ASST CIT CEN CIR 8(4), MUMBAI V. VIREN AHUJA, MUMBAI

ITA 4773/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0469 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Keywords: Search and seizure; Document seized; Corroborative evidences; Block assessment; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) I.T.A. NO. 4773 /MUM/20 1 5 (ASSESSMENT YEAR 20 1 0 - 11 ) ACIT CENTRAL CIRCLE - 8(4) 6 TH FLOOR, ROOM NO. 658 AAYAKAR BHAVAN M.K.ROAD MUMBAI - 400 020. VS. SHRI VIREN AHUJA 1, NEELKANTH ROAD NO. 6, CHEMBUR MUMBAI - 400 071. ( APPELLANT ) ( RESPONDENT ) I.T.A. NO. 4699/MUM/2015 (ASSESSMENT YEAR 2010 - 11) SHRI VIREN AHUJA 1, NEELKANTH ROAD NO. 6, CHEMBUR MUMBAI - 400 071. VS. ACIT CENTRAL CIRCLE - 8(4) 6 TH FLOOR, ROOM NO. 658 AAYAKAR BHAVAN M.K.ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AACPA4809M ASSESSEE BY SHRI J.P. BAIRAGRA DEPARTMENT BY SHRI S.PADMAJA DATE OF HEARING 10 .7 . 201 7 DATE OF PRONOUNCEMENT 31 . 7 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 10.6.2015 PASSED BY THE LEARNED CIT(A) - 47, MUMBAI AND THEY RELATE TO A.Y. 2010 - 11. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN DELETING THE AD DITION OF ` 22.05 CRORES RELATING TO ENTRIES FOUND IN A SEIZED DOCUMENT. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION OF ` 11 LAKHS SEIZED FROM THE ASSESSEE. SHRI VIREN AHUJA 2 3. FACTS RELATING TO THE ISSUES ARE STATED IN BRIEF . THE REVENUE CARRIED OUT SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT AT THE RESIDENCE AND BUSINESS PREMISES OF M/S. FLAMINGO/BERMACO GROUP ON 31.10.2009. THE ASSESSEE HEREIN IS ONE OF THE DIRECTOR S OF THE ABOVE SAID GROUP. DURING THE COURSE OF SEARCH , A SUM OF ` 12.18 LAKHS WAS FOUND AT THE RESIDENCE OF THE ASSESSEE, OUT OF WHICH ` 11 LAKHS WAS SEIZED. SEARCH OFFICIALS ALSO NOTICED THAT THE BACK SIDE OF PAGE NO. 28 IN THE DIARY SEIZED (ANNEXURE 2) CONTAINS CERTAIN NOTING , WHICH WERE MADE IN PENCIL BU T WAS ERASED SUBSEQUENTLY. HENCE THE E NTRIES WERE NOT LEGIBLE . H ENCE THE REVENUE REFERRED THE SAME TO THE FORENSIC LABORATORY LOCATED AT KALINA. THE FORENSIC LABORATORY REPORTED THAT THE N OTING HAVE BEEN MADE IN 4 COLUMNS. FIRST COLUMN CONTAINS CERTAIN N ARRATION AND REMAINING THREE COLUMNS CONTAIN NUMERIC NUMBERS. FORENSIC LABORATORY DECIPHERED NUMERIC NUMBERS TO SOME EXTENT. NUMERIC NUMBERS DECIPHERED BY THE FORENSIC LABORATORY HAS BEEN TABULATED AS UNDER BY THE ASSESSING OFFICER: - THE ASSESSING OFFICE R TOOK THE VIEW THAT THE NUMBERS MENTIONED SHOULD BE TAKEN AS IN LAKHS AND ACCORDINGLY ASSESSED THE AGGREGATE SUM OF ` 22.05 CRORES (7.81 + 9.51 + 4.73 CRORES) AS UNDISCLOSED INCOME OF THE ASSESSEE. 4. WITH REGARD TO CASH OF ` 11 LAKHS SEIZED FROM THE A SSESSEE, THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE COULD NOT CO R REL ATE CASH WITHDRAWALS MADE FROM COMPANYS ACCOUNT WITH THE PHYSICAL CASH FOUND. THE ASSESSEE HAD MENTIONED IN THE STATEMENT GIVEN U/S. 132(4) THAT THE CASH FOUND DURING THE COURS E OF SEARCH WAS PERTAINING TO THE COMPANY M/S. FLAMINGO DUTY FREE SHRI VIREN AHUJA 3 SHOPS PVT. LTD. ACCORDINGLY, THE ASSESSING OFFICER ASSESSED THE ABOVE SAID SUM OF ` 11 LAKHS AS UNDISCLOSED INCOME OF THE ASSESSEE. 5 . THE LEARNED CIT(A) DELETED THE ADDITION OF ` 22.05 CR ORES UPON BEING CONVINCED THAT THE IMPUGNED SEIZED DOCUMENT CANNOT BE THE BASIS FOR ARRIVING SUCH A CONCLUSION WITHOUT FURTHER CORROBORATION. HE ALSO NOTICED THAT THE MUMBAI BENCH OF THE ITAT HAS EXPRESSED THE VIEW IN ASSESSEES OWN CASE RELATING TO A.Y. 2006 - 07 TO 2008 - 09 THAT THE ASSESSING OFFICER CANNOT BE EXTRAPOLATE NUMBERS IN TO LAKHS AND CANNOT MAKE ADDITION PURELY ON THE BASIS OF SURMISES AND CONJUNCTURES. THE LEARNED CIT(A) ALSO TOOK SUPPORT OF THE DECISION RENDERED BY HON'BLE APEX COURT IN THE C ASE OF CIT VS. KALYANSUNDARAM ( 294 ITR 94 ). HOWEVER, THE LEARNED CIT(A) CONFIRMED THE ADDITION OF ` 11 LAKHS RELATING TO UNEXPLAINED CASH. AGGRIEVED BY THE ORDER PASSED BY THE LEARNED CIT(A), BOTH THE PARTIES HAVE FILED APPEALS ON THE ISSUES DECIDED AGAINS T EACH OF THEM. 6. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE SHALL FIRST TAKE UP THE APPEAL FILED BY THE REVENUE. WE NOTICE THAT THE ASSESSEE HAS MADE DETAILED SUBMISSIONS BEFORE THE LD CIT(A) WITH REGARD TO THE ADDITION OF RS.22.05 CRORES AN D HENCE HE HAS CALLED FOR A REMAND REPORT FROM THE AO. EVEN THOUGH THE AO HAS STOOD BY THE ASSESSMENT ORDER, YET THE LD CIT(A) WAS CONVINCED WITH THE CONTENTIONS OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT DISCUSSIONS MADE BY THE LD CIT(A): - THE APPELLANT IN HIS SUBMISSION DATED 20.12.13 HAD STATED THAT THE PAPER CONTAINS THE YEAR AS 2002 AND THE EXPLANATION OF THE APPELLANT IS QUOTED AS UNDER: 6. FROM THE ABOVE, IT IS CLEAR THAT THE APPELLANT HAD EXPLAINED THAT THE EN TRIES ON THE PAPER RELIED UPON BY THE ASSESSING OFFICER WERE 10 YEARS OLD AND OBVIOUSLY DID NOT PERTAIN TO THE PREVIOUS YEAR RELEVANT TO A. Y.2010 - 11. IT IS ALSO EVIDENT THAT WITHOUT PROPERLY ANALYZING THE PAPER AND FORENSIC REPORT, THE ASSESSING OFFICER H AS CONCLUDED THAT PAPER IS NOT VERY OLD THAN THE YEAR OF SEARCH. HOWEVER, ON ENLARGING THE IMAGE OF THE FORENSIC REPORT RELIED UPON BY THE ASSESSING OFFICER IT CAN BE SEEN 4HAT ALTHOUGH THE PAPER SHRI VIREN AHUJA 4 DOES NOT CONTAIN ANY DATE, IT CERTAINLY CONTAINS THE. INDICA TIVE YEAR I.E. 2002 WHICH IS ALMOST 10 YEARS OLD. THUS, THE EXPLANATION OFFERED. BY THE APPELLANT STANDS DULY CORROBORATED BY THE FORENSIC REPORT RELIED UPON BY THE ASSESSING OFFICER AND AS SUCH, THE CONCLUSION DRAWN BY THE ASSESSING OFFICER THAT 'THE PAPE R IS NOT VERY OLD THAN THE YEAR OF SEARCH' IS WRONG, CONTRARY TO THE MATERIAL AVAILABLE ON RECORD WITH THE ASSESSING OFFICER WHICH IS THE VERY BASIS OF THE ADDITION. IT MAY ALSO BE NOTED THAT '2002' IS APPEARING IN THE FIRST COLUMN - OF THE SEIZED PAPER AND IT CERTAINLY DOES NOT REPRESENT CO DED ELEMENT I.E. RUPEES IN 'LAKH S' AND THEREFORE, THE SAME IS NOT ADDED TO THE INCOME OF THE APPELLANT. THE ENTRY MADE IN THE SEIZED PAPER CERTAINLY INDICATES THAT IT REFERS TO THE 'PERIOD' I.E. PERTAINED TO THE YEAR 2002. THEREFORE, IT CAN ONLY BE LOGICALLY CONCLUDED THAT THE ENTRIES REFLECTED ON THE SEIZED MATERIAL CERTAINLY DID NOT PERTAIN TO THE PREVIOUS YEAR RELEVANT TO A. Y.2010 - 1 1 AND THEREFORE, 'THE ADDITION MADE ON THE BASIS OF THIS SEIZED MATERIAL IS REQUIRED TO BE DELETED. THE APPELLANT HAD ALSO STATED DURING THE COURSE OF THE APPEAL PROCEEDINGS THAT THE DATE OF 2002 IS DEFINITELY A N D UNDOUBTEDLY OUTSIDE THE PERIOD OF THE BLOCK ASSESSMENT OF 2004 - 05 TO 2010 - 11. VIDE LETTER DATED 24.10.2014 THE UNDERSIGNED HAD D IRECTED THE AO TO VERIFY THE TENACITY OF THE APPELLANT'S CONTENTION TO WHICH THE AO HAD SENT THE REMAND REPORT DT . 10.11.2014 WHICH IS QUOTED BELOW VERBATIM: 'THE ASSESSEE HAS PLACED HEAVY RELIANCE ON NOTING 2002 IN THE SCANNED COPY. THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE. THE NOTING DOES NOT PROVE THAT THE ENTRIES PERTAIN TO THE YEAR 2002. THE ASSESSEE HAS NOT PRODUCED ANY SUPPORTING EVIDENCE TO ESTABLISH THAT THE NOTINGS ARE PERTAINING TO YEAR 2002. NO SATISFACTORY EXPLANATION WITH SUPPORTING E VIDENCE WAS FILED BY THE ASSESSEE BEFORE THE AO. HENCE, THE AO HAS CORRECTLY MADE ADDITION OF RS. 22.05 CRORES AND I RELY ON FINDINGS OF THE AO GIVEN IN THE ASSESSMENT ORDER.' THE APPELLANT IN RESPONSE TO THE REMAND REPORT OF THE ASSESSING OFFICER VIDE LE TTER DT. 05.12.2014 HAD SUBMITTED AS UNDER : 10. IT IS SUBMITTED THAT THE APPELLANT HAS PLACED RELIANCE ON NOTING '2002' IN THE SCANNED COPY AND THE SAME H AS BEEN FURNISHED BY THE REVENUE. THE APPELLANT IS MERELY EXPLAINING THE CONTENTS THAT HAVE BEEN RET RIEVED BY THE DEPARTM ENT FROM FORENSIC DEPARTMENT. IT IS A DOCUMENT RELIED UPON BY THE DEPARTMENT FOR MAKING ADDITION BY RETRIEVING THE DELETED ENTRIES AND ON SUCH RETRIEVAL, IT IS NOTICED THAT THERE IS REFERENCE TO '2002' WHICH CLEARLY INDICATE THE YEAR T O WHICH THESE ENTRIES RELATE. SHRI VIREN AHUJA 5 11. THE ASSESSING OFFICER HAS STATED THAT THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE AND FURTHER ADDED THAT 'THE NOTING DOES NOT PROVE THAT THE ENTRIES PERTAIN TO THE YEAR 2002. THE ASSESSEE HAS NOT PRODUCED ANY SUPPOR TING EVIDENCE TO ESTABLISH THAT THE NOTINGS ARE PERTAINING TO YEAR 2002'. IT IS SUBMITTED THAT THE ASSESSING OFFICER HAS NOT ADDUCED ANY MATERIAL SHOW HOW AND WHY THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE. IT IS SUBMITTED THAT MERE DENIAL TO ACCEPT DOES NOT PROVE THE CASE OF THE ASSESSING OFFICER. INSTEAD OF REFUTING THE CONTENTION OF THE APPELLANT ON SOME COGENT MATERIAL, THE ASSESSING OFFICER HAS MERELY SHIFTED THE ONUS ON THE APPELLANT BY STATING THAT 'THE ASSESSEE HAS NOT PRODUCED ANY SUPPORTING EVIDENCE TO ESTABLISH THAT THE NOTINGS ARE PERTAINING TO YEAR 2002. NO SATISFACTORY EXPLANATION WITH SUPPORTING EVIDENCE WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER'. IT IS SUBMITTED THAT THE MENTION OF '2002' ON THE PAPER ITSELF ESTABLISHES TH AT ENTRIES RETRIEVED ON SAID SEIZED DOCUMENT PERTAIN TO THAT YEAR. IT IS SUBMITTED THAT EVEN SECTION 132(4A) STIPULATE THAT THE ENTRY CONTAINED IN DOCUMENT FOUND DURING THE SEARCH IS PRESUMED TO BE TRUE. IT IS SUBMITTED THAT THE ASSESSING OFFICER CANNOT BE PERMITTED TO PLACE PARTIAL RELIANCE ON THE DOCUMENT I.E. BELIEVING THE OTHER FIGURES STATED THEREIN TO BE INCOME FOR THE PURPOSE OF MAKING ADDITION AND AT THE SAME TIME THE FIGURE '2002' WHICH CLEARLY REFERS TO 'YEAR' TO BE INCORRECT. IT IS FURTHER SUBMI TTED THAT IF THE REASONS ADVANCED BY THE ASSESSING OFFICER IS ACCEPTED I.E. THERE IS NO EVIDENCE TO ESTABLISH THAT NOTINGS ARE PERTAINING TO YEAR '2002', THEN BY APPLYING SAME LOGIC NO ADDITION CAN BE MADE FOR THE YEAR UNDER CONSIDERATION AS THERE IS NO ME NTION OF YEAR TO ESTABLISH THAT IT PERTAINS TO PREVIOUS YEAR RELEVANT TO A.Y .2010 - 11 UNDER CONSIDERATION. IT IS SUBMITTED THAT THE APPELLANT COULD NOT EXPLAIN THIS ENTRY AS THE DOCUMENT COULD NOT BE READ WITH NORMAL COPY AND NOW IT IS LEGIBLE BECAUSE SERI OUS ATTEMPT WAS MADE SUBSEQUENTLY BY ENLARGING THE SAME. THIS IS EVIDENT FROM THE COPY OF THIS VERY SAME DOCUMENT REPRODUCED AT PAGE 3 OF THE ASSESSMENT ORDER. IT IS STRANGE THAT THE ASSESSING OFFICER IS DISBELIEVING THE CONTENTS OF THE VERY DOCUMENT THAT HAS BEEN RETRIEVED BY A GOVERNMENT AGENCY FOR FRIVOLOUS REASONS. IT IS SUBMITTED THAT THE FIGURE '2002' APPEARING ON THE PAGE CLEARLY REPRESENTS 'YEAR' AND THIS ESTABLISHES THE EXPLANATION GIVEN BY THE APPELLANT AT THE TIME OF RECORDING STATEMENT ON 19.1.2 010. 12. THE ASSESSING OFFICER HAS CONCLUDED THE REMAND REPORT BY STATING THAT 'HENCE, THE AO HAS CORRECTLY MADE ADDITION OF RS. 22.05 CRORES AND I RELY ON FINDINGS OF THE AO GIVEN IN THE ASSESSMENT ORDER'. THIS CLEARLY SHOWS THAT THE ASSESSING OFFICER, I N THE REMAND PROCEEDINGS, HAS RELIED UPON THE FINDINGS GIVEN BY HIS PREDECESSOR SHRI VIREN AHUJA 6 BECAUSE HE HAS NOT FOUND ANY MATERIAL TO PROVE CONTRARY TO THE CONTENTIONS RAISED BY THE APPELLANT. 13. IN THE CIRCUMSTANCES, IT IS HUMBLY SUBMITTED THAT THE REMAND REPORT SUBMITT ED BY THE ASSESSING OFFICER CONTAINS NO FRESH FINDINGS, NO PRODUCTION ANY MATERIAL THAT PROVE THE CONTENTIONS OF THE APPELLANT TO BE WRONG AND IT MERELY CONTAINS REITERATION OF THE FINDINGS AND REASONS GIVEN BY THE PREDECESSOR ASSESSING OFFICER. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER - WHICH IS ON ASSUMPTION I THAT 'APPELLANT ADMITTED THE FIGURES APPEARING ARE IN LAKHS' - IS UNSUSTAINABLE, BAD IN LAW AND HENCE, YOUR HONOUR MAY KINDLY DELETE THE SAME. 14. WITHOUT PREJUDICE, I T IS SUBMITTED THAT I T IS UNDISPUTED THAT THE IMPUGNED DOCUMENT DID NOT CONTAIN ANY ENTRIES WHEN IT WAS SEIZED. THE ENTRIES IN THE DOCUMENTS WERE ERASED BECAUSE IT DID NOT HAD ANY RELEVANCE AS IT MERELY CONTAINED ENTRIES PERTAINING TO PROPOSALS WHICH DID NOT MATERIALISED. IN V IEW OF PROVISIONS OF SECTION 132(4A) OF THE ACT, IT IS SUBMITTED THAT THE PAPER, AS FOUND, SHOULD BE TAKEN INTO ACCOUNT AND CONTENTS THEREIN SHOULD BE BELIEVED TO BE TRUE. THUS, WHEN THERE HAD BEEN NO ENTRIES FOUND IN THE DOCUMENT AS FOUND DURING THE COURS E OF SEIZURE, IT MUST BE READ AS IT APPEARED I.E. THE DOCUMENT WAS BLANK, ENTRIES THEREIN WERE ERASED BECAUSE IT HAD NO RELEVANCE. THUS, NO FURTHER MEANING SHOULD BE ASCRIBED THERETO. THE APPELLANT DURING THE COURSE OF APPELLATE HEARING HAD ALSO SUBMITTED THE COPY OF THE ORDER OF THE HONOURABLE MUMBAI ITAT DT 29.04.2015 IN THE CASE OF THE APPELLANT FOR THE AY 2006 - 07, 2007 - 68, 2008 - 09. THE HONOURABLE MUMBAI ITAT HAS DELETED THE ADDITIONS MADE BY THE AO MENTIONING AS UNDER: 'MERELY BECAUSE SOME FIGURES WER E FOUND TO BE WRITTEN IN SOME DOCUMENT, THE AO CANNOT EXTRAPOLATE 50 AS 50,00,000, 575 AS 575 LAKHS WITHOUT ANY CORROBORATIVE/ DEMONSTRATIVE EVIDENCE. WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE ADDITIONS MERELY ON THE BASIS OF SOME ILLOGICAL AND IRRELEV ANT ENTRY/JOTTING ON A PIECE OF PAPER CANNOT JUSTIFIED THE ACTIONS OF THE AO AND THE LEARNED CIT (A).' IT WAS ALSO HELD BY THE HONOURABLE MEMBERS IN THE ORDER THAT 'IT IS CLEAR THAT THE AO HAS MADE THE ADDITIONS PURELY ON THE BASIS OF SURMISES AND CONJECTU RES. WE THEREFORE CANNOT SUSTAIN SUCH ADDITIONS PURELY ON ASSUMPTION WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE BOUGHT ON RECORD.' 6.2 I ALSO RELY ON THE HONOURABLE APEX COURT DECISION IN THE CASE SHRI VIREN AHUJA 7 OF CIT VS KALYANASUNDARAM CASE AND HONOURABLE MUMBAI ITAT'S DECISION IN S.P.GOYAL CASE. 6.3 RESPECTFULLY FOLLOWING THE ABOVE MENTIONED HONOURABLE SUPREME COURT DECISION AND THE HONOURABLE JURISDICTIONAL MUMBAI ITAT DECISION IN S.P. GOYAL CASE AND ALSO IN THE APPELLANT'S OWN CASE FOR EARLIER YEARS GROUND OF APPEAL NO.3 IS DISPOSED AS UNDER: I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND ALSO THE REMAND REPORTS AO - THE DOCUMENTS ENCLOSED AS ANNEXURE BY THE APPELLANT. THE SEIZED PAGE IN THE DIARY DID NOT CONTAIN ANY ENTRIES AND WAS TOTALLY BLANK WHEN IT WA S SEIZED. ON, DECIPHERING OF THE DOCUMENT BY THE FORENSIC LABORATORY, THE YEAR 2002 MENTIONED THE SEIZED PAPER PROVES THAT IT IS BEYOND THE PERIOD OF THE BLOCK ASSESSMENT AND SO IT IS ESTABLISHED THAT THERE IS NO EVIDENCE THAT IT PERTAINS TO THE AY 2010 - 11 . THE FIGURES MENTIONED IN THE PAPER CANNOT BE EXTRAPOLATED INTO LACS AND ADDED TO THE INCOME OF THE APPELLANT PURELY BASED ON ASSUMPTIONS AND PRESUMPTIONS WITHOUT THERE BEING, ANY CORROBORATIVE EVIDENCE AND MAKING ADDITIONS MERELY ON THE BASIS OF SOME NOT LEGIBLE AND IRRELEVANT ENTRY/ JOTTING ON A PAGE OF A DIARY AND SO THE ADDITION OF RS.22,05 , 06,000/ - IS DELETED. THEREFORE, GROUND OF APPEAL NO.3 IS ALLOWED. 7. THE LD D.R SUBMITTED THAT THE ASSESSEE COULD NOT OFFER ANY VALID EXPLANATION TO THE NATUR E OF ENTRIES NOTED IN THE INCRIMINATING MATERIAL. HE SUBMITTED THAT THE BURDEN TO DISPROVE THE PRESUMPTION PLACED ON THE SEIZED DOCUMENTS U/S 132(4 A ) OF THE ACT LIES UPON THE ASSESSEE, WHICH THE ASSESSEE HAS FAILED TO DISCHARGE. THE LD D.R SUBMITTED THAT THE LD CIT(A) HAS DELETED THE ADDITION OF RS.22.05 CRORES BY PLACING RELIANCE ON THE ORDER PASSED BY THE TRIBUNAL. HOWEVER THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NARESH KUMAR AGGARWALA (331 ITR 510) AND THE DECISION REND ERED BY HONBLE BOMBAY HIGH COURT IN THE CASE OF SURENDRA M KHANDHAR VS. ACIT (321 ITR 254) STATE THAT THE ENTRIES NOTED IN THE INCRIMINATING DOCUMENT IS LIABLE TO BE ASSESSED AS INCOME OF THE ASSESSEE, IF THE ASSESSEE FAILS TO DISCHARGE THE PRESUMPTION BY OFFERING A PLAUSIBLE EXPLANATION. HE SUBMITTED THAT THE ENTRIES MADE IN THE SEIZED DOCUMENT WERE DECIPHERED BY THE FORENSIC LABORATORY. HOWEVER, HE FAIRLY ADMITTED THAT THE FORENSIC LABORATORY DID NOT COMMENT ANYTHING ABOUT THE AGE OF DOCUMENT. SHRI VIREN AHUJA 8 8. ON THE CONTRARY, THE LD A.R SUBMITTED THAT THE ENTRIES DECIPHERED BY THE FORENSIC LABORATORY CLEARLY INDICATE THAT THE ENTRIES WERE RELATED TO THE YEAR 2002. HE SUBMITTED THAT THE AO COULD NOT HAVE MADE THE ADDITIONS, IF ANY, DURING THE YEAR UNDER CONSIDE RATION. HE SUBMITTED THAT THE ENTRIES MIGHT HAVE BEEN MADE BY THE ASSESSEE WITH REGARD TO CERTAIN BUSINESS PROPOSAL AND THEY HAVE BEEN ERASED THEREAFTER AS THE PROPOSAL MIGHT NOT HAVE TAKEN PLACE . HE SUBMITTED THAT THE SAME IS A DUMB DOCUMENT WITH NO DAT E, NO NAME. EVEN IT IS NOT CLEAR AS THE ENTRIES WERE RELATED TO RECEIPTS OR TO PAYMENTS. THERE IS NO MENTION ABOUT THE NATURE OF TRANSACTIONS ALSO. HE FURTHER SUBMITTED THAT BOTH THE DECISIONS RELIED UPON BY THE LD D.R IS NOT APPLICABLE TO THE PRESENT C ASE, AS THEY HAVE BEEN RENDERED ON THE BASIS OF FACTS AVAILABLE IN THOSE CASES. HE FURTHER SUBMITTED THAT THE FACTS RELATING TO THE INCRIMINATING DOCUMENTS FOUND IN THE CASES BEFORE THE HONBLE DELHI AND BOMBAY HIGH COURTS WERE VERY CLEAR AND FURTHER THE ASSESSEES HAVE FAILED TO REBUT THE PRESUMPTION PLACED U/S 132(4A) OF THE ACT. HOWEVER, IN THE INSTANT CASE, THE FACTS RELATING TO THE ENTRIES WERE NOT CLEAR AND HENCE THE SAME IS A DUMB DOCUMENT AND NO INFERENCE COULD BE DRAWN THEREON WITHOUT ANY CORROBOR ATING MATERIAL. 9. THE LD A.R FURTHER SUBMITTED THAT THE ASSESSEE DID NOT ADMIT THAT THE ENTRIES SHOULD BE EXTRAPOLATED INTO LAKHS. HE SUBMITTED THAT THE HONBLE TRIBUNAL HAS HELD IN THE ASSESSEES OWN CASE RELATING TO AY 2006 - 07 TO 2008 - 09 THAT THE AO CANNOT EXTRAPOLATE THE ENTRIES INTO LAKHS WITHOUT ANY CORROBORATIVE MATERIAL AND FURTHER HE CANNOT MAKE ANY ADDITION ON THE BASIS OF SURMISES AND CONJECTURES. HE SUBMITTED THAT THE LD CIT(A) HAS RIGHTLY RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KALAYANASUNDRAM (294 ITR 49) AND THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF S.P.GOEL (82 ITD 85). 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. AS CONTENDED BY LD A.R, WE NOTICE THAT THE ENTRIES FOUND IN T HE INCRIMINATING MATERIAL DID NOT BRING OUT ANYTHING ABOUT ITS NATURE. SOME FIGURES HAVE BEEN NOTED IN A COLUMNAR FORM. IT IS NOT CLEAR AS TO WHETHER THEY PERTAINED TO RECEIPT OR SHRI VIREN AHUJA 9 PAYMENT. THE AO ALSO COULD NOT BRING ANY MATERIAL ON RECORD TO UNDERST AND THE MEANING AND NATURE OF ENTRIES. HENCE, IN THE ABSENCE OF ANY OTHER CORROBORATIVE MATERIAL, WE ARE OF THE VIEW THAT THE SAID DOCUMENT SHOULD ONLY BE CONSTRUED AS DUMB DOCUMENT. WE ALSO FIND NO REASON FOR EXTRAPOLATING THE FIGURES INTO LAKHS. HENCE THE ADDITION MADE BY THE AO HAS TO BE TAKEN AS AN ADDITION MADE ON SURMISES AND CONJECTURES, WHICH IS LIABLE TO BE DELETED. WE NOTICE THAT THE CO - ORDINATE BENCH OF TRIBUNAL HAS ALSO TAKEN AN IDENTICAL VIEW IN THE ASSESSEES OWN CASE IN THE ORDER DATED 29 - 04 - 2015 PASSED IN ITA NO.3890/MUM/2013 AND OTHERS RELATING TO AY 2006 - 07 TO 2008 - 09. WE NOTICE THAT THE ASSESSEE HAS GIVEN DETAILED EXPLANATIONS BEFORE THE LD CIT(A) AND HENCE THE LD CIT(A) HAS DELETED THE ADDITION BY PLACING RELIANCE ON THE DECISIONS REF ERRED SUPRA. UNDER THESE SET OF FACTS, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE. ACCORDINGLY WE UPHOLD THE ORDER PASSED BY HIM ON THIS ISSUE. 11. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE ASSESSEE, W HEREIN THE ASSESSEE IS CONTESTING THE ADDITION OF RS.11.00 LAKHS, BEING THE CASH SEIZED BY THE DEPARTMENT. BEFORE THE SEARCH OFFICIALS, THE ASSESSEE SUBMITTED THAT THE CASH PERTAINS TO THE BUSINESS CONCERN NAMED FLEMINGO DUTY FREE SHOP. THE AO MADE THE A DDITION, SINCE THE ASSESSEE COULD NOT RECONCILE THE PHYSICAL CASH WITH CASH BALANCE AVAILABLE WITH THE ABOVE SAID CONCERN. BEFORE LD CIT(A), THE ASSESSEE FURNISHED COPIES OF PERSONAL CASH BOOK AND THE BOOK OF M/S FLEMINGO DUTY FREE SHOP. THE CASH BALANCE AVAILABLE IN THE PERSONAL CASH BOOK WAS RS.7.33 LAKHS AND THE CASH BALANCE AVAILABLE WITH THE BOOK OF THE ABOVE SAID BUSINESS CONCERN WAS RS.3.80 LAKHS. THE AGGREGATE AMOUNT HAS EXCEEDED THE SEIZED CASH OF RS.11.00 LAKHS. ACCORDINGLY THE ASSESSEE PLEADE D BEFORE THE LD CIT(A) THAT THE ADDITION OF RS.11.00 LAKHS SHOULD BE DELETED. 12. THE LD CIT(A) CALLED FOR A REMAND REPORT FROM THE AO ON THIS POINT ALSO. THE AO, IN HIS REPORT, POINTED OUT THAT THE ASSESSEE HAS SUBMITTED IN HIS STATEMENT GIVEN U/S 132 (4) OF THE ACT THAT THE ENTIRE CASH BALANCE BELONGS TO THE BUSINESS CONCERN, M/S FLEMINGO DUTY FREE SHOP. HE FURTHER REPORTED THAT SHRI VIREN AHUJA 10 THE CASH BOOK OF THE ABOVE SAID BUSINESS CONCERN WAS NOT FOUND DURING THE COURSE OF SEARCH. FURTHER THE ABOVE SAID CONCERN HAS SHOWN CASH RECEIPTS FROM ANOTHER BUSINESS CONCERN, BUT THE ACCOUNT BOOKS OF THAT BUSINESS CONCERN WERE ALSO NOT FOUND DURING THE COURSE OF SEARCH. ACCORDINGLY THE AO REPORTED THAT THE EXPLANATIONS OF THE ASSESSEE SHOULD BE REJECTED. THE LD CIT(A) WAS CONVINCED WITH THE REPORT OF THE AO AND ACCORDINGLY CONFIRMED THE ADDITION. 13. WE HEARD THE PARTIES ON THIS ISSUE. IT IS A FACT THAT THE ASSESSEE HAS STATED THAT THE CASH BALANCE OF RS.12.18 LAKHS FOUND DURING THE COURSE OF SEARCH BELONGED TO THE BUSINESS CONCERN. HOWEVER, THE FACT REMAINS THAT THE PERSONAL CASH BOOK OF THE ASSESSEE WAS SHOWING CASH BALANCE OF RS.7.33 LAKHS. THE PERSONAL BALANCE SHEET AS ON 31.3.2009 ALSO SHOWS CASH BALANCE OF RS.9.61 LAKHS. THE ASSESSEE HAS PLACED A COPY OF HIS PERSONAL CASH BOOK AT PAGE 27 OF THE PAPER BOOK. THE BALANCE SHEET AS ON 31.3.2009 IS PLACED AT PAGE 33 OF THE PAPER BOOK. THE LD A.R SUBMITTED THAT THE RETURN OF INCOME FILED BY THE ASSESSEE FOR AY 2009 - 10 BY ENCLOSING THE BALANCE SHEET AS ON 31.3.2009 A ND THE CASH BALANCE HAS BEEN ACCEPTED BY THE AO. A PERUSAL OF CASH BOOK WOULD SHOW THAT THE ASSESSEE HAS RECEIVED A SUM OF RS.50,000/ - BY WAY OF LEASE RENT IN THE MONTH OF OCTOBER, 2009 AND NO OTHER RECEIPTS WAS SEEN RECORDED FROM 1.4.2009 TO 31.10.2009 . ON THE OTHER HAND, THE ASSESSEE HAS PAID MONEY TO VARIOUS BUSINESS CONCERNS AND ALSO WITHDRAW N MONEY OUT OF HIS OPENING CASH BALANCE. IT IS WELL SETTLED PROPOSITION THAT THE STATEMENT GIVEN U/S 132(4) CAN BE REBUTTED WITH EVIDENCES. EVEN THOUGH THE ASSES SEE HAS STATED THAT THE CASH BALANCE BELONG TO THE BUSINESS CONCERN, YET IN OUR CONSIDERED VIEW, THE ASSESSEE SHOULD BE GIVEN SET OFF OF PERSONAL CASH BALANCE AS THE PROBABILITY IS THAT THE CASH BALANCE FOUND AT THE RESIDENCE SHALL BE OUT OF HIS PERSONAL C ASH BALANCE ONLY. ACCORDINGLY WE DIRECT THE AO TO ALLOW SET OFF OF RS.7.33 LAKHS AGAINST THE ADDITION OF RS.11.00 LAKHS. 14. THE ASSESSEE HAS ALSO GIVEN COPY OF CASH LEDGER OF M/S FLEMINGO DUTY FREE SHOP. A CAREFUL PERUSAL OF THE SAME WOULD SHOW THA T THE SAME RECORDS SHRI VIREN AHUJA 11 CASH TRANSACTIONS OF ALL THE SHOPS LOCATED IN VARIOUS AIRPORTS LIKE KOLKATTA, CHENNAI, TRICHY ETC., MEANING THEREBY, IT DOES NOT PERTAIN TO BOMBAY BRANCH ALONE. NORMALLY THE DIRECTOR SHOULD BE KEEPING THE CASH BALANCE OF BOMBAY BRANCH O NLY FOR SAFE CUSTODY PURPOSE. THE S AID CASH BOOK SHOWS CASH BALANCE OF RS.4.36 LAKHS AS ON 31.10.2009, BUT THE SAME REPRESENTS CASH BALANCE AVAILABLE AS AT THE CLOSE OF BUSINESS ON THAT DATE. HENCE IT IS NOT CLEAR THAT THE ABOVE SAID CASH BALANCE PERTAIN S TO BOMBAY BRANCH ALONE OR IT WAS A COMBINED CASH BALANCE OF ALL BRANCHES. HENCE WE ARE OF THE VIEW THAT CLAIM OF THE ASSESSEE THAT THE ENTIRE CASH BALANCE OF THE BUSINESS CONCERN WAS AVAILABLE WITH HIM IS HARD TO BELIEVE. ACCORDINGLY WE ARE OF THE VIEW THAT THE CREDIT FOR ENTIRE CASH BALANCE CANNOT BE GIVEN. HOWEVER, THE POSSIBILITY OF KEEPING SOME PORTION OF CASH BELONGING TO BOMBAY BRANCH CANNOT BE RULED OUT. ACCORDINGLY WE ARE OF THE VIEW THAT AN ADHOC SUM OF RS.1.00 LAKH CAN BE GIVEN CREDIT AND TH E SAME WOULD MEET THE ENDS OF JUSTICE . 15. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE GIVEN CREDIT FOR RS.8.33 LAKHS AGAINST THE ADDITION OF RS.11.00 LAKHS MADE BY THE AO. ACCORDINGLY WE MODIFY THE ORDER PASSED BY LD CIT(A) A ND DIRECT THE AO TO REDUCE THE ADDITION TO THE EXTENT OF RS.8.33 LAKHS. 16. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 31 .7 .201 7. SD/ - SD/ - (SAN DEEP GOSAIN ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 31 / 7 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE R ESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI SHRI VIREN AHUJA 12 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI