DCIT, Central Circle - XXI, Kolkata, Kolkata V. Shri Niranjan Lal Todi, Kolkata

ITSSA 24/KOL/2010

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1761 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 21-07-2011
• Assessment Year: misc
• Appeal Filed On: 02-12-2010
• Court: TRIBUNAL
• Assessee Lawyers: J M THARD
• Keywords: Loose papers; Document seized; Charitable institution; Corroborative evidences; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE SHRI N.V.VASUDEVAN, JM & SHRI M.BALAGANES H, AM] IT(SS)A NO.24/KOL/2010 BLOCK PERIOD 01.04.1990 TO 12.02.2001. D.C.I.T., CENTRAL CIRCLE-XXI, -VERSUS- SRI NIRANJA N LAL TODI KOLKATA KOLKATA (PAN:AABTS 1180A) (APPELLANT) (RESPOMNDENT) C.O.NO.04/KOL/2011 A/O IT(SS)A NO.24KOL/2010 BLOCK PERIOD 01.04.1990 TO 12.02.2001. SRI NIRANJAN LAL TODI -VERSUS- D.C.I.T., CENTRAL CIRCLE-XXI, KOLKATA KOLKATA (PAN AABTS 1180A) (CROSS OBJECTOR) (RESPONDENT) FOR THE DEPARTMENT : SHRI VIJAY SHANKAR, CIT(DR) FOR THE ASSESSEE : SHRI J.M.THARD, ADVOCATE DATE OF HEARING : 28.01.2016. DATE OF PRONOUNCEMENT : 3.2.2016. ORDER PER SHRI N.V.VASUDEVAN, JM IT(SS)A NO.24/KOL/2010 IS AN APPEAL FI LED BY THE REVENUE AGAINST ORDER DATED 19.08.2010 OF CIT(A)-CENTRAL-II, KOLKATA RELATING T O THE BLOCK PERIOD 01.04.1990 TO 12.02.2001. THE ASSESSEE HAS FILED A CROSS OBJECTIO N AGAINST THE VERY SAME ORDER OF CIT(A). 2. GROUND NO.1 RAISED BY THE REVENUE AND GROUNDS R AISED IN THE CROSS OBJECTION ARE INTER LINKED AND CAN BE DECIDED TOGETHER. THESE GRO UNDS READ AS FOLLOWS :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) HAS ERRED IN LAW IN DELETING ADDITIONS OF RS.2,30,000/- OUT O F TOTAL ADDITION OF RS.12,30,000/- MADE ON THE BASIS OF ENTRIES RECORDED IN SEIZED DOCUMENT NT/1 (PAGE 20 & 21) BY HOLDING THAT THIS AMOUNT REPRESENTED ADVANCE FOR CONTEMPLATED SA LES AND AS THE PROPERTIES WERE NOT SOLD THERE CAN BE NO GENERATION OF INCOME WITHOUT C ONSIDERING THAT THE SAID ADVANCE WERE NEVER REPAID BY THE ASSESSEE AND THE FINDING O F THE CIT(A) IS CONTRARY TO HIS OWN IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 2 FINDINGS WHEREBY HE HAS CONFIRMED ADDITION OF RS.10 LAKHS BASED ON THE SAME DOCUMENTS. C.O.NO.4/KOL/2011 1. A) FOR THAT THE LD. CIT(APPEALS) ERRED IN LAW A S WELL AS ON FACTS IN RETAINING THE ADDITION TO THE EXTENT OF RS.10 LACS ON THE BASIS O F THE SEIZED PAPERS MARKED NT/1, PAGES-20 & 21 ON IRRELEVANT CONSIDERATIONS. THE LD. CIT(APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE SEIZED DOCUMENTS MAR KED NT/1, PAGES-20 & 21 DID NOT RELATE TO THE APPELLANT AND NO ADDITION COULD BE MA DE ON THE BASIS OF THE SAID SEIZED PAPERS AS INCOME OF THE APPELLANT. B) FOR THAT IN ANY CASE, THE ADDITION OF A SUM OF R S.1 0 LACS OR ANY AMOUNT WHATSOEVER AS INCOME OF THE APPELLANT ON THE BASIS OF THE SAID SEIZED PAPERS IS WRONG, UNJUSTIFIED AND BAD-IN-LAW. 2. FOR THAT THE APPEAL FILED BY THE REVENUE OBJECTI NG TO THE RELIEFS ALLOWED BY THE LD. CIT(APPEALS) IS FRIVOLOUS AND WITHOUT ANY SUBSTANCE AND IS LIABLE TO BE REJECTED IN TO- TO. 3. THE ASSESSEE IS AN INDIVIDUAL. HE WAS ENGAGED IN THE BUSINESS OF HIRE- PURCHASE AND LEASING . HE WAS ALSO THE MANAGING DIR ECTOR OF A COMPANY BY NAME BCL FINANCIAL SERVICES LIMITED (BCL). THERE WAS A S EARCH AND SEIZURE OPERATION CARRIED OUT U/S 132 OF THE INCOME TAX ACT, 1961 (AC T) BY THE REVENUE ON 12.02.2001 AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AT 2, Q UEENS PARK, KOLKATA. IN THE COURSE OF SEARCH, SEVERAL DOCUMENTS WERE FOUND AND SEIZED. IN THIS APPEAL AND CROSS OBJECTION WITH ARE CONCERNED ONLY WITH THE SEIZED DOCUMENTS N T/1 AT PAGES 20 & 21 AND PAGES 35 TO 38. THE ASSESSEE IN RESPONSE TO NOTICE U/S 1 58BC OF THE ACT FILED BLOCK RETURN ON 04.02.2003 FOR THE BLOCK PERIOD FROM 01.04.1990 TO 12.02.2001 SHOWING UNDISCLOSED INCOME AT RS.NIL. THE ORIGINAL ASSESSME NT WAS COMPLETED ASSESSING THE UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PE RIOD AT RS.93,15,000/- BY ORDER DATED 28.02.2003. AGAINST THE SAID THE ASSESSEE PRE FERRED APPEAL BEFORE CIT(A) AND PARTIAL RELIEF WAS GIVEN BY CIT(A) VIDE ORDER DATED 16.11.2004. ON FURTHER APPEAL BEFORE ITAT IN ITA NO.37/KOL/2005 AND IT(SS)A.64/KO L/2005, THE ITAT BY ORDER DATED 09.05.2006 SET ASIDE THE ORDERS OF CIT(A) AND DIRECTED THE AO TO MAKE ASSESSMENT FRESH. IN THE ASSESSMENT PROCEEDINGS AFT ER THE ORDER OF THIS TRIBUNAL CERTAIN ADDITIONS WERE MADE. ON APPEAL BY THE ASSESSEE CERT AIN ADDITIONS WERE DELETED BY THE ASSESSEE AND SOME OF THE ADDITIONS WERE SUSTAINED B Y CIT(A). IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 3 4. AGGRIEVED BY THE RELIEF ALLOWED BY CIT(A) THE RE VENUE IS IN APPEAL BEFORE THE TRIBUNAL. AGGRIEVED BY THE ADDITIONS SUSTAINED BY C IT(A) THE ASSESSEE HAS FILED CROSS OBJECTION. 5. AS FAR AS GROUND NO.1 RAISED BY THE REVENUE AND THE GROUNDS RAISED IN CROSS OBJECTION BY THE ASSESSEE IS CONCERNED THE FACTS AR E AS FOLLOWS :- AS WE HAVE ALREADY NOTICED THAT THERE WAS A SEARCH MIN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 12.02.2001. IN THE COURSE OF SEA RCH DOCUMENT MARKED AS NT/1 WAS FOUND AND SEIZED. PAGES- 20 AND 21 OF NT/1 CONTAIN ED A RECORD OF CERTAIN DETAILS OF TENANCY RIGHTS TENANCY RIGHTS TRANSFERRED IN RESPEC T OF SOME SHOPS/ROOMS AT PREMISES NO.32, EZRA STREET, KOLKATA AND 159/A, RASHBEHARI AVENUE, KOLKATA. THE DETAILS AS RECORDED IN PAGES 20 AND 21 WERE AS FOLLOWS :- PREMISE NO. PERSON ON WHOSE ACCOUNT RECEIVED ROOM NO. AMOUNT RECEIVED BY CHEQUE AMOUNT RECEIVED IN CASH DATE OF TRANSACTION & ASST.YEAR 32, EZRA STREET, KOLKATA SATARAM JAISWAL TO SMT. GIRIJA DEVI SHAH BS-10 - RS.50,000/- 13-04-2000 & 2001-02 -DO- LAMP EMPORIUM TO RAKESH KR.GAR 56 RS.50,000/- RS.1,50,000/- 6-2-1999 & 1999-2000 -DO- KASI PRASAD SIKARIA TO HITESH R.SHAH 43 RS.50,000/- RS.2,50,000/- 6-2-1999 & 1999-2000 -DO- GOPAL DASMIMANI 9&10 RS.1,00,000/- RS.4,00,000/- 23-9-1999 & 2000-2001 -DO- DULAL CH.KUNDU TO GOPAL DASMINANI 19 RS.50,000/- RS.2,00,000/- 23-09-1999 & 2000- 2001 159/1A, RASH BEHARI AVENUE, KOLKATA JAWAHARLAL BANERJEE TO JOYDEV MONDAL 7 - RS.60,000/- 6-5-1999 & 2000-2001 -DO- JAWAHARLAL BANERJEE TO 13 - RS.60,000/- 6-5-1999 & 2000-2001 IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 4 SMT.BANI NANDY -DO- JAWAHARLAL BANERJEE TO SMT. ANJANA SAHA 14 - RS.60,000/- 6-5-1999 & 2000-2001 RS.2,50,000/- RS.12,30,000/- 6. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSE SSEE EXPLAINED THE TRANSACTIONS RECORDED IN THE SEIZED DOCUMENTS AS FOLLOWS :- THE GROUND FLOOR OF PREMISES NO.32, EZRA STREET, KO LKATA AND PREMISES NO.159/A, RASHBEHARI AVENUE, KOLKATA BELONG TO A TR UST BY NAME BRIJLAL TODI CHARITABLE TRUST. THE ASSESSEE EXPLAINED THAT IT WA S A FAMILY TRUST OF THE ASSESSEE AND THAT THE ASSESSEE WAS NOT THE OWNER OF THE AFORESAI D PROPERTIES. THE ASSESSEE THEREFORE DISOWNED RECEIPT OF ANY MONEYS AS STATED IN THE SEI ZED DOCUMENTS. THE AO HOWEVER HELD THAT THE ASSESSEE FAILED TO PRODUCE BOOKS OF A CCOUNT OF THE TRUST FOR VERIFICATION AND THEREFORE THE CLAIM OF THE ASSESEE COULD NOT BE BELIEVED. AO OBSERVED THAT RECEIPT OF SUM OF RS.2,50,000/- BY CHEQUE IS REFLECTED IN T HE REGULAR BOOKS OF ACCOUNTS. THE ORDER IS SILENT AS TO IN WHOSE BOOKS OF ACCOUNTS TH E SAID SUM WAS REFLECTED. IN RESPECT OF THE REMAINING RS.12.30 LAKHS RECORDED AS RECEIVE D BY CASH IN THE SEIZED DOCUMENTS, THE AO HELD THAT THE SAME IS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD 01.04.1990 TO 12.02.2001. THE SAID SUM WAS ADDED IN THE VARIOUS ASSESSMENT YEARS AS PER THE DETAILS GIVEN IN THE SEIZED DOCUMENTS WHICH ARE AS FOLLOWS :- DATE OF RECEIPT ASST.YEAR IN WHICH TO BE CONSIDERED AMOUNT 6-2-1999 1999-2000 RS.1,50,000/- -DO- -DO- RS.2,50,000/- RS.4,00,000/- 6-5-1999 2000-2001 RS.60,000/- -DO- -DO- RS.60,000/- -DO- -DO- RS.60,000/- 23-9-1999 -DO- RS.4,00,000/- -DO- -DO- RS.2,00,000/- RS.7,80,000/- 13-4-2000 2001-2002 RS.50,000/- RS.50,000/- GRAND TOTAL RS.12,30,000/-(A) (TWELVE LAKSH THIRTY THOUSAND) IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 5 7. BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT ( A) THE WRITING IN THE SEIZED PAPER IS NOT IN THE WRITING OF THE ASSESSEE, (B) IN THE ORIGINAL ASSESSMENT PROCEEDINGS THE ASSESSEE HAD DENIED HAVING RECEIVED ANY SUCH AM OUNT AND THERE IS NO EVIDENCE TO CORROBORATE THE CONCLUSION THAT THE ASSESSEE RECEIV ED A SUM OF RS.12.30 LAKHS IN THE FORM OF CASH FROM VARIOUS PERSONS NAMED IN THE SEIZ ED DOCUMENTS. (C) THE PREMISES AT 159A, RASH BEHARI AVENUE DOES NOT BELONG TO THE AS SESSEE AND BELONG TO THE TRUST AND THEREFORE IT WAS NOT PROBABLE FOR THE ASSESSEE TO R ECEIVE THE SUM IN QUESTION FOUND RECORDED IN THE SEIZED DOCUMENTS. (D) IN RESPECT O F PREMISES AT 32, EZRA STREET, KOLKATA FOUR ROOMS HAD BEEN GIVEN ON MONTHLY RENT B Y THE TRUST TO FOUR TENANTS. LATER THE TRUST SOLD THESE ROOMS ALONG WITH THE TENANCY R IGHTS TO THE AFORESAID FOUR PERSONS. THE DETAIL IN THIS REGARD WERE AS FOLLOWS :- PARTICULARS OF PROPERTY NAME OF PURCHASER CONSIDERATION DATE OF CONVCYANCE ROOM NO.56 AT GR.FL. RAKESH KR.GARG 50,000/- 02.09. 1999 OF 32, EZRA ST.KOL ROOM NO.43 HITESH R.SHAH 50,000/- 01.09.1999 -DO- ROOM NOS. 9&10 GOPAL DAS MIMANI 1,00,000/- 03.07.2 000 -DO- ROOM NO.19 GOPAL DAS MIMANI & 50,000/- 03.07.20 00 -DO- SHYAMSUNDER THE ASSESSEE PRODUCED COPIES OF THE REGISTERED CONV EYANCE DEED IN THE NAME OF RAKESH KR.GARG. THE ASSESSEE THEREFORE SUBMITTED TH AT IT HAD NOT RECEIVED CASH AS REFERRED IN THE SEIZED DOCUMENTS. 8. WITH REGARD TO THE PREMISES AT 159A, RASH BEHARI AVENUE, KOLKATA THE ASSESSEE POINTED OUT THAT THE ASSESSEE TRUST CONTIN UED TO BE THE OWNER OF THE PREMISES AND THE ROOMS CONTINUED TO BE IN THE OCCUPATION OF TENANTS OF THE AFORESAID PREMISES. THE ASSESSEE POINTED OUT THAT THERE IS NO TRANSACTI ON EXECUTED BY THE TRUST IN FAVOUR OF THE TENANTS. IT WAS NOT PROBABLE THAT THE ASSESSEE WOULD HAVE RECEIVED MONEYS FROM THE TENANTS. THE ASSESSEE THUS SUBMITTED THAT ON TH E BASIS OF NOTINGS IN THE LOOSE PAPERS WHICH DO NOT BELONG TO THE ASSESSEE, IN RESP ECT OF THE PROPERTY WHICH DOES NOT BELONG TO THE ASSESSEE, WITHOUT ANY EVIDENCE OR MAT ERIAL TO SHOW THAT THE ASSESSEE IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 6 RECEIVED MONEY AS RECORDED IN THE SEIZED DOCUMENTS, NO ADDITION CAN BE IN THE HANDS OF THE ASSESSEE AND DOING SO IS WRONG, UNJUSTIFIED AND ARBITRARY. 9. CIT(A) ON A CONSIDERATION OF THE AFORESAID SUBMI SSIONS CAME TO THE FOLLOWING CONCLUSIONS :- 4.2 THERE IS NO DISPUTE THAT THE ENTRIES IN PAGE NO . 20 AND 21 OF SEIZED PAPER NT/I REFER TO SALE OF ROOMS AT 32, EZRA STREET AND 159/ A, RAS HBEHARI AVENUE. THERE IS NO DISPUTE THAT THE CONSIDERATION OF RS. RS 2.5 LAKH MENTIONED AS RECEIVED IN CHEQUE IN THE SEIZED PAPER IN RESPECT OF THE ROOMS AT 32, EZRA STREET WE RE ACTUALLY RECEIVED. APPELLANT HAS DISPUTED THE RECEIPT OF BALANCE SUM OF RS. 12.30 LA CS MENTIONED AS SALE CONSIDERATION OF ROOMS MENTIONED IN THE SEIZED PAPER IN ADDITION TO THE CONSIDERATION RECEIVED IN CHEQUE OF RS. 2.5 LAKH. I DO NOT THINK THAT APPELLANT CAN DISPUTE THE TOTAL CONSIDERATION OF SALE MENTIONED IN THE SEIZED PAPER AS INCORRECT WHEN A P ART OF SUCH SALE CONSIDERATION RECEIVED IN CHEQUES IS ALSO WRITTEN IN THE SEIZED P APER AND IS CONFIRMED BY CORRESPONDING PAYMENT OF CHEQUE BY THE CORRESPONDIN G PURCHASER OF THE ROOM. THERE IS CORROBORATIVE EVIDENCE IN RESPECT OF SALE CONSIDERA TION RECEIVED IN CHEQUE IN EXACTLY THE SAME MANNER AS MENTIONED IN THE SEIZED PAPER AND TH EREFORE THE SEIZED PAPER IS PARTLY CORROBORATED BY THE EVIDENCE. IF A PART OF A SEIZED PAPER IS ACCEPTED AS TRUE THEN THE WHOLE OF SUCH SEIZED PAPER IS REQUIRED TO BE ACCEPT ED AS TRUE. THEREFORE THE SEIZED PAPERS SUPPORT THE FACT THAT RS.12.30 LAKH WERE REC EIVED IN CASH OVER AND ABOVE THE SALE CONSIDERATION OF RS. 2.5 LAKH RECEIVED IN CHEQUE. A PPELLANT HAS FURTHER DISPUTED THAT THE PROPERTIES IN QUESTION BELONGED TO BRIJLAL TODI CHA RITABLE TRUST AND NOT TO THE APPELLANT AND THEREFORE THE QUESTION OF TAXATION ON SALE OF THESE PROPERTIES DOES NOT ARISE IN THE HANDS OF APPELLANT. THE FACTS AS APPEARING FROM THE 'TRUST DEED' DATED 25/11/1986, WHICH WAS CALLED FOR BY THE UNDERSIGNED FROM THE AI R OF APPELLANT DURING THE APPELLATE PROCEEDINGS, SHOW THAT THE ELDER BROTHERS OF APPELL ANT, IE. SHRI NAND LAL TODI AND SHRAWAN KUMAR TODI WERE THE DECLARANTS OF THIS TRUS T AND NANDLAL TODI AND RAMPAL TODI WERE THE ORIGINAL TRUSTEES. THE ORIGINAL TRUST EES APPOINTED NEW TRUSTEES FROM TIME TO TIME. IN NUT SHELL BRIJLAL TODI CHARITABLE TRUST , EARLIER KNOWN AS 'BHARAT TRUST' WAS A FAMILY TRUST OF TODI FAMILY AND APPELLANT WAS PART OF THE TODI FAMILY. IN MY OPINION, APPELLANT WAS CAPABLE OF BEING CONTROL OF BRIJ LAL TODI CHARITABL TRUST. A TRUST IS A TAXABLE PERSON UNDER INCOME TAX ACT. HOWEVER, IT I S A NON LIVING ARTIFICIAL ENTITY. AS AN ARTIFICIAL ENTITY IT CAN RECEIVE ONLY THAT AMOUNT O F SALE CONSIDERATION WHICH IS CREDITED IN ITS BANK BOOK OR CASH BOOK OR SUCH BOOKS OF ACCOUN T. APPELLANT HAS NEVER TAKEN A GROUND THAT THE CASH OF RS. 12.30 LAKH HAS BEEN ENT ERED IN THE BOOKS OF BRIJ LAL TODI CHARITABLE TRUST AS FURTHER SALE OR ADVANCE CONSIDE RATION OVER AND ABOVE THE CHEQUE CONSIDERATION ON ACCOUNT OF SALE OF THE ROOMS IN 32 , EZRA STREET AND 159/ A, RASHBEHARI AVENUE. THEREFORE THE EVIDENCES AND CIRCUMSTANCES A ND THE FACT THAT THE PAPER WAS SEIZED FROM THE POSSESSION OF APPELLANT, SHOW THAT THERE IS A HIGH PROBABILITY THAT APPELLANT RECEIVED RS 12.30 LAKH IN CASH AS CONTROL LER OF BRIJLAL TODI CHARITABLE TRUST ON SALE OR CONTEMPLATED SALE OF ROOMS IN 32, EZRA STRE ET AND 159/ A, RASHBEHARI AVENUE. THE SEIZED PAPERS SHOW THAT WHEREVER BRIJ LAL TODI CHARITABLE TRUST HAD TRANSFERRED THE OWNERSHIP OF ROOMS TO THE PURCHASERS THROUGH THE CO NVEYANCE DEEDS, THE CHEQUE AMOUNT WAS RECEIVED. BY THE TRUST AND WHEREVER THE OWNERSHIP OF ROOMS WAS YET TO BE TRANSFERRED, ONLY THE CASH AMOUNT IS APPEARING AS A DVANCE RECEIVED. THE .ROOMS IN RESPECT OF WHICH THE OWNERSHIP IS TRANSFERRED ARE I N RESPECT OF PREMISE AT 32, EZRA STREET ONLY AND ARE MENTIONED IN THE SEIZED PAPERS AS UNDE R: IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 7 PARTICULARS OF PROPERTY NAME OF PURCHASER CONSIDERATION IN CHEQUE TOTAL CONSIDERATION DATE CONSIDERATION IN CASH ROOM NO.56 RAKESH KR.GARG 50000 200000 6/2/99 150000 ROOM NO.43 HITESH R.SHAH 50000 300000 6/2/99 250000 ROOM NOS.9&10 GOPAL DAS MIMANI 100000 500000 23/9/99 400000 ROOM NO.19 GOPAL DAS MIMANI 50000 250000 23/9/99 200000 THEREFORE IT IS HIGHLY PROBABLE THAT THE CASH OF RS . 10 LAKH, RECEIVED IN RESPECT OF SALE OF THE ABOVE MENTIONED ROOMS NO 56, 43, 9& 1 0 AND 19 OF THE PREMISE AT 32, EZRA STREET, HAS BEEN POCKETED BY THE APPELLANT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCES AND ON THE BASIS OF PROXIMITY APPELLANT WITH BRIJ LAL TODI CHA RITABLE TRUST AND THEREFORE THE SAME IS RIGHTLY TAXED AS UNDISCLOSED INCOME OF THE APPELLAN T BY THE ASSESSING OFFICER. 4.3 IN RESPECT OF SALE OF ROOM NO BS-10 IN 32, E ZRA STREET AND ALL THE ROOMS IN 159/ A, RASHBEHARI A VENUE, IT IS NOT MENTIONED IN THE S EIZED PAPER THAT THE OWNERSHIP IS TRANSFERRED. THE AMOUNT OF RS. 2.3 LAKH RECEIVED IN CASH IN SUCH CASES MAY BE TREATED AS ADVANCE TILL THE CONVEYANCE IS MADE AND THE OWNERSH IP IS TRANSFERRED IN RESPECT OF SUCH ROOMS. APPELLANT HAS SUBMITTED THAT ROOM NO.BS/L0 I N 32, EZRA STREET STILL CONTINUED IN THE NAME OF THE TRUST AND WAS UNDER THE OCCUPATION OF THE TENANT SMT. GIRIJA DEVI SHAH. ON THE DATE OF SEARCH. APPELLANT SUBMITTED IN RESPE CT OF THE THREE ROOMS BEING NOS. 7,13 14 AT 159/ A, RASH BEHARI AVENUE THAT THE TRUST CON TINUED TO BE THE OWNER OF THE PREMISES AND THE ROOMS CONTINUED TO BE IN OCCUPATIO N OF TENANTS ON THE DATE OF THE SEARCH. THESE FACTS HAVE NOT BEEN CONTRADICTED BY T HE ASSESSING OFFICER AND THEREFORE IT CANNOT BE SAID THAT THE ADVANCE. OF RS. 2.3 LAKH FO R CONTEMPLATED SALE REPRESENTS SALE. RECEIPT UNLESS THE SALE OF ROOMS IS ACTUALLY AFFECT ED. FACTS OF THE CASE SHOW THAT THESE ROOMS WERE NOT SOLD BY BRIJLAL TODI CHARITABLE TRUS T SUBSEQUENTLY, THEREFORE, THE QUESTION OF ANY INCOME, FROM SUCH NON EXISTING SALE WOULD NOT ARISE. WHEN THE EVENT FOR GENERATION OF INCOME IS NON EXISTENT THE QUESTI ON OF ANY UNDISCLOSED INCOME FROM SUCH EVENT CANNOT ARISE. THE EVIDENCES THEREFORE SH OW THAT THE CONTEMPLATED SALE OF ONE ROOM OF 32, EZRA STREET AND THREE ROOMS OF 159/ A, RASH BEHARI AVENUE FOR THE ADVANCE OF RS. 2.3 LAKH COULD NOT BE CONVERTED INTO SALE AND THEREFORE NO UNDISCLOSED INCOME OF THE APPELLANT CAN BE DETERMINED ON THE BA SIS OF SUCH CONTEMPLATED SALE WHICH DID NOT REALIZE. 10. AGGRIEVED BY THE RELIEF GRANTED BY CIT(A) THE R EVENUE HAS RAISED GROUND NO.1 BEFORE THE TRIBUNAL IN THIS APPEAL. AGGRIEVED BY TH E ORDER OF CIT(A) SUSTAINING THE ADDITION OF RS.10 LAKHS THE ASSESSEE HAS PREFERRED CROSS OBJECTION BEFORE THE TRIBUNAL. IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 8 11. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LEARNE D DR RELIED ON THE ORDER OF AO. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE CIT(A). 12. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS. IT IS OBSERVED FROM THE ORDER OF CIT(A) THAT THE PRIMARY REASON AS SIGNED BY CIT(A) FOR SUSTAINING THE ADDITION TO THE EXTENT OF RS.10,00,000/-WAS THA T THE SEIZED DOCUMENTS EVIDENCED RECEIPT OF RS.2.5 LAKHS BY CHEQUE AND A FURTHER SUM OF RS.12.30 LAKHS BY CASH. CIT(A) HAS PROCEEDED ON THE ASSUMPTION THAT THE RECEIVED O F RS.2.5 LAKHS BY CHEQUE HAS NOT BEEN DENIED AND THEREFORE THE RECEIPT OF CASH OF RS .12.30 LAKHS COULD ALSO NOT BE DENIED. THE CIT(A) PROCEEDED ON THE BASIS THAT IF P ART OF THE SEIZED DOCUMENTS IS ACCEPTED AS TRUE THEN THE WHOLE OF SUCH SEIZED PAPE R IS REQUIRED TO BE ACCEPTED AS TRUE. IN OUR OPINION IN COMING TO THE ABOVE CONCLUSION TH E CIT(A) HAS PRESUMED THAT A SUM OF RS.2.5 LAKHS RECEIVED IN CHEQUE WAS RECEIVED BY THE ASSESSEE. THIS PRESUMPTION IS NOT CORRECT. IN THIS REGARD WE FIND FROM THE DEED O F CONVEYANCE DATED 01.09.1999 EXECUTED BY BRIJLAL CHARITABLE TRUST IN FAVOUR OF S HRI RAKESH GARG, ONE OF THE TENANTS OF THE PREMISES AT ROOM NO.56, 32, EZRA STREET, KOL KATA THAT THE CHEQUE WAS GIVEN IN THE NAME OF BRAJLAL TODI CHARITABLE TRUST. THE REGI STERED DEED OF CONVEYANCE WAS SIGNED BY SHRI ANIL KUMAR TODI ON BEHALF OF THE TRU ST AND NOT BY THE ASSESSEE. IT MAY BE TRUE THAT THE TRUST HAS RECEIVED A SUM OF RS.2.5 LAKHS BY CHEQUE BUT RECEIPT OF RS.12.30 LAKHS BY CASH AS FOUND IN THE SEIZED DOCUM ENTS CANNOT BE ATTRIBUTED TO THE ASSESSEE. IN THIS REGARD WE FIND THAT ORDER OF THE AO AS WELL AS CIT(A) IS SILENT AS THE STATEMENT U/S 132(4) OF THE ACT OF THE ASSESSEE HAS BEEN RECORDED AT THE TIME OF SEARCH. IN SUCH CIRCUMSTANCES IT IS NOT POSSIBLE TO ATTRIBU TE THE INCOME IN THE HANDS OF THE ASSESSEE BASED ON ENTRIES IN THE LOOSE SHEET FOUND AT THE TIME OF SEARCH WHICH WAS ADMITTEDLY NOT IN THE HANDWRITING OF THE ASSESSEE. IN THIS REGARD THE LEARNED DR PLACED EMPHASIS ON THE FACTS THAT U/S 292C OF THE ACT THER E IS A PRESUMPTION THAT THE DOCUMENTS FOUND IN POSSESSION ARE IN CONTROL OF ANY PERSON IN THE COURSE OF SEARCH U/S 132 OF THE ACT BELONGS TO SUCH PERSON AND THAT CONT ENTS OF SUCH DOCUMENTS ARE TRUE. THIS PRESUMPTION IS A REBUTTABLE PRESUMPTION. THE FACTS AND CIRCUMSTANCES IN A GIVEN CASE MAY BY ITSELF WOULD BE SUFFICIENT TO REBUT THE PRESUMPTION U/S 292C OF THE ACT. IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 9 THE PRESUMPTION U/S 292C OF THE ACT CANNOT BE EQUAT ED TO A CONCLUSIVE PROOF. AS WE HAVE ALREADY SEEN THAT BOTH THE PROPERTIES IN QUEST ION DO NOT BELONG TO THE ASSESSEE AND BELONG TO BRIJLAL TODI CHARITABLE TRUST. FROM T HE CONVEYANCE DEED EXECUTED IN FAVOUR OF THE TENANT BY THE TRUST IT IS CLEAR THAT THE ASSESSEE WAS NOT IN CONTROL OR MANAGEMENT OF THE TRUST AND IT WAS ONE SHRI ANIL KU MAR TODI, WHO HAD EXECUTED THE DEED OF CONVEYANCE. IN FACT IT WAS NOT THE CASE OF THE AO ALSO THAT THE ASSESSEE WAS MANAGING ALL THE AFFAIRS OF THE TRUST AND WAS IN A POSITION TO DOMINATE THE AFFAIRS OF THE TRUST. IN THESE CIRCUMSTANCES WE ARE OF THE VIEW TH AT NO CREDENCE CAN BE PLACED ON THE SEIZED DOCUMENTS TO MAKE THE IMPUGNED ADDITION IN T HE HANDS OF THE ASSESSEE. 13. ANOTHER REASON GIVEN BY CIT(A) WAS THAT IT WAS HIGHLY PROBABLE THAT WHEN A DEED OF CONVEYANCE WAS EXECUTED IN FAVOUR OF THE TE NANT BY THE TRUST, CONSIDERATION PAID OTHERWISE THAN IN CASH WOULD HAVE BEEN POCKETE D BY THE ASSESSEE. THE CIT(A) IN COMING TO THE ABOVE CONCLUSION HAS PROCEEDED ON THE PRESUMPTIONS WITHOUT SUFFICIENT EVIDENCE TO JUSTIFY SUCH CONCLUSION. IN OUR VIEW CI RCUMSTANTIAL EVIDENCE IN THIS CASE BY NO STRETCH OF IMAGINATION CAN LEAD TO A CONCLUSI ON THAT THE ASSESSEE WOULD HAVE RECEIVED THE CASH CONSIDERATION ON SALE OF TENANCY RIGHTS. IN THIS REGARD IT IS ALSO SEEN THAT NONE OF THE TRANSFEREE WERE EXAMINED WITH REFE RENCE TO THE SEIZED DOCUMENTS. IN OUR VIEW THEREFORE NEITHER THE ADDITION OF RS.10 LA KHS NOR ADDITION OF RS.2.30 LAKHS WHICH IS AGITATED BY THE REVENUE IN ITS APPEAL CAN BE SUSTAINED. FOR THE REASONS GIVEN ABOVE, WE THEREFORE ALLOW THE CROSS OBJECITON OF TH E ASSESSEE AND DISMISS GROUND NO.1 RAISED BY THE REVENUE. 14. AS FAR AS GROUND NOS. 2 AND 3 RAISED BY THE REV ENUE ARE CONCERNED, AS WE HAVE ALREADY SEEN IN THE COURSE OF SEARCH DOCUMENTS SEIZ ED NT/1 AT PAGES 34,35,36, 37 AND 38 ARE THE RELEVANT DOCUMENTS. AS FAR AS THE AFORES AID GROUNDS OF APPEAL ARE CONCERNED THE FIRST ASPECT THAT NEEDS TO BE NOTICED IS THAT I N THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE SPECIFICALLY POINTED OUT B EFORE THE AO THAT PAGES 22 TO 42 OF NT/1 ARE DOCUMENTS BELONGING TO M/S. BCL FINANCIAL SERVICES LTD.OF WHICH THE ASSESSEE IS THE MANAGING DIRECTOR AND THAT BCL WILL EXPLAIN THE TRANSACTIONS AS IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 10 MENTIONED IN THESE DOCUMENTS. THIS CONTENTION OF TH E ASSESSEE WAS ACCEPTED BY THE AO AND THE FOLLOWING ARE THE OBSERVATIONS OF THE AO IN THIS REGARD : NECESSARY DECLARATIONS HAD BEEN FILED BY THE ABOVE PERSONS CONCERNED ACKNOWLEDGING THE TRANSACTION NOTED IN THE ABOVE MENTIONED DOCUME NTS RELATE TO THEM AND THEY WILL EXPLAIN THE TRANSACTION WHEN ASKED FOR. PROCEEDINGS UNDER SEC. 158BC HAD ALREADY BEEN INITIATED IN RESPECT OF M/S. BCL FINANCIAL SERVICE S LTD., SMT. RAJ KUMARI TODI AND M/S. KHAZANA AGRICULTURAL EQUIPMENTS LTD. IN VIEW OF THE ABOVE THE TRANSACTIONS NOTED IN THE DOCUMENTS EXCEPT THOSE STATED ABOVE WERE CONSIDERED AT THE HAND OF THE ASSESSEE SHRI NI RANJAN LAL TODI. 15. HAVING DECIDED TO PROCEED AGAINST M/S. BCL FINA NCIAL SERVICES LTD. AO STILL RAISED QUERIES WITH REGARD TO THE SEIZED DOCUMENTS PAGE NT/1 PAGE 34, 36, 37 AND 38. 15.1. PAGE 34(NT/1) :AS FAR AS NT/1 PAGE 34 THE SEIZED DOCUMENTS IS CO NCERNED THERE WAS A NOTING AT SL. NO.11 OF THE ENTRY 2 LA KHS FROM P.JALAN.. THE NOTING HAS BEEN STRUCK OFF. THE ASSESSEE DENIED HAVING RECEIVE D ANY MONEY AS PRESUMED BY THE AO BASED ON THE SEIZED DOCUMENTS. THE ASSESSEE ALSO POINTED OUT THAT THE NOTING WAS IN RECEIPT OF A SUM OF RS.2 LAKHS REPAID BY MR.JALA N BY CHEQUE ON 19.04.2000 TO M/.S. BCL FINANCIAL SERVICES LTD., AGAINST THE AMOUNT DUE . THE CHEQUE WAS DISHONOURED AND BCL HAS FILED SUIT AGAINST MR. JALAN FOR RECOVE RY OF RS.2 LAKHS. THE AO REFUSED TO BELIEVE THE CLAIM OF THE ASSESSEE BY OBSERVING T HAT NO CORROBORATING EVIDENCE WAS FILED BY THE ASSESSEE IN THIS REGARD. 15.2. ON APPEAL BY THE ASSESSEE THE CIT(A) DELETED THE ADDITION MADE BY THE AO FOR THE FOLLOWING REASONS :- 4.4. THE PAGE NO.34 OF NT/1 IS A COMPUTER PRINT OU T OF THE LEDGER ACCOUNT ADVANCE TO OTHERS PRAMOD JALAN, FROM THE BOOKS OF BCL F INANCIAL SERVICES LTD. (BCL) . THERE IS ONE CHEQUE PAYMENT ENTRY AND TWO CONTRA EN TRIES RELATED TO CHEQUE RECEIPT AND CHEQUE DISHONOR AND ALL SUCH ENTRIES ARE RS.2 LAKHS . APPELLANT HAS EXPLAINED ALL THE ENTRIES ON BEHALF OF BCL WITH EVIDENCE WHICH THE A SSESSING OFFICER HAS REJECTED WITHOUT ANY REASON EVEN AFTER STATING IN PAGE NO.4 OF THE ASSESSMENT ORDER THAT PAGE NO 22 TO 42 (WHICH INCLUDES PAGE NO.34) OF THE SEIZED DOCUMENT NT/1 BELONG TO BCL FINANCIAL SERVICES LTD.. I THEREFORE DELETE THE UN DISCLOSED INCOME OF RS.2 LAKHS DETERMINED BY ASSESSING OFFICER IN RESPECT OF PAGE NO. OF NT/1. IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 11 16. PAGE 35 (NT/1) :- AS FAR AS THE AFORESAID SEIZED DOCUMENT IS CONC ERNED THE ASSESSEE EXPLAINED THAT THE AFORESAID SEIZED DOCUME NTS CONTAINED A LIST OF NAMES OF CERTAIN PERSONS AND CERTAIN FIGURES WRITTEN AGAINST THOSE NAMES. THE FIGURES TOTALED A SUM OF RS.12.5 LAKHS. IT WAS A CLAIM OF THE ASSESSE E THAT THESE NOTINGS DO NOT RELATE TO HIM AND WAS A DUMB DOCUMENT AND NOT SPEAKING BY ITS ELF. THE AO, HOWEVER, REJECTED THE CLAIM OF THE ASSESSEE AND MADE ADDITION OF RS.1 2.5 LAKHS. ON APPEAL BY THE ASSESSEE THE CIT(A) DELETED THE ADDITION MADE BY A O. THE SECOND PART OF PAGE 35 CONTAINED CERTAIN NOTINGS OF TRANSACTIONS. THESE AR E LISTED AT PAGES 8 AND 9 OF THE ASSESSMENT ORDER. THESE NOTINGS CONTAINED DETAILED AMOUNT AND PAYMENT EXPECTED BY A CERTAIN DATE. THE SUM TOTAL OF THE FIGURES RECORD ED IN THESE LOOSE SHEET WAS RS.50.85 LAKHS. DESPITE EXPLANATION OF THE ASSESSEE THAT HE WAS NOT AWARE OF THE CONTENTS OF THE DOCUMENT AND THAT THE DOCUMENTS IN ANY CASE IS A DU MB DOCUMENTS WHICH IT IS NOT SUPPLYING OF ANY RECEIPT OF MONEY BY THE ASSESSEE. AO ADDED A SUM OF RS.50.85 LAKHS. 16.1. ON APPEAL BY THE ASSESSEE THE CIT(A) ,DELETE D THE ADDITION MADE BY THE AO FOR THE REASONS IN PARA 4.5. OF THE ORDER WHICH IS AS F OLLOWS :- 4.5 THE PAGE 35 OF NTI/1 CONTAINS IS A LIST OF TRA NSACTIONS, MOSTLY SALE OF VEHICLES WITH THE NAMES OF OWNER OF SUCH VEHICLES, WHICH ARE LIKE LY TO RESULT IN RECEIPT OF HEAVY MONEY. THE AMOUNT OF EXPECTED RECEIPT IS ALSO WRITT EN AND DATE OF EXPECTED RECEIPT IS ALSO WRITTEN. THE PAPER APPEARS TO BE PREPARED ON 1 1.11.99 AND MOST OF THE ENTRIES WRITTEN WERE SCORED OUT SUBSEQUENTLY. THE TOTAL AMO UNT IS RS 50.85 LAKH. ASSESSING OFFICER HAS NOT BROUGHT, ANY CORROBORATIVE EVIDENCE IN THE FORM OF SALE OF VEHICLE MENTIONED IN THIS PAPER, IDENTITY OF THE OWNER OF T HE VEHICLE WRITTEN IN THIS PAPER AND THE REASON AS HOW SUCH SALE CAN RESULT IN UNDISCLOSED I NCOME OF APPELLANT WHEN THE RELATION OF APPELLANT WITH SUCH TRANSACTION OR VEHICLE IS NO T ESTABLISHED AT ALL. AS MENTIONED ABOVE, ALL THESE ENTRIES ARE SCORED OUT. I THEREFOR E FIND THAT THESE ENTRIES ARE DUMB ENTRIES AND NO ARBITRARY MEANING WITHOUT ANY EVIDENCE OR SU BSTANCE SHOULD BE ASSIGNED TO THEM. ON THE SAME PAGE, FIVE NAMES WITH CERTAIN FIGURES A GAINST THEM ARE WRITTEN IN RED INK TOTALING RS 12.5. APPELLANT EXPLAINED ALL THESE ENT RIES WITH EVIDENCE TO ASSESSING OFFICER AS AMOUNT REALIZABLE FROM THE DEBTORS OF 'B CL' EXCEPT THE ENTRY OF RS 2 LAKH FROM VIKRAM SINGH WHICH THE APPELLANT WAS NOT AWARE OF. THE ONUS IS ON ASSESSING OFFICER TO REBUT THE CLAIM OF APPELLANT WHICH THE A SSESSING OFFICER COULD HAVE EASILY DONE IF IT WAS POSSIBLE BECAUSE ASSESSING OFFICER I S THE ASSESSING OFFICER OF 'BCL' ALSO. FURTHER, TO HOLD SUCH ENTRIES AS UNDISCLOSED INCOME OF APPELLANT, ONUS IS ON ASSESSING OFFICER TO PRODUCE SUPPORTING EVIDENCE TO SUBSTANTIATE THE NATURE AND AMOUNT OF SUCH TRANSACTIONS. ASSESSING OFFICER FAILED ON B OTH THE FRONTS AND THEREFORE SUCH ENTRIES CANNOT BE HELD TO BE REPRESENTING THE UNDIS CLOSED INCOME OF RS. 12.5 LAKH OF THE IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 12 APPELLANT. I THEREFORE DELETE THE UNDISCLOSED INCOM E OF RS. 50.851AKH + RS 12.5 LAKH DETERMINED BY ASSESSING OFFICER IN RESPECT OF PAGE NO 3.5.OF NT/I. 17. PAGES 36 TO 38 OF NT/1 : AS FAR AS THE AFORESAID PAGES OF THE SEIZED DOCUMEN TS ARE CONCERNED, ON THE BASIS OF PAGE 36, ACCORDING TO THE ASSESSEE NO INFERENCE CAN BE DRAWN FROM THE NOTINGS IN THE SEIZED PAPER, AS IT DOES NOT SPELT OUT TRANSACTIONS THAT HAD ACTUALLY TAKEN PLACE. AO, HOWEVER CAME TO THE CONCLUSION THAT PAGE-36 REPRESE NT TRANSACTIONS IN RESPECT OF THE SALE OF CAR AND THE ASSESSEE RECEIVED RS.3.30 LAKHS . AS FAR AS PAGE 37 IS CONCERNED SIMILAR CONCLUSION WAS DRAWN BY AO AND THE ADDITION OF RS.8.05 LAKHS WERE MADE. IN RESPECT OF PAGE 38 ALSO SIMILAR CONCLUSION WERE DRA WN BY THE AO. ADDITION OF RS.4.65 LAKHS WERE MADE WITH THE TOTAL INCOME OF THE ASSESS EE. 17.1. THESE ADDITIONS WERE DELETED BY CIT(A) FOR T HE REASONS GIVEN IN PARA 4.6 OF HIS ORDER WHICH READS AS FOLLOWS :- 4.6 THE PAGE 36, 37 AND 38 OF NT/L CONTAIN LIST OF SOME VEHICLES AND PERSONS FROM WHOM MONEY IS TO BE REALIZED AND MONEY IS TO BE REC EIVED ON ACCOUNT OF SALE OF VEHICLE. IN SOME PLACES NAME OF THE OWNER OF THE VEHICLE IS ALSO WRITTEN. SOME OF THESE ENTRIES ARE SCORED OUT ALSO. THE TOTAL AMOUNT APPEARING ON THESE PAGES, IRRESPECTIVE OF THE FACT, WHETHER ENTRIES ARE SCORED OUT OR NOT, WHETHER ENTR IES REFLECT ANY DEBT OR INCOME, WHETHER ENTRIES PERTAINS TO APPELLANT OR ANY OTHER PERSON, IS CONSIDERED BY THE ASSESSING OFFICER AT RS. 3.3 LAKH + RS. 8.05 LAKH + RS. 4.65 LAKH . ASSESSING OFFICER_HAS NOT BROUGHT ANY, CORROBORATIVE EVIDENCE IN THE FORM OF SALE OF VEHICLE MENTIONED IN THESE PAPERS, IDENTITY OF THE OWNER OF THE VEHICLE, IDENT ITY OF DEBTOR, WRITTEN IN THIS PAPER AND THE REASON AS HOW SUCH SALE AND RECEIPT CAN RESULT IN UNDISCLOSED INCOME OF APPELLANT WHEN THE RELATION OF APPELLANT WITH SUCH TRANSACTIO N OR VEHICLE IS NOT ESTABLISHED AT ALL. MOREOVER, SOME OF THE ENTRIES ARE SCORED OUT. I THE REFORE FIND THAT THESE ENTRIES ARE DUMB ENTRIES AND NO ARBITRARY MEANING WITHOUT ANY EVIDEN CE OR SUBSTANCE SHOULD BE ASSIGNED TO THEM. I THEREFORE DELETE THE UNDISCLOSED INCOME OF RS. 3.3 LAKH + RS. 8.05 LAKH + RS. 4.65 LAKH DETERMINED BY ASSESSING OFFICER IN RESPEC T OF PAGE NO 36,37 AND 38 OF NT/L. 18. AGGRIEVED BY THE CONCLUSION ARRIVED AT BY THE C IT(A) THE REVENUE HAS PREFERRED GROUND NOS. 2 AND 3 BEFORE THE TRIBUNAL. 19. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED D R WHO PRIMARILY SUBMITTED THAT THOUGH THE TRANSACTIONS MIGHT RELATE TO M/S. BCL FI NANCIAL SERVICES THE ASSESSEE IN HIS CAPACITY AS MANAGING DIRECTOR HAD RECEIVED THE MONE YS SET OUT IN THE FORM OF NOTINGS IN THE SEIZED PAPERS. HE HAS POINTED OUT THAT WHEN SIMILAR SITUATION PREVAILED IN IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 13 RESPECT OF MONEYS RECEIVED BY THE ASSESSEE ON BEHAL F OF BRIJLAL TODI CHARITABLE TRUST, THE AO DREW AN INFERENCE THAT THE ASSESSEE BEING IN COMPLETE CONTROL OF THE ACTIVITIES OF THE TRUST OUGHT TO HAVE RECEIVED ON MONEY FROM T HE TRANSFEREES. ACCORDING TO HIM SUCH AN INFERENCE HAD TO BE DRAWN EVEN THE SEIZED D OCUMENT IS ATTRIBUTABLE TO M/S. BCL BECAUSE THE ASSESSEE WAS THE MANAGING DIRECTOR IN COMPLETE CONTROL OF BCL. AGAIN REFERENCE WAS MADE TO PROVISION TO SECTION 29 2C OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF CIT (A). 20. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS, THE FIRST ASPECT AS WE HAVE ALREADY NOTICED, IS THAT THE AO WAS CONV INCED THAT SEIZED DOCUMENTS NT/1 34 TO 38 BELONG TO BCL AND THAT APPROPRIATE PROCEED INGS WILL BE INITIATED AGAINST BCL IN RESPECT OF TRANSACTIONS. HAVING COME TO SUCH A C ONCLUSION THE AO COULD NOT HAVE ATTRIBUTED THE ENTRIES IN THE SEIZED DOCUMENTS TO T HE ASSESSEE. AS FAR AS PAGE 34 OF THE SEIZED DOCUMENT IS CONCERNED WE FIND THAT THIS CONT AINS MORE OF A MEMORANDUM OF THINGS TO BE DONE WHICH IS IN THE FORM OF COMPUTER PRINT OUT. THERE IS NOTHING BROUGHT ON RECORD AS TO WHO IS THE AUTHOR OF THE DOCUMENTS. BESIDES THE ABOVE NO ADVERSE INFERENCE CAN BE BEEN DRAWN FROM THE SEIZED DOCUMEN TS BECAUSE MANY OF THE WRITING HAS BEEN STRUCK OUT IN THE SEIZED PAPER. AS FAR AS PAGE 35 IS CONCERNED, AGAIN THERE ARE SEVERAL ENTRIES WHICH HAVE BEEN SCORED OFF. ON THE TOP OF PAGE 35 A LIST OF FIVE NAMES AND CERTAIN FIGURES AGAINST THESE NAMES ARE FOUND. AS TO WHETHER THE SUM SHOWN AGAINST THE NAMES ARE MONIES RECEIVABLE OR PAYABLE BY THE ASSESSEE, HAS NOT BEEN BROUGHT OUT ON RECORD. AS RIGHTLY HELD BY THE CIT(A ), THE DOCUMENT DOES NOT SPEAK FOR ITSELF. THERE IS NOTHING TO SHOW THAT THE SEIZED DO CUMENTS ACTUALLY EVIDENCE SALE OF CARS AND THAT THESE PAYMENTS HAD TO BE RECEIVED BY THE ASSESSEE. AS FAR AS PAGES 36 TO 38 ARE CONCERNED AGAIN THESE DOCUMENTS SEEM TO RECO RD APPROXIMATE SALE PRICE REALIZABLE AND THE COURSE OF ACTION TO BE ADOPTED A ND TIME FRAME WITHIN WHICH CERTAIN ACTIONS ARE TO BE TAKEN. THIS CANNOT BE THE BASIS T O COME TO A CONCLUSION THAT THERE WAS SALE AND THE FIGURES MENTIONED IN THE DOCUMENTS WER E IN FACT REALIZED BY THE ASSESSEE. BESIDES THE ABOVE ALL THESE ENTRIES ARE NOT ATTRIBU TABLE TO THE ASSESSEE AND WERE THAT OF BCL. WE ARE ALSO OF THE VIEW THAT THE PRESUMPTION U /S 292 C OF THE ACT, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, STAND REBUTTED . WE ARE OF THE VIEW THAT CIT(A)ON IT(SS)A.NO.24/KOL/2010&C.O.04/KOL /2011 SHRI NIRANJAN LAL TODI. BLOCK PERIOD 01.04.1990 TO 12.02.2001 14 THIS ISSUE DOES NOT CALL FOR ANY INTERFERENCE. ACCO RDINGLY GROUND NOS. 2 AND3 RAISED BY THE REVENUE ARE DISMISSED. 21. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED AND THE CROSS OBJECTION BY THE ASSESSEE IS ALLOWED. . ORDER PRONOUNCED IN THE COURT ON 3.2.2016. SD/- SD/- [M.BALAGANESH] [N.V.VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBE R DATE: 3.2.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . SRI NIRANJAN LAL TODI, 2, QUEENS PARK, KOLKATA-7000 19. 2 THE D.C.I.T., CENTRAL CIRCLE-XXI, KOLKATA. 3 . THE CIT-CENTRAL-II, KOLKATA, 4. THE CIT(A)-CENTRAL-II, KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES