Appeal Details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 5053 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
2 year(s) 3 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
07-03-2022
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
2009-2010
Appeal Filed On
27-11-2019
Judgement Text
आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING IT(SS)A No.260/Ind/2019 Assessment Year:2009-10 ACIT(Central)-1 Indore बनाम/ Vs. Shri Chitresh Mehta Indore (Appellant) (Respondent ) P.A. No.ACRPM6745P CO No.08/Ind/2020 (Arising out of IT(SS)A No.260/Ind/2019) Assessment Year:2009-10 Shri Chitresh Mehta Indore बनाम/ Vs. ACIT(Central)-1 Indore (Appellant) (Respondent ) P.A. No.ACRPM6745P Appellant by Shri P.K. Mitra, CIT-DR Respondent by S/Shri Anil Kamal Garg & Arpit Gaur, CAs Date of Hearing: 07.01.2022 Date of Pronouncement: 08.03.2022 आदेश / O R D E R PER MANISH BORAD, A.M: The above captioned appeal filed at the instance of the Assessee for Assessment Year 2015-16 is directed against the order of Ld. Commissioner of Income Tax (Appeals)-1, Indore dated Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 2 20.09.2019 which is arising out of the order u/s 143(3) of the Act dated 28.03.2013 framed by ACIT 1 (1), Indore. 2.1 Grounds of appeal raised by the Revenue in IT(SS)A No.260/Ind/2019: “1. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs. 12 crores made by the Assessing Officer on account of unexplained payment / Dubai Hawala on the basis of LPS - 33. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.95,00,000/- made by the Assessing Officer u/s.68 of the Income Tax Act, 1961 without considering and appreciating the fact that the credibility of the loan creditor and the genuineness of transactions was not established by the assessee during the assessment proceedings. 3. On the facts and in the circumstances of the case the Ld. CIT (A) erred in not adjudicating the issue of addition of Rs.45,00,000/- being unsecured loan from SCS Builders & Developers Pvt. Ltd. And that the CIT(A) ought to have examines the merits of the issue and accordingly issued the directions to the Assessing Officer with respect to the Assessment Year 2008-09 in the interest of the revenue. 4. On the facts and in the circumstances of the case the Ld. CIT(A) erred in restricting the addition to Rs. 50,000/- in place of Rs.1,28,750/- made by the Assessing Officer on account of low house hold expenses despite high standard of living of the assessee.” 2.2 Grounds of Cross Objections raised by the Assessee in CO No.8/Ind/2020: “1a). That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred, in law, in confirming the addition of Rs.5,00,000/- made by the AO in the assessee’s income, on account of alleged receipt from M/s. Phoenix Leisure & Lifestyle Pvt. Ltd., without considering the material fact that having already furnished original return of income under s.139(1) of the Act, on the date of Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 3 initiation of the search under s.132, no assessment proceeding was pending in respect of the assessment year under consideration and therefore, without having recourse to any seized incriminating document or material, no addition could have been made. 1b). That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in confirming the addition of Rs.5,00,000/- made by the AO in the assessee’s income, on account of alleged receipt from M/s. Phoenix Leisure & Lifestyle Pvt. Ltd., merely on guesswork, surmises and conjectures, without considering the material fact that the assessee never made any financial transaction with above named company. 2. That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in confirming the addition to the extent of Rs.50,000/- made by the AO in the assessee’s income, on account of alleged low household withdrawals without considering the material fact that having already furnished original return of income under s.139(1) of the Act, on the date of initiation of the search under s.132, no assessment proceeding was pending in respect of the assessment year under consideration and therefore, without having recourse to any seized incriminating document or material, no addition could have been made. 3a). That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred, in law, in confirming the addition of Rs.1,10,000/- made by the AO in the assessee’s agricultural income, without considering the material fact that having already furnished original return of income under s.139(1) of the Act, on the date of initiation of the search under s.132, no assessment proceeding was pending in respect of the assessment year under consideration and therefore, without having recourse to any seized incriminating document or material, no addition could have been made. 3b). That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in confirming the addition of Rs.1,10,000/- made by the AO in the assessee’s agricultural income, merely on guess work, surmises and conjectures without considering the land holding of the assessee and other surrounding circumstances. 4. That, the assessee further craves leave to add, alter, omit and/or modify any of the grounds of appeal as and when considered necessary.” Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 4 2. The brief facts of the case as culled out from the records are that the assessee, an individual, is carrying out the business of forward trading through MCX. A Search u/s. 132(1) of the Income- Tax Act, 1961 was carried out in the residential premises of the assessee on 25-11-2010. In pursuance of the Search, assessments under section 153A of the Income-Tax Act, 1961 were framed in the case of the assessee for the A.Ys. 2005-06 to A.Y. 2011-12. For the assessment year under consideration, the Learned Assessing Officer (in short Ld.AO) had issued notices from time to time which were compiled by the assessee and submissions along with documentary evidences have been filed. Thereafter, the Ld.AO framed the assessment in the case of the assessee on 28-03-2013 u/s. 153A r.w.s. 143(3) of the Act by determining the total taxable income of the assessee at Rs.13,51,25,920/- as against the Returned income of Rs.4,97,169/- thereby making additions of Rs.13,46,28,750/- to the income shown by the assessee. 3. Aggrieved assessee preferred an appeal for the assessment year under consideration before Ld. CIT(A). The ld. CIT(A) gave partial relief . 4. Now, aggrieved by the relief granted by the ld. CIT(A) to the assessee, the revenue is in appeal before this Tribunal and against the additions confirmed by the ld. CIT(A), the assessee has preferred cross objections before us. As submitted by the Ld. Counsel for the assessee (in short Ld.AR) and also duly accepted by the Ld. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 5 Departmental Representative ( in short Ld.DR) that the issues raised by both the sides are common arising out of the similar facts for the sake of convenience and brevity, they were heard together on the request of both the parties and are being disposed off by this common order. 5. Ground No. 1 of the Revenue 5.1 Through this ground of appeal, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.12 crore on account of ‘Unexplained Payment/ Dubai Hawala’. 5.2 Briefly stated facts of the issue, as emanated from the assessment records, are that during the course of search under section 132 of the Income-Tax Act, 1961 in some Satellite Group on 19-11-2009, several incriminating documents inventorized as page nos. 74 to 76 of LPS-33 were seized from the premises of one company M/s. Phoenix Devcons Pvt. Ltd. The Ld.AO noted that during the course of assessment proceedings in the case of Shri Nilesh Ajmera of Satellite Group, it was established that Shri Nilesh Ajmera along with others, including the assessee, had invested in the Real Estate project i.e. ‘The World’ in Dubai. The Ld.AO reproduced the findings given by the Ld.AO of Shri Nilesh Ajmera while framing his assessment order for A.Y. 2009-10. The sum and substance of the findings given in the case of Shri Nilesh Ajmera is that there was some real estate project in Dubai titled as ‘The World’ project. As per the page no. 76 of LPS-33 seized from the premises of M/s. Phoenix Devcon Pvt. Ltd., three persons namely Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 6 Nilesh Ajmera, Ritesh Ajmera and some Chitresh had respectively made an investment of Rs.5,60,50,000/-, Rs.15,40,00,000/- and Rs.12,00,00,000/-. According to Ld.AO of Nilesh Ajmera, these details at page 76 had to be read in conjunction with the details at page no. 75. According to the Ld. AO, Nilesh Ajmera failed to explain the sources of such investments. Ld.AO of Nilesh Ajmera mentioned that on page no. 76, there was no detail as to the date on which the amounts have been paid but, by making a correlation of such page with other seized documents, it could be inferred that the amount has been invested during the assessment year 2009-10. After giving such findings, Ld.AO framing the assessments in Satellite/ Phoenix Group, made an addition of Rs.15,40,00,000/- in the hands of Ritesh Ajmera and an addition of Rs.5,60,50,000/- in the hands of Nilesh Ajmera. Since in the aforesaid loose paper, besides the names of Nilesh Ajmera and Ritesh Ajmera, name of some ‘Chitresh’ was also appearing. Ld.AO of the assessee attributed such name to the assessee. Accordingly, during the course of the assessment proceedings, the assessee was issued a questionnaire dated 01-10-2012 averting that the assessee had invested Rs.12 crores in the project ‘The World’. The assessee was required to explain the source of payment, mode of payment and status of its recording in his books of account. The assessee was further required to produce Ritesh Ajmera and Nilesh Ajmera with their books of account. In response to such questionnaire, the assessee made his detailed reply, which has been reproduced by the Ld.AO at para no. 3.3 on page nos. 13 to 18 of the assessment Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 7 order. However, the submission of the assessee was not found acceptable by the AO on the various grounds as stated at para no. 3.4 of the assessment order. According to Ld. AO, the contention of the assessee that he had never made any financial transaction either with Phoenix Devcons Pvt. Ltd. (PDPL) or the directors/promoters of PDPL was not correct as the assessee during the course of giving his statement under section131 of the Income Tax Act, 1961 on 30-01-2013 had admitted that he was acquainted with Nitesh Chugh, Director of PDPL and Avalanche Realties Pvt. Ltd. and further, a company namely MCS Trading Company Pvt. Ltd., in which the assessee was one of the directors, had purchased one plot from Avalanche Realties Pvt. Ltd.. Further, Ritesh Ajmera, vide his statement recorded on 18-02-2013, under section 131 of the Income-Tax Act, 1961, had confirmed that he had met the assessee during some social function. The AO further rebutted that the page nos. 75 & 76 as seized from the premises of PDPL were not dumb documents and the decision of Hon’ble Supreme Court in the case of CBI vs. V.C. Shukla & Ors. AIR (1998) SC 1121 in the landmark judgment of Jain Hawala Case was not applicable as that judgment was rendered in the context of criminal proceedings and not in context of income-tax proceedings which are civil proceedings. The Ld.AO, although admitted that the full name Chitresh Mehta is not appearing in the said loose paper, yet the corroborative evidences established that the ‘Chitresh’ stands for Chitresh Mehta, the assessee. It was further averted by the Ld.AO that the assessee was a very close friend of Satish Neema, who was Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 8 one of the directors of M/s. MCS Trading Company Pvt. Ltd. in which the assessee was also one of the directors and Satish Neema was found to have visited Dubai with the assessee many a times. The AO further averted that the amount of investment in the World Project was sent through hawala channel and therefore, there was no question of having any permission of any government agency. However, according to the Ld.AO, the Enforcement Directorate had been informed by the ACIT-3(1), Indore to investigate the matter. According to the Ld.AO, although the papers were found from Ritesh Ajmera but, the provisions of section 292C (ii) of the Income- Tax Act, 1961 were squarely applicable to the assessee. Ld.AO further observed that the summon were issued to Nilesh Ajmera, Ritesh Ajmera and Sharad Doshi for their personal appearance along with the books of account of their companies/firms but, in response, except Ritesh Ajmera, no one appeared. Further, Ritesh Ajmera could not produce the books of account of M/s Phoenix Devcon Pvt. Ltd.. The Ld.AO further stated that there is a nexus amongst Chitresh Mehta, Nilesh Ajmera, Sharad Doshi, Ritesh Ajmera and Chirag Shah, and all these persons operate from Indore. The Ld.AO further averted that the assessee had deliberately not produced his passport for examination and the same was claimed to have been lost by the assessee. The Ld.AO further averted that the company M/s. MCS Trading Company Pvt. Ltd. in which the assessee is a director had received an unsecured loan from one Balkrishan. As per the Ld.AO, Balkrishan is the main person managing the hawala transaction of the assessee in Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 9 Dubai. The assessee could not produce Balkrishan. The Ld.AO further made a reference of inquiries carried out in the case of some other assessee namely Omprakash Dhanwani in whose case too, simultaneous search, along with the assessee, was carried out on 25-11-2010. According to the AO, during the course of search in the case of Omprakash Dhanwani, one paper was seized in which too, there was a reference of the above named Mr. Balkrishan. Finally, in view of such findings, the Ld.AO made an addition of Rs.12 crores in the hands of the assessee as his undisclosed investment. 5.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made detailed written submissions. The ld. CIT(A) after considering the facts and circumstances of the case, observed that when the additions so made in the hands of the persons from whose possession the loose papers were seized have themselves got deleted and have attained finality with the orders of the Hon’ble ITAT, Indore Bench, there does not remain any question of sustaining any addition in the hands of the assessee. Accordingly, the ld. CIT(A), by relying upon the decision of ITAT, Indore, on identical facts in the cases of Nilesh Ajmera and Ritesh Ajmera, deleted the entire addition of Rs.12,00,00,000/- so made by the Ld.AO. The ld. CIT(A) has given his detailed findings on this issue from para (7) at page no. 26 to para (7.19) at page no. 47 of his Order. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 10 5.4 Aggrieved with the Order of the ld. CIT(A), the revenue is in appeal before us. 5.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 5.6 Per Contra, Learned Counsel for the assessee apart from heavily relying on the finding of Ld.CIT(A), also referred to the written submissions filed before us as well filed before the ld. CIT(A) appearing at page no. 1 to 36 in the voluminous Paper Book containing 404 pages placed on record. 6.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances and carefully gone through the orders of both the lower authorities, decision relied by the Ld.AR and written and oral submissions made from both the sides. Revenue’s grievance is against the finding of Ld.CIT(A) deleting the addition of Rs.12cr made by Ld.AO alleging unaccounted investment . We find that the alleged addition is based on a seized loose paper LPS-33 Pg 74 to 76 which contained names of Nilesh Ajmera, Ritesh Ajmera and Chitresh (alleged to be assessee by Ld.AO) and additions in the hands of Nilesh Ajmera and Ritesh Ajmera were found to be unjustified and based on a dumb document by this Tribunal in the case of Nilesh Ajmera, vide its order dated 17-05-2016 in Appeal Nos. IT(SS)A Nos. 182 to 184/Ind/2013 & ITA-538/Ind/2013 and in the case of Ritesh Ajmera vide its order dated 05-05-2016 in Appeal Nos. IT(SS)A 190 to 192/Ind/2013 and Ld.CIT(A) after considering the facts of the case Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 11 and the decision of this Tribunal in case of Nilesh Ajmera(supra) and Ritesh Ajmera(supra) and other settled judicial precedents deleted the addition in the case of assessee observing as follows:- “7.1 I have gone through the assessment order, the written submissions filed by the appellant and various documentary evidences placed on record. It has been found that the addition has been made on the basis of some loose papers inventorized as Page nos. 74 to 76 of LPS-33 which were seized from the premises of some third person namely M/s. Phoenix Devcons Pvt. Ltd. during the course of some other search carried out in the premises of such company. Thus, the loose papers were not found from the possession and control of the appellant. 7.2 The provisions of section 292C of the Income-Tax Act, 1961 have been inserted in the statute by the Finance Act, 2007 w.r.e.f. 1-10-1975 to empower the income-tax authorities to make certain presumptions on books of account, other documents, money, bullion, jewellery or other valuable article or thing found in the possession or control of any person in the course of a search under section 132 of the Income-Tax Act, 1961 even for the purpose of assessment. Such provision has been inserted in the background of decision of Hon’ble Apex Court in the case of P.R. Metrani vs. CIT (2006) 287 CTR 209 (SC) in which the Apex Court held that the presumption under section 132(4A) of the Income-Tax Act, 1961 is not available for the assessment proceedings. The phraseology used in sub- section (1) of section 292C of the Income-Tax Act, 1961 is pari-materia with that of section 132(4A) of the Income-Tax Act, 1961. I find that many judicial authorities in the context of provisions of section 132(4A) of the Income-Tax Act, 1961 have clearly laid down the ratio that the presumption under section 132(4A) of the Income-Tax Act, 1961 is available only against the person from whose possession the document is found and such presumption is not available against any third party. For this proposition, support is drawn from the judicial pronouncements in the cases of Smt. Bommana Swama Rekha vs. ACIT (2005) 94 TTl (Visakha) 885, Straptex (India) (P) Ltd. vs. DCIT (2003) 79 TTl (Mumbai) 228, Jaya S. Shetty vs. ACIT (1999) 64 TTl (Mumbai) 551, Ashwani Kumar vs. ITO (1992) 42 TTl (Del) 644, Kishanchand Sobhrajmal vs. ACIT (1992) 42 TTl (IP) 423, Rama Traders vs. First ITO (1988) 32 TTl (Pat) 483 (TM), ACIT vs. Kishore Lal Balwant Rai & Ors. (2007) 17 SOT 380 (Chd), Sheth Akshay Pushpavadan vs. DCIT (2010) 130 TTl (Abd)(UO) 42 . 7.3 I have also carefully gone through the loose papers inventorized as page no. 75 to page no. 78 of LPS-33 seized from the premises of Phoenix Devcons Pvt. Ltd., situated at 434, Orbit Mall, 305-306, A.B. Road, Indore during the course of the search under section132 of the Income Tax Act, Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 12 1961 on 19-11-2009 in the case of Satellite/Phoenix Group. The AO has reproduced the scanned copy of such loose papers at page nos. 7 to 10 of his assessment order. For the sake of a ready reference, the scanned copies of such loose papers are being reproduced as under : 7.4 On a perusal of above loose papers, it is seen that these loose papers are in the form of spreadsheets/ excel sheets in which there is no caption. From such excel sheets, it is not discernible who had prepared the same and which period these pertain to. The purpose of preparing such excel sheets could also not been understood. It has been observed that in the excel sheet, inventorized as page no. 77, there is no mention of any name as ‘Chitresh’. However, at the excel sheet inventorized as page no. 76, inter alia, there is a mention of name of some Ritesh Ajmera, Nilesh Ajmera and some Chitresh. Against the name of Chitresh, there has been mention of five amounts of Rs.1,00,00,000/-, Rs.2,00,00,000/-, Rs.2,50,00,000/-, Rs.3,50,00,000/- and Rs.3,00,00,000/- aggregating to a sum of Rs.12,00,00,000/-. However, from such loose papers, it is not at all discernible that (i) the name ‘Chitresh’ attributes to Chitresh Mehta i.e. the appellant (ii) these are the details for making some payments for purchasing some properties in Dubai and (iii) these payments have been sent through hawala channel during the financial year relevant to A.Y. 2009-10. It is also an undisputed fact that during the course of entire search operations in the appellant’s own premises, not a single loose paper or any other document was found or seized from which it could have been inferred that the appellant made any investment in any property at Dubai by making hawala transactions. In my considered view, the entire addition has been made by the AO merely on guess work by presuming that the word ‘Chitresh’ written in the loose paper attributes to no other person than the appellant himself. In my opinion, the contention of the counsel of the appellant has been found tenable that during the course of the search proceedings in the case of the appellant, no document was found as regard to the ownership of any property of the appellant in Dubai or for that matter, the appellant was not found to have given any advance for purchase for any property at Dubai. Therefore, without bringing any other corroborative evidence, merely on suspicion or extraneous considerations, it was not correct on the part of the AO to presume that the name ‘Chitresh’ attributes to the appellant only. Further, in my considered opinion, none of the rebuttals of the appellant’s submissions, given during the course of the assessment proceedings have been found made by the AO in the body of the assessment order. Merely for the reason that one of the companies of the appellant had purchased some property from a company in which one of the directors was also a director in Phoenix Devcon Pvt. Ltd. could not be a ground for holding that the appellant made any financial transaction with Shri Ritesh Ajmera or Shri Nilesh Ajmera. Further, being belonging to the same community, if the appellant was socially acquainted with Shri Ritesh Ajmera, then it could Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 13 not be a ground for suspecting any financial transaction and that too of hawala between the appellant and such Shri Ritesh Ajmera. In my considered opinion, the case of CBI vs. V. C. Shukla, supra, squarely applies in the present set of facts and in many income-tax assessment proceedings, reliance has been placed on such judicial pronouncement of the Hon’ble Apex Court. The Hon’ble Apex Court in the case of Common Cause vs. Union of India (2017) 30 ITJ 197 (SC) has again placed reliance on its earlier decision in the case of V.C. Shukla. The contention of the appellant that, no action has ever been taken against the appellant by the Enforcement Directorate or any other agency against the appellant has also been found reasonable and logical. The appellant been found indulged in any such hawala activities, the alleged transaction having taken place nearly 10 years back, some action would have been taken by the Enforcement Agencies. In my view, the findings of the AO that the appellant could not produce his passport due to misplacement thereof or his nexus with Shri Nilesh Ajmera , Shri Ritesh Ajmera etc., even if taken to be true, could not be a reason for holding that the appellant made any undisclosed investment in any property at Dubai. Even in my view, the findings of the AO in respect of a loose paper found and seized from the premises of some Shri Omprakash Dhanwani has no nexus with the issue in hands. In my view, the AO has relied upon the extraneous considerations for justifying his action of making the addition. 7.5 The Hon’ble Supreme Court, in its landmark judgment in the case of Dhakeswari Cotton Mills Ltd. vs. CIT (1954) 26 ITR 754, was pleased to hold that there must be something more than mere suspicion to support an assessment and without there being any material or evidence, which have been confronted to the assessee, no addition can be made. The Hon’ble Supreme Court was pleased to hold as under: “As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the ITO is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-s. (3) of s. 23 of the Act, the ITO is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under s. 23(3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh vs. CIT (supra). In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the Departmental Representative. Next, it did not give any opportunity to the company to rebut the material furnished to it by him, and lastly, it declined to take all the material that the assessee wanted to produce in support of its case. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 14 The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the ITO and the Tribunal, seems to be based on surmises, suspicions and conjectures. It is somewhat surprising that the Tribunal took from the representative of the Department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere, and whether these mills were similarly situated and circumstanced. Not only did the Tribunal not show the information given by the representative of the Department to the appellant, but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before the Accountant Member in his chamber. No harm would have been done if after notice to the Department the trunk had been opened and some time devoted to see what it contained. The assessment in this case and in the connected appeal, we are told, was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ unnecessary haste and show impatience, particularly when it was known to the Department that the books of the assessee were in the custody of the Sub- Divisional Officer, Narayanganj. We think that both the ITO and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under Art. 136.” [Emphasis supplied] 7.6 In the case of CIT Central & United Provineer Vs. Laxmi Narain Badre Dass (1937) 5 ITR 170 it was held as under: ".....The officer is to make an .assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordship thinks, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; though there must necessarily be guess work in the matter, it must be honest guess work. In that sense, too, the assessment must be to some extent arbitrary. Their Lordships think that the section places the officer in the position of a person whose decision as to amount is final and subject to no appeal, bust whose decision if it can be shown to have been arrived at without an honest exercise of judgment, may be revised or reviewed by the Commissioner under the powers conferred upon that official by section 33. ” Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 15 7.7 The Hon’ble Apex Court again in the case of Common Cause (A Registered Society) v. Union of India reported in (2017) 30 ITJ 197 (SC) : para 22, 24 and 27 has held as under :- “In case of Sahara, in addition we have the adjudication by the Income Tax Settlement Commission. The order has been placed on record along with I.A. No. 4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Sahara's case by the Settlement Commission and the documents have not been relied upon by the Commission against assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birla's documents or in the documents A-8, A-9 and A-10 etc. of Sahara. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra). Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 16 The Apex Court has taken into account in similar circumstances the incriminating materials in form of random sheets, loose papers, computer prints, hard disk and pen drive etc. and has held that they are inadmissible in evidence, as they are in the form of loose papers. In the present case also entries found during search and seizure which are on loose papers are being made the basis to add income of this respondent. Resultantly, in light of the Supreme Court judgments, referred above, no case for interference is made out with the order passed by the Tribunal. Moreover no substantial question of law arises in the present appeal, the appeal is dismissed.” 7.8 It is also found that relying upon the decisions of the Hon’ble Supreme Court in the cases of V.C. Shukla and Common Cause Society, supra, the Hon’ble Jurisdictional High Court of Madhya Pradesh, in the case of Pr. CIT vs. Shri Pukraj Soni (2019) 34 ITJ 489 MP (HC.) was also pleased to dismiss the appeal of the revenue by holding that merely on the basis of loose papers and diaries found from the possession of a third person, no addition can be made. 7.9 The Hon’ble High Court of Delhi in the case of CIT vs. Anil Khandelwal (2015) 93 CCH 0042 (Del.) has held as under: “It is quite evident that what materially persuaded the AO to make the addition were the extracts from documents - in the form of handwritten ledger entries seized from Shri S.K. Gupta