A.C.I.T., Circle-1, Gwalior V. M/s Swastik Road Lines Pvt. Ltd., Gwalior

ITA 529/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0587 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 6 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-05-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 16-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI WASEEM ARSHAD
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Unexplained cash credit; Loose papers; Retrospective amendment; Corroborative evidences; Assessment record
• Section: 133A; 68; 145; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 529 AGRA/ 2012 ASSESSMENT YEAR 2009-10 ASSTT. COMMISSIONER OF INCOME TAX. VS. M/S. SW ASTIK ROAD LINES PVT. LTD. CIRCLE-1, GWALIOR 19A/115, OPP. PARKING NO.6 TRANSPORT NAGAR, A.B. ROAD, GWALIOR (PAN AAGCS2195B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHRI WASEEM ARSHAD SR. D.R. RESPONDENT BY : SHRI MAHESH AGARWAL, C.A. DATE OF HEARING : 14.05.2013 DATE OF PRONOUNCEMENT : 17.05.2013 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) GWALIOR DATED 31.08.2012 FOR A.Y. 2009-10, CHALLENG ING THE DELETION OF ADDITION OF RS.2,18,87,202/- MADE UNDER SECTION 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE CO MPANY IS ENGAGED IN THE BUSINESS OF TRANSPORTATION ON CONTRACT BASIS FOR VA RIOUS ENTITIES. RETURN OF ITA NO.529/AGRA/2012 A.Y.2009-10 2 INCOME WAS FILED ON 30.09.2009 DECLARING TOTAL INCO ME OF RS.81,06,454/-. A SURVEY OPERATION UNDER SECTION 133A OF THE ACT HAS ALSO BEEN CARRIED OUT AT ASSESSEES PREMISES ON 04.08.2011 TO 08.08.2011 WHE REBY THE ASSESSEE HAS OFFERED ADDITIONAL INCOME OF RS.8.5 CRORES FOR TAXA TION FOR A PERIOD OF FOUR YEARS OF F.Y. 2008-09 TO 2011-12. FOR MAKING THE ADDITION OF RS.2,18,87,202/-, THE A.O. OBSERVED THAT DURING THE SURVEY, THREE PAGES O F CASH BOOK FOR 31.03.2009 (P.B.19 TO 21) WERE FOUND AT THE PREMISES OF THE AS SESSEE. A PRINTOUT OF THEM WAS TAKEN FROM THE COMPUTER OF THE ASSESSEE. IN THE LAST COLUMN OF THE PAGE AN ENTRY AMOUNTING TO RS.2,18,87,202/- WAS FOUND DEBIT ED IN THE CASH BOOK. THE EXPLANATION OF THE ASSESSEE WAS CALLED FOR IN WHICH THE ASSESSEE EXPLAINED THAT THE SAME WAS LEFT BY THE ACCOUNTANT, WHO HAS BEEN L ATER ON ALSO FIRED FROM THE COMPANY. THE ACCOUNTANT WAS MAINTAINING A ROUGH SET OF ACCOUNTS ON THE COMPUTER TO LEARN THE ACCOUNTING ENTRY AND LEFT THI S SO CALLED ACCOUNT ON COMPUTER WHILE LEAVING THE COMPANY. THESE ACCOUNTS ARE NOT CONNECTED WITH THE ACTUAL OPERATIONS OF THE ASSESSEE AND ARE NOT F ACTUAL ACCOUNT. THE SAME IS NOT TALLYING WITH THE BALANCE SHEET OF THE ASSESSEE . THERE IS NO DEBIT OR CREDIT ENTRY OF THE LIKE AMOUNT. FINAL ACCOUNTS HAVE BEEN