DCIT, Central Circle - 3, Surat, Surat V. Shiri Ashesh Nanalal Doshi, Surat

ITA 32/SRT/2021

AI Insights

The case involves two appeals by the revenue against the orders of the Commissioner of Income Tax (Appeals) for the Assessment Years 2015-16 and 2016-17. The appeals were based on similar grounds concerning the treatment of certain documents seized during a search operation under Section 132 of the Income Tax Act, 1961, at the premises of Param Properties. The documents included a Memorandum of Understanding (MOU) and other incriminating materials which the Assessing Officer used to make additions to the assessee's income, alleging unexplained investments and cash transactions. The CIT(A) found that the MOU was unsigned and not acted upon, and the other documents were not in the handwriting of the assessee nor recovered from his premises, leading to the deletion of the additions. The Tribunal agreed with the CIT(A)'s findings, emphasizing the lack of direct evidence and the nature of the documents as 'dumb documents'.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302214 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-06-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 04-04-2021
• Other Referred Cases: Common Cause (Registered Society) and Others Vs Union of India and others, V.C. Shukla Vs UOI, CIT Vs. Mauli Kumar K. Shah, PCIT Vs Ajay Sundarbhai Patel, Kishanchand Chellaram Vs CIT, CIT Vs Dhiranlal Durlabhbhai Patel HUF, Rajeev Tractors (P) Ltd. Vs ACIT, Rajesh Babubhai Damania Vs ITO, CIT Vs Mukesh Keshav Lal Patel
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Loose papers; Principle of natural justice; Opportunity of cross examination; Documents seized; Set aside
• Section: 131; 132; 143(3); 142(1); 133(6); 69A; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr. ARJUN LAL SAINI, ACCOUNTANT MEMBER IT(SS)A No. 07/Srt /2021 (Assessment Year: 2015-16) ITA No. 32/Srt /2021 (Assessment Year: 2016-17) (Virtual hearing) D.C.I.T., Central Circle-3, Surat. Vs. Shri Ashesh Nanalal Doshi, 804, Abhushan Apartment, Athwalines Road, Parle Point, Surat. PAN No. AAZPD 2576 P Appellant/ assessee Respondent/ revenue Department represented by Shri Ashok B. Koli (CIT-DR) Assessee represented by Shri Sourabh Soparkar, Senior Advocate with Ms. Urvashi Shodhan, Advocate Date of hearing 26/06/2023 Date of pronouncement 21/08/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the revenue are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-4, Surat (in short, the ld. CIT(A) both dated 01/01/2021 for the Assessment years (AY) 2015-16 and 2016-17 respectively. In both these appeals, the revenue has raised similar grounds of appeal. Certain facts in both years are common, therefore, with the consent of parties both appeals were clubbed, heard together and are being decided by this consolidated order to avoid the conflicting decision. For appreciation of facts, the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 2 appeal for the A.Y. 2015-16 is treated as a “lead case”. In this appeal, the revenue has raised following grounds of appeal: “1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in treating the MOU in question as dumb document and deleting the addition made of Rs.55,00,000/- on account of unexplained investment. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in treating the incriminating documents seized during the search action u/s. 132 of the Act as dumb document and deleting the addition made of Rs.80,00,000/- on account of unexplained cash receipts. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in treating the incriminating documents seized during the search action u/s. 132 of the Act as dumb documents and deleting the addition made of Rs.70,00,000/- on account of unexplained cash payments. 4. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the additions on the ground that the A.O. has not allowed the cross examination of the person from whom the incriminating documents was found and seized, ignoring the incriminating evidences on record and without affording an opportunity of cross examination in the appellate proceedings. 5. It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. 6. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal.” 2. Brief facts of the case are that a search action under Section 132 of the Income Tax Act, 1961 (in short, the Act) was carried out on 04/09/2015 in case of Param Properties of Surat. During the course of search action, certain incriminating documents and evidences were seized from the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 3 premises of Param Properties which contains certain entries pertaining to the assessee. Based on the incriminating material related with the assessee, the assessing officer recorded satisfaction under section 153C. Notice under Section 153C of the Act dated 01/08/2017, was issued to the assessee for filing return of income for various assessment years. In response to notice under Section 153C, the assessee filed his return of income for A.Y. 2015-16 on 11/09/2017 declaring income of Rs. 4.44 crores. The Assessing Officer after serving notice under Section 143(2), proceeded for assessment. During the assessment, the Assessing Officer noted that during the course of search action on Param Properties on 04/09/2015, various incriminating evidences were found and seized. The incriminating document includes the Memorandum of Understanding (MOU) which was seized as Annexure- BS-2. The said MOU was in respect of agricultural land having survey No. 135, Block No. 168, admeasuring 28328 square meters at village Jothan, Talluka- Olpad, District-Surat. In the said MOU, the name of assessee was written with others as buyers. During the search action, statement of partner of Param Properties namely Aagam V. Vadecha was recorded on oath, wherein he admitted that he was having share of 4% in the property and made investment in Jothan land of Rs. 25.00 lacs in cash. Name of assessee was also written in the MOU, therefore, the Assessing Officer after recording satisfaction under Section 153C of IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 4 the Act, which was basis for issuance of notice to the assessee under Section 153C of the Act on 26/09/2017. 3. The Assessing Officer after serving statutory notices under Section 143(2) and 142(1) of the Act, proceeded for assessment. The Assessing Officer extracted the relevant clause on MOU and the statement of Shri Aagam V. Vadecha in the assessment order. As per MOU, the assessee was having 24% share in the land and Param Properties was having 4% share. The partner of Param Properties has stated that they made part payment of Rs. 25.00 lacs in cash for 4% of their share. The Assessing officer took his view that 4% share of property is valued at a minimum of Rs. 25.00 lacs then the total actual value of entire property is at least of Rs. 6.25 crores and share of investment in property proportionate to their share would be as under: Name Share Amount Rs. i. Asheshbhai Nanalal Doshi 36% 22500000 ii. Mahendra C Mehta 36% 22500000 iii. Pravinbhai H Shah 24% 15000000 iv. Param Properties 4% 2500000 62500000 4. On the basis of aforesaid observation, the Assessing Officer issued show cause notice to the assessee as to why the transactions reflected in the seized document should not be treated as unexplained cash transaction and should not be added to the total income of assessee for A.Y. 2015- 16. In response to said show cause notice, the assessee filed his reply IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 5 dated 21/12/2017. The assessee in its reply, stated that MOU cannot be relied upon for drawing an inference as all parties have denied the MOU and such MOU was never executed. Reply of assessee was not accepted by the Assessing Officer. The Assessing Officer recorded that the MOU in question correctly and actually described the details of property. The land in question is actually registered in the name of one of the partner i.e. the assessee. The cheque number and other details are mentioned in the MOU. Such fact was corroborated by the statement of Shri Aagam V. Vadecha recorded under Section 132(4) of the Act who also confirmed having 4% share in the land. The searched person never denied existence of MOU, therefore, the admission of partners in admitting the investment in the MOU cannot be taken lightly. The Assessing Officer further noted that summon under Section 131 of the Act was issued to one of the partners Shri Pravin H Shah. In response to said summon, he attended the hearing on 21/10/2015. His statement was recorded on oath. In his statement, it was admitted by him that he entered into a deal for purchase of land at Survey No. 135, Jothan and had given cash amount of Rs. 50.00 lacs. Though, he further stated that he received back the amount in May, 2015. According to MOU, interest on cheque payment by way of entry for purchase of land was to be shared between the parties. The Assessing Officer was of the view that in whole process, the partners of MOU fixed liabilities of each partner IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 6 for future course of activities in respect of land. The actual value of the property was Rs. 6.25 crores. Final deed was executed in the name of assessee who made the payment of Rs. 5.70 crores through cheques, thus the difference between the value shown in the MOU and as per the registered deed of Rs. 55.00 lacs (Rs. 6,25,00,000 – 5,70,00,000 = Rs. 55,00,000) is unaccounted money received by assessee on account of development cost of said land. The Assessing Officer accordingly made addition of Rs. 55.00 lacs under Section 69A of the Act. 5. The Assessing Officer further noted that during the course of search action on Param Properties, the documents and the evidences seized reveals cash transaction in the name of assessee. The Assessing Officer made summary of such transaction in the following manner: SHRI ASHESH NANDLAL DOSHI PAYMENTS BY ASHESH N DOSHI RECEIPTS BY ASHESH N DOSHI F.Y. 2014-15 (A.Y. 2015-16) 14.05.14 1000000 FRN A-501 BS-28 3 07.02.15 7500000 FRN G- 901 BS-2 105 25.04.14 2000000 FRN A-501 BS-28 3 19.03.15 500000 FRN F- 901 BS-1 46 28.06.14 2000000 FRN A-501 BS-28 3 30.09.14 2000000 FRN A-501 BS-28 3 30.09.14 2000000 FRN A-501 BS-28 3 Total 7000000 8000000 Particular (Transaction related to Flat No.) Amount (In Rs.) Nature FRN A-501 7000000 Payment FRN G-901 7500000 Receipt FRN F-901 500000 Receipt 6. On the basis of aforesaid summary, the Assessing Officer was of the view that the seized document reveals that the assesse had entered into cash transaction related to purchase and sale of flat No. A-501, G-901 IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 7 and F-901 developed by Enn Enn Corporation Ltd. through Param Properties. Param Properties was broker of Enn Enn Corporation. Further, from the statement of Aagam Vadecha recorded on oath, established genuineness of cash book seized in which cash transactions are featuring. There were various entries of various parties with corresponding entry in the cash book of assessee. On the basis of such entries reflected in the various documents seized from Param properties, the Assessing Officer issued show cause notice to explain the transaction reflected in the seized material. The assessee filed reply dated 25/09/2017. In the reply, the assessee stated that he never received any such payment nor ever booked any such flat. The assessee even denied his name appearing in the seized material. The assessee contended that A N Doshi mentioned, in the seized material, who could be any other person. The assessee stated that diary seized to be belonging to Ashok Doshi and not to Ashesh Nanalal Doshi (assessee). The assessee stated that he knows Aagam Vadecha as he is from his native place from Disa, but he has no talking term with him due to family dispute. He does not know anything about such noting. The reply of assessee was not accepted by Assessing Officer by taking a view that the assessee has not given any proper and satisfactory explanation regarding transaction reflecting in the seized material and was again issued show cause notice. The assessee in his reply to second show IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 8 cause notice, again denied having received or paid such amount. The Assessing Officer was of the view that as per evidence gathered by the Investigation Wing, it is established beyond doubt that the documents seized from Param Properties relates to the assessee. Further information also gathered from i-Phone and contact back up of Aagam Vadecha, partner of Param Properties that the entries reflecting in the seized material in the name of Ashish N Doshi/A.N. Doshi and mobile number traced out from the i-phone of Aagam Vadecha which corroborates with the other material. The Assessing Officer referred the call details of assessee and took his view that the transaction reflecting in the flat No. F-901 and G-901 are clearly in the name of A.N. Doshi (Assessee), hence, the addition against transactions of these flats is made on substantive basis in the hand of assessee. 7. The assessing officer further held that seized diary inventorised as BS- 28 in respect of FRN A-501 reflects the name of Ashokbhai Doshi in all probabilities is A.N. Doshi. Partner of the firm Param Property has advertently nor identified Ashok Doshi neither during search nor during assessment proceedings. Notice under Section 133(6) of the Act was issued to partner of Param Properties who neither responded nor filed any reply, hence addition of Rs. 70,00,000/- was made on protective basis in the hand of assessee against flat No. A-501 and on substantive IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 9 basis in the hand of Param properties, in the assessment order completed under Section 143(3) r.w.s. 153C of the Act on 25/12/2017. 8. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee filed his detailed written submission on all three additions. On the addition of investment as per MOU of Rs. 55.00 lacs, the assessee stated that MOU was not signed by any of the parties. In absence of signature, no document can be relied upon especially when the MOU was seized from third party’s premises. The documents without signature of any party is nothing but a dumb document. Further as per contents of MOU, it contains the reference of future work to be done on the land in the partnership with four other persons namely Mahendra C. Mehta, Pravinbhai H. Shah, Aagam Vadecha and Ratesh K. Sanwal. The MOU was not materialized. The conditions mentioned in the MOU were never acted upon. As per MOU, farm house was to be built on the land. Even today, the land is agricultural land and no such farm house was made. The assessee furnished extract of 7/12 of land shown, i.e. still agricultural land and no farm house was built on the land. The assessee also made a reference of certain question and answers thereof, recorded during the search action wherein Pravinbhai H. Shah replied that he has seen such document for the first time. To support the contention that such document cannot be used as evidence, relied upon IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 10 the decision of Hon’ble Supreme Court in Common Cause (Registered Society) and Others Vs Union of India and others in Writ Petition (civil) No. 505 of 2015 and V.C. Shukla 1998 (3) SCC 410 and Ahmedabad Tribunal in ITA No. 1502/Ahd/2015 dated 14/02/2017. 9. On the addition of Rs. 80.00 lacs on substantive basis as unexplained cash receipt, the assessee stated that during the assessment, the assessee vide his submission dated 25/09/2017 denied to have entered into transaction shown in the seized material. In the seized material, nowhere bears the name or signature of assessee. The assessee urged for cross examination of relevant person in whose possession, the seized material was found. The Assessing Officer without providing any opportunity to the related persons to the search, rejected the submission of assessee and made addition of Rs. 80.00 lacs while framing the assessment order. The loose paper sheets as annexed as BS-1 and BS-2 contains some transaction in coded language as “BS-1 page 46: A.N. Doshi capital FRN G/901 pete 500 and BS-2 page 105: A.N. doshi FRN G/901 7500”. From all these papers, it can be said that name used as A.N. Doshi. The assessee objected before Assessing officer to consider A.N. Doshi as Ashish Doshi only. The Assessing Officer simply presumed A.N. Doshi to be as assessee which is nothing but a guess work and assumption only. The strong suspicion cannot take place of legal proof. The assessee specifically submitted that the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 11 seized document which is not in the name of assessee nor signed by party specially found from the premises of unconnected person are in the nature of dumb document having no evidentiary value and cannot be a basis of addition of undisclosed income. 10. On the addition of Rs. 70.00 lacs on protective basis, the assessee submitted that diary inventorised as BS-28 contained clearly the name of Ashok Doshi. It contains some figure in coded language. As per Aagam Vadecha for flat No. A-501, even during recording the statement of Aagam Vadecha, he has not mentioned anything which can create any suspicion in the mind of Assessing Officer to treat the Ashok Doshi as Ashesh Doshi. Notice under Section 133(6) of the Act was issued to Param Properties for seeking clarification on AD or Ashok Doshi but no response was made by Param Properties. No summon under Section 131 of the Act was issued by assessing officer. The assessee submitted that the Assessing Officer made addition without any basis. Such loose sheet or paper cannot be used for making addition against the assessee. The assessee also took objection that no opportunity of cross examination was allowed to the assessee. 11. The ld. CIT(A) after considering the submission of assessee and the contents of assessment order deleted all the three additions made by Assessing officer. On first addition of Rs. 55.00 lacs, the ld. CIT(A) held that the Assessing Officer made this addition by taking a view that the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 12 assessee received this money for development of land. During the course of search on Param Properties, MOU was found, which was seized as Annexure-BS-2. The said MOU is regarding agricultural land admeasuring 28328 square meters at village Jothan, Taluka- Olpad, District-Surat. As per the contents of MOU, the assessee has 36% of share, thus the share of assessee comes to Rs. 2.25 crores (36% of Rs. 6.25 crores). The assessee arrived at this figure on the basis of 4% share of Param Properties for which they paid Rs. 25.00 lacs. Accordingly, the total value of development of land as per MOU was arrived at Rs. 6.25 crores. The assessee has shown the value of this land in his books of account of Rs. 5.70 crores, accordingly, the difference of Rs. 55.00 lacs (Rs. 6.25 crores minus (–) Rs. 5.70 crores) was added. The ld. CIT(A) recorded that before him, the assesse submitted that MOU was found from the premises of third party, is not signed by any one. The Assessing officer has not placed a complete MOU but part of it was relied in the assessment order. The Assessing Officer also referred the statement of Shri Pravin H. Shah who himself admitted that Rs. 50.00 lacs paid by him for development of land, was received back by him. Such fact shows that development of land was not materialised. The assessee also claimed that the land is still in his name and no activities or development took place till date, such fact also shows that MOU was not materialized. Statement of Shri Aagam IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 13 Vadecha who has 4% share in his statement stated that he has seen MOU for the first time. Such fact proved that so called MOU was not a valid document. The assessee explained that Aagam Vadecha stated that they have invested only Rs. 25.00 lacs but the Assessing Officer extrapolated the figure without any evidence. The figure of Rs. 55.00 lacs which has been added is not mentioned anywhere in the seized document. The ld. CIT(A) on the basis of his aforesaid observation, concluded that it is undisputed fact that the MOU was found at the premises of Param Properties is unsigned. No amount is written on the aforesaid MOU. The said MOU is not in the handwriting of assessee, thus, cannot be used against the assessee for making addition. Moreover, another partner Pravin H. Shah stated that he has already received back his investment of Rs. 50.00 lacs. Such fact supports the case of assessee that the land was purchased by him for Rs. 5.72 crores and still in his name. The land is agricultural land and no development activities took place till date. The MOU which has been relied by Assessing officer for making addition is nothing but a dumb document so far as the assessee is concerned. The ld. CIT(A) by referring the decision of Hon’ble Apex Court in Common Cause and Others Vs UOI in Writ Petition Civil Appeal No. 505 of 2015 and V.C. Shukla Vs UOI 1998 (3) SCC 410 and Hon’ble Gujarat High Court in CIT Vs. Mauli Kumar K. Shah (2008) 307 ITR 137 (Guj) and PCIT Vs Ajay Sundarbhai Patel IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 14 (2016) 69 taxmann.com 309 (Guj) held that the addition on the basis of dumb document is not justified. The assessee sought cross examination of Shri Aagam Vadecha which was not provided. The Hon’ble Supreme Court in Kishanchand Chellaram Vs CIT 125 ITR 713 held that in absence of cross examination of persons, whose statement was relied for making addition, cannot be sustained for the violation of principles of natural justice. The ld. CIT(A) further held that the Assessing Officer considered the total value including development of land to the extent of Rs. 6.25 crores, and after reducing the price of Rs. 5.70 crores shown by the assessee as per price in the sale deed. The Assessing Officer made addition of Rs. 55.00 lacs. The extrapolation on the contents written on the seized material is not permissible as has been held on a number of occasions by the Higher Judicial Authorities. The seized document should be read in totally and not in partial manner. Selective and partial reading of seized material is not permissible either by revenue or by assessee. The portion of unsigned MOU was not reproduced by the Assessing Officer in the assessment order. Figure of addition of Rs. 55.00 lacs are nowhere mentioned in the seized material. On the basis of aforesaid finding, the ld. CIT(A) deleted the entire addition of Rs. 55.00 lacs. 12. On the other addition of Rs. 80.00 lacs, made on substantive basis and addition of Rs. 70.00 lacs on protective basis, the ld. CIT(A) on IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 15 considering the submission of assessee and the contents of assessment order, held that the documents relied by the Assessing Officer for making these additions were not found at the premises of assessee but found from the premises of Param Properties which is a third party. Similarly, the documents are not in the handwriting of assessee, nor signed by any one. The assessee claimed that in these papers, flat No. G-901 and F-901 have been shown in the name of A.N. Doshi and linking of assessee (Ashesh Nanalal Doshi) is not justified. For flat No. A-501, the seized material clearly contents the name of Ashokbhai Doshi and not the name of assessee, therefore, the addition in his name is not justified. The assessee also stated that during the assessment, notice under Section 133(6) was issued to Param Properties but he has not responded. The Assessing Officer relied upon the dumb document. The ld. CIT(A) held that it is an undisputed fact that the documents relied upon for making additions were found from the third party. Such documents are not signed by any one, not in the writing of assessee. In the statement recorded under Section 132(4), Aagam Vadecha has not mentioned the name of assessee. Notice under Section 133(6) of the Act was issued to Param Properties during assessment but he has not turned up. Telephonic conversation and storage record cannot be made basis for making addition unless details of talk in is not on record. There is no statement either during the search or post search enquiry or IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 16 during the statement which can be proved that the transaction in these papers relates to or pertains to assessee. The ld. CIT(A) by referring the decision of Hon’ble Apex Court in V.C. Shukla Vs UOI (supra)and the decision of Hon’ble Gujarat High Court in CIT Vs. Shri Mauli Kumar K. Shah (supra) held that analysis of seized document was not properly made at the time of assessment. When the name of assessee is not clearly mentioned on the seized document, the addition in the hand of assessee is not justified. On the basis of aforesaid finding, the ld. CIT(A) deleted both the addition of Rs. 80.00 lacs on substantive basis and Rs. 70.00 lacs on protective basis. Aggrieved by the order of ld. CIT(A), the revenue has filed present appeal before this Tribunal. 13. We have heard the submissions of the learned Commissioner of Income Tax-Departmental Representative (ld. CIT-DR) for the revenue and Shri Saurabh Soparkar, learned Senior Advocate assisted by Miss Urvashi Shodhan, Advocate (hereinafter called the ld. Sr. Counsel for the assessee). We have also gone through the orders of the lower authorities carefully. The ld. CIT-DR for the revenue submits that during the search operation at the premises of Param Properties, various incriminating documents were seized and inventorised. The seized document contains the entries in relation to assessee. The documents and the evidence seized during the course of search on Param Properties includes MOU. The said MOU in respect of development of a IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 17 big piece of land at village Jothan. The share of Param Properties in said property was 4%. The MOU also specified the share of other stake holder including the share of assessee at 36%. Param Properties made payment of Rs. 25.00 lacs in cash as per their share. On the basis of share of Param Properties, the actual value of entire property was worked out at Rs. 6.25 crores, since the assessee has shown value of land in his books at Rs. 5.70 crores, accordingly, a difference of amount of Rs. 55.00 lacs (Rs. 6.25 crores – Rs. 5.70 crores) was added. The ld. CIT(A) deleted the addition by accepting the submission of assessee that the addition is made on the basis of dumb document. The documents found in the form of MOU was not a dumb document, the said document clearly indicates the name of parties and their shares. In such transaction, no direct evidence is available rather the circumstances and the incriminating material found during the course of search clearly established that the assessee’s expenses is of Rs. 55.00 lacs. The ld. CIT-DR for the revenue prayed for restoring the order of Assessing Officer by reversing the order of ld. CIT(A). 14. On the additions of Rs. 80.00 lacs on substantive basis and Rs. 70.00 lacs on protective basis, the ld. CIT-DR for the revenue supported the order of Assessing Officer and submits that on the basis of seized material and the name written on the seized material, it was clearly proved that the assessee made investment in Flat No. A-501, G-901 & IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 18 F-901 developed by Enn Enn Corporation. The Ld. CIT-DR for the revenue submits that Param Properties, on which search was carried out, filed application before Settlement Commission and accepted all the transactions related with various parties and have paid tax thereon, thus, the application made by Aagam Vadecha, Proprietor of Param Properties is corroborated with the various incriminating documents found during the course of search action which is sufficient to corroborate the evidences found during the course of search. The ld CIT-DR for the revenue submits that from the seized material it was clearly established that the assessee has made investment with Enn Enn Corporation, thus, the finding of ld CIT(A) are liable to be reversed and that the finding of assessing officer be restored. 15. On the other hand, the ld. Sr. Counsel for the assessee supported the order of ld. CIT(A). Learned Sr. Counsel for the assessee submits that during the course of search action on Param Properties, one MOU was found and seized. The said MOU was in respect of agricultural land situated at village-Jothan. The Assessing Officer has scanned part of said MOU in the assessment order. The Assessing Officer has not appreciated the fact that the said MOU does not contain the signature of assessee or any other alleged partner. The said MOU was recovered from the third party. Statement of Aagam Vadecha of Param Properties was recorded who has shown his ignorance about the execution of said IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 19 MOU. Further the statement of Pravin H Shah, who is allegedly having 24% share in the MOU was also recorded under Section 131 on 12/10/2015. In the statement, Pravin H Shah clearly and categorically stated that the amount of Rs. 50.00 lacs paid by him on account of development charges, which have been received back by him in May, 2015. Thus, from the enquiry of Investigation Wing, it was clearly proved that the said MOU was never acted upon. The Assessing Officer worked out the total development charges on the basis of share of Param Properties shown at 4%, in the alleged MOU and worked out the figure of total investment at Rs. 6.25 crores and made addition of Rs. 55.00 lacs by subtracting the cost of agricultural land shown by assessee in his books of account. The said MOU is not an admissible evidence as it is neither signed nor written by assessee nor recovered from the possession of assessee, moreover, the investigation carried out by the Investigation Wing/Assessing Officer clearly suggest that the said MOU was never acted upon. Thus, the ld. CIT(A) appreciated the fact in a proper manner and deleted the addition. 16. On the addition of Rs. 80.00 lacs on account of substantive basis and addition of Rs. 70.00 lacs on protective basis, the ld. Sr. Counsel for the assessee submits that the Assessing Officer made addition on the basis of guess work. There is no direct evidence against the assessee to connect the assessee with the investment made for purchase of flat No. IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 20 A-501 and G-901. The search party recorded statement of Aagam Vadecha on 30/09/2015 in post search proceedings and Aagam Vadecha has not identified the assessee. During the assessment, the assessee asked for cross examination of Aagam Vadecha but he neither attended the proceedings nor sent any reply on his behalf. No independent investigation was carried out by Investigation Wing or by the Assessing Officer about the investment in Enn Enn Corporation about the purchase of flat No. A-501 or G-901. The assessee has not purchased any such flat hence there is no occasion for making such investment. Moreover, the evidence was found from the premises of third party and in absence of any corroborative evidence or independent evidence, such evidence cannot be used against the assessee. On the submission of assessee that the Param Properties have filed application before the Settlement Commission and have accepted the transaction. The ld. Sr. Counsel for the assessee relied upon the decision of Hon'ble Jurisdictional High Court in PCIT Vs Mukesh Keshavlal Patel in Tax Appeal No. 838 and 840 of 2019 dated 25/02/2020 wherein the Hon'ble High Court has held that declaration made by third party before the Settlement Commission is not binding on the assessee. No addition can be made in absence of independent material. To support such contention, the ld. Sr. Counsel for the assessee relied upon the following decisions: IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 21 (i) CIT Vs Dhiranlal Durlabhbhai Patel HUF, Tax Appeal No. 579 of 2009 dated 28/06/2010 (ii) Rajeev Tractors (P) Ltd. Vs ACIT (2022) 143 taxmann.com 330 (Ahmedabad Trib) (iii) Rajesh Babubhai Damania Vs ITO (2002) 122 Taxman 614 (Guj) and (iv) CIT Vs Mukesh Keshav Lal Patel ( Tax Appeal No. 838 & 840 of 2019 dated 25.02.2020. 17. We have considered the rival submissions of both the parties and with their active assistance has gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied by learned Senior Counsel for the assessee. Ground No. 1 relates to the deleting the addition of Rs. 55.00 lacks. We find that the assessing officer made this addition by taking view that during the search action of Param Property MOU was seized and as per said MOU the assessee was having share of 36% in the land and Param Property was having 4% share. The partner of Param Property in his statement, recorded during the search action stated that they made payment of Rs. 50.00 lacs in cash for their share. The assessing officer on the basis of share of Param Property worked out total cost of the Land at Survey No. 135, Jothan at R. 6.25 Crore. The Assessing Officer was of the view that in whole process, the partners of MOU fixed liabilities of each partner for future course of activities in respect of land. The actual value of the property was Rs. 6.25 crores. Sale deed of this land was executed in the name of assessee, who made the payment of Rs. 5.70 crores through cheques, thus the difference between the value shown in the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 22 MOU and as per the registered deed of Rs. 55.00 lacs (Rs. 6,25 Crore – 5,70 Crore = Rs. 55.00 lacs) and addition of Rs. 55.00 lacs under Section 69A. 18. The ld. CIT(A) deleted the addition by holding that the MOU is not acted upon. No amount is mentioned on the MOU. The ld. CIT(A) further held that the Assessing Officer considered the total value including development of land to the extent of Rs. 6.25 crores, and after reducing the price of Rs. 5.70 crores shown by the assessee as per price in the sale deed. The Assessing Officer made addition of Rs. 55.00 lacs. The extrapolation on the contents written on the seized material is not permissible as has been held on a number of occasions by the Higher Judicial Authorities. The seized document should be read in totally and not in partial manner. Selective and partial reading of seized material is not permissible either by revenue or by assessee. The portion of unsigned MOU was not reproduced by the Assessing Officer in the assessment order. Figure of addition of Rs. 55.00 lacs are nowhere mentioned in the seized material. On the basis of aforesaid finding, the ld. CIT(A) deleted the entire addition of Rs. 55.00 lacs. 19. We further find that in the impugned MOU, besides the name of assessee, the name of Praveen Chandra Hiralal Shah (PAN: ABIPS 4477 L) was also mentioned, and his share was shown at 24%. The case of Praveen Chandra Hiralal Shah was also centralised. The assessing IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 23 officer on the basis of said MOU made addition of Rs. 1.50 Crore, at the hand of Praveen Chandra Hiralal Shah, however, on appeal before ld CIT(A), the addition was deleted vide order dated 30.03.2021. And on further appeal by revenue before Tribunal the order of ld CIT(A) was upheld in IT(SS) No. 33/Srt/ 2021 dated 13/06/2022. 20. The ld CIT-DR for the revenue raised additional plea before us that Param Property, on whom search action was carried out has accepted all the transaction in the Petition filed before Income Tax Settlement Commission (ITSC) including on the transaction mentioned in the MOU found during search. We find that Hon’ble Gujarat High Court in PCIT Vs Mukesh Keshav Lal Patel (supra), while relying on the decision of Delhi High Court in CIT Vs Vineeta Gupta (2014) 46 taxmann.com 439 (Delhi) held that declaration made by another party before ITSC is not binding upon the assessee, therefore, no addition can be made in absence of independent material. Thus, in view of the afforesaid factual and legal discussions, we do not find any infirmity or illegality in the order passed by ld CIT(A), which we affirm with our aforesaid observation. In the result, ground No. 1 of the appeal of revenue is dismissed. 21. Ground No. 2 relates to deleting the addition of Rs. 80.00 lacs on substantive basis and ground No. 3 relates to deleting the addition of Rs. 70.00 lacs on protective basis. We find that the assessing officer IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 24 made these additions by taking view that that during the course of search action on Param Properties, the documents and the evidences seized reveals cash transaction in the name of assessee. The Assessing Officer made summary of such transaction which we have recorded in para -5 supra. On the basis of aforesaid summary, the Assessing Officer held the assesse had entered into cash transaction related to purchase and sale of flat No. A-501, G-901 and F-901 developed by Enn Enn Corporation Ltd. through Param Properties. On the basis of the above view the assessing officer issued show cause notice, the assessee in his reply denied any such transaction and stated that he never received any such payment nor ever booked any such flat. The also denied his role and disputed that the entry in the diary belongs to him. The Assessing Officer held that as per evidence gathered by the Investigation Wing, it is established beyond doubt that the documents seized from Param Properties relates to the assessee. It held that as per data gathered from i-Phone and contact back up of Aagam Vadecha, partner of Param Properties, the entries reflecting in the seized material in the name of assessee. The Assessing Officer referred the call details of assessee and took his view that the transaction reflecting in the flat No. F-901 and G-901 are clearly in the name of A.N. Doshi (Assessee), hence, the addition against transactions of these flats is made on substantive basis in the hand of assessee. The assessing officer further IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 25 held that seized diary inventorised as BS-28 in respect of FRN A-501 reflects the name of Ashokbhai Doshi in all probabilities is A.N. Doshi. Partner of the firm Param Property has advertently nor identified Ashok Doshi neither during search nor during assessment proceedings. Notice under Section 133(6) of the Act was issued to partner of Param Properties who neither responded nor filed any reply, hence addition of Rs. 70,00,000/- was made on protective basis in the hand of assessee against flat No. A-501 and on substantive basis in the hand of Param properties. 22. We find that before ld CIT(A) the assessee retreated similar contention as raised before assessing officer. The ld CIT(A) on considering such contentions held that the documents relied by the Assessing Officer for making these additions were not found at the premises of assessee but found from the premises of Param Properties which is a third party. Similarly, the documents are not in the handwriting of assessee, nor signed by any one. The assessee claimed that in these papers, flat No. G-901 and F-901 have been shown in the name of A.N. Doshi and linking of assessee (Ashesh Nanalal Doshi) is not justified. For flat No. A-501, the seized material clearly contents the name of Ashokbhai Doshi and not the name of assessee, therefore, the addition in his name is not justified. During assessment notice under Section 133(6) was issued to Param Properties but he has not responded. The Assessing Officer IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 26 relied upon the dumb document. The ld. CIT(A) was of the view that it is an undisputed fact that the documents relied upon for making additions were found from the third party. Such documents are not signed by any one, not in the writing of assessee. In the statement recorded under Section 132(4), Aagam Vadecha has not mentioned the name of assessee. Notice under Section 133(6) of the Act was issued to Param Properties during assessment but he has not turned up. Telephonic conversation and storage record cannot be made basis for making addition unless details of talk in is not on record. There is no statement either during the search or post search enquiry or during the statement which can be proved that the transaction in these papers relates to or pertains to assessee. The ld. CIT(A) by referring the decision of Hon’ble Apex Court in V.C. Shukla Vs UOI (supra)and the decision of Hon’ble Gujarat High Court in CIT Vs. Shri Mauli Kumar K. Shah (supra) held that analysis of seized document was not properly made at the time of assessment. When the name of assessee is not clearly mentioned on the seized document, the addition in the hand of assessee is not justified. On the basis of aforesaid finding, the ld. CIT(A) deleted both the addition of Rs. 80.00 lacs on substantive basis and Rs. 70.00 lacs on protective basis. 23. We also find merit in the submissions of learned senior Counsel for assessee that the Assessing Officer made addition on the basis of guess IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 27 work. There is no direct evidence against the assessee to connect the assessee with the investment made for purchase of flat No. A-501 and G-901. We find that search party recorded statement of Aagam Vadecha on 30/09/2015 in post search proceedings and Aagam Vadecha has not identified the assessee. In the course of assessment, the assessee asked for cross examination of Aagam Vadecha but he neither attended the proceedings nor sent any reply on his behalf. No independent investigation was carried out by Investigation Wing or by the Assessing Officer about the investment in Enn Enn Corporation about the purchase of flat No. A-501 or G-901. There is no evidence on record that the assessee has not purchased any such flat hence there is no occasion for making such investment with Enn Enn Corporation. Thus, in view of the afforesaid discussions, we do not find any justification to interfere with the findings of the ld CIT(A), which we affirm. In the result, ground No. 2&3 of the appeal is dismissed. 24. Ground No. 4 relates to deleting the addition on the grounds of not allowing cross examination by ignoring the evidence on record. Considering detailed discussions on ground No. 1 to 3, this ground of appeal does not require any specific adjudication. Ground No. 5 & 6 are general and needs no adjudication. 25. In the result, the appeal of revenue for AY 2015-16 in ITA No. 07/Srt/2021 is dismissed. IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 28 ITA No. 32/Srt/2021 for AY 2016-17 by Revenue. 26. The revenue has raised following grounds of appeal; (1) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in treating the incriminating documents seized during the search action u/s. 132 of the Act as dumb document and deleting the addition made of Rs.1,24,72,295/- on account of unexplained cash receipts. (2) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in treating the incriminating documents seized during the search action u/s. 132 of the Act as dumb documents and deleting the addition made of Rs.1,20,00,000/- on account of unexplained cash payments. (3) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the additions on the ground that the A.O. has not allowed the cross examination of the person from whom the incriminating documents was found and seized, ignoring the incriminating evidences on record and without affording an opportunity of cross examination in the appellate proceedings. (4) It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. (5) The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal.” 27. As recorded in the brief facts in appeal for AY 2015-16, in para- 5 (supra), the assessing officer while passing the assessment order for AY 2016-17 noted that during the course of search action on Param Properties, the documents and the evidences seized reveals cash transaction in the name of assessee. The Assessing Officer made summary of such transaction in the following manner: IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 29 SHRI ASHESH NANDLAL DOSHI PAYMENTS BY ASHESH N DOSHI RECEIPTS BY ASHESH N DOSHI F.Y. 2015-16 (A.Y. 2016-17) 22.08.15 2500000 FRN A- 501 BS-28 5 15.04.2015 5000000 FRN G- 901 cash mayor bhai BS- 1 47 24.08.15 2400000 FRN A- 501 BS-28 5 05.04.15 2500000 FRN F- 901 cash at home BS- 1 50 28.08.15 5500000 FRN A- 501 BS-28 5 07.04.15 1500000 FRN G- 901 cash BS- 1 49 31.08.15 1600000 FRN A- 501 BS-28 5 10.04.15 1000000 FRN G- 901 cash BS- 1 48 24.04.15 6100000 FRN G- 901 Hawala BS- 1 53 25.04.15 872295 FRN G- 901 clear BS- 1 54 Total 12000000 25.04.15 12472295 Particular (Transaction related to Flat No.) Amount (In Rs.) Nature FRN A-501 12000000 Payment FRN G-901 18472295 Receipt 28. On the basis of aforesaid summary, the Assessing Officer was of the view that the seized document reveals that the assesse had entered into cash transaction related to purchase and sale of flat No. A-501, G-901 and F-901 developed by Enn Enn Corporation Ltd. through Param Properties. The assessing officer made addition of Rs. 1.24 Crore on account of unexplained cash receipt on substantive basis and of Rs. 1.24 Crore on protective basis and Rs.1.20 Crore substantive basis in the hand of Param Property. On appeal before ld CIT(A) the both the additions in substantive as well as on protective basis was deleted with the same grounds and reasoning as of AY 2015-16. Considering the IT(SS)A No. 07& 32/Srt/2021 DCIT Vs Sh. Ashesh Nanalal Doshi AY 2015-16 & 2016-17 30 facts that we have upheld the order of ld CIT(A) on similar grounds of appeal on same set of facts, therefore, following the principal of consistency, the grounds of appeal for this assessment years raised by the revenue are also dismissed with similar observation. 29. In the result, the appeal of the revenue for AY 2016-17 is also dismissed. Order pronounced in the open court on 21August, 2023 in open court. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 21/08/2023 *Ranjan Copy to: 1. Assessee 2. Revenue 3. CIT 4. DR 5. Guard File By order Sr.Private Secretary, ITAT, Surat