIES OF SIMILAR NATURE IN THE TWO DOCUMENT VIZ 'PAGES 12 & 13 OF ANNEXURE A-2' CONSIDERED DURING ASSESSMENT YEAR 201 1-12 AND 'PAGE 99 OF ANNEXURE A-5' CONSIDERED DURING A.Y. 2009-10 HAVE TO BE INTERPRET ED ALIKE. THERE ALSO APPEARS MERIT IN THE ARGUMENT OF THE AR THAT THE DATE MENTIONED A GAINST ONE FIGURE AS '28.01.2008' AGAINST '5' WILL SHOW THE ENTRIES ON THIS DOCUMENT PERTAIN TO FINANCIAL YEAR 2007-08 RELEVANT TO ASSESSMENT YEAR 2008-09 AND ACCORDINGLY THE ENTRIES ON THIS DOCUMENT DOES NOT PERTAINS TO THE ASSESSMENT YEAR UNDER CONSIDERA TION (I.E. A.Y. 2009-10). UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ARGUMENTS O F THE AR THAT THE DOCUMENT REFERRED BY THE A.O., IN ISOLATION IS A NON SPEAKING AND DUM B DOCUMENT AND NO ADDITION, ONLY ON THE BASIS OF FIGURES/ENTRIES MENTIONS THEREIN WITHO UT CORROBORATING THE SAME WITH OTHER EVIDENCES, CAN BE MADE IN THE HANDS OF THE AS SESSEE CARRIES MERITS. UNDER THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE ADDITION MADE BY THE AO. WITHOUT CORROBORATING THE ENTRIES TO THE YEAR TO WH ICH THESE PERTAINS TO, WHETHER THESE ITA 246/CHD//2017 A.Y. 2009-10 PAGE 12 OF 15 ARE RECEIPT OR PAYMENTS AND HOW THE FIGURES WERE AS SUMED TO BE IN LACS, IS NOT FOUND AS PER LAW. THEREFORE VIEW OF THE JUDGMENT DATED 05 ,01.2016 PASSES BY THE HONBLE ITAT CHANDIGARH BENCH IN ITA NO. 456,457 & 458-462/ CHD/2014 IN THE CASE OF SH. HARVINDER PAL SINGLA FOR ASSESSMENT YEAR 2005-06, 2 010-11 & 2011-12, IT CANNOT BE SAID THAT THE ENTRIES BELONG TO THE ASSESSEE IN HIS INDI VIDUAL CAPACITY. THE HON'BLE ITAT HAS HELD THAT THE NATURE OF THE ENTRIES INDICATE THAT T HESE BELONGS TO THE BUSINESS CONCERN OF THE ASSESSEE WHERE HE IS A DIRECTOR. THE ARGUMENTS OF THE AR ARE THEREFORE FOUND ACCEPTABLE AND THE ADDITION MADE BY THE A.O. IS NOT FOUND SUSTAINABLE, HENCE DIRECTED TO BE DELETED. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. 7.5 IT IS SEEN THAT THE AFORESAID CONCLUSION OF THE CIT(A) A S NOTED EARLIER IS BASED ON THE CONSOLIDATED ORDER DATED 05.01.201 6 PERTAINING TO CROSS APPEALS OF THE PARTIES IN 2005-06 AND DEPARTM ENTAL APPEALS IN 2010-11 AND 2011-12 ASSESSMENT YEARS IN THE CASE OF THE ASSESSEE. A PERUSAL OF THE SAME SHOWS THAT THE FOLLOWING FACTS QUA TH E NATURE OF ASSESSEE'S COMPANY WERE TAKEN NOTE OF BY THE CO-ORDIN ATE BENCH EXTRACTED IN PARA 17 FROM THE ORDER OF THE CIT(A) IN 201 0-11 ASSESSMENT YEAR IN ITA 457/CHD/2014 AT PAGE 36 PARA 43 OF THE ORDER AS UNDER : 43.HIS FINDINGS IN PARA 17 OF THE AP PELLATE ORDER ARE REPRODUCED AS UNDER : 17. I HAVE CONSIDERED THE FACTS OF THE CASE, THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER, THE ARGUMENTS OF THE AR ON THE ISSUE AND ALSO CLOSELY EXAMINED THE SEIZED RECORD ON WHICH TH E IMPUGNED ADDITION HAD BEEN BASED. IT IS QUITE APPARENT FROM THE PERUSAL O F THE IMPUGNED SEIZED DOCUMENT THAT IT RECORDS EITHER THE ESTIMATED OR AC TUAL TRANSACTIONS PERTAINING TO A PROJECT/TENDER NAMELY BATHINDA-TALW ANDI AND SAME STANDS RECORDED ON THE TOP OF THE PAPER, I HAVE EXAMINED T HE LIST OF VARIOUS PROJECTS EXECUTED BY M/S SINGLA ENGINEERS & CONTRACTORS PVT. LTD. BATHINDA AND IT IS SEEN THAT THIS PARTICULAR PROJECT HAD BEEN ALLOTTED TO THE APPELLANT COMPANY ON 05.09.2008 AND WAS COMPLETED TO THE EXTENT OF 52 .95% IN FINANCIAL YEAR 2008-09 AND OTHER DETAILS PERTAINING TO THIS PROJEC T ARE AS UNDER :- SINGLA ENGINEERS & CONTRACTORS PVT. LTD. PARTICULAR S NAME OF DEPTT. VALUE OF CONTRACT DATE OF ALLOTME NT DATE OF COMPLETI ON YEAR 08-09 YEAR 09-10 YEAR 10-11 %AGE 08-09 %AGE 09-10 %AG E 10- 11 WDG/STG, EXECUTI 2011990 6.9,20 31.03.20 1065017 775336 60424 52.95 40.08 2.98 OF VE 00 08 10 03 96 72 % % % BATHINDA- ENGINE TALWANDI ER SABO- CONST. SARDULGAR DIVN H ROAD NO. 2 (FOUR PWD LANNING B&R KM 9.20 BATHIND TO 15.00) A. NLOM MTR WIDE ROAD FROM 15.00 TO 30.57 INCLUDING MISC. WORK ITA 246/CHD//2017 A.Y. 2009-10 PAGE 13 OF 15 AND MAINTENA NCE OF ROAD FOR 5 YEARS (GURTA GADDI SCHEME) IT IS ALSO SEEN THAT THE COMPANY HAD MADE AN FDR IN FAVOUR OF THE EXECUTIVE ENGINEER, CONSTRUCTION DIVISION, PWD TO THE TUNE OF RS. 40,24,000/- ON 07.08.2008 AND PERFORMANCE SECURITY GUARANTEE OF RS .1,59,00,050/- HAS ALSO BEEN GIVEN ON 06.09.2008 FOR WHICH THE MARGIN MONEY ROUGHLY WOULD BE RS.25,00,000/-. WHEN THESE VITAL FACTS WHICH ARE PA RT OF THE FINANCIAL RECORD ARE SEEN WITH THE SEIZED DOCUMENT IN THE BACKGROUND , IT BECOMES QUITE APPARENT THAT THE WRITINGS ON THE IMPUGNED DOCUMENT HAD BEEN WRITTEN IN THE FINANCIAL YEAR 2008-09 ITSELF. IT IS LOGICAL BECAUS E THE FDR OF RS.40,00,000/- AND MARGIN MONEY OF RS.25,00,000/- WHICH HAS BEEN R ECORDED ON THE IMPUGNED SEIZED DOCUMENT HAD BEEN PUT INTO PLACE IN THE FINA NCIAL YEAR 2008-09 AS HIGHLIGHTED ABOVE. IF THERE HAS BEEN ANY OTHER PAYM ENT AS RECORDED IN THE IMPUGNED SEIZED DOCUMENT THEN THE SAME IS ALSO LIKE LY TO HAVE HAPPENED IN FINANCIAL YEAR 2008-09. THE ENTIRETY OF CIRCUMSTANC ES HIGHLIGHTED ABOVE MAKE IT AMPLY CLEAR THAT WHATEVER COGNIZANCE HAS TO BE TAKE N OF THESE DOCUMENTS, IT IS TO BE IN ASSESSMENT YEAR 2009-10 AND NOT IN YEAR UNDER CONSIDERATION. THE ADDITION MADE IN THE YEAR UNDER CONSIDERATION IS THEREFORE D IRECTED TO BE DELETED. 7.6 THE DEPARTMENTAL OBJECTIONS CONSIDERED BY THE CO-O RDINATE BENCH HAVE BEEN EXTRACTED IN PARA 44 IN THE AFORESAID O RDER. THE SAME READS AS UNDER : 44. THE LD. DR RELIED UPON ORDER OF THE ASSESSING O FFICER AND SUBMITTED THAT EVEN IF IN THE YEAR 2008-09, CONTRACT WAS COMPLETED OF 52.95% BUT REST OF THE CONTRACT WAS COMPLETED IN ASSESSMENT YEAR UNDER APP EAL. THEREFORE, ADDITION WAS CORRECTLY MADE IN ASSESSMENT YEAR UNDER APPEAL. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BE FORE AUTHORITIES BELOW AND SUBMITTED THAT THE SEIZED PAPER CONTAINED THE DETAI LS OF BATHINDA AND TALWANDI. BG IS BANK GUARANTY OF FDR. THE SEIZED PAPER DID NOT BELONG TO THE ASSESSEE THEREFORE, ADDITION WAS WHOLLY UNJUSTIFIED. 7.7 CONSIDERING WHICH, THE ITAT CONCLUDED THE ISSUE IN THE FOLLOWING MANNER : 45. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND DO NOT FIND MERIT IN THE DEPARTMENTAL APPEAL. THE LD. CIT(APPEALS), ON PERU SAL OF THE SEIZED DOCUMENTS FOUND THAT THE SAME WOULD BE ESTIMATED OR ACTUAL TR ANSACTIONS PERTAINING TO A PROJECT/TENDER NAMELY BATHINDA, TALWANDI AND THE SA ME FACT IS MENTIONED ON TOP OF THE PAPER. THE LD. CIT(APPEALS) EXAMINED THE LI ST OF VARIOUS PROJECTS EXECUTED BY THE COMPANY OF THE ASSESSEE M/S SINGLA ENGINEERS & DIRECTORS P.LTD., BATHINDA AND IT WAS FOUND THAT THIS PARTICULAR PROJ ECT HAS BEEN ALLOTTED TO THE COMPANY ON 05.09.2008 AND WAS COMPLETED TO THE EXTE NT OF 52.95% IN FINANCIAL YEAR 2008-09. THE COMPANY HAS MADE FDR IN FAVOUR O F EXECUTIVE ENGINEER, CONSTRUCTION DIVISION, PWD TO THE TUNE OF RS. 40,24 ,000/- ON 07.08.2008 AND FOR THE PURPOSE, GUARANTY OF RS. 1,59,00,050/- HAS ALSO BEEN GIVEN ON 06.09.2008 FOR WHICH MARGIN MONEY REFUND WOULD BE RS. 25 LACS. TH ESE VITAL FACTS WERE CONSIDERED IN THE BACKGROUND OF THE SEIZED DOCUMENT AND THEREFORE, LD. CIT(APPEALS) FOUND THAT THESE MAY PERTAIN TO THE YE AR 2008-09 ITSELF. THE LD. CIT(APPEALS), ACCORDINGLY, DELETED THE ADDITION. T HE FINDING OF FACT RECORDED BY LD. CIT(APPEALS) HAVE NOT BEEN REBUTTED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. FURTHER, NO DENOMINATION HAVE BEEN GIVEN ON THE SEIZED PAPER THEREFORE, THE JUDGEMENT OF THE DELHI HIGH COURT IN THE CASE O F GIRISH CHAUDHRY (SUPRA) ITA 246/CHD//2017 A.Y. 2009-10 PAGE 14 OF 15 CLEARLY APPLY IN THE CASE OF ASSESSEE. WHEN THE TENDERS HAVE BEEN FLOATED BY THE COMPANY OF THE ASSESSEE, THERE IS NO REASON TO BELI EVE THAT SEIZED PAPER WOULD PERTAIN TO THE INDIVIDUAL ASSESSEE. IT IS NOT CLARI FIED FROM THE SEIZED PAPER HOW THE ADDITION OF RS. 1,87,35,000/- HAVE BEEN MADE AG AINST THE ASSESSEE. NO CORROBORATIVE EVIDENCE WAS ALSO FOUND DURING THE CO URSE OF SEARCH TO PROVE IF ANY EXPENDITURE IS MADE BY ASSESSEE IN INDIVIDUAL C APACITY OUTSIDE THE BOOKS OF ACCOUNT. THEREFORE, SEIZED DOCUMENT COULD NOT BE SAID TO BE BELONGING TO THE ASSESSEE INDIVIDUALLY. SINCE, NO BASIS OF THE ADDI TION HAVE BEEN EXPLAINED, THEREFORE, ASSESSING OFFICER FAILED TO EXPLAIN THE BASIS OF THE MATERIAL AS TO HOW THIS ADDITION HAS BEEN MADE AGAINST THE ASSESSEE. THEREFORE, DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RAVI KUM AR (SUPRA) CLEARLY APPLIES IN FAVOUR OF THE ASSESSEE. MERELY BECAUSE THE DATE OF 30.05.2009 IS MENTIONED AT THE BOTTOM OF THE PAGE WOULD NOT PROVE THAT ASSESSE E HAS MADE UNACCOUNTED PAYMENT/EXPENDITURE. 46. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCU MSTANCES IN THE CASE, IT IS CLEAR THAT ASSESSING OFFICER MADE THIS ADDITION MER ELY ON PRESUMPTIONS AGAINST THE ASSESSEE. THUS, THE SAME CANNOT BE SUSTAINED. T HE LD. CIT(APPEALS), ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RECORD, C ORRECTLY DELETED THE ADDITION. WE, THEREFORE, DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE SAME IS ACCORDINGLY DISMISSED. (EMPHASIS SUPPLIED) 7.8 WE HAVE ALSO SEEN FROM THE CONCLUSION ARRIVED AT IN PA RA 61 BY THE ITAT IN THE APPEAL PERTAINING TO 2011-12 ASSESSMENT YEAR THAT WHILE CONSIDERING NARRATIONS OF B.G. WHICH WAS CONSIDERED T O BE PROBABLY BANK GUARANTEE THE CO-ORDINATE BENCH HAS AGAIN COME TO CONCLUSION THAT REFERENCE IN THE SEIZED PAPER CLEARLY SHO WS THAT IT RELATES TO THE COMPANY OF THE ASSESSEE IN WHICH THE ASS ESSEE WAS A CONTRACTOR, THUS ON AN OVERALL CONSIDERATION OF THE FACTUA L MATRIX IN THE FACTS AS THEY STAND, NEAR IDENTICAL DOCUMENT HAVING B EEN CONSIDERED TO BE PERTAINING TO THE BUSINESS OF THE ASSES SEE WHO ADMITTEDLY WAS DURING THE SPECIFIC PERIOD THROUGH HIS COM PANY M/S SINGLA ENGINEERS & CONTRACTORS PVT. LTD., BATHINDA ENGAGE D IN CONSTRUCTION AND MAINTENANCE OF ROAD/FOUR LANING OF SPECIFIC AREA DESCRIBED AS BATHINDA-TALWANDI SABO-SARDULGARH ROAD AS PER THE GEETA GARDI SCHEME. 7.9 WHILE ARRIVING AT CONCLUSION, WE HAVE TAKEN NOTE OF THE FACT THAT NOTHING HAS BEEN PLACED BY THE REVENUE BEFORE US TO SH OW THAT THE FACTS AS NOTICED BY THE ITAT IN THE RESPECTIVE YEARS AN D AS NOTED BY THE CIT(A) IN THE YEAR UNDER CONSIDERATION WERE CONTRARY TO RECORD. NO STATEMENT RECORDED IN THE COURSE OF THE SEARCH OR OT HERWISE NOR ANY MATERIAL HAS BEEN PLACED BEFORE US TO TAKE A CONTRARY VIEW. THE ORDER RELIED UPON BY THE LD. CIT-DR ON QUERY IT WAS STATED SINC E MAKES REFERENCE TO NO FACT IN ORDER TO CANVASS A CONTRARY V IEW, THE LD. CIT-DR CONCEDED THAT THE ORDER IS CRYPTIC. IN THE ABSENCE O F ANY INFIRMITY IN THE ORDER RELYING ON THE ORDER OF THE ITAT ON THE SA ME NATURE OF ITA 246/CHD//2017 A.Y. 2009-10 PAGE 15 OF 15 ACTIVITY IN THE EARLIER AND PRECEDING ASSESSMENT YEARS, WE UPHOLD THE IMPUGNED ORDER AS THERE IS NO AVAILABILITY ON RECORD JUSTIF YING THE VARYING OF THE CONCLUSION ARRIVED AT. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.04.2019. SD/- SD/- ( . ' . . . ( ) ( !'# ) (DR. B.R.R. KUMAR) (DIVA SI NGH) )* !% / ACCOUNTANT MEMBER $ !% / JUDICIAL MEMBER * */POONAM %( )* +* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ! , / CIT 4. ! , ( )/ THE CIT(A) 5. *-. / , # / , 012.3 / DR, ITAT, CHANDIGARH 6. .2 4' / GUARD FILE %( ! / BY ORDER, 5 / ASSISTANT REGISTRAR