PREPARED BY THE ACCOUNTANT AS PER THE FINAL CASH BOOK DATED 31.03.2009 WHICH H AVE BEEN EXAMINED BY THE AUDITOR AND THERE IS NO SUCH ENTRY OF LIKE AMOUNT N OTED IN THE REGULAR BOOKS ITA NO.529/AGRA/2012 A.Y.2009-10 3 ACCOUNT. THE ASSESSEE, THEREFORE, DISOWNED THE ENTRY AND EXP LAINED IT TO BE INADVERTENT ENTRY NOTED BY THE ACCOUNTANT. IT WAS A LSO EXPLAINED THAT IN THE SEIZED PAPER IT APPEARS TO BE CASH ACCOUNT UNDER TH E HEAD PAYABLE WHICH IS NOT POSSIBLE AND WOULD NOT CONVEY ANY MEANING. IT IS PA TENTLY WRONG ENTRY AND DESERVES TO BE IGNORED. THE A.O. DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE IN VIEW OF SECTION 132(4A) OF THE I.T. ACT RAISING PRESUMPTION AGAINST THE ASSESSEE THAT THE CASH BOOK ENTRY BELONGED TO THE A SSESSEE AND CONTENTS OF THE SAME ARE TRUE. THE A.O. ALSO RELIED UPON SECTION 14 5 OF THE ACT AND SECTION 68 OF THE ACT FOR THE PURPOSE OF MAKING ADDITION AGAIN ST THE ASSESSEE AND ULTIMATELY A.O. HELD THAT ASSESSEE HAS FAILED TO EX PLAIN NATURE OF SOURCE OF ENTRY ON RS.2,18,87,202/- AND EXPLANATION OF THE ASSESSEE WAS NOT FOUND SATISFACTORY, THEREFORE, THE ADDITION WAS MADE UNDER SECTION 68 O F THE I.T. ACT. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LEAR NED CIT(A) AND SAME SUBMISSIONS WERE REITERATED. IT WAS SUBMITTED THAT A ROUGH/INCOMPLETE CASH ENTRY WAS FOUND WHICH ARE NOT TO BE BASIS FOR REJEC TION OF THE BOOK RESULT AND PRESUMPTION UNDER SECTION 132(4A) OF THE ACT SHOULD NOT BE DRAWN AGAINST THE ASSESSEE AND THAT FOR DEBIT ENTRY THE PROVISIONS OF SECTION 68 SHOULD NOT APPLY. IT WAS ALSO EXPLAINED THAT LOOSE PAPERS SHOULD NOT BE CONSIDERED AS BOOKS OF ITA NO.529/AGRA/2012 A.Y.2009-10 4 ACCOUNT AND THE ENTRY WAS NOT CORRECT, THEREFORE, T HE ADDITION IS WHOLLY UNJUSTIFIED. THE LEARNED CIT(A) CONSIDERING THE EXP LANATION OF THE ASSESSEE IN THE LIGHT OF THE SEIZED PAPER HELD THAT FOR DEBIT E NTRY NO ADDITION COULD BE MADE AND THAT NO CORROBORATIVE EVIDENCE WAS FOUND TO SUP PORT THE FINDINGS OF THE A.O, THEREFORE, THE ADDITION WAS DELETED. THE FINDI NGS OF LEARNED CIT(A) IN PARAS 4 & 5 ARE REPRODUCED AS UNDER:- 4. APPELLANTS SUBMISSIONS ALONG WITH ASSESSMENT O RDER HAVE BEEN CONSIDERED CAREFULLY. ASSESSMENT RECORDS ALONG WITH SURVEY FOLDER HAVE ALSO BEEN PERUSED. THE APPELLANT S EXPLANATION REGARDING OF RS.2,18,87,202/- HAS NOT BEEN ACCEPTED BY THE AO BY RELYING ON PRESUMPTION U/S 132(4A), PROVISIONS OF T HE SECTION 68 THAT THE APPELLANT HAS NOT SATISFYING EXPLAINED THE ENTRY FOUND IN ITS BOOKS OF ACCOUNTS AND BY APPLYING PROVISIONS OF SEC TION 145(3) WHEREBY APPELLANTS BOOKS OF ACCOUNTS HAVE BEEN REJ ECTED FOR THE REASON THAT THEY ARE NOT CORRECT OR COMPLETE. 