Shri Hitesh B.Patel, Anand V. The ACIT.,Anand Circle, Anand

ITA 2778/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1707 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 10-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure; Loose papers; Onus to prove
• Section: 133A; 131; 132

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.2778/AHD/2012 /BLOCK ASSTT. YEAR: 2010-2011 SHRI HITESH B. PATEL 5, PATEL COLONY, NR.POINEER SCHOOL ANAND 388 001. PAN : AEPPP 4893 R VS ACIT, ANAND CIRCLE ANAND. %& / (APPELLANT) '( %& / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR HEMANI REVENUE BY : SHRI JAMESH KURIAN, SR.DR / DATE OF HEARING : 05/05/2016 / DATE OF PRONOUNCEMENT: 09/05/2016 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LD.CIT(A)-IV, BARODA DATED 19.9.2012 PASSED FOR THE ASSTT.YEAR 2010- 11. 2. THOUGH THE ASSESSEE HAS TAKEN SIX GROUNDS OF APP EAL, BUT HIS GRIEVANCE REVOLVES AROUND TWO ISSUES, VIZ. THE LD.C IT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.85 LAKHS, AND (B) THE LD.CIT(A) HAS ERRED IN CONFIRMING THE LEVY OF INTEREST UNDER SECTIONS, 234B, 234C AND 234D OF THE INCOME TAX ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A T THE RELEVANT TIME, WAS WORKING AS A LAND DEVELOPER AND BROKER IN THE L AND DEALING. HE HAS ITA NO.2778/AHD/2012 2 FILED HIS RETURN OF INCOME ELECTRONICALLY ON 15.10. 2010 DECLARING TOTAL INCOME AT RS.1,32,51,938/-. THIS RETURN WAS REVISE D ON 15.12.2011 WHEREBY THE TOTAL INCOME WAS DECLARED AT RS.2,07,51 ,940/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T AND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSES SEE ON 26.8.2011. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT IN T HE CASE OF THE ASSESSEE ON 10.9.2010. SIMILARLY, A SURVEY UNDER S ECTION 133A OF THE INCOME TAX ACT WAS CARRIED OUT IN THE CASE OF M/S.D EVRAJ DEVELOPERS, AMUL DIARY ROAD, ANAND ON 19.2.2010. ACCORDING TO THE AO, DURING THE COURSE OF SURVEY, VARIOUS LOOSE PAPERS, SMALL DAIRI ES WERE FOUND AND IMPOUNDED. STATEMENT OF SHRI PRANAV S. PATEL (PSP) , PARTNER OF M/S.DEVRAJ DEVELOPERS WAS RECORDED UNDER SECTION 13 3A ON 19.2.2010. THEREAFTER, HIS STATEMENT WAS FURTHER RECORDED UNDE R SECTION 131 OF THE INCOME TAX ACT. PSP HAD DISCLOSED IN HIS STATEMENT RECORDED AT THE TIME OF SURVEY AS WELL AS IN THE POST-SURVEY INQUIR Y THAT HE HAD MADE VARIOUS PAYMENTS TO THE ASSESSEE WHICH ARE INVENTOR ISED IN ANNEXURE A/1 TO ANNEXURE A/7. THE LD.AO HAS NOTICED THE DET AILS OF THE PAYMENTS AS UNDER: (A) ANNEXURES-A-1 TO A-7 ARE WRITTEN BY SHRI PRANA V S. PATEL HIMSELF (B) PAGE NO.9 OF ANNEXURE-A-1 IS ABOUT PAYMENT OF RS.20,00,000/- TO THE ASSESSES ON 18/12/2009 AGAINS T THE LAND OF THERE NEW PROJECT KNOWN AS DEV SHIKAR. (C) PAGE NO. 7 OF ANNEXURE-A-1 IS ABOUT PAYMENT OF RS.3046000/-ON 04/01/2010 AND OF RS.454000/- TO THE ASSESSEE ON 04/01/2010 AGAINST THE LAND OF THERE NEW PROJECT KNOWN AS DEV SHIKHAR. (D) PAGE NO.3 OF ANNEXURE-A-1 IS ABOUT PAYMENT OF R S.2400000/- TO THE ASSESSEE ON 30/01/2010 AGAINST THE LAND OF T HERE NEW PROJECT KNOWN AS DEV SHIKHAR. ITA NO.2778/AHD/2012 3 (E) PAGE NO.1 OF ANNEXURE-A-1 IS ABOUT PAYMENT OF R S.600000/- TO THE ASSESSEE ON 12/02/2010 AGAINST THE LAND OF T HERE NEW PROJECT KNOWN AS DEV SHIKHAR. (F) PAGE NO.1 OF ANNEXURE-A-6 IS ABOUT PAYMENT OF RS.4000000/- TO THE ASSESSEE ON 22/01/2010 AND OF RS.3500000/- O N 05/02/2010. YOU HAD PUT YOUR SIGNATURES ON THIS PAG E AGAINST BOTH THE ENTRIES IN TOKEN OF HAVING RECEIVED THE MO NEY. 3. THE LD.AO HAS CONFRONTED THE ASSESSEE WITH THE A BOVE DISCLOSURE. THE ASSESSEE DID NOT DISPUTE WITH REGARD TO THE PAY MENTS RECEIVED ON 22.1.2010 AND 5.2.2010. WITH REGARD TO OTHER PAYM ENTS, HE HAS EXPRESSED HIS IGNORANCE. THE LD.AO HAS MADE AN AD DITION OF RS.85 LAKHS TO THE INCOME OF THE ASSESSEE ON THE STRENGTH OF THE STATEMENT OF PSP AS WELL AS ON THE STRENGTH OF LOOSE PAPER/DIARY FOUND FROM THE POSSESSION OF PSP. THE AO HAS RECORDED THAT SINCE PAYER HAS ADMITTED THE PAYMENT, THEREFORE, THE ASSESSEE MUST HAVE RECE IVED THE PAYMENTS. 4. DISSATISFIED WITH THE ADDITION, THE ASSESSEE CAR RIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). IN HIS FIRST FOLD OF SUBMISSIONS, HE CONTENDED THAT THE STATEMENT RECORDED DURING THE CO URSE OF SURVEY DOES NOT CARRY ANY EVIDENTIARY VALUE. HENCE, ON TH E BASIS OF DISCLOSURE MADE BY PSP DURING THE COURSE OF SURVEY NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE FURTHER CO NTENDED THAT THE LAND WAS OWNED BY ONE M/S.KRISHNA DEVELOPERS. IT W AS SOLD TO M/S.DEVRAJ DEVELOPERS. THE ASSESSEE HAD ACTED AS B ROKER ONLY. THEREFORE, THERE CANNOT BE ANY QUESTION OF MAKING A NY PAYMENT TO THE ASSESSEE QUA THE PURCHASE OF LAND. 5. ON THE STRENGTH OF THE HONBLE SUPREME COURT DEC ISION IN THE CASE OF CBI VS. V.C. SHUKLA, (1998) 3 SCC 410, IT WAS CO NTENDED BY THE ASSESSEE THAT ON THE BASIS OF DIARY RECOVERED FROM A THIRD PARTY, THE PROSECUTION CANNOT ESTABLISH THE GUILT OF ANY PERSO N, VIZ. RECIPIENT. THE ASSESSEE HAD NEVER ACKNOWLEDGED RECEIPT OF ANY PAYM ENT FROM PSP. ITA NO.2778/AHD/2012 4 HIS SIGNATURE IS NOT AVAILABLE EITHER IN THE DIARY OR IN OTHER LOOSE PAPER. NO PERSON WOULD MAKE A HUGE PAYMENT WITHOUT TAKING CONFIRMATION FROM OTHER PARTY. THE ASSESSEE FURTHER CONTENDED T HAT SEARCH WAS CARRIED OUT AT HIS PREMISES AND NOTHING INCRIMINATI NG WAS FOUND, WHEREAS, ONLY SURVEY WAS CONDUCTED AT THE PREMISES OF PSP. ACCORDING TO THE ASSESSEE HOW PSP HAS BEEN MANAGING HIS AFFAI R, THE ASSESSEE CANNOT BE ASKED TO EXPLAIN THE WRITING MADE BY HIM IN HIS DIARY. THE ASSESSEE FURTHER PUT RELIANCE UPON THE FOLLOWING JU DGMENTS. I) KISHANCHAND CHELLARAM VS. CIT, 125 ITR 713 (SC) II) CIT VS. N. SWAMY, 241 ITR 363 (MAD) III) CIT VS. P.V. KALYANSUNDARAM, 282 ITR 259 (MAD) ; IV) SHANKERLAL NABHUMAL HUF & ORS. VS. DCIT, 80 TTJ (AHD) 69; 6. ON THE STRENGTH OF THE ABOVE JUDGMENT, IT WAS CO NTENDED BY THE ASSESSEE THAT BURDEN TO PROVE, DEMONSTRATING THE FA CT THAT THE ASSESSEE HAS RECEIVED PAYMENT WAS ON THE REVENUE. MERELY ON THE BASIS OF DOCUMENTS FOUND FROM THE PREMISES OF A THI RD PARTY IN THE HAND WRITING OF THE THIRD PARTY, WITHOUT ANY CROSS-CONFI RMATION AT END OF THE ASSESSEE, IT CANNOT BE ASSUMED THAT THE PAYMENT WAS MADE TO THE ASSESSEE. THE ASSESSEE FURTHER CONTENDED THAT ONLY STATEMENT WAS SUPPLIED TO THE ASSESSEE. PSP WAS NOT PUT TO CROSS -EXAMINATION, AND THEREFORE, STATEMENT RECORDED FROM THE BACK OF THE ASSESSEE CANNOT BE USED AGAINST THE ASSESSEE. 7. THE LD.CIT(A) HAS GONE THROUGH ALL THESE ASPECTS , AND THEREAFTER, CONFIRMED THE ADDITION. THE LD.CIT(A) HAS ASSIGNED TWO REASONS. IN HIS FIRST FOLD OF REASONING, HE OBSERVED THAT IF ASSESS EE HAS ADMITTED ONE OF THE ENTRIES, RECORDED IN THE IMPOUNDED DOCUMENT, TH EN, IT IS TO BE PRESUMED THAT THE ASSESSEE HAS RECEIVED PAYMENTS ME NTIONED IN ALL OTHER ENTRIES. IN THE OPINION OF THE LD.CIT(A), IF GENUINENESS OF ONE ITA NO.2778/AHD/2012 5 ENTRY WAS ACCEPTED BY THE ASSESSEE, THEN, HE CANNOT CHALLENGE OTHER ENTRIES. IN THE SECOND FOLD OF REASONING, THE LD.C IT(A) HAS MADE REFERENCE TO THE ORDER OF THE ITAT IN THE CASE OF D HUNJIBHOYSTUD AND AGRICULTURAL FARM, 82 ITD 18. HE REPRODUCED THE DI SCUSSION IN THIS CONNECTION EXTENSIVELY STARTING FROM PAGE NOS.26 TO 35 OF THE IMPUGNED ORDER. WHILE IMPUGNING THE ORDER OF THE LD.REVENUE AUTHORITIES, THE LD.COUNSEL FOR THE ASSESSEE RELIED UPON THE SUBMISS IONS MADE BEFORE THE LD.CIT(A). HE FURTHER CONTENDED THAT BASICALLY FOUR CIRCUMSTANCES EMERGE OUT FOR EVALUATING THE ALLEGED MATERIAL IMPO UNDED DURING THE COURSE OF SURVEY; (A) THE DIARY WAS FOUND FROM THE PREMISES OF THIRD PARTY, (B) IT WAS IMPOUNDED DURING THE COURSE OF SU RVEY AT THE THIRD PARTY, (C) DIARY BELONGED TO THIRD PERSON, AND (D) NOTING IN SUCH DIARY HAVE ALSO BEEN MADE BY THE THIRD PARTY. HE FURTHER CONTENDED THAT SIGNATURES OF THE ASSESSEE ARE AVAILABLE ON RECEIPT OF PAYMENT OF RS.75 LAKHS. IN ALL OTHER ENTRIES THERE IS NO SIGNATURE OF THE ASSESSEE. THEREFORE, INFERENCES DRAWN BY THE REVENUE AUTHORIT IES ARE INCORRECT. IT WAS ALSO POINTED BY THE LD.COUNSEL FOR THE ASSES SEE THAT STATEMENT RECORDED UNDER SECTION 133A OF THE INCOME TAX ACT D URING THE COURSE OF SURVEY HAS NO EVIDENTIARY VALUE. FOR BUTTRESSING T HIS PROPOSITION, HE RELIED UPON THE JUDGMENT OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS. S. KHADER KHAN SON, 25 TAXMANN.COM 413 (SC) . HE PLACED ON RECORD COPY OF THE JUDGMENT. ON EVALUATION OF EVID ENCE, IN ORDER TO PUT THE ASSESSEE WITH TAX LIABILITY ON THE ALLEGED ADDI TION OF RS.85 LAKHS, HE RELIED UPON THE JUDGMENT OF THE HONBLE GUJARAT HIG H COURT IN THE CASE OF CIT VS. ABHALBHAI ARJANBHAI JADEJA, TAX APPEAL N O.233 OF 2013 AND OTHERS, AS WELL AS DECISION IN THE CASE OF PR.CIT V S. CHARTERED SPEED PVT. LTD., TAX APPEAL NO.126 OF 2015 AND ANR. COPI ES OF BOTH DECISIONS HAVE BEEN PLACED ON RECORD. THE LD.COUNSEL FOR THE ASSESSEE POINTED OUT THAT IN THE CASE OF CIT VS. ABHALBHAI ARJANBHAI JADEJA (SUPRA), AN ADDITION WAS MADE BY THE AO ON THE BASIS OF A STATE MENT RECORDED DURING THE COURSE OF SEARCH. THE ADDITION WAS DELE TED BY THE LD.CIT(A) ITA NO.2778/AHD/2012 6 AND ORDER OF THE CIT(A) WAS CONFIRMED. THE HONBLE HIGH COURT HAS UPHELD THE ORDER OF THE TRIBUNAL BY OBSERVING THAT SOLE STATEMENT OF SHRI VIKAS SHAH WAS NOT SUFFICIENT TO MAKE THE ADDI TION IN THE HANDS OF THE ASSESSEE. IN THIS WAY, THE LD.COUNSEL FOR THE ASSESSEE PRAYED THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IS NOT SU STAINABLE. 8. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORD ERS OF THE REVENUE AUTHORITIES. 9. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE FIRST EVIDENCE OR CIRCUMST ANCES REFERRED BY THE AO FOR MAKING THE ADDITION IS THAT STATEMENT OF PSP WAS RECORDED DURING THE COURSE OF SURVEY. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE ON THIS SET OF EVIDENCE IS THAT THIS STATE MENT HAS NO EVIDENTIARY VALUE, HENCE, IT CANNOT BE USED AGAINST THE ASSESSEE, BECAUSE, ON THE BASIS OF THE STATEMENT GIVEN BY PSP EVEN, ADDITION CANNOT BE MADE IN HIS HAND. THE ISSUE REGARDING EVI DENTIARY VALUE OF THE STATEMENT TAKEN DURING THE COURSE OF SURVEY, HA S FALLEN FOR CONSIDERATION BEFORE THE HONBLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS (2003) 263 ITR 101 (KER). ACCORDI NG TO THE HONBLE KERALA HIGH COURT, DURING THE COURSE OF SURVEY, THE OFFICER COULD RECORD THE STATEMENT OF A PERSON UNDER SUB-SECTION 3(III) OF SECTION 133A OF THE INCOME TAX ACT. THIS CLAUSE AUTHORIZES THE AUT HORITY TO RECORD A STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR OR RELEVANT TO ANY PROCEEDINGS UNDER THE ACT. HOWEVER, THE OFFICER IS NOT AUTHORIZED TO RECORD THE STATEMENT ON OATH, AND HENCE, THE STATEM ENT TAKEN DURING THE COURSE OF SURVEY, HAS NO EVIDENTIARY VALUE. IT IS SIMPLY AN INFORMATION, WHICH CAN BE USED FOR CORROBORATION PU RPOSE FOR DECIDING ANY ISSUE IN FAVOUR OR AGAINST THE ASSESSEE. THE O BSERVATIONS MADE BY THE HONBLE KERALA HIGH COURT ON PAGE NO.108 OF THE JOURNAL ARE WORTH TO NOTE. IT READS AS UNDER: ITA NO.2778/AHD/2012 7 ..SECTION 133A(3)(III) ENABLES THE AUTHORITY TO RE CORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THE ACT. SECTION 133A, HOWEVER , ENABLES THE INCOME-TAX AUTHORITY ONLY TO RECORD ANY STATEMENT O F ANY PERSON WHICH MAY BE USEFUL, BUT DOES NOT AUTHORISE TAKING ANY SWORN STATEMENT. ON THE OTHER HAND, WE FIND THAT SUCH A P OWER TO EXAMINE A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUTHORISED OFFICER ONLY UNDER SECTION 132 (4) OF TH E INCOME-TAX ACT IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS, THE I NCOME-TAX ACT, WHENEVER IT THOUGHT FIT AND NECESSARY TO CONFER SUC H POWER TO EXAMINE A PERSON OH OATH, THE SAME HAS BEEN EXPRESS LY PROVIDED WHEREAS 'SECTION 133A DOES NOT EMPOWER ANY INCOME-T AX OFFICER TO EXAMINE ANY PERSON ON OATH. THUS, IN CONTRADISTI NCTION TO THE POWER UNDER SECTION 133A, SECTION 132(4) OF THE INC OME-TAX ACT ENABLES THE AUTHORISED OFFICER, TO EXAMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMI NATION CAN ALSO BE USED IN EVIDENCE UNDER THE INCOME-TAX ACT. ON THE OTHER HAND, WHATEVER STATEMENT IS RECORDED UNDER SECTION 133A OF THE INCOME-TAX ACT IT IS NOT GIVEN ANY EVIDENTIARY VALU E OBVIOUSLY FOR THE REASON THAT THE OFFICER IS NOT AUTHORISED TO AD MINISTER OATH AND TO TAKE ANY SWORN STATEMENT WHICH ALONE HAS EVIDENT IARY VALUE AS CONTEMPLATED UNDER LAW. THEREFORE, THERE IS MUCH FO RCE IN THE ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT THAT THE STATEMENT ELICITED DURING THE SURVEY OPERATION HAS NO EVIDENT IARY VALUE AND THE INCOME-TAX OFFICER WAS WELL AWARE OF THIS' 10. SIMILARLY, THE HONBLE MADRAS HIGH COURT HAS AL SO CONCLUDED THAT STATEMENT RECORDED DURING THE COURSE OF SURVEY HAS NO EVIDENTIARY VALUE. THE SLP AGAINST THE DECISION OF THE HONBLE MADRAS HIGH COURT HAS ALSO BEEN DISMISSED BY THE HONBLE SUPREME COUR T. THE LD.COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD COPY OF THE J UDGMENT OF THE HONBLE SUPREME COURT AS ANNEXURE-A WITH THE CHART. 11. THE NEXT EVIDENCE RECORDED BY THE AO IS THAT IN THE POST SURVEY INQUIRY STATEMENT OF PSP WAS RECORDED ON 5.3.2010 U NDER SECTION 131 OF THE INCOME TAX ACT, WHICH WAS ON OATH. THEREFOR E, IF STATEMENT RECORDED UNDER SECTION 133A WAS IGNORED, THEN, THER E IS A FURTHER ITA NO.2778/AHD/2012 8 DISCLOSURE BY THE PAYER. WE FIND THAT HIS STATEMEN T WAS RECORDED FROM THE BACK OF THE ASSESSEE, AND NO OPPORTUNITY TO CRO SS-EXAMINE THE DEPOSER WAS GIVEN TO THE ASSESSEE. HENCE, THIS STA TEMENT CANNOT BE USED AGAINST THE ASSESSEE. WE FIND SUPPORT FROM TH E DECISION OF HONBLE SUPREME COURT IN THE CASE OF KISHANCHAND CH ELLARAM (SUPRA) WHEREIN IT WAS HELD THAT ANY MATERIAL NOT CONFRONTE D TO THE ASSESSEE WOULD NOT CONSTITUTE AS ADMISSIBLE EVIDENCE AND CON SEQUENTLY ADDITION MADE ON THE BASIS OF SUCH EVIDENCE IS LIABLE TO BE DELETED. IN THE PRESENT CASE PSP WAS NOT SUBJECTED CROSS-EXAMINATIO N. HIS STATEMENT WAS NOT RECORDED IN THE ASSESSMENT PROCEEDING OF TH E ASSESSEE. IT WAS IN POST-SURVEY INQUIRY OF HIS OWN CASE. THEREFORE, THIS PIECE OF EVIDENCE IS TO BE EXCLUDED. 12. THE NEXT SET OF EVIDENCE POSSESSED BY THE REVEN UE IS LOOSE PAPERS AND SMALL DIARIES IMPOUNDED DURING THE COURS E OF SURVEY CARRIED AT THE PREMISES OF PSP. THE EXPLANATION OF THE ASS ESSEE QUA THIS SET OF EVIDENCE IS THAT IT WAS NOT FOUND FROM THE POSSESSI ON OF THE ASSESSEE. IT WAS FOUND FROM THE POSSESSION OF A THIRD PERSON, THEREFORE, THE ASSESSEE CANNOT BE CALLED UPON TO EXPLAIN THE ENTRI ES AVAILABLE IN THE DIARY. THE DIARY BELONGED TO A THIRD PERSON. THE ENTRIES MADE IN THE DIARY WERE NOT IN THE HAND-WRITING OF THE ASSESSEE, RATHER, PSP HAS MADE THE ENTRY. SO, HE CAN ONLY BE HELD LIABLE FOR THE ENTRIES. WHEN, THE ASSESSEE TOOK THIS STAND BEFORE THE LD.CIT(A), THEN, THIS STAND WAS REJECTED BY THE LD.CIT(A) BY MAKING A MENTION THAT ONCE THE ASSESSEE HAS ADMITTED ONE OF THE ENTRIES IN THE DIARY AND SH OWN THE RECEIPT IN HIS INCOME, THEREFORE, OTHER ENTRIES ARE TO BE TREATED AT PAR, AND IT IS TO BE ASSUMED THAT THE ASSESSEE MUST HAVE TAKEN THE PAYME NT OF OTHER ENTRIES ALSO. IN OUR OPINION, THE LD.CIT(A) HAS FA ILED TO TAKE NOTE OF BASIC PRINCIPLE OF LAW CANVASSED IN THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CBI VS. V.C.SHUKLA (SU PRA). IN THAT DECISION, THE HONBLE SUPREME COURT HAS MADE REFERE NCE TO SECTION 34 ITA NO.2778/AHD/2012 9 OF THE INDIAN EVIDENCE ACT AND OBSERVED THAT SUCH S TATEMENTS I.E. ENTRIES SHALL NOT ALONE BE SUFFICIENT TO CHARGE ANY PERSONS WITH LIABILITY. SIMPLE REASON IS THAT ENTRIES WERE MADE BY A THIRD PARTY FROM THE BACK OF THE PERSON, AGAINST WHOM, CHARGES ARE BEING LEVE LED. APART FROM THIS NON-ADMISSIBILITY OF EVIDENCE, THE LD.CIT(A) H AS FAILED TO TAKE NOTE OF THE DISTINCTION BETWEEN THE ENTRIES. THE AO HAS REPRODUCED ENTRIES ON PAGE NO.2 OF THE ASSESSMENT ORDER. WE HAVE EXTR ACTED ABOVE. THE REASON FOR THE ADMISSION OF THE ASSESSEE WAS THAT T HE ASSESSEE HAS PUT HIS SIGNATURE ON THE RECEIPT OF THE PAYMENT IN THE DIARY OF PSP. THEREFORE, THESE ENTRIES ARE ALL TOGETHER DIFFERENT FROM OTHER ENTRIES. HERE THE ASSESSEE HAS CONFIRMED THE ENTRY WHEN IT W AS MADE. THE MOMENT THE ASSESSEE RECOGNIZED HIS SIGNATURE IN ALL THESE ENTRIES AND IT IS ESTABLISHED THAT SIGNATURES ARE OF THE ASSESSEE, THEN, IT IS NOT THE ENTRIES ALONE RELATED TO PSP, BUT IT BECOMES JOINT RESPONSIBILITY TO EXPLAIN THE ENTRY. THIS IS THE REASON THAT THE ASS ESSEE HAS SHOWN THIS AMOUNT IN HIS RETURN OF INCOME. IF WE ACCEPT THE C ONCLUSION DRAWN BY THE REVENUE AUTHORITIES, THEN, THERE WOULD BE A VER Y DANGEROUS SITUATION, BECAUSE PSP MIGHT HAVE RECORDED HUNDRED NAMES OR CRORES OF AMOUNTS ALLEGED TO HAVE BEEN PAID TO THE ASSESSEE. THE ASSESSEE CANNOT BE EXPECTED TO PROVE THE ENTRIES WRITTEN BY PSP IN HIS DIARY. THE ONUS IS UPON THE REVENUE TO FIRST PROVE THAT TH E ASSESSEE HAS RECEIVED PAYMENT. THE DEPARTMENT FAILED TO PROVE T HIS ASPECT. THE AO HAS TAKEN THE ENTRIES OF PSP AS A GOSPEL TRUTH, AND ASSUMED THAT IT IS THE ASSESSEE WHO HAS TO DISPROVE THEM, WHEREAS THE POSITION OF THE LAW IS ALL TOGETHER OTHERWISE. IT IS THE AO WHO HAS TO FIRST PROVE THE PAYMENTS ALLEGED TO HAVE BEEN RECEIVED BY THE ASSES SEE, AND ONLY THEN, EXPLANATION OF THE ASSESSEE CAN BE SOUGHT. F ROM ENTRIES OF PSP REFERRED BY THE AO, THIS ASPECT HAS NOT BEEN PROVED . THE LD.CIT(A) HAS HEAVILY RELIED UPON THE ORDER OF THE ITAT, THIRD ME MBER DECISION IN THE CASE OF DHUNJIBHOYSTUD. THIS DECISION HAS BEEN REP RODUCED EXTENSIVELY FROM PAGE NOS.26 TO 35 OF THE IMPUGNED ORDER. AS F AR AS THE DECISIONS ITA NO.2778/AHD/2012 10 RELIED UPON BY THE LD.CIT(A), THE FACTS IN THAT CAS ES ARE QUITE DISTINGUISHABLE WITH THE FACTS OF THE PRESENT CASE. IN THAT CASE SEARCH WAS CARRIED OUT AT THE PREMISES OF DR.TANNA. HE MA DE DISCLOSURE UNDER SECTION 132(4) OF THE ACT. HE HAS MADE PAYMENT THR OUGH ACCOUNT PAYEE CHEQUES AS WELL AS IN CASH. IN THE PRESENT C ASE, EVEN AT THE PREMISES OF PSP, NO SEARCH WAS CONDUCTED. THERE WA S NO COMMON DOCUMENTS EXECUTED BETWEEN PSP AND THE ASSESSEE WAS FOUND, WHICH BEARS THE SIGNATURES OF BOTH THE PARTIES. TO THE EXTENT COMMON DOCUMENT WAS FOUND I.E. LAST ENTRY WHERE ASSESSEE H AS CONFIRMED RECEIPT AND PUT HIS SIGNATURE IN THE DIARY OF PSP , ASSESSEE HAS OFFERED THE AMOUNTS FOR TAXATION. IF WE EVALUATE THE EVIDE NCE COLLECTED BY THE AO IN SHAPE OF LOOSE PAPER IMPOUNDED DURING THE COU RSE OF SURVEY, IN THE LIGHT OF THE DECISION OF THE HONBLE GUJARAT HI GH COURT, IN THE CASE OF ABHALBHAI ARJANBHAI JADEJA (SUPRA), THEN, IT WOULD REVEAL THAT CONCLUSIVE EVIDENCE WAS NOT COLLECTED EVEN DURING T HE COURSE OF SURVEY DEMONSTRATING THE PAYMENT MADE TO THE ASSESSEE. TH EREFORE, WE ALLOW GROUND OF THE APPEAL OF THE ASSESSEE AND DELETE THE ADDITION. AS FAR AS CHARGING OF INTEREST IS CONCERNED, IT IS CONSEQUENT IAL IN NATURE. HENCE, THIS GROUND IS REJECTED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 9 TH MAY, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 09/05/2016