SHRI Kamta Prasad Dwivedi, Bhopal V. THE ACIT 1(1), Bhopal

ITSSA 185/IND/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0562 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: M K SHARMA
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Loose papers; Source of fund; Corroborative evidences; Documents seized
• Section: 143(3); 153A

Judgement Text

, , 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.182, 183, 184, 185 &ITA NO.1013/IND/2016 ASSESSMENT YEARS: 2004-05, 2007-08, 2008-09, 2009-10 & 2010-11 / VS. KAMTA PRASAD DWIVEDI, 19, POOJA COLONY, NEELBAD, BHOPAL (APPELLANT) ACIT - 1(1), BHOPAL (REVENUE ) P.A. NO. AEFPD3159N APPELLANT BY SHRI M.K. SHARMA, AR RESPONDENT BY SHRI LAL CHAND, DR DATE OF HEARING: 29.08.2018 DATE OF PRONOUNCEMENT: 19.09.2018 / O R D E R PER KUL BHARAT, J.M.: THESE FIVE APPEALS PERTAINING TO THE ASSESSMENT YEARS 2004-05, 2007-08, 2008-09, 2009-10 & 2010- 11 ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF L D. 2 CIT(A)-2, BHOPAL DATED 9.6.2016. ALL THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OFF B Y WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE IT(SS)A NO.182/IND/2016, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS O F APPEAL: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.1,00,000/-. 2. THE ADDITION OF OPENING CASH BALANCE SHOWS IN TH E CASH FLOW STATEMENT TO THE INCOME OF APPELLANT CANN OT BE MADE, AS THERE WAS NO EVIDENCE ON RECORD TO SHOW TH AT A SUM OF RS.1,00,000/- WAS OUT OF ANY UNDISCLOSED INC OME OF THE APPELLANT AND NO PROPER REASON HAS BEEN GIVE N FOR REJECTION OF OPENING CASH BALANCE SHOWN IN THE CASH FLOW STATEMENT. 3. NO ADDITION CAN BE MADE FOR THE OPENING CASH BALANCE SHOWN IN THE CASH FLOW STATEMENT WHEN THE T OTAL CASH FOUND DURING THE SEARCH HAS ALREADY BEEN ADDED TO THE INCOME OF THE APPELLANT IN THE YEAR OF SEARCH. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AL TER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DE CIDED, WITH THE PERMISSION OF HONOURABLE BENCH. 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAINST CONFORMATION OF ADDITION OF RS.1 LAKH. FAC TS IN BRIEF ARE THAT A SEARCH ACTION WAS CARRIED OUT B Y 3 THE REVENUE IN THE GROUP OF SHRI PUSHPENDRA MISHRA. THE PREMISES OF THE ASSESSEE WAS ALSO SEARCHED. THE A.O. ISSUED NOTICE U/S 153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). IN RESPONSE THERETO, THE ASSESSEE STATED THAT THE RETU RN FILED ORIGINALLY MAY BE TREATED AS THE RETURN FILED IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT. THE A. O. THEREAFTER, PROCEEDED TO MAKE ASSESSMENT U/S 153A R.W.S. 153(3) OF THE ACT. THE A.O. WHILE FRAMING T HE ASSESSMENT DID NOT ACCEPT THE CASH FLOW STATEMENT FURNISHED BY THE ASSESSEE AND PROCEEDED TO MAKE ADDITION OF RS.1 LAKH. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO ALSO SUSTAINED THE ADDITION. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. AND THE LD. CIT(A) FAILED TO APPRECIATE THE FACTS IN RIGHT PERSPECTIVE . 4 HE SUBMITTED THAT THE ADDITION SO SUSTAINED WAS NOT MADE ON THE BASIS OF ANY INCRIMINATING MATERIAL. I T WAS MERELY ON THE BASIS OF NOT ACCEPTING THE CASH FLOW STATEMENT. LD. COUNSEL SUBMITTED THAT THE ASSESSEE IS A GOVERNMENT EMPLOYEE AND IT CANNOT BE IN IOTA OF IMAGINATION THAT HE WAS NOT SAVING ANY AMOUNT. HE SUBMITTED THAT THE AMOUNT SO DECLARED AS ON 1.4.2003 WAS OUT OF THE PAST SAVINGS. THE A.O. THUS WITHOUT ANY BASIS MADE ADDITION. 4. PER CONTRA, LD. D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAS BEEN CHANGING HIS STAND IN RESPECT OF THE CASH FOUND DURING THE SEARCH. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. SO FAR, THE CONTENTION OF THE ASSESSEE IN RESPECT OF THE CASH 5 FOUND DURING THE SEARCH, IT WAS STATED THAT THE AMOUNT HAS BEEN TAKEN FROM SHRI ANIRUDH DWIVEDI, KRISHNA DWIVEDI, GANESH PRASAD DWIVEDI, THE ASSESSEE AND HIS WIFE. FOR THE SAKE OF CLARITY, TH E FINDING OF THE A.O. IS AS UNDER: 8. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE H AS SUBMITTED THE CASH FLOW STATEMENT OF THE ASSESSEE S TARTING FROM 01.04.2003. THE OPENING CASH BALANCE AS ON 01.04.2 003 HAS BEEN SHOWN TO BE RS.1,00,000/-. NO EXPLANATION ABOUT TH E SOURCE OF WHICH HAS BEEN GIVEN BY THE ASSESSEE. IT IS IMPORT ANT TO MENTION HERE THAT DURING THIS TIME THE ASSESSEE HAD BANK AC COUNTS TO KEEP ANY EXTRA CASH IF ANY AVAILABLE WITH HIM IN THE BAN K ACCOUNTS. IN FACT THE ASSESSEE SEEMS TO BE HAND TO MOUTH ENTITY AS THE CASH BALANCE IN THE BANK ACCOUNT WAS NEVER SUBSTANTIAL. FURTHER, THE SOURCES OF INCOME OF THE ASSESSEE AROUND 1.4.2003 D O NOT IN ANY WAY JUSTIFY THE CASH BALANCE OF RS.1,00,000/- W2ITH THE ASSESSEE. FOR EXAMPLE THE TOTAL INCOME OF ASSESSEE FOR F.Y. 2 003-04 IS RS.1,16,929/- ONLY. IN FACT, IT IS THIS OPENING CA SH BALANCE ON THE BASIS OF WHICH THE ASSESSEE HAD TRIED TO JUSTIFY TH E VARIOUS EXPENSES MADE BY IT. THEREFORE, THE OPENING CASH BALANCE OF RS.1,00,000/- WITH THE ASSESSEE REMAINS UNEXPLAINED AND IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE A.Y. 2004-05. PENAL TY PROCEEDINGS U/S 271(1)(C) ARE ALSO INITIATED FOR FURNISHING INA CCURATE PARTICULARS OF THE INCOME FOR THE A.Y. 2004-05. 8.1 ON PERUSAL OF THE CASH FLOW STATEMENT SUBMITTE D BY THE ASSESSEE IT IS FOUND THAT THE OPENING CASH BALANCE OF RS.1,00,000/- AS ON 1.4.2003 GRADUALLY INCREASED TO RS.4,36,000/- AS ON 1.4.2004 WHICH FURTHER INCREASED TO RS.4,15,000/- AS ON 1.4. 2005 WHICH INCREASED TO RS.5,00,000/- AS ON 31.3.2006 WHICH FU RTHER INCREASED TO RS.5,25,000/- AS ON 31.3.2007. THE UTILISATION OF THE CASH BALANCE STARTED TAKING PLACE IN F.Y. 2007-08 ONLY. DURING THIS YEAR CASH OF RS.3,15,000/- WAS PAID TO AKSHYA SHAKTI SHI KSHA SAMANJ EVAM KALYAN SAMITI ON 3.11.2007. BESIDES THIS PAYM ENTS OF RS.39,500/- AND 30,000/- WERE MADE TO ADUNIK GRIH N IRMAN SAMITI ON 28.7.2007 AND 17.3.2008 RESPECTIVELY. THIS REDU CED THE CASH 6 BALANCE AS ON 1.4.2008 TO RS.1,27,118/-. FINALLY, THE CLOSING BALANCE AS ON 31.3.2010 WAS SHOWN TO BE RS.30,508/- . 8.2. THIS CASH FLOW STATEMENT OF THE ASSESEE HAS T O BE SEEN IN THE LIGHT OF THE FOLLOWING FACTS:- 1. THE ASSESSEE DOES NOT MAINTAIN ITS BOOKS OF ACCOUNT S OR EVEN DETAILS OF DAY TO DAY EXPENSES. 2. IN FACT THE ASSESSEE DID NOT EVEN FILE HIS RETURNS OF INCOME REGULARLY. 3. IN ABSENCE OF THE BOOKS OF ACCOUNTS OR DETAILS OF D AY TO DAY EXPENSES IT IS NOT CLEAR HOW IS IT POSSIBLE TO PREPARE SUCH CASH FLOW STATEMENT AT THE TIME OF ASSESSMENT PROCEEEDINGS. 4. THE CASH FLOW STATEMENT SHOWS HUGE CASH BALANCE OF LAKHS OF RUPEES FOR SEVERAL YEARS WITH THE ASSESSEE , BEYOND HIS SOURCE OF INCOME AND STATUS OF LIVING. 5. THE ASSESSEE IS A GOVERNMENT SERVANT AND IS WELL CONVERSANT WITH THE BANKING CHANNELS. THE ASSESSEE ALSO MAINTAINS REGULAR BANK ACCOUNTS, FROM WHICH IT IS S HOWING WITHDRAWALS FOR DAY TO DAY EXPENSES. IT IS UNBELIE VABLE THAT ON ONE HAND THE ASSESSEE HAS CASH BALANCE OF L AKHS OF RUPEES WITH HIM AND ON THE OTHER HAND HE WOULD M AKE WITHDRAWALS OF FEW HUNDRED OR THOUSANDS OF RUPEES F ROM THE BANKS. 6. THE ASSESSEE HAS VERY MEAGER INCOME ALL THROUGH HIS LIFE AND HIS SOURCES OF INCOME, HIS LIFE STYLE PARTICULA RLY HOUSEHOLD EXPENSES DO NOT JUSTIFY HIS KEEPING CASH BALANCE OF LAKHS OF RUPEES AT HOME FOR YEARS TOGETH ER FOR NO PURPOSE. 7. THE CASH FLOW STATEMENT DOES NOT SHOW ANY WITHDRAWA LS FOR HOUSE HOLD EXPENSES. 8. FURTHER THE CASH FLOW STATEMENT DOES NOT ACCOUNT FO R CERTAIN RECEIPTS RECEIVED BY HIM FROM PRAKHAR CONST RUCTION BUILDER AND DEVELOPERS AS DISCUSSED LATER IN THIS O RDER. 8.3 THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCU MSTANCES IT IS ESTABLISHED AND HELD THAT THE CASH FLOW STATEMENT S UBMITTED BY THE ASSESSEE IS NOTHING BUT A SELF SERVING DOCUMENT AND THEREFORE DESERVES TO BE REJECTED. ON DETAILED EXAMINATION O F THE CASH FLOW STATEMENT OF THE ASSESSEE IT IS APPARENT THAT FOR T HE FOLLOWING EXPENSES/PAYMENTS THERE IS NO IDENTIFIABLE SOURCE T O GENERATE SUCH CASH IN THE HANDS OF THE ASSESSEE. THEREFORE, THE SOURCE OF FOLLOWING CASH EXPENSES MADE BY THE ASSESSEE REMAINS UNEXPLAI NED. 7 SL.NO. DATE AMOUNT PURPOSE 1. 05.12.2006 42,488 PLOT BOOKING IN ADHUNIK GRIHA NIRMAN SAMITI 2. 05.03.2007 31,500 PLOT BOOKING IN ADHUNIK GRHA NIRMAN SAMITI 3. 18.06.2007 18,000 PLOT BOOKING IN ADHUNIK GRHA NIRMAN SAMITI 4. 28.07.2007 39,500 PLOT BOOKING IN ADHUNIK GRHA NIRMAN SAMITI 5. 03.11.2007 3,15,000 PAID TO AKSHYA SHAKTI SHIKSHA EVAM SAMAJ KALYAN SAMITI BHOPAL IN CASH 6 17.03.2008 30,000 PLOT BOOKING IN ADHUNIK GRHA NIRMAN SAMITI 8.4 THEREFORE, THESE AMOUNT REPRESENT UNEXPLAINED I NVESTMENTS BY THE ASSESSEE AND THE SAME ARE HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR RESPECTIVE ASSESSMENT YEARS. A SUMMARY OF THE YEAR WISE ADDITION MADE TO THE INCOME OF THE ASSESSEE IS AS UNDER: ASSESSMENT YEAR AMOUNT (IN RS.) 2007-08 73,988/- 2008-09 4,02,500/- 6. FROM THE ABOVE FINDING OF THE ASSESSING OFFICER, I T IS CLEAR THAT THE SAME IS MORE ON PRESUMPTION THAN ON ANY INCRIMINATING MATERIAL. IT IS UNDISPUTED FACT THAT THE ASSESSEE HAS BEEN WORKING IN A GOVERNMENT DEPARTMENT FOR A LONG PERIOD OF TIME, THEREFORE, IT CANNOT BE PR ESUMED 8 THAT HE WAS NOT HAVING ANY CASH ON HAND. IN OUR VIEW, RS.1 LAKH AS CLAIMED BY THE ASSESSEE IS REASONABLE AS A CASH ON HAND AS ON 1.4.2003. WE HOLD ACCORDINGLY. THI S GROUND OF THE ASSESSEE IS ALLOWED. 7. NOW, WE TAKE UP IT(SS)A NO.183/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING ADDITION OF RS.73,988/-. 2. THAT THE ADDITION CONFIRMED BY THE LEARNED CIT(A) A S UNEXPLAINED INVESTMENT IS NOT SUPPORTED BY ANY EVIDENCES, BUT I S PURELY BASED ON SUSPICION AND SURMISE. 3. NO ADDITION CAN BE MADE AS AN UNEXPLAINED INVESTMEN T IN A CASE, WHERE PROPER CASH FLOW STATEMENT WAS FILED BY THE A PPELLANT, AND A.O. HAS NOT FOUND ANY DEFECT IN THAT FLOW STATEMEN T. 4. THE CASH FLOW STATEMENT FILED BY THE APPELLANT CANN OT BE REJECTED MERELY ON THE BASIS OF SUSPICION OR SURMIE. 5. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED, WIT H THE PERMISSION OF HONOURABLE BENCH. 8. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING TH E ADDITION OF RS.73,988/-. LD. COUNSEL FOR THE ASSESSE E REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN 9 SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: A.Y.2007 - 08 A.O. HAS MADE ADDITION OF RS 73,988/- DURING THIS Y EAR ON ACCOUNT OF PAYMENT MADE TO ADHUNIK GRAH NIRM AN SAMITI FOR BOOKING OF PLOT WITHOUT FINDING ANY INCR EMENTING MATERIAL DURING THE SEARCH; EVEN A.O HAS N OT MENTIONED THAT SUCH ADDITION IS BASED ON ANY INCREM ENTING MATERIAL DURING THE SEARCH. IT IS SUBMITTED THAT NO MATERIAL IN RESPECT TO SUCH INVESTMENT / PAYMENT WA S FOUND DURING THE SEARCH. YOUR KIND ATTENTION IS DRAWN TO JUDGEMENT OF HONOUR ABLE BENCH INDORE IN CASE OF:- 'ANANT STEEL PVT.LTD. VIS ASSTT. COMMISSIONER OF IN COME TAX (2016)28 ITJ 47 (TRIB.SLNDARE) IN THE ITAT, WHERE IT WAS HELD THAT 'IT WAS DECIDED THAT ULS. 15 3A TO 153C OF INCOME TAX ACT 1961- NO INCRIMINATING DOCUMENTS FOUND AND SEIZED DURING SEARCH. AN ADDITIONS WERE MADE IN ASS ESSMENT ULS 153A - ASSESSEE CHALLENGED THAT ORDER - HELD - IN DY. CIT V. KALANI BROTHERS(INDORE) PVT. LTD.,(2016) 27 ITJ 286 (TRIB. - INDORE THIS ISSUE HAS BEEN DECIDED THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL OR DOCUMENTS SEIZED DURING THE COURSE OF SEARCH, TH E AO CANNOT PASS ORDER ULS 153A RLW SECTION 143(3) - FOLLOWING THAT DECISION IT HAS BEEN HELD THAT IN AB SENCE OF ANY INCRIMINATING DOCUMENT FOUND AND SEIZED DURING THE COURSE OF SEARCH, THE AO IS NOT JUSTIFY IN MAKING THE ADDITION IN NON ABATED ASSESSMENT ORDER WHILE PASSING THE ORDER ULS 153A RLW SECTION 143(3)' YOUR KIND ATTENTION IS ALSO DRAWN IN JUDGEMENTS OF ACIT:- 1. PR.COMMISSIONER OF INCOME TAX,CENTRAL-2,NEW DELHI V /S MEETA GUTGUTIA(2017)82 TAXMANN.COM 287 (HC-DELHI) 2. SHRI BASANT BANSAL VIS ACIT CENTRAL CIRCLE-ALWAR IT A NO.5341JP12012 A.Y(200B- 09) AND SHRI ROOP BANSAL VIS ACIT CENTRAL CIRCLE-ALWAR ITA NO. 7481JPI2012 A. Y(2008- 09),ITAT JAIPUR. 3. COMMISSIONER OF INCOME TAX(CENTRAL)-III VIS KABUL C HAWALA (2015)61 TAXMANN.COM 412(HC-DELHI) 4. CHETABEN J SHAH LEGAL HEIR OF JAG DISH CHANDRA K.SH AH VIS THE INCOME TAX OFFICER, WARD 10(3)- TAX APPEAL NO. 143 7 OF 2007 IN THE HIGH COURT OF GUJARAT. THE ONLY REASON GIVEN FOR MAKING SUCH ADDITION AS UNEXPLAINED EXPENDITURE IS THAT THE CASH FLOW STATEMENT FURNISHED BY THE APPELLANT IS NOT ACCEPTA BLE BY A.O. FOR FOLLOWING REASONS- 10 1. THE ASSESSEE DOES NOT MAINTAIN ITS BOOKS OF ACCOUNT S OR EVEN DETAILS OF DAY TO DAY EXPENSES 2. IN FACT THE ASSESSEE DID NOT EVEN FILE HIS RETURNS OF INCOME REGULARLY. 3. IN ABSENCE OF THE BOOKS OF ACCOUNTS OR DETAILS OF D AY TO DAY EXPENSES IT IS NOT CLEAR HOW IS IT POSSIBLE TO PREPARE SUCH CASH FLOW STATEMENT AT THE TIME OF ASSESSMENT PROCEEDINGS .. 4. THE CASH FLOW STATEMENT SHOWS HUGE CASH BALANCE OF LAKHS OF RUPEES FOR SEVERAL YEARS WITH THE ASSESSEE, BEYOND HIS SOURCE OF INCOME AND STATUS OF LIVING. 5. THE ASSESSEE IS A GOVERNMENT SERVANT AND IS WELL CO NVERSANT WITH THE BANKING CHANNELS. THE ASSESSEE ALSO MAINTAINS REGULAR BANK ACCOUNTS, FROM WHICH IT IS SHOWING WITHDRAWALS FOR DAY TO DAY EXPENSES. IT IS UNBELIEVABLE THAT ON ONE HAND THE ASSESSEE HAS CASH BALANCE THE ASSESSEE HAS VERY MEAGER INCOME ALL THROUGH HIS LIF E AND HIS SOURCE OF INCOME, HIS LIFE STYLE PARTICULARLY HOUSEHOLD EXPENSES DO NOT JUSTIFY HIS KEEPING CASH BALANCE OF LAKHS OF RUPEES AT HOME FOR YEARS TOGETHER FOR NO PURPOSE. 6. THE CASH FLOW STATEMENT DOES NOT SHOW ANY WITHDRAWA LS FOR HOUSEHOLD EXPENSES. 7. FURTHER THE CASH FLOW STATEMENT DOES NOT ACCOUNT FO R CERTAIN RECEIPTS RECEIVED BY HIM FROM PRAKHAR CONSTRUCTION BUILDER AND DEVELOPER AS DISCU SSED LATTER IN THIS ORDER. HERE WE SUBMIT THAT THE CONTENTION OF A.O. CANNOT B E ACCEPTED FOR FOLLOWING REASONS- 1. THE CASH FLOW STATEMENT WAS PREPARED FOR CASH ACCRU ALS, CASH R ECEIPTS AND CASH PAYMENTS MADE FROM 01104/2003 TO 31103/2010 SHOWING ALL THE CASH AND BANK TRANSACTION. THE CASH FLOW STATEMENT CANNOT BE REJECTED FOR THE REASON TH AT THE ASSESSEE IS NOT MAINTAINING REGULAR BOOKS OF ACCOUNTS BECAUSE, HE BEING A SALARIED PE RSON NEED NOT TO MAINTAIN ANY BOOKS OF ACCOUNT AS PER LAW. HOWEVER WHEN CASH FLOW IS PREPA RED TAKING INTO ACCOUNT ALL THE EXPENSES, INVESTMENT AND RECEIPTS. IT IS TO SHOW THE FLOW OF MONEY FOR VARIOUS PURPOSES. MERELY BECAUSE A BOOK OF ACCOUNT IS NOT MAINT AINED ON DAY TO DAY BASIS, CASH FLOW CANNOT BE REJE CTED WITHOUT FINDING A SINGLE DEFECT IN IT. IN THE GIVEN CASE, CASH FLOW STATEMENT FOR THE APPELLA NT AND HIS WIFE WERE SUBMITTED AND VARIOUS RECEIPTS AND PAYMENTS WERE DULY DISCLOSED A ND NOT EVEN A SINGLE DEFECT WAS FOUND BY A.O. IN SUCH CASH FLOW. 2. THE SECOND REASON GIVEN BY A.O. IS THAT THE ASSESSE E DID NOT FILE HIS RETURN OF INCOME REGULARLY, IS INCORRECT, AS HE WAS REGULARLY FILING THE RETURN OF INCOME AND COPY OF SUCH RETURN OF INCOME WERE FURNISHED BEFORE THE A.O. VIDE REPLY TO QUESTI ONNAIRE DATED 25109/2011. 3. THE THIRD REASON GIVEN BY A.O. IS MORE A SUSPECISIO N THAN FINDING OF A FACT. THE CASH FLOW STATEMENT IS NOTHING BUT A SUMMARY OF INFLOW AND OU TFLOW OF CASH, WHICH IS PREPARED ON BASIS OF SOURCE DOCUMENT LIKE SALARY CERTIFICATE, BANK ST ATEMENT AND SUCH OTHER STATEMENTS. IT IS NOT NECESSARY THAT APPELLANT NEED TO HAVE DAY TO DAY BO OKS OF ACCOUNTS TO PREPARE CASH FLOW STATEMENT. APPELLANT HAS A FAIR ESTIMATE OF HIS DAY TO DAY EXPENSES OR MONTHLY EXPENSES AND ACCORDINGLY; THEY ARE ACCOUNTED FOR IN CASH FLOW ST ATEMENT. THEREFORE SUSPECISION CANNOT BE A REASON FOR REJECTION OF CASH FLOW STATEMENT. 4. FINDING OF A.O. THAT CASH FLOW STATEMENT SHOWS HUGE CASH ON VARIOUS DATES IS ALSO INCORRECT BECAUSE CASH FLOW TAKES RS 1000001- AS OPENING CASH BALANCE ON 1/4/2003 AND IN THE SAID CASH FLOW STATEMENT THE MAJOR SOURCE OF CASH FLOW IS NOT HING BUT CASH WITHDRAWALS FROM BANK. THEREFORE DENYING THE CASH ACCRUALS BASED ON WITHDR AWALS FROM BANK IS NOT CORRECT ON THE PART OF A.O .. EVEN THE A.O. HAS NOT FOUND OR GIVEN ANY COGENT FINDING SO AS TO SHOW, WHY HE DOES NOT AGREE WITH CASH ACCRUALS. HE HAS NOT POINTED OU T ANY DEFECTS IN THE CASH FLOW BUT HIS REASONS' FOR REJECTION ARE BASED ON MERE SUSPECISIO N AND HYPOTHESIS. A.O. HAS NOT SHOWN THAT EXPENSES ON PART OF APPELLA NT ARE MORE THAN WHAT IS SHOWN IN THE CASH FLOW SO AS TO REDUCE THE CASH AVAILABILITY IN HANDS OF APPELLANT. EVEN HE HAS NOT MADE ANY ADDITION ON ACCOUNT OF HOUSEHOLD EXPENSES OF ASSESS EE. 11 6. THE A.O. HAS QUESTIONED THE LIFE STYLE OF APPELL ANT SO AS TO MATCH WITH THE SOURCES OF INCOME BUT HE HAS NOT SHOWN ANY EVIDENCE OR FACT ABOUT THE LIFESTYLE OF APPELLANT WHICH MAY LEAD TO BELIEVE THAT HIS EXPENSES ARE MORE THAN THE WITHDRAWALS SHOWN IN CASH FLOW STATEMENT. IN FACT HIS LIFE STYLE WAS VERY SIMPLE AND HUMBLE DESPITE HUSBAND AND WIFE BOTH WERE THE EARNERS IN THE FAMILY. IT IS AGAIN IMPORTANT TO REITERATE THAT A.O. HAS NOT MADE ANY ADDITION ON ACCOUNT OF UNDISCLOSED HOUSEHOLD EXPENSES OR UNEXPLAINED HOUSEHOLD EXPENDITURE. TH EREFORE SUSPICION CANNOT BE THE EVIDENCE FOR MAKING ADDITION AND ALSO FOR NOT ACCEPTING CASH FLO W STATEMENT.. 9. ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS . THE LD. A.R. SUBMITTED THAT THE ADDITION HAS BEEN MADE NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DUR ING THE COURSE OF SEARCH BUT IT IS ON THE BASIS OF REJEC TING THE CLAIM OF THE ASSESSEE OF CASH ON HAND. 7.THE FINDINGS OF A.O. THAT CASH FLOW STATEMENT DO NOT SHOW ANY WITHDRAWALS FOR HO USEHOLD EXPENSES IS AGAIN FACTU ALLY INCORRECT AS THE CASH FLOW STATEMENT CLEARLY SHOWS THE HOUS EHOLD EXPENSES WITHDRAWALS. EVEN THE.CASH FLOW STATEMENT OF HIS WIFE FURNI SHED DURING ASSESSMENT PROCEEDING ALSO SHOWS ALL THE HOUSEHOLD WITHDRAWALS AND DETAILS OF HOUSEHOLD WERE DULY GIVEN IN ASSESSMENT PROCEEDINGS ALSO. 8. THE FINDING OF A. O. THAT CASH FLOW STATEMENT DOES NOT SHOW CERTAIN RECEIPTS RECEIVED F ROM MIS PRAKHAR BUILDER IS AGAIN A FINDING NOT RELEVANT FOR REJECTION OF CASH FLOW STATEMENT AS NO RECEIPTS WERE RECEIVED FROM MIS PRAKHAR BUILDERS. THE RECEIPTS FROM PRAKHAR BUILDER WAS A CREATI ON BY A.O . HIMSELF, WITHOUT HAVING ANY MATERIAL OR EVIDENCES. IT IS ALSO IMPORTANT TO NOTE THAT NO INCREMENTING MATERIAL WAS FOUND DURING THE SEARCH, IN THE PREMISE OF APPELLANT TO SHOW ANY RECEIPTS FROM PRAKHAR BUILDERS. EVEN THE PIECE OF PAPER CLAIMED TO BE FOUND IN PREMISES OF PRAKHAR BUILDER IS NOTHING BUT A DUNB DOCUMENT SHOWING ROUGH SCRIBBLING. THE AMOUNT OF P RAKHAR BUILDERS WAS DISPUTED BY APPELLANT THEREFORE, IT CANNOT BE PART OF CASH FLOW STATEMENT. THEREFORE, FINDING OF A.O. TO REJECT THE CASH FLOW STATEMENT FURNISHED DURING. THE ASSESSMEN T PROCEEDINGS IS MERELY A SUSPICION AND SURMISE AND THERE IS NO C OGENT MATERIAL OR FINDING TO REJECT CASH FLOW STATEMENT. CONSEQUENTLY THE ADDITIONS ARE NOT SUSTAINABL E AND MAY PLEASE BE SET ASIDE. 5. OBJECTIONS OF A.O. IN PARA 5 IS AGAIN A RE-WRITING OF SUSPICION RAISED IN PARA 1, 3 AND 4 ABOVE. THEREFORE THE REASONS GIVEN ABOVE ARE APPLICABLE HE RE. 12 10. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. LD. A.R. HAS PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH IN THE CASE OF ANANT STEE L PVT. LTD. VS. ACIT (2016) 28 TTJ 47 AND JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE CIT (CENTRAL)-II I VS. KABUL CHAWALA (2015) 61 TAXMANN.COMN 412. LD. D.R. COULD NOT CONTROVERT THE SUBMISSIONS OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND. MOREOVER, WE FIND THAT THE ADDITION IS SUSTAINED MERELY ON THE BASIS OF T HE PRESUMPTION. WE THEREFORE, DIRECT THE A.O. TO DELE TE THIS ADDITION. 11. NOW, WE TAKE UP IT(SS)A NO.184/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2008-09. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 13 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING ADDITION OF RS.3,15,000/- AND RS.87,500/-. 2. THAT THE ADDITION CONFIRMED BY THE LEARNED CIT(A) A S UNEXPLAINED INVESTMENT IS NOT SUPPORTED BY ANY EVIDENCES, BUT I S PURELY BASED ON SUSPICION AND SURMISE. 3. NO ADDITION CAN BE MADE AS AN UNEXPLAINED INVESTMEN T IN A CASE, WHERE PROPER CASH FLOW STATEMENT WAS FILED BY THE A PPELLANT, AND A.O. HAS NOT FOUND ANY DEFECT IN THAT FLOW STATEMEN T. 4. THE CASH FLOW STATEMENT FILED BY THE APPELLANT CANN OT BE REJECTED MERELY ON THE BASIS OF SUSPICION OR SURMIE. 5. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED, WIT H THE PERMISSION OF HONOURABLE BENCH. 12. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING THE ADDITION OF RS.3,15,000/- AND RS.87,500/-. LD. COUNS EL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE I N THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSE E ARE ALREADY REPRODUCED IN PARA 8 ABOVE IN THE CASE OF IT(SS)A NO.183/IND/2016. 13. ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS. THE LD. A.R. SUBMITTED THAT THE ADDITIO N HAS BEEN MADE NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL 14 FOUND DURING THE COURSE OF SEARCH BUT IT IS ON THE B ASIS OF REJECTING THE CLAIM OF THE ASSESSEE OF CASH ON HAND. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. LD. A.R. HAS PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH IN THE CASE OF ANANT STEE L PVT. LTD. VS. ACIT (2016) 28 TTJ 47 AND JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE CIT (CENTRAL)-II I VS. KABUL CHAWALA (2015) 61 TAXMANN.COMN 412. LD. A.R. COULD NOT CONTROVERT THE SUBMISSIONS OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND. MOREOVER, WE FIND THAT THE ADDITION IS SUSTAINED MERELY ON THE BASIS OF T HE PRESUMPTION. WE THEREFORE, DIRECT THE A.O. TO DELE TE THIS ADDITION. 15. NOW, WE TAKE UP IT(SS)A NO.185/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2009-10. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 15 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING ADDITION OF RS.2,00,000/-. 2. THAT THE ADDITION MADE FOR A SUM OF RS.2,00,000/- M ERELY ON THE BASIS OF A DOCUMENT, SHOWING SOME AMOUNT AS PAYMENT TO THE APPELLANT WITHOUT ANY SUPPORTING EVIDENCE, IS NOT S USTAINABLE. 3. NO ADDITION CAN BE MADE IN THE HANDS OF APPELLANT F OR A RECEIPT OF SUM, UNLESS IT IS SHOWN HOW THE AMOUNT RECEIVED, CO NSTITUTES AN INCOME UNDER THE INCOME TAX ACT, 1961. 4. NO ADDITION CAN BE MADE ON THE BASIS OF SUSPICION, SURMISE AND CONJECTURE AND WITHOUT HAVING ANY EVIDENCE ON RECOR D TO SUSTAIN SUCH ADDITION. 5. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED, WIT H THE PERMISSION OF HONOURABLE BENCH. 16. `THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING THE ADDITION OF RS.2,00,000/-. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: FOR 2009-10: ADDITION OF RS 2,00,0001- IS MADE ON BASIS OF SOME LOOSE PAPERS FOUND IN PREM ISES OF SHRI KK SHARMA (THESE PAPERS WERE NOT FOUND IN THE PREMISES OF APP ELLANT). THE A.O. HIMSELF HAS GIVEN A FINDING THAT SUM OFRS 2,00,0001- WAS PAID BY MIS AKSHAY SHAKTI SHIKSHA EVAM SAMAJ KALYAN SAMITI TO THE APPELLANT IN JANUARY 2009. SINCE, THIS PAYMENT IS C LAIMED TO BE MADE BY THE SOCIETY, IT IS FOR THEM, T O PROVE THAT SUCH PAYMENT WAS MADE TO THE APPELLANT O N ACCOUNT OF ANY INCOME ASSESSABLE IN THE HANDS OF APPELLANT. IT IS ALSO VERY C LEAR THAT A.O. DOES NOT HAVE ANY EVIDENCE OR MATERI AL TO PROVE THAT ANY SUCH INCOME WAS EARNED BY THE APPELLANT. IN FACT A.O. WA S NOT EVEN ABLE TO TRACE THAT THE AMOUNT OF RS 2,00,0001- HAS ACTUALLY TRAVELLED TO ASSESSEE AND NO EVIDENCE DURING THE SEARCH W AS FOUND TO THAT AFFECT. EVEN A.O. HAS FAILED TO ASSIGN ANY MOTIVE FOR RECEI VING SUCH PAYMENT ON PART OF APPELLANT. A.O. HAS MADE THIS ADDITION MERELY FOR REASON THAT NO SATISF ACTORY EXPLANATION WAS GIVEN BY THE APPELLANT. WE AGAIN SUBMIT THAT ASSESSEE IS NOT UNDER BURDEN TO SUBMIT EVEN EXPLANATION ON THIS ACCOUNT AS NO INCREMENTING MATERIAL WAS FOUND IN THE PREMISES OF ASSESSEE, SO AS THE AMOUNT WAS RECEIVED BY ASSESSEE AS INCOME. 16 17. ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS. THE LD. A.R. SUBMITTED THAT THE ADDITIO N HAS BEEN MADE NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH BUT IT IS ON THE B ASIS OF REJECTING THE CLAIM OF THE ASSESSEE OF CASH ON HAND. THE DOCUMENT WHICH IS REFERRED TO, IS SAID TO BE FO UND IN THE PREMISES OF SHRI KK SHARMA DURING THE SEARCH, CANNOT BE THE BASIS OF MAKING ANY ADDITION IN THE HANDS OF APPELLANT UNLESS THERE IS A MATERIA L OR CORROBORATING EVIDENCE TO SHOW THAT THIS AMOUNT WAS RECEIVED BY THE APPELLANT. IN FACT THE PRESUMPTION ULS 292C STATES THAT ANY SUCH DOCUMENT, IF AT ALL FOUND , SHALL BE TREATED AS BELONGING TO SUCH SEARCHED PERSON WHICH MEANS IT DOES NOT BELONGS TO OTHER PER SON. IT GOES WITHOUT SAYING THAT NO RECEIPTS, SIGNATURE OR AGREEMENT WITH APPELLANT WAS FOUND TO THIS EFFEC T IN ANY OF THE SEARCHED PREMISES. MERELY SOME DU~ PAPER MENTIONING RESEMBLING NAME OF APPELLANT CANNOT BE THE BASIS OF ADDITION IN HANDS OF APPELLANT, PAR TICULARLY SO IN CASE. OF ASSESSMENT PROCEEDINGS ULS 153A. THEREFORE, YOUR HONOUR IS REQUESTED TO DELETE SUCH ADDITION AS IT IS BASED ON MERELY SUSPICION AND SURMISE, WITHOUT DISCHARGING ONUS BY THE A.O. IN THE JUDGEMENT OF, ANANT STEEL PVT. LTD. V. ASSTT. COMMISSIONER OF INC OME TAX(20J6) 28 ITJ 47 (TRIB. - INDORE) 'IT WAS DECIDED THAT U/S. 153A TO 153C OF I NCOME TAX ACT 1961- NO INCRIMINATING DOCUMENTS FOUND AND SEIZED DURING SEARCH. AN ADDITI ONS WERE MADE. IN ASSESSMENT U/S 153A - ASSESSEE CHALLENGED THAT ORDER - HELD - IN DY. CIT V. KALANI BROTHERS(INDORE) PVT. LTD.,(2016) 27 ITJ 286 (TRIB.. -INDORE THIS ISSUE HAS BEEN DECIDED THAT I N ABSENCE OF ANY INCRIMINATING MATERIAL OR DOCUMENTS SEIZED DURING THE COURSE OF SEARCH, THE A D CANNOT PASS ORDER U/S 153A RLW SECTION 143(3) - FOLLOWING THAT DECISION IT HAS BEEN HELD THAT IN AB SENCE OF ANY INCRIMINATING DOCUMENT FOUND AND SEIZED DURING T HE COURSE OF SEARCH, THE AO IS NOT JUSTIFY IN MAKIN G THE ADDITION IN NON ABATED ASSESSMENT ORDER WHILE PASSING THE ORDER ULS 153A RLW SECTION 143(3)' IT IS FURTHER SUBMITTED THAT SAME AMOUNT IS ADDED TO THE IN COME OF MIS AKSHAY SHAKTI SHIKSHA EVAM SARNA] KALYAN SAMITI. THEREFORE, THE SAME INCOME CANNOT BE ADDED IN TWO HAN DS FOR THE SAME REASON. UNLESS, IT IS SHOWN ON THE BASIS OF EVIDENCES AND IN ACCORDANCE WITH LAW THAT I T CONSTITUTES INCOME IN HANDS OF BOTH THE ASSESSEE. IT IS FURTHER SUBMITTED THAT DOCUMENTS ARE ALREADY AVAILABLE TO A .O DURING THE EARLIER PROCEEDING. 17 18. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. LD. A.R. HAS PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH IN THE CASE OF ANANT STEE L PVT. LTD. VS. ACIT (2016) 28 TTJ 47. LD. D.R. COULD NOT CONTROVERT THE SUBMISSIONS OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND. MOREOVER, WE FIND TH AT THE ADDITION IS SUSTAINED MERELY ON THE BASIS OF THE PRESUMPTION. WE THEREFORE, DIRECT THE A.O. TO DELE TE THIS ADDITION. 19. NOW, WE TAKE UP ITA NO.1013/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2010-11. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING ADDITION OF RS.1,53,200/- AND RS.6,00,000/-. 2. THAT THE ADDITION MADE FOR A SUM OF RS.6,00,000/- M ERELY ON THE BASIS OF A DOCUMENT, SHOWING SOME AMOUNT AS PAYMENT TO THE APPELLANT WITHOUT ANY SUPPORTING EVIDENCE, IS NOT S USTAINABLE. 3. NO ADDITION CAN BE MADE IN THE HANDS OF APPELLANT F OR A RECEIPT OF SUM, UNLESS IT IS SHOWN HOW THE AMOUNT RECEIVED, CO NSTITUTES AN INCOME UNDER THE INCOME TAX ACT, 1961. 18 4. NO ADDITION CAN BE MADE ON THE BASIS OF SUSPICION, SURMISE AND CONJECTURE AND WITHOUT HAVING ANY EVIDENCE ON RECOR D TO SUSTAIN SUCH ADDITION. 5. THAT NO ADDITION OF RS.1,53,000/- CAN BE MADE BEING CASH FOUND DURING THE COURSE OF SEARCH, WHEN THE APPELLANT OFF ERED PROPER EXPLANATION, AND HIS EXPLANATION WAS SUPPORTED BY P ROPER CASH FLOW STATEMENT FURNISHED DURING THE ASSESSMENT PROCEEDIN GS. 6. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED, WIT H THE PERMISSION OF HONOURABLE BENCH. 20. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING THE ADDITION OF RS.1,53,200/- AND RS.6,00,000/-. LD. COU NSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE I N THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSE E ARE REPRODUCED AS UNDER: FOR 2010-11 DURING THIS YEAR AN ADDITION OF RS 6,00,0001- AS UNDISCLOSED INVESTMENT MADE ON ACCOUNT OF SOME PAPER FOUND AT THE PREMISES OF SHRI PUSHPENDRA MISHRA AT THE TIME OF SEARCH UPON HIM ULS 132. IN THIS REGARD WE HEREBY SUBMIT THAT APPELLANT HAS NOT RECEIVED ANY MONEY AS CLAIMED IN THE ASSESSMENT ORDER FROM SHRI PUSHPENDRA MISHRA. AS CLAIMED TO BE PAID BY HIM. EVEN THE SO CALLED PERSONAL STATEMENT SHRI PUSHPENDRA-MISHRA WER E NOT CONFRONTED TO ASSESSEE TO REBUT THE SAME. HOWEVER THE COPY OF SUCH ROUGH DOCUMENT, CLAIMED TO BE THE BASIS OF RECEIPTS OF RS 6, 00,0001- IS ENCLOSED HEREWITH FOR YOUR PERUSAL. THE DOCUMENT WHICH IS REFERRED TO, IS SAID TO BE FOUND IN TH E PREMISES OF SHRI PUSHPENDRA MISHRA DURING THE SEARCH, CANNOT BE THE BASIS OF MAKING ANY ADDITION IN THE HAN DS OF APPELLANT UNLESS THERE IS A MATERIAL OR CORROBORATING EVIDENCE TO SHOW THAT THIS AMOUNT WAS RECEIVED BY .THE APPELLANT. IN FACT THE PRESUMPTION ULS 292C STATES THAT ANY SUCH DOCUMENT, IF AT ALL FOUND, SHALL B E TREATED AS BELONGING TO SUCH SEARCHED PERSON WHICH MEANS IT DOES NOT BELONGS TO OTHER PERSON. 19 THERE IS NO CORROBORATING MATERIAL TO SUPPORT SUCH TRANSACTI ON AND WITHOUT ACCEPTING IT IN ANY MANNER, EVEN IF IT IS ACCEPTED THAT ANY AMOUNT HAS BEEN PAID BY SHRI PUSHP ENDRA MISHRA, EVEN THEN, THERE IS NO MATERIAL ON RECORD TO SHOW THAT IT CONSTITUTES AN INC OME OF APPELLANT AND NOT A LOAN OR GIFT. YOUR KIND ATTENTI ON IS ALSO DRAWN TO THE PAR OF THE QUESTIONNAIRE DATED 29/08/2011 ISSUED BY ASSESSING OFFICER, WHERE IT IS CLEARLY STATED THAT AFTER 23/0312009 APPELLANT WAS NOT HAVING ANY CONNECTION WITH SWAMI VIVEKANAND EN GINEERING COLLEGE. THEREFORE EVEN ON ACCOUNT OF COLLEGE IT IS NOT POSSIB LE TO RECEIVE ANY MONEY OR PAY IT. A.O. HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT SUCH MON EY TRAVELLED TO APPELLANT AS INCOME AND ALSO NOT ABLE TO ESTABLISH ANY MOTIVE OR PURPOSE FOR WHICH SUCH AM OUNT COULD HAVE BEEN PAID TO THE APPELLANT. CONSEQUENTLY, A.O. HAS FAILED TO DISCHARGE HIS ONUS TO MAKE SUCH ADDITION. THEREF ORE THIS ADDITION IS NOT MADE ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH. THEREFORE, THERE IS NO MATERIAL ON RECORD TO ESTABLISH THAT ANY A MOUNT WAS PAID TO SHRI KAMTA PRASAD DWIVEDI BY SHRI PUSHPENDRA MISHRA (WHO WAS ALSO SEARCHED) AS AN INCOME AND IS LIABLE TO TAX DURING THE RELEVANT YEAR AND ALSO THERE IS NO CORROBORATING MATERIAL AVAILABLE T O PROVE SUCH TRANSACTION. CONSEQUENTLY NO ADDITION CAN BE MADE TO THE INCOME OF APPELLANT BECAUSE IT IS BASED ON HEARSAY WITHOUT HAVING ANY MATERIAL. IN THE JUDGEMENT OF, ANANT STEEL PVT. LTD. V. ASSTT. COMMISSIONER OF INC OME TAX(2016) 28 ITJ 47 (TRIB. - INDORE) 'IT WAS DECIDED THAT U/S. 153A TO 153C OF I NCOME TAX ACT 1961- NO INCRIMINATING DOCUMENTS FOUND AND SEIZED DURING SEARCH. AN ADDITI ONS WERE MADE IN ASSESSMENT U/S 153A - ASSESSEE CHALLENGED THAT ORDER - HELD - IN DY. CIT V. KALANI ILROTHERS(LNDORE) PVT. LTD., (2016) 27 ITJ 286 (TRIB. - INDORE THIS ISSUE HAS BEEN DECIDED THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL OR DOCUMENTS SEIZED DURING THE COURSE OF SEARCH, THE AO CANNOT PASS ORDER U/S 153A R/W SECTION 143 (3) - FOLLOWING THAT DECISION IT HAS BEEN HELD THAT IN AB SENCE OF ANY INCRIMINATING DOCUMENT FOUND AND SEIZED DURING THE COURSE OF SEARCH, THE AO IS NOT JUSTIFY IN MAKING THE ADDITION IN NON ABATED ASSESSMENT ORDER WHILE PASSING THE ORDER U/S 153A R/W SECTION 143(3)' YOUR KIND ATTENTION IS DRAWN TO FOLLOWING CITATIONS- CITV/S DEVENDRA K SINGHAL (2014) 45 TAXMAN.COM 1'48 (ALLAHBAD) FURTHER ADDITION OF RS 1,53,2001- WAS MADE TO THE INCOME OF APPELLANT BY THE ASSESSING OFFICER, FO R TH E REASON THAT, ON THE DATE OF SEARCH I.E. 23/07/2009, THIS CASH WAS FOUND IN THE SEARCHED PREMISES. STATEMENT OF SHRI KAMTA PRASAD DWIVEDI WAS RECORDED AT THE TIME OF SEARCH AND AP PELLANT IN HIS STATEMENT, VIDE HIS REPLY TO QUESTION NO.5, HAS INFORMED THAT THIS AMOUNT OF RS 1,53,2001- INCLUDES SUM BORROWED BY HIM FROM SHRI GANESH PRASAD DWIVEDI, SHRI KRISHAN .PAL DWIVEDI AND SHRI A NIRUDH PARE AS A LOAN FOR THE PURPOSE OF ACTIVITIES OF THE SOCIETY OF WHICH HE IS THE CHAIRMAN. 20 21. ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS. THE LD. A.R. SUBMITTED THAT THE ADDITIO N HAS BEEN MADE NOT ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH BUT IT IS ON THE B ASIS OF REJECTING THE CLAIM OF THE ASSESSEE OF CASH ON HAND. 22. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. LD. A.R. HAS PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH IN THE CASE OF ANANT STEE L PVT. EVEN THE ASSESSING OFFICER HAS GIVEN NO SPECIFIC FINDINGS TO REJECT ANY OF THE DOCUMENT OR CASH FLOW STATEMENT SUBMITTED BY THE APPELLANT EXCEPT SOME SUSPICIONS. WIT HOUT DOING SO AND ALSO WITHOUT HAVING ANY COGENT MATERIAL OR EVIDENCE TO CONTRADICT THE DOCUMENT OR CASH FLO W STATEMENT, HE CANNOT MAKE AN ADDITION OF RS. 1,53,2001-. IT IS ALSO IMPORTANT TO NOTE THAT AT THE TIME OF RECORDING T HE STATEMENT DURING SEARCH ULS 132, THE APPELLANT HAS STATED THAT THE MONEY WAS RECEIVED FROM THESE THREE PEOPLE AND S UBSEQUENTLY IT WAS CONFIRMED BY THEM THROUGH AFFIDAVIT AND REMAINING SUM OF RS 74,5001- AND RS 44,0001- WERE ALSO REFLECTED IN THE CASH FLOW STATEMENT FILED BEFORE THE ASSESSING OFFICER. THEREFORE THERE IS NO QUESTION OF TREATING IT AS UNEXPLAINED CASH WITHOUT FINDING ANY SPECIFIC DEFECTS IN THE CASH FLOW STAT EMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT FURN ISHED A CASH FLOW STATEMENT FOR HIMSELF AND HIS WIFE SMT CHANDRA KANTA DWIVEDI WHO WAS ALSO SEARCHED SIMUL TANEOUSLY. THE CASH FLOW SO FILED CLEARLY ACCOUNTS FOR ALL THE TRANSACTIONS AND THE SAME WAS VERIFIED BY THE ASSESSING O FFICER WITHOUT REJECTING IT OR FINDING ANY SPECIFIC DEFECTS IN IT. THE APPELLANT HAS ALSO FILED AFFIDAVITS OF SHRI ANIRUDH PARE, SHRI KRISHAN PAL DWIVEDI AND SHRI GANESH PRASAD DWIVEDI CONFI RMING SUCH LOANS TO THE ASSESSEE. THE TOTAL AMOUNT OF RS 35,0001- WAS RECEIVED AS LOANS FROM THESE THREE PEOPLE AND SUM OF RS 74,5001- WAS REFLECTED IN THE CASH FLOW STATEMENT OF APPELLANT AND RS 44,0001- IN THE CASH FLOW STATEMENT OF HIS WIFE SMT CHANDRA KANTA DWIVEDI. 21 LTD. VS. ACIT (2016) 28 TTJ 47. LD. D.R. COULD NOT CONTROVERT THE SUBMISSIONS OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND. MOREOVER, WE FIND TH AT THE ADDITION IS SUSTAINED MERELY ON THE BASIS OF THE PRESUMPTION. WE THEREFORE, DIRECT THE A.O. TO DELE TE THIS ADDITION. 23. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE A RE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19.09.2 018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 19/09/2018 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER SR. PRIVATE SECRETARY, INDORE