4.1 THE LAST OF THE 3 PAGES OF THE CASH BOOK, AS F OUND DURING THE COURSE OF SURVEY OPERATIONS & THE RELEVA NT ENTRY, WHICH HAS BEEN TREATED AS UNEXPLAINED, IS REPRODUCED AS U NDER: --------------------------------------------------- --------------------------------------------------- ------------------------- DATE PARTICULARS VCH TYPE VCH NO. DEBIT CREDIT --------------------------------------------------- --------------------------------------------------- ---------------------------------- BROUGHT FORWARD 8,00,000.00 2,93,46,6 02.00 31.3.2009 TO (AS PER DETAILS) RECEIPT 17058 37,130.00 GWALIOR TRANSPORT ORGANISATION 11.590.00 CR. SURAT GOODS TRANSPORT PVT. LTD. 8,220 CR. SURAT GOODS TRANSPORT PVT. LTD. 17,320 C R. TO C-0715 CONTRA 2482 1,400.00 BY C-0715 CONTRA 5,50,000.00 BY ADVANCE A/C PAYMENT EAST 4, 577.00 BY C-0715 CONTRA 620-621 1,55,000.00 BY TRUCK REPAIR PAYMENT 30594 135.00 BY C-A CONTRA 73,50,465 .90 TO VIJAY BANK CONTRA 30598 5,870 TO HDFC BANK CONTRA 93599 14,7 00.00 BY FREIGHT PAYMENT PAYMENT 69518 5,315.00 ITA NO.529/AGRA/2012 A.Y.2009-10 5 BY FREIGHT PAYMENT PAYMENT 69517 18 ,000.00 TO VIJAY BANK CONTRA 30600 2,745.00 BY FREIGHT PAYMENT PAYMENT 69519 12, 415.00 TO HDFC-0360 CONTRA 942685 12, 415.00 BY STATIONARY PAYMENT 30532 5 32.00 TO C-0715 CONTRA 29,92,151.00 TO ADVANCE A/C RECIPET 8,300.00 TO 0981-HSY RECEIPT HEBRAN 1,000.00 BY MOTIJHEEL AUTO PAYMENT CASH 5,7 00.00 TO CT CONTRA 11,500.00 TO CT CONTRA 26,03,715.00 TO NAVEEN GOODS TRANSPORT CO. RECEIPT 17066 17,484.00 TO PANKAJ ROADLINES RECIPT 1703865 19,049.00 BY RENT PAYMENT PAYMENT DELHI 90,000. 00 BY RENT PAYMENT PAYMENT DELHI 90,000. 00 BY CASH RUDRAPUR PAYMENT DELHI 12,07,200.0 0 BY CASH MYSORE PAYMENT 13,55,000.00 TO CASH MUMBAI RECEIPT 1,48,300.0 0 BY (AS PER DETAILS) PAYMENT SMALL TRUCK 1,08, 10,662.00 ROUTE 1,35,18,697.83 CR CASH SMALL TRUCK 27,08,035.00 CR BY ROUTE PAYMENT EXTRA 50,80,000.00 BY CASH BADDI PAYMENT 1 1,75,800.00 BY KANKROLI PAYMENT 4,57,800.00 BY (AS PER DETAILS) PAYMENT 600. 00 SHARE APPLICATION MONEY 60,00,000.00 CR. SHARE CAPITAL 10,90,300.00 CR. SHARE PREMIUM 49,08,600.00 CR. TO PAYABLE RECEIPT 2,18,87,202.73 2,85,62,961.73 5,77,15,804.73 CLOSING BALANCE 2,91,52,843.00 5,77,15,804.43 5,77,15,804.00 FROM THE PERUSAL OF ABOVE IT IS SEEN THAT THE SAID ENTRY IS FOUND REFLECTED IN INCOMPLETE CASH BOOK AND IS DEFI NITELY NOT ACCORDING TO ANY ESTABLISHED ACCOUNTANCY PRINCIPLE. EVEN DURING THE COURSE OF SURVEY PROCEEDINGS WHEN THE APPELLANT HAS BEEN ASKED TO EXPLAIN THE SAID ENTRY, SHRI GAURAV JAIN MD OF THE APPELLANT COMPANY HAS CATEGORICALLY SUBMITTED IN TH E COURSE OF HIS STATEMENT RECORDED ON 08.08.2011 THAT HE IS UNABLE TO EXPLAIN IT AT THAT POINT OF TIME. HE HAS FURTHER SUBMITTED IN HIS STATEMENT ON 10.08.2011 THAT THE SAME SHALL BE EXPLAINED WHILE P RODUCING HIS BOOKS OF ACCOUNTS. IT IS ALSO ON RECORD THAT NO REG ULAR BOOKS OF ACCOUNTS FOR THE ASSESSMENT YEAR UNDER CONSIDERATIO N HAVE BEEN FOUND DURING THE COURSE OF THE SURVEY OPERATIONS CA RRIED IN THE YEAR 2011 AND THE SAME HAVE BEEN PRODUCED BEFORE TH E AO DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. HOWEVER, A VOLUNTARY DISCLOSURE OF RS.8.5 CRORES HAS BEEN MADE DURING TH E COURSE OF THE SURVEY OPERATION CARRIED OUT FROM 04.08.2011 TO 08. 08.2011 ON ITA NO.529/AGRA/2012 A.Y.2009-10 6 ACCOUNT OF DISCREPANCIES AND DEFICIENCIES FOUND AND NOTED AS PER VARIOUS LOOSE DOCUMENTS PERTAINING TO FREIGHT RECEI PTS, DRIVER EXPENSES, ENROUTE EXPENSES, SCRAP DISPOSAL, CROSS T RANSPORTATION AND SMALL ROUTE TRANSPORTATION RECEIPTS ETC. THE AP PELLANT, THROUGH ITS MD, HAS CATEGORICALLY STATED THE FACT OF MAINTE NANCE OF REGULAR BOOKS OF ACCOUNTS PERTAINING TO ITS BUSINESS AND TH EY HAVE BEEN DULY PRODUCED DURING THE COURSE OF ASSESSMENT PROCE EDINGS ALSO. AO HAS REJECTED THESE BOOKS OF ACCOUNTS SOLELY ON T HE GROUND THAT THEY WERE NOT FOUND DURING THE COURSE OF SURVEY PRO CEEDINGS AND DUE TO APPELLANTS FAILURE TO EXPLAIN THE SAID ENTR Y OF RS.2,18,87,202/-, THEY ARE NOT CORRECT OR TRUE. HOW EVER, NO SPECIFIC DEFECT HAS BEEN MENTIONED BY THE AO IN THESE BOOKS OF ACCOUNTS AS PRODUCED BEFORE HIM. THOUGH THE APPELLANTS CONTENT IONS THAT PRESUMPTION U/S 132(4A) IS NOT AVAILABLE TO THE AO IN RESPECT OF SURVEY OPERATIONS AND REGULAR ASSESSMENT ARE FOUND TO BE MISPLACED IN VIEW OF PROVISIONS OF SECTION 292C WHE REBY THE WORDS IN ANY PROCEEDINGS UNDER THIS ACT LEAVE TO SCOPE FOR ANY CONFUSION ON THIS ISSUE. FURTHER, THE WORDS OR SUR VEY U/S 133A HAVE BEEN ADDED WITH RETROSPECTIVE EFFECT FROM 01.0 6.2002 U/S 292C SO AS TO MAKE PRESUMPTION AVAILABLE TO THE AO IN RELATION TO SURVEY PROCEEDINGS U/S 133A ALSO. HAVING SAID THAT PRESUMPTION IS TO THE EXTENT THAT THE BOOKS OF ACCOUNTS, OTHER DOC UMENTS OR ASSETS FOUND DURING SEARCH AND SURVEY OPERATIONS BELONG TO THE APPELLANT. THE ONUS TO ESTABLISH THAT ANY UNDISCLOSED INCOME C AN BE ATTRIBUTED TO THE APPELLANT OUT OF SUCH EVIDENCES R EMAINS ON AO. A NEXUS SHOULD BE ESTABLISHED BY THE AO BETWEEN DOCUM ENT(S) AND THE UNDISCLOSED INCOME OF THE APPELLANT SINCE THE P RESUMPTION AVAILABLE U/S 132(4A) IS, IN ANY CASE, REBUTTABLE A ND THE APPELLANT CAN LEAD EVIDENCE TO SHOW THAT ENTRIES RECORDED IN THE DOCUMENTS FOUND FROM ITS PREMISES DO NOT RELATE TO ITS BUSINE SS. FURTHER, CONDITIONS OF THE SECTION 68 OF THE IT ACT ARE NOT FOUND APPLICABLE TO THE APPELLANTS CASE IN THAT SAID TRANSACTION HA S BEEN FOUND RECORDED IN AN INCOMPLETE PAGE OF CASH BOOK AND THE AMOUNT HAS BEEN FOUND DEBITED AND NOT CREDITED. A PERUSAL OF T HE SAID ENTRY MEANS THAT CASH OF RS.2,18,87,202/- HAS BEEN RECEIV ED FROM PAYABLE ACCOUNTS WHICH, IN MY CONSIDERED OPINION, I S NOT ACCORDING TO ANY FUNDAMENTAL ACCOUNTING PRINCIPLE S INCE NO ITA NO.529/AGRA/2012 A.Y.2009-10 7 AMOUNT CAN BE RECEIVED FROM ANY PAYABLE ACCOUNT WHE REBY THE APPELLANT IS, INFACT, REQUIRED TO MAKE PAYMENTS IN RESPECT THEREOF. NO NARRATION HAS ALSO BEEN FOUND MADE IN RESPECT OF THIS TRANSACTION. AO HAS NOT POINTED OUT NOR ANY CORROBO RATIVE SUPPORTING EVIDENCE FOUND DURING THE COURSE OF SURV EY OPERATIONS IN SUPPORT OF RECEIPT OR PAYMENT OF THIS AMOUNT. AO IS NOT FOUND JUSTIFIED IN REJECTING APPELLANTS AUDITED BOOKS OF ACCOUNTS, AS PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDING S, SOLELY ON THE REASON OF INEXPLAINABILITY OF THIS SINCE UNRELA TED AND AMBIGUOUS TRANSACTION. ACCORDINGLY, ADDITION OF RS. 2,18,87,202/- IN ABSENCE OF ANY ADVERSE MATERIAL RECORD IS NOT FU ND SUSTAINABLE AND HEREBY DELETED. 5. IN THE RESULT, THE APPEAL IS ALLOWED. 4. THE LEARNED D.R. RELIED UPON THE ORDER OF THE A. O. AND SUBMITTED THAT THE DOCUMENT WAS FOUND FROM THE POSSESSION OF THE ASSES SEE, THEREFORE, THE ADDITION IS JUSTIFIED. 5. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. PAPE R BOOK PAGE NOS. 19 TO 21 IS SEIZED PAPER WHICH CONTAINED NEGATIVE BALANCE AN D WAS FOUND AFTER TWO YEARS OF COMPLETION OF THE FILING OF THE RETURN OF INCOME AS PER LAW ON 30.09.2009 AND RETURN OF INCOME HAS BEEN ACCEPTED BY THE A.O. THE ENTRIES IN THE SEIZED PAPER DO NOT TALLY WITH THE REGULAR BOOKS OF ACCOUNT OF T HE ASSESSEE. PAPER BOOK PAGE NOS. 22 TO 25 IS THE COPY OF REGULAR CASH BOOK FOR 31.03.2009. THE A.O. ITA NO.529/AGRA/2012 A.Y.2009-10 8 CONSIDERED ONLY ONE ENTRY WITHOUT CONSIDERING WHOLE OF THE ISSUE. PAPER BOOK PAGE NO. 33 IS THE BALANCE SHEET ENDING 31.03.2009 DISCLOSING CASH IN HAND AT RS.2,10,609/-WHICH HAS TALLIED WITH THE REGULAR CAS H BOOK (PAPER BOOK 25). NO CREDIT ENTRY WAS FOUND IN THE SEIZED PAPER AND IT W AS DESCRIBED AS PAYABLE ONLY, THEREFORE, THE ADDITION UNDER SECTION 68 OF THE ACT WAS WHOLLY UNJUSTIFIED. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE FINDINGS OF AUTHORITIES BELOW AND MATERIAL AVAILABLE ON RECORD. WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF LEARNE D CIT(A) IN DELETING THE ADDITION. THE LEARNED CIT(A) REPRODUCED PART OF THE SEIZED PAPER RELEVANT TO THIS ISSUE IN THE APPELLATE ORDER IN PARA 4.1 WHIC H IS ALSO REPRODUCED ABOVE. THE LAST ENTRY CONTAINED TO PAYABLE RECEIPT RS.2,18,87 ,202.73/-. THIS IS DEBIT ENTRY. THE TOTAL CREDIT IN THE SEIZED PAPER IS APPR OXIMATELY 5.77 CRORES AND IF THE AMOUNT PAYABLE OF RS.2.18 CRORE IS REDUCED, STILL T HERE IS A CLOSING CASH BALANCE OF RS.2.91 CRORES. IT WOULD MAKE THAT EVEN AS PER S EIZED PAPER MORE CASH IS AVAILABLE TO THE ASSESSEE BUT DURING THE COURSE OF SURVEY NO ACTUAL CASH WAS FOUND CORROBORATING THE ABOVE ENTRIES. FOR APPLYING PROVISION OF SECTION 68 OF THE I.T. ACT, THERE SHOULD HAVE BEEN SOME CREDIT EN TRY IN THE BOOKS OF ACCOUNT FOR WHICH THE ASSESSEE OFFERS NO EXPLANATION REGARD ING NATURE AND SOURCE. IT ITA NO.529/AGRA/2012 A.Y.2009-10 9 BEING A DEBIT ENTRY, THERE WAS NO REASON TO APPLY P ROVISIONS OF SECTION 68 OF THE I.T. ACT AGAINST THE ASSESSEE. FURTHER ACCORDING TO THE ACCOUNTING PRINCIPLE WHEN THE AMOUNT PAYABLE IS MENTIONED AGAINST THE EN TRY, IT COULD NOT BE READ THAT ASSESSEE HAS RECEIVED ANY AMOUNT. THE ASSESSEE HAS EXPLAINED THAT IT WAS WRONG ENTRY MADE BY THE ACCOUNTANT ON ROUGH NOTING FOR HIS OWN PURPOSES. THE ASSESSEE FILED RETURN OF INCOME ON 30.09.2009 A BOUT TWO YEARS PRIOR TO THE SURVEY AND THE DOCUMENTS WERE ANNEXED WITH THE RETU RN OF INCOME SHOWING THERE WAS A CASH BALANCE AVAILABLE TO THE ASSESSEE ON 31.03.2009 AT RS.2,10,609/- (P.B.25) AND THE SAME TALLIED WITH TH E BALANCE SHEET (P.B.33) FILED WITH THE RETURN OF INCOME. THUS, THE ENTRIES NOTED IN THE SEIZED PAPER DO NOT TALLY WITH THE REGULAR BOOKS AND THE AUDIT REPO RT AVAILABLE TO THE ASSESSEE PRIOR TO THE SURVEY. THUS, THE CONTENTION OF THE AS SESSEE WAS PLAUSIBLE TO SHOW THAT THE ENTRY CONTAINED IN THE SEIZED PAPER IS NOT HING BUT A ROUGH ENTRY WHICH DOES NOT REFER TO ANY BUSINESS ACTIVITY OF THE ASSE SSEE. THE A.O. MERELY RAISING PRESUMPTION AGAINST THE ASSESSEE UNDER SECTION 132 (4A) OF THE I.T. ACT HAS MADE THE ADDITION AGAINST THE ASSESSEE WHICH IS REB UTTAL PRESUMPTION AND THE ASSESSEE HAS REBUTTED THE ENTRY RECORDED IN THE SEI ZED PAPER. THUS, THE PRESUMPTION CANNOT BE RAISED AGAINST THE ASSESSEE I N THIS CASE FOR THE PURPOSES OF MAKING THE ADDITION. THE FINDINGS OF THE A.O. AR E THUS, WHOLLY ILLOGICAL AND ITA NO.529/AGRA/2012 A.Y.2009-10 10 DO NOT LEAD TO ANYWHERE AND IS ALSO NOT SUPPORTED B Y ANY EVIDENCE TO SHOW THAT SUCH A HUGE AMOUNT WAS AVAILABLE TO THE ASSESSEE. 7. CONSIDERING THE ABOVE DISCUSSIONS, IN THE LIGHT OF THE SEIZED PAPER AND THE FINDINGS OF LEARNED CIT(A), WE ARE OF THE VIEW THAT THE ADDITION HAS BEEN RIGHTLY DELETED BY THE LEARNED CIT(A). WE DO NOT FI ND ANY MERIT IN THE DEPARTMENTAL APPEAL, SAME IS ACCORDINGLY DISMISSED. 8. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (A.L. GEHLOT) (BHAV NESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER AMIT/ ITA NO.529/AGRA/2012 A.Y.2009-10 11 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY