SHRI SUSHIL GOLECHA, Ujjain V. THE ACIT 1(1), Ujjain

ITSSA 162/IND/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8848 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 17-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Loose papers; Document seized; Opportunity of cross examination; Application of stay; Third party statement; Documents seized
• Section: 143(3); 153A; 148

Judgement Text

[IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS.162/IND/2016 ASSESSMENT YEAR: 2010-11 SHRI SUSHIL KUMAR GOLECHA PROP. M/S. GOLECHA & COMPANY 57-58, SUBHASH MARG, BADNAGAR DIST. UJJAIN (M.P.) / VS. ACIT - 1(1) UJJAIN ( APPELLANT ) ( REVENUE ) P.A. NO. AHTPG5128M APPELLANT BY SHRI PAVAN VED, A.R. RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 27.03.2019 DATE OF PRONOUNCEMENT: 08.04.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), U JJAIN, M.P. DATED 2.5.2016 PERTAINING TO THE ASSESSMENT YEAR [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 2 2010-11. THE ASSESSEE HAS RAISED FOLLOWING REVISED GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) WAS NOT COMPETENT TO TAKE A VIEW DIFFERENT FROM THE BINDING DECISIONS OF HON'BLE SC/HC AS WRITTEN B Y CIT(A), HIMSELF IN HIS ORDER. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF RS.4 LAKHS MADE BY THE LAO; DESPITE VARIOUS SUBMISSIONS MADE BY APP ELLANT AND DISCUSSED BY LEARNED CIT(A) IN HIS ORDER. 3. SINCE THE LEARNED CIT(A) HAS NOT FOLLOWED BINDING D ECISION OF HON'BLE SUPREME COURT, HENCE COST OF THIS APPEAL BE ALLOWED U/S 254(2B) OF IT ACT. 4. ADDITIONAL GROUND NOW BEING RAISED; INITIATION OF P ROCEEDINGS U/S 148 IS VOID AB INITIO. 5. PRAYER FOR INTERIM RELIEF: SINCE THE CASE OF THIS A PPEAL ARE SQUARELY COVERED BY HON'BLE SC DECISION IN THE CASE OF CALCU TTA KNITWEAR AND SINCE ON IDENTICAL GROUND, STAY HAS BEEN GRANTED BY HON'BLE ITAT IN EARLIER TWO YEARS, HENCE IT IS PRAYED THAT STAY OF DEMAND FOR THIS YEAR ALSO BE GRANTED. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT AS PER THE ASSESSMENT ORDER THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE INCOME TA X ACT, 1961 (HEREINAFTER CALLED AS THE ACT) DATED 17.12.2013 . IN RESPONSE THERETO, THE ASSESSEE FILED A RETURN OF INCO ME DECLARING TOTAL INCOME AT RS.1,80,870/-. THEREAFTER, T HE A.O. PROCEEDED TO FRAME ASSESSMENT, THEREBY THE A.O. [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 3 MADE AN ADDITION OF RS.4 LAKHS. THE BASIS OF ADDITION B Y THE A.O. WAS THAT SHRI NILESH AJMERA HAD BORROWED MONEY IN CASH FROM THE ASSESSEE. THE A.O. MADE ADDITION U/S 69D OF THE ACT. AGGRIEVED BY THIS, THE ASSESSEE PRE FERRED AN APPEAL BEFORE LD. CIT(A) TAKING VARIOUS GROUNDS. HOWEVER, THE LD. CIT(A) SUSTAINED THE FINDING OF TH E A.O. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE TH IS TRIBUNAL. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSMENT SO FRAMED IS EX-FACIE BAD IN LAW. H E CONTENDED THAT THE A.O. PROCEEDED TO INITIATE PROCEED INGS U/S 153 OF THE ACT. THEREAFTER, WITHOUT RECORDING SATISFACTION U/S 148 OF THE ACT PROCEEDED TO REOPEN T HE ASSESSMENT AND FRAMED ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT. HE CONTENDED THAT THE SATISFACTION RECORD ED U/S 153 OF THE ACT CANNOT BE SUPER IMPOSED AS THE SATISFACT ION RECORDED U/S 148 OF THE ACT. HE CONTENDED THAT THE [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 4 AFORESAID PROVISION OPERATE IN TWO DIFFERENT FIELDS. HE SUBMITTED THAT THE ISSUE GOES TO THE ROOT OF THE EXE RCISING JURISDICTION BY THE ASSESSING AUTHORITY. IN SUPPORT OF THESE AVERMENTS, LD. COUNSEL DREW OUR ATTENTION AT THE PAPER BOOK PAGES NOS.1 & 2, WHEREIN SATISFACTION RECORDED U/ S 153A OF THE ACT IS ENCLOSED. LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT EVEN IF IT IS ASSUMED WITHOUT PREJUDIC E TO THE SUBMISSIONS MADE HEREIN BEFORE THAT IT WAS AN ERRO R ON THE PART OF THE A.O., BUT SUCH ERROR REMAINED UN-RATIF IED. NOW THE ASSESSING OFFICER CANNOT TAKE SHELTER U/S 292B OF THE ACT. HE SUBMITTED THAT SUCH ERROR IS UN-RECTIFI ED. 4. LD. D.R. OPPOSED THE SUBMISSIONS OF THE LD. COUN SEL FOR THE ASSESSEE AND SUPPORTED THE ORDER OF THE AUTHOR ITIES BELOW. LD. CIT(DR) SUBMITTED THAT THE ASSESSEE IS I N RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT WHICH WAS ISSUED ON 17.12.2013 FILED HIS RETURN OF INCOME ON 27.12.2013 DECLARING INCOME AT RS.1,80,870/-. THEREA FTER, [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 5 THE ASSESSEE PARTICIPATED INTO PROCEEDINGS AND DID NOT RAISE ANY OBJECTION IN THIS REGARD. LD. CIT (DR) SUBM ITTED THAT HENCE THE ASSESSEE WAIVED OFF HIS RIGHT TO MAKE AN OBJECTION. LD. CIT(DR) SUBMITTED THAT THE OBJECTION RELATED TO JURISDICTION SHOULD BE RAISED AT THE EARLIEST POIN T OF TIME. LD. CIT(DR) SUBMITTED THAT THE ASSESSEE MISCHIEVOUSLY DID NOT OBJECT TO THE PROCEEDINGS U/S 148 OF THE ACT AND NOW BEFORE THIS TRIBUNAL BY WAY OF ADDITIONAL GROUND, THE ASSESSEE HAS RAISED THE GROUND RELATED TO LEGALITY OF REOPENING. LD. D.R. VEHEMENTLY ARGUED THAT ANY TECHNI CAL LAPSE BY THE ASSESSING AUTHORITY SHOULD NOT OVER RIDE THE PRINCIPLE OF SUBSTANTIAL JUSTICE. LD. D.R. PRAYED TH AT THE GROUND SO RAISED MAY BE DISMISSED WITH COST. IN REJ OINDER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ANYTHING WHICH HAS BEEN DONE WRONGLY AND IN ILLEGAL MANNER CANNOT BE ALLOWED TO BE CONTINUED. THE AB-INITIO ACTION OF T HE A.O. [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 6 IS WITHOUT AUTHORITY OF LAW. THEREFORE, SAME BECOME S VOID IN THE EYES OF LAW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE WHICH REQUIRES ADJUDICATION IS WHETHER THE PROCEEDINGS FOR REOPENING HAS BEEN INITIATED IN ACCORDANCE WITH LAW OR NOT. ADMITTE DLY, THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 148 OF THE ACT. THE RELEVANT PROVISIONS OF THE ACT ARE REPRODUC ED FOR THE SAKE OF CLARITY. SECTION 147: [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 7 [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 8 SECTION 148: 6. FROM THE CONJOINT READING OF THE ABOVE PROVISIONS, IT IS CLEAR THAT THE SATISFACTION BY THE A.O. IS A CONDITION PRECEDENT FOR ISSUING NOTICE U/S 148 OF THE ACT. I N THE ABSENCE OF SATISFACTION BY THE A.O., NOTICE ISSUED U/S 148 OF THE ACT WOULD NOT BE VALID. IN THE PRESENT CASE, THE SATISFACTION IS RECORDED BY THE A.O. READS AS UNDER: 1. DURING THE COURSE OF ASSESSMENT PROCEEDING IN THE CASE OF SHRI NILESH AJMERA DIRECTOR/SHAREHOLDER OF M/S. PHOENIX DEVCONS PVT. LTD., INDORE FOR THE ASSESSMENT YEAR 2008-09, IT IS FOUND THAT THE ASSES SEE HAS BORROWED MONEY ON HUNDI FROM ONE SHRI SUNIL GOLECHA, FURTHER, STATEME NT OF SHRI PANKAJ JOSHI, EMPLOYEE OF SHRI NILESH AJMERA (ONE OF THE MAIN ASS ESSEE COVERED IN THE SATELLITE GROUP) RECORDED ON OATH ON 21.11.2011, IT HAS BEEN ESTABLISHED THAT SHRI NILESH AJMERA HAD BORROWED MONEY IN HUNDI IN CASH FROM SHR I SUSHIL GOLECHA OF [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 9 BARNGAR AND AS PER THEIR RECORD THIS AMOUNT IS RS.1 2,50,000/- IN A.Y. 2008-09, RS.48,00,000/- IN A.Y. 2009-10 AND RS.4,00,000/- IN A.Y. 2010-11. 2. ANALYSIS OF SEIZED DOCUMENTS REFLECT THAT AT PAG E 165 OF LPS A/23 CONTAINS THE DETAILS OF HUNDI AMOUNT RECEIVED, PERIOD, INTER EST RATE ALONG WITH DALALI. FURTHER, PAGE 164 GIVE DETAILS OF POST DATED SCRUTI NY CHEQUES ISSUED BY THE ASSESSEE, THE HUNDI DEALER SHRI SUSHIL GOLECHA AGAI NST THE RESPECTIVE HUNDI BORROWING AS SCRUTINY CHEQUES. TO SUBSTANTIATE FUR THER, THE REPLY OF THE BRANCH MANAGER OF BANK OF RAJASTHAN (PRESENTLY ICICI BANK) RECEIVED WHICH CONFIRMED THAT ALL THE CHEQUES WERE FROM THE CHEQUE BOOK ISSU ED TO SHRI NILESH AJMERA AGAINST HIS JOINT ACCOUNT NO.1460101427487 MAINTAIN ED WITH HIS WIFE SMT. SONALI AJMERA. THE MANAGER FURTHER CONFIRMED THAT THESE C HEQUES WERE UNUSED MEANING THEREBY THAT THESE CHEQUES WERE NOT PRESENTED BEFOR E THE BANK. THAT ASSERTION THUS ESTABLISHES THAT THESE WERE SECURITY CHEQUES M EANT FOR SECURITY AGAINST THE CASH HUNDI LOAN GIVEN TO THE ASSESSEE. IN VIEW OF THE FOREGOING IT IS ESTABLISHED BEYOND DOUBT THAT SHRI NILESH AJMERA HAS TAKEN LOAN ON HUNDIS IN CASH FROM SHRI SUSHIL GOLECHA. 3. THE ABOVE BORROWING GETS FURTHER ESTABLISHED BY OTHER FINDINGS VIZ. NOTING AT S.NO.3 OF PAGE 164 OF LPS A/23 THAT HUNDI OF RS. 15000/- PAID AS ON 15.5.2009 IN CASH WHICH IS FOUND FACTUALLY CORRECT DUE TO TH E CASH VOUCHER RELATED TO THIS TRANSACTION ALSO SEIZED FROM THE SAME PREMISES AND REFERRED AS PAGE 27 OF LPS 50 THE IMPORTANT UNDISPUTED FACTS EMERGING FROM THE AF ORESAID SEIZED DOCUMENTS ESTABLISHES THAT (A) DATE MENTIONED IS 15.4.2009 (B ) AMOUNT HAS BEEN PAID TO SHRI SUSHIL GOLECHA (C) PAID IN CASH AND (D) PAYMENT IS AGAINST REPAYMENT OF HUNDI LOAN. SAME ENTRY IS ALSO MENTIONED ON PAGE 141 OF LPS A/23. SIMILARLY OTHER ENTRY AT PAGE 142 OF LPS A/23 ARE FOUND TO BE ACTUA L TRANSACTION AS IS EVIDENT FOR THE CASH VOUCHER ON PAGE 18 OF LPS 50. ANOTHER ENT RY AT PAGE 140 OF LPS A/23 TOGETHER WITH CASH VOUCHER IN PAGE 56 OF LPS 50 PRO VES THAT THESE ARE ACTUAL TRANSACTIONS. 4. FURTHER NOTHING OF SEIZED DIARY REFERRED TO AS B S-8 REFLECT THAT TABLE DRAWN AT PAGE 165, POST DATED SECURITY CHEQUES AS D ETAILED ON P 165 MATCHES WITH CORRESPONDING ENTRIES AT PAGE 128, PAGE 82 & P AGE 120 OF ANNEXURE BS-8 WHICH FURTHER PROVES HUNDI BORROWINGS FROM SHRI SUS HIL GOLECHA. THUS, IN VIEW OF THE FOREGOING IT IS WELL ESTABLISHED FACT BEYOND DOUBT THAT SHRI NILESH AJMERA HAS TAKEN LOAN ON HUNDIS IN CASH FROM SHRI SUSHIL G OLECHA. 5. AT PARA C OF CHAPTER 5 OF THE APPRAISAL REPORT I N THE SATELLITE GROUP ACTION UNDER SECTION 153 IS PROPOSED IN THE CASE OF SHRI SUSHIL GOLECHA, BARNGAR 153 IS PROPOSED IN THE CASE SUSHIL GOLECHA BARNAGAR AS THE MAOUNTS ADVANCED BY HIM HUNDI MAY REPRESENTS HIS UNACCOUNTED MONEY, I H AVE DULY EXAMINED THE SEIZED DOCUMENTS VIZ. LPS A/23 (PAGE 140, 141, 142, 162, 164 & 165) LPS 50 (PAGE 27) AND BS-8 (PAGE 56, 82, 120 & 128), COPIES OF WHICH WERE RECEIVED THROUGH HON'BLE CIT, UJJAIN ON 1.4.2012. I HAVE VE RIFIED THE FACTS FROM THE ITRS [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 10 FURNISHED BY THE ASSESSEE. I AM SATISFIED THAT FOR THE AFORESAID REASONS AS DISCUSSED ABOVE FURTHER ACTION UNDER SECTION 153C I S ATTRACTED FOR ASSESSMENT OF HIS TOTAL INCOME IN ACCORDANCE WITH LAW. 7. THERE IS NO DOUBT THAT THE ABOVE SATISFACTION NOTE BY THE A.O. RELATES TO INITIATION OF PROCEEDINGS U/S 153 C OF THE ACT. IT NOWHERE STATES THAT ANY INCOME CHARGEABLE TO T AX HAS ESCAPED ASSESSMENT. THUS, THE SATISFACTION IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 147 OF THE ACT. NOW THE QUESTION ARISES WHETHER THIS LAPSE CAN BE IGNOR ED IN VIEW OF THE SECTION 292B OF THE ACT? SECTION 29 2B OF THE ACT READS AS UNDER: [RETURN OF INCOME, ETC., NOT TO BE INVALID ON CERT AIN GROUNDS. SECTION 292B. NO RETURN OF INCOME, ASSESSMENT, NOT ICE, SUMMONS OR OTHER PROCEEDINGS, OR MADE OR ISSUED OR TAKEN IN PURSUANC E OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEE DING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEE DING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE I NTENT AND PURPOSE OF THIS ACT.] 8. THE LAW IS WELL SETTLED WHERE THE ISSUE OF JURIS DICTION OF ASSESSING AUTHORITY IS CONCERNED, IF THE JURISDICTION ASSUMED IS NOT IN ACCORDANCE WITH LAW, THEN IT CANNOT B E CURED OR IGNORED UNDER THE PROVISIONS OF SECTION 29 2B OF [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 11 THE ACT. IN OUR CONSIDERED VIEW, THE ASSUMPTION OF JURISDICTION WOULD BEGIN FROM THE RECORDING OF SATIS FACTION BY THE A.O. THAT CERTAIN INCOME HAS ESCAPED ASSESSMENT PERTAINING TO A PARTICULAR ASSESSMENT YEAR. ADMITTEDLY, THE ASSESSEE HAS NOT CHALLENGED THE VALIDITY OF NOTICE U/S 148 OF THE ACT. THE ASSESSEE WAS DULY SUPPLIED SATISFACTIO N RECORDED U/S 153C OF THE ACT. THE ASSESSEE CONSIDER ED IT AS A SATISFACTION RECORDED U/S 148 OF THE ACT AND FILED RETURN IN RESPONSE THERETO. THIS FACT IS NOT CONTRO VERTED BY THE ASSESSEE. IT IS ALSO A FACT THAT THE MANNER IN WHICH THE SATISFACTION U/S 147 OF THE ACT IS REQUIRED TO BE RECO RDED IS NOT PRESCRIBED UNDER THE LAW. THEREFORE, CONSIDERI NG THE TOTALITY OF THE FACTS AND UNDER THE PECULIARITY OF THE FACTS OF THE PRESENT CASE, IN OUR CONSIDERED VIEW SECTION 292 B OF THE ACT COMES TO RESCUE OF THE ASSESSING OFFICER. HENCE, THE GROUNDS OF THE ASSESSEES APPEAL IS HEREBY DISMISS ED. [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 12 9. GROUND NO.2 IS AGAINST CONFIRMING ADDITION OF RS.4 LAKHS. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADD ITION AND CONFIRMING THE SAME. LD. COUNSEL SUBMITTED THAT T HE ADDITION HAS BEEN PURELY MADE AND SUSTAINED ON THE BASI S OF THE THIRD PARTY STATEMENT. HE SUBMITTED THAT THE ASSESSEE HAD CATEGORICALLY STATED THAT HE HAD NOT GIVEN AN Y LOAN OR ANY TRANSACTION IN THE NATURE OF HUNDI WITH SHRI NILESH AJMERA. HE FURTHER SUBMITTED THAT THE TRANSACTI ON RECORDED IN THE DIARY OF THIRD PARTY CANNOT BE ONLY BAS IS FOR MAKING ADDITION IN THE HANDS OF THE ASSESSEE. LD. COUN SEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGEMENT O F THE HON'BLE JURISDICTIONAL HIGH COURT RENDERED IN TH E CASE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-1 VS. S HRI PUKHRAJ SONI IN INCOME TAX APPEAL NO.53 OF 2017. 10. ON THE CONTRARY, LD. D.R. OPPOSED THESE SUBMISSI ONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 13 11. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ADDITION HAS BEEN MADE ON THE BASIS OF THE STATEMENT OF EMPLOYEE OF ONE SHRI NILESH AJMERA RECORDED IN RELATION TO THE CERTAIN TRANSACTION RECORDE D IN THE DIARY OF SHRI NILESH AJMERA. THE ASSESSEE WAS NOT CONFRONTED WITH THE EMPLOYEE OF SHRI NILESH AJMERA N OR ANY CROSS EXAMINATION OF NILESH AJMERA OR HIS EMPLOYEE WAS GIVEN TO THE ASSESSEE. THE ADDITION IS BASED ON A DI ARY OF A THIRD PARTY. HON'BLE JURISDICTIONAL HIGH COURT IN TH E CASE OF PCIT-1 VS. PUKHRAJ SONI (SUPRA) AFTER CONSIDERING THE VARIOUS JUDGEMENTS OF THE HON'BLE APEX COURT HAS HELD AS UNDER: 7. THE APEX COURT HAS TAKEN INTO ACCOUNT IN SIMILA R CIRCUMSTANCES THE INCRIMINATING MATERIALS IN FORM O F RANDOM SHEETS, LOOSE PAPERS, COMPUTER PRINTS, HARD DISK AND PEN DR IVE ETC. AND HAS HELD THAT THEY ARE INADMISSIBLE IN EVIDENCE, AS THE Y ARE IN THE FORM OF LOOSE PAPERS. [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 14 8. IN THE PRESENT CASE ALSO ENTRIES FOUND DURING SE ARCH AND SEIZURE WHICH ARE ON LOOSE PAPERS ARE BEING MADE TH E BASIS TO ADD INCOME OF THIS RESPONDENT. 9. RESULTANTLY, IN LIGHT OF THE SUPREME COURT JUDGE MENTS, REFERRED ABOVE, NO CASE FOR INTERFERENCE IS MADE OU T WITH THE ORDER PASSED BY THE TRIBUNAL. MOREOVER NO SUBSTANTIAL QU ESTION OF LAW ARISES IN THE PRESENT APPEAL, THE APPEAL IS DISMISS ED. 12. FURTHER, FROM THE ABOVE JUDGEMENT OF THE HON'BL E JURISDICTIONAL HIGH COURT, IT IS CLEAR THAT SUCH EVIDE NCE IN THE NATURE OF DIARY OR LOOSE PAPERS WHICH ARE NOT MAINTAINED IN THE COURSE OF BUSINESS BY THE THIRD PART Y WOULD NOT BE A GOOD PIECE OF EVIDENCE. THEREFORE, W E ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION WITHOUT CONFRONTING THE SAME WITH THE ASSESSEE AND GIVING OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. THIS GROUND OF THE ASSESSEE IS ALLOWED. T HE A.O. IS DIRECTED TO DELETE THIS ADDITION. 13. GROUND NO.3 IS IN RESPECT OF AWARDING OF COST. WE DO NOT SEE ANY MERIT IN THE SUBMISSION OF THE LD. COUNS EL FOR [IT(SS)A NO.162/IND/2016] [SHRI SUSHIL GOLECHA UJJAIN 15 THE ASSESSEE. HENCE, THIS GROUND OF THE ASSESSEES AP PEAL IS REJECTED. 14. GROUND NO.4 IS RELATED TO GRANTING OF STAY. AS W E HAVE ALREADY DELETED THE ADDITION, THIS GROUND HAS BECOME INFRUCTUOUS. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 08 . 04.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 08/04/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE