Kantilal L. Lunkad, Pune V. Deputy Commissioner of Income-tax,

ITA 726/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1041 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAVE
• Keywords: Reopening of assessment; Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Principle of natural justice; Opportunity of cross examination; Source of fund; Question of law; Validity of assessment; Assessment record; Onus to prove; Retraction; Reason to believe; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 147; 148; 132; 144; 11

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.725 & 726/PN/2014 '% % / ASSESSMENT YEARS : 2004-05 & 2005-06 SHRI KANTILAL L. LUNKAD, L/H SMT. PUSHPA K. LUNKAD, OFFICE NO.3 & 4, BLUE HILLS SOCIETY, NAGAR ROAD, YERAWADA, PUNE 411 006 PAN NO.ABDPL4920E . / APPELLANT V/S DCIT, RANGE-2, PUNE . / RESPONDENT / ASSESSEE BY : SHRI SUNIL PATHAK SHRI NIKHIL PATHAK / DEPARTMENT BY : SHRI HITENDRA NINAVE / ORDER PER R.K. PANDA, AM : 2. THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE COMMON ORDER DATED 30-12-2013 OF THE CIT(A)-II, P UNE RELATING TO ASSESSMENT YEARS 2004-05 AND 2005-06 RESPECTIVELY. S INCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN BOTH THE SE APPEALS, THEREFORE, THESE APPEALS WERE HEARD TOGETHER AND ARE B EING DISPOSED BY THIS COMMON ORDER. / DATE OF HEARING :08.09.2015 / DATE OF PRONOUNCEMENT:23.09.2015 2 ITA NOS.725 AND 726/PN/2014 3. FIRST WE TAKE UP ITA NO.725/PN/2013 FOR A.Y. 2004-05. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF REAL-ESTATE BROKER. THE ASS ESSEE FILED HIS RETURN OF INCOME ON 13-01-2005 DECLARING TOTAL INCOME OF RS.60,17,530/-. THE ASSESSMENT U/S.143(3) WAS COMPLETED ON 31-10- 2006 ASSESSING TOTAL INCOME OF RS.655,21,100/-. 4. A SEARCH AND SEIZURE ACTION U/S.132 WAS INITIATED IN TH E CASE OF ONE SHRI CHANDRAKANT KANKARIA, A REAL ESTATE BROKER O N 14-02- 2007 DURING WHICH CERTAIN DOCUMENTS BELONGING TO THE ASS ESSEE WERE SEIZED. PROCEEDINGS WERE INITIATED U/S.153C IN RESPONSE TO WHICH THE ASSESSEE FILED HIS RETURN OF INCOME ON 17-11-2008 DECLARING TOTAL INCOME OF RS.65,21,100/-. THE AO VIDE ORDER DATED 31-12- 2008 PASSED U/S.143(3) R.W.S. 153C DETERMINED THE INCOME AT RS.65,21,100/-. SUBSEQUENTLY, THE INVESTIGATION WING BANGALO RE FORWARDED CERTAIN INCRIMINATING DOCUMENTS SEIZED DURING THE COURSE OF SEARCH U/S.132 IN THE CASE OF SRI SOHANRAJ MEHTA, C&F AGENT OF RMD GUTKHA GROUP BANGALORE INDICATING THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.2 CRORES FROM SHRI SOHANRAJ MEHTA. 5. BASED ON THE INCRIMINATING DOCUMENTS THE ASSESSMENT FOR A.Y. 2004-05 WAS REOPENED BY THE AO AFTER RECORDING THE F OLLOWING REASONS: THERE WAS SEARCH ACTION U/S.132 OF I.T. ACT 1961 IN THE CASE OF SHRI SONHANRAJ MEHTA, C&F OF RMD GUTKHA GROUP CONDUCTED BY THE INVESTIGATION WING, BANGALORE ON 09-10-2009. CERTAI N INCRIMINATING DOCUMENTS WERE SEIZED DURING THE SEARCH. A PAPER SEIZE D AT PAGE NO.34 OF ANNEXURE A/M/S IS ON THE LETTER HEAD OF ALL INDIA SHWETAMBER STHANAKWADI JAIN CONFERENCE MAHILE SHAKHA, KARNATAK A & IS A SUMMARY OF THE UNACCOUNTED SALES CARRIED OUT BY SHRI SOHANRAJ MEHTA, C&F OF RMD GUTKHA FOR THE PERIOD APRIL 2003 TO AUGUST 2006. TH E LEFT HAND SIDE OF THIS PAPER HAS THE DETAILS OF SALES & THE RIGHT HAND SIDE OF THIS PAPER HAS THE DETAILS OF PAYMENTS MADE OUT OF SALE PROCEEDS. AS PE R THIS PAPER, AN 3 ITA NOS.725 AND 726/PN/2014 AMOUNT OF RS.4.50 CRORES WAS PAID TO SHRI KANTILAL LU NKAD. PAGE NO.41 & 42 OF ANNEXURE A/M/8 GIVES SIMILAR DETAILS FOR SOME OF THE AMOUNTS IN F.Y. 2003-04. ACCORDING TO WHICH, THERE IS A PAYMEN T OF RS.1 CRORES DURING THE MONTH OF JULY 2003 & THERE IS A PAYMENT O F RS. 1 CRORES DURING THE MONTH OF NOVEMBER 2003. THUS, THE TOTAL PAYMENT TO ASSESSEE DURING F.Y. 2003-04 IS RS. 2 CRORES. SIMILARLY, PAGE NO.45 O F ANNEXURE A/M/8 GIVES THE DETAILS FOR SOME OF THE MONTHS FOR F.Y. 2004- 05. ACCORDING TO THIS PAPER, THERE IS A PAYMENT OF RS.50,00,000/- TO T HE ASSESSEE IN JULY 2004 & RS. 2 CRORES IN THE MONTH OF AUGUST 2004 MAKING A TOTAL OF RS.2.50 CRORES IN F.Y. 2004-05. THUS, THE PAYMENTS AS INDICAT ED IN PAGES 41,42, & 45 TALLIED WITH THE PAYMENT AMOUNT ON PAGE NO.34 OF ANNEXURE A/M/S (RS. 2 CRS + RS.2.50 CRS, I.E. TOTAL RS.4.50 CRS.) 2. THE ASSESSMENT FOR A.Y. 2004-05 HAS BEEN COMPLETED U/ S.143(3) R.W.S.153C OF THE I.T. ACT. ON 31-12-2008. THE ABOV E MENTIONED RECEIPT OF RS.2 CRORES FOR F.Y. 2003-04 IN NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. I HAVE, THEREFORE, REASON TO BELIEVE T HAT INCOME OF RS. 2 CRORES HAS ESCAPED ASSESSMENT IN THIS YEAR ON ACCOUNT OF F AILURE OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NE CESSARY FOR HIS ASSESSMENT. 6. THE AO ISSUED NOTICE U/S.148 OF THE I.T. ACT WHICH WA S DULY SERVED ON THE ASSESSEE. SINCE THE ASSESSEE HAS EXPIRE D IN THE MEANTIME, I.E. ON 15-09-2011, THE LEGAL HEIRS OF THE ASSESSEE REQUESTED FOR COPY OF THE DOCUMENTS ON WHICH THE REASO NS FOR REOPENING HAVE BEEN BASED. THE ASSESSEE WAS GIVEN A C OPY OF THE REASONS FOR REOPENING AS WELL AS THE COPY OF THE SEIZED M ATERIALS ON 09-11-2011. THE ASSESSEE RAISED OBJECTIONS AGAINST THE REOPENING OF THE ASSESSMENT ON 15-12-2011 WHICH WAS DISPOSED OF BY THE AO BY PASSING A SPEAKING ORDER ON 23-12-2011. WHILE DISPOSING O F THE OBJECTIONS TO SUCH REOPENING, THE AO HAD DISCUSSED THE BRIEF FACTS OF THE CASE, ACCORDING TO WHICH DURING THE COURSE OF SEARCH ACTION U/S.132 OF THE I.T. ACT ON THE BUSINESS AND RESIDENTIAL P REMISES OF SHRI SOHANRAJ MEHTA C&F AGENT OF RMD GUTKHA GROUP, PU NE, THE PAPER IDENTIFIED AS PAGE 34 OF ANNEXURE A/M/08 ON THE LET TER HEAD OF INDIA SWETAMBAR STHANAKWASI JAIN CONFERENCE MAHILA SHAKHA, KARNATAKA WAS SEIZED. THE ABOVE PAPER CONTAINS THE SU MMARY OF THE UNACCOUNTED SALES CARRIED OUT BY SHRI SOHANRAJ MEHTA FO R THE PERIOD 4 ITA NOS.725 AND 726/PN/2014 FROM APRIL 2003 TO AUGUST 2006. THE LEFT HAND SIDE OF THIS PAPER HAS DETAILS OF SALES AND THE RIGHT HAND SIDE HAS DETAILS OF PAYM ENTS MADE OUT OF THE SALE PROCEEDS. AS PER THIS PAPER AN AMOUNT O F RS.4.50 CRORES WAS PAID TO SHRI KANTILAL LUNKAD. FURTHER, PAGES 4 1 AND 42 OF ANNEXURE A/M/08 GIVES SIMILAR DETAILS OF SOME OF THE MONTHS IN F.Y. 2003-04 ACCORDING TO WHICH THERE IS PAYMENT OF RS. 1 C RORE DURING THE MONTH OF JULY 2003 AND THERE IS A PAYMENT OF RS.1 CR ORE DURING THE MONTH OF NOVEMBER 2003, THUS THE TOTAL PAYMENT TO ASSESSEE DURING F.Y. 2003-04 IS RS.2 CRORES. 7. SIMILARLY PAGE 45 OF ANNEXURE A/M/08 GIVES THE DETAILS FOR SOME OF THE MONTHS FOR F.Y. 2004-05. ACCORDING TO THIS PA PER THERE IS PAYMENT OF RS.50 LAKHS TO THE ASSESSEE IN JULY 2004 AND RS.2 CRORES IN THE MONTH OF AUGUST 2004 MAKING A TOTAL OF RS.2.50 CROR ES IN F.Y. 2004-05. THUS PAYMENTS AS INDICATED IN PAGES 42 AND 45 TALLY WITH THE PAYMENT AMOUNT ON PAGE 34 OF ANNEXURE A/M/08. IN HIS LETTER OBJECTING TO THE REOPENING OF THE ASSESSMENT THE ASSES SEE HAS STATED THAT HE DOES NOT KNOW SHRI SOHANRAJ MEHTA OF BANGALORE AND CATEGORICALLY DENIED HAVING RECEIVED ANY AMOUNT FROM SHRI SOHANRAJ MEHTA AND ANY OF HIS ASSOCIATES. IT WAS STATED THAT T HERE IS NO BUSINESS CONNECTIONS WITH SHRI SOHANRAJ MEHTA. IT WAS A RGUED THAT THE DOCUMENT FOUND IN THE COURSE OF SEARCH ACTION ON S HRI SOHANRAJ MEHTA IS NOT IN THE HAND WRITING OF THE ASSESSEE AND T HEREFORE THE SAME CANNOT BE USED AS EVIDENCE AGAINST THE ASSESSEE FOR REOPENING THE ASSESSMENT. IT WAS SUBMITTED THAT IN THE SEIZED DO CUMENTS THE NAME SIMILAR TO THE NAME OF THE ASSESSEE IS APPEARING WITH OUT THE ADDRESS OR THE NAME OF THE CITY EXCEPT AT ONE PLACE TH E PLACE OF PUNE HAS BEEN WRITTEN AND THEREFORE THE PRESUMPTION THAT SH RI SOHANRAJ 5 ITA NOS.725 AND 726/PN/2014 MEHTA HAS PAID THE SUM TO THE ASSESSEE WHICH IS BECAUS E OF THE SIMILARLY OF THE NAME IS NOT CORRECT. 8. IT WAS SUBMITTED THAT THERE IS NO ACKNOWLEDGEMENT O F THE RECEIPT OF THE SAID SUM BY THE ASSESSEE EITHER BY SIGNING THE SAID DOCUMENT OR ISSUING A SEPARATE RECEIPT THERE HAS BEEN NO IDENTIFICATION OF THE ASSESSEE BY SHRI SOHANRAJ MEHTA BY A NY AUTHORITY. THE ASSESSEE HAS NOT BEEN SUMMONED EITHER BY THE INVESTIGATION WING OF BANGALORE OR INVESTIGATION WING, PUNE OR ANY AUTHORITY FROM INCOME-TAX DEPARTMENT. IT WAS ARGUED THA T THE SOURCE OF THE ALLEGED PAYMENTS OF SUCH HUGE SUM TO THE ASSESSE S AS UNACCOUNTED SALE PROCEEDS OF RMD GUTKHA BY SHRI SOHANR AJ MEHTA. THEREFORE, THE ADDITION OF THE SAID SUM OF RS.2.18 CRORES MU ST HAVE BEEN OFFERED IN THE HANDS OF SHRI SOHANRAJ MEHTA OR ANY ASSESSEE OF THE RMD GROUP. SINCE THE SOURCE IS TAXED, THE PAYMENT OUT OF THE SAME CANNOT BE TAXED. IT WAS FURTHER SUBMITTED THAT M ERE RECEIPT OF THE MONEY CANNOT BE TREATED AS INCOME. THE ASSESSEE ALSO ASKED FOR THE STATEMENT OF SHRI SOHANRAJ MEHTA AND ASKED FOR OPP ORTUNITY TO CROSS EXAMINE SHRI SOHANRAJ MEHTA. 9. HOWEVER, THE AO REJECTED THE ABOVE OBJECTIONS RAISE D BY THE ASSESSEE AGAINST THE REOPENING OF THE ASSESSMENT. WHILE DOING SO, HE NOTED THAT THE REOPENING OF THE ASSESSMENT HAS BEEN D ONE ON THE BASIS OF CERTAIN DOCUMENTS SEIZED DURING THE SEARCH ON T HE RESIDENTIAL AND BUSINESS PREMISES OF SHRI SOHANRAJ MEHTA OF BANGALORE AND THE NAME OF THE ASSESSEE APPEARS ON THE SAME DOCUMENT.TH E FOLLOWING ARE THE MEMBERS OF MANIK AND GIRIRAJ ASSOCIATES : 1. M/S. GIRIRAJ ASSOCIATES 2. SHRI GIRISH GADIYA 3. SHRI KANTILAL LUNKAD 6 ITA NOS.725 AND 726/PN/2014 4. M/S. D.P. DHARIWAL 5. SHRI PRAKASH R. DHARIWAL 6. SHRI RASIKLAL M. DHARIWAL 10. FURTHER ASSESSEE SHRI KANTILAL LUNKAD WAS A WELLKNOWN DEALER AND DEVELOPER IN PUNE CITY AND VERY CLOSE ASSOCIATE OF RA SIKLAL M. DHARIWAL. BOTH DHARIWAL AND LUNKAD HAVE BUSINESS AND P ERSONAL RELATIONSHIP. HE OBSERVED THAT MR.DHARIWAL AND THE ASSE SSEE ARE SWETAMBAR JAINS AND ARE VERY ACTIVE IN THE ASSOCIATION O F JAINS WHO ARE THE FOUNDER MEMBERS OF THE JITO (JAIN INTERNATIONAL TR ADE ORGANISATION). THEREFORE, THE CONTENTION OF THE ASSESSEE T HAT HE DID NOT HAVE ANY CONNECTION WITH RASIKLAL M. DHARIWAL OR HIS BU SINESS AND SHRI SOHANRAJ MEHTA IS DEVOID OF MERIT. FURTHER, THE NAME OF THE ASSESSEE HAS BEEN REPRESENTED MANY TIMES IN THE SEIZED DOCUMENTS. THEREFORE, ONCE IT IS MENTIONED THAT KANTILAL AS PUNE, IT IS C OMMON NOT TO MENTION THE COMPLETE DETAIL NAME EVERY TIME. FURT HER THE DOCUMENTS ARE NOT FOR PUBLIC CONSUMPTION AND CANNOT B E EXPECTED TO HAVE LENGTHY DETAILS OF THE IDENTITY OF THE PERSONS DESCRIB ED IN SUCH DOCUMENTS. THEREFORE, HE HELD THAT THE PERSON MENTIONED AS KANTILAL LUNKAD, PUNE, KANTILAL LUNKADJI, LUNKADJI, PUNE ARE ONE AND THE SAME. 11. AS REGARDS THE CONTENTION OF THE ASSESSEE THAT THE DOCUMEN TS IN QUESTION ARE NEITHER IN THE HANDWRITING OF THE ASSESSEE N OR ACKNOWLEDGEMENT WAS SIGNED BY THE ASSESSEE, THE AO OBS ERVED THAT IF A DOCUMENT CONTAINS DETAILS OF TRANSACTIONS RELATING TO TH E ASSESSEE ALONG WITH DATE AND AMOUNT, THE BURDEN OF PROOF LIES ON TH E ASSESSEE. THE ASSESSEE, THEREFORE, CANNOT DISOWN THE TRANSACTION S IMPLY BY SAYING THAT THE DOCUMENT IS NOT IN HIS HANDWRITING OR NO T ACKNOWLEDGED OR SIGNED BY HIM. HE HAS TO DISCHARGE THE ONUS BY 7 ITA NOS.725 AND 726/PN/2014 PROVING TO THE SATISFACTION THAT THE TRANSACTION DOES N OT BELONG TO HIM WHICH THE ASSESSEE HAS NOT BEEN ABLE TO PROVE IN THIS CASE. 12. AS REGARDS THE CONTENTION OF THE ASSESSEE THAT TH E AMOUNTS MENTIONED IN THE SEIZED DOCUMENT REPRESENT THE UNACCO UNTED SALE OF RMD GUTKHA GROUP AND THEREFORE THE SAME SHOULD HAVE B EEN ADDED IN THE INCOME OF THE RMD GROUP THE AO HELD THAT THE SAM E CANNOT BE COMMENTED UPON AS THEY ARE NOT ASSESSED UNDER HIM. S O FAR AS THE CONTENTION OF THE ASSESSEE THAT MERE RECEIPT OF MONEY C ANNOT BE TREATED AS INCOME, THE AO OBSERVED THAT EVERY MONEY R ECEIVED BY THE ASSESSE DURING THE YEAR HAS TO BE DISCLOSED TO THE INCO ME-TAX DEPARTMENT ALONG WITH SOURCE OF RECEIPT WHETHER IT IS TA XABLE OR NOT. SINCE THE ASSESSEE HAS NOT DISCLOSED TO THE DEPARTMENT THAT HE HAS RECEIVED THE ABOVE SUM OF MONEY IN THE RESPECTIVE ASSES SMENT YEAR, THEREFORE, HE REJECTED THE CONTENTION OF THE ASSESSEE. THE AO FURTHER NOTED THAT IN THE CIVIL CASES THE DECISION OF AN AUTHORITY IS BASED ON THE PREPONDERANCE OF PROBABILITIES AND CIRCUMSTANTIAL EVIDEN CES. IN THE INSTANT CASE, THE CIRCUMSTANTIAL EVIDENCE INDICATES TH AT THE SAID AMOUNTS WERE RECEIVED BY LATE SHRI KANTILAL LUNKAD AND THE SAME HAS NOT BEEN OFFERED FOR TAXATION. THEREFORE, HE HELD THAT INCOME TO THE EXTENT OF RS.2.50 CRORES HAS ESCAPED THE ASSESSMEN T FOR THE A.Y. 2004-05. HE FURTHER OBSERVED THAT SHRI SOHANRAJ MEHTA IN HIS STATEMENT RECORDED U/S.132 ON 09-10-2009 IN RESPONSE TO QUESTION NO.23 HAD CONFIRMED THE PAYMENTS MADE OF THE ABOVEMENTIO NED AMOUNT TO DIFFERENT PERSONS MENTIONED IN THE SEIZED DOCU MENTS. THE AO, THEREFORE, MADE ADDITION OF RS.2 CRORES TO THE TOTAL INC OME OF THE ASSESSEE U/S.69A AS UNEXPLAINED MONEY. SIMILAR ADDITION OF RS.2.50 CRORES MADE IN A.Y. 2005-06. 8 ITA NOS.725 AND 726/PN/2014 13. BEFORE CIT(A) THE ASSESSEE CHALLENGED THE VALIDITY OF TH E REASSESSMENT PROCEEDINGS AS WELL AS THE ADDITION MADE BY THE AO U/S.69A. SO FAR AS THE VALIDITY OF THE REASSESSMENT IS CON CERNED, IT WAS SUBMITTED THAT THE REOPENING OF THE ASSESSMENT BEY OND THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMEN T YEAR WAS WITHOUT JURISDICTION, ILLEGAL, BAD IN LAW AND WAS VOID AB-INITIO. I T WAS ARGUED THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF THE DOCUMENTS RECEIVED FROM INVESTIGATION WING OF BANGAL ORE WHICH WAS SEIZED DURING THE COURSE OF SEARCH ACTION CONDUCTED ON SHRI SOHANRAJ MEHTA. IN CASE OF SEARCH ACTION IF DOCUMENTS RELATING TO THE PERSON OTHER THAN THE SEARCHED PERSON ARE FOUND THE SAME ARE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTH ER PERSON AND THE ASSESSMENT OF INCOME OF SUCH OTHER PERSON MUST BE COMPLETED U/S.153C. HOWEVER, INSTEAD OF DOING THAT THE AO HAS INITIAT ED PROCEEDINGS U/S.148. THEREFORE, THE AO HAS NOT CORRECTLY FOLLOWE D THE PROCEDURE AS PER LAW. FURTHER, THE ASSESSMENTS HAVE B EEN REOPENED U/S.147 OF THE I.T. ACT BEYOND THE EXPIRY OF 4 YEARS OF ASSESSMENT. THE ASSESSEE ALSO ARGUED THAT THE COPY OF STATEMENT O F SHRI SOHANRAJ MEHTA WAS NOT PROVIDED NOR THE AO ALLOWED CROSS EXAMIN ATION OF SHRI SOHANRAJ MEHTA. 14. SO FAR AS THE ADDITION OF RS.2 CRORES MADE U/S.69A IS CONCERNED THE ASSESSEE REITERATED THE SAME ARGUMENTS AS MADE B EFORE THE AO. IT WAS ARGUED THAT THE ADDITION HAS BEEN BASED ON THE BASIS OF 4 LOOSE PAPERS WHEREIN THE AMOUNT OF RS.2 CRORES AND RS.2.5 CROR ES WERE NOTED AGAINST THE NAME OF THE ASSESSEE. APART FROM THIS NO EVIDENCE WAS FOUND TO SHOW THAT THE ASSESSEE HAD ACTUALLY RECE IVED THE SAID AMOUNT OR THAT THE ASSESSEE HAD ENTERED INTO ANY TRA NSACTION WITH THE DHARIWAL GROUP. IT WAS CONTENDED THAT THERE WAS NO BUSINESS 9 ITA NOS.725 AND 726/PN/2014 RELATION WITH DHARIWAL GROUP AND THEREFORE IN ABSENCE OF A NY DOCUMENTARY EVIDENCE TO SHOW THE SAME IT WOULD NOT BE PRESUMED THAT THE AMOUNTS REFLECTED IN THE LOOSE PAPERS WERE THE INCOME OF THE ASSESSEE FROM THE DHARIWAL GROUP. IT WAS ARGUED THAT THE AO HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT DHARIWAL GROUP HAD ADMITTED THAT AMOUNTS WERE PAID TO THE ASSESSEE. IT W AS ACCORDINGLY SUBMITTED THAT IN ABSENCE OF ANY EVIDENCE FOUND RELATING TO ANY TRANSACTION BETWEEN THE ASSESSEE AND DHARIWAL GROUP A ND IN ABSENCE OF ANY CORROBORATIVE EVIDENCE TO SHOW THAT THE ASSESSE E HAD ACTUALLY RECEIVED THE AMOUNT, NO ADDITION COULD BE MADE MERELY ON THE BASIS OF NOTINGS IN THE LOOSE PAPERS FOUND DURING THE SEARCH PR OCEEDINGS OF SHRI SOHANRAJ MEHTA. THE ASSESSEE FURTHER SUBMITTED TH AT EVEN IF IT IS ASSUMED THAT SHRI SOHANRAJ MEHTA HAS GIVEN THE AMOU NT UNDER CONSIDERATION TO THE ASSESSEE THE SAME CANNOT BECOME INCOME IN THE HANDS OF THE ASSESSEE. THE OWNERSHIP OF SUCH AMOUNT IS NOT PROVED BY THE AO. THE BURDEN LIES ON THE DEPARTMENT TO SHOW THAT ANY AMOUNT WHICH IT SEEKS TO TAX IS THE INCOME IN THE HANDS OF THE ASSESSEE. RELYING ON VARIOUS DECISIONS, IT WAS ARGUED THA T ADDITION U/S.69A CAN BE MADE ONLY IF THE CONDITIONS CONTAINED THER EIN ARE FULFILLED. SINCE NO MONEY IS FOUND FROM THE POSSESSION OF THE AS SESSEE AND THE ADDITION MADE IS ONLY BASED ON INFERENCE DRAWN, THEREFORE, NO ADDITION CAN BE MADE U/S.69A OF THE I.T. ACT. 15. HOWEVER, THE LD.CIT(A) WAS NOT SATISFIED WITH THE ARGU MENTS ADVANCED BY THE ASSESSEE. SO FAR AS THE ARGUMENT OF T HE ASSESSEE CHALLENGING THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AFT ER 4 YEARS AND NOT FOLLOWING THE PROVISIONS OF SECTION 153C ARE CONCER NED, THE LD.CIT(A) REJECTED THE SAME HOLDING THAT THE AO HAS VALIDL Y ISSUED NOTICE U/S.148 BEYOND 4 YEARS ON THE BASIS OF INFORMATION IN HIS 10 ITA NOS.725 AND 726/PN/2014 POSSESSION. THE AO HAD SUFFICIENT MATERIAL FROM WHICH HE COU LD FORM THE BELIEF THAT THE INCOME HAD ESCAPED ASSESSMENT AND THE BELIEF OF THE AO WAS HELD IN GOOD FAITH. FURTHER, THE AO HAD RECO RDED REASONS SHOWING DUE APPLICATION OF MIND BEFORE TAKING RECOURSE TO REASSESSMENT PROCEEDINGS. FURTHER, THE ASSESSES CASE HAD ALREADY BEEN ASSESSED TWICE, I.E. ONCE U/S.143(3) AND THEREAFTER U/ S.143(3) R..W.S. 153C OF THE I.T. ACT. IN THE INSTANT CASE, THE AO HAD INDEPENDENTLY APPLIED HIS MIND AND RECORDED THE REASONS BEFORE ISSUING THE NOTICE U/S.148 AND THEREFORE, THE SAME IS PER FECTLY IN ORDER. 16. SO FAR AS THE ADDITION U/S.69A IS CONCERNED THE LD.C IT(A) UPHELD THE ADDITION MADE BY THE AO ON THE GROUND THAT THE SEIZED DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION CARRIED OUT IN THE CASE OF SHRI SOHANRAJ MEHTA CO NTAIN THE DETAILS OF PAYMENTS OF UNACCOUNTED MONEY TO THE PERSONS WHOSE NAMES ARE APPEARING ON THE SAID DOCUMENTS. THE NAME O F THE ASSESSEE ALSO APPEARS ON THE SAID DOCUMENT. IT GIVES V ERY DETAILED AND MINUTE NOTINGS OF THE TRANSACTIONS ENTERED INTO BY T HE DHARIWAL GROUP THROUGH ITS BUSINESS LINE OF M/S. DHARIWAL INDUSTRIES LTD. FURTHER SHRI SOHANRAJ MEHTA IN HIS STATEMENT RECORDED U/S.132(4) HAS ADMITTED TO HAVE PAID UNACCOUNTED MONEY TO VARIOUS PERSONS NAMED IN THE SEIZED DOCUMENTS. THE ASSESSEE AND THE D HARIWAL GROUP ARE KNOWN AND REPUTED BUSINESS PERSONS IN THE S AID BUSINESS FIELD AND THE ASSESSEE HAD A LONG BUSINESS AND SOCIAL ASSO CIATION WITH DHARIWAL GROUP. SHRI SOHANRAJ MEHTA HAS ADMITTED TO HA VE WRITTEN THE SAID DOCUMENT IN HIS OWN HAND WRITING AND ALSO EXPLA INED THAT MOST OF THE PAGES HAVE BEEN HAND WRITTEN IN MARWADI LAN GUAGE MATCHING WITH THE STATEMENT AND THE WORDINGS ON THE SE IZED 11 ITA NOS.725 AND 726/PN/2014 DOCUMENTS. SHRI MEHTA HAD ALSO STATED REGARDING THE NO TINGS ON PAGE 34 AND OTHER DOCUMENTS THAT THE VARIOUS EXPENDIT URE INCURRED IN CONNECTION WITH THE BUSINESS WAS ALSO WRITTEN AND ALSO ADMITTED THAT THE MONEY SO RECEIVED HAD BEEN SENT TO HIS SETH FROM TIME TO TIME AND THE MONEY WAS HANDED OVER TO THE PERSONS AS PER THE DIRECTIONS OF SHRI RASIKLAL M. DHARIWAL AND HIS SON SHRI PRA KASH DHARIWAL WHOM HE REFERRED TO AS SETH. ACCORDING TO T HE LD.CIT(A) THE CONTENTS FOUND ON THE SEIZED DOCUMENTS AND PAPER S WHERE THE ASSESSEES NAME APPEAR RAISED A PRESUMPTION OF LEGALITY O F DOCUMENTS FOUND AND THAT WOULD MEAN THAT THEY CANNOT BE IGNORED TO ARRIVE AT A CONCLUSION. THE AUTHOR OF THE SAID PAPERS HAS ALREADY AD MITTED IN CLEAR TERMS THAT SAID DOCUMENT WAS HIS HAND WRITING AN D THE SAID PERSON IS ALSO ONE OF THE PARTIES TO THE TRANSACTION TH ROUGH WHOM THE PAYMENTS WERE MADE TO SEVERAL PERSONS. THEREFORE, THE SAID DOCUMENT HAS GREAT EVIDENTIARY VALUE AND THEREFORE THE AO HAS RIGHTLY MADE IT AS A BASIS FOR MAKING THE ADDITION DURING T HE ASSESSMENT PROCEEDINGS. 17. AS REGARDS THE CONTENTION THAT NO EVIDENCE WAS FOU ND TO SHOW THAT THE ASSESSEE HAS ACTUALLY RECEIVED THE SAID AMOUN T OR THAT THE ASSESSEE HAS ENTERED INTO ANY TRANSACTION WITH THE DH ARIWAL GROUP AND THAT THE AO HAS ASSUMED THE AMOUNTS REFLECTED IN T HE YEAR AS THE INCOME OF THE ASSESSEE IS CONCERNED THE LD.CIT(A) HELD THAT IN VIEW OF THE CLEAR NOTINGS AND ADMISSION OF ITS AUTHOR EXPLAIN ING EACH AND EVERY NOTING RECORDED ON THE SEIZED DOCUMENT AND EXPLAINING THE MODUS OPERANDI OF THE BUSINESS AND THE MANNER IN WHICH THE AMOUNTS WERE GIVEN TO THE PERSONS INCLUDING THE ASSESSE E CANNOT BE REGARDED AS A DUMB DOCUMENT AND THE SAME HAS RIGHTLY BEEN ACTED UPON BY THE AO. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE 12 ITA NOS.725 AND 726/PN/2014 ASSESSEE AND DISTINGUISHING THE VARIOUS DECISIONS CITED BEFORE HIM TH E LD.CIT(A) RELYING ON VARIOUS DECISIONS AND PROVISIONS OF SECT ION 110 OF THE EVIDENCE ACT UPHELD THE ADDITION MADE BY THE AO. 18. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1) IN THE CASE OF THE APPELLANT REASSESSMENT OF INCOME IS TAKEN UP ON THE BASIS OF DOCUMENTS SEIZED IN THE SEARCH ACTION UND ER SECTION 132 OF THE INCOME TAX ACT 1961 ON MR SOHANRAJ MEHTA, BANGA LORE. SEIZED DOCUMENTS HAVE BEEN HANDED OVER TO THE AO OF THE APP ELLANT. THEREFORE, THE ASSESSMENT OF INCOME OUGHT TO HAVE BEEN COMPLETED U NDER SECTION 153C OF THE I. T. ACT. ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED CONFIRMING THE ORDER PASSED B Y THE LEARNED AO UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I. T. ACT IN PURSUANCE OF THE INFORMATION AND DOCUMENTS RECEIVED IN THE COURSE OF SEARCH ACTION CARRIED OUT ON OTHER PARTY. THEREFORE, THE ASSESSMENT C OMPLETED BY THE LEANED AO UNDER SECTION 143(3) READ WITH SECTION 147 IS NOTHING BUT NULLITY AND NEEDS TO BE QUASHED. YOUR HONOUR IS REQUEST ED TO CONSIDER THE FACTS AND THE LEGAL POSITION AND QUASHED THE ASSESSMENT OR DER AND OBLIGE. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE CIT(A) ERRED CONFIRMING THE REOPENING OF THE ASSESSMENT BY THE LEARNED AO UNDER SECTION 147 OF THE I. T. ACT BEYOND THE EXP IRY OF 4 YEARS OF ASSESSMENT YEAR UNDER CONSIDERATION. THE ORDER PASSED UNDE R SECTION 143(3) READ WITH SECTION 147 IS WITHOUT THE JURISDICTI ON, ILLEGAL AND IS BAD IN LAW AND IS VOID AB-INITIO. THE APPELLANT HEREBY PRAYS THAT THE ASSESSMENT ORDER MAY PLEASE BE QUASHED. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE TH E HONOURABLE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 2,00 ,00,000/- MADE BY THE LEARNED AO WITHOUT APPRECIATING THE FACTS OF THE CASE IN THE PROPER PERSPECTIVE. THE APPELLANT HEREBY PRAYS THAT THE ADDI TION MAY PLEASE BE DELETED. 4) THE LEARNED AO HAS ERRED IN MAKING ADDITION OF RS. 2,00,00,000/- AS UNDISCLOSED INCOME OF THE APPELLANT WITHOUT APPRECI ATING THE FACT THAT THE AMOUNT, ASSUMING BUT NOT ADMITTING, TO HAVE BEEN RECEIVED BY THE APPELLANT CANNOT BE THE INCOME OF THE APPELLANT. TH E APPELLANT HEREBY PRAYS THAT THE ADDITION MAY PLEASE BE DELETED. 5) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE TH E HONOURABLE CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 2,00,00,0 00/- MADE BY THE LEARNED AO UNDER SECTION 69A OF THE INCOME TAX ACT A S 'UNEXPLAINED MONEY' WITHOUT APPRECIATING THE FACT THAT THE APPEL LANT IS NOT FOUND TO BE OWNER OF MONEY, BULLION, JEWELLERY, ETC.. THE APPELLANT HEREBY PRAYS THAT THE ADDITION MAY PLEASE BE DELETED. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE TH E HONOURABLE CIT(A) ERRED IN ASSUMING THE OWNERSHIP OF THE AMOUNT UNDER CONSIDERATION THAT OF THE APPELLANT WITHOUT ESTABLISHI NG THE SAME. IN ANY 13 ITA NOS.725 AND 726/PN/2014 CASE THE OWNERSHIP IS OF RASIKLAL M. DHARIWAL OF DHARIW AL INDUSTRIES LTD AND NOT THAT OF APPELLANT. THE APPELLANT HEREBY PRA YS THAT THE ADDITION MAY PLEASE BE DELETED. 7. THE APPELLANT HEREBY RESERVES THE RIGHT TO ADD, RA ISE OR DELETE ANY ADDITIONAL GROUND/GROUNDS BEFORE THE COMPLETION OF T HE HEARING. 19. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUB MITTED THAT HE IS NOT PRESSING GROUNDS OF APPEAL NO. 1 AND 2 CHALLENGIN G THE VALIDITY OF THE REASSESSMENT PROCEEDINGS FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION. ACCORDIN GLY, THE ABOVE 2 GROUNDS ARE DISMISSED AS NOT PRESSED. 20. SO FAR AS GROUND OF APPEAL NO.3 TO 6 ARE CONCERNED THEY RELATE TO THE ADDITION OF RS.2 CRORES U/S.69A OF THE I.T. ACT. THE LD. COUN SEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT ADDITION HAS BEEN MADE ON THE BASIS OF DOCUMENTS FOUND DURING THE COURSE OF SEA RCH IN THE PREMISES OF SHRI SOHANRAJ MEHTA, C&F AGENT OF RMD GUTKHA GROUP. THE ASSESSEE WAS NOT PROVIDED WITH A COPY OF THE STATE MENT RECORDED BY SHRI SOHANRAJ MEHTA NOR THE OPPORTUNITY TO CROSS E XAMINE SHRI MEHTA WAS ALLOWED TO THE ASSESSEE. THERE IS NO CORROB ORATIVE EVIDENCE TO PROVE THAT THE ASSESSEE IN FACT HAS RECEIVE D THE AMOUNT OF RS. 2 CRORES DURING THE YEAR. HE SUBMITTED THAT THE VA RIOUS ISSUES RAISED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDIN GS AND APPEAL PROCEEDINGS HAVE BEEN ADEQUATELY DISCUSSED BY THE TR IBUNAL IN AN IDENTICAL CASE IN THE CASE OF SHRI VINIT RANAWAT VS. ACIT V IDE ITA NO. 1105 AND 1106/PN/2013 ORDER DATED 12-06-2015. IN TH E SAID CASE ALSO ADDITIONS WERE MADE BASED ON THE SEIZED DOCUMENTS FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENTIAL AND BUSIN ESS PREMISES OF SHRI SOHANRAJ MEHTA, C&F AGENT OF RMD GUTKHA GROUP. THE CIT(A) DELETED THE ADDITION AND ON FURTHER APPEAL BY THE REVENUE THE TRIBUNAL DISMISSED THE APPEAL FILED BY THE REVENUE RELY ING ON 14 ITA NOS.725 AND 726/PN/2014 DECISIONS OF VARIOUS BENCHES OF THE TRIBUNAL WHERE SUCH AD DITIONS MADE ON THE BASIS OF SEIZED DOCUMENTS FROM SHRI SOHANRAJ MEHTA WERE DELETED. HE SUBMITTED THAT THIS BEING A COVERED MA TTER THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) SHOULD BE DELETED. 21. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT SIN CE LOOSE PAPERS WERE FOUND DURING THE COURSE OF SEARCH AND SEIZ URE ACTION IN THE CASE OF SHRI SOHANRAJ MEHTA WHICH CONTAIN THE PAYME NTS OF RS. 2 CRORES TO THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YE AR AND THEREFORE THE ASSESSEE CANNOT SAY THAT HE HAS NOT RE CEIVED THE MONEY. THE ASSESSEE HAS NOT PROVED BEYOND DOUBT THAT THE E NTRY SO RECORDED IS FALSE OR UNTRUE. SINCE THE ASSESSEE IS CLOSELY ASSOCIAT ED WITH THE DHARIWAL GROUP AND THE SEIZED PAPER CONTAINS THE PAYME NT OF RS. 2 CRORES TO THE ASESSEE AND SINCE THE AUTHOR OF THE DOC UMENT HAS ADMITTED TO HAVE MADE PAYMENTS TO VARIOUS PERSONS MEN TIONED IN THE SEIZED DOCUMENT AT THE INSTRUCTION OF HIS SETH, THEREFORE, THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) IS JUSTIFIED. THE REFORE, THE GROUNDS RAISED BY THE ASSESSEE BE DISMISSED. 22. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUBMITTED TH AT THE AHMEDABAD BENCH OF THE TRIBUNAL HAS ALREADY GIVEN A FINDING THA T SHRI SHRI SOHANRAJ MEHTA HAS RETRACTED FROM HIS STATEME NT. SAME HAS BEEN MENTIONED IN THE ORDER OF THE TRIBUNAL. THEREFOR E, THE ISSUE BEING A COVERED MATTER, THE ORDER OF THE CIT(A) BE SET A SIDE AND THE GROUNDS RAISED BY THE ASSESSEE BE ALLOWED. 23. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS 15 ITA NOS.725 AND 726/PN/2014 DECISIONS CITED BEFORE US. WE FIND DURING THE COURSE OF SEA RCH IN THE RESIDENTIAL CUM BUSINESS PREMISES OF SHRI SOHANRAJ MEHTA, C&F AGENT OF RMD GUTKHA GROUP AT BANGALORE CERTAIN DOCUME NTS WERE SEIZED VIZ., PAGE 34, 41, 42 AND 45 WHICH RECORDED THE SUMMARY OF THE UNACCOUNTED SALES CARRIED OUT BY SHRI SOHANRAJ MEH TA FOR THE RMD GUTKHA GROUP RELATED TO THE DHARIWAL GROUP OF PUNE . THE SAID SEIZED DOCUMENTS RECORDED THE SALES ON THE LEFT HAND SID E OF THE PAPER AND ON THE RIGHT HAND SIDE HAD THE DETAILS OF PAYM ENTS MADE OUT OF THE SAME SALE PROCEEDS TO VARIOUS PERSONS IN WHICH THE NAME OF THE ASSESSEE ALSO FIGURED. SINCE AN AMOUNT OF RS.2 CRORES WAS SHOWN TO HAVE BEEN PAID TO THE ASSESSEE THE AO, INVOKING THE PROVISIONS OF SECTION 69A, MADE THE ADDITION IN THE HANDS OF THE ASSESS EE. WE FIND THE LD.CIT(A) UPHELD THE ADDITION MADE BY THE AO. 24. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT THE ADDITION WAS BASED SOLELY ON THE NOTINGS MADE ON THE SE IZED DOCUMENTS FOUND FROM THE PREMISES OF SHRI SOHANRAJ MEHT A. NO CORROBORATIVE EVIDENCE WHATSOEVER WAS FOUND OR BROUGH T ON RECORD TO SHOW THAT THE ASSESSEE HAS INFACT RECEIVED THE MONEY. NEITHER THE STATEMENT OF SHRI SOHANRAJ MEHTA WAS GIVEN TO THE AS SESSEE NOR THE REQUEST OF THE ASSESSEE TO CROSS EXAMINE SHRI SOHANRAJ MEHTA WAS PROVIDED TO THE ASSESSEE. 25. WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE THE TRIB UNAL IN THE CASE OF SHRI VINIT RANAWAT (SUPRA) WHEREIN SIMILAR ADDITION WAS MADE BY THE AO WHICH WAS DELETED BY THE LD.CIT(A). ON FUR THER APPEAL THE TRIBUNAL CONSIDERING THE FINDINGS OF THE AO AND THE CIT(A) AS WELL AS THE SUBMISSIONS OF THE ASSESSEE DISMISSED THE A PPEAL FILED BY THE REVENUE BY OBSERVING AS UNDER : 16 ITA NOS.725 AND 726/PN/2014 37. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A ) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSI DERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND IN THE INSTANT CASE A SEARCH U/S.132 OF THE I.T. ACT WAS CONDUCTED AT THE PREMISES OF MR. MITT ULAL AT BANGALORE ON 09-10-2009 WHEREIN CERTAIN INCRIMINATING DOCUMENTS W ERE FOUND BELONGING TO THE DHARIWAL GROUP. THOSE DOCUMENTS WER E MAINTAINED BY ONE SHRI SOHAN RAJ MEHTA, C&F AGENT OF M/S. DHARIWA L INDUSTRIES LTD. IN HIS STATEMENT RECORDED U/S.132(4) MR. MEHTA HAD STATED THAT HE WAS EFFECTING UNACCOUNTED SALES OF GUTKHA OF DHARIWAL IND USTRIES LTD. AND THE SALE PROCEEDS WERE DEPLOYED AS PER THE INSTRUCTIONS OF S HRI RASIKLAL M. DHARIWAL AND HIS SON SHRI PRAKASH M. DHARIWAL. IN SOME OF THE SEIZED PAPERS NAME OF CERTAIN PERSONS ARE APPEARING WHICH CON TAIN THE NAME EITHER VINIT OR VINIT RANAWAT. ON THE BASIS OF THOSE NAMES AND ENTRIES AGAINST SAID NAMES, THE ASSESSING OFFICER DECIPHERED THE A MOUNT AS RS. 1 CRORE FOR A.Y. 2006-07 AND RS.20 CRORES FOR A.Y. 2007 -08 AS RECEIVED BY THE ASSESSEE SHRI VINIT RANAWAT. ALTHOUGH MR. MEHTA I N HIS STATEMENT RECORDED U/S.132(4) HAS STATED THAT THIS AMOUNT WAS PAID BY DHARIWAL INDUSTRIES TO SHRI VINIT RANAWAT THROUGH HIM, HOWEVER , THE STATEMENT APPEARS TO HAVE BEEN RETRACTED AS PER THE FINDINGS GIV EN BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF MUSTAF AMIYA H. SHEIKH. 38. IT IS THE CASE OF THE ASSESSING OFFICER THAT THE ASSESSE E WAS ASSOCIATED WITH DHARIWAL GROUP FOR A LONG TIME AND TH E ASSESSEES NAME APPEARING IN THE SEIZED DOCUMENT TALLY WITH THE REGU LAR BUSINESS ASSOCIATION WITH M/S. DHARIWAL INDUSTRIES LTD. AND IF TE ST OF HUMAN PROBABILITY IS APPLIED TO THE FACTS OF THE CASE IT BEC OMES EVIDENT THAT ASSESSEE WAS PART OF THE ENTIRE SCHEME OF UNACCOUNTED BUSI NESS CHAIN OF M/S. DHARIWAL INDUSTRIES LTD. THE ROLE OF THE ASSESSEE WA S THAT OF A CO- CONSPIRATOR. DURING THE COURSE OF SEARCH AND POST SEARC H PROCEEDINGS MR. SOHAN RAJ MEHTA HAD STATED THAT THE SEIZED BOOKS OF AC COUNT, LOOSE SHEETS AND OTHER DOCUMENTS, I.E. A/M/01 AND A/M/29 WERE ACT UALLY BELONGING TO THE C&F BUSINESS OF M/S. DHARIWAL INDUSTRIES LTD. HE HAD CATEGORICALLY STATED THAT PAGE 34 OF A/M/08 AND OTHE R RELATED DOCUMENTS WERE WRITTEN BY HIM AND MOST OF THE PAGES WERE IN MAR WADI LANGUAGE. THE STATEMENT OF MR. MEHTA CLEARLY EXPLAINS THE ENTIR E UNACCOUNTED BUSINESS CHAIN AND UNACCOUNTED BUSINESS TRANSACTIONS OF M/S. DHARIWAL INDUSTRIES LTD. MR. SOHAN RAJ MEHTA, THE AUTHOR OF TH E SEIZED DOCUMENT IN HIS STATEMENT U/S.132(4) HAS EXPLAINED TRUE IMPACT OF T HE CONTENTS OF THE SEIZED DOCUMENTS AND HAS ALSO ACKNOWLEDGED AND SUBSTANTIA TED THE FACT THAT THE SEIZED DOCUMENTS BELONG TO M/S. DHARIWAL INDU STRIES LTD. AND THEREFORE HIS STATEMENT HAS IMMENSE EVIDENTIARY VALUE. BASED ON THE ABOVE AND ON THE BASIS OF VARIOUS OTHER OBSERVATIONS I N THE ASSESSMENT ORDER THE ASSESSING OFFICER MADE ADDITION OF RS. 1 CRORE FOR A.Y. 2006-07 AND RS.20 CRORES FOR A.Y. 2007-08 AS UNDISCLOSED INCOME OF THE ASSESSEE WHICH HAS BEEN UPHELD BY THE CIT(A). 39. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT FROM THE VERY BEGINNING THE ASSESSEE WAS DENYING TO HAVE RECE IVED ANY SUCH AMOUNT FROM MR. SOHAN RAJ MEHTA. ACCORDING TO HIM, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF PAPERS F OUND IN THE PREMISES OF THIRD PARTY. FURTHER, THE ASSESSEE BEING A SMALL TAXPAYER, SOME EVIDENCE SHOULD HAVE BEEN FOUND FROM THE RESIDENC E OF THE ASSESSEE TO SHOW THAT IN FACT HE HAS RECEIVED SUCH HUGE A MOUNT. IT IS ALSO 17 ITA NOS.725 AND 726/PN/2014 THE CASE OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DEP ARTMENT ITSELF IS TREATING THIS AS SHORT TERM ADVANCE DURING THE COURSE OF SEARCH ACTION. SIMILARLY, THE STATEMENT OF MR. RASIKLAL M. DHARIWAL IS CONTRARY TO THE FINDING OF THE DEPARTMENT. IT IS ALSO THE SUBMISSION O F THE LD. COUNSEL FOR THE ASSESSEE THAT DIFFERENT BENCHES OF THE TRIBUNAL UND ER IDENTICAL FACTS AND CIRCUMSTANCES HAVE DELETED THE ADDITION MADE BY T HE ASSESSING OFFICER ON THE BASIS OF NOTINGS FOUND FROM THE PREMISES OF MR. SOHAN RAJ MEHTA. 40. WE FIND SOME FORCE IN THE SUBMISSION OF THE LD. COU NSEL FOR THE ASSESSEE. THE ASSESSEE IN THE INSTANT CASE IS AN INDIVIDUAL AND PROPRIETOR OF M/S. S. CHAINS WHICH IS ENGAGED IN THE BUSINESS OF JOB WORK IN GOLD ORNAMENTS. M/S. S.D.D. AGENCIES IS THE C&F AGENT OF M/ S. DHARIWAL INDUSTRIES LTD. IN THE STATE OF MAHARASHTRA FOR THEIR GUTKHA AND PAN MASALA BUSINESS. A SEARCH AND SEIZURE ACTION ON THE PRE MISES OF MR. MITTULAL AT BANGALORE WAS CARRIED ON 09-10-2009 WHER EIN DOCUMENTS MAINTAINED BY MR. SOHAN RAJ MEHTA, C&F AGENT OF M/S. DHARIWAL INDUSTRIES LTD WERE FOUND. THE ASSESSEES PREMISES WAS ALSO SEARCHED ON 20-01-2010, I.E. AFTER A PERIOD OF ABOUT 3 MONTHS AN D 10 DAYS. DURING THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE HE WAS QUE STIONED ABOUT THE DOCUMENTS FOUND FROM THE PREMISES OF MR. MITTULAL WHICH CONTAIN DOCUMENTS MAINTAINED BY MR. SOHAN RAJ MEHTA. THE ASSE SSEE AT THE TIME OF SEARCH HAD COMPLETELY DENIED TO HAVE RECEIVED ANY SUCH AMOUNT FROM MR. SOHAN RAJ MEHTA. RELEVANT QUESTION AND ANSWER OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH U/S.132(4) ARE AS UNDER (PAPER BOOK PAGE 41 AND 42) : Q.33 A SEARCH ACTION U/S.132 WAS CARRIED OUT ON 0-10 -2009 IN THE CASE OF SHRI MITTULAL BY INVESTIGATION WING OF BANGALORE. IN COURSE OF THE SEARCH ACTION CERTAIN INCRIMINATING DOCUMENTS RELATED TO SHRI SOHANRAJ MEHTA WERE FOUND IN CONNECTION WITH C&F AGENCY OF R MD GROUP OF PAN MASALA AND GUTKHA PRODUCTS. SHRI SOHANRAJ MEHTA WAS A LSO COVERED BY THE INVESTIGATION WING OF BANGALORE AND ON BEING CON FRONTED WITH THESE INCRIMINATING DOCUMENTS, SHRI SOHANRAJ STATED THAT TH E SAID PAGES INTERALIA CONTAIN THE NOTINGS REGARDING HANDING OVER OF RS.21.22 CRORES TO SHRI VINIT RANAWAT OF MUMBAI WHICH IS C&F AGENT OF R MD GROUP. SHRI SOHANRAJ ALSO STATED THAT THE SAID PAYMENTS IN CASH WERE MADE AS PER THE DIRECTION OF SHRI R.M. DHARIWAL AND SHRI PRAKASH DHA RIWAL. PLEASE STATE WHETHER THE SAID CASH OF RS.21.22 CR RECEIVED FROM SHR I SOHANRAJ MEHTA ON ACCOUNT OF RMD GROUP ARE REFLECTED IN YOUR BOOKS OF ACCOUNTS. A.33 I HAVE GONE THROUGH THE DOCUMENTS SHOWN TO ME AN D SAY THAT I HAVE NEVER RECEIVED THIS AMOUNT FROM SHRI SOHANRAJ M EHTA. HENCE, THE SAID PAYMENTS ARE NOT REFLECTED IN MY BOOKS OF ACCOUNT . Q.34 A SEARCH ACTION U/S.132 WAS CARRIED OUT ON 26-1- 2010 IN THE CASE OF DHARIWAL GROUP. IN THE COURSE OF STATEMENT RECORD ED U/S.132(4) SHRI PRAKASH DHARIWAL HAS EXPLICITLY STATED THAT THE ABOVE REFERRED PAYMENTS HAVE BEEN MADE BY SHRI SOHANRAJ MEHTA AT THE INSTRUC TION OF MY FATHER SHRI RASIKLAL DHARIWAL AS SHORT TERM ADVANCE. I AM SH OWING YOU THE RELEVANT PORTION OF THE SAID STATEMENT. PLEASE GO THR OUGH THE SAME AND STATE WHETHER THE PAYMENTS IN CASH RECEIVED FROM SOHAN RAJ MEHTA AT THE DISCRETION OF SHRI R.M. DHARIWAL ARE RECORDED IN YOU R BOOKS OF ACCOUNT. 18 ITA NOS.725 AND 726/PN/2014 A.34 I HAVE GONE THROUGH THE STATEMENT SHOWN TO ME OF SHRI PRAKASH DHARIWAL RECORDED ON 20-01-2010, HOWEVER, I HAVE NE VER RECORDED THE AMOUNT MENTIONED FROM SHRI SOHANRAJ MEHTA HENCE THE SAID PAYMENT ARE NOT RECORDED IN MY BOOKS. Q.35 THE STATEMENT OF SHRI SOHANRAJ MEHTA RECORDED U /S.132(4) ON 09- 10-2009 HAS BEEN CONFIRMED BY SHRI PRAKASH DHARIWAL I N THE STATEMENT RECORDED U/S.132(4) ON 20-01-2010. THUS, BOTH SHRI S OHANRAJ MEHTA AND SHRI PRAKASH R. DHARIWAL HAVE STATED ON OATH THAT PAY MENTS IN CASH OF RS.21.22 CR HAS BEEN MADE TO YOU AT THE DIRECTION OF SHRI RASIKLAL DHARIWAL BY SHRI SOHANRAJ MEHTA. AS THE STATEMENTS HA VE BEEN GIVEN BY THEM ON OATH, YOU ARE THEREFORE ONCE AGAIN REQUESTED TO GO THROUGH THE ABOVE REFERRED DOCUMENTS/STATEMENT AND STATE WHETHER T HE SAID CASH RECEIPTS ARE REFLECTED AND RECORDED IN YOUR REGULAR BOOKS OF ACCOUNTS. A.35 AS ALREADY STATED EARLIER, I HAVE NEVER RECEIVED ANY CASH FROM SOHANRAJ MEHTA AT THE INSTANT OF SHRI RASIKLAL DHARIW AL OR PRAKASH DHARIWAL. HENCE, NO SUCH CASH IS RECORDED IN MY REGU LAR BOOKS OF ACCOUNTS. 41. IT IS ALSO PERTINENT TO NOTE HERE THAT THE SEARC H PARTY DURING THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE HAS NOT FOU ND ANY EVIDENCE WHATSOEVER TO SUBSTANTIATE THAT THE ASSESSEE HAS IN FACT R ECEIVED ANY AMOUNT EITHER FROM MR. SOHAN RAJ MEHTA OR FROM MR/ RASIKLAL MANIKCHAND DHARIWAL/MR. PRAKASH M. DHARIWAL OR M/S. DHARIWAL IND USTRIES LTD. NO UNACCOUNTED ASSET, INVESTMENT OR LOOSE PAPER EVIDENCING SUCH HUGE RECEIPT HAS BEEN FOUND. FURTHER, WE FIND FROM THE QUERY RAI SED DURING THE COURSE OF SEARCH THAT THE AUTHORISED OFFICER HAS TREATED THE SAME AS SHORT TERM ADVANCE GIVEN TO THE ASSESSEE. THEREFORE, WE FIND SOME FORCE IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IF THE AMOUNT IS A SHORT TERM ADVANCE THE QUESTION OF THE SAME CONSTITUTING INC OME IN THE HANDS OF THE ASSESSEE DOES NOT ARISE. WE FIND FROM THE STATEMENT O F MR. SOHAN RAJ MEHTA RECORDED DURING THE COURSE OF SEARCH PROCEEDING S U/S.132 ON 09-10- 2009 WHERE MR. SOHAN RAJ MEHTA IN HIS ANSWER TO QUESTI ON NO.31 HAS REPLIED AS UNDER : Q.31 PLEASE STATE HOW THESE TRANSACTIONS ARE UNACCOUN TED? ANS: M/S DHARIWAL INDUSTRIES LTD HAS A MANUFACTURING UNIT IN SINGSANDRA, BANGALORE. OUR FIRM M/S MEHTA ASSOCIATES IS A SOLE C & F AGENT OF THE COMPANY FOR THEIR PRODUCT RMD GUTKA SINCE 1994-95. I HAVE VERY LONG BUSINESS AND PERSONAL ASSOCIATION WITH MR. RASKILAL MANIKC HAND DHARIWAL. HE CONSIDERS ME AS CLOSE CONFIDENT. AS PER THE REQUIREME NT OF THE DISTRIBUTORS, I PLACE ORDER FOR DISPATCH OF STOCK EITH ER WITH MR. PRASHANT BAFNA OR MR. JEEVAN SANCHETI, WHO ARE INCHARGE OF T HE FACTORY AT BANGALORE. TO SEND A DISPATCH WITH BILL OR WITHOUT BILL IS DECIDE D AS PER THEIR CHOICE AND THE STOCK OF GUTKA IS SENT BY MATADOR VAN TO THIS OFFICE. THE STOCK THAT COMES WITHOUT BILL IS IMMEDIATELY DISPATCHED TO OUR CU STOMERS. WE KEEP ONLY THE STOCK THAT COMES WITH BILL IN OUR OFFICE. TH E STOCK THAT COMES WITHOUT BILL IS DISPATCHED IMMEDIATELY TO OUR CUSTOMER S. I HAVE BEEN INVOLVED IN THESE TRANSACTIONS FOR LONGTIME AND I AM RESPONSIBLE FOR ALL THE DESPATCHES AND ALSO FOR THE COLLECTIONS FROM OUR CUSTOME RS; NORMALLY, WE EXTEND CREDIT OF 7-10 DAYS TO OUR CUSTOMERS. THEY REMI T CONSIDERATION FOR THE GUNTKA STOCK RECEIVED BY THEM. PERIODICALLY, I SE ND THESE COLLECTIONS TO MR. RASIKLAL OR HIS SON MR. PRASHANT AS PER THEIR INSTRUC TIONS. 19 ITA NOS.725 AND 726/PN/2014 42. SIMILARLY, IN HIS ANSWER TO QUESTION NOS. 33 AND 34 HE HAS REPLIED AS UNDER : Q.33 I AM SHOWING YOU EXHIBIT MARKED AS A/M/29, SE IZED FROM THE RESIDENCE OF MR. MITULAL, NO. 219, 68 TH , CROSS, 5 TH BLOCK, RAJAJI NAGAR, BANGALORE. PLEASE GO THROUGH THESE LOOSE SHEETS SERIALLY NUMBERED 1-61 AND STATE THE CONTENTS WRITTEN OVER THESE LOOSE SHEETS? ANS : I HAVE GONE THROUGH THE EXHIBIT MARKED A/M/2 9. I HAVE PLACED MY SIGNATURE ON PAGE HO. 24 OF THIS EXHIBIT IN CONFIR MATION OF HAVING SEEN IT. THIS EXHIBIT CONTAINS LOOSE SLIPS SERIALLY NUMBER 1- 61. SLIPS MARKED AS SL.NO. 4 TO 8, 49 TO 50, 58 ARID 59 CONTAIN THE NOTI NGS OF MR.RASKILAL MANIKCHAND DHARIWAL AND HIS SON MR; MR. PRAKASH. THE N OTINGS ON THESE SLIPS CONTAIN THEIR DIRECTIONS TO ME TO HANDOVER THE A MOUNT MENTIONED IN THE SLIP TO THE PERSON WHO BRINGS THE SLIP. SOMETIM ES, THEY DO NOT WRITE ANY NAME ON THE SLIP, I HAVE TO HANDOVER THE M ONEY MENTIONED IN THE SLIP TO THE BEARER OF THE SLIPS. MOST OF THE TIMES, I MAY NOT KNOW THE PERSON BUT STILL I MAKE PAYMENT TO THEM AS I HAVE STAND ING INSTRUCTIONS FROM MR.RASKILAL MANIKCHAND DHARIWAL AND HIS SON MR. P RAKASH TO HANDOVER THE MONEY TO THE BEARER OF THE SLIP. THE M ONEY IS PAID OUT OF THE COLLECTIONS RECEIVED FROM THE DISTRIBUTORS TOWARDS UNACCOUNTED SALES. Q.34 DO YOU OBTAIN ANY RECEIPT FROM THE PARTIES TO WHOM YOU HAND OVER CASH AS PER THE INSTRUCTIONS OF MR.RASKILAL MANIKCHAND D HARIWAL AND HIS SON MR. PRAKASH ANS : NO. IT IS NOT REQUIRED. AFTER RECEIPT OF CASH , THEY LEAVE THE SLIP WITH ME. THAT IS CONSIDERED AS EVIDENCE. 43. FROM THE ABOVE IT IS SEEN THAT MR. SOHAN RAJ ME HTA HAS NEVER IDENTIFIED THE ASSESSEE. IT IS ALSO AN ADMITTED FACT THA T THE REQUEST OF THE ASSESSEE TO CROSS EXAMINE MR. SOHAN RAJ MEHTA WAS NOT GRAN TED ON THE GROUND THAT THE SAME WILL NOT SERVE ANY PURPOSE. 44. WE FURTHER FIND MR. RASIKLAL MANIKCHAND DHARIWAL IN HIS STATEMENT RECORDED U/S.132(4) ON 21-01-2010 IN REPLY TO QUESTION NO. 9, 11 AND 12 HAS ANSWERED AS UNDER (PAGE 124 OF PAPER BOO K FILED BY LD. DR) : Q9. SIMILARLY, I AM SHOWING YOU PAGE NO.34 OF BUNDL E NO.A/M/29 SEIZED ON 9/10/2009. KINDLY GO THROUGH THE CONTENTS A ND PLEASE EXPLAIN. ANS. THIS IS A SIGNED CHIT IN MY HANDWRITING DT.20/2/20 07 WHEREIN I HAVE INSTRUCTED SHRI VINIT RANAWAT TO HAND OVER AN A MOUNT OF RS.500000-00 (FIVE LAKHS). Q11. SIMILARLY, I AM SHOWING YOU PAGE NO.24 OF BUNDL E NO.A/M/29 SEIZED ON 9/10/2009. KINDLY GO THROUGH THE CONTENTS AND PLEASE EXPLAIN. ANS. THIS IS A SIGNED CHIT IN MY HANDWRITING DT.10/11/2 006 WHEREIN I HAVE INSTRUCTED SHRI VINIT RANAWAT TO HAND OVER AN A MOUNT OF RS.500000-00 (FIVE LAKHS). 20 ITA NOS.725 AND 726/PN/2014 Q.12 SIMILARLY, I AM SHOWING YOU PAGE NO.22 OF BUNDL E NO.A/M/29 SEIZED ON 9/10/2009. KINDLY GO THROUGH THE CONTENTS AND PLEASE EXPLAIN. ANS. THIS IS A SIGNED CHIT IN MY HANDWRITING WHEREIN I HAVE INSTRUCTED SHRI VINIT RANAWAT TO HAND OVER AN AMOUNT OF RS.5000 0-00 (FIFTY THOUSAND). 45. FROM THE ABOVE, IT IS SEEN THAT AT ONE PLACE THE DEPARTMENT IS TREATING THE AMOUNT AS SHORT TERM ADVANCE BY MR. RASI KLAL MANIKCHAND DHARIWAL TO THE ASSESSEE (QUESTION NO.34 TO ASSESSEE U/S.132 (4) ON 20- 01-2010). SIMILARLY, MR. RASIKLAL MANIKCHAND DHARIW AL IN HIS REPLY TO QUESTION NOS. 9, 11 AND 12 RECORDED U/S.132(4) OF THE I.T. ACT HAS STATED THAT HE HAS INSTRUCTED MR. VINIT RANAWAT TO HAND OVE R THE VARIOUS AMOUNTS. THEREFORE, IT IS NOT CLEAR AS TO WHETHER THE ASSESSING OFFICER IS CORRECT OR THE INVESTIGATION WING AT THE TIME OF EXA MINING THE ASSESSEE ARE CORRECT OR THE ANSWER OF MR. RASIKLAL MANIKCHAND DHARIWAL IS CORRECT. 46. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF AZ IENDE COLORI NAZIONALI AFFINI, ITALY (SUPRA) HAS HELD THAT THE AG REEMENT HAD TO BE CONSIDERED AS A WHOLE AND THAT THE DIFFERENT CLAUSES IN THE AGREEMENT COULD NOT BE CONSIDERED SEPARATELY. THEREFORE, WHEN THE DEPARTMENT ITSELF IS TREATING THE SAME AT ONE PLACE AS SHORT TERM A DVANCE, THEREFORE, THE QUESTION OF TREATING THE SAME AS INCOME OF THE ASSESSE E DOES NOT ARISE. IT IS ALSO AN ADMITTED FACT THAT THE PAPERS WER E FOUND WITH MR. SOHAN RAJ MEHTA AT BANGALORE. THEREFORE U/S.132(4A) THEY CAN BE PRESUMED TO BE TRUE, GENUINE AND CORRECT ONLY IN THE CASE OF THE SEARCHED PERSON, I.E. MR. SOHAN RAJ MEHTA WHO HAS ADMITTED THA T THE PAPERS BELONG TO HIM. THEREFORE, WE FIND FORCE IN THE SUBMISSION O F THE LD. COUNSEL FOR THE ASSESSEE THAT ON THE BASIS OF THE PAPERS FOUND WITH SOME THIRD PARTY ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE PAR TICULARLY WHEN THERE IS NO BUSINESS CONNECTION BETWEEN THE ASSESSEE AND T HAT PARTY. 47. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ADD L.CIT VS. LATA MANGESHKAR REPORTED IN 97 ITR 696 HAS HELD THAT MERE ENTRIES IN THE ACCOUNTS REGARDING PAYMENT TO THE ASSESSEE WAS NOT SUFFICI ENT AS THERE WAS NO GUARANTEE THAT THE ENTRIES WERE GENUINE IN ABSE NCE OF ANY CORROBORATIVE EVIDENCE. IN THAT CASE, THE INCOME-TA X AUTHORITIES SOUGHT TO ASSESSEE CERTAIN INCOME AS INCOME FROM UNDISCLOSED SOURCES R ECEIVED BY THE ASSESSEE ON THE BASIS OF STATEMENT BY 2 PERSONS THAT THE Y HAD PAID MONEY IN BLACK TO THE ASSESSEE AND ENTRIES IN BOOKS BELON GING TO THEM REGARDING ALLEGED PAYMENT TO THE ASSESSEE. THE TRIBUNA L EXAMINED THE STATEMENT MADE BY THE 2 PERSONS AND FOUND THAT THE EVI DENCE TENDERED BY THEM SUFFERED FROM SERIOUS INFIRMITIES. IT HELD THA T MERE ENTRIES IN THE ACCOUNTS REGARDING PAYMENTS TO THE ASSESSEE WAS NOT SUFFIC IENT AS THERE WAS NO GUARANTEE THAT THE ENTRIES WERE GENUINE. THE TRIBUNAL THEREFORE HELD THAT THERE WAS NO PROOF THAT THE AMOUNT IN QUES TION REPRESENTED INCOME FROM UNDISCLOSED SOURCES BELONGING TO THE ASSESSEE. ON FURTHER APPEAL BY THE REVENUE, THE HONBLE HIGH COURT HELD THAT THE CONCLUSION OF THE TRIBUNAL HAD BEEN REACHED BY IT ON A PROPER APP RECIATION OF THE EVIDENCE. THIS WAS FINDING OF FACT BY THE TRIBUNAL A ND NO QUESTION OF LAW AROSE AND NO REFERENCE WOULD LIE FROM THE DECISION OF THE TRIBUNAL. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE WAS DISM ISSED. 48. THE HONBLE SUPREME COURT IN THE CASE OF CBI VS. SHRI V. C. SHUKLA REPORTED IN 3 SCC 410 HAS OBSERVED AS UNDER : 21 ITA NOS.725 AND 726/PN/2014 THE RATIONALE BEHIND ADMISSIBILITY OF PARTIES' BOOKS O F ACCOUNT AS EVIDENCE IS THAT THE REGULARITY OF HABIT, THE DIFFIC ULTY OF FALSIFICATION AND THE FAIR CERTAINTY OF ULTIMATE DETECTION GIVE THEM IN A SUFFICIENT DEGREE A PROBABILITY OF TRUSTWORTHINESS (WIGMORE ON EVIDENCE $ 1546). SINCE, HOWEVER, AN ELEMENT OF SELF INTEREST AND PARTISANSHIP O F THE ENTRANT TO MAKE A PERSON - BEHIND WHOSE BACK AND WITHOUT WHOSE KN OWLEDGE THE ENTRY IS MADE - LIABLE CANNOT BE RULED OUT THE ADDIT IONAL SAFEGUARD OF INSISTENCE UPON OTHER INDEPENDENT EVIDENCE TO FASTEN H IM WITH SUCH LIABILITY, HAS BEEN PROVIDED FOR IN SECTION 34 BY IN CORPORATING THE WORDS SUCH STATEMENTS SHALL NOT ALONE BE SUFFICIENT TO CHARGE ANY PERSON WITH LIABILITY. THE PROBATIVE VALUE OF THE LIABILITY CREATED BY AN ENTRY IN BOOKS OF ACCOUNT CAME UP FOR CONSIDERATION IN CHANDRADHAR VS. GAUHATI BANK [1967 (1) S.C.R. 898]. THAT CASE AROSE OUT OF A SUIT FILED BY GAUHATI BANK AGAINST CHANDRADHAR (THE APPELLANT THEREIN ) FO R RECOVERY OF A LOAN OF RS. 40,000/- . IN DEFENCE HE CONTENDED, INTER ALI A, THAT NO LOAN WAS TAKEN. TO SUBSTANTIATE THEIR CLAIM THE BANK SOLELY RE LIED UPON CERTIFIED COPY OF THE ACCOUNTS MAINTAINED BY THEM UNDER SECTIO N 4 OF THE BANKERS' BOOK EVIDENCE ACT, 1891 AND CONTENDED THAT CERTIFIE D COPIES BECAME PRIMA FACIE EVIDENCE OF THE EXISTENCE OF THE ORIGINA L ENTRIES IN THE ACCOUNTS AND WERE ADMISSIBLE TO PROVE THE PAYMENT OF L OAN GIVEN. THE SUIT WAS DECREED BY THE TRIAL COURT AND THE APPEAL PR EFERRED AGAINST IT WAS DISMISSED BY THE HIGH COURT. IN SETTING ASIDE THE DEC REE THIS COURT OBSERVED THAT IN THE FACE OF THE POSITIVE CASE MADE OU T BY CHANDRADHAR THAT HE DID NOT EVER BORROW ANY SUM FROM THE BANK, T HE BANK HAD TO PROVE THAT FACT OF SUCH PAYMENT AND COULD NOT RELY O N MERE ENTRIES IN THE BOOKS OF ACCOUNT EVEN IF THEY WERE REGULARILY KEPT I N THE CORSE OF BUSINESS IN VIEW OF THE CLEAR LANGUAGE OF SECTION 34 OF THE ACT. THIS COURT FURTHER OBSERVED THAT WHERE THE ENTRIES WERE NOT ADMITTED IT WAS THE DUTY OF THE BANK, IF IT RELIED ON SUCH ENTRIES TO CHARGE ANY PERSO N WITH LIABILITY, TO PRODUCE EVIDENCE IN SUPPORT OF THE ENTRIES TO SHOW THA T THE MONEY WAS ADVANCED AS INDICATED THEREIN AND THEREAFTER THE ENT RIES WOULD BE OF USE AS CORROBORATIVE EVIDENCE. THE SAME QUESTION CAME UP FOR CONSIDERATION BEFORE DIF FERENT HIGH COURT ON A NUMBER OF OCCASIONS BUT TO ESCHEW PROLIXITY WE WO ULD CONFINE OUR ATTENTION TO SOME OF THE JUDGEMENTS ON WHICH MR. SIBA L RELIED. IN YESUVADIYAN VS. SUBBA NAICKER [A. I. R. 1919 MADRAS 13 2] ONE OF THE LEARNED JUDGES CONSTITUTING THE BENCH HAD THIS TO SAY: S.34, EVIDENCE ACT, LAYS DOWN THAT THE ENTRIES IN BOO KS OF ACCOUNT, REGULARLY KEPT IN THE COURSE OF BUSINESS ARE RELEVANT, BUT SUCH A STATEMENT WILL NOT ALONE E BE SUFFICIENT TO CHARGE ANY PERSON W ITH LIABILITY. THAT MERELY MEANS THAT THE PLAINTIFF CANNOT OBTAIN A DECR EE BY MERELY PROVING THE EXISTENCE OF CERTAIN ENTRIES IN HIS BOOKS OF ACCOUN T EVEN THOUGH THOSE BOOKS ARE SHOWN TO BE KEPT IN THE REGULAR COURSE OF BU SINESS. HE WILL HAVE TO SHOW FURTHER BY SOME INDEPENDENT EVIDENCE THAT THE ENTIRES REPRESENT REAL AND HONEST TRANSACTIONS AND THAT THE MONEYS WERE P AID IN ACCORDANCE WITH THOSE ENTRIES. THE LEGISLATURE HOWEVER DOES NOT REQUIRE ANY PARTICULAR FORM OR KIND OF EVIDENCE IN ADDITION TO ENTRIES IN BOOKS OF ACCOUNT, AND I TAKE IT THAT ANY RELEVANT FACT S WHIC H CAN BE TREATED AS EVIDENCE WITHIN THE MEANING OF THE EVIDENCE ACT WOU LD BE SUFFICIENT CORROBORATION OF THE EVIDENCE FURNISHED BY ENTRIES IN BOOKS OF ACCOUNT IF TRUE.' 22 ITA NOS.725 AND 726/PN/2014 WHILE CONCURRING WITH THE ABOVE OBSERVATIONS THE OTHE R LEARNED JUDGE STATED AS UNDER: ' IF NO OTHER EVIDENCE BESIDES THE ACCOUNTS WERE GIVEN , HOWEVER STRONGLY THOSE ACCOUNTS MAY BE SUPPORTED BY THE PROBABILITIES, AND HOWEVER STRONG MAY BE THE EVIDENCE AS TO THE HONESTY OF THOSE W HO KEPT THEM, SUCH CONSIDERATION COULD NOT ALONE WITH REFERENCE TO S.34, EVIDENCE ACT, BE THE BASIS OF A DECREE.'(EMPHASIS SUPPLIED) IN BENI VS. BISAN DAYAL [ A. I. R 1925 NAGPUR 445] IT WAS OBSERVED TAT ENTRIES IN BOOK S OF ACCOUNT ARE NOT BY THEMSELVES SUFFI CIENT TO CHARGE ANY PERSON WITH LIABILITY, THE REASON BEING THAT A MAN CA NNOT BE ALLOWED TO MAKE EVIDENCE FOR HIMSELF BY WHAT HE CHOOSES TO WRITE IN HIS OWN BOOKS BEHIND THE BACK OF THE PARTIES. THERE MUST BE INDEPEN DENT EVIDENCE OF THE TRANSACTION TO WHICH THE ENTRIES RELATE AND IN AB SENCE OF SUCH EVIDENCE NO RELIEF CAN BE GIVEN TO THE PARTY WHO RE LIES UPON SUCH ENTRIES TO SUPPORT HIS CLAIM AGAINST ANOTHER. IN HIRA LAL VS. R AM RAKHA [ A. I. R. 1953 PEPSU 113] THE HIGH COURT, WHILE NEGATIVING A C ONTENTION THAT IT HAVING BEEN PROVED THAT THE BOOKS OF ACCOUNT WERE RE GULARLY KEPT IN THE ORDINARY COURSE OF BUSINESS AND THAT, THEREFORE, ALL EN TRIES THEREIN SHOULD BE CONSIDERED TO BE RELEVANT AND TO HAVE BEEN PROVE, SAID THAT THE RULE AS LAID DOWN IN SECTION 34 OF THE ACT THAT ENTRIES IN T HE BOOKS OF ACCOUNT REGULARLY KEPT IN THE COURSE OF BUSINESS RE RELEVANT WH ENEVER THEY REFER TO A MATTER IN WHICH THE COURT HAS TO ENQUIRE WAS SUBJ ECT TO THE SALIENT PROVISO THAT SUCH ENTRIES SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS NOT, THEREFORE, ENOU GH MERELY TO PROVE THAT THE BOOKS HAVE BEEN REGULARLY KEPT IN THE COURSE OF B USINESS AND THE ENTRIES THEREIN ARE CORRECT. IT IS FURTHER INCUMBENT UPON THE PERSON RELYING UPON THOSE ENTRIES TO PROVE THAT THE WERE IN ACCORDANCE WITH FACTS. THE EVIDENTIARY VALUE OF ENTRIES RELEVANT UNDER SECT ION 34 WAS ALSO CONSIDERED IN HIRALAL MAHABIR PERSHAD (SUPRA ) I.D. DU A, ]. (AS HE THEN WAS) SPEAKING FOR THE COURT OBSERVED THAT SUCH ENTRIES T HOUGH RELEVANT WERE ONLY CORROBORATIVE EVIDENCE AND IT IS TO BE SHOW N FURTHER BY SOME INDEPENDENT EVIDENCE THAT THE ENTRIES REPRESENT HONEST AND REAL TRANSACTIONS AND THAT MONIES WERE PAID IN ACCORDANCE W ITH THOSE ENTRIES. A CONSPECTUS OF THE ABOVE DECISIONS MAKES IT EVIDENT THA T EVEN CORRECT AND AUTHENTIC ENTRIES IN BOOKS OF ACCOUNT CANNOT WITH OUT INDEPENDENT EVIDENCE OF THEIR TRUSTWORTHINESS, FIX A LIABILITY UPO N A PERSON. KEEPING IN VIEW THE ABOVE PRINCIPLES, EVEN IF WE PROCEED ON THE ASSUMPTION THAT THE ENTRIES MADE IN MR 71/91 ARE CORRECT AND THE ENTRIES IN THE OTHER BOOKS AND LOOSE SHEETS WHICH WE HAVE ALREADY FOUND TO BE NOT ADMISSIBLE IN EVIDENCE UNDER SECTION 34) ARE ADMISSIBLE UNDER SECTI ON 9 OF THE ACT TO SUPPORT AN INFERENCE ABOUT THE FORMERS' CORRECTNESS STIL L THOSE ENTRIES WOULD NOT BE SUFFICIENT TO CHARGE SHRI ADVANI AND SH RI SHUKLA WITH THE ACCUSATIONS LEVELLED AGAINST THEM FOR THERE IS NOT AN I OTA OF INDEPENDENT EVIDENCE IN SUPPORT THEREOF. IN THAT VIEW OF THE MAT TER WE NEED NOT DISCUSS, DELVE INTO OR DECIDE UPON THE CONTENTION RAISE D BY MR. ALTAF AHMED IN THIS REGARD. SUFFICE IT TO SAY THAT THE STA TEMENTS OF THE FOUR WITNESSES, WHO HAVE ADMITTED RECEIPTS OF THE PAYMENTS AS SHOWN AGAINST THEM IN MR 71/91, CAN AT BEST BE PROOF OF RELIABILIT Y OF THE ENTRIES SO FAR THEY ARE CONCERNED AND NOT OTHERS. IN OTHER WORDS, TH E STATEMENTS OF THE ABOVE WITNESSES CANNOT BE INDEPENDENT EVIDENCE UNDER S ECTION 34 AS AGAINST THE ABOVE TWO RESPONDENTS. SO FAR AS SHRI ADVAN I IS CONCERNED 23 ITA NOS.725 AND 726/PN/2014 SECTION 34 WOULD NOT COME IN AID OF THE PROSECUTION FOR ANOTHER REASON ALSO. ACCORDING TO THE PROSECUTION CASE ITSELF HIS NAME FINDS PLACE ONLY IN ONE OF THE LOOSE SHEETS (SHEET NO. 8) AND NOT IN MR 71/ 91. RESULTANTLY, IN VIEW OF OUR EARLIER DISCUSSION, SECTION 34 CANNOT AT A LL BE PRESSED INTO SERVICE AGAINST HIM. (UNDERLINE PROVIDED BY US) 49. WE FURTHER FIND IDENTICAL ISSUE HAD COME UP BEFOR E VARIOUS BENCHES OF THE TRIBUNAL ON THE BASIS OF THE NOTINGS OF MR.SOHAN RAJ MEHTA FOUND DURING THE COURSE OF SEARCH. WE FIND THE AHME DABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI MUSTAFAMIYA H. SHEIKH (S UPRA) HAS OBSERVED AS UNDER: 7. ON A PERUSAL OF THE SEIZED MATERIALS RECEIVED FRO M THE INVESTIGATION WING, PUNE, THE AO HAD NOTICED THAT PA GE 34 WAS A SUMMARY OF THE CASH PAYMENT MADE BY SHRI SOHANRAJ MEH TA FOR THE PERIOD FROM APRIL 2003 - AUGUST 2006 AS PER THE DIREC TION OF RMD GROUP. AS PER THIS VERSION, AN AMOUNT OF RS.57.50 LAKHS PERTAIN ED TO SHRI SHEIKH MUSTAFMIYA HUSSAINMIYA OF AHMEDABAD AND PAGE 47 WAS THE MONTHLY SUMMARY FOR THE MONTH OF JANUARY - MARCH 2004 OF THE UNACCOUNTED TRANSACTION CARRIED OUT BY SHRI SOHANRAJ MEHTA C & F OF KARNATAKA REGION OF RMD GROUP. AFTER ANALYZING THE ISSUE EXHAUSTIVELY A S DETAILED IN THE ASSESSMENT ORDER AS WELL AS IN THE APPELLATE ORDER UNDER DISPUTE, A SUM OF RS.57.5 LAKHS IN CASH AS EVIDENCED BY THE SEIZED DOCU MENTS WAS TREATED AS UNACCOUNTED RECEIPT IN THE HANDS OF THE ASSE SSEE AND, ACCORDINGLY, ADDED TO THE INCOME OF THE ASSESSEE FOR TH E PERIOD UNDER CONSIDERATION BY THE AO WHICH HAS BEEN SUBSEQUENTLY SUSTA INED BY THE LEARNED CIT (A) FOR THE DETAILED REASONS RECORDED IN HIS APPELLATE ORDER WHICH IS UNDER SCRUTINY. 7.1. ADMITTEDLY, THE WHOLE PROCEEDINGS WERE INITIAT ED ON THE STRENGTH OF A STATEMENT OF A THIRD PARTY (SHRI SOHANRAJ MEHTA ). THE PURPORTED SEIZURE OF SLIPS, LOOSE SHEETS ETC. AT THE PREMISES OF A TH IRD PARTY CONTAINED ONLY THE NAMES, BUT, NOT OTHER DETAILS SUCH AS THEIR IDENTITY, ADDRESSES, CONTACT NUMBERS ETC. ON A PERUSAL OF THE STATE MENT, IT IS CLEAR THAT THE PAYMENTS MADE WERE TO THE PERSONS WHOSE NAMES WERE APPEARING ON THE RIGHT SIDE OF THE PAPERS (SHEETS) WHI CH WERE PAID TO THOSE PERSONS ON THE INSTRUCTIONS OF PRD & RD. MOREOVER, AGAINST THE NAMES OF MUSTUFA & TAUFIK, IT WAS SPECIFICALLY WRITTEN AS (PRD) EXPENDITURE IN RESPECT OF PRD WAS GIVEN BY SHRI SOHAN RAJ MEHTA AS PER THE TELEPHONIC AND WRITTEN INSTRUCTION OF PRAKASH RASI KAL DHASRIWAL AND RASIKLAL MANIKCHAND DHARIWAL AS PER THE STATEMENT OF SRI SOHANRAJ MEHTA DATED 21.10.2009 [REFER: PAGE 99 OF PB AR]. TO A QU ESTION NO.14 EXHIBIT A/M/8/DATED 9.10.2009 WHICH CONTAINED A BUNCH OF LO OSE SHEETS SERIALLY NUMBERED FROM 01 TO 58 TO EXPLAIN THE CONTENTS, SHRI SOHANRAJ MEHTA ANSWERED THUS - 'PAGE 34 RECORDS RECEIPT OF GUTKHA CONSIGNMENT FROM D HARIWAL INDUSTRIES LTD., DURING APRIL 2003 TO JAN. 2006 TOTAL LING TO RS.218,00,91,198/- (WHICH IS RECORDED ON THE LEFT HAN D SIDE OF THE PAGE). ON THE RIGHT HAND SIDE OF THE PAGE, PARTIES TO WHOM CASH PAYMENTS WERE MADE HAVE BEEN RECORDED, ON INSTRUCTIONS FROM DHARIWA L INDUSTRIES LTD., THE INSTRUCTIONS WERE IN THE FORM OF SLIPS OF PAPER AND THEY CONTAIN THE SIGNATURES OF MR. RASHIKLAL MANIKCHAND DHARIWAL AND HI S SON MR. PRAKASH DHARIWAL. SUCH PAYMENTS TOTALING TO RS.206,76,54,463/ - WERE MADE IN 24 ITA NOS.725 AND 726/PN/2014 2003-2006. THE BALANCE OF RS.11,24,36,739/- WAS SETTLE D BY ME SUBSEQUENTLY OVER A PERIOD OF TIME.' 7.2. CONSIDERING THE STATEMENT OF THE SAID PERSON, THE RE IS STRONG FORCE IN THE CONTENTION OF THE ASSESSEE THAT EVEN ASSUMING THA T THE RECEIPT OF SUCH AMOUNT WAS MERELY A COLLECTION FOR ON BEHALF OF THE COMPANY AND SUCH AMOUNT CANNOT PAR TAKE THE CHARACTER OF INCOME IN THE HANDS OF THOSE PERSONS. 7.3. MOREOVER, ACCORDING TO THE ASSESSEE, THE SEARCHED PERSON BEING A THIRD PARTY HAD RETRACTED ALL THE STATEMENTS RECORDED DURING THE SEARCH PROCEEDINGS IN THE FOLLOWING WORDS: '1. I REFERRED MY AFORESAID STATEMENT RECORDED BY DEP UTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 2(2), BANGALORE ON 10 .8.2011. 2. IN THIS STATEMENT DATED 10.8.2011 SENSE CONVEYS THAT MY DETAILED LETTER DT.23.12.2009 FILED WITH THE ASST. DIRECTOR OF INCOME -TAX (INVESTIGATION) UNIT 2(1), BANGALORE IS NEGATED WHICH IS INCORRECT AN D UNTRUE. 3. TODAY ON 3.12.2011, SATURDAY I DEPOSE IN THE NAME OF ALMIGHTY GOD THAT UNDER WRONG PROMISES, MISTAKEN BELIEFS, INADEQUAT E GUIDANCE AND IMPROPER ADVISE, I SIGNED THE LETTER DT. 10.8.2011 I N THE INCOME-TAX DEPARTMENT, BANGALORE WHICH IS ABSOLUTELY WRONG AND N OT THE CORRECT VERSION OF WHAT I WANTED TO CONVEY TO THE INCOME-TAX DEPARTMENT AT THAT POINT OF TIME. 4. WITH MY THIS LETTER SPECIFICALLY ADDRESSED TO YOU, I ONCE AGAIN STATE THAT ALL MY STATEMENTS RECORDED DURING THE SEARCH PROCEEDIN GS ON 10.9.2009 AND MY STATEMENT DATED 10.8.2011 RECORDED AT BANGALO RE BEFORE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 2(2), BANG ALORE IS RETRACTED UN- CONDITIONALLY BY ME, IT BEING IMPROPER.'[REFER: PAGES 225 - 27 OF THE ASSESSEE'S SUBMISSION DT.12.12.2012]. 7.4. THUS, THERE IS FORCE IN THE ASSESSEE'S CONTENTION TH AT HE SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO CROSS-EXAMINE T HE THIRD PARTY [ SHRI SHOHANRAJ MEHTA] SINCE HIS STATEMENTS ON OATH WERE COUP LED WITH INCONSISTENCY, HE RETRACTED HIS EARLIER STATEMENTS AND, THUS, NOT ABOVE THE BOARD. 7.5. MOREOVER, THE ASSESSEE'S PLEA FOR PERMISSION TO CROSS EXAMINE SHRI SOHANRAJ MEHTA AT THE ASSESSMENT STAGE WAS NOT CONCEDED B Y THE AO ON THE GROUND THAT - '[ON PAGE 9 CIT (A)] 2.8........................... ................................................ CO MMENTS OF THE AO: (II) OPPORTUNITY OF CROSS EXAMINATION OF SHRI SOHANRA J MEHTA: 'THE ASSESSEE WAS PROVIDED WITH THE COPY OF THE STATEMENT OF S HRI SOHANRAJ MEHTA RECORDED BY THE ADIT (INV), PUNE, ALONG WITH DOCUMENTS ON WHICH HIS STATEMENT WAS RECORDED. DUE TO PAUCITY OF TIME THE CROSS EXAMINATION COULD NOT BE GRANTED.' 7.6. THE CIT (A) HAD ALSO TURNED DOWN THE ASSESSEE'S REQ UEST FOR CROSS- EXAMINATION ON THE GROUND THAT - 25 ITA NOS.725 AND 726/PN/2014 '(ON PAGE 53) 2.25................IT HAS ALSO BEEN IN DICATED, AS BORNE OUT ON RECORDS, THAT THE APPELLANT HAD ASKED FOR CROSS EXAMIN ATION OF THE PARTY FOR THE FIRST TIME ONLY ON 14.12.2011. THE APPELLANT WAS ALSO FULLY AWARE THAT THE LIMITATION TO PASS REASSESSMENT ORDER IN THE CASE EXPIRES ON 31.12.2011. THUS, BETWEEN 29.3.2011 TILL 14.12.2011, THE APPELLANT DID NOT MAKE ANY REQUEST TO THE AO THAT AN OPPORTUNITY O F CROSS EXAMINATION IS REQUIRED BY HIM. FULLY KNOWING THAT IT WOULD NOT BE POSSIBLE FOR THE AO TO CALL A PARTY FROM DISTANT BANGALORE AND AFFORD TH E FACILITY OF CROSS EXAMINATION DURING A SHORT PERIOD OF JUST 12 WORKING DAYS, THE APPELLANT MAKES REQUEST FOR CROSS EXAMINATION. THERE IS NO DENYI NG THE FACT THAT CROSS EXAMINATION IS AN INALIENABLE RIGHT OF AN AGREE D PARTY BUT IT IS ALSO TRUE THAT THERE HAS TO BE A JUSTIFIABLE TIME FRAME IN WHICH SUCH RIGHT CAN BE EXERCISED. IT IS AS SETTLED PRINCIPLE OF LAW THAT R IGHTS AND DUTIES UNDER A STATUTE GO HAND IN HAND AND CANNOT BE EXERCISED IN ISO LATION. THE APPELLANT TRULY HAD THE RIGHT TO CROSS EXAMINATION BU T AT THE SAME TIME HAD THE DUTY TO ASK FOR IT WITHIN A REASONABLE TIME F RAME. A RIGHT EXERCISED WITH ULTERIOR MOTIVES DOES NOT POSSESS THE SANCTI ON OF LAW. FACTS OF THE CASE CLEARLY INDICATE THAT THE APPELLANT HAD PURPOSEFULLY DEMANDED CROSS EXAMINATION AT A TIME WHEN IT WAS CONSI DERED IMPRACTICAL AND UNFEASIBLE.....' 7.7. IN ESSENCE, THE PRINCIPLES OF NATURAL JUSTICE ON THE LEGITIMATE REQUEST OF THE ASSESSEE, TO CROSS EXAMINE THE THIRD PARTY ON THE BASIS OF WHOSE STATEMENT THE IMPUGNED ADDITION SOUGHT TO BE ADD ED TO HIS INCOME, HAS BEEN DENIED ON FLIMSY GROUNDS. 7.8. AT THIS POINT OF TIME, WE SHALL ANALYZE THE JUD ICIAL PRONOUNCEMENTS ON A SIMILAR ISSUE, AS UNDER (PB -184): (I) THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF DCIT V. MAHENDRA AMBALAL PATEL REPORTED IN (2010) 40 DTR (GUJ) 243 H AD HELD AS UNDER: 'FROM THE FINDINGS RECORDED BY THE TRIBUNAL IT IS APP ARENT THAT THOUGH IT IS THE CASE OF REVENUE THAT THE LAND HAS BEEN SOLD BY T HE ASSESSEE TO GC THROUGH MV, THERE IS NO MATERIAL ON RECORD TO INDICA TE THAT THE SAID LAND IN FACT BELONGS TO THE ASSESSEE. THOUGH THE AO HAS PLACED RELIANCE UPON THE STATEMENTS OF MV AND GC FOR THE PURPOSE OF TAXING THE AMOUNT IN THE HANDS OF THE ASSESSEE, DESPITE SPECIFIC REQUEST BEING MADE BY THE ASSESSEE FOR CROSS- EXAMINING BOTH THE SAID PERSONS, THE AO HAS NOT PERMITTED THE ASSESSEE TO CROSS-EXAMINE THEM. IN THE CIR CUMSTANCES, NO RELIANCE COULD BE PLACED UPON THE STATEMENTS OF THE SA ID PERSONS AS THE ASSESSEE HAD NO OPPORTUNITY TO CROSS-EXAMINE THEM. THE ST ATEMENTS MADE BY THE AFORESAID PERSONS WOULD HAVE NO EVIDENTIAR Y VALUE AND AS SUCH, WOULD NOT BE ADMISSIBLE IN EVIDENCE. FURTHER, TH OUGH THE SAID MV HAS STATED THAT HE HAS PAID RS.60 LAKHS TO THE ASSESSEE ON BEHALF OF ONE GC, THE SAID AMOUNT HAS NOT BEEN TAXED IN THE HANDS OF GC. MOREOVER, NO EVIDENCE HAS BEEN ADDUCED TO INDICATE THAT ANY TRANSA CTION IN RELATION TO THE LAND IN QUESTION HAS ACTUALLY TAKEN PLACE. THE TR IBUNAL HAS RIGHTLY FOUND THAT THE BASIS FOR MAKING THE ADDITION IN THE C ASE OF THE ASSESSEE IS MERELY A BALD STATEMENT OF MV, WHICH IS NOT CORROBORA TED WITH ANY DOCUMENTARY EVIDENCE FOUND AT THE TIME OF SEARCH, EI THER IN THE CASE OF S OR MV OR THE ASSESSEE. NO PLEA TO THE EFFECT THAT THE I MPUGNED ORDER OF THE TRIBUNAL SUFFERS FROM ANY PERVERSITY HAS BEEN RAISE D. THE TRIBUNAL HAVING BASED ITS CONCLUSION ON FINDINGS OF FACT RECORD ED BY IT AFTER APPRECIATION OF THE EVIDENCE ON RECORD, IT CANNOT B E STATED THAT THE IMPUGNED ORDER OF THE TRIBUNAL SUFFERS FROM ANY LEGAL INFIRMITY............' 26 ITA NOS.725 AND 726/PN/2014 (II) DURING THE COURSE OF HEARING OF A REFERENCE AP PLICATION OF THE REVENUE IN THE CASE OF DCIT (ASST) V. PRARTHANA CONSTRU CTION PVT. LTD [TAX APPEAL NO.79 OF 2000 DATED 25.3.2001] BEFORE T HE HON'BLE JURISDICTIONAL HIGH COURT, THE LEARNED COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE DOCUMENTS IN QUESTION HAVE BEEN FOUND FROM T HE PREMISES OF A THIRD PARTY. THE LOOSE PAPERS CANNOT BE STATED TO BE B OOKS OF ACCOUNT IN THE LIGHT OF THE DECISION OF THE SUPREME COURT IN TH E CASE OF CBI V. V.C. SHUKLA AND OTHERS (1998) 3 SCC 410 AS OBSERVED BY THE TRIBUNAL AND SUBMITTED THAT THE TRIBUNAL HAS BASED ITS CONCLUSIONS ON THE FINDINGS OF FACT RECORDED BY IT UPON APPRECIATION OF THE EVIDEN CE ON RECORD; THAT THE TRIBUNAL HAD EXAMINED THE FACTS AND CIRCUMSTANCES OF T HE CASE AND HAD COME TO THE CONCLUSION THAT THE REVENUE HAD NOT BEEN ABLE TO ESTABLISH ITS CASE AGAINST THE ASSESSEE AND AS SUCH, THE ORDER OF THE TR IBUNAL BEING BASED UPON FINDINGS OF FACT RECORDED BY IT, DOES NOT G IVE RISE TO ANY QUESTION OF LAW. IT WAS, FURTHER, SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE ENTIRE CASE OF THE REVENUE WAS BASED UPON DOCUMENT S RECOVERED DURING THE COURSE OF SEARCH FROM THE PREMISES OF THIRD PARTIES AND THE STATEMENTS OF THE THIRD PARTIES AND THAT THE ASSESSEE WAS NOT GRANTED AN OPPORTUNITY TO CROSS EXAMINE THE THIRD PARTIES AND AS SU CH THEIR STATEMENTS HAVE NO EVIDENTIARY VALUE. AFTER DUE CONSIDERATION OF RIVAL SUBMISSIONS AND ALSO TAK ING INTO ACCOUNT THE RELIANCE PLACED BY THE ASSESSEE'S COUNSEL IN THE CASES OF (I) KISHINCHAND CHELLARAM V. CIT (1980) 125 ITR 713 (SC) & (II) CIT V. S.C. SETHI (2007) 295 ITR 351 (RAJ), THE HON'BLE COURT HAD HE LD THUS: '[PB - 174] 16. THUS, IT IS APPARENT THAT THE CONCLUSI ONS ARRIVED BY THE TRIBUNAL ARE BASED UPON THE AFORESAID FINDINGS OF FAC T RECORDED BY IT UPON APPRECIATION OF THE EVIDENCE ON RECORD. ON BEHALF O F THE REVENUE NOTHING IS POINTED OUT TO SHOW THAT THE FINDINGS RECORDED BY T HE TRIBUNAL ARE IN ANY MANNER PERVERSE, NOR IS IT THE CASE OF THE REVENUE THAT THE TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVANT MATERIAL OR THAT ANY RELEVANT MATERIAL HAS BEEN IGNORED. THE CONCLUSION ARRIVED AT BY THE TRIBUNAL ON THE BASIS OF THE FINDINGS OF FACT RECORDED BY IT CANNO T IN ANY MANNER BE SAID TO BE UNREASONABLE. IN THE AFORESAID PREMISES, THE IMPUGNED ORDER OF THE TRIBUNAL BEING BASED UPON FINDINGS OF FACT RECORD ED BY IT UPON APPRECIATION OF THE EVIDENCE ON RECORD, WHICH FINDI NGS HAVE NOT BEEN DISLODGED BY THE REVENUE BY POINTING OUT ANY EVIDENC E TO THE CONTRARY, THEREFORE, DOES NOT WARRANT ANY INTERFERENCE.' 7.9. TAKING INTO ACCOUNT THE SUBMISSIONS OF THE ASSESSEE, THE STAND OF THE AO, REASONING OF THE CIT (A) IN SUSTAINING THE ACT ION OF THE AO AND ALSO IN CONFORMITY WITH THE RULINGS OF THE HON'BLE JU RISDICTIONAL HIGH COURT (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT THA T LEARNED CIT (A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.57.5 LAKHS MADE BY THE AO IN THE HANDS OF THE ASSESSEE FOR THE FOLLOWING REASONS: (I) THAT THE LEARNED AO HAD SOLELY DEPENDED UPON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING OF PUNE; (II) THAT THE AO HAD FAILED TO SUBSTANTIATE THE SAME W ITH ANY CREDIBLE DOCUMENTARY EVIDENCE TO THE EFFECT THAT THE ASSESSEE H AD INDEED RECEIVED THE ALLEGED CASH PAYMENT OF RS.57.5 LAKHS FROM SHRI SO HANRAJ MEHTA AS THE ASSESSEE HAD CATEGORICALLY PLEADED BEFORE THE AO TH AT HE WAS MAKING 27 ITA NOS.725 AND 726/PN/2014 PURCHASES THROUGH AMBIKA DISTRIBUTORS WHO WERE THE C & F AGENTS FOR GUJARAT REGION; (III) THAT THE TOTAL UNACCOUNTED SALES EFFECTED BY SH RI SOHANRAJ MEHTA C & F OF RMD GUTKHA ON BEHALF OF DHARIWAL INDUSTRIES LIMI TED FOR THE PERIOD OF APRIL 2003 TO FEB 2008 WAS RS.345.72 CRORES (APPROX ). THE UNACCOUNTED INCOME FOR THE AY 2004-05 WAS ARRIVED A T RS.40,88,32,514/, THE SAME WAS ADDED SUBSTANTIVELY IN THE CASE OF M/S. DHAR IVAL INDUSTRIES LIMITED AND CONCLUDED THE ASSESSMENT FOR THE AY 2004-05 U/S 153A R.W.S. 143 (3) OF THE ACT, DATED 29.12.2011 BY THE A CIT, C.C. 1(1), PUNE [COURTESY: P 231 - 238 OF PB AR]; (IV) THAT ONCE THE ALLEGED SUM OF RS.57.5 LAKHS WAS SUBJ ECTED TO TAX IN THE HANDS OF DHARIWAL INDUSTRIES LIMITED, THE SAME CANNOT B E SUBJECTED TO SUFFER FURTHER TAX. THIS VIEW HAS BEEN FAIRLY CONCEDED BY THE CIT (A) '(ON PAGE 54) 2.27.......THE APPELLANT IS RIGHT TO THE EX TENT THAT NO INCOME CAN BE TAXED TWICE......' (V) THAT THE AO HAD CANDIDLY ADMITTED THAT DURING T HE COURSE OF ASSESSMENT PROCEEDING ITSELF THE ASSESSEE HAD SOUGHT PERMISSIO N TO CROSS EXAMINE SHRI SOHANRAJ MEHTA WHICH WAS SUMMARILY REJEC TED BY TAKING REFUGE '.....DUE TO PAUCITY OF TIME, THE CROSS EXAMIN ATION COULD NOT BE GRANTED' [REFER: PARA 2.8 (PAGE 10) OF THE CIT (A)'S ORDER]. THIS STAND OF THE AO, TO VIEW IT MILDLY, IS AGAINST THE SPIRIT OF JUDICIAL PRONOUNCEMENTS; (VI) THAT THE AO HAD MERELY COME TO A CONCLUSION BASE D ON A STATEMENT OF A THIRD PARTY, WITHOUT BRINGING ANY CREDIBLE DOCUME NTARY EVIDENCE TO THE CONTRARY ON RECORD TO NAIL THE ASSESSEE; & (VII) NO RELIANCE CAN BE PLACED ON THE STATEMENTS OF A THIRD PERSON WHOSE PREMISES WERE SUBJECTED TO A SEARCH SINCE HE HAD RETRACT ED HIS OWN STATEMENT MADE EARLIER ON OATH AND PRECISELY THE ASSESSEE HAS BEEN DENIED TO CROSS-EXAMINE HIM TO BRING OUT THE TRUTH. 7.9.1 FOR THE ABOVE SAID REASONS, WE HEREBY HOLD THA T THE ADDITION MADE FOR RS.57,50,000/- BY THE LEARNED AO ON ACCOUNT OF U NDISCLOSED INCOME, WHICH WAS FURTHER SUSTAINED BY THE LEARNED CIT(A) REQU IRES TO BE DELETED AND ACCORDINGLY, WE HEREBY DIRECT THE REVENUE TO DE LETE THE SAME. THUS, GROUND NO.1 RAISED BY THE ASSESSEE WITH RESPECT TO REOPE NING OF THE ASSESSMENT U/S 148 OF THE ACT IS DISMISSED AND GROUND NO.2 W ITH RESPECT TO ADDITION ON ACCOUNT OF UNDISCLOSED INCOME IS ALLOWE D IN FAVOUR OF THE ASSESSEE. 50. WE FIND THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. H.S. CHANDRAMOULI (SUPRA) HAD ALSO AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND DELETED THE ADDITION BY OBSERVING AS UNDER : 13. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DR. IT IS SEEN THAT THE DOCUMENT IN QUESTION WAS SEIZED FROM THE POSSESSI ON OF ONE MR. SOHANRAJ MEHTA. THE SEIZED DOCUMENT MAKES A REFERENC E TO THE NAME OF THE ASSESSEE AND A FIGURE OF RS.22.75 LAKHS APPEARS AGAINST HIS NAME. AS TO WHETHER THIS DOCUMENT EVIDENCES PAYMENT OF RS.22.7 5 LAKHS TO THE 28 ITA NOS.725 AND 726/PN/2014 ASSESSEE IS A MOOT QUESTION. THERE IS NO BASIS SET OUT IN THE ORDER OF THE AO FOR COMING TO THE CONCLUSION THAT THE SEIZED DOCUM ENT EVIDENCES RECEIPT OF MONEY BY THE ASSESSEE FROM SOHANRAJ MEHTA. T HE PRESUMPTION U/S. 292C OF THE ACT IS ONLY WITH REFERENCE TO THE PE RSON SEARCHED AND IT CANNOT BE EXTENDED TO THE ASSESSEE. THERE IS NO CORROBOR ATIVE EVIDENCE OR STATEMENT OF SOHANRAJ MEHTA RELIED UPON BY THE AO , TO THE EFFECT THAT A SUM OF RS.22.75 LAKHS WAS PAID TO THE ASSESSEE. THE ASSESSEE HAS CATEGORICALLY DENIED HAVING RECEIVED ANY PAYMENT FR OM SOHANRAJ MEHTA. EVEN IN THE PROCEEDINGS BEFORE THE AO, WHEN THE ASSESSEE WAS EXAMINED, HE HAD TAKEN THE SAME STAND. THE DETAILS CALLED FOR I N THE SCRUTINY ASSESSMENT DID NOT CALL FOR ANY SPECIFIC DETAILS ON THE SE IZED DOCUMENT OR RECEIPT OF CASH BASED ON THE SEIZED DOCUMENT. 14. IN THE LIGHT OF THESE CIRCUMSTANCES, THE CIT(APPE ALS) WAS JUSTIFIED IN COMING TO THE CONCLUSION THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROVE THAT THE ASSESSEE RECEIVED THE SUM OF RS.22.75 LAKHS FROM SOHANRAJ MEHTA. THE ADDITION MADE BY THE AO WAS THER EFORE RIGHTLY DELETED BY THE CIT(A). WE DO NOT FIND ANY GROUND TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS). 51. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN TH E CASE OF M/S. MOHD. AYUB MOHD. YAKUB PERFUMERS PVT. LTD., (SUPRA) WHILE DELETING THE ADDITION UNDER IDENTICAL FACTS AND CIRCUMSTANCES AS HEL D AS UNDER : 2. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD AR E THAT DURING THE COURSE OF SEARCH CONDUCTED UPON SHRI. SOHANRAJ MEHTA, C&F OF RMD GUTKHA GROUP IN BANGALORE, STATEMENT OF ACCOUNT WAS SE IZED IN WHICH THERE WAS AN ENTRY OF RS.50 LAKHS IN THE NAME OF MALI K KANNAUJ. THIS ENTRY WAS INTERPRETED BY THE REVENUE AS THIS AMOUNT WA S GIVEN TO SHRI. ABDUL MALIK, MD OF THE ASSESSEE-COMPANY. ON THE BASIS OF SEIZED DOCUMENTS, THE ASSESSING OFFICER HAS FORMED A BELIEF IN T HE ASSESSEE'S CASE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSM ENT, AS THIS AMOUNT WAS NOT SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUN T. ACCORDINGLY A NOTICE UNDER SECTION 148 OF THE INCOME -TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT 'THE ACT') WAS ISSUED AN D ASSESSMENT WAS COMPLETED UNDER SECTION 147 OF THE ACT READ WITH SECT ION 144 OF THE ACT IN THE HANDS OF THE ASSESSEE, RESULTING INTO AN ADDITION OF RS.10.48 LAKHS AS PROFIT ON THIS UNACCOUNTED SALE OF RS.50 LAKHS. 3. AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A) WI TH THE SUBMISSION THAT NO DOCUMENT INDICATING PAYMENT OF RS.50 LAKHS TO THE ASSESSEE- COMPANY WAS FOUND DURING THE COURSE OF SEARCH. ONLY DU MB DOCUMENTS WERE FOUND IN WHICH THERE WAS A DEBIT ENTRY OF RS.50 LAKHKS IN THE NAME OF MALIK KANNAUJ. EVEN IN THE STATEMENT OF SHRI. SOH ANRAJ GUPTA, THERE WAS NO MENTION OF THE DIRECTOR OF THE ASSESSEE-COMPANY, SHRI. ABDUL MALIK. THEREFORE, THE LD. CIT(A) CAME TO THE CONCLU SION THAT IN THE ABSENCE OF ANY EVIDENCE INVOLVING THE ASSESSEE TO THE AL LEGED RECEIPT OF RS.50 LAKHS, REOPENING IN THE HANDS OF THE ASSESSEE UNDER SECTION 147 OF THE ACT IS NOT PROPER AND HE ACCORDINGLY ANNULLED TH E ASSESSMENT. 4. AGGRIEVED THE REVENUE HAS PREFERRED AN APPEAL BE FORE THE TRIBUNAL AND REITERATED ITS CONTENTIONS. DURING THE C OURSE OF HEARING, A SPECIFIC QUERY WAS RAISED FROM THE LD. D.R. AS TO WHAT EVIDENCE THEY HAVE COLLECTED DURING THE COURSE OF SEARCH OR THEREAFTER, ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS FORMED A BELIEF THAT THE INCOM E CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. NO SAT ISFACTORY 29 ITA NOS.725 AND 726/PN/2014 ANSWER WAS FURNISHED BY THE LD. D.R. WE HAVE ALSO CAREF ULLY PERUSED THE SEIZED DOCUMENTS AND WE FIND THAT THERE IS A DEBIT EN TRY OF RS.50 LAKHS IN THE NAME OF MLIK KANNAUJ, BUT THIS ENTRY DOES NOT IN DICATE THAT THE AMOUNT OF RS.50 LAKHS WAS GIVEN TO THE MANAGING DIRECT OR OF THE ASSESSEE. THERE MAY BE HUNDRED OF MALIK IN KANNAUJ BUT ON THE BASIS OF THIS DUMB DOCUMENT, THE REOPENING OF ASSESSMENT IN THE HANDS OF THE ASSESSEE IS NOT PERMISSIBLE. MOREOVER, THE SEARCHED PARTY HAS ALSO EXAMINED SHRI. SOHANRAJ GUPTA AND THE STATEMENT IS AL SO PLACED ON RECORD AND AT NOWHERE SHRI. SOHANRAJ GUPTA HAS DEPOSED ABOU T PAYMENT OF RS.50 LAKHS TO THE ASSESSEE. IN THE ABSENCE OF ANY RELEVAN T MATERIAL, THE REOPENING OF ASSESSMENT IN THE HANDS OF THE ASSESSEE IS NOT P ROPER. THE LD. CIT(A) HAS GIVEN VALID REASONS WHILE HOLDING THAT THE REOPENING IS BAD. THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) ARE EXTRA CTED HEREUNDER:- '5.1.6 FROM ALL THE AFORESAID CORRESPONDENCE, IT IS O BVIOUS THAT THERE IS NO CLUE AS TO HOW THE IDENTITY OF 'MALIK KANNAUJ' AS APPEARING IN THE SEIZED DOCUMENT (SUPRA) WAS INTERPRETED AS SHRI ABDUL M ALIK, MD OF THE APPELLANT COMPANY. IN THE STATEMENT GIVEN BY SHRI SO HANRAJ GUPTA, THERE IS NO MENTION OF ANY MALIK. FURTHER, IN HIS STATEMEN T UNDER OATH BEFORE THE ADIT(LNV), KANPUR, SHRI ABDUL MALIK, THE M.D. O F THE APPELLANT COMPANY HAD DENIED SUCH TRANSACTION. IN THESE CIRCUMST ANCES, I FAIL TO UNDERSTAND AS TO HOW, THE A.O. FORMED THE BELIEF THAT THE ENTRY IN THE NAME OF 'MALIK KANNAUJ' (AS APPEARING IN THE SEIZED D OCUMENT) REFERRED TO SHRI 'MALIK, M.D. OF THE APPELLANT COMPANY. FURT HER, EVEN FOR ARGUMENT SAKE IF 'MALIK KANNAUJ' INDEED REFERRED TO SHRI ABDU L MALIK, THE M.D. OF THE APPELLANT COMPANY, THERE WAS NO EVIDENCE/MATERIA L ON RECORD WHICH COULD LINK THAT PAYMENT TO THE ASSESSEE COMPANY. JUST BE CAUSE THE ADIT (INV), KANPUR HAD INFORMED THE A.O. THAT THE ENTRY OF PAYMENT OF RS. 50 LAKHS (AS MENTIONED IN THE SEIZED DOCUMENT) TO ONE 'MA LIK KANNAUJ' RELATED TO THE APPELLANT COMPANY (WITHOUT ANY SUPPOR TING IN THIS REGARD), TO SAME COULD NOT HAVE BEEN THE BASIS FOR THE A.O. TO INITIATE THE REASSESSMENT PROCEEDINGS IN THE CASE OF THE APPELLANT COM PANY. IT IS A TRITE LAW THAT THE 'REASONS TO BELIEVE' FOR REOPENING THE CASE SHOULD BE THAT OF THE A.O. ALONE AND COULD NOT BE FORMED AT T HE DICTATES OF OTHERS OR ON SUSPICION, CONJECTURES OR SURMISES. 5.1.7 IN THE INSTANT CASE, IN MY CONSIDERED VIEW, THE A.O. HAD NO MATERIAL BEFORE HIM WHICH COULD LINK THE SAID PAYMEN T TO THE APPELLANT COMPANY. THE 'REASONS TO BELIEVE' IN THE CASE HAVE BEE N RECORDED ON IRRELEVANT MATERIAL. ON THE BASIS OF SUCH MATERIAL, NO PRUDENT MAN COULD HAVE FORMED THE BELIEF THAT INCOME HAD ESCAPED ASSTT. IN THE HANDS OF THE APPELLANT COMPANY. ACCORDINGLY, I HOLD THAT THE VER Y ASSUMPTION OF JURISDICTION BY THE A.O. UNDER SECTION 147 OF THE ACT WAS ILLEGAL AND, THEREFORE, ANY ASSTT. FRAMED PURSUANT TO SUCH ILLEGALIT Y CANNOT BE SUSTAINED. THUS, THE WHOLE ASSTT. FRAMED U/S 147 IS HEREBY ANNULLED, WHILE TAKING THIS VIEW, I AM FORTIFIED BY THE DECISIO NS OF THE HON'BLE APEX COURT IN FIE CASE OF CIT VS DAULAT RAM RAWAT MULL (87 ITR 349) WHEREIN, IT WAS HELD: 'THERE SHOULD, IN OUR OPINION, BE SOME DIRECT NEXUS BE TWEEN THE CONCLUSION OF FACT ARRIVED AT BY THE AUTHORITY CONCE RNED AND THE PRIMARY FACTS UPON WHICH THE CONCLUSION IS BASED. THE USE OF EXT RANEOUS AND IRRELEVANT MATERIAL IN ARRIVING AT THAT CONCLUSION W OULD VITIATE THE CONCLUSION OF FACTS..............................' IN THE RESULT, THE APPEAL IS ALLOWED.' 30 ITA NOS.725 AND 726/PN/2014 5. SINCE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A), WE CONFIRM HIS ORDER. 52. SIMILARLY THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. PAWAN KUMAR AGARWAL (SUPRA) HAS HELD AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND T HAT THE ISSUE IN DISPUTE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 7 & 7.1 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFER ENCE:- 7. THAT VIDE GROUNDS NO. 3 TO 7, ASSESSEE HAS CHALLENGED THE ADDITIONS OF RS.1,13,40,000/- MADE ON ACCOUNT OF ALLEGED UNDISCLOSE D INCOME. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD. I HAVE ALSO GONE THROUGH THE ORDER OF THE A. O. IT WAS CONTENDED BY THE LEARNED AR BEFORE ME THAT MERE JOTTINGS AND NOTI NGS SHOULD NOT BE THE BASIS FOR MAKING ANY ADDITION IN THE RETURNED INC OME, MORE PARTICULARLY WHEN A.O HAS NOT ALLOWED THE OPPORTUNIT Y OF CROSS EXAMINATION OF MR. SHOBHAN RAJ MEHTA. THE MATERIAL PROVIDED/GATHERED BY THE DEPARTMENT HAS ALSO BEEN PRODUCED BEFORE ME. I N THIS PAPER, IT IS SEEN THAT NAME OF ASSESSEE IS APPEARING. IT WAS VEHEMENT LY ARGUED BEFORE ME THAT HOW THE DEPARTMENT COMES INTO CONCLUSION THAT NAME PAWAN AGARWAL AS APPEARING IN THE SEIZED MATERIAL IS APPELLA NT. THE NAME OF APPELLANT IS VERY COMMON AND IT IS POSSIBLE TO BE SOME O THER PAWAN AGARWAL INSTEAD OF APPELLANT. THE SUBMISSIONS OF THE AP PELLANT ARE CONSIDERED. ON EXAMINATION OF THE ASSESSMENT RECORD IT I S SEEN THAT THE APPELLANT CATEGORICALLY DENIED HAVING ANY FINANCIAL OR BUSINESS TRANSACTION WITH SH.SHOBHAN RAJ MEHTA. A REQUEST WAS A LSO MADE TO PROVIDE COMPLETE STATEMENTS ON THE BASIS OF WHICH ADDIT ION WAS BEING CONTEMPLATED BY THE ASSESSING OFFICER. HOWEVER, THE ASSE SSING OFFICER DID NOT PROVIDE THE COPIES OF THOSE STATEMENTS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DID NOT THROW ANY LIGHT ON ANY INQUIRY/ INVESTIGATION CARRIED OUT BY HIM THAT C OULD JUSTIFY THE ADDITIONS MADE BY HIM. THAT ASSESSEE HAS VEHEMENTLY STATED THAT THE DEPARTMENT HAS NOT PROVED THAT THE IDENTITY OF SHRI PAWAN AGARWAL WITH THE ASSESSEE AND NO SLIP, LETTER, DOCUMENT ETC. SHOWING ANY RELATIONSHIP OF ASSESSEE WITH SHRI SHOBHAN RAJ MEHTA WERE NOT FOUND FRO M THE POSSESSION OF SHRI SHOBHAN RAJ METHA. THE A.O HAS REQUIR ED ASSESSEE'S COPY OF ACCOUNTS IN THE BOOKS OF M/S. DHARIWAL INDUSTRI ES, PUNE AND THIS WAS FOUND VERIFIED FROM THE ASSESSEE'S BOOKS OF A/C. IT I S CLEAR THAT THE ASSESSEE HAS BUSINESS RELATIONSHIP WITH M/S. DHARIWAL INDUSTRI ES, PUNE AND NOT WITH THE SHOBHAN RAJ MEHTA. THEREFORE, IT I S CLEAR THAT THE ADDITION MADE BY THE ASSESSING OFFICER PURELY BASED ON G UESS WORK WITHOUT ANY EVIDENCE, THEREFORE THIS ADDITION DESERVE S TO BE DELETED. 7.1 FROM THE FACTS ENUMERATED ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER FAILED TO ESTABLISH ANY CASE AGAINST THE APPELLANT. FUR THER INQUIRY/ INVESTIGATION WAS REQUIRED TO BE CARRIED OUT ON THE I NFORMATION PASSED BY THE ADIT(INV.)- III, KANPUR BUT EVIDENCES ARE NOT CO LLECTED OR PLACED. COPIES OF THE STATEMENTS, ON THE BASIS OF WHICH ADDITION S HAS BEEN MADE, WERE NOT PROVIDED NOR WAS THE OPPORTUNITY OF CROSS- E XAMINATION GIVEN TO THE APPELLANT. THE ASSESSING OFFICER MERELY SUMMARIZE D THE SALIENT FEATURES OF THE REPORT OF THE ADIT (INV.)-III, KANPU R AND THEREAFTER SUMMARILY REJECTED THE REPLY OF THE APPELLANT AS NOT SATISFACTORY. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, CONTENDS THA T NEITHER THE SAID SHRI SHOBHAN RAJ MEHTA WAS ALLOWED TO BE CROSS-EX AMINED NOR A COPY OF HIS STATEMENT WAS GIVEN DESPITE SEVERAL REQUESTS. THE AO'S CONTENTION TO THE EFFECT THAT THE CONTENTS OF THE ST ATEMENT WERE MADE 31 ITA NOS.725 AND 726/PN/2014 KNOWN TO THE ASSESSEE, IS NOT A COMPLIANCE OF MANDATORY REQUIREMENT TO PROVIDE THE ASSESSEE INCRIMINATING MATERIAL TO DEFEND I TS OWN CASE AND THEREFORE IT CAN CATEGORICALLY BE HELD THAT: (I) STATEMENT OF SHRI SHOBHAN RAJ MEHTA WAS NOT GIVE N TO THE ASSESSEE. (II) BEYOND THE BELIEF OF PRESUMPTION ON THE INFORMA TION SUPPLIED BY THE ADIT(INV.)-III, KANPUR, FURTHER EVIDENCES ARE NOT FO UND TO CORROBORATE THE ADDITIONS. (III) CROSS-EXAMINATION OF SHRI SHOBHAN RAJ MEHTA WA S NOT ALLOWED. (IV) THE ASSESSEE FIRM HAD STRONGLY DENIED HAVING ANY FI NANCIAL AND BUSINESS TRANSACTIONS WITH MR. SHOBHAN RAJ MEHTA. IN VIEW OF THESE FACTUAL EXIGENCIES, IT IS HELD THAT T HE ADDITION MADE BY THE AO, WITHOUT ANY CORROBORATIVE EVIDENCE, WAS UNJUSTIFI ED AND ACCORDINGLY DELETED. ACCORDINGLY, GROUND NO. 3 TO 7 RAISED BY AP PELLANT ARE ALLOWED. 5.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), W E FIND THAT A CATEGORICAL FINDING HAS BEEN GIVEN BY HIM THAT STATEM ENT OF SHRI SHOBHAN RAJ MEHTA WAS NOT GIVEN TO THE ASSESSEE AND BEYOND THE B ELIEF OF PRESUMPTION ON THE INFORMATION SUPPLIED BY THE ADIT(I NV.)-III, KANPUR, FURTHER EVIDENCES ARE NOT FOUND TO CORROBORATE THE A DDITIONS. HE HAS ALSO GIVEN A FINDING THAT CROSS-EXAMINATION OF SHRI SHOBH AN RAJ MEHTA WAS NOT ALLOWED AND THE ASSESSEE FIRM HAD STRONGLY DENIED HA VING ANY FINANCIAL AND BUSINESS TRANSACTIONS WITH MR. SHOBHAN RAJ MEHTA. THESE FINDINGS OF CIT(A) COULD NOT BE CONTROVERTED BY LEAR NED D.R. OF THE REVENUE AND MOREOVER, THE NAME OF THE ASSESSEE I.E. PAW AN KUMAR AGARWAL IS VERY COMMON NAME AND MERELY BECAUSE THIS NA ME IS MENTIONED IN A SEIZED PAPER FOUND DURING THE COURSE O F SEARCH AT BANGALORE AT THE PREMISES OF SHRI SHOBHAN RAJ MEHTA, WITH WHOM THE ASSESSEE WAS NOT HAVING ANY DIRECT TRANSACTION, IT CANNOT BE SAID THAT THE SAID PAWAN KUMAR AGARWAL, OF WHOM THE NAME WAS MENTIO NED IN THE SEIZED PAPER IS THE ASSESSEE. WITHOUT ESTABLISHING THIS ASP ECT THAT THE NAME MENTIONED IN THE SEIZED PAPER IS THAT OF THE ASSESSE E, NO ADDITION CAN BE MADE IN THE HANDS OF THE PRESENT ASSESSEE ON THE BASIS OF SUCH SEIZED PAPER. CONSIDERING THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 53. WE FIND THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. BHOLA NATH RADHA KRISHAN (SUPRA) WHILE DELETING AN IDENTIC AL ISSUE HAS OBSERVED AS UNDER : 7. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ABOVE ORDER OF LEARNED 7 ITA- 5149/DEL/2012 CIT(A). THE ADDITION HAS BEEN MADE ON THE BASIS OF CERTAIN CHITS FOUND FROM SHRI SOHAN RAJ MEHTA AND HI S STATEMENT. ADMITTEDLY, THE ASSESSEE HAS NO DEALING WITH SHRI SOHAN RAJ MEHTA. THE ASSESSEE IS SUPPLYING GOODS (SUPARI) TO RMD GROUP WHO ARE MANUFACTURING GUTKHA. SHRI SOHAN RAJ MEHTA IS C&F AG ENT FOR KARNATAKA REGION OF RMD GROUP. THE SEARCH HAD TAKEN PLACE AT T HE ASSESSEE'S BUSINESS PREMISES AS WELL AS AT THE BUSINESS PREMISES OF RMD GROUP. NO EVIDENCE OF ANY UNRECORDED SALE BY THE ASSESSEE OR UNRE CORDED PURCHASE BY RMD GROUP WAS FOUND. THUS, WHEN, DESPITE SEARCH AT T HE PREMISES OF SELLER AND BUYER, NO EVIDENCE OF ANY UNRECORDED SALE OR PURCHASE IS 32 ITA NOS.725 AND 726/PN/2014 FOUND, IN OUR OPINION, MERELY BECAUSE IN THE CHITS FO UND AT THE PREMISES OF SOME THIRD PARTY WITH WHOM THE ASSESSEE HAS NO BUSINESS D EALING, IT CANNOT BE PRESUMED THAT THE ASSESSEE IS MAKING SALES OUTSI DE BOOKS. MOREOVER, AS PER CHITS FOUND FROM SHRI SOHAN RAJ MEH TA, THE PAYMENT MADE TO THE ASSESSEE IS ONLY `9 LAKHS AND NOT `9 CRORES. THE DEPARTMENT HAS ALSO RELIED UPON THE STATEMENT OF SHRI SOHAN RAJ MEHTA. IT WAS POINTED OUT BY THE LEARNED COUNSEL THAT SHRI SOHAN R AJ MEHTA RETRACTED HIS STATEMENT. HOWEVER, AS PER REVENUE, SHRI SOHAN RAJ MEHTA HAS RETRACTED HIS RETRACTION AFFIRMING THE ORIGINAL STATE MENT. ON THESE FACTS, THE LEARNED CIT(A) HAS COME TO THE CONCLUSION THAT TH E STATEMENT OF SHRI SOHAN RAJ MEHTA CANNOT BE RELIED UPON BECAUSE HE IS F REQUENTLY RETRACTING HIS STATEMENT. MOREOVER, A STATEMENT OF A T HIRD PARTY CANNOT BE USED AGAINST THE ASSESSEE UNLESS THE ASSESSEE IS ALLOWED AN OPPO RTUNITY TO CROSS-EXAMINE HIM. NOW, WE FIND THAT DURING THE A SSESSMENT PROCEEDINGS, THE ASSESSEE SPECIFICALLY REQUESTED FOR ALLO WING OPPORTUNITY TO CROSS-EXAMINE SHRI SOHAN RAJ MEHTA ALSO AND REQUEST ED THE ASSESSING OFFICER TO SUPPLY THE COPY OF RETRACTION OF HIS STATE MENT. THE ASSESSING OFFICER HAS REPRODUCED THE ASSESSEE'S LETTER, PARAGRAPH N O.11 OF WHICH, READS AS UNDER:- '11. THE ASSESSEE HAD REQUESTED YOUR GOOD SELF TO PROVIDE THE FOLLOWING DOCUMENTS: (A) COPY OF THE SWORN STATEMENT OF SH. SOHANRAJ ME HTA. (B) COPY OF WRITTEN STATEMENTS OR AFFIDAVITS OBTAINED FROM SH. MEHTA WHEREIN HE HAS MENTIONED THAT RS.9 CRORE WAS PAYABLE T O THE ASSESSEE. (C) COPY OF SUBSEQUENT RETRACTION OF THE STATEMENTS MAD E AT THE TIME OF SEARCH OPERATION, IF ANY. (D) COPY OF RECEIPTS OBTAINED FROM THE ASSESSEE BY SH. S OHANRAJ MEHTA ON PAYMENT TO THE ASSESSEE, IF ANY. THE ASSESSEE HAS BEEN PROVIDED STATEMENT OF SH.SOHAN RAJ MEHTA. HOWEVER, IT IS FURTHER SUBMITTED THAT THE ASSESSEE SHOULD BE GIVEN THE OPPORTUNITY TO CROSS EXAMINE THE GENUINENESS OF THE STA TEMENTS OF SH. SOHAN RAJ MEHTA AND SHOULD BE GIVEN REASONABLE OPPOR TUNITY TO VERIFY THE CLAIMS MADE BY HIM. IN THE CASE OF KISHAN CHAND CH ELARAM (125 ITR) IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT OF IND IA THAT BEFORE TAKING A DECISION THE ASSESSEE HAS TO BE ALLOWED A CHANCE OR AN OPPORTUNITY OF REBUTTAL WITH RESPECT TO THE DOCUMENTS WHICH ARE TO B E USED AGAINST THE ASSESSEE. THE ASSESSEE HAS GONE THROUGH THE ENTIRE STATEMENT S OF SH. SOHAN RAJ MEHTA RECORDED UNDER SECTION 132(4) OF THE INCOME TAX ACT. NOWHERE THERE IS ANY MENTION OF BHOLA NATH RADHA KISH AN OR ANY OF ITS PARTNER IN THE SAID STATEMENT. THE ASSESSEE CANNOT BE HEL D LIABLE FOR ANY ACT OF THE OMISSION OR COMMISSION DONE BY HIM. MR. SOHA N RAJ MEHTA'S STATEMENT REGARDING DECODING OF FIGURES IS ALSO NOT APP LICABLE ON THE ASSESSEE SINCE THIS HAS NO BEARING OR NEXUS OF CONNECTION W ITH THE ASSESSEE FIRM OR ITS BUSINESS TRANSACTION. NO ADDITION OR ADVERSE DECISIONS CAN BE TAKEN ON THE B ASIS OF SURMISES AND/OR CONJECTURES. THERE HAS TO BE SPECIFIC MENTION O F M/S BHOLA NATH RADHA KISHAN, 6377, NAYA BANS, KAHRI BAOLI, NEW DELHI IN ORDER TO LINK ANY PAYMENT TO IT FROM MR. SOHAN RAJ MEHTA OR ANYBO DY ELSE...........' (EMPHASIS BY UNDERLINING SUPPLIED BY US) 8. THE ASSESSING OFFICER HAS DEALT WITH THIS LETTER BUT HE HAS NOT GIVEN ANY REASON FOR NOT ALLOWING THE ASSESSEE AN OPPORT UNITY TO CROSS- EXAMINE SHRI SOHAN RAJ MEHTA. SIMILARLY, HE HAS NEIT HER SUPPLIED THE COPY 33 ITA NOS.725 AND 726/PN/2014 OF RETRACTION OF HIS STATEMENT NOR DEALT WITH THE RET RACTION IN THE 9 ITA- 5149/DEL/2012 ASSESSMENT ORDER. IT IS ONLY IN THE REMAND REPORT HE HAS MENTIONED THAT SHRI SOHAN RAJ MEHTA HAS RETRACTED HI S RETRACTION ALSO. CONSIDERING THE TOTALITY OF ABOVE FACTS, WE ENTIRELY AGREE WITH THE LEARNED CIT(A) THAT THE STATEMENT OF SHRI SOHAN RAJ MEHTA CA NNOT BE USED AGAINST THE ASSESSEE AND, SIMILARLY, THE CHITS FOUND FROM THE THI RD PARTY, WITH WHICH THE ASSESSEE HAS NO DEALING, CANNOT BE USED AGAINST THE ASSESSEE IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. THAT MERE LY BECAUSE SOME EXCESS STOCK WAS FOUND IN THE SURVEY FOR WHICH SEPARATE A DDITION HAS ALREADY BEEN MADE, IT CANNOT BE FURTHER PRESUMED THA T THE ASSESSEE MADE SALES OUTSIDE THE BOOKS, SPECIALLY WHEN THE SURVEY WAS FO LLOWED BY THE SEARCH AND NEITHER DURING THE COURSE OF SURVEY NOR DUR ING THE COURSE OF SEARCH, ANY EVIDENCE OF SALE OUTSIDE THE BOOKS WAS FOUND . IN VIEW OF THE TOTALITY OF ABOVE FACTS, WE DO NOT FIND ANY JUSTIFICA TION TO INTERFERE WITH THE ORDER OF LEARNED CIT(A). THE SAME IS SUSTAINED. 54. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF PRADEEP AMRUTLAL RUNWAL REPORTED IN 149 ITR 548 WHILE DELET ING ADDITION UNDER IDENTICAL FACTS AND CIRCUMSTANCES HAS OBSERVED AS UNDER : 5. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATE RIAL ON RECORD, WE FIND THAT THE ISSUE BEFORE US IS REGARDING THE ADD ITION OF RS. 5,10,00,000/-. AS STATED EARLIER, DURING THE SEARCH PR OCEEDINGS IN THE CASE OF DHARIWAL GROUP, SOME LOOSE PAPERS WERE SEIZED WHEREI N CERTAIN AMOUNTS WERE WRITTEN AGAINST THE NAME OF 'PRADEEP RUN WAL'. HENCE, THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 OF THE INCOME T AX ACT. IT WAS EXPLAINED TO THE LEARNED ASSESSING OFFICER THAT THE ASSESSE E HAD NOT EARNED ANY SUCH INCOME OF RS. 5.10 CRS. AND THEREFORE, NO ADDITION SHOULD BE MADE. HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE CONTENTION OF THE ASSESSEE. 5.1 THE ASSESSING OFFICER HAS STATED THAT THE PAPERS WERE SEIZED FROM DHARIWAL GROUP. THE SAID PAPERS WERE SEIZED FROM THE RESIDENCE OF SHRI SOHANRAJ MEHTA. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE COULD NOT DISOWN THE EXISTENCE OF SUCH DOCUMENTS. THE ASSESSING O FFICER OBSERVED THAT THE MONEY HAS BEEN PASSED ON BY DHARIWAL GROUP THROUGH THEIR STAFF. HENCE, THE ASSESSEE MUST HAVE RECEIVED THE A MOUNT NOTED ON THE SEIZED PAPERS. THE ASSESSING OFFICER HAS PROCEEDED TO MAKE THE ADDITION OF RS.5.10 CRS. BY STATING THAT AS PER SECTION 114 OF THE INDIAN EVIDENCE ACT, IT IS AN ACCEPTED RULE OF EVIDENCE THA T IF A PERSON POSSESSING AN EVIDENCE DOES NOT PRODUCE IT, THE INFERENCE IS TH AT SUCH EVIDENCE IF PRODUCED IS DETRIMENTAL TO HIM. ACCORDINGLY, THE ASSESSI NG OFFICER HELD THAT THE SAID RECEIPTS WERE THE INCOME OF THE ASSESSEE. 5.2 THE ASSESSING OFFICER HAS FURTHER HELD THAT ACCORDI NG TO THE PROVISIONS OF SECTION 80 OF THE INDIAN EVIDENCE ACT, T HERE IS A PRESUMPTION AS TO THE DOCUMENTS PRODUCED AS RECORD OF E VIDENCE ARE GENUINE. HENCE, HE HAS HELD THAT THE DOCUMENTS SEIZED FROM DHARIWAL GROUP COULD BE RELIED UPON FOR MAKING ADDITION IN T HE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER HAS PLACED RELIANCE ON THE D ECISIONS OF SUMATI DAYAL VS. CIT [(1995) 214 ITR 801(SC)], CIT V S. DURGA PRASAD MORE [(1969)72 ITR 807(SC], HIMMATRAM LAXMINARAIN V S. CIT [(1986)161 ITR 7(P&H)], CIT VS. GANAPATHI MUDALIAR [ (1964)53 ITR 623(SC)] AND CIT VS. LACCHMAN DASS OSWAL [(1980)126 ITR 446(P&H)]. 34 ITA NOS.725 AND 726/PN/2014 5.3 ACCORDING TO US, THE ADDITIONS MADE BY THE ASSESSIN G OFFICER WERE NOT JUSTIFIED IN THE FACTS AND CIRCUMSTANCES VIS--VIS O F THE ASSESSEE. AS DISCUSSED EARLIER, DURING THE COURSE OF SEARCH IN THE CA SE OF DHARIWAL GROUP, THE ONLY DOCUMENTS FOUND ON THE BASIS OF WHICH THE ADDITION U/S 69A HAS BEEN MADE IN THE CASE OF THE ASSESSEE ARE IN THE FORM OF TWO LOOSE PAPERS WHEREIN AMOUNTS OF RS. 4.80 CRORES AND RS. 30 LACS WERE NOTED AGAINST THE NAME 'MR. PRADEEP RUNWAL'. APART F ROM THIS, NO EVIDENCE HAS BEEN FOUND TO SUGGEST THAT THE ASSESSEE HAD A CTUALLY RECEIVED THE SAID AMOUNT OR THAT THE ASSESSEE HAD ENTER ED INTO ANY TRANSACTION WITH DHARIWAL GROUP. THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THE ASSESSEE HAS PREVIOUS BUSINESS RELATIONS WITH THE DHARIWAL GROUP. IN THE ABSENCE OF ANY DOCUMENTARY EV IDENCE TO SUGGEST THE SAME, IT COULD NOT BE PRESUMED THAT THE AMOUNTS RE FLECTED IN THE LOOSE PAPERS WERE THE INCOME OF THE ASSESSEE RECEIVED FRO M DHARIWAL GROUP. IT HAS BEEN THE CONSISTENT STAND OF THE ASSESSEE TH AT THERE MAY BE MANY PERSONS OF THE NAME PRADEEP RUNWAL IN PUNE AND T HERE WAS NO SPECIFIC EVIDENCE TO SUGGEST THAT THE SAID NOTINGS PERT AINED TO THE ASSESSEE. HENCE, IT WAS NOT JUSTIFIED AS TO HOW, IN THE AB SENCE OF ANY OTHER CORROBORATIVE DETAILS, THE ASSESSING OFFICER HAS ASSUMED TH AT THE AMOUNTS REFLECTED THE INCOME OF THE ASSESSEE HIMSELF, WH ILE THE ASSESSEE HAS NO BUSINESS DEALINGS OF HIS WITH DHARIWAL GROUP. THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SUG GEST THAT DHARIWAL GROUP HAS ADMITTED THAT THE AMOUNTS WERE PAID TO THE ASSESSEE. HENCE, SIMPLY BECAUSE THE NAME OF THE ASSESSEE IS NOTED ON THE SEI ZED PAPERS DOES NOT MEAN THAT THE ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE. SINCE NO EVIDENCE WAS FOUND RELATING TO THE E XISTENCE OF ANY TRANSACTION BETWEEN THE ASSESSEE AND DHARIWAL GROUP AND IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE TO SUGGEST THAT THE ASSESSE E HAD ACTUALLY RECEIVED THE SAID AMOUNT, NO ADDITION COULD BE MADE MERELY ON THE BASIS OF NOTING IN LOOSE PAPERS FOUND DURING THE SEARCH PROC EEDINGS IN THE CASE OF DHARIWAL GROUP AGAINST THE NAME OF THE ASSESSEE. 5.4 THE PRESUMPTION U/S 132(4A) IS AVAILABLE ONLY IN RESPECT OF THE PERSON FROM WHOM THE PAPER IS SEIZED. IT COULD NOT BE APPLIED AGAINST A THIRD PARTY AND HENCE, NO ADDITION COULD BE MADE ON THE BASIS OF THE EVIDENCE FOUND WITH THIRD PARTY. THE PRESUMPTION U/S. 132(4A) COULD BE USED ONLY AGAINST THE PERSON FROM WHOSE PREMISES THE DOCU MENTS ARE FOUND AND NOT AGAINST THE PERSON WHOSE NAME APPEARS IN THE SEIZED PAPERS. 5.5 IN THIS CASE, THE ADDITION HAS BEEN MADE ON THE B ASIS OF THE DOCUMENTS FOUND WITH DHARIWAL GROUP AND THUS, THE PRE SUMPTION U/S. 132(4A) COULD NOT BE USED AGAINST THE ASSESSEE SINCE NO I NCRIMINATING DOCUMENTS WERE FOUND WITH IT. IN THE CASE OF ACIT VS. LATA MANGESHKAR (MISS) (1974) 97 ITR 696 (BOM), THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE ENTRIES IN THE BOOKS OF T HIRD PERSONS. HON'BLE BOMBAY HIGH COURT HELD THAT SUCH ADDITION C OULD NOT BE MADE ONLY ON THE BASIS OF THE NOTINGS IN THE BOOKS OF THIRD PERSONS. THE FACTS OF THE PRESENT CASE ARE COVERED BY THE DECISION OF LATA M ANGESHKAR (SUPRA). IT IS A SETTLED LEGAL POSITION THAT THE DECISION OF JUR ISDICTIONAL HIGH COURT IS BINDING ON ALL AUTHORITIES BELOW IT. THUS, THE RELIAN CE PLACED BY THE ASSESSING OFFICER ON THE LOOSE PAPERS IS NOT JUSTIFIED AT ALL. THEREFORE, THE QUESTION OF MAKING ANY ADDITION IS NOT JUSTIFIED IN TH E ABSENCE OF OTHER CORROBORATIVE EVIDENCE TO THAT EFFECT. 35 ITA NOS.725 AND 726/PN/2014 5.6 WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AU THORIZED REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER WAS NO T JUSTIFIED IN MAKING THE ADDITIONS BY RELYING ON THE PROVISIONS OF SE CTION 114 OF THE INDIAN EVIDENCE ACT. THE CONCERNED ASSESSING OFFICER H AS REFERRED THE AFORESAID SECTION WHICH STATES THAT THE COURT MAY PRESUM E THAT THE EVIDENCE WHICH COULD BE AND IS NOT PRODUCED WOULD, I F PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT. IT IS PER TINENT TO MENTION THIS RULE APPLIES TO THE CASES WHEREIN IT IS EVIDENT O R AN ESTABLISHED FACT THAT A PARTICULAR EVIDENCE OR DOCUMENT WAS IN POSSESSION OF THE ASSESSEE. FOR EXAMPLE, AN OWNER OF A LAND MAY WELL BE EXPECTE D TO BE IN POSSESSION OF A 7/12 EXTRACT OF THE SAID LAND IN ORDER TO CHECK WHETHER THE SAID LAND WAS USED FOR AGRICULTURAL PURPOSES. IN THE PRESENT CASE, THE PROVISIONS RELIED BY THE ASSESSING OFFICER ARE NOT APPLICABLE, THE ASSESSEE IS NOT WITHHOLDING ANY DOCUMENTS. THE CASE OF DEPARTMENT IS T HAT THE AMOUNT MENTIONED ON THE SEIZED PAPER FOUND WITH THE DHARIW AL GROUP INDICATES THAT THE ASSESSEE HAS RECEIVED THE AMOUNT, THEREFORE, T HE BURDEN WAS ON THE ASSESSING OFFICER TO ESTABLISH THE SAME. THE RELIANCE PLACED ON THE PROVISIONS OF SECTION 114 OF INDIAN EVIDENCE ACT IS MISP LACED. 5.7 AS STATED ABOVE, IT HAS BEEN CONSISTENT STAND OF THE ASSESSEE THAT THE ASSESSEE HAS HAD NO BUSINESS RELATIONS WHATSOEVER WITH T HE DHARIWAL GROUP. FURTHER, APART FROM THE NOTING ON PAPER WITH THE NAME 'PRADEEP RUNWAL, THERE IS NO CORROBORATIVE EVIDENCE IN THIS RE GARD AGAINST THE ASSESSEE. IN SUCH CIRCUMSTANCES, WHERE THE ASSESSEE HAS NOT EN TERED INTO ANY TRANSACTION WITH THE DHARIWAL GROUP, ONE CERTAIN LY COULD NOT EXPECT THE ASSESSEE TO BE IN POSSESSION OF ANY EVIDENCE TO SUGGEST T HAT IT HAS NOT ENTERED INTO ANY SUCH TRANSACTION EXCEPT FOR HIS BOOKS OF ACCOUNT WHICH HAVE ALREADY BEEN VERIFIED BY THE CONCERNED ASSESSING O FFICER. HENCE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN PLACING RELIANCE ON THE PROVISION OF SECTION 114 OF THE INDIAN EVIDENCE ACT. 5.8 IT WAS FURTHER SUBMITTED ON BEHALF OF ASSESSEE THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION BY R ELYING ON THE PROVISIONS OF SECTION 80 OF THE INDIAN EVIDENCE ACT WH ICH STATES THAT THERE IS A PRESUMPTION THAT THE DOCUMENTS PRODUCED BEF ORE THE COURT AS RECORD OF EVIDENCE ARE GENUINE. IN THIS REGARD, THE STAND OF THE ASSESSEE IS THAT IN THE CASE OF ASSESSEE, DOCUMENT PRODUCED WAS MEREL Y IN THE FORM OF A ROUGH NOTING WHEREIN CERTAIN AMOUNTS WERE WRIT TEN AGAINST THE NAME 'PRADEEP RUNWAL'. AS DISCUSSED EARLIER, THERE MAY BE MANY PEOPLE OF THAT NAME IN PUNE AND IN THE ABSENCE OF ANY OTHE R CORROBORATIVE EVIDENCE TO THAT EFFECT. IN SUCH A SITUATION, IT CANN OT BE INFERRED THAT IT BELONGS TO THE ASSESSEE. 5.9 WHILE MAKING THE ADDITION OF RS. 5.10 CRORES AS ST ATED ABOVE, THE CIT(A) RELIED ON THE FOLLOWING DECISIONS OF SUMATI DA YAL VS. CIT [(1995) 214 ITR 801(SC)], CIT VS. DURGA PRASAD MORE [(1969)72 ITR 807(SC], HIMMATRAM LAXMINARAIN VS. CIT [(1986)161 ITR 7(P&H)] , CIT VS. GANAPATHI MUDALIAR [(1964)53 ITR 623(SC)] AND CIT V S. LACCHMAN DASS OSWAL [(1980)126 ITR 446(P&H)]. IN THIS REGARD, THE STAND OF THE ASSESSEE HAS BEEN THAT THE CASE LAWS RELIED BY THE ASSESSING O FFICER ARE DIFFERENTIABLE ON FACTS AND HENCE, THE SAME ARE NOT A PPLICABLE TO THE CASE OF THE ASSESSEE. IN ALL THE CASES RELIED BY THE ASSESSING OFF ICER, THE FACT THAT THE ASSESSEE HAD ACTUALLY EARNED INCOME OR RECEIVE D AMOUNTS BY WAY OF CASH CREDITS, UNEXPLAINED INVESTMENT ETC. WAS NOT UN DER DISPUTE. THE ISSUE RELATED TO WHETHER THE RECEIPTS WERE RECEIVED FR OM GENUINE LENDERS OR WHETHER THE INVESTMENTS OR RECEIPTS WERE A PART OF THE DISCLOSED 36 ITA NOS.725 AND 726/PN/2014 SOURCES OF INCOME OF THE ASSESSEE. WE FIND THAT IN THE PR ESENT CASE, THE ISSUE IN QUESTION ITSELF IS WHETHER ROUGH NOTING ON LOOSE PAPER FOUND IN THE COURSE OF SEARCH AT THE PREMISES OF THIRD PERSON COU LD BE ASSUMED THE INCOME FROM THE ASSESSEE AS IN THE CASES RELIED BY THE ASSE SSING OFFICER. THIS FACT HAS NOT BEEN ESTABLISHED IN THE CASE OF ASSESSEE, THEREFORE, THE CASE LAWS RELIED BY THE ASSESSING OFFICER ARE CLEARLY DIST INGUISHABLE ON FACTS AND HENCE, NOT APPLICABLE TO THE CASE OF THE ASSE SSEE. 5.10 ACCORDING TO CIT(A), THE NAME OF THE ASSESSEE AP PEARS ON THE SEIZED PAPERS AND SEIZED DOCUMENTS GIVE A DETAILED AND MINUTE NOTING OF THE TRANSACTIONS OF DHARIWAL GROUP. HE HAS STATED THAT SHRI SOHANRAJ MEHTA HAS ADMITTED THAT THE DOCUMENTS WERE WRITTEN B Y HIM AND MOST OF THE PAPERS WERE WRITTEN IN MARWADI LANGUAGE. THE CIT (A) REFERRED TO THE FACT THAT SHRI MEHTA HAD ADMITTED THAT THE PAPERS BE LONGED TO DHARIWAL GROUP. IN PARA 4.3, THE CIT(A) STATES THAT WHEN THE A UTHOR OF THE PAPER HAS ACCEPTED THE NOTINGS MADE BY HIM, IN THAT EVENT, THE DOCUMENT IS HAVING GREAT EVIDENTIARY VALUE AND COULD NOT BE REJ ECTED. AS REGARDS, THE OBJECTION OF THE ASSESSEE THAT NO EVIDENCE WAS FOUND TO INDICATE THAT THE ASSESSEE HAD RECEIVED THE AMOUNT, THE CIT(A) REFERRED T O THE FACT OF ACCEPTANCE OF THE PAPER BY SHRI MEHTA AND CONSIDERIN G THE FACT THAT THE MODUS OPERANDI WAS CLARIFIED BY SHRI MEHTA, THE ADDIT ION WAS RIGHTLY MADE BY THE ASSESSING OFFICER, HAS BEEN HELD BY CIT(A). HE HAS REFERRED TO VARIOUS DECISIONS IN SUPPORT OF THE ADDITION MADE. F IRSTLY, HE HAS RELIED UPON THE DECISION OF ITAT THIRD MEMBER IN THE CASE OF KHOPADE KISANRAO MANIKRAO [74 ITD 25]. IN THIS REGARD, THE STAND OF ASSE SSEE IS THAT THE DECISION IN THE CASE BEFORE THIRD MEMBER WAS NOT APPLI CABLE TO THE FACTS OF THE PRESENT CASE. IN THE SAID CASE, THE ASSESSEE WAS SEARC HED AND DOCUMENTS WERE FOUND INDICATING ON MONEY RECEIVED ON SALE OF PLOTS. ON THE BASIS OF THE DOCUMENTS FOUND, THE ASSESSING OFFICER EST IMATED THE INCOME FROM ON MONEY WHICH WAS HELD TO BE VALID. IN THAT CASE, THE ISSUE THAT NO ADDITION COULD BE MADE ON THE BASIS OF DOCUME NTS FOUND WITH THIRD PARTY WAS NEITHER RAISED NOR APPLICABLE. THUS, A CCORDING TO US, THE SAID DECISION HAS NO APPLICATION TO THE FACTS OF THE ASSE SSEE'S CASE. 5.11 THE CIT(A) IN PARA 2.5 HAS PLACED RELIANCE UPO N ITAT, PUNE DECISION IN THE CASE OF DHANVARSHA BUILDERS AND DEVELOP ERS PVT. LTD. [102 ITD 375]. IN THE SAID CASE, THE ASSESSEE WAS SEARCHED AND DOCUMENTS WERE FOUND INDICATING ON MONEY RECEIVED BY THE ASSESSEE . IT WAS HELD THAT THE DOCUMENT WAS FOUND WITH THE ASSESSEE AND THER EFORE, THE A.O. WAS JUSTIFIED IN MAKING THE ADDITION. EVEN IN THIS CASE , THE ISSUE OF NO ADDITION CAN BE MADE ON THE BASIS OF DOCUMENTS FOUND W ITH THIRD PARTY WAS NOT RAISED. THE CIT(A) HAS FURTHER REFERRED TO THE DECISION OF ITAT, MUMBAI IN THE CASE OF P. R. PATEL VS. DCIT [(2001) 7 8 ITD 51 (MUM)] FOR THE PROPOSITION THAT SEIZED PAPERS CANNOT BE CALLED DU MB PAPER BECAUSE THEY INDICATE DATE, AMOUNT AND CALCULATION. THERE I S NO DISPUTE WITH THE ABOVE PROPOSITION. THE PAPERS ARE FOUND PERTAINING TO DHARIWAL GROUP AS ADMITTED BY SHRI MEHTA AND THEREFORE, THESE DOCUMENT S MAY BE RELEVANT FOR DECIDING THE ISSUE IN THE CASE OF DHARIWAL GROUP. HOWEVER, IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE, THE ADDITION COULD NOT BE MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE SAID PAPERS. 5.12 THE CIT(A) HAS FURTHER RELIED UPON ITAT THIRD MEMBER DECISION IN THE CASE OF DHUNJIBHOY STUD AND AGRICULTURAL FARM VS. DCIT [(2002) 82 ITD 18 (PUNE)(TM)], IN THIS CASE, THE ASSESSEE WAS A BUIL DER AND HAD SOLD FLAT TO ONE MR. TANNA. THERE WAS SEARCH ON MR. TANNA WHEREIN A DOCUMENT WAS FOUND INDICATING FLAT PURCHASED FROM TH E ASSESSEE FIRM AND 37 ITA NOS.725 AND 726/PN/2014 THE AMOUNT OF CHEQUE AND CASH PAID. THE AMOUNT OF CH EQUE PAID WAS TALLYING WITH THE BOOKS AND THEREFORE, IT WAS HELD T HAT CASH WAS PAID AS NOTED ON THE PAPER. MR. TANNA HAD ALSO ACCEPTED THE FACT THAT CASH WAS PAID TO THE ASSESSEE. IN THESE FACTS, ITAT HELD THAT SINCE THERE WAS TRANSACTION BETWEEN ASSESSEE AND SHRI TANNA AND ALSO THE FACT THAT THE AMOUNTS PAID BY CHEQUE TALLIED, THE ADDITION WAS RIGH TLY MADE. THE ASSESSEE RIGHTLY SUBMITTED THAT THE SAID DECISION IS NOT A PPLICABLE TO THE FACTS OF THE PRESENT CASE. FIRSTLY, THERE IS NO TRANSACT ION BETWEEN THE ASSESSEE AND DHARIWAL GROUP. SECONDLY, THERE IS NO CORRO BORATIVE EVIDENCE FOUND WHICH COULD SUGGEST THAT THE ASSESSEE HAD RECEIVED ANY AMOUNT. THE ASSESSING OFFICER AND CIT(A) HAVE ALSO NOT B ROUGHT ON RECORD ANY EVIDENCE TO SUGGEST THAT THE PAYMENT WAS MA DE TO THE ASSESSEE. ACCORDINGLY, CONSIDERING THE FACTUAL POSITION, THE DECISION IN THE CASE OF DHUNJIBHOY STUD AND AGRICULTURAL FARM IS NOT APPLICABLE IN THE CASE OF ASSESSEE. 5.13 THE CIT(A) HAS RELIED ON THE DECISION IN THE CA SE OF VASANTIBAI N. SHAH VS. CIT [(1995) 213 ITR 805 (BOM)]. IN THIS CASE, THE ISSUE WAS REGARDING VALIDITY OF REASSESSMENT PROCEEDINGS. THE ASSESSEE HAD MADE A FALSE DISCLOSURE. SUBSEQUENTLY, THE CASE WAS REOPENED. HO N'BLE HIGH COURT HELD THAT THE REOPENING WAS VALID SINCE THE ASSE SSEE HERSELF HAD MADE A FALSE DISCLOSURE. THUS, THE FACTS ARE TOTALLY DI FFERENT FROM THE PRESENT CASE AND HENCE, THE RATIO OF VASANTIBAI N. SHA H (SUPRA) IS NOT APPLICABLE TO THE ASSESSEE'S CASE. THE CIT(A) FURTHER RE LIED ON THE DECISION IN THE CASE OF GREEN VALLEY BUILDER V. CIT [ (2008) 296 ITR 225 (KER)]. IN THE SAID CASE, THE ASSESSEE WAS ENGAGED IN RE AL ESTATE BUSINESS AND IT HAD SOLD CERTAIN PLOTS. THE ASSESSEE STATED THAT TH E PLOTS WERE SOLD AT RS.1750/- PER CENT WHILE THE ASSESSING OFFICER ON TH E BASIS OF EVIDENCES HELD THAT ACTUALLY THE LANDS WERE SOLD AT RS. 4,000/- PER CENT. HON'BLE HIGH COURT HELD THAT THE ADDITIONS MADE WERE CORRECT. THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE CIT(A) HAS FURTHER RELIED UPON THE DECISION IN THE CASE OF CHUHA RMAL VS. CIT [(1988) 172 ITR 250 (SC)] FOR THE PROPOSITION THAT DOCUMENTA RY EVIDENCE PLAYS AN IMPORTANT PART. THERE IS NO DISPUTE TO THE SAID PRO POSITION BUT IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE NO ADDITION CO ULD BE MADE IN THE HANDS OF THE THIRD PARTY. 5.14 WE FIND THAT IN THAKKAR DEVELOPERS LTD. [IT A N O. 581/PN/08], ITAT IN PARAS 3 AND 4 HELD AS UNDER:- 'THE ABOVE SAID SHRI KOLHE WAS EXAMINED, CROSS EXAMINED AND RE- EXAMINED AND NO EVIDENCE WAS GATHERED FROM HIM TO EST ABLISH THAT THE CONTENTS OF THE SEIZED DOCUMENTS WERE CORRECT AND TRUE . THUS, IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE IN THE PRESENT CASE, THE SAID SEIZED DOCUMENT HAS TO BE TREATED AS A DUMB DOCUMENT AS RIGH TLY OBSERVED BY THE CIT(A). THE A.O. DISMISSED THE RETRACTION OF THE ST ATEMENT DATED 29.03.2003 BY FILING AN AFFIDAVIT AS AN AFTER THOUGH T AND SELF SERVING. THE A.O. CONCLUDED THAT THE FACTS MENTIONED IN THE SEIZED DOCUMENTS CLEARLY INDICATED THAT THE STATEMENT GIVEN ON 29.03.2003 WAS TRUE AND CORRECT. THE A.O. HAS NOT BROUGHT ON RECORD ANY MATERIAL OR C ORROBORATIVE EVIDENCES TO COME TO THESE CONCLUSIONS. THE REASONS GIVEN BY THE A.O. IN THIS REGARD ARE WITHOUT ANY BASIS AND SUPPORT. THE AFFI DAVIT FILED BY SHRI KOLHE REMAINED UNCONTROVERTED AND WHICH IS AGAINST TH E SETTLED LEGAL POSITION ON THE ISSUE THAT THE CONTENTS OF THE AFFIDAVI T BE REJECTED BY CONFRONTING THE SAME TO THE DEPONENT WHICH IS MISSING I N THIS CASE. NOTHING WAS SHOWN BY THE A.O. THAT THERE WAS ANY OTHER MATERIAL CO 38 ITA NOS.725 AND 726/PN/2014 RELATED TO THE SEIZED DOCUMENTS. THE A.O. WAS NOT JUSTI FIED IN REJECTING THE CONTENTS OF THE AFFIDAVIT AS MENTIONED ABOVE. THE A.O. FURTHER RELIED ON THE PRESUMPTIONS U/S 132(4A) OF THE ACT ON THE GROU ND THAT THIS SECTION WAS VERY CLEAR THAT THE CONTENTS OF BOOK OF AC COUNT AND OTHER DOCUMENTS MAY BE PRESUMED TO BE TRUE AND PRESUMPTION C AN BE DRAWN EVEN ON THE THIRD PERSON WHO WAS NOT SEARCHED U/S 132 O F THE ACT. THE A.O. FURTHER REJECTED THE SUBMISSIONS GIVEN BY THE ASSESSEE IN HIS PAPER BOOK DATED 28.12.2007 REITERATING THE SAME STAND. TH E A.O. HAS DRAWN INFERENCES AND PRESUPPOSES RELYING ON SURMISES AND CONJECT URES. THE ITAT MUMBAI BENCH IN THEIR DECISION IN THE CASE OF ST RAPTEX (INDIA) PVT. LTD. [84 ITD 320 (MUM), CLEARLY HELD THAT THE PRESUM PTION U/S 132(4A) IS APPLICABLE ONLY AGAINST THE PERSON FROM WHOM POSSESSION T HE BOOKS OF ACCOUNTS OR OTHER DOCUMENTARY WERE FOUND AND NOT AGA INST ANY OTHER PERSON. IT IS HELD THAT AS PER SECTION 132(4A) WHERE A NY BOOKS OF ACCOUNT OR DOCUMENT IS FOUND IN THE POSSESSION AND CONTROL OF AN Y PERSON IN THE COURSE OF THE SEARCH, IT IS TO BE PRESUMED THAT THEY BE LONG TO ' SUCH PERSON'. THUS, CLEARLY THE PRESUMPTION IS IN RESPECT OF THE PERSON FROM WHOM THEY WERE FOUND. THE USE OF THE WORD 'TO SU CH PERSON' IN THE SAID SECTION MEANS THE PERSON FROM WHOM THE BOOKS OF A CCOUNT OR DOCUMENTS WERE FOUND. CLAUSE (II) OF SECTION 132 (4A) PROVIDES THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT OR DOCUMENTS ARE TRUE . THIS PRESUMPTION CAN BE APPLIED ONLY AGAINST THE PERSON FRO M WHOSE POSSESSION THE BOOKS OF ACCOUNT OR THE DOCUMENT WERE FOU ND. THEREFORE, THE A.O. WAS NOT JUSTIFIED IN APPLYING THE PROVISIONS O F SECTION 132(4'A) TO THE ASSESSEE IN THE PRESENT CASE WHO WAS NOT SEARCHED U/S 132 OF THE ACT NOR THE DOCUMENT WAS FOUND AND SEIZED FROM, THEIR POSSE SSION. EVEN, OTHERWISE, SUCH PRESUMPTION U/S 132(4A) OF THE ACT IS NO T CONCLUSIVE AND REBUTTABLE ONE'. 6. SIMILAR VIEW HAS BEEN TAKEN BY ITAT, PUNE IN AMI T D IRSHID [ITA NO.988/PN/11] THAT PRESUMPTION U/S. 134(4A) IS AVAILAB LE ONLY AGAINST THE PERSON FROM WHOSE POSSESSION THE DOCUMENT IS FOUND AND NOT AGAINST THE THIRD PERSON. IN THE ABSENCE OF CLINCHING EVIDENC E AGAINST THE THIRD PERSON AS STATED ABOVE, NO ACTION COULD BE TAKEN AGAIN ST HIM. IN SUCH A SITUATION, THE ASSESSING OFFICER WAS NOT JUSTIFIED TO MAKE ADDITION IN QUESTION IN ASSESSEE'S CASE. IN VIEW OF ABOVE, WE ARE OF T HE VIEW THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT JUSTIFIED A ND THE SAME IS DIRECTED TO BE DELETED. IT IS PERTINENT TO MENTION H ERE THAT THIS CASE IS BEING DECIDED IN ITS FACTS AND CIRCUMSTANCES; IT CANNOT BE APPLIED TO OTHER CASES AS SUCH. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . 55. SINCE IN THE INSTANT CASE THE ASSESSEE FROM THE VERY BEGINNING HAS DENIED TO HAVE RECEIVED ANY SUCH PAYMENT FROM M/S. D HARIWAL GROUP THROUGH MR. SOHAN RAJ MEHTA AND SINCE NO INCRIMINATI NG MATERIAL WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE DURING THE COUR SE OF SEARCH AND SINCE THE ASSESSEE IS NOT DEALING WITH M/S. DHARIWAL GROU P IN HIS INDIVIDUAL CAPACITY, THEREFORE, RESPECTFULLY FOLLOWI NG THE DECISIONS CITED ABOVE AND IN VIEW OF OUR REASONINGS GIVEN EARLIER, WE ARE OF THE CONSIDERED OPINION NO ADDITION IN THE HANDS OF THE ASS ESSEE CAN BE MADE. SINCE IT IS HELD THAT THE ASSESSEE HAS NOT RECEIVED ANY A MOUNT, THEREFORE, THE QUESTION OF TAXING THE SAME U/S.56(2)(VI) AS HELD B Y CIT(A) DOES NOT ARISE. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE OR DER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.1 CRORE FOR A.Y. 39 ITA NOS.725 AND 726/PN/2014 2006-07 AND RS. 20 CRORES FOR A.Y. 2007-08. GROUNDS R AISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWED. 56. SINCE THE ASSESSEE SUCCEEDS ON MERIT, THEREFORE, THE GROUND RELATING TO VALIDITY OF ASSESSMENT U/S.143(3) R.W.S. 153A BECOME ACADEMIC IN NATURE AND THEREFORE THE SAME IS NOT BEIN G ADJUDICATED. 57. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 26. SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO T HAT OF THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF SHRI VINIT RAN AWAT (SUPRA), THEREFORE, FOLLOWING THE SAME REASONINGS WE ARE OF TH E CONSIDERED OPINION THAT NO ADDITION U/S.69A IS CALLED FOR IN THE HANDS OF THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS. 2 CRORES MAD E BY HIM IN THE HANDS OF THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR . THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. ITA NO.726/PN/2014 (A.Y. 2005-06) : 27. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROU NDS OF APPEAL NO. 1 & 2 CHALLENGING THE VALIDITY OF REASSESSMENT PR OCEEDINGS FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJ ECTION. ACCORDINGLY, THE ABOVE 2 GROUNDS ARE DISMISSED. 28. GROUNDS OF APPEAL NO.3 TO 6 BY THE ASSESSEE RELATES TO ADDITION OF RS.2,50,00,000/- MADE BY THE AO IN THE HANDS OF THE A SSESSEE WHICH HAS BEEN UPHELD BY THE LD.CIT(A). 29. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN DS BY THE ASSESSEE ARE IDENTICAL TO THE GROUNDS OF APPEAL NO.3 TO 6 IN ITA NO.725/PN/2014. WE HAVE ALREADY DECIDED THE ISSUE AND T HE GROUNDS RAISED BY THE ASSESSEE HAVE BEEN ALLOWED. FOLLOW ING THE SAME REASONINGS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 40 ITA NOS.725 AND 726/PN/2014 30. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-09-2015. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) ' / JUDICIAL MEMBER / ACCOUNTANT MEMBER IQ.KS PUNE ; # DATED : 23 RD SEPTEMBER, 2015. LRH'K ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ( ) S / THE CIT(A)-II, PUNE 4. ( S / THE CIT- II , PUNE 5. 6. + ., ., IQ.KS / DR, ITAT, B PUNE; / GUARD FILE. / BY ORDER , + + //TRUE COPY// + //TRUE COPY// 2 . / SR. PRIVATE SECRETARY ., IQ.KS / ITAT, PUNE