ITO 11(2)(1), MUMBAI V. DR. AVINASH C. TIWARI, MUMBAI

ITA 8344/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3526 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-03-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Loose papers

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI . . , ! ' #'' '$ , % ! & BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : 8344 / / 2010 A.Y. 2007-08 ITA NO. : 8344/MUM/2010 (ASSESSMENT YEAR: 2007-08) ------------------------------------------ . : 83 / / 2012 A.Y. 2008-09 ITA NO. : 83/MUM/2012 (ASSESSMENT YEAR: 2008-09) INCOME TAX OFFICER -11(2)(1), ROOM NO. 441, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI -400 020 VS SHRI (DR.) AVINASH C TIWARI, A-8/31, SUNDER NAGAR, CST ROAD, KALINA, MUMBAI -400 072 .: PAN: AAAPT 7886 M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR RESPONDENT BY : SHRI MEHUL SHAH /DATE OF HEARING : 06-06-2013 !' / DATE OF PRONOUNCEMENT : 19-06-2013 * O R D E R #'' '$ , : PER VIVEK VARMA, JM: THESE TWO APPEALS ARISE FROM THE ORDERS OF CIT(A) 3, MUMB AI, DATED 03.09.2010 AND 19.10.2011, IN THE ASSESSMENT YEARS 2007-08 AND 2008-09 RESPECTIVELY. 2. IN ITS APPEAL, THE REVENUE HAVE RAISED THE FOLLOWING GRO UNDS OF APPEAL: ASSESSMENT YEAR: 2007-08 : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) MUMBAI HAS ERRED IN DELETING THE ADDITION MA DE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AVIS MOTORS P. LTD. U/S 6 9B OF RS. 4,22,30,000/-. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) MUMBAI FAILED TO APPRECIATE THE FACT THAT PA PERS WERE FOUND DURING THE SEARCH AND SEIZURE ACTION IN THE CASE OF SHRI HAREN CHOKSHI REGARDING THE SAID UNDISCLOSED INVESTMENT OF THE AS SESSEE OF RS. 4,22,30,000/- IN AVIS MOTORS PVT. LTD., WHEREIN ASS ESSEES WIFE AND SON ARE DIRECTORS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN COMING TO THE CONCLUSIONS BY OVERLO OKING THE FACT THAT SHRI HAREN CHOKSHI HAS NEVER SPECIFICALLY DENIED TH E TRANSACTION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN IGNORING THE BUSINESS CONNECTION BE TWEEN THE PARTY FROM WHOSE PREMISES THE PAPERS ARE FOUND AND THE ASSESSE E, WHILE ACCEPTING THE ASSESSEES VERSION REGARDING THE NOTI NGS ON THE PAPER. 3. THE FACTS ARE THAT THE ASSESSEE IS A DOCTOR BY PROFE SSION. HIS WIFE, MRS. KAILASH TIWARI AND SON, MR. ANAND TIWARI ARE DIRECT ORS IN M/S AVIS MOTORS PRIVATE LIMITED. 4. THERE WAS A SEARCH AND SEIZURE OPERATION ON THE PR EMISES OF MR. HAREN CHOKSI AND MR. HARSHIL CHOKSI ON 05.10.2007, FROM WHE RE CERTAIN LOOSE PAPERS AND OTHER DOCUMENTS WERE FOUND AN D SEIZED. ONE SUCH DOCUMENT WAS A LOOSE PAPER NO. 165, WHEREIN CERTAIN TRANSACTION DETAILS WERE NOTED, PERTAINING TO SOME INVESTMENT IN AVIS M OTORS, AGGREGATING TO RS. 1,22,30,000/- IN CHEQUES, AND RS. 3,00,00 ,000/- IN CASH. WHEN THE CONTENTS OF THE DOCUMENT WAS CONFRONTED TO THE ASSESSEE, IT WAS SUBMITTED BY THE ASSESSEE THAT THE AM OUNT CREDITED IN THE COMMON BANK ACCOUNT HELD BY HIM AND HIS WIFE MRS. KAILA SH TIWARI, BUT THE AMOUNT PERTAINED TO HIS WIFE. FROM THIS SUB MISSION, THE AO AVERRED THAT WHEN THE CHEQUES PAYMENT OF RS. 1 ,22,30,000/- WAS CORRECT THEN THE CASH PORTION OF RS. 3,00,00,000/- WO ULD ALSO BE CORRECT. HE, THEREFORE, ADDED BACK RS. 4,22,30,000/- AS UN EXPLAINED INVESTMENT OF THE ASSESSEE U/S. 69B. 5. THE ASSESSEE APPROACHED THE CIT(A), WHO TOOK NOTE O F THE FACTS AND WHO REPRODUCED THE IMPUGNED SEIZED PAPER IN THE OR DER, WHICH IS AS UNDER: $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 3 AVIS MOTORS P. LTD. INVESTMENT MADE BY BY CHEQUE BY CASH TOTAL LESS TO BE CONTRIBUTED BAL TO BE CONTRIBUTED HARSHIL CHOKESY & HAREN CHOKSEY 23.6.06 TO 20.6.07 30650000 21200000 51850000 35031278 16818722 BHUPINDER SINGH KAILASH TIWARI AVIS MOTORS ANAND TIWARI 15400000 10000000 3200000 28600000 21200000 49800000 35031278 14768722 31587444 AVINASH TIWARI 12230000 3000000 42230000 46708371 ANAND TIWARI (3900000) (3900000) (3900000) THROUGH CASH AS PER ST. AS UNDER 59250000 42400000 101850000 116770927 15120927 COST OF PROJECT LAND FROM JET ADD: CASH EXP. TIWARI AS PER ST ADD: EXP. THROUGH BK 150000000 8578500 52400885 TOTAL 210979835 HARSHIL 35031278 30 LESS: TERM LOAN (94208458) BHUPINDER ANAND T 35031278 46708371 30 40 116770927 116770927 6. IN THE SUBMISSIONS MADE BEFORE THE CIT(A), THE ASSESS EE CONTENDED THAT, IF AT ALL, INVESTMENT WAS MADE BY HIM, IT SHO ULD HAVE REFLECTED SOMEWHERE IN THE ACCOUNTS/BANK STATEMENT OF T HE ASSESSEE. THE MERE FACT THAT THE ENTRY WAS SHOWN CREDITED IN THE JOINT ACCOUNT HELD BY HIM AND HIS WIFE WOULD NOT ESTABLISH THAT THE INVEST MENT WAS MADE BY THE ASSESSEE. IT WAS ONCE AGAIN REITERATED THA T IT WAS THE SON AND WIFE OF THE ASSESSEE WHO WERE DIRECTORS IN AVIS MOTOR AND THE ASSESSEE HAD NOTHING TO DO WITH ANY OF THE TRANSACTIONS. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 4 7. THE ASSESSEE ALSO PLACED BEFORE THE CIT(A) COPIES OF ASSESSMENT ORDERS OF AVIS MOTOR. MR. ANAND TIWARI AND MRS. KAILASH TIW ARI FOR ASSESSMENT YEAR 2007-09 (I.E. THE IMPUGNED YEAR) TO SHOW THAT INVESTMENTS AND MONIES WERE ACCEPTED IN THE NAMES OF T HE TWO DIRECTORS OF AVIS MOTOR, I.E. MR. ANAND TIWARI & MRS. KAILASH TIWARI. 8. THE CIT(A), OBSERVED 3.4 THE ASSESSMENT STATUS OF A.Y. 07-08 IN THE CAS ES OF APPELLANTS WIFE AND SON IS SEEN. APPELLANT HAS SUBMITTED THAT INVES TMENT IN AVIS MOTORS BY HIS WIFE, SON AND AVIS MOTORS HAVE BEEN A CCEPTED. ON ENQUIRY DURING APPELLATE PROCEEDINGS, APPELLANT HAS SUBMITTED THAT HE WAS NOT A GUARANTOR FOR AVIS MOTORS NOR HAD HE HYPO THECATED ANY OF HIS ASSETS FOR ANY LOANS BY SAID COMPANY. APPELLANTS M ONIES IN THE JOINT A/C. OF APPELLANT WITH HIS SON AND USED BY THE SON ARE SHOWN AS LOANS GIVEN TO SON. THE MONIES DEPOSITED BY APPELLANT IN THE JOINT ACCOUNTS WITH HIS SON AND WIFE HAVE BEEN ENUMERATED BY APPEL LANT. APPELLANT SUBMITS THAT AO DISREGARDED FACTS OF THE CASE ENTIRELY AND REGARDING APPLICATION OF ANY TESTS REGARDING THE GE NUINENESS OF THE FACTS SUBMITTED BY THE APPELLANT AO RESORTED TO A V ERY CASUAL AND EASY APPROACH BY RELYING ON A UNSIGNED PIECE OF PAPER FO UND DURING COURSE OF A SEARCH IN THE CASE OF A THIRD PARTY FROM THE P REMISE OF THAT THIRD PARTY WHICH WAS IN NO WAY RELATED TO APPELLANT. IT WAS SUBMITTED THAT THE ONUS WAS ON THE AO TO PROVE THAT SUCH INVESTMEN TS WERE MADE BY APPELLANT. WHEREAS AO HAS NOT BEEN ABLE TO BRING AN Y MATERIAL ON RECORD TO PROVE THAT INVESTMENT, WAS MADE BY APPELL ANT NEITHER BY WAY OF CHEQUE AMOUNTING TO RS. 1.223 CRS. NOR OF CASH A MOUNT OF RS. 3 CRS. THE ADDITION WAS MADE MERELY ON SURMISES AND SUSPIC ION. APPELLANT SUBMITS THAT TO MAKE AN ADDITION U/S. 69B, AO IS RE QUIRED TO BRING RECORD ON MATERIAL SUPPORTED BY COGNATE EVIDENCE OF APPELLANT MAKING INVESTMENT, WHEREAS NO SUCH EVIDENCE OR MATERIAL HA S BEEN BROUGHT ON RECORD BY AO. 2.3.6 APPELLANT CITED AND RELIED UPON ITAT, MUMBAI IN THE CASE OF DILSHAD TRADING CO. P. LTD. VS. CIT. (49 ITD 348) THAT THES E THREE FINDINGS ARE CUMULATIVE FOR INVOKING SECTION 69B, AS UNDER: 1) ASSESSEE MUST HAVE MADE INVESTMENT 2) IT IS FOUND BY AO THAT AMOUNT EXPENDED ON MAKIN G SUCH INVESTMENT EXCEEDED THE AMOUNT RECORDED IN THE BOOK S OF ACCOUNT. 3) EITHER THE ASSESSEE OFFERS NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OF THE EXPLANATION OFFERED IS NOT SATISFACTO RY IN THE OPINION OF THE AO. THE TRIBUNAL WENT ON TO SAY THAT:- I) THE BASIC FINDING WHICH IS TO BE RECORDED ON CLE AR AND COGENT MATERIAL IS IN RESPECT OF AMOUNT EXPENDED BY THE AS SESSEE IN EXCESS OF THAT SHOWN IN THE BOOKS OF ACCOUNTS. II) THE ONUS IS ON THE DEPARTMENT TO SHOW THAT THE ASSESSEE HAS EXPENDED EXTRA AMOUNT. III) MERELY BECAUSE THERE EXISTS SOME COMPARABLE C ASES SHOWING HIGHER PRICE IN RESPECT OF SIMILAR TRANSACTIONS, IT COULD NOT BE SAID THAT THE ASSESSEE HAD EXPENDED EXTRA AMOUNT. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 5 APPELLANT SUBMITS THAT DELHI HIGH COURT IN CASE OF CIT VS. LALIT BHASIN 290 ITR 245 ALSO SUPPORTS THE ABOVE VIEW. 2.4 FACTS AND MATERIAL ON RECORD ARE CONSIDERED. T HE BASIS OF ADDITION IN THE AOS ORDER IS PG. NO. 165 OF LOOSE PAPERS FOUND IN THE SEARCH AT PREMISES OF HIREN CHOKSEY. THE REASON FOR ADDITION BY THE AO IS STATED TO BE THAT APPELLANTS WIFE AND SON HAVE CONFIRMED HAVING ENTERED INTO TRANSACTIONS REGARDING RS. 1.54 CR ALSO NARRATED ON THE SAID PAGE NO. 165. THEREFORE, APPELLANTS DENIAL OF THE CONTENTS OF LOOSE PAPER NO.165 DOES NOT HOLD GOOD. ON THIS BASIS, AO ADDED THE ENT IRE SUM OF RS. 4.223 CR IN APPELLANTS HANDS. 2.4.1 A STUDY OF THIS LOOSE PAPER NO. 165 SHOWS TH AT PERIOD BELOW NAMES OF HARSHIL CHOKSEY AND HAREN CHOKSEY IS 23.6.06 TO 20. 6.07. BELOW BHUPINDER SINGH IT STATES 2006-07. THERE IS NO PERI OD MENTIONED AGAINST OR BELOW APPELLANTS NAME. FURTHER, AGAINST THE TOTAL OF RS. 4.223 CR. SHOWN AS CONTRIBUTION BY CASH AND CHEQUE AGAINST APPELLANTS NAME, A SUM OF RS. 4,67,08,371/- I.E. R S. 4.67 CRS. IS SHOWN AS LESS TO BE CONTRIBUTED I.E. THE NARRAT ION DOES NOT MENTION ANY CONTRIBUTED AMOUNT BUT ONLY STATES LESS TO BE CONTRIBUTED. THE BRACKETED FIGURE THEREAFTER IS BALANCE TO BE CONTR IBUTED RS. 44,78,371/-. THE BOTTOMMOST FIGURES ALSO SHOW PERCE NTAGE TO BE CONTRIBUTED BY ANAND TIWARI AT 40% AT RS. 4,67,08,3 71/- I.E. THE FIGURE MENTIONED AGAINST APPELLANTS NAME AT LESS TO BE C ONTRIBUTED. PAPER NO. 165 INDICATES THAT THE SUM OF RS. 4.67 CRS. HAD TO BE CONTRIBUTED BY APPELLANT AND MAKES NO MENTION OF AMOUNTS PAID BY A PPELLANT. IT IS SEEN THAT THE AO HAS NOT IDENTIFIED THE CHEQU E PAYMENT OF RS. 1.223 CR. FROM ANY BANK ACCOUNT OF APPELLANT DURING THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED YEAR. THE ASSESSMENT ORDER (IMPUGNED) ALSO REFLECTS NO DISSATISFACTION OR OBJECTIONS OF THE AO WITH REGARD TO ANY OF APPELLANTS BANK ACCOUNT INCLUDING JOINT ACCOUNTS W ITH HIS WIFE AND SON. IN FACT, THIS PAYMENT BY CHEQUE HAS NOT BEEN I DENTIFIED FROM ANY OF APPELLANTS BANK ACCOUNTS WHETHER DISCLOSED BY HIM OR NOT. IN SO FAR AS CASH SHOWN AGAINST APPELLANTS NAME IS CONCERNED, T HE ASSESSMENT ORDER DOES NOT INDICATE ANY DISCREPANCY IN APPELLAN TS DETAILS/FINANCIAL STATEMENTS ETC. OR OF ANY UNACCOUNTED MONEY OR RECE IPTS, WHICH WOULD LEAD TO A PRESUMPTION OF APPELLANT HAVING UNDISCLOS ED CASH OF SUCH MAGNITUDE 2.4.3 MOREOVER, APPELLANT ARGUES THAT THE PAPER WAS FOUND IN THE SEARCH ACTION AT HAREN AND HARSHIL CHOKSEYS PLACE. IT ALSO DID NOT CONTAIN THE SIGNATURES OF AVIS MOTORS P. LTDS DIRE CTORS VIZ. APPELLANTS WIFE AND SON. APPELLANT HAS DENIED ENTRIES MADE IN HIS AND FAMILY MEMBERS NAMES AND OTHER STRONG OBJECTIONS HAVE BEEN TAKEN. IN THE FACE OF THESE OBJECTIONS AND ARGUMENTS, ESTABLISHME NT OF THE FACTS OF THE CASE VIS-A-VIS APPELLANT WAS NECESSARY. THIS HAS NO T BEEN DONE AS IS EVIDENT FROM THE RELIANCE PLACED BY THE AO ON ONLY TWO OF THE FIGURES ON LOOSE PAPER NO.165. A COMPLETE READING OF THE DESCR IPTION ON PAPER NO.165 INDICATES THAT RS.4.223 CR. AGAINST APPEL1AN TS NAME COULD AT BEST BE CONSIDERED A SUM WHICH WAS TO BE CONTRIBUTE D BY HIM. THE ASSESSMENT ORDER DOES NOT INDICATE ANY FACTS OR EVI DENCE TO CONCLUDE THAT CONTRIBUTION OF THE SAID SUM OF RS. 4.223 CR. (BY CASH AND CHEQUE) HAS BEEN MADE BY APPELLANT DURING THE IMPUGNED YEAR . THE SOLE RELIANCE PLACED BY THE AO IS THAT APPELLANTS WIFE MRS. KAILASH KUMARI HAS ACCEPTED THE AMOUNT OF RS. 1.54 CR. SHOWN AS PA ID TO HER BY MR. BHUPINDER ON PAPER NO. 165 AND THEREFORE THE SUMS M ENTIONED AGAINST APPELLANTS NAME COULD AT BEST BE CONSIDERED A SUM WHICH WAS TO BE CONTRIBUTED BY HIM. THE ASSESSMENT ORDER DOES NOT I NDICATE ANY FACTS OR EVIDENCE TO CONCLUDE THAT CONTRIBUTION OF THE SAID SUM OF RS. 4.223 CR $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 6 (BY CASH AND CHEQUE) HAS BEEN MADE BY APPELLANT DUR ING THE IMPUGNED YEAR. THE SOLE RELIANCE PLACED BY THE AO IS THAT AP PELLANTS WIFE MRS. KAILASH KUMARI HAS ACCEPTED THE AMOUNT OF RS. 1.54 CR. SHOWN AS PAID TO HER BY MR. BHUPINDER ON PAPER NO. 165 AND THEREF ORE THE SUMS MENTIONED AGAINST APPELLANTS NAME WOULD BE CONSIDE RED UNDISCLOSED INVESTMENT BY; HIM. 2.4.4 IN THIS BACKGROUND, IT IS HELD THAT AO HAS NO T ESTABLISHED ANY INVESTMENT INDICATED AGAINST APPELLANTS NAME ON LO OSE PAPER NO. 165 AS HAVING SEEN MADE BY APPELLANT FROM UNDISCLOSED S OURCES OR THAT THE SAID INVESTMENT WAS UNDISCLOSED BY APPELLANT. THE R EASON FOR MAKING THE ADDITION AS STATED BY AO IS INADEQUATE TO DETER MINE UNDISCLOSED INVESTMENT IN APPEL1ANTS CASE. THE ADDITION HAVING BEEN MADE ON INCONCLUSIVE FACTS, ARGUMENTS AND EVIDENCE AND RELY ING ONLY ON PARTIAL INFORMATION ON PAGE NO. 165 IS NOT SUSTAINABLE IN F ACTS AND LAW. IT IS CONSEQUENTLY DELETED. 9. THE CIT(A), THUS DELETED THE ADDITION MADE BY THE AO. 10. AGAINST THIS ORDER, THE DEPARTMENT IS IN APPEAL. 11. BEFORE US, THE DR PRIMARILY RELIED ON THE ORDER OF THE AO AND REITERATED THAT AVIS MOTOR WAS OWNED BY WIFE AND SON OF THE ASSESSEE AND WITHOUT WHOSE HELP AND CONTRIBUTION, THE PROJECT WOU LD NOT HAVE GOT UNDERWAY. HE FURTHER SUBMITTED THAT ONCE THE CHEQU E ENTRY IN THE BOOKS HAD BEEN CORROBORATED, CASH ENTRY IN THE SAME P APER ALSO HAD TO BE PRESUMED TO BE CORRECT AND THIS CONTRIBUTION IS P ROVED TO HAVE BEEN MADE BY THE ASSESSEE. THE DR ALSO SUBMITTED THAT THE UNSECURED LOANS IN THE BALANCE SHEET TALLIED WITH THE ENTRIES IN THE IM PUGNED PAPER. 12. THE AR SUPPORTING THE ORDER OF THE CIT(A), POINTED O UT THAT THE PAPER WAS FOUND FROM THE PREMISES OF A STRANGER AND FRO M THE FACT OF THE DOCUMENT, IT CAN BE SEEN THAT IT WAS AN ESTIMATE AN D THE FACT, AS PROVED FROM THE SUPPORTING DOCUMENTS SHOW THAT NO PAY MENT OR INVESTMENT WAS MADE BY THE ASSESSEE. 13. ON THE QUERY FROM THE BENCH WITH REGARD TO THE CA SH FLOW, THE AR PRODUCED THE SAME, WHEREIN, IT WAS SHOWN THAT ONLY R S. 15,00,000/- WAS GIVEN BY THE ASSESSEE TO THE SON, MR. A NAND TIWARI TO $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 7 BE PAID INTO AVIS MOTOR. THIS RS. 15,00,000/- WAS PAID OUT O F SALE PROCEEDS OF RS. 30,00,000/- OF A PLOT BELONGING TO DR. AVINASH TIWARI. 14. THE AR PLACED RELIANCE ON THE DECISIONS OF: AMAR KUMAR SURANA 69 TAXMAN 544 (RAJ) CIT VS. SANJAY OIL CAKE INDUSTRIES 149 TAXMAN 90 (G UJ) DILSHAD TRADING COMPANY 49 ITD 348 15. IN THESE CIRCUMSTANCES, THE AR SUBMITTED, THAT WHEN THE PAPER ITSELF TALKS OF TO BE CONTRIBUTED, SHOWS THAT THE PAPER DOES NOT TALK OF ANY TRANSACTION BUT ONLY ESTIMATION. FROM THE DETAILS AS PROVIDED, WITH REGARD TO ONLY RS. 15,00,000/- PROVIDED TO THE ASSESSEE S SON, AND AS CORROBORATED IN THE CASH FLOW STATEMENT, HOW AND WHY T HE NAME OF THE ASSESSEE APPEARS ON IT, HAS NOT BEEN PROVED BY THE AO , TAKING INTO ACCOUNT THE FACT, THAT THE ASSESSEE DOES NOT HAVE ANY THING TO DO WITH THE PROPOSED TRANSACTION OR EVEN WITH THE COMPANY M/S AVIS MOTOR (P) LTD. HE, THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) IS CORRECT AND SHOULD NOT BE DISTURBED. 16. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES A ND THE FOLLOWING ARE THE UNDISCLOSED FACTS: A) THE SEARCH & SEIZURE OPERATIONS WERE CONDUCTED ON STRANGERS; B) THE PAPER RELIED UPON BY THE AO WAS FOUND FROM THE PREMISES SEARCHED; C) NO MENTION OF ANY STATEMENT HAVING RECORDED, EITHER OF THE ASSESSEE OR THE ASSESSEES SON & WIFE. D) AVIS MOTOR, KAILASH TIWARI AND ANAND TIWARI HAVE ACCEPTED THE INVESTMENTS MADE BY THEM IN THEIR ASSESSMENTS. E) ASSESSEE NAME DOES NOT APPEAR ANYWHERE IN THE BALAN CE SHEET OF AVIS MOTOR, AS POINTED OUT BY THE DR AND R ELIED UPON BY HIM. 17. ON THESE FACTS, WE SHALL PROCEED, THE PAPER, RELIED UPO N THE AO TO MAKE THE IMPUGNED ADDITION WAS FOUND IN THE SEARCH AC TION AT $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 8 HAREN AND HARSHIL CHOKSEYS PLACE. IT DID NOT CONTAIN THE SIGNATURES OF AVIS MOTORS P. LTDS DIRECTORS VIZ. APPELLANTS WIFE AND SO N. ASSESSEE HAS DENIED ENTRIES MADE IN HIS NAME AND OTHER STRONG OB JECTION HAS BEEN TAKEN AGAINST IT, EVEN BEFORE THE AO. THESE OBJECTIO NS AND ARGUMENTS, COUPLED WITH THE FACTS OF THE CASE WAS NECES SARY AND INCUMBENT UPON THE AO TO DEAL WITH. THIS HAS NOT BEEN DO NE, AS IS EVIDENT FROM THE RELIANCE PLACED BY THE AO ON ONLY TWO O F THE FIGURES ON THE IMPUGNED LOOSE PAPER NO.165. THE AO IN THE ASSESS MENT ORDER HAS NOT BEEN ABLE TO PRECISELY INDICATE ANY FACTS OR EVID ENCE TO CONCLUDE THAT CONTRIBUTION OF THE SAID SUM OF RS. 4.223 CR . (BY CASH AND CHEQUE) HAS BEEN MADE BY ASSESSEE, DURING THE IMPU GNED YEAR. THE ONLY RELIANCE PLACED BY THE AO, THAT THE ASSESSEES WIFE MRS. KAILASH KUMARI HAS ACCEPTED THE AMOUNT OF RS. 1.54 CRORE , SHOWN IN THE IMPUGNED PAPER, AS PAID TO HER BY MR. BHUPINDER ON P APER NO. 165 COULD, BY ITSELF CANNOT CONCLUDE THAT CONTRIBUTION OF T HE SAID SUM OF RS. 4.223 CR (BY CASH AND CHEQUE) HAS BEEN MADE BY TH E ASSESSEE DURING THE IMPUGNED YEAR. THIS BY ITSELF CANNOT BE THE ON LY CRITERION FOR THE ADDITION TO HAVE BEEN MADE AS UNDISCLOSED INVESTM ENT BY THE ASSESSEE. 18. IN THIS BACKGROUND, AND AS PER THE CASH FLOW SUBMIT TED, WHICH DOES NOT ESTABLISH ANY INVESTMENT INDICATED AGAINST APPELLA NTS NAME ON LOOSE PAPER NO. 165 AS HAVING SEEN MADE BY APPELLANT FROM UNDISCLOSED SOURCES OR THAT THE SAID INVESTMENT WAS UND ISCLOSED BY THE ASSESSEE. THE REASONS, FOR MAKING THE ADDITION, BY A O ARE INADEQUATE TO DETERMINE UNDISCLOSED INVESTMENT. THE ADDITI ON HAVING BEEN MADE ON INCONCLUSIVE FACTS, ARGUMENTS AND EVIDENCE A ND RELYING ONLY ON PARTIAL INFORMATION CANNOT BE SUSTAINED. 19. IN OUR OPINION, THE CIT(A) WAS CORRECT IN EMPLOYING THE FACTS AND LAW TO DELETE THE ADDITION, WHICH WE SUSTAIN. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 9 20. IN THE RESULT THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED . ASSESSMENT YEAR: 2008-09 : 21. IN ITS APPEAL, THE REVENUE HAVE RAISED THE FOLLOWING GR OUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) MUMBAI HAS ERRED IN DELETING THE ADDITION MA DE U/S 69B OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AVIS MO TORS P. LTD. OF RS. 23,40,800/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) MUMBAI FAILED TO APPRECIATE THE DOCUMENT SEI ZED DURING THE SEARCH AND SEIZURE ACTION IN THE CASE OF SHRI. HARE N CHOKSHI CLEARLY INDICATED THE SAID UNDISCLOSED INVESTMENT OF THE AS SESSEE OF RS. 23,40,800/- IN AVIS MOTORS PVT. LTD. WHEREIN ASSESS EES WIFE AND SON ARE DIRECTORS. 2.1 THE LD. CIT(A) HAS OVERLOOKED THE FACT THAT SH RI HAREN CHOKSHI HAD NEVER SPECIFICALLY DENIED THE TRANSACTION. 2.2 THE LD. CIT(A) HAS IGNORED THE BUSINESS CONNEC TION BETWEEN THE PARTY FROM WHOSE PREMISES THE PAPERS WERE SEIZED AND THE ASSESSEE, WHILE ACCEPTING THE ASSESSEES VERSION REGARDING THE NOTI NGS ON THE PAPER. 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT(APPEA LS) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER REST ORED. 22. THE FACTS ARE THAT THE ASSESSEE IS A DOCTOR BY PRO FESSION. HIS WIFE, MRS. KAILASH TIWARI AND SON, MR. ANAND TIWARI ARE DIRECT ORS IN M/S AVIS MOTORS PRIVATE LIMITED. 23. THERE WAS A SEARCH AND SEIZURE OPERATION ON THE PR EMISES OF MR. HAREN CHOKSI ON 05.10.2007, FROM WHERE CERTAIN LOOSE PAPER S AND OTHER DOCUMENTS WERE FOUND AND SEIZED. OF THOSE, THE IMP UGNED DOCUMENTS WERE LOOSE PAPER NO. 56 & 57, WHEREIN CERTAIN TRANSACTION DETAILS WERE NOTED, PERTAINING TO SOME INVESTMENT IN AVIS MOTORS PVT. LTD., TO THE TUNE OF RS. 13,48,000/- & RS. 9,92,000/- RESPE CTIVELY. WHEN THE CONTENTS OF THE DOCUMENT WERE CONFRONTED TO THE ASSESSEE, IT WAS STATED BY THE ASSESSEE THAT THE CONTENTS OF THE LOOSE PAPERS SEEM TO BE SOME ROUGH WORKING ESTIMATES UPON WHICH, ASSESSEE WAS QUERIED, THEN HOW THE AMOUNTS WRITTEN AGAINST THE ASSES SEES WIFE SMT. KAILASH KUMARI TIWARI AND HIS SON SHRI ANAND TIWARI IN THE SAME BUNCH OF SEIZED LOOSE PAPERS TALLIED WITH THE THEIR B OOKS AND $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 10 ACCEPTED AS SUCH BY THEM IN THEIR RESPECTIVE ASSESSMEN TS. ACCORDING TO THE AO, WHICH ULTIMATELY KNOCKS DOWN THE ASSESSEES CLAIM THAT THE CONTENTS OF THE LOOSE PAPERS ARE ROUGH WORKINGS. TO THIS , ASSESSEE STATED, VIDE SUBMISSIONS DATED 24.12.2010, ARE AS UNDER: THE LOOSE NOS.,56 AND 57 APPEAR TO BE ROUGH WORKIN G ESTIMATES. THESE PAPERS DO NOT BELONG TO ME AND / AM NOT AWARE WHAT IS MENTIONED IN THE LOOSE PAPERS. ALTHOUGH, THE NAME DR. TIWARI APP EAR IN THOSE PAPERS, IT DOES NOT MEAN THAT THEY BELONG TO ME OR THE AMOU NTS MENTIONED THEREIN ARE PERTAINING TO ME. FURTHER, AS REGARDS T HE AMOUNTS WRITTEN AGAINST MY WIFE MRS. KAILASHKUMAR TIWARI AND SON SH RI ANAND TIWARI IN THE SAME BUNCH OF SEIZED PAPERS. / WOULD LIKE TO STATED THAT CERTAIN CHEQUES HAVE BEEN RECEIVED BY THEM FROM MR. HARSHIL CHOKSEY AND MR. BHUPINDER SINGH IN PURSUANCE OF AGREEMENT TO SELL T HE PREMISE ON THE FIRST OF THE BUILDING PROPOSED TO BE CONSTRUCTED BY THE COMPANY M/S. AVIS MOTORS PVT. LTD. WHEREIN BOTH ARE DIRECTORS. T HE COPY OF THE SAID AGREEMENT HAS ALREADY BEEN SUBMITTED IN THEIR ASSES SMENT PROCEEDINGS. SOME OF THE SAID AMOUNTS MAY BE MATCHI NG AGAINST THEIR NAMES. BUT, IT MAY PLEASE BE NOTED THAT THESE PAPER S ARE ROUGH WORKINGS OR ESTIMATES ONLY AND PRESUMPTIVE IN NATUR E. ALTHOUGH A FEW AMOUNTS MAY MATCH WITH THE PRESUMPTIONS IT DOES NOT MEAN THAT OTHER AMOUNTS WOULD ALSO PERTAIN TO ME OR MY FAMILY MEMBE RS. I OR MY FAMILY MEMBERS HAVE NOT ENTERED INTO ANY PARTNERSHIP WITH ANY PERSON. THE PAPERS FOUND AT MR. HAREN CHOKSEYS PLACE ARE THEIR PAPERS AND THEIR ESTIMATES. THE ARE NOT SIGNED BY ME. NOT A SINGLE B IT OF PAPER HAS BEEN FOUND IN THE NAME OF MR. AVINASHCHANDRA RAMBACHAN T IWARI. HENCE, I DENY THE LOOSE PAPER NOS. 56 AND 57 IN THE ENTIRETY 21. THE AO, ON GOING THROUGH THE ABOVE ASSERTION OF THE ASSESSEE, HELD THAT THE ASSESSEE WAS TRYING TO HIDE THE REAL FACTS . ACCORDING TO HIM, ON ONE HAND, ASSESSEE IS CLAIMING THAT THE CONTENTS OF LOOSE PAPERS APPEAR TO BE ROUGH WORKING AND ON THE OTHER H AND ADMITTING THAT CERTAIN CONTENTS IN THE BUNCH OF PAPERS SIZED MAT CHED WITH THE ENTRIES IN THE BOOKS OF MRS. KAILASHKUMAR TIWARI, ASSESSEE S WIFE AND MR. ANAND TIWARI ASSESSEES, SON. THE AO FURTHER MENTION ED IN THE ASSESSMENT ORDER, HOW IT CAN BE POSSIBLE THAT ONLY CERT AIN ENTRIES WHICH ARE MATCHING WITH THE BOOKS OF ASSESEEEES SON AN D WIFE ARE TRUE AND OTHER ENTRIES ARE JUST ROUGH WORKINGS. THUS, T HE AO REJECTED THE CONTENTION OF THE ASSESSEE, AND PROCEEDED TO ADD R S. 23,40,800/- (RS. 9,92,000/- AS PER LOOSE PAPER NO. 56 AND RS. 13,48,800/ - AS PER LOOSE PAPER NO. 57), AS ASSESSEES INVESTMENT AND TREAT THE AMOUNT OF $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 11 RS. 23,40,800/- AS ASSESSEES UNEXPLAINED INVESTMENTS U/S 69B OF THE INCOME TAX ACT. 22. AGGRIEVED BY THE ASSESSMENT ORDER BY THE AO, THE ASSESSEE APPROACHED THE CIT(A) FOR RELIEF, AND REITERATED THE FACTS AND SUBMISSIONS MADE BEFORE THE AO, AND MADE DETAILED SUBMISSIO NS BEFORE THE CIT(A). THE CIT(A), ON CONSIDERATION OF THE SAME, CONCLUDED, I HAVE CONSIDERED THE FACTS. IT IS SEEN THAT THE A DDITION HAS BEEN MADE ON ACCOUNT OF LOOSE PAPER NO. 56 & 57 FOUND IN THE PREMISES OF MR. HAREN CHOKSEY DURING THE COURSE OF SEARCH & SEIZURE ACTION IN THEIR CASE. ON GOING THROUGH THE PAGE 57, IT IS SEEN FROM THE PAGE 57 THAT DRAFT WORD HAS BEEN WRITTEN AND MENTIONED ON TOP OF THIS PAGE WHICH GIVES THE INDICATION, THAT THIS PAGE APPEARS TO BE RELATED TO SOME ROUGH WORKING OF PROJECT PROPOSAL BEING CONSIDERED. THE TOTAL AMOUNT AT PAGE NO 57 IS APPEARING AT RS. 66,42,000/- OUT OF R S.33,72,000/- IS PAID AND BALANCE OF IT SHOWN AT RS. 33,72,000/- AS PAYABLE OUT OF WHICH 13,48,800/- WAS AGAINST THE NAME OF DR. TIWAR I. SIMILARLY, AS PER PAGE NO. 56, THE AMOUNT OF RS. 4,80,000/- IS PA YABLE OUT OF WHICH RS. 9,97,000/- WAS SUPPOSED TO BE PAID BY DR. TIWAR I. THE PAGES DOES NOT INDICATE NAME OF PROJECT OR BUILDING TO BE CONS TRUCTED OR BUILT AND BY WHOM. THE AO HAS ALSO NOT BROUGHT ON RECORD ANY MAT ERIAL EVIDENCE TO SUGGEST THAT DR. TIWARI, THE APPELLANT, HAS MADE IN VESTMENT IN THE AVIS MOTORS P. LTD. THESE LOOSE PAPERS DID NOT CONTAIN T HE SIGNATURE OF THE AVIS MOTORS P. LTD. DIRECTORS VIZ, APPELLANTS WIFE AND SON. IT IS ALSO FACT THAT THESE ARE NOT IN THE HANDWRITING OF THE ASSESS EE OR HIS FAMILY MEMBERS. IT IS FURTHER SEEN THAT THIS IS ROUGH WORK ING WHICH APPEARS TO BE A ESTIMATE FOR A PROPOSED PROJECT WHEREIN NO NAM E OF AVIS MOTORS P. LTD. IS MENTIONED. IT IS ALSO SEEN THAT THESE PA- DOES NOT CONTAIN FULL NAME OR FULL INITIALS OF APPELLANT BUT ONLY REFERS AS DR. TIWARI. IT IS ALSO SEEN THAT THE AMOUNT SHOWN WAS THE DRAFT WORKING PA GE WHICH MEANS THAT THE AMOUNT WAS CALCULATION ONLY AND AT THE SAM E TIME IT WAS UNPAID WHICH WAS TO BE CONTRIBUTED AND PAID IN FUTU RE. I ALSO FOUND THAT THE AO HAS NOT BROUGHT ON RECORD ANY STATEMENT OF HIREN CHOKSEY TO SUBSTANTIATE THAT THE ENTRIES REFLECTED IN THE N AME OF DR. TIWARI PERTAINS TO THE APPELLANT AND THE APPELLANT HAS MAD E ANY CONTRIBUTION TOWARDS THESE SUPPOSED FUTURE PAYMENTS. NO STATEMEN T OF THE ASSESSEE WAS EVER RECORDED ON THESE LOOSE PAGES DURING SEARC H OR AFTER POST SEARCH ENQUIRY. THERE IS ALSO NO REFERENCE THAT HIR EN CHOKSEY, HAS ALSO STATED IN HIS STATEMENT THAT DETAILS MENTIONED ON T HESE PAGES WERE RELATED TO DR. TIWARI. THE PRESUMPTION OF THE AO TH AT THE APPELLANTS WIFE MRS. KAILASHKUMARI TIWARI AND APPELLANTS SON SHRI ANAND 1WARI, ARE THE DIRECTORS IN THE AVIS MOTORS P. LTD, THEREF ORE, THE SUMS MENTIONED AGAINST THE NAME OF DR. TIWARI IS PERTAIN S TO THE APPELLANT IS NOT BASED ON SUCH EVIDENCE. HOWEVER, IN ABSENCE OF CORROBORATING EVIDENCE AND TO PROVE THAT APPELLANT HAS MADE ANY I NVESTMENT IN AVIS MOTORS P. LTD. NO ADVERSE INFERENCE CAN BE DRAWN. T HE APPELLANT HAS ALSO FILED COPIES OF BALANCE-SHEET OF AVIS MOTORS W HICH DOES NOT INDICATE ANY INVESTMENT IN THE NAME OF THE APPELLANT. I FIND THAT THE AR HAS REITERATED THAT PAGE NO. 56 AND 57 APPEARS TO BE ROUGH ESTIMATES AND THESE DO NOT BELONG TO THE APPE LLANT. THE AMOUNTS WAS SHOWN AS PAYABLE ONLY AND THEREFORE THE FACT RE MAINS THAT THESE $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 12 AMOUNTS WERE NOT PAID. THUS, THERE CANNOT BE AN ADV ERSE INFERENCE DRAWN THAT THERE WAS AN UNEXPLAINED INVESTMENT MADE BY THE APPELLANT AS THE APPELLANT WAS NOT HAVING ANY FINAN CIAL INVOLVEMENT/COMMITMENT WITH AVIS MOTORS P. LTD. THE PROVISIONS OF SECTION 69B PROVIDES THAT ADDITIO N U/S 69B CAN BE MADE WHERE ANYTHING FOUND IN EXCESS THE AMOUNT RECO RDED IN BOOKS. I FIND THAT I.E. APPELLANT IS NEITHER A SHARE HOLDER NOR A DIRECTOR OR NOR A CREDITOR IN AVIS MOTORS P. LTD. HE IS NOT INVOLVED IN ANY FINANCIAL MATTERS OF AVIS MOTORS LTD. THEREFORE, THE QUESTION OF MAKING ANY INVESTMENT IN ANY FORM IN THE SAID COMPANY DID NOT ARISE. MOREOVER, THE AO HAS NO T BROUGHT ANYTHING ON RECORD OR ANY STATEMENT OF PERSON FROM WHOM THES E PAPERS WERE SEIZED TO ESTABLISH THAT THE INVESTMENT OF RS. 23,4 0,800/- WAS ACTUALLY MADE. THE AR RELIED IN THE CASE OF DILSHAD TRADING CO. 49 ITR 318, WHEREIN IT WAS MENTIONED THAT FOR INVOKING SECTION 69B, THE AS SESSEE HIMSELF HAVE MADE INVESTMENT AND HE MUST HAVE FOUND MAKING SUCH INVESTMENT EXCEEDED THE AMOUNT RECORDED IN THE BOOKS OF ACCOUN TS OR THE ASSETS OFFERS NO EXPLANATION ABOUT THE EXCESSIVE AMOUNT. T HE TRIBUNAL HELD THAT THE BASIC DINGS WHICH IS TO BE RECORDED ARE CL EAR AND COGENT MATERIAL IN RESPECT OF THE AMOUNT EXPLAINED BY THE ASSESSEE AND THE ONUS IS ON THE DEPORTMENT THAT THE ASSESSEE HAS SHO WN EXPENDED EXTRA AMOUNT. HOWEVER, IN THE INSTANT CASE, THE AO HAS FA ILED TO BRING ON RECORD ANY MATERIAL TO JUSTIFY THE CONDITIONS LAID DOWN IN THE AFORESAID DECISION OF THE TRIBUNAL. THE OTHER CASE LAWS RELIE D BY THE AR ARE ALSO SUPPORTS THE CASE OF ASSESSEE. THEREFORE, IN ABSENC E OF ANY COGENT MATERIAL THAT FIGURES APPEARING ARE ACTUAL OR PART OF IT APPEARS IN BALANCE SHEET OR THE AMOUNT WHICH WAS TO BE CONTRIB UTED OR INDICATED APPELLANTS NAME. THEREFORE, THE REASONS FOR MAKING THE ADDITION AS STATED BY THE AO ARE INADEQUATE, UNESTABLISHED, INA PPROPRIATE TO DETERMINE THE UNDISCLOSED INVESTMENT IN THE NAME OF THE APPELLANT. THUS, THE ADDITION MADE BY THE AO IS NOT JUSTIFIED. IT IS ALSO RELEVANT TO MENTIONED HERE THAT SIMILAR TYPE OF ADDITION MADE I N THE CASE OF APPELLANT ON ACCOUNT OF LOOSE PAPER NO. 165 FOUND A ND SEIZED FROM MR. HIREN CHOKSEY FOR ASSESSMENT YEAR 2007-08 ALSO STAN DS DELETED BY THE CIT(A)-3, MUMBAI VIDE ORDER NO. ITA NO. 328/09-10 D ATED 3.9.2010. FURTHER, SUCH TYPE OF ADDITION MADE IN THE CASE OF AVIS MOTORS P. LTD. WERE ALSO DELETED BY CIT(A) -16, MUMBAI VIDE HIS OR DER DATED 5.4.2010 THESE FACTS AND FINDING OF THE APPELLATE AUTHORITIE S, ALSO SHOWS THAT THE ADDITIONS WERE MADE BASED ON THIRD PARTY MATERIAL B Y THE AO WERE WITHOUT ANY BASIS. THE FACTS OF THIS YEAR IS ALSO I DENTICAL, THEREFORE. I HAVE NO REASON TO DEVIATE FROM THE FINDINGS OF MY P REDECESSOR CIT(A)-3 AND CIT(A). IN THE LIGHT OF AFORESAID FACTS AND THE CASE LAWS R ELIED BY THE AR, THE ADDITION OF RS. 23,40,800/- BY THE AO IS THEREFORE, DELETED. THIS GROUND OF APPEAL IS ALLOWED. 23. THE CIT(A) THUS DELETED THE ADDITION, AS MADE BY THE AO. 24. AGAINST THIS ORDER, THE DEPARTMENT IS IN APPEAL BEFORE THE ITAT. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 13 25. BEFORE US THE DR, STRONGLY SUPPORTED THE ORDER OF THE AO, WHEREAS, THE AR, SUPPORTED THE ORDER OF THE CIT(A). 26. WE HAVE HEARD THE DETAILED ARGUMENTS FROM BOTH TH E SIDES, AND HAVE PERUSED THE FACTS. PAGES NO. 56 AND 57, AS NOTED B Y THE CIT(A), ARE ROUGH ESTIMATES AND DOES NOT BELONG TO THE ASSESS EE, AS THEY WERE NEITHER FOUND FROM THE POSSESSION OF THE ASSESSEE, NOR W ERE THEY CLAIMED TO BE CORRECT BY THE ASSESSEE, AS THE ASSESSEE WAS NEVER CONFRONTED BY THE AO, WITH REGARD TO THE CONTENTS OF TH E IMPUGNED PAPERS. THE AMOUNTS WERE SHOWN AS PAYABLE, THEREFORE, IT IS APPARENT THAT THESE AMOUNTS WERE NOT ACTUALLY, PAID. THUS, THERE CANNOT BE AN ADVERSE INFERENCE DRAWN AGAINST THE ASSESSEE, THAT THER E WAS AN UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE, AS THE AS SESSEE DID NOT HAVE ANY TRANSACTION WITH THE CONCERN, AVIS MOTORS P. LT D. THE PROVISIONS OF SECTION 69B ARE CLEAR, THAT THE ADDITION U/S 69B CAN BE MADE, IF ANYTHING IS FOUND IN EXCESS OF THE AMOUNT RECORDED IN BOOKS OR THE EXPLANATION PROVIDED IS UNACCEPTABLE. I FIND THAT TH E ASSESSEE IS NEITHER A SHARE HOLDER NOR A DIRECTOR OR NOR A CREDITOR IN AVIS MOTORS P. LTD. 27. THEREFORE, THE QUESTION OF MAKING ANY INVESTMENT IN A NY FORM IN THE SAID COMPANY DID NOT ARISE. MOREOVER, THE AO HAS NOT BROUGHT ANYTHING ON RECORD OR ANY STATEMENT OF PERSON FROM WHO M THESE PAPERS WERE SEIZED TO ESTABLISH THAT THE INVESTMENT OF R S. 23,40,800/- WAS ACTUALLY MADE. 28. THE AR RELIED IN THE CASE OF DILSHAD TRADING CO. 49 ITD 318, WHEREIN IT WAS MENTIONED, THAT FOR INVOKING SECTION 69B, THE ASSESSEE HIMSELF HAVE MADE INVESTMENT AND HE MUST HAVE FOUND M AKING SUCH INVESTMENT EXCEEDED THE AMOUNT RECORDED IN THE BOOK S OF ACCOUNTS OR THE ASSETS OFFERS NO EXPLANATION ABOUT THE EXCESSIV E AMOUNT. THE $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 14 TRIBUNAL HELD THAT THE BASIC THING WHICH IS TO BE REC ORDED ARE CLEAR AND COGENT MATERIAL IN RESPECT OF THE AMOUNT EXPLAINED BY THE ASSESSEE AND THE ONUS IS ON THE DEPORTMENT THAT THE ASSESSEE HAS EXPENDED EXTRA AMOUNT, AS SHOWN. 29. HOWEVER, IN THE INSTANT CASE, THE AO HAS FAILED TO BRIN G ON RECORD ANY MATERIAL TO JUSTIFY THE CONDITIONS LAID DOWN IN THE AFORESAID DECISION OF THE TRIBUNAL. THE OTHER CASE LAWS RELIED BY THE AR ALSO SUPPORT THE CASE OF ASSESSEE. THEREFORE, IN ABSENCE OF AN Y COGENT MATERIAL THAT FIGURES APPEARING ARE ACTUAL OR PART OF IT A PPEARS IN BALANCE SHEET OR THE AMOUNT WHICH WAS TO BE CONTRIBUTE D OR INDICATED APPELLANTS NAME, NO ADVERSE INFERENCE COULD BE DRAWN AGA INST THE ASSESSEE, SPECIALLY WHEN THE EVIDENCE(S) BEING RELIED UPON B Y THE AO ARE INADEQUATE, UNESTABLISHED, INAPPROPRIATE, AND FAIL TO PRO VE THE UNDISCLOSED INVESTMENT IN THE NAME OF THE ASSESSEE. IT H AS ALSO BEEN SEEN FROM THE ORDER OF THE CIT(A), THAT THE CIT(A) NOTED THAT SIMILAR ADDITION WAS MADE IN THE CASE OF AVIS MOTORS P. LTD., AS WELL, WHICH, INCIDENTALLY, WAS ALSO DELETED BY CIT(A)-16, MUMBAI VIDE HIS O RDER DATED 5.4.2010. THESE FACTS AND FINDING OF THE CIT(A), ALSO SH OW THAT THE ADDITIONS WERE MADE BASED ON THIRD PARTY MATERIAL B Y THE AO, WHICH WERE WITHOUT ANY BASIS OR CORROBORATED BY ANY COGENT FACT . IN THE LIGHT OF AFORESAID FACTS AND THE CASE LAWS RELIED BY THE AR, THE CIT(A) DELETED THE ADDITION OF RS. 23,40,800/- MADE BY THE AO. 30. CONSIDERING THE ENTIRE FACTUAL MATRIX, WE ARE OF THE O PINION, THAT THE CIT(A) WAS CORRECT IN EMPLOYING THE FACTS AND LAW TO D ELETE THE ADDITION, WHICH WE SUSTAIN. $ . . . 8344 /%% / 2010 $ . . . 83 /% %/ 2012 SHRI (DR.) AVINASH C TIWARI ITA NO.8344MUM/2010 ITA NO. 83/MUM/2012 15 31. IN THE RESULT THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. TO SUM UP : APPEAL IN ITA NO. 8344/MU/2010, FILED BY THE DEPARTMENT IS DISMISSED APPEAL IN ITA NO. 83/MUM/2012, FILED BY THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JUNE, 2013. SD/- SD/- ( .. ) ( #'' '$ ) ! ! (P.M. JAGTAP) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 19 TH JUNE, 2013 / COPY TO:- 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) $ $ ( ( ) - 3 MUMBAI / THE CIT (A)-3, MUMBAI. 4) $ $ ( 11, MUMBAI / THE CIT11, MUMBAI, 5) *+, - . , $ - , %/ / THE D.R. A BENCH, MUMBAI. 6) ,0 1 COPY TO GUARD FILE. $23 / BY ORDER / / TRUE COPY / / [ 4 / 5 6 $ - , %/ DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *895 . . * CHAVAN, SR. PS