The ACIT Central-2, Bhopal V. M/s. Sagar Menufactures, Bhopal

ITSSA 111/Ind/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3005 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 02-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Loose papers; Document seized; Cost of acquisition; Corroborative evidences; Onus to prove; Documents seized
• Section: 69; 132; 143(3); 142(1); 234B; 205; 69B; 250; 64; 113; 43; 73; 13; 153; 119; 22; 153C

Judgement Text

ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 1 of 27 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE MS. MADHUMITA ROY, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER (Conducted through Virtual Court) ITA No.96 & 97/Ind/2019 Assessment Year: 2011-12 & 2012-13 Sagar Manufactures Pvt. Ltd. Bhopal Vs. DCIT-(Central) Bhopal (Appellant / Assessee) (Respondent/ Revenue) PAN: AAPC51247M & ITA No.111 & 112/Ind/2019 Assessment Year: 2011-12 & 2012-13 DCIT-(Central), Bhopal Vs. Sagar Manufactures Pvt. Ltd. Bhopal (Appellant / Revenue) (Respondent/ Assessee) PAN: AAPC51247M Assessee by Shri Sumit Nema, Sr. Adv. & Shri Gagan Tiwari, ARs Revenue by Shri P.K. Mitra, CIT-DR Date of Hearing 20.07.2022 Date of Pronouncement 31.08.2022 O R D E R Per B.M. Biyani: 1. These are the cross-appeals filed by the assessee and revenue against the order dated 24.03.2019 passed by learned Commissioner of Income-Tax (Appeals)-3, Bhopal [“Ld. CIT(A)”], which in turn arises out of a consolidated order of assessment dated 24.03.2014 passed by the learned DCIT, Central, Bhopal [“Ld. AO”] concerning the AY 2011-12 and 2012-13. 2. Since all these appeals emanate from common source, they were heard together and are being disposed of by this common order. We first take up Revenue’s appeals and thereafter Assessee’s appeals. ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 2 of 27 Revenue’s IT(SS)A No. 111/Ind/2019: 3. This appeal relates to assessment-year 2011-12 whose assessment has been made u/s 153C read with section 143(3) of the act. Precisely stated the facts relevant to this appeal are such that the assessee is a company. A search u/s 132 of the act was conducted on various premises of Sagar Group on 21.10.2011 / 22.10.2011 where in certain documents relating to the assessee were found. No search was, however, conducted on the assessee and therefore the assessee is not a “searched person”, although the assessee falls within the framework of “other person” for the provisions of the act. Accordingly, treating the assessee as “other person”, the Ld. AO issued notice u/s 153C dated 11.09.2013 for making assessment. Since the assessee-company was incorporated on 12.11.2010 and it had only purchased lands but not commenced actual business activities during the year, the assessee filed Income-tax Return [“ITR”] declaring a total income of Rs. Nil. The Ld. AO, however, completed assessment u/s 153C read with section 143(3) after making a total addition of Rs. 2,17,98,000/- as per details given below: On-money payment against purchase of land 64,45,000 On-money payment against purchase of land 64,92,000 On-money payment against purchase of land 39,56,000 On-money payment against purchase of land 27,00,000 On-money payment against purchase of land 10,00,000 On-money payment against purchase of land 5,25,000 Unexplained investment u/s 69B being difference of prevailing market value of land and cost of acquisition 6,80,000 4. Aggrieved by order of assessment, the assesse filed appeal to Ld. CIT(A). During appellate proceeding, the Ld. CIT(A) deleted all additions. Now, the revenue has come in appeal before us challenging the action of Ld. CIT(A), on the following Grounds: ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 3 of 27 “(1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.64,45,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.64,92,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (3) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.39,56,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (4) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.27,00,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961. (5) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.10,00,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (6) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.5,25,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961. (7) On the facts and in the circumstances of the case, ld. CIT(A) erred in deleting the addition of Rs.6,80,000/- made by the Assessing Officer on account of unexplained investment u/s 69B of the Income Tax Act, 1961. (8) The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal.” 5. Ld. DR placed a heavy reliance upon the order of Ld. AO. Referring to the various pages of assessment-order, the Ld. DR submitted that the assessee has purchased lands from various sellers and the department has recorded statements of those sellers, wherein it was revealed that the assessee has paid on-moneys to the sellers in cash. Ld. DR submitted that the payments of on-money are neither mentioned in the registered-deeds nor recorded in the books of account of assessee. Ld. DR contended that in such a situation where the payment of on-money is clearly confirmed ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 4 of 27 by sellers, the Ld. AO had a sound basis to make additions. Therefore, the additions must be upheld. 6. Per contra, the Ld. AR appearing on behalf of assessee, critically analysed the assessment-order passed by Ld. AO. Ld. AR referred to Para 3 of the assessment-order where the Ld. AO has cited a list of various documents seized during the course of search-proceeding. Ld. AR submitted that the seized documents are in the nature of registered sale- deeds of the lands purchased by the assessee, site-maps, receipts of fee paid to Govt. offices, letters exchanged with Govt. offices, project-report, etc. Ld. AR submitted that none of these documents is an “incriminating document”. Ld. AR submitted that even the Revenue realized this glaring shortcoming and, therefore, conducted post-search enquiry by issuing summons to the sellers of land. Ld. AR submitted that the statements of the sellers were recorded after more than 2 months in such post-search enquiries and that too by DDIT(Inv), Bhopal and not by Ld. AO. Ld. AR further pointed out that neither the recording of statements was done in presence of assessee nor any opportunity of cross-examination was given to the assessee. Ld. AR submitted that except the statements of sellers recorded by Ld. DDIT(Inv), Bhopal, there is no basis available to the Ld. AO for making addition. With these submissions, Ld. AR summed up two- fold contentions, viz. (i) None of the documents seized during the search is an “incriminating document”. None of the additions has been made on the basis of seized document, the additions have been made on the basis of post-search enquiries. Such additions per se cannot be made in the proceeding of section 153C, and (ii) the revenue has made additions of alleged on-money payments on the basis of mere statements of sellers recorded by Ld. DDIT(Inv), Bhopal. Neither those statements were recorded by Ld. AO nor any opportunity of cross-examination was given to the assessee. Therefore also, the additions are not sustainable. 7. We have considered rival submissions of both sides, perused the material held on record and considered the relevant provisions of law. Firstly, we observe that the Ld. AR has successfully demonstrated that the ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 5 of 27 seized-documents were in the nature of registered sale-deeds of the lands purchased by the assessee, site-maps, receipts of fee paid to Govt. offices, letters exchanged with Govt. offices, project-report, etc. which are not in the nature of “incriminating documents”. In fact, no addition has been made by the Ld. AO on the basis of these documents while completing assessment u/s 153C. We observe that revenue has made various additions on the basis of the oral-statements given by the sellers in post- search enquiries. Therefore, the additions are beyond the authority of section 153C per se and liable to deleted. Secondly, the only basis available to the Ld. AO for making additions, was the statements recorded by DDIT(Inv), Bhopal. Neither those statements were recorded by Ld. AO nor any kind of opportunity of cross-examination was given to the assessee. Even the Ld. CIT(A) has also mentioned on Page No. 39 of his order “This is an admitted fact that statements of sellers were recorded by DDIT(Inv), Bhopal and not by the AO.” Thus, viewed from both angles, the additions do not have legs to stand. Being so, we do not find any infirmity in the action of Ld. CIT(A). We, therefore, uphold the action of Ld. CIT(A). Accordingly, the appeal of revenue being ITA No. 111/Ind/2019 is dismissed. Revenue’s IT(SS)A No. 112/Ind/2019: 8. This appeal relates to assessment-year 2012-13 whose assessment has been made u/s 143(3) of the act. Precisely stated the facts relevant to this appeal are such that the assessee-company has not commenced its business activities and hence filed Income-tax Return [“ITR”] declaring a total income of Rs. Nil. The Ld. AO, however, completed assessment u/s 143(3) after making a total addition of Rs. 3,55,71,190/- as per details given below: On-money payment against purchase of land 3,50,000 On-money payment against purchase of land 3,50,000 On-money payment against purchase of land 17,04,000 ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 6 of 27 On-money payment against purchase of land 8,52,000 On-money payment against purchase of land 3,23,15,190 9. Aggrieved by order of assessment, the assesse filed appeal to Ld. CIT(A). During appellate-proceeding, the Ld. CIT(A) deleted all additions. Now, the revenue has come in appeal before us challenging the action of Ld. CIT(A), on the following Grounds: “(1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.3,50,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.3,50,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (3) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.17,04,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (4) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.8,52,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961. (5) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.3,55,71,190 /- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (6). The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal.” 10. Ground No. 1 to 4: In these Grounds, the revenue has claimed that the Ld. CIT(A) has erred in deleting of the addition of Rs. 3,50,000/-, 3,50,000/-, 17,04,000/- and 8,52,000/- made by Ld. AO on account of on-money payments against purchase of lands. The facts relating to all these additions are very simple and almost identical, hence need a brief mention only. In all cases, initially the DDIT(Inv), Bhopal recorded statements of the sellers. In cases of addition of Rs. 3,50,000/- and ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 7 of 27 3,50,000/-, the Ld. AO too recorded the statements of the sellers. During statements, the sellers admitted to have received on-money from the assessee which was not disclosed in the registry of lands. Based on these oral-statements of sellers, the Ld. AO made additions. Ld. CIT(A), however, observed significant shortcomings, viz. (i) no opportunity of cross- examination was given to the assessee, (ii) there are contradictions in the replies given by the sellers in the statements, (iii) the sellers have not given corroborative evidences to support their replies in the statements, and (iv) Ld. AO did not make any independent enquiry and solely relied upon the oral-statements without any supportive evidence to prove that the assessee has really paid on-money. Based on these findings, the Ld. CIT(A) has deleted all additions. Ld. AR submitted that the order of Ld. CIT(A) is self-explanatory and does not require much deliberation. We have given mindful consideration to the shortcomings observed and conclusions noted by Ld. CIT(A) in his order and do not find any infirmity. Therefore, we agree that the Ld. CIT(A) has rightly deleted these additions made by Ld. AO. Accordingly, we dismiss Ground No. 1 to 4 of the Revenue. 11. Ground No. 5: In this Ground, the revenue has claimed that the Ld. CIT(A) has erred in deleting the addition of Rs. 3,23,15,190/- (wrongly mentioned as Rs. 3,55,71,190/- in the Ground) made by Ld. AO on account of on-money payment against purchase of land. 11.1 Facts qua this addition are such that during the course of search, the authorities seized certain documents marked as LPS-51, which is embodied in the assessment-order. The backside of Page No. 129 of this LPS-51 was analysed by Ld. AO who came to a conclusion that the assessee has purchased 47.65 acres of land for Rs. 5,71,80,000/- but the registry was made for Rs. 2,48,64,810/- and the difference of Rs. 3,23,15,190/- was paid in cash. Hence the Ld. AO made an addition of Rs. 3,23,15,190/- by observing as under: “20. During the course of search at the office of the group (which is also the office of the assessee company) located at E- 2/4, Arera Colony, Bhopal, Certain documents were found and ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 8 of 27 seized as per Annexure –LPS-51. Back side of Page no. 129 of this documents is reproduced as under: 20.1 As can be seen from the above, this cocument records the summary of transactions for purchase of land at Tamot, District Raisen. Among the whole Sagar Group, only the assessee Company has purchased land at Tamot, District Raisen and therefore, the transactions recorded in this loose paper pertain to the assessee company only. As per this document, 47.65 acres (19.29 hectares) of land has been purchased by the assessee ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 9 of 27 company at the rate of Rs. 12.00 lacs per acre totaling to Rs. 5,71,80,000/-. Out of this total consideration of Rs. 5,71,80,000/-, the registry was made at Rs. 2,48,64,810/- and the difference of Rs. 3,23,15,190/- has been paid in cash. 20.2 During the assessment proceedings, the assessee vide notice u/s 142(1) dated 13/02/2014 was required to explain the transactions contained in these documents, reconcile the same with its books of accounts and also to show cause as to why the amount of Rs. 3,23,15,190/- paid in cash on account of on-money not be added to its total income. 20.3 The assessee vide reply dated 17/02/2014 stated that:- "The assessee company has not made any cash transaction regarding purchase of land. The company has purchased land from different parties through cheque only, which are accounted for and reconciled in the books of accounts of the company, the page no. 129 of LPS-4/51 is not relevant to the assessee company and this page is not related to any transaction made by the company." 20.4 During the assessment proceedings in the case of Shri Sudheer Agrawal, Chairman of the group and Director of the assessee company, he was also required to explain the transactions contained in these documents, reconcile the same with its books of accounts and also to show cause as to why the amount of Rs. 3,23,15,190/- paid in cash on account of on money not be added to its total income. He has also submitted reply similar to the assessee company. 20.5 In order to take a final view in the matter, it would be worthwhile to examine this issue considering the totality of facts narrated as under:- 1. The backside of this document i.e. page 129 records the details of various lands containing Khasra number, area, name of the seller etc. All these lands have been duly purchased by the assessee company. 2. The total area of lands mentioned in the document under reference i.e. back side of page 129 and page 129 is 47.65 acres. The total lands purchased by the assessee company is more than this and all of these lands have been purchased by the assessee company. 3. This loose paper has been found and seized from the registered office of the company and other group concerns. Therefore, in view of provisions of section 132(4A) "of the Income tax Act, 1961, 'it is presumed that the transactions recorded in this loose paper" pertain to the assessee company and the content of ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 10 of 27 these transactions is true. 20.6 Therefore, in view of above facts and circumstances of the case, it is established and held that the above referred loose paper records the transactions of payment of on money of Rs. 3,23,15,190/- for purchase of lands by the assessee company at Tamot, District Raisen. These transactions are not recorded in the books of accounts of the assessee company. Therefore, an addition ofRs. 3,23,15,190/- is hereby made to the total income of the assessee company u/s 69 of the Income Tax Act, 1961. Since, this document has been found during search carried out on 21.10.2011 (F. Y. 2011- 12) and lands have also been purchased by the assessee company during this financial year, therefore, this shall be added to the total income of the assessee for A. Y. 20 12-13.” 11.2 During first-appellate proceeding, the assessee made following submission before Ld. CIT(A): “Ground No. 9 for the assessment year 2012-13 – Addition of Rs. 3,23,15,190: 1. This ground relates to the addition of Rs. 3,23,15,190/- on account of a loose paper found during the search proceedings. The said LPS - 51 is placed at page no. 176 of the paper book. 2. This addition has been made on the basis of one loose paper which is given page no. 129 of LP S-4/51. In the course of the assessment of the assessee, the assessee was asked to submit the reply on this paper. The assessee submits that the said paper was not found from its control and possession. The assessee is not the owner of the paper. The assessee is also not the author of the paper. The assessee's assessment has been made by the A.O. under the provisions of section 153C of the Act because the assessee was not a searched person. The assessee further submits that the allegation of the A.O that the assessee had made payment of Rs. 32315190 in cash on account of on money is wholly false and incorrect. In this paper, the name of the assessee is also not appearing. There is also no reflection in the paper that the assessee had made the payment. There is also no mention in the said paper as to on what date, the payment was made and to whom it was made. The presumption u/s 132(4A) is also not applicable at all because the assessee is not a searched person. The assessee submits that except the lands mentioned in the foregoing paragraphs, no other land was purchased by the assessee. Thus the allegation of the A.O. that the assessee had ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 11 of 27 purchased agricultural land 47.65 acres by making cash payment of Rs. 32315190 is wholly false, incorrect and unlawful. The entire addition has been made on assumptions, presumptions, conjectures and surmises and, therefore, it is wholly unlawful and unjustified and, therefore, be deleted 3. The assessee refers a decision of ITAT Mumbai Bench in the case of Jaya S. Shetty Vs. ACIT reported in 64 ITJ (Mum) 551. In this case, the Appellate Tribunal held that the addition cannot be made on the basis of piece of paper found in the assessee's restaurant at the time of search by drawing presumptions uls.132(4A), when assessee was out of station at the time of search. 4. The assessee also refers the following decisions which are relevant for the adjudication of the issue involved:- J.R.C. Bhandari Vs. A CIT - 79 ITJ 0001 (Jd): In this case, it is held as under:- It may hardly be deniable that the Indian Evidence Act or for that matter the statutory provisions of the Indian Evidence Act may not be applicable strictly to the proceedings under the IT Act but the basic/broad principles of the law of evidence do apply to the said proceedings. It is a settled position of law that the slips or loose sheets do not fall within the purview of 'book '. An entry in a book of accounts, maintained in the regular course of business, is relevant to be considered in respect of the transactions reflected thereby, no doubt, but is not conclusively decisive thereof or of the matter contained therein or liability reflected thereby, and much less so an entry in a loose sheet. It is only some other evidence, whether in the form of statement of the author of the entry or the statement of some other person connected with the transactions contained in the entry, or in some other form, supportive of the entry, which lends weight/credence to the entry in the book, depending upon the trustworthiness of the said deponent or reliability of the said other evidence, and it is only then that the said entry assumes the nature of a reliable evidence on the basis of which some addition can be made/sustained. An entry in a loose sheet is of a still feeble nature, and an entry in a loose sheet found in the possession of another/third person is much more so. As such a mere entry in a loose sheet, by itself, without the sworn statement of the related person, supportive of the entry, hardly has any evidentiary value, worth the name. The legal position being as emerging above, no liability can be fastened nor can an addition be made on the basis of a mere entry in a loose sheet without there being some further trustworthy/reliable corroborative evidence lending credence to such an entry. ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 12 of 27 Viewed as above, in the instant case, apart from a mere entry in a loose sheet, there is not an iota of evidence on record supportive of the findings arrived at by AD, and confirmed by CIT(A) to fasten the liability on assessee in respect of the receipt of the amounts mentioned in the entry contained in the loose sheet which too was found not from the possession of assessee but from the possession of a third person whose statement is also not there which, if supportive, could lend some credence to it. As such, considering all the facts and circumstances of the case, the legal position and the discussion made above, the additions in the hands of assessee made by AD in the five assessment years, as being agitated in five appeals of assessee under consideration, on the basis of loose sheet, are uncalled for and legally not sustainable.- Hemraj Jagetia vs. Dy. CIT [ITA No. 543/Jul2000 dt. 10th May, 2002} followed; T.S Venkatesan vs. Asstt. CIT (2000) 69 ITJ (Cal) 66 : (2000) 74 lTD 298 (Cal), ITO vs. MA. Chidambaram (1997) 63 lTD 203 (Mad), Associated Stone Industries (Kota) Ltd. vs. Dy. CIT (1999) 64 TTJ (Jp) 708 : (1999) 68 lTD 312 (Jp) and Asstt. CIT vs. Shailesh S Shah (1997) 59 TTJ (Mum) 574: (1997) 63 lTD 153 (Mum) relied on; CBIvs. Vc. Shukla 3 SCC 410 and Kedarnath Jute Manufacturing Ltd. vs. CIT (1971) 82 ITR 363 (SC) applied. Further in para 17 of the order – 17. In T.S Ventakesan vs. Asstt. CIT (supra), Tribunal, Calcutta has held as under: "In CBI vs. V.C. Shukla 3 SCC 410 the Hon'ble Supreme Court has held that loose sheets of paper cannot be termed as 'book' within the meaning of s. 34 of Evidence Act. It has also been held therein by the Hon'ble Supreme Court that even correct and authentic entries in books of account cannot, without independent evidence o(their trustworthiness, fix a liability upon a person. The Hon'ble Supreme Court also observed that even assuming that the entries in loose sheets are admissible under s. 9 of the Evidence Act to support an inference about correctness of the entries still those entries would not be sufficient without supportive independent evidence. In Amar Singh vs. ITO (1995) 53 TTJ (Del) 692: (1995) 54 ITD 375 (Del) it has been held by Delhi Bench of Tribunal that a statement made by a person in assessment proceedings relating to SLBP will not be relevant evidence under s. 33 in the assessment proceedings relating to a party different from SLBP. In Rama Traders vs. First ITO (1998) 32 TTJ (Pat) 483 : (1998) 25 ITD 599 (Pat) the Patna Bench of Tribunal has held that the onus for proving the correctness of the entries appearing in the books of third party M/s Raj Trading Co. was not on the assessee, but on the Revenue. It was also held that ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 13 of 27 presumption under s. 132(4A) could not be raised against the assessee who was a third party and additions to the assessee's income could not be made. In Kishin Chand Chellaram vs. CIT (1980) 19 CTR (SC) 360 : (1980) 125ITR 713 (SC) it has been held that though proceedings under IT Act are not governed by strict rules of evidence and the letter could be taken into account as evidence even without calling manager of the bank in evidence to prove his letter, but before the IT authorities could rely on the letter they are bound to produce letter before the assessee that the assessee could controvert the statement contained in it by asking for an opportunity to cross-examine the manager of the bank" It has also been held therein that: "On the basis of a mere entry on a loose sheet found from the possession of a third person and a statement given by another third person in connection with search/assessment proceedings of still another third person without the copy of the statement being furnished to assessee and thereby allowing the assessee an opportunity to rebut the contentions made therein as also to cross-examine the witness it cannot justifiably be assumed/inferred that the amount mentioned in the entry on loose sheet was paid to the assessee. In turn the Tribunal deleted the addition. " Further in para 24 o[the order - 24. In our considered opinion, it may hardly be deniable that the Indian Evidence Act or for that matter the statutory provisions of the Indian Evidence Act may not be applicable strictly to the proceedings under the IT Act but the basic/broad principles of the law of evidence do apply to the said proceedings. It is a settled position of law that the slips or loose sheets do not fall within the purview of book'. An entry in a book of accounts, maintained in the regular course of business, is relevant to be considered in respect of the transactions reflected thereby, no doubt, but is not conclusively decisive thereof or of the matter contained therein or liability reflected thereby, and much less so an entry in a loose sheet. It is only some other evidence, whether in the form of statement of the author of the entry or the statement of some other person connected with the transactions contained in the entry, or in some other form, supportive of the entry, which lends weight/credence to the entry in the book, depending upon the trustworthiness of the said deponent or reliability of the said other evidence, and it is only then that the said entry assumes the nature of a reliable evidence on the basis of which some addition can be made/sustained An entry in a loose sheet is of a still feeble ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 14 of 27 nature, and an entry in a loose sheet found in the possession of another/third person is much more so. As such a mere entry in a loose sheet, by itself, without the sworn statement of the related person, supportive of the entry, hardly has any evidentiary value, worth the name. The legal position being as emerging above, we are of the considered opinion that no liability can be fastened nor can an addition be made on the basis of a mere entry in a loose sheet without there being some further trustworthy/reliable corroborative evidence lending credence to such .an entry. 5. Without prejudice to the above, it is submitted that in the loose paper there is no date or year and, therefore, no addition can be made in A.Y. 2012-13. The assessee refers the decision of Hon 'ble Delhi High Court in the case of CIT Vs, Tilakraj Anand reported in 373 ITR 1/3 (Del). In this case the Hon 'ble Court held that in the absence of the dates mentioned in the concerned page of seized notes, no addition could be made during the course of block assessment since no particular amount was attributable to a specified year. 6. In view of the above, kindly delete the addition of Rs. 3,23,15,190.” 11.3 After considering submission of assessee, the Ld. CIT(A) deleted addition by holding as under: “Ground No 9 for AY 2012-13:- Through this ground of appeal, the appellant has challenged the addition of Rs. 3,23,15,190/- on account of on money paid to sellers for purchase of land. During the course of search at E-2/4, Arera colony, Bhopal certain documents were found and seized as annexure LPS-Sl. The back side of page no 129 of this document is scanned on page no 50 of assessment order. The AO during the course of assessment proceedings found that the said loose paper contain details of purchase of 47.65 acres of land at the rate of Rs. 12.00 lacs per acre totaling to Rs. 5,71,80,000/-. Out of this total consideration registry was made at Rs. 2,48,64,810 and the difference of Rs, 3,23,15,190 was paid in cash. The AO required the assessee to explain the transactions contained in the loose paper, in reply assessee submitted that the company has purchased land from different persons through cheques and all the payments are duly recorded in books of accounts of the company. 4.3.1 Appellant during the course of appellate proceedings submitted that the said loose paper was not found in possession and control of appellant. The appellant is neither the author nor the owner of the paper. The loose paper does ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 15 of 27 not have any reflection that appellant has made the payments. Further, the appellant submitted that the presumption uls 132(4A) is not applicable in the case of assessee because assessee was not a searched person. The appellant has also taken a plea that no land other than that mentioned in the assessment order has been purchased by the appellant company and the entire addition is based on assumption, presumptions, conjectures and surmises basis. In support appellant has placed reliance on following judgements:- •ACIT vs Jaya S Shetty 64 TTl 551 (Mumbai ITAT) •T S Ventakesan vs SCIT (2000) 69 TTl 66 (Calcutta ITAT) •JRC Bhandari vs ACIT 79 TTl 0001 (Jd) •CIT vs Tilakraj Anand 373 ITR 113 (Delhi HC) 4.3.2 After considering the entire factual matrix and evidence/material on record inter alia written submissions filed, I reach to conclusion that impugned addition was made on the basis of assumption and presumption which neither sustainable on facts nor in law. Appellant during appellate proceedings has strongly contented that appellant no on money was paid towards purchase of lands and all the transactions are fully recorded in books of account. Further, the appellant company is nether the author nor the owner of the said loose paper. The AO has also failed to bring on record any cogent evidence, creating direct nexus of payment of on money in cash, as alleged. Therefore, in absence of any cogent evidence having direct nexus with the impunged transaction, the said impunged loose paper cannot be used against the assessee. 4.3.3 This is settled legal position that any 'dumb document' cannot be used as an evidence to draw an adverse inference against the assessee. Case laws supporting this proposition are as under:- ACIT Vs. Satyapal Wasson (2007) 295 ITR (AT) 352 (Jabalpur): Held that "the crux of these decisions is that a document found during the course of search must be a speaking one and without any second interpretation, must reflect all the details about the transactions of the assessee in the relevant assessment year. Any gap in the various components as mentioned in section 4 of the Income Tax ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 16 of 27 Act must be filled up by the Assessing Officer through investigations and correlations with the other material found either during the course of the search or on the investigation. As a result, we hold that document No.7 is a non-speaking document." Most important ratio laid down in the said judgment is that "impugned document" must be speaking one and without any second interpretation and must reflect all the details about transactions of the assessee. Appellant has brought to my notice that apart from the lands as mentioned in the assessment order appellant has not purchased any land at village tamot, however, the AO has alleged that appellant, company has purchased more acres of land in comparison to that mentioned on the loose paper. The AO has also failed to establish to whom such payments were made, details of land purchased, details of sellers, mode of payment date of payment was the sum paid in cash or in kind. Absence of these vital details is making the loose paper under consideration as "deaf & dumb document". The onus was solely on the AO to fill such vital gaps by bringing positive evidence on record and prove the allegation about alleged "on money payment for purchase of land" by the assessee, which he utterly failed to do so. CBI vs VC Shukla 3 SCC 410: The Hon'ble Supreme Court has held that loose sheets of paper cannot be termed as 'book' within the meaning of s. 34 of Evidence Act. It has also been held therein by the Hon'ble Supreme Court that even correct and authentic entries in books of account cannot, without independent evidence of their trustworthiness, fix a liability upon a person. The Hon' ble Supreme Court also observed that even assuming that the entries in loose sheets are admissible under s. 9 of the Evidence Act to support an inference about correctness of the entries still those entries would not be sufficient without supportive independent evidence. Rakesh Goyal Vs. ACIT (2004) 87 TTJ (Del) 151: The findings of Hon'ble Tribunal was as under:- "20.1 After perusing the findings of the C1T(A) and the submissions of both the parties, we do not find any infirmity in these findings. Firstly the finding of the C1T(A) has not been controverted by the learned Departmental Representative by filing any positive evidence. The copies of the pages found from the possession of the assessee are placed in the paper book and after going through these ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 17 of 27 papers, we find that these are simply deaf and dumb documents and they cannot be considered for making any addition. This is a settled principle of law that any document or entry recorded in those documents should be corroborated with positive evidence. Here in the present case nothing has been corroborated or proved that assessee was dealing in money lending business. Mohan Foods Ltd Vs. DCIT (2010) 123 ITO 590 (Del): Held that-- although the contents of the relevant seized documents show that the amounts mentioned therein relate to some expenditure, in the absence of any other evidence found during the course of search or brought on record by the AO to show that the said expenditure was actually incurred by the assessee, the same cannot be added to the undisclosed income of the assessee by invoking the provisions of s. 69C-Assessee explained that the said entries represented estimates made by its employees in respect of proposed expenditure-There is no evidence on record to rebut/controvert the said explanation- Additions not sustainable CIT vs. S.M. Agarwal (2007) 293 ITR 43 (Del): Held that - In this case the department seized documents ''Annexure A-28 p. 15, - gives -the details of certain handwritten monetary transactions which shows that the assessee had given a loan of Rs. 22.5 lacs on interest and earned interest income of Rs. 3.55 lacs on it. The Tribunal hold this document as dumb document. The relevant findings of the Tribunal as mentioned in the above order is as under:- "We have ourselves examined the contents of the document and are unable to draw any clear and positive conclusion on the basis of figures noted on it. The letters 'H.S.', 'T.2' and 'D- Shop' cannot be explained and no material has been collected to explain the same. Likewise, the figures too are totally unexplained and on the basis of notings and jottings, it cannot be said that these are the transactions carried out by the assessee for advancing money or for taking money. Thus, in our opinion, this is a dumb document." Hon'ble High Court confirmed the findings of the Tribunal and relevant findings was as under:- ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 18 of 27 "12. It is well settled that the only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. So, unless and until the contents of the document are proved against a person, the possession of the document or handwriting of that person, on such document by itself cannot prove the contents of the document. These are the findings of fact recorded by both the authorities i.e. CIT(A) and the Tribunal." "15. Similarly, in the present case, as already held above, the documents recovered during the course of search from the assessee are dumb documents and there are concurrent findings of CIT(A) and the Tribunal to this effect. Since the conclusions are essentially factual, no substantial question of law arises for consideration". Jayantilal Patel Vs. ACIT & Ors (1998) 233 ITR 588 (Raj): Held that- "During search at the residence of Dr. Tomar, the Department official found a slip containing some figures. This piece of paper claimed to have been recovered at the time of search contains figures under two columns. In one column, the total of these figures comes to Rs. 17,25,000 from 31st May, 1989, to 8th Dec; 1989, and in the other column, the total of these figures comes to Rs. 22,12,500. An addition of Rs. 22,12,500 on the basis of figures on a small piece of paper in respect of purchase of Plot No. 8-4, Govind Marg, Jaipur was made by the AO. This plot B-4, Govind Marg, Jaipur, has been purchased jointly by Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar, HUF. Held that no addition on account of entries on a piece of paper which is claimed to have been found at the time of search, can be made, treating the figures as investment for purchase of plot No. B-4, Govind Marg, Jaipur in the hands of Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar HUF." N K Malhan VS. DCIT (2004) 97 TTJ (Del) 938 _ Held that- "We have perused the aforesaid explanation and the seized document placed at assessee's paper book-I pp. 48 and 50. The document does not state of any date or the year against the entries written therein. It does not show whether the assessee has made or received any payment. It also cannot be deciphered from the said documents that the entries therein pertain to the block period. The AO also did not bring on record any material to show that any investment has been made by the assessee in any chit fund ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 19 of 27 company or otherwise. The document found and seized might raise strong suspicion, but it could not be held as conclusive evidence without bringing some corroborative material on record. The document contained only the rough calculations and was silent about any investment. On the basis of such a dumb document, it cannot be said that there were investments made in fact by the assessee. Heavy onus lay upon the Revenue to prove that the document gives rise to undisclosed investment by the assessee. This onus has not been discharged. Accordingly no addition of undisclosed income could be made on the basis of such a document. Such a view has also been entertained by the Hon'ble Allahabad High Court in CIT vs. Dayachand Jain Vaidya (l975) 98 ITR 280 (All). The addition so made, therefore, is directed to be deleted. " Stanamsingh Chhabra vs. Dy. CIT (2002) 74 TTJ (Lucknow) 976: None of the loose papers seized are in the hand writing of the assessee. There is some jotting by pencil in some coded form on the loose papers made by the surveyed person or some other person. Moreover, no entries are supported by any corroborative evidence; such loose papers can not be called even the documents as they are simply the rough papers to be thrown in the waste paper basket. In this connection, the assessee relies upon the court decisions. CIT Vs. Chandra Chemouse P. Ltd. (2008) 298 ITR 98 (Raj.): It is held that- Addition can be made only when evidence is available as a result of search or a requisition of books of accounts or documents and other material. However additions cannot be made on the basis of inferences. (i) No facts were available to AO after search and inference of AO did not fall within the scope of Section 158BB. (ii) Deletion of additions made by Tribunal of assumed undeclared payments made for purchase of property was on basis of facts. Ashwani Kumar V. ITO (1991) 39 ITO 183 (Del) and Daya Chand V. CIT (2001) 250 ITR 327 (Del) and S.P. Goel V. DCIT (2002) 82 ITO 85 (Mum.): Nine out of 19 slips found were without any name or amount and therefore were dumb documents and no adverse inference could be drawn. Common Cause (A Registered Society) Vs. Union of India _ 30 ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 20 of 27 ITJ 197 (SC): In this case, the Hon'ble Court held that without any independent evidence or corroborative material, no addition is permissible on the basis of loose paper jottings & noting. The relevant paras of the order are as under :- 16. With respect to the kind of materials which have been placed on record, this Court in v.c. Shukla's case (supra) has dealt with the matter though at the stage of discharge when investigation had been completed but same is relevant for the purpose of decision of this case also. This Court has considered the entries in Jain Hawala diaries, note books and file containing loose sheets of papers not in the form of "Books of Accounts" and has held that such entries in loose papers/sheets are irrelevant and not admissible under Section 34 of the Evidence Act, and that only where the entries are in the books of accounts regularly kept, depending on the nature of occupation, that those are admissible. 17. It has further been laid down in V.C. Shukla (supra) as to the value of entries in the books of account, that such statement shall not alone be sufficient evidence to charge any person with liability, even fi they are relevant and admissible, and that they are only corroborative evidence. It has been held even then independent evidence is necessary as to trustworthiness of those entries which is a requirement to fasten the liability. 18. This Court has further laid down in V. C. Shukla (Supra) that meaning of account book would be spiral note book/pad but not loose sheets. The following extract being relevant is quoted herein below ;- "14. In setting aside the order of the trial court, the High Court accepted the contention of the respondents that the documents were not admissible in evidence under Section 34 with the following words: An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Admittedly, the alleged diaries in the present case are not records of the entries arising out of a contract. They do not contain the debits and credits. They can at the most be described as a memorandum kept by a person for his own benefit which will enable him to look into the same whenever the need arises to do so for his future purpose. Admittedly the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries there in are ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 21 of 27 on monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to." 19. With respect to evidentiary value of regular account book, this Court has laid down in V.C Shukla, thus: "37. In Beni v. Bisan Dayal it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot 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 independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the Court has to enquire was subject to the salient proviso that such entries shall not alone be Sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts. 20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecutions based upon such entries which led to the investigation was quashed by this court. " 4.3.4 Further, in numerous other case laws courts have consistently upheld the view that no addition could be made in the hands of the assessee on the basis of the dumb loose papers seized during search, in absence of any corroborative material to show payment of any undisclosed consideration by the assesssee towards purchase of land. Some of the case laws are as under:- ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 22 of 27 (i) M M Financiers (P) Ltd Vs. DCn (2007) 107 TTJ (Chennai) 2000 Held that "no addition could be made in the hands of assessee on the basis of the dumb loose slips seized from his residence, in the absence of any corroborative material to show payment of any undisclosed consideration by the assessee towards purchase of land". (ii) Monga Metals (P) Ltd Vs. ACIT 67 TTJ 247 (All. Trib)- Holding that Revenue has to discharge its burden of proof that the figures appearing in the loose papers found from assessee's possession constitute undisclosed income. [In the present case, loose papers were not even seized from assessee's possession]. (iii) Pooja Bhatt Vs. ACIT (2000) 73 ITO 205 (Mum. Trib) Held that where document seized during search was merely a rough noting and not any evidence found that actual expenditures were not recorded in books of account, additions not justified. [In the instant case, similarly no other corroborative evidence was found in search to prove that details/figures mentioned in notings on page 117 to 119 of A/I represent 'on money' payments by the assessee]. (iv) Atual Kumar Jain Vs. DCIT (2000) 64 TTJ (DeI.Trib) 786- Held that additions based on chit of paper, surmises, conjectures etc could not be sustained in the absence of any corroborative evidence supporting it. [Similarly in present case, neither either parties have admitted payment/receipt of 'on money' nor any corroborative evidence was seized to support the findings of the AO]. (v) S K Gupta Vs. DC IT (1999) 63 TT J (Del. Trib) 532 Held that "that additions made on the basis of torn papers and loose sheets cannot be sustained as same do not indicate that any transaction ever took place and does not contain any information in relation to the nature and party to the transaction in question." (vi) Jagdamba Rice Mills Vs. ACIT (2000) 67 TTJ (Chd) 838 Held that "No addition can be made on dump documents". Thus, the only inference which can be drawn from this is that ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 23 of 27 the seized loose paper is nothing but represent rough workings/jottings/scribbling. It is settled legal position that onus of proof is on the person who makes any allegation and not on the person who has to defend. As per legal maxim "affairmanti non neganti incumbit probation" means burden of proof lies upon him who affirms and not upon him who denies. Similarly as per doctrine of common law "incumbit probation qui digit non qui negat" i.e. burden lies upon one who alleges and not upon one who deny the existence of the fact. The loose paper represents rough workings/jottings done by some anyonomous person. The AO has failed to discharge his onus of proof especially when addition has been made under "deeming fiction". In view of this lacune on the part of AO, impunged addition is legally not sustainable. As held in the case of CIT vis KP Varghese 131 ITR 574 (SC) by Hon'ble Apex Court in absence of evidence that actually assessee paid more amount than declared in registered deed, no addition can be made. In the case of Bansal Strips (P) Ltd & Ors Vs. ACIT (2006) 99 lTD 177 (Del) it has been held that :- "If an income not admitted by assessee is to be assessed in the hands of the assessee, the burden to establish the such income is chargeable to tax is on the AO. In the absence of adequate material as to nature and ownership of the transactions, undisclosed income cannot be assessed in the hands of the assessee merely by arithmetically totally various figures jotted down on loosed document". 4.3.5 This is an undisputed fact that neither any incriminating material was found or seized during search proceedings suggesting on money payment by the appellant company. In absence of any corroborative evidence to prove that there was any exchange of money by CASH, AO has no locus to assume that appellant has paid sum of Rs. 3,23,15,190/-. It is worth mentioning here that after the sum Rs. 3,23,15,190/- word ‘ Atirikt’ has been written, which does not means cash payment. Nevertheless, it is settled law that AO cannot make any addition merely on basis of suspicion, however strong it may be. The AO is not justified in presuming certain facts without having anything to corroborate. Hon'ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. vis CIT (1954) 26 ITR 775 (SC) has held that although strict rules of evidence Act do not apply to income tax proceedings, still assessment cannot be made on the basis of imagination and guess work. It has been held in the case of Umacharan Saha & Bros co. v/s CIT 37 ITR 21 (SC) that suspicion, however strong cannot take place of evidence. Similar views have been expressed by Apex court in the case of Dhiraj Lal Girdharilal v/s CIT (1954) 26 ITR 736 (SC). ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 24 of 27 4.3.6 In view of the above discussion, material evidences on record and case laws cited, firstly, the appellant is neither author nor the owner of the impunged loose paper. Secondly, no incriminating material was found during the course of search suggesting on money payment for purchase of land at village tamot. Thirdly, the loose paper is undated and unsigned. Fourthly, the impunged loose paper was not found in possession/custody of the appellant company. Sixthly, the impunged loose paper should be speaking one without having any second interpretation, which is not in the case of appellant. My findings on the issue under consideration are based on the various conclusions drawn by me which have been discussed in the above paras. Therefore, the AO was not justified in making addition of Rs. 3,23,15,190/- being on sheer assumption and presumption basis. Thus, the addition made by the AO amounting to Rs. 3,23,15,190/- is Deleted. Therefore appeal on this ground is Allowed.” 11.4 Before us, the Ld. DR supported the action of Ld. AO. Ld. DR submitted that the Ld. AO has made addition after a careful analysis of the document found during search and identified as “Back side of Page No. 129 of LPS-51”. Therefore, the addition must be upheld. 11.5 Per contra, the Ld. AR vehemently supported the observations made by Ld. CIT(A). In particular, the Ld. AR emphasized following contentions: (a) The assessee is neither author nor owner of the document. Even the document was not found from the possession of assessee. Moreover, the search was also not conducted on the assessee. Therefore, the presumptions prescribed in section 132(4A) are not applicable qua the assessee. (b) Drawing our attention to the document, Ld. AR submitted that it does not contain name of assessee at all. It is neither dated nor signed. Nowhere it utters any voice of cash-payment as alleged by Ld. AO. It does not state any date on which the alleged cash- payment was made. It does not state the name of the payer and receiver. The document talks of a transaction of 47.65 acres of land but the assessee has not done any transaction of 47.65 acres. In fact, the assessee has not purchased any land except what is ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 25 of 27 already recorded in the books of account. The Ld. AO has not found any corroborative material to demonstrate that the transaction of 47.65 acres had been done by the assessee. The Ld. AO has made a superficial and casual observation that the total lands purchased by the assessee are more than 47.65 acres, just to establish a linkage with 47.65 acres mentioned in the document. Therefore, the impugned document is a “dumb document” on the basis of which no addition can be made. 11.6 We have considered rival submissions of both sides and perused the material held on record. We observe that the Ld. AO has made addition solely on the basis of “Back side of Page No. 129 of LPS-51” but the Ld. AR has pointed out several deficiencies in the document, as narrated in foregoing paragraph which we do not repeat for the sake of brevity, and successfully demonstrated that the document is a “dumb document”. Ld. DR is not able to controvert the submission of Ld. AR. Therefore we accept that the document relied upon by the Ld. AO is a dumb document. Coming to legal front, by now it is a settled law that no addition can be made on the basis of a dumb document. Even the Ld. Ld. CIT(A) has also mentioned several judicial rulings in his order where this proposition has been clearly held. Without repeating those rulings, we too agree that no addition can be made on the basis of dumb document. Therefore, in such circumstances we are of the view that the Ld. CIT(A) has rightly deleted the addition which was made by Ld. AO. We do not find any infirmity in the action of Ld. CIT(A). Accordingly, therefore, Ground No. 5 of Revenue is also dismissed. 12. In view of foregoing discussions, the revenue’s appeal being ITA No. 112/Ind/2019 is also dismissed. Assessee’s IT(SS)A No. 96/Ind/2019 and IT(SS)A No. 97/Ind/2019: 13. Now we take up assessee’s appeals. In both of these appeals, the assessee has taken identical grounds, as under: ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 26 of 27 “(1) That on the facts & in the circumstances of the case & in law, the initiation of proceedings u/s.153C and the notice issued under the said section do not satisfy the judicial requirement of the law and, therefore, the assessment made u/s 153C r.w.s. 143(3) is unlawful and without jurisdiction and, therefore, be cancelled. (2) That on the facts & in the circumstances of the case & in law, the A.O. has not specified that, who is the specific searched person, in whose case the satisfaction was recorded by the A.O. of the said searched person for the purpose of initiating proceedings u/s.153C and hence in absence of such satisfaction note, the assessment is unlawful and without jurisdiction hence be cancelled. (3) That on the facts & in the circumstances of the case & in law, the initiation of the proceedings u/s. 153C are not in accordance with the law laid down by Supreme Court in the case of CIT Vs. Calcutta Knitwares reported in 362 ITR 673/691 (SC) & M.P. High Court in the case of CIT Vs. Mechman reported in 26 ITJ 93 (M.P) and CBDT Circular No. 24/2015 dated 31.12.2015, hence the said proceedings are bad in law and without jurisdiction and, therefore, the assessment made in pursuant to such proceedings be cancelled (4) That on the facts & in the circumstances of the case & in law, no incriminating paper/document was found with the searched person relating to the assessee and, therefore, the initiation of proceedings u/s.153C is bad in law and without jurisdiction hence the assessment made u/s.153C be kindly cancelled. (5) That on the facts & in the circumstances of the case & in law, the land purchase deeds of the assessee, found with the searched person, are not an incriminating material/document and, therefore, assessment made u/s.153C is bad in law and without jurisdiction and, therefore, the same be cancelled. (6) That on the facts & in the circumstances of the case & in law, the levy of interest u/s.234A. 234B & 234C are unlawful and unjustified and hence be cancelled.” 14. In foregoing paragraphs, we have already upheld the orders of learned CIT(A) by dismissing the Revenue’s Appeals. Resultantly, the assessee’s appeals have become infructuous. Even the Ld. AR has also requested to treat the assessee’s appeals as academic if the revenue’s appeals fail. In that view of the matter, the appeals of assessee are dismissed, being infructuous. ITA No.96 & 97/Ind/2019 and 111 & 112/Ind/2019 Sagar Manufacturing (P) Ltd. A.Y. 2011-12 & 2012-13 Page 27 of 27 15. In the final result, the appeals of revenue are dismissed. The appeals of assessee are also dismissed, being infructuous. Order pronounced as per Rule 34 of I.T.A.T. Rules 1963 on 31.08.2022. Sd/- Sd/- (MADHUMITA ROY) (B.M. BIYANI) Judicial Member Accountant Member Indore, दनांक /Dated : 31.08. 2022 Patel/ Sr. P.S. Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore 1. Date of taking dictation 19.7.22 2. Date of typing & draft order placed before the Dictating Member 20.7.22 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the fair order is placed before the Dictating Member for pronouncement 5. Date on which the file goes to the Bench Clerk 6. Date on which the file goes to the Head Clerk 7. Date on which the file goes to the Assistant Registrar for signature on the order 8. Date of dispatch of the Order