Dr. Shivajirao Shripatrao Kadam, Pune V. DCIT, Cent. Cir.-2(2), Pune

ITA 886/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5241 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K OJHA
• Keywords: Search and seizure; Loose papers; Document seized; Corroborative evidences; Documents seized
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 886 / P N/ 20 11 ASSESSMENT YEAR : 2006 - 07 DR. SHIVAJIRAO SHRIPATRAO KADAM, AHI RWAD, 15 MAYUR COLONY, KOTHRUD, PUNE VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL, CIRCLE - 2(2), PUNE (APPELLANT) (RESPONDENT) PAN NO. ABTPK9132H ITA NO. 887 /PN/20 11 ASSESSMENT YEAR : 2006 - 07 DR. VISHWAJIT PATANGRAO KADAM, SINHGAD NAVKRANTI HOUSING SOCIETY, OPP . MBCC COLLEGE, DECCAN, PUNE VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL, CIRCLE - 2(2), PUNE (APPELLANT) (RESPONDENT) PAN NO. AFHPK6465K ITA NO. 888 /PN/20 11 ASSESSMENT YEAR : 2006 - 07 MRS. VIJAYMALA PATANGRAO KADAM, 1 RA IGAD, OPP. MBCC COLLEGE, SHIVAJINAGAR PUNE VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL, CIRCLE - 2(2), PUNE (APPELLANT) (RESPONDENT) PAN NO. AEKPK9668Q ITA NO. 918 /PN/20 11 ASSESSMENT YEAR : 2006 - 07 DY. COMMISSIONER OF INCOME TAX, CIRCLE - 3, P UNE VS. MRS. VIJAY A MALA P. KADAM, 1 RAIGAD, OPP. MBCC COLLEGE, SHIVAJINAGAR , PUNE (APPELLANT) (RESPONDENT) PAN NO. AEKPK9668Q ITA NO. 919 /PN/20 11 ASSESSMENT YEAR : 2006 - 07 DY. COMMISSIONER OF INCOME TAX, CIRCLE - 3, PUNE VS. DR. VISHWAJEET P. KAD AM, 1 RAIGAD, OPP. MBCC COLLEGE, SHIVAJINAGAR , PUNE (APPELLANT) (RESPONDENT) PAN NO. AFHPK6465K 2 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE A SSESSEE BY: SHRI NIKHIL PATHAK REVENUE BY: SHRI K.K. OJHA ORDER P ER R.S. PADVEKAR , JM : - THIS BATCH OF FIVE APPEALS ARE ARISING OUT OF T HE ASSESSMENT COMPLETED U/S. 153C R.W.S. 143(3) IN RESPECT OF THE THREE DIFFERENT ASSESSEES WHO ARE THE FAMILY MEMBERS AND ALL THESE ASSESSMENTS ARE COMPLETED ON THE BASIS OF THE SEARCH AND SEIZURE ACTION TAKEN AGAINST ONE SHRI R.D. SHINDE U/S. 132(1) OF T HE INCOME - TAX ACT ON 20 - 07 - 2005. AS THE ASSESSMENTS ARE BASED ON THE COMMON EVIDENCE HENCE, THIS BATCH OF APPEALS , W HICH INCLUDES T WO CROSS APPEALS OF THE REVENUE ARE DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 886/PN/2011 , (D R. SHIVAJIRAO SHRIPATRAO KADAM) 2. THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - CENTRAL, PUNE DATED 30 - 03 - 2011 FOR THE A.Y. 2006 - 07. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS IN THE APPEAL: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,73,861/ - BY REDUCING THE AGRICULTURAL INCOME AND TREATING THE SAME AS INCOME FROM OTHER SOURCES ON THE PRESUMPTION THAT THE AGRICULTURAL EXPENSES TO THAT EXTENT WERE BORNE BY THE BHARATI VIDYAPEETH TRUST. 2. T HE LEARNED CIT(A) ERRED IN HOLDING THAT BHARATI VIDYAPEETH TRUST HAD INCURRED AGRICULTURAL EXPENSES ON THE AGRICULTURAL FARMS OF THE TRUSTEES AS THE PAPERS RELATING TO SUCH EXPENSES WERE FOUND WITH SHRI SHINDE WITHOUT APPRECIATING THAT THE SAID TRUST HAD N OT BORNE ANY SUCH EXPENSES. 3. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS AN INDIVIDUAL AND ALSO ONE OF THE TRUSTEES OF THE BHARATI VIDYAPEETH. THERE WAS A SEARCH AND SEIZURE ACTION AGAINST SHRI R.D. SHINDE WHO WAS THE HEAD OF THE ACCOUNTANTS OF THE BHARATI VIDYAPEETH 3 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE ON 20 - 07 - 2005. THE ASSESSEE WAS ISSUED THE NOTICE ON THE BASIS OF CERTAIN VOUCHERS /BILLS FOUND DURING THE COURSE OF SEARCH WHICH INDICATED THAT THE SAID EXPENDITURE WAS PERTAINING TO THE AGRICULTURAL FARMS OF THE ASSESSEE OR ASSESSEES FAMILY AND THAT EXPENDITURE WAS INCURRED BY THE BHARATI VIDYAPEETH. IN RESPONSE TO NOTICE U/S. 153C THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.10,87,690/ - AND AGRICULTURAL INCOME OF RS.10,40,000/ - . DUR ING THE COURSE OF SEARCH AND SEIZURE OPERATION , CERTAIN BILLS/VOUCHERS WERE SEIZED FROM SHRI R.D. SHINDE IN HIS OFFICE IN BHARATI VIDYAPEETH WHICH WERE PERTAINING TO FARMS OF THE TRUSTEES . THERE IS NO DISPUTE ABOUT THE FACT THAT THE SEARCH AND SEIZURE ACT ION WAS TAKEN ONLY AGAINST SHRI SHINDE AS THE SEARCH WARRANT U/S. 132(1) ISSUED AGAINST HIM. THE SEARCH WAS RESTRICTED TO THE OFFICE CABIN OF SHRI R.D. SHINDE IN THE BHARATI VIDYAPEETH, HEAD OFFICE IN PUNE AND THE RESIDENCE OF SHRI R.D. SHINDE. 4. ON T HE BASIS OF THE VOUCHERS/BILLS FOUND WHICH SHRI SHINDE THE INFERENCE WAS DRAWN BY THE ASSESSING OFFICER THAT THE AGRICULTURAL EXPENDITURE RELATING TO THE AGRICULTURAL FARMS OWNED BY THE ASSESSEE AND HIS FAMILY IS INCURRED OUT OF MONEY OF THE BHARATI VIDYAP EETH TRUST. THE ASSESSEE S FAMILY OWNED THE AGRICULTURAL FARMS AS NOTED BY THE ASSESSING OFFICER WHICH ARE HAVING THE NAME LIKE ABHIJIT KADAM SHETI FARMS AND KADAM SHETI FARMS . THE ASSESSING OFFICER HAS GIVEN THE DETAILS OF THE VOUCHERS/BILLS ON PAGE NO. 3 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER ASKED FOR THE BREAK - UP OF THE AMOUNT RECEIVED IN RESPECT OF THE AGRICULTURAL INCOME WHICH WAS FILED BY THE ASSESSEE. AS PER THE DETAILS FILED BY THE ASSESSEE , THE SALES OF RS. 4,09,959/ - ARE CASH SALES AND OTHER SALES ARE BY THE CHEQUES. THE ASSESSING OFFICER HAS NOTED THAT ALL THE CASH SALES ARE SUPPORTED BY BILLS. AS NOTED BY THE ASSESSING OFFICER THE LOOSE PAPERS RELATING TO THE EXPENDITURE VOUCHERS OF ABHIJIT KADAM SHETI FARMS AND KADAM SHETI F ARMS WERE FOUND IN THE POSSESSION OF SHRI R.D. SHINDE. AS NOTED BY THE ASSESSING OFFICER THE AGRICULTURAL 4 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE FARMS ARE JOINTLY HELD BY THE ASSESSEES FAMILY. THE ASSESSING OFFICER HAS NOTED THAT THE EXPENDITURE SHOWN BY THE ASSESSEE DOES NOT MATCH WITH THE AGRICULTURAL INCOME. THE ASSESSING OFFICER HAS HELD THAT SOME PAYMENTS OF THE EXPENDITURE HAVE GONE FROM THE ACCOUNTS OF THE TRUST AND THE RELEVANT PAPERS WERE AVAILABLE WITH THE ACCOUNTANT OF THE TRUST. H E, THEREFORE, MADE THE ADDITION OF RS.2,73,861/ - TO THE INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. THE LD. CIT(A) CONFIRMED THE ADDITION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL REFERRED TO THE PAPER BOOK AND SUBMITS THAT IN RESPECT OF THE LOOSE PAPERS PERTAINING TO THE AGRICULTURAL EXPENDITURE OF THE AGRICULTURAL FARMS JOINTLY OWNED BY THE ASSESSEE AND HIS FAMILY MEMBERS WHICH WERE SEIZED FROM THE OFFICE CABIN OF SHRI R.D. SHIN D E, HIS STATEMENT WAS RECORDED AND EXPLANATION WA S SOUGHT ON SAID BILLS/VOUCHERS . HE SUBMITS THAT ADMITTEDLY THE ASSESSEES CABIN IS IN THE PREMISES OF BAHARATI VIDYAPEETH AND NOT A SINGLE DOCUMENT WAS FOUND SUGGESTING THAT ANY EXPENDITURE RELATING TO THE AGRICULTURAL FARMS OWNED BY THE ASSESSEE WHO IS ONE OF THE TRUSTEES OF THE BHARATI VIDYAPEETH WAS INCURRED OUT OF THE FUNDS OF THE TRUST. HE SUBMITS THAT SHRI SHINDE HAS CATEGORICALLY STATED IN THE INTERROGATION THAT WHATEVER THE LOOSE PAPERS FOUND THOSE WERE KEPT WITH HIM BY THE MANAGERS /EMPLOYEES OF THE FARMS FOR GIVING TO THE ASSESSEE AND OTHER TRUSTEES A S THE ASSESSEE AND OTHER TRUSTEES EITHER THEY WERE BUSY OR NOT AVAILABLE IN THE STATION. HE SUBMITS THAT THE STATEMENT RECORDED U/S. 132(4) AND EVEN IN THE RE - EXAMINATION , SHRI R.D. SHINDE HAS CATEG ORICALLY STATED ON OATH THAT THE EXPENDITURE MENTIONED ON THE LOOSE PAPERS RELATING TO AGRICULTURAL ACTIVITY IS INCURRED BY THE ASSESSEE AND HIS FAMILY FROM THEIR OWN SOURCES. 6. NOWHERE SHRI SHINDE STATED THAT ANY PART OF THE SAID EXPENDITURE WAS INCUR RED BY USING THE FUNDS OF THE BHARATI VIDYAPEETH TRUST. HE 5 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE SUBMITS THAT THE DEPARTMENT HAS AMPLE OPPORTUNITY EVEN TO EXAMINE THE MANAGER OF THE FARMS BUT THERE IS NO IOTA OF EVIDENCE AGAINST THE ASSESSEE OR ANY OF HIS FAMILY MEMBERS IN RESPECT OF THE SO C ALLED UTILIZATION OF THE FUNDS OF BHARATI VIDYAPEETH TRUST. IN THE STATEMENT SHRI SHINDE HAS GIVEN THE CONSISTENT REPLY WHICH IS IN FAVOUR OF THE ASSESSEE AND IT IS A LOGICAL ALSO THAT THE ASSESSEE WAS WORKING IN THE BHARATI VIDYAPEETH TRUST AND TRUSTEES USE TO COME AND SIT IN BHARATI VIDYAPEETH BHAVAN WHICH IS H.O. AND MANY TIMES THEY ARE BUSY HENCE IT IS NOT UNUSUAL THAT THE MANAGER OF THE FARMS COULD HAVE LEFT THE PAPERS WITH SHRI SHINDE WHO WAS ACCOUNTANT I N - CHARGE OF THE BHARATI VIDYAPEETH TRUST. HE SUBMITS THAT EVEN IN THE SPECIAL AUDIT REPORT , NOTHING IS THERE EVEN TO SUGGEST THAT ANY OF THE MONEY OF THE TRUST HAVE BEEN USED FOR MEETING THE AGRICULTURAL EXPENDITURE OF THE FARMS. HE PLEADED FOR DELETING THE ADDITION. WE HAVE ALSO HEARD THE LD. CIT( DR), WHO SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. IN THIS CASE, WE FIND THAT THE DEPARTMENT HAS INTERROGATED AND RECORDED THE STATEMENT OF SHRI SHINDE . W E HAVE GONE THROUGH THE ENGLISH TRANSLATION OF THE STATEMENT GIVEN BY SHRI SHINDE. WE FIND THAT SPECIFIC QUESTIONS ARE PUT TO SHRI SHINDE IN RESPECT OF THE LOOSE PAPERS /BILLS AND THE VOUCHERS FOUND AND SEIZED FROM HIS CABIN. SHRI SHINDE HAS CATEGORICALLY STATED IN CLEAR TERMS T HAT THOSE PAPERS ARE PERTAINING TO THE AGRICULTURAL EXPENDITURE BUT AGRICULTURAL EXPENDITURE IS INCURRED BY THE ASSESSEE AND HIS FAMILY MEMBERS FROM THEIR OWN INCOME. IN OUR OPINION , THE EXPLANATION OF THE ASSESSEE IS NOT UNUSUAL THAT BEING HE IS A ONE OF THE TRUSTEES HE MAY NOT BE AVAILABLE TO THE MANAGER OF THE FARMS WH O USE TO COME TO MEET HIM AND THEY COULD HAVE KEPT THESE VOUCHERS WITH SHRI SHINDE. WE ALSO FIND THAT THE DEPARTMENT HAS NOT INVESTIGATED THIS PARTICULAR CHARGE BY EXAMINING THE MANAGER /EMPLOYEES OF THE FARMS . IN OUR OPINION THAT EXERCISE COULD HAVE CORR OBORATED THE REVENUES CHARGE. IN OUR OPINION THERE IS NO BASIS 6 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE FOR DRAWING THE PRESUMPTION AGAINST THE ASSESSEE BEING TRUSTEES OF THE BHARATI VIDYAPEETH THAT THE AGRICULTURAL EXPENDITURE PERTAINING TO THE FARMS IS MADE OUT OF FUNDS OF THE BHARATI VIDYAPE ETH TRUST. WE, THEREFORE, HOLD THAT BOTH THE AUTHORITIES BELOW HAVE ERRED IN MAKING THE ADDITION ERRONEOUSLY IN THE HANDS OF THE ASSESSEE AS NOTING IS ON RECORD TO EVEN SUGGEST THAT THE SAID EXPENDITURE IS MET OUT OF THE TRUST FUNDS. WE, ACCORDINGLY, DEL ETE THE ADDITION AND ALLOW THE GROUNDS TAKEN BY THE ASSESSEE. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ITA NO. 88 7 & 919 /PN/2011 , (DR. VISHWAJIT PATANGRAO KADAM) 9. THESE TWO CROSS APPEALS ARE FILED, ONE BY THE ASSESSEE AND ANOTHER BY THE REVENUE FOR THE A.Y. 2006 - 07. WE FIST TAKE THE ASSESSEES APPEAL IN ITA NO. 887/PN/2011 FOR DISPOSAL. THE ASSESSEE HAS TAKEN THE FOLLOWING TWO EFFECTIVE GROUNDS IN THE APPEAL: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,73,861 BY REDUCIN G THE AGRICULTURAL INCOME AND TREATING THE SAME AS INCOME FROM OTHER SOURCES ON THE PRESUMPTION THAT THE AGRICULTURAL EXPENSES TO THAT EXTENT WERE BORNE BY THE BHARATI VIDYAPEETH TRUST. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT BHARATI VIDYAPEETH TRUST H AD INCURRED AGRICULTURAL EXPENSES ON THE AGRICULTURAL FARMS OF THE TRUSTEES AS THE PAPERS RELATING TO SUCH EXPENSES WERE FOUND WITH SHRI SHINDE WITHOUT APPRECIATING THAT THE SAID TRUST HAD NOT BORNE ANY SUCH EXPENSES. 10. IN THIS CASE, THE ASSESSING OFF ICER HAS MADE THE ADDITION OF RS.3,93,861/ - (THE ASSESSING OFFICER HAS DISCUSSED THE ADDITION TO BE MADE AT RS.2,73,861/ - IN THE ASSESSMENT ORDER BUT IN THE COMPUTATION THE FIGURE IS DIFFERENT). THERE WAS A SEARCH AND SEIZURE OPERATION AGAINST SHRI R.D. S HINDE WHO WAS WORKING AS ACCOUNTANT IN - CHARGE IN THE BHARATI VIDPYAPEETH TRUST LOOKING AFTER THE ACCOUNT S OF THE DIFFERENT INSTITUTIONS RUN BY THE TRUST. IN SEARCH , THE CABIN AS WELL AS RESIDENCE OF 7 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE SHRI R. D. SHINDE WAS COVERED. THE FACTS PERTAINING TO THIS ADDITION ARE IDENTICAL AS IN THE CASE OF DR. SHIVAJIRAO SHRIPATRAO KADAM IN ITA NO. 886/PN/2011. ON IDENTICAL REASONING THE ASSESSING OFFICER HAS MADE THE ADDITION IN RESPECT OF AGRICULTURAL EXPENDITURE WHICH WAS FOUND NOTED IN THE VOUCHERS/LOOSE PAP ERS SEIZED FROM THE CABIN OF SHRI SHINDE. IN OUR DETAIL REASONING , WE HAVE DELETED THIS ADDITION IN THE CASE OF DR. SHIVAJIRAO SHRIPATRAO KADAM (SUPRA). FOR AVOIDING THE REPETITION OF THE FACTS AND REASONINGS WE ADOPT THE FACTS AS WELL AS REASONINGS GIVE N IN THE CASE OF DR. SHIVAJIRAO SHRIPATRAO KADAM (SUPRA) AND HOLD THAT BOTH THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN TREATING THE PART OF THE EXPENDITURE TO THE EXTENT OF RS.2,73,861/ - IS INCURRED OUT OF THE INCOME/FUNDS OF BHARATI VIDYAPEETH TRUST. WE, ACCORDINGLY, DELETE THE ADDITION MADE BY THE ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE. 11. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. 12. NOW WE TAKE UP THE REVENUE APPEAL IN ITA NO. 919/PN/2011. THE REVENUE HAS TAKEN THE MULTIPLE GROUNDS IN THE APPEAL. WE PREFERRED TO GO BY THE ISSUES ARISING FROM THE GROUNDS. 13. THE FIRST ISSUE IS IN RESPECT OF THE ADDITION OF RS. 1,20,000/ - BY REDUCING THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AND TREATING THE SAME AS INCOME UNDER THE HEAD IN COME FROM OTHER SOURCES. THE ASSESSEE HAS DECLARED THE AGRICULTURAL INCOME OF RS.15,25,900/ - . THE ASSESSING OFFICER ASKED THE ASSESSEE TO GIVE THE BREAK - UP OF THE AMOUNT RECEIVED THROUGH CHEQUES IN THE AMOUNT RECEIVED THROUGH CASH TOWARDS AGRICULTURAL IN COME. THE ASSESSEE FILED THE DETAILS AS REQUIRED BY THE ASSESSING OFFICER. AS PER THE DETAILS FILED BY THE ASSESSEE THE CASH SALES OF THE AGRICULTURAL CROP WAS TO THE EXTENT OF RS. 7,57,534/ - . AS NOTED BY THE ASSESSING OFFICER THE CASH SALES OF RS.2,94,7 61/ - ARE NOT SUPPORTED BY THE BILL S . THE ASSESSEE EXPLANATION THAT THOSE SALES WERE MADE TO PETTY VENDORS AND THEREFORE , NO BILLS AVAILABLE WAS REJECTED. HE, 8 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE THEREFORE, REDUCED THE AGRICULTURAL INCOME BY RS.1,20,000/ - AND TREATED THAT AMOUNT AS UNPROVED AGRICULTURAL INCOME AND BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. THE LD. CIT(A) DELETED THE ADDITION FOLLOWING THE ORDER FOR THE A.Y. 2000 - 01. 14. WE HAVE HEARD THE PARTIES. THE ASSESSING OFFICER IS SUSPECTING THAT THE PART OF AGRICULT URAL INCOME MAY BE OUT OF THE CAPITATION FEE COLLECTED BY THE ASSESSEE TRUST. THERE IS NO E VIDENCE TO SUPPORT THE CONCLUSION OF THE ASSESSING OFFICER. MOREOVER , EVEN THOUGH THE APPROACH OF THE ASSESSING OFFICER ON ADHOC BASIS TREATING THE PART OF THE AGR ICULTURAL INCOME AS INCOME FROM OTHER SOURCES HAS NO BASE. OTHERWISE ALSO WE FIND THAT THE ASSESSING OFFICER H AS ACCEPTED THE CASH SALES THEN WHY HE SHOULD HAVE T O TREAT ONLY RS.1,20,000/ - AS NOT OF PART OF THE AGRICULTURAL INCOME. THE ONLY REASON THAT T O EXTEN D OF RS.1.2 LACS SALES NOT SUPPORTED BY BILLS OTHERWISE THE ASSESSING OFFICER ACCEPTED ALL SALES FROM AGRICULTURE FARMS. IN OUR OPINION THE ADDITION IS MADE ON SURMISES WITHOUT ANY SUPPORTING EVIDENCE OR GOOD REASONING . WE, THEREFORE, CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE RELEVANT GROUNDS TAKEN BY THE REVENUE . 15. THE NEXT ISSUE IS THE ADDITION OF RS.69,00,000/ - MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED DOCUMENTS WHICH WAS DELETED BY THE LD. CIT(A). THIS ISSUE IS DISCUSSED IN THE ASSESSMENT ORDER WHICH IS AS UNDER: 3. DURING THE COURSE OF SEARCH ACTION IT WAS SEEN THAT THE CASH COLLECTED BY THE TRUSTS OF THIS GROUP WAS NOT ONLY BEING UTILIZED FOR THE BENEFIT OF TRUSTEES BUT ALSO ATTEMPT IS BEING MADE TO COLOUR AS INCOME AS AGRICULTURAL INCOME. THE ASSESSEE GROUPS AGRICULTURAL FARMS ARE CLAIMED TO BE KNOWN BY THE COMMON NAME OF ABHIJIT KADAM SHETI FARM AND KADAM SHETI FARM. THE FOLLOWING DOCUMENTS, IN RESPECT OF THIS FARM WERE RECOVERED FROM SHRI SHINDE. 9 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE BUNDLE NO PAGE NO DETAILS AMOUNT A - 2 26 TO 41 ABHIJIT KADAM SHETI FARM ARM 128739 A - 3 15 TO 34 ABHIJIT KADAM SHETI FARM 65154 A - 8 61 TO 85 ABHIJIT KADAM SHETI FARM 98867 A - 8 98 TO 119 ABHIJIT KADAM SHETI FARM 85201 A - 9 51 TO 64 ABHIJIT KADAM SH ETI FARM 50587 A - 9 68 TO 93 ABHIJIT KADAM SHETI FARM 70397 A - 2 91 KADAM SHETI FARM 231724 A - 2 92 KADAM SHETI FARM 57500 A - 8 38 TO 60 KADAM SHETI FARM 62052 A - 8 97 9? KADAM SHETI FARM 216500 A - 8 120 TO 137 KADAM SHETI FARM 117421 A - 9 15 TO 42 KADAM SHETI FARM 105167 A - 9 66 KADAM SHETI FARM 80000 TOTAL 1369309 4. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS. 15,25,900/ - THOUGH THESE PAPERS RELATE TO TIE L ATER PERIOD IT WAS ON THIS BACK GROUND THE ASSESSEE'S REPRESENTATIVE WAS REQUESTED TO GIVE BREAK UP OF AMOUNT RECEIVED THROUGH CHEQUES AND THE AMOUNT RECEIVED THROUGH CASH TOWARDS AGRICULTURAL INCOME. THE SAME WAS FILED BEFORE ME BY THE ASSESSEE ON 28 - 12 - 2 007. AS PER THIS STATEMENT THE ASSESSEE HAS SHOWN THAT OUT OF THE CASH SABS OF RS. 7,57,534/ - THE CASH SALES OF RS. 2,94,761/ - ARE NOT SUPPORTED WITH THE BILL. IT WAS STATED THAT THESE SALES WERE MADE TO PETTY VENDORS AND THEREFORE NO BILLS ARE AVAILABLE. THE CONTENTION OF THE ASSESSEE HAS BEEN GIVEN HUE CONSIDERATION. HOWEVER, IN THE ABSENCE OF ANY CONCRETE PROOF AND CONSIDERING THE FINDING THAT THE ASSESSEE GROUP HAS BEEN GIVING COLOUR OF AGRICULTURAL INCOME TO THE ILLEGAL RECEIPTS COLLECTED BY THIS GROUP BY WAY OF CAPITATION FEES 7 DONATIONS. I AM UNABLE TO ACCEPT THE ASSESSEE'S CONTENTION IN TO - TO. THEREFORE, A SUM OF RS. 1,20,000/ - IS TREATED AS UNPROVED AGRICULTURAL INCOME AND THE SAME IS TREATED AS INCOME FROM OTHER SOURCES AND TAXED ACCORDINGLY. 4.1. AS MENTIONED ABOVE CERTAIN INCRIMINATING PAPERS PERTAINING TO THE ASSESSEE WERE FOUND IN THE POSSESSION OF SLIRI R. D. SHINDE. ONE OF SUCH PAPERS IS PAGE NO. 23 OF BUNDLE NO. 6 WHERE THE FIGURE 19 + 50 = 69 WITH THE REMARK 'BALASAHEB' IS WRITTEN. THE ASSE SSEE IS REFERRED TO AS BALASAHEB WHICH IS HIS CODENAME. INCIDENTALLY ON THESE PAPERS ONE TELEPHONE NO. 9822899999 IS WRITTEN. AS PER THE PAPERS SEIZED FROM SHRI R D SHINDE, HE IS IN THE HABIT OF WRITING IN 10 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE CODE LANGUAGE AND THE FIGURES ARE INVARIABLY FOR L ACS. OBVIOUSLY, THE ABOVE FIGURE REPRESENT THE AMOUNT OF RS. 69,00,000/ - . IT WAS THEREFORE INFERRED THAT THE ASSESSEE HAS RECEIVED RS. 69,00,000/ - OUT OF THE CAPITATION FEES / DONATIONS COLLECTED BY THE ASSESSEE GROUP. WHEN THIS ISSUE WAS RAISED BEFORE TH E ASSESSEE, THE ASSESSEE SUBMITTED AS UNDER : - ' FURTHER THE PAPER NO, 23 OF BUNDLE NO. 6 INDICATES CERTAIN FIGURES 50 + 19. THIS PAPER IS NO WAY RELATED TO ME. I HAVE NO CONCERN WITH THE PAPER AND THE FIGURES MENTIONED THEREIN. THERE IS NO NARRATION THERE ON. ONLY MY C ELL NUMBER IS RECORDED ON THE SAID PAPER. IT DOES NOT TO SAY THAT THESE PAYMENTS ARE MADE TO ME. ONLY MY PHONE NO. IS MENTIONED BELOW THAT LINE. SO THIS PAPER IS A DUMB PAPER. SIMPLY NOTING THE MOBILE NO. BELOW CERTAIN NOTINGS DOES NOT MEAN TH A' THE PAYMENT IC. MADE TO ME. THE SAID NOTINGS IN THE PAPER ARE NOT RELATED TO ME EXCEPT MY PHONE NO SIR I HAVE TO STATE THAT I HAVE NO CONNECTION OF WHATSOEVER NATURE WITH THE SAID PAPER OR THE AMOUNT MENTIONED THEREIN. SECONDLY, THE PAPER IS FOUND WITH SHRI R D SHINDE AND HE IS THE RIGHT PERSON TO EXPLAIN THE SAID PAPER. I WOULD FURTHER LIKE TO CLEAR THAT ON GOING THROUGH THE CROSS EXAMINATION OF SHRI R D SHINDE EVEN SHRI SHINDE HAS CLEARED THAT THE SAID PAPER CONTAINS TWO DIFFERENT NOTINGS. ONE OF WHICH IS MY PHONE NO. WHICH HAS NOTHING TO DO WITH THE OTHER NOTING. THE STATEMENT RECORDED OF SHRI R D SHINDE MAY BE READ WITH THIS PAPER. HENCE WITH ALL ABOVE FACTS & CIRCUMSTANCES IT IS CLEAR T HAT T HIS PAPER, THE FIGURES WRITTEN ON THE PAPER AND THE NOTING T HEREIN ARE NOT CONCERNED WITH ME IN ANY MANNER.' 4.2. THE SUBMISSION MADE BY THE ASSESSEE HAVE BEEN DULY CONSIDERED. THE ASSESSEE'S CONTENTION THAT THIS IS A DUMB PAPER IS NOT ACCEPTABLE TO ME PARTICULARLY BECAUSE WHILE EXPLAINING SIMILAR PAPERS SLIRI SHI NDE HAS ADMITTED THAT THESE FIGURES STANDS FOR RS. IN LACS. TO SITE FEW EXAMPLES THE FOLLOWING PAPERS MAY BE QUOTED PAGE NO. 5 7 + FEES PAGE NO. 9 12 + FEES & 5 + FEES PAGE NO. 29 35 + FEES PAGE NO. 60 12 +FEES PAGE NO. 65 10 +FEES PAGE NO. 76 3 TO 4 + FEE S. 11 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 5. THEREFORE, THE MERE DENIAL ON THE PART OF THE ASSESSEE WOULD NOT ABSOLVE THE ASSESSEE FROM HIS RESPONSIBILITY OF THROWING TRUE LIGHT ON THE CONTENTS OF THIS PAPER ESPECIALLY BECAUSE THE PAPER WAS RECOVERED FROM THE ACCOUNTANT OF THE ASSESSEE GROUP. I N THE ABSENCE OF THIS THE PRESUMPTION THAT THE TRANSACTION PERTAINS TO THE ASSESSEE HOLDS GOOD. IN VIEW OF THIS DISCUSSION A SUM OF RS. 69,00,000/ - IS ADDED TO THE ASSESEE'S TOTAL INCOME ON THE BASIS OF THIS PARTICULAR LOOSE PAPER (BUNDLE NO.6 PAGE NO. 23) . 16. THE ASSESSING OFFICER MADE THE ADDITION OF RS.69,00,000/ - IN THE HANDS OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND LD. CIT(A) DELETED THE SAID ADDITION. THE REASONS GIVEN BY THE LD. CIT(A) ARE AS UNDER: 5.4. I H AVE CONSIDERED THE GROUNDS ON WHICH THE ADDITION WAS MADE, THE SUBMISSIONS OF THE APPELLANT AND OTHER MATERIAL AVAILABLE ON RECORD. THE MAIN ISSUE INVOLVED IS WHETHER THE NOTING ON PAGE NO. 23 OF BUNDLE NO. 6 PERTAINS TO THE APPELLANT. ACCORDING TO THE A.O ., THE NOTING IS PERTAINING TO THE APPELLANT AND IT INDICATES RS.69 LAKHS HAS BEEN RECEIVED BY HIM FROM THE CAPITATION FEE / DONATIONS COLLECTED BY BHARATI GROUP. APART FROM THE SEIZED PAPER, NO CORROBORATIVE EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE A.O. TO INDICATE THAT THE APPELLANT HAD RECEIVED RS.69 LAKHS. CERTAIN INFERENCES HAVE BEEN DRAWN ON THE BASIS OF CAREFUL CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD. THESE INFERENCES HAVE BEEN DISCUSSED IN SUBSEQUENT PARAGRAPHS (PARA 5.5 TO 5.10). 5.5. T HE AO'S STATEMENT THAT .........THE MERE DENIAL ON THE PART OF THE ASSESSEE WOULD NOT ABSOLVE THE ASSESSEE FROM HIS RESPONSIBILITY OF THROWING TRUE LIGHT ON THE CONTENTS OF THIS PAPER ESPECIALLY BECAUSE THE PAPER WAS RECOVERED FROM THE ACCOUNTANT OF THE AS SESSEE GROUP. IN THE ABSENCE OF THIS THE PRESUMPTION THAT THE TRANSACTION PERTAINS TO THE ASSESSEE HOLDS GOOD....... IS NOT CORRECT. IT IS AN ADMITTED FACT THAT SEARCH AND SEIZURE ACTION WAS TAKEN IN THE CASE OF SHRI R.D. SHINDE. DOCUMENT UNDER CONSIDERAT ION WAS RECOVERED FROM HIM. THE DOCUMENT IS IN THE HANDWRITING OF SHRI SHINDE. UNDER THE CIRCUMSTANCES, THE PRESUMPTION U/S. 132(4A) OF I . T. ACT WOULD BE APPLICABLE IN THE CASE OF SHRI SHINDE, NOT IN THE CASE OF APPELLANT. SHRI SHINDE HAD CLARIFIED THAT TH E SEIZED PAPER PERTAINED TO HIS CONSULTANCY CHARGES. EVEN, IN CROSS EXAMINATION, SHRI SHINDE HAD ADMITTED 12 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE THAT THE SAID NOTINGS PERTAINED TO HIS CONSULTANCY CHARGES. HENCE, WHEN SHRI SHINDE HAS ADMITTED THAT THE LOOSE PAPER PERTAINED TO HIM AND NOT THE APP ELLANT, THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION IN THE HANDS OF THE APPELLANT WITHOUT ANY CORROBORATIVE EVIDENCE TO JUSTIFY THE SAME. AS STALED ABOVE, THERE IS MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE LOOSE PAPER WAS FOUND WITH SHRI SHIND E AND THE PRESUMPTION U/S 132(4A) WOULD BE APPLICABLE IN HIS CASE. FOR THIS PROPOSITION, RELIANCE OF THE APPELLANT ON THE FOLLOWING DECISIONS IS ALSO CORRECT. A. PRARTHANA CONSTRUCTION (P) LTD. V/S. DCIT [70 TTJ 122 (AHD)] B. STRAPTEX (INDIA) PVT. LTD. V. DCIT [84 ITD 320 (MUM)] C. SMT. BOMMANA SWARNA REKHA V. ACIT [94 TTJ 885 (VISAKHA) D. ASHWANI KUMAR V. ITO [42 TTJ 644 (DEL)] E. RAMA TRADERS V. FIRST ITO [25 ITD 599 (PAT) (TM)] F. UNIQUE ORGANISERS & DEVELOPERS (P) LTD. V/S. DCIT [70 TTJ 131 (AHD)] G. LATA MANGESHKAR [97IT R 696] H. CBI V/S. V. C. SHUKLA [3 SCC 410 (SC)] I. T. S. VENKATESAN V. ACIT [74 ITD 298 9CAL)] J. BALA PRASAD R. LOKMANYAWAR'S CASE (18 TTJ 167 (PUNE) THEREFORE, I AM INCLINED TO AGREE WITH THE APPELLANT'S SUBMISSION THAT ADDITION ON THE BASIS OF P RESUMPTION IN THE CASE OF APPELLANT WHEN THE SEARCH WAS CONDUCTED IN THE CASE OF SHRI SHINDE WITHOUT ANY CORROBORATIVE EVIDENCE IS NOT JUSTIFIED. 5.6. THE AO HAS GIVEN A GENERAL AND VAGUE STATEMENT THAT THE FIGURES ARE INVARIABLY FOR LACS (PARA 4.1 OF THE ASSESSMENT ORDER). HERE T MAY NOT BE OUT OF PLACE TO MENTION THAT THE AO, HIMSELF, HAS, AT SOME PLACES, TAKEN THE FIGURES AS THOUSANDS. ON THE BASIS OF PAGE NO.23 OF BUNDLE NO.6 SEIZED FROM SHRI R.D. SHINDE, ADDITION IN THE CASE OF BHARATI VIDYAPEETH WAS M ADE BY CONSIDERING THESE FIGURES AS THOUSANDS. THIS TREATMENT WAS DONE ON THE BASIS OF STATEMENT OF SHRI SHINDE. SAME TREATMENT TO THE FIGURES IN CERTAIN OTHER DOCUMENTS ALSO, ON THE BASIS OF THE STATEMENT OF SHRI SHINDE, HAS BEEN GIVEN. UNDER THE CIRCUMST ANCES, I AM INCLINED TO AGREE WITH THE SUBMISSION OF THE APPELLANT THAT AO HAS RELIED UPON THE STATEMENT OF SHRI SHINDE IN SOME OTHER CONTEXT AND THERE WAS NO REASON FOR HIM TO IGNORE SHRI SHINDE'S STATEMENT TO THE EFFECT THAT THE AMOUNT MENTIONED IN THE D OCUMENT WAS IN THOUSANDS. IN THIS CONTEXT, IT IS RELEVANT TO REFER TO THE STATEMENT OF SHRI SHINDE GIVEN 13 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE U/S. 131 AND IN Q. NO. 55, HE WAS ASKED TO EXPLAIN THE NOTINGS ON THE SAID PAGE. IN RESPONSE TO THE SAID QUESTION, SHRI SHINDE STATED AS UNDER 'Q. N O. 55: PLEASE EXPLAIN IN DETAIL THE PAGES SEIZED II BUNDLE NO. 6 A? PAGE NO. 23: AT THE BACK SIDE OF THIS PAGE THERE IS NOTING IN MY HANDWRITING IN RED INK ACCORDING TO WHICH THE STUDENT NAMES ASANA WAS DESWOUS TO HAVE THE ADMISSION IN HOTEL MANAGEMENT C OURSE AND MY CONSULTANCY CHARGES OF RS. 50,000 WERE TOLD HIM. AT THE FRONT SIDE OF THIS PAPER THERE IS NOTING IN MY HANDWRITING AS 19+50=69. I DO NOT REMEMBER ABOUT THIS NOTING.' FROM THE ABOVE STATEMENT, IT IS EVIDENT THAT RIGHT FROM THE DATE OF SEARCH, S HRI SHINDE HAD CLARIFIED THAT THE SEIZED PAPER PERTAINED TO HIIN AND THE NOTINGS ARE MADE IN RESPECT OF ADMISSION RELATED IN INQUIRY. EVEN, IN CROSS EXAMINATION, SHRI SHINDE HAD ADMITTED THAT THE SAID NOTINGS PERTAINED TO HIM AND THE TELEPHONE NO. IS WRITT EN MERELY TO GIVE IT TO THE VISITOR WHO CAME TO VISIT MR. VISRWAJIT KADAM. THE APPELLANT HAS SUBMITTED A COPY OF THE STATEMENT RECORDED OF SHRI SHLNDE IN CROSS EXAMINATION. IN VIEW OF THESE FACTS, THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION IN THE HAND S OF THE APPELLANT WITHOUT ANY CORROBORATIVE EVIDENCE TO JUSTLY THE SAME. HERE, IT MAY - NOT BE OUT OF PLACE TO MENTION THAT AS THE AO WAS RELYING ON A THIRD PARTY EVIDENCE. THUS, THE ONUS WAS ON HIM TO BRING EVIDENCE TO SUPPORT HIS CLAIM THAT THE NOTINGS PERTAINED TO THE APPELLANT. THIS ONUS WAS NOT DISCHARGED BY HIM. 5.7. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED VIEW THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION WITHOUT BRINGING ON RECORD ANY FURTHER EVIDENCE THAT THE ASSESSEE HAD RECEIVED RS.69 LAKHS. IT IS AN ADMITTED FACT THAT SHRI SHINDE HAD ADMITTED THAT THE SAID SEIZED PAPER PERTAINED TO HIM AND THERE WAS NO CONNECTION OF THE APPELLANT WITH THE SAID SEIZED PAPER. WHEN THE PERSON WHO HAS WRITTEN THE PAPER HAD ACCEPTED THAT THE SEIZED PAPER WAS BELONGING TO HIM, THE QUESTION OF MAKING ANY ADDITION IN THE HANDS OF THE APPELLANT ON THE BASIS OF THE SAID SEIZED PAPER ONLY DID NOT ARISE. IF THE A.O. WANTED TO MAKE ANY ADDITION, HE SHOULD HAVE BROUGHT ON RECORD FURTHER CORROBORATIVE EVIDENCE TO JUSTIFY THE ADDITION. IN THIS CONTEXT, RELIANCE OF THE APPELLANT ON TINE DECISION OF HON'BLE ITAT PUNE BENCH IN THE CASE OF 14 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE THAKKAR DEVELOPERS LTD. IS QUITE RELEVANT. IN THIS CASE, HON'BLE ITAT HAS HELD THAT NO ADDITION CA N BE MADE ON THE BASIS OF EVIDENCE FOUND WITH THIRD PARTY WITHOUT ANY CORROBORATIVE EVIDENCE BROUGHT ON RECORD BY THE A.O. FIN THE PRESENT CASE, THE A.O. HAS SIMPLY MADE THE ADDITION WITHOUT ANY FURTHER CORROBORATIVE EVIDENCE AND, HENCE, THE ADDITION MADE IS NOT JUSTIFIED AT ALL. 5.8. A.O. MADE THE ADDITION IN RESPECT OF PAGE NO. 23 OF BUNDLE NO. 6 IN THE HANDS OF BOTH BHARATI VIDYAPEETH AS WELL AS SHRI R D SHINDE. IN THE CASE OF BHARATI VIDYAPEETH, THE A.O. HAS TAXED RS.50,000/ - ON THE BASIS OF THE SAI D PAPER. IT IS TO BE NOTED THAT THE SAID ADDITION IN THE CASE OF BHARATI VIDYAPEETH HAS BEEN DELETED BY THE CIT(A) ON THE GROUND GROUND THAT NO ADMISSION WAS GIVEN TO THE CONCERNED STUDENT. THIS TREATMENT OF THE ENTRY BY AO AND CIT(A) IN :HE CASE OF BHARA TI VIDYAPEETH INDICATES CERTAIN IMPORTANT POINTS WHICH DESERVE CONSIDERATION. FIRST, POINT TO BE NOTED IS THAT THE A.O., IN ASSESSMENT OF BHARATI VIDYTPEETH AND SHRI R.D. SHINDE, HAS CONSIDERED THESE FIGURES IN THOUSANDS AND NOT IN LAKHS. HENCE, THERE WA S NO REASON TO CONSIDER THE SAME ENTRIES TO BE REPRESENTING THE ENTRIES OF LAKHS WHICH WERE CONSIDERED AS REPRESENTING THOUSANDS IN THE CASE O : BHARATI VIDYAPEETH AND SHRI R.D. SHINDE AND TO CONSIDER THE FIGURE OF 69 AS REPRESENTING RS.69 LAKHS'. OTHER IMP ORTANT ISSUE WHICH EMANATES AS A RESULT OF APPEAL ORDER OF CIT(A) IS THAT, ONCE HE HELD THAT THE AMOUNT WRITTEN ON THE DOCUMENT DID NOT REPRESENT INCOME OF BHARATI VIDYAPEETH AS NO ADMISSION WAS GIVEN TO THE CONCERNED! STUDENT, QUESTION OF TREATMENT OF THI S AMOUNT AS INCOME, IN THE HANDS OF THE APPELLANT THAT TOO IN LAKHS, DOES NOT ARISE FURTHER, WHEN THE ADDITION WAS MADE ON THE BASIS OF THE SAID PAPER IN THE HANDS OF BHARATI VIDYAPEETH AND SHRI SHINDE, THERE WAS NO REASON TO TAX THE SAID AMOUNT IN THE HAN DS OF THE ASSESSEE. IT IS NOT THE CASE OF THE AO THAT THE ADDITION HAS BEEN MADE IN THE HANDS OF THE APPELLANT ON PROTECTIVE BASIS. IN VIEW OF THIS FACT, THE ADDITION MADE BY THE A.O. IN THE HANDS OF THE APPELLANT IS NOT JUSTIFIED BECAUSE THE SAME AMOUNT C ANNOT BE ADDED TO INCOME OF THREE DIFFERENT PERSONS AT THE SAME TIME. IN THIS CONTEXT, RELIANCE OF THE APPELLANT ON THE DECISION OF KERALA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS. P.P. JOHNY AND ANR [ 73 ITR 459 (KER)] WHEREIN THE COURT HAS HELD THAT SAME AMOUNT CANNOT BE ADDED TWICE IN THE HANDS OF THE TWO - DIFFERENT PERSONS IS RELEVANT AND STRENGTHENS THE CASE OF THE APPELLANT. 15 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 5.9. THE APPELLANT HAS ALSO GIVEN CERTAIN OTHER INSTANCES OF IDENTICAL NOTINGS. HOWEVER NO SUCH ADDITION IS MADE IN THESE CASES. THE APPELLANT HAS SHOWN THE ENTRIES IN THE VERY NEXT PAGE I.E. PAGE 24 OF BUNDLE NO. 6. THIS PAGE HAS SIMILAR NOTINGS WHEREIN SOME NOTINGS LIKE '20 + 10 + 11 1/2 ' ARE MADE AND A TELEPHONE NO. OF ONE SHRI MAYUR PATIL HAS BEEN WRITTEN. HOWEVE R, NO SIMILAR ADDITION HAS BEEN MADE IN HANDS OF MAYUR PATIL. IN FACT, NO COGNIZANCE HAS BEEN TAKEN FOR SUCH NOTINGS AND ADDITION IS MADE IN THE HANDS OF BHARATI VIDYAPEETH FOR RS. 41,500/ - ONLY BASED OF THE STATEMENT OF SHRI SHINDE. THIS BEING THE FACTS T HEN THE A.O. WAS NOT JUSTIFIED IN MAKING ADDITION IN HANDS OF THE APPELLANT FOR SIMILAR PAGE EVEN WHEN SHRI SHINDE HAS STATED SIMILAR EXPLANATION FOR IT. THEREFORE, THE ADDITION MADE IS NOT JUSTIFIED. 5.10. IN VIEW OF THE DISCUSSION ABOVE IN PARA 5 TO 5.9, I HEREBY DELETE THE ADDITION OF RS.69 LAKHS MADE IN RESPECT OF THE CONTENTS OF PAGE NO. 23 OF BUNDLE NO. 6. THEREFORE, GROUND OF APPEAL NO. 5 & 5.1 ARE ALLOWED. NOW THE REVENUE IS IN APPEAL BEFORE US. 17. WE HAVE HEARD THE LD. CIT (DR) AS WELL AS LD. COUNSEL. ADMITTEDLY , THE SEARCH WAS AGAINST SHRI R.D. SHINDE. SHRI R.D. SHINDE HAS IN CLEAR TERMS STATED AND ACCEPTED THAT THE SEIZED PAPERS PERTAIN S TO HIM AND THOSE HAVE NO RELEVANCE OF THE ASSESSEE. THE ONLY BASIS FOR THE ASSESSING OFFICER TO MAKE T HE ADDITION IS THAT THE PAGE NO. 23 OF BUNDLE NO. 6 ON WHICH THE FIGURES 50+19 ARE APPEARING AND THERE IS A C ELL N UMBER MENTIONED ON PAGE AND APART FROM THAT THE NOTHING IS THERE TO SUGGET THAT THE SAID MONEY WAS PAID TO THE ASSESSEE. MOREOVER, WE FIND TH AT IN THE INTERROGATION AS WELL AS IN THE STATEMENT RECORDED U/S. 131 OF THE ACT SHRI R.D. SHINDE ACCEPTED THAT SAID LOOSE PAPER PERTAIN TO HIM AND THAT WAS IN RESPECT OF ONE CANDIDATE MRS. ASANA FOR GETTING THE ADMISSION IN THE HOTEL MANAGEMENT COURSE. I T IS TO BE NOTED HERE THAT AS PER THE PROVISIONS OF SEC. 132(4A) THE LEGAL PRESUMPTION IS PUT ON A PERSON FROM WHOSE POSSESSION ANY DOCUMENT IS SEIZED THAT THE SAID DOCUMENT AND ITS CONTENTS ARE TRUE AGAINST THE SAID PERSON UNLESS THE PERSON IN POSSESSION EXPLAINED THE NATURE OF THE SAID DOCUMENT AND IF 16 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE THE DOCUMENT INVOLVES THE TRANSACTION THEN THE SAID PERSON ALSO TENDERS NECESSARY EXPLANATION THAT SAID TRANSACTION BELONGS TO SOMEONE ELSE AND NOT HIS TRANSACTION. 18. WE FIND THAT ON THE SAID LOOSE PAP ER NAME BALASAHEB IS FOUND MENTIONED BUT TO ARRIVE AT A CONCLUSION THAT BALASAHEB IS THE NICKNAME OF THE ASSESSEE , T HE ASSESSEE WAS NEVER EXAMINED NO R ANY QUESTION IS PUT TO HIM . M ERELY ON THE SUSPICION NO ADDITION CAN BE MADE HOWSOEVER THE SUSPICIO N MAY BE STRONG . M OREOVER , WE ALSO FIND THAT SO FAR AS THE SINGULAR OR PLURAL FIGURES ARE THAT LIKE 7, 10, 12, 35 ETC. , THE ASSESSING OFFICER HIMSELF TREATED SOME FIGURES TO BE SHORT FORM OF DENOMINATION OF THOUSAND AND IN RESPECT OF SAME FIGURES IT IS TREATED SHORT FORM OF LAKHS. WE HAVE ALSO GONE THROUGH THE EXPLANATION OF THE ASSESSEE TO Q. NO. 55 IN THE STATEMENT RECORDED U/S. 131 IN WHICH SHRI R.D. SHINDE ADMITTED THAT THE NOTING WAS IN HIS HANDWRITING. HE HAS ALSO EXPLAINED THE NAME OF THE STUDEN T WHO APPROACHED HIM FOR ADMISSION . WE HAVE ALREADY EXPLAINED THE MODUS OPERANDI OF THE SHRI R.D. SHINDE MAKING THE MONEY BY USING HIS POSSESSION IN THE BHARATI VIDYAPEETH . A FTER GIVING OUR ANXIOUS CONSIDERATION TO THE REASONS GIVEN BY THE LD. CIT(A) A S WELL AS THE EVIDENCE ON RECORD , THE ADDITION HAS BEEN RIGHTLY DELETED. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). ACCORDINGLY, THE RELEVANT GROUNDS TAKEN BY THE REVENUE MORE PARTICULARLY GROUNDS NO. 4, 5, 6, 7 AND 8 ARE DISMISSED. GROUND NO. 9 AND 10 ARE GENERAL IN NATURE. 19. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. ITA NO. 888 & 918/PN/2011 , (MRS. VIJAYMALA PATANGRAO KADAM) 20 . THESE TWO CROSS APPEALS FOR THE A.Y. 2006 - 07 ARE FILED, ONE BY THE ASSESSEE AND ANOTHER B Y THE REVENUE. WE FIRST TAKE THE ASSESSEES APPEAL BEING ITA NO. 888/PN/2011. THE ASSESSEE HAS TAKEN THE FOLLOWING TWO EFFECTIVE GROUNDS IN THE APPEAL: 17 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,73,861 BY REDUCING THE AGRICULTURAL INCOME AND TREATING THE SAME AS INCOME FROM OTHER SOURCES ON THE PRESUMPTION THAT THE AGRICULTURAL EXPENSES TO THAT EXTENT WERE BORNE BY THE BHARATI VIDYAPEETH TRUST. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT BHARATI VIDYAPEETH TRUST HAD INCURRED AGRICULTURAL EXPENSES ON THE AGRICULTURAL FARMS OF THE TRUSTEES AS THE PAPERS RELATING TO SUCH EXPENSES WERE FOUND WITH SHRI SHINDE WITHOUT APPRECIATING THAT THE SAID TRUST HAD NOT BORNE ANY SUCH EXPENSES. 2 1 . IN THIS CASE, THE ASSESSING OFFICER HAS MADE THE ADDITIO N OF RS.3, 7 3,861/ - (THE ASSESSING OFFICER HAS DISCUSSED THE ADDITION TO BE MADE OF RS.2,73,861/ - IN THE ASSESSMENT ORDER BUT IN THE COMPUTATION THE FIGURE IS DIFFERENT). THERE WAS A SEARCH AND SEIZURE OPERATION AGAINST SHRI R.D. SHINDE WAS WORKING AS ACCO UNTANT IN - CHARGE IN THE BHARATI VIDPYAPEETH TRUST LOOKING AFTER THE ACCOUNTANTS OF THE DIFFERENT INSTITUTIONS RUN BY THE TRUST. IN SEARCH , THE CABIN AS WELL AS RESIDENCE OF SHRI R. D. SHINDE WAS COVERED. THE FACTS PERTAINING TO THIS ADDITION ARE IDENTICA L AS IN THE CASE OF DR. SHIVAJIRAO SHRIPATRAO KADAM IN ITA NO. 886/PN/2011. ON IDENTICAL REASONING THE ASSESSING OFFICER HAS MADE THE ADDITION IN RESPECT OF AGRICULTURAL EXPENDITURE WHICH WAS FOUND NOTED IN THE VOUCHERS/LOOSE PAPERS SEIZED FROM THE CABIN OF SHRI SHINDE. IN OUR DETAIL REASONING , WE HAVE DELETED THIS ADDITION IN THE CASE OF DR. SHIVAJIRAO SHRIPATRAO KADAM (SUPRA). FOR AVOIDING THE REPETITION OF THE FACTS AND REASONINGS , WE ADOPT THE FACTS AS WELL AS REASONINGS GIVEN IN THE CASE OF DR. SHIV AJIRAO SHRIPATRAO KADAM (SUPRA) AND HOLD THAT BOTH THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN TREATING THE PART OF THE EXPENDITURE TO THE EXTENT OF RS.2,73,861/ - IS INCURRED OUT OF THE FUNDS OF BHARATI VIDYAPEETH TRUST. WE, ACCORDINGLY, DELETE THE ADDITIO N MADE BY THE ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE. 2 2 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. 18 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 2 3 . NOW WE TAKE UP REVENUES APPEAL BEING ITA NO. 918/PN/2011. THE FIRST ADDITION IS IN RESPECT OF CASH SALES OF THE AGRICULTURAL PRODUC E. IN THIS CASE THE ASSESSEE DECLARED THE AGRICULTURAL INCOME OF RS.13,15,900/ - . A S PER THE BREAK - UP FILED BY THE ASSESSEE , T HERE ARE CASH SALES TO EXTEND OF RS.3,87,053/ - AND MAJOR AGRICULTURAL SALES ARE THROUGH THE CHEQUES. AS NOTED BY THE ASSESSING O FFICER TO THE EXTENT OF RS.1,79,174/ - THE CASH SALES ARE NOT SUPPORTED BY ANY BILL. THE ASSESSEE STATED THAT THOSE SALES ARE MADE TO PETTY VENDORS AND THEREFORE NO BILLS ARE AVAILABLE. THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND MA DE ADDITION TO THE EXTENT OF RS.80,000/ - OUT OF RS.1,79,174/ - ON REASON THAT THE AGRICULTURAL INCOME IS UNPROVED AND SAME IS TREATED AS INCOME FROM OTHER SOURCES. HE, ACCORDINGLY, BROUGHT TO TAX RS.80,000/ - IN THE HANDS OF THE ASSESSEE WHICH IS INCLUDE D I N THE TOTAL AMOUNT OF RS.3,73,861/ - SHOWN IN THE ASSESSMENT ORDER IN THE ADDITIONS. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A) AND LD. CIT(A) DELETED THE ADDITION. NOW THE REVENUE IS IN APPEAL BEFORE US. 2 4 . WE HAVE HEARD THE PART IES. WE HAVE ALREADY DECIDED THE IDENTICAL ISSUE ON THE IDENTICAL SET OFF FACTS I N THIS BATCH OF APPEAL S IN THE CASE OF ANOTHER FAMILY MEMBERS NAMELY DR. VISHWAJIT PATANGRAO KADAM IN THE REVENUES APPEAL BEING ITA NO. 919/PN/2011 . WE, ACCORDINGLY, FOLLOW ING OUR REASONS FOR CONFIRMING THE ORDER OF THE LD. CIT(A) IN THE SAID CASE , WE DISMISS THE GROUNDS TAKEN BY THE REVENUE AND CONFIRM THE ORDER OF THE LD. CIT(A) DELETING THE ADDITION OF RS.80,000/ - . 2 5 . THE NEXT ISSUE IS THE ADDITION OF RS.40 LAKHS MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED PAPERS/DOCUMENTS WHICH HAS BEEN DELETED BY THE LD. CIT(A) AND THIS ISSUE ARISES FROM GROUND NOS. 4 TO 8. THE FACTS PERTAINING TO THE ISSUE AS NOTED BY THE ASSESSING OFFICER ARE AS UNDER: 19 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 4.1. CERTAIN INCRIM INATING PAPERS PERTAINING TO THE ASSESSEE WERE FOUND IN THE POSSESSION OF SHRI R. D. SHINDE. ONE OF SUCH PAPERS IS PAGE NO. 30 OF BUNDLE NO. 4 WHERE THE FIGURE OF 40 WITH THE REMARK SOU. VAHINI IS WRITTEN. THE ASSESSEE IS REFERRED TO AS 'VAHINI WHICH I S HER CODENAME. AS PER THE PAPERS SEIZED FROM SHRI R D SHINDE, HE IS IN THE HABIT OF WRITING IN CODE LANGUAGE AND THE FIGURES ARE INVARIABLY FOR LACS. OBVIOUSLY, THE ABOVE FIGURE REPRESENT THE AMOUNT OF RS. 40,00,000/ - . IT WAS THEREFORE INFERRED THAT THE ASSESSEE HAS RECEIVED RS. 40.00,000/ - OUT OF THE CAPITATION FEES / DONATIONS COLLECTED BY THE ASSESSEE GROUP. WHEN THIS ISSUE WAS RAISED BEFORE THE ASSESSEE, THE ASSESSEE SUBMITTED AS UNDER : - I WOULD LIKE TO EXPLAIN REGARDING PAGE NO. 30 OF THE BUNDLE NO. 6. I AM REFERRING TO THE PAPER, WHICH ACCORDING TO YOU INDICATES THE CASH DIVERSION OF RS. 40 LACS TO ME. IN THIS REGARD, I SUBMIT THAT THE ABOVE CONCLUSION OF YOUR HONOUR IS NOT JUSTIFIED ON THE FACTS OF THE CASE. FIRSTLY, WE HAVE GONE THROUGH THE STATEM ENT OF SHRI SHINDE WHEREIN HE CONFIRMS THAT PAGE NO. 30 INDICATES PAYMENT OFRS. 40,000/ - BY HIMSELF TO HIS WIFE. THE PAPER ALSO DOES NOT INDICATE THE WORDS, WHICH YOU HAVE MENTIONED. THEY SIMPLY STATE PAYMENT TO 'SOU. WATIS' (MEANING HIS WIFE). SECONDLY TH E PAYME N T IS STATED TO BE RS. 40,000/ - BY SHRI SHINDE AND NOT RS. 40 LACS AS ALLEGED BY YOU. FURTHER ON GOING THROUGH THE CROSS EXAMINATION OF SHRI R D SHINDE TAKEN BY BHARATI VIDYAPEETH TRUST, HE HAS CLEARLY MENTIONED THAT THE SAID NOTING IS RELATED TO TH E PAYMENT OFR*. 40,000/ - TO HIS WIFE AND NOT TO ME. IT IS ONLY A ROUGH NOTING FOR KEEPING IN MIND. HENCE THIS PAPER, THE AMOUNT WRITTEN ON THE PAPER AND THE NOTING THEREIN ARE NOT CONCERNED TO ME IN ANY MANNER. ' 4.2. THE SUBMISSION MADE BY THE ASSESSEE HAVE BEEN DULY CONSIDERED. THE ASSESSEES CONTENTION THAT THIS IS A PAYMENT ENTRY FOR RS.40,000/ - DOES NOT MATCH WITH THE FIGURES FOUND TO HAVE BEEN QUOTED ON OTHER PAPERS SEIZED FROM SHRI SHINDE PARTICULARLY BECAUSE WHILE EXPLAINING SIMILAR PAPERS SHRI SH INDE HAS ADMITTED THAT THESE FIGURES STANDS FOR RS. IN LACS. TO SITE FEW EXAMPLES THE FOLLOWING PAPERS MAY BE QUOTED PAGE NO. 5 7 + FEES PAGE NO. 9 12 + FEES & 5 +FEES PAGE NO. 29 35 + FEES PAGE NO. 60 12 + FEES PAGE NO. 65 10 + FEES PAGE NO. 76 3 TO 4 +FEES. 5. THE ASSESSEE'S FURTHER CONTENTION THAT THIS IS A PAYMENT MADE BY SHINDE TO HIS WIFE CANNOT BE ACCEPTED AS NORMALLY NO SUCH PAYMENT VOUCHERS IS PREPARED WHEN THE MONEY IS GIVEN TO THE WIFE. 20 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE MOREOVER, SINCE SHINDE'S WIFE IS NOT THE EMPLOY EE OF THE ASSESSEE GROUP AND THEREFORE PREPARING ANY VOUCHER IN RESPECT OF EXPENSES MADE BY HER, ETC. DOES NOT ARISE. OBVIOUSLY THE DESTINATION OF THE MONEY IS IMPLIEDLY THE ASSESSEE WHO IS REFERRED TO AS 'SOU. VAHINI' IN THE ASSESSEE GROUP. THEREFORE, THE MERE DENIAL ON THE PART OF THE ASSESSEE WOULD NOT ABSOLVE THE ASSESSEE FROM HIS RESPONSIBILITY OF THROWING TRUE LIGHT ON THE CONTENTS OF THIS PAPER ESPECIALLY BECAUSE THE PAPER WAS RECOVERED FROM THE ACCOUNTANT OF THE ASSESSEE GROUP. IN THE ABSENCE OF THI S THE PRESUMPTION THAT THE TRANSACTION PERTAINS TO THE ASSESSEE HOLDS GOOD. IN VIEW OF THIS DISCUSSION A SUM OF RS.40,00,000/ - IS ADDED TO THE ASSESEE'S TOTAL INCOME ON THE BASIS OF THIS PARTICULAR LOOSE PAPER (BUNDLE NO . 4 PAGE NO. 30). 2 6 . IN SUM AND S UBSTANCE ON THE BASIS OF PAPER SHEET WHICH IDENTIFICATION IS AS PAGE NO. 30 OF BUNDLE NO. 4 , T HE ASSESSING OFFICER CONCLUDED THAT THE FIGURE 40 IS 40 LAKHS AND SOU. VAHINI APPEARING ON THE SAID PAPER MEANS THE PRESENT ASSESSEE REJECTING THE EXPLANATION OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE ASSESSING OFFICER BEFORE THE LD. CIT(A) AND LD. CIT(A) DELETED THE SAID ADDITION OF RS.40 LAKHS. THE OPERATIVE PART OF THE FINDINGS OF THE LD. CIT(A) ARE AS UNDER: 5.4. I HAVE CONSIDERED THE GROUNDS ON THE BASIS OF WHICH ADDITION HAS BEEN MADE , SUBMISSIONS OF THE APPELLANT AND OTHER MATERIAL AVAILABLE ON RECORD. THE MAIN ISSUE INVOLVED IS WHETHER THE NOTING ON PAGE NO. 40 OF BUNDLE NO. 4 PERTAINS TO THE APPELLANT. CERTAIN INFERENCES HAVE BEEN DRAWN ON THE BASIS OF CAREFUL CONSIDERATION OF MATERIAL AVAILABLE ON RECORD. THESE INFERENCE HAVE BEEN DISCUSSED IN THE SUBSEQUENT PARAGRAPHS (PARA 5.5 TO 5.10). 5.5. THE AO HAS STATED THAT VAHINI IS THE CODENAME OF THE APPELLANT. HOWEVER, HE HA S NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT THE APPELLANTS CONDENAME WAS VAHINI. THUS, THIS STATEMENT OF THE AO IS WITHOUT ANY SUPPORTING EVIDENCE. 5.6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS POINTED OUT TO THE AO THAT CONTENTS OF THE PAPER UNDER CONSIDERATION, ON THE BASIS OF THE STATEMENT OF SHRI R.D. SHINDE, THE OWNER AND THE WRITER OF THE PAPER, REPRESENT 'SOU. WATIS' (MEANING HIS WIFE) AND NOT SOU. VAHINI'. HOWEVER, THE AO TREATED THE CONTENTS AS 'SOU.VAHINI' WITHOUT BRINGING ON RECORD ANY EVIDENCE FOR SUCH TREATMENT. IN FACT, THE AO HAS NOT GIVEN ANY STATEMENT CONTROVERTING THE STATEMENT OF THE APPELLANT THAT, ON THE BASIS OF STATEMENT OF SHRI SHINDE, CONTENTS REPRESENT 'SOU. WATIS' NOT 'SOU. VAHINI'. UNDER THE C IRCUMSTANCES, TREATMENT OF THE CONTENTS AS 'SOU. VAHINI' WHEN THE WRITER AND THE OWNER OF THE DOCUMENT STATED THAT THE CONTENTS 21 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE REPRESENT 'SOU. WATIS' WITHOUT ANY SUPPORTING EVIDENCE WAS NOT JUSTIFIED. 5.7 THE AO'S STATEMENT THAT .........THE MERE DEN IAL ON THE PART OF THE ASSESSEE WOULD NOT ABSOLVE THE ASSESSEE FROM HIS RESPONSIBILITY OF THROWING TRUE LIGHT ON THE CONTENTS OF THIS PAPER ESPECIALLY BECAUSE THE PAPER WAS RECOVERED FROM THE ACCOUNTANT OF THE ASSESSEE GROUP. IN THE ABSENCE OF THIS THE P RESUMPTION THAT THE TRANSACTION PERTAINS TO THE ASSESSEE HOLDS GOOD........ IS NOT CORRECT. IT IS AN ADMITTED FACT THAT SEARCH AND SEIZURE ACTION WAS TAKEN IN THE CASE OF SHRI R.D. SHINDE. DOCUMENT UNDER CONSIDERATION WAS RECOVERED FROM HIM. THE DOCUMENT IS IN THE HANDWRITING OF SHRI SHINDE. UNDER THE CIRCUMSTANCES, THE PRESUMPTION U/S.132 (4A) OF IT. ACT WOULD BE APPLICABLE IN THE CASE OF SHRI SHINDE, NOT IN THE CASE OF APPELLANT. SHRI SHINDE HAD CLARIFIED THAT THE SEIZED PAPER .PERTAINED TO HIS WIFE AND THE NOTING MADE IS 'SOU.WATIS' AND NOT 'SOU VAHINI' AS INTERPRETED BY THE A.O. HE HAS ALSO POINTED OUT THAT THE WORD 'HOME' IS ALSO MENTIONED ON THE SAID SEIZED PAPER. EVEN, IN CROSS EXAMINATION, SHRI SHINDE HAD ADMITTED THAT THE SAID NOTINGS PERTAIN ED TO HIS WIFE. HENCE, WHEN SHRI SHINDE HAS ADMITTED THAT THE LOOSE PAPER PERTAINED TO HIS WIFE AND NOT THE APPELLANT, THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION IN THE HANDS OF THE APPELLANT WITHOUT ANY CORROBORATIVE EVIDENCE TO JUSTIFY THE SAME. AS STATED ABOVE, THERE IS MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE LOOSE PAPER WAS FOUND WITH SHRI SHINDE AND THE PRESUMPTION U/S 132(4A) WOULD BE APPLICABLE IN HIS CASE. FOR THIS PROPOSITION, RELIANCE OF THE APPELLANT ON THE FOLLOWING DECISIONS IS ALSO CORRECT. A. P RARTHANA CONSTRUCTION (P) LTD. V/S. DCIT [70 TTJ 122 (AHD)] B. S TRAPTEX (INDIA) PVT. LTD. V. DC IT [84 ITD 320 (MUM)] C. S MT. BOMMANA SWARNA REKHA V. ACIT [94 TTJ 885 (VISAKHA) D. ASHWANI KUMAR V. ITO [42 TTJ 644 (DEL)] E. RAMA TRADERS V. FIRST ITO [25 ITD 599 (PAT)(TM)] F. UNIQUE ORGANISERS & DEVELOPERS (P) LTD. V/S. DCIT [70 TTJ 131 (AHD)] G. LATA MANGESHKAR [97 ITR 696] H. CBI V/S. V.C. SHUKLA [3 SCO 410 (SC)] I. T. S. VENKATESAN V. ACIT [74 ITD 298 (CAL)] J. BA L A PRASAD R. LOKMANYAW AR'S CASE (18 TTJ 167 (PUNE) THEREFORE, I AM INCLINED TO AGREE WITH THE APPELLANT'S SUBMISSION THAT ADDITION ON THE BASIS OF PRESUMPTION IN THE CASE OF APPELLANT WHEN THE SEARCH WAS CONDUCTED IN THE CASE OF SHRI SNINDE WITHOUT ANY CORROBORATIVE EVIDENCE IS NOT JUSTIFIED. 22 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 5.8. THE AO HAS GIVEN A GENERAL AND VAGUE STATEMENT THAT THE FIGURES ARE INVARIABLY FOR LACS ('PARA 4.1 OF THE ASSESSMENT ORDER). HERE IT MAY NOT BE OUT OF PLACE TO MENTION THAT THE AO, HIMSELF, HAS, AT SOME PLACES, TAKEN THE FIGURES AS TH OUSANDS. ON THE BASIS OF PAGE NO.23 OF BUNDLE NO.3 SEIZED FROM SHRI R.D. SHINDE, ADDITION IN THE CASE OF BHARATI VIDYAPEETH WAS MADE BY CONSIDERING THESE FIGURES AS THOUSANDS. THIS TREATMENT WAS DONE ON THE BASIS OF STATEMENT OF SHRI SHINDE. SAME TREATMENT TO THE FIGURES IN CERTAIN OTHER DOCUMENTS ALSO, ON THE BASIS OF THE STATEMENT OF SHRI SHINDE, HAS BEEN GIVEN. UNDER THE CIRCUMSTANCES, I AM INCLINED TO AGREE WITH THE SUBMISSION OF THE APPELLANT THAT AO HAS RELIED UPON THE STATEMENT OF SHRI SHINDE IN SOME OTHER CONTEXT AND THERE WAS NO REASON FOR HIM TO IGNORE SHRI SHINDE'S STATEMENT WHEREIN HE CATEGORICALLY STATED THAT THE SEIZED PAPER WAS REGARDING THE AMOUNT GIVEN TO HIS WIFE AND WAS IN THOUSANDS, IN THIS CONTEXT, IT IS RELEVANT TO REFER TO THE STATEMEN T OF SHRI SHINDE GIVEN U/S 131 AND IN Q.NO. 53D, HE WAS ASKED TO EXPLAIN THE NOTINGS ON THE SAID PAGE. IN RESPONSE TO THE SAID QUESTION, SHRI SHINDE STATED AS UNDER - 'Q. NO. 53 D: PLEASE EXPLAIN THE NOTING ON PAGE NO. 30 WHICH IS IN YOUR HANDWRITING ? ANS : - THESE PAGE INDICATES NOTING AS 'SAN. VATIS', 'HOME (40) 16/06/06' THE MEANING OF THE ABOVE NOTING IS THAT ON 16.6.2005 F HAVE GIVEN RS. 40,0001 - TO MY WIFE. THE DATE AS 16.6.2006 IS INADVERTENTLY MENTIONED. HOWEVER IN FACT IT SHOULD HAVE BEEN 16.6.2005 . ' FROM THE ABOVE STATEMENT, IT IS EVIDENT THAT RIGHT FROM THE DATE OF SEARCH, SHRI SHINDE HAD CLARIFIED THAT THE SEIZED PAPER PERTAINED TO HIS WIFE AND THE NOTING MADE IS 'SOU. WATIS' AND NOT 'SOU. VAHIN I ' AS INTERPRETED BY THE A.O. HE HAS ALSO POINTED O UT THAT THE WORD 'HOME' IS ALSO MENTIONED ON THE S AID SEIZED PAPER. EVEN, IN CROSS EXAMINATION, SHRI SHINDE HAD ADMITTED THAT THE SAID NOTINGS PERTAINED TO HIS WIFE AND NOT THE APPELLANT. THEREFORE, THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE WITHOUT ANY CORROBORATIVE EVIDENCE TO JUSTIFY THE SAME. HERE IT MAY NOT BE OUT OF PLACE TO MENTION THAT AS THE AO WAS RELYING ON A THIRD PARTY EVIDENCE. THUS, THE ONUS WAS ON HIM TO BRING EVIDENCE TO SUPPORT HIS CLAIM THAT THE NOTIN GS PERTAINED TO THE APPELLANT. THIS ONUS WAS NOT DISCHARGED BY HIM. 23 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE 5.9. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED VIEW THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION WITHOUT BRINGING ON RECORD ANY FURTHER EVIDENCE TH AT THE ASSESSEE HAD RECEIVED RS.40 L AKHS. IT IS AN ADMITTED FACT THAT SHRI SHINDE HAD ADM ITTED THAT THE SAID SEIZED PAPER PERTAINED TO HIM AND THERE WAS NO CONNECTION OF THE APPELLANT WITH THE SAID SEIZED PAPER. WHEN THE PERSON WHO HAS WRITTEN THE PAPER HAD ACCEPTED THAT THE SEIZED PAPER WAS BELONGING TO HIM AND HIS WIFE, THE QUESTION OF MAKING ANY ADDITION IN .THE HANDS OF THE APPELLANT ON THE BASIS OF THE SAID SEIZED PAPER ONLY DID NOT ARISE. IF THE A.O. WANTED TO MAKE ANY ADDITION, HE SHOULD HAVE BR OUGHT ON RECORD FURTHER CORROBORATIVE EVIDENCE TO JUSTIFY THE ADDITION. IN THIS CONTEXT, RELIANCE OF THE APPELLANT ON THE DECISION OF HON'BLE ITAT PUNE BENCH IN THE CASE OF THAKKAR DEVELOPERS LTD. IS QUITE RELEVANT. IN THIS CASE, HON'BLE ITAT HAS HELD THA T NO ADDITION CAN BE MADE ON THE BASIS OF EVIDENCE FOUND WITH THIRD PARTY WI THOUT ANY CORROBORATIVE EVIDENCE BROUGHT ON RECORD BY THE A.O. IN THE PRESENT CASE, THE A.O. HAS SIMPLY MADE THE ADDITION WITHOUT ANY FURTHER CORROBORATIVE EVIDENCE AND, HENCE, TH E ADDITION MADE IS NOT JUSTIFIED AT ALL. NOW THE REVENUE BEING AGGRIEVED BEFORE US. 2 7 . WE HEARD THE PARTIES. ADMITTEDLY THE ADDITION IS BASED ONLY ON ONE LOOSE PAPER FOUND WITH SHRI R.D. SHINDE O N WHICH THE FIGURE 40 IS APPEARING ALONGWITH THE WORD SOU. VAHINI OR (SOU. WATIS ?) . T HE MAIN PLANK OF THE ARGUMENT OF THE LD. COUNSEL IS THAT SHRI R.D. SHINDE HAS ADMITTED THE SAID DOCUMENT AND ALSO THE CONTENT S BELONG TO HIM . A S PER THE STATEMENT OF SHRI SHINDE THE SAID AMOUNT WAS GIVEN BY HIM TO HIS WIF E. ADMITTEDLY IN THE PRESENT CASE THE LOOSE PAPER WAS FOUND IN THE POSSESSION OF SHRI R.D. SHINDE AND HENCE, THE PRESUMPTION U/S. 132(4A) IS AGAINST SHRI SHINDE AND SHRI SHINDE HAS ADMITTED AND ALSO EXPLAINED THAT THE SAID NOTING IS PERTAIN ING TO HIS WIFE AS SOME MONEY WAS GIVEN BY HIM TO HIS WIFE. AS PER THE EXPLANATION OF SHRI SHINDE IN THE POST SEARCH ENQUIRIES IN THE STATEMENT RECORDED U/S. 131 , MORE PARTICULARLY Q. NO. 53D , SHRI SHINDE HAS STATED THAT HE HAD GIVEN RS.40 ,000/ - TO HIS WIFE ON 16 - 06 - 200 5 FOR CERTAIN PERSONAL EXPENDITURE. SHRI SHINDE ALSO CLARIFIED THAT THE WORD SOU. WATIS MEANS IN MARATHI SAID TERM IS COMMONLY 24 ITA NOS. 886, 887, 888, 918 & 919/PN/2011, DR. SHIVAJIRAO SHRIPATRAO KADAM & ORS., PUNE USED WITH REFERENCE TO ON ES OWN WIFE. IN THE PRESENT CASE, ASSESSING OFFICER HAS NOT INTERROGATED THE ASSESSEE ON THE EXPL ANATION BY SHRI SHINDE ADMITTING THAT NOTINGS ARE HIS OWN NOTINGS. THE ASSESSEE HAS CATEGORICALLY DENIED THAT THE SAID NOTING IS NOT HAVING ANY RELEVANCE WITH HIM OR HIS AFFAIRS. IN OUR OPINION THE ASSESSING OFFICER HAS MADE THE ADDITION ON SUSPICION DIS CARDING THE EXPLANATION OF SHRI SHINDE. WE, ACCORDINGLY, CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. IN THE RESULT, THE RELEVANT GROUNDS TAKEN BY THE REVENUE IS DISMISSED. 28. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. 29. FINAL RESUL T, THE ASSESSEES APPEALS BEING ITA NOS. 886, 887 & 888/PN/2011 ARE ALLOWED AND THE REVENUES APPEALS BEING ITA NOS. 918 & 919/PN/2011 ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 27 - 11 - 20 1 3 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCO UNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 27 TH NOVEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - CENTRAL, PUNE , 4 THE CIT - CENTRAL, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //T RUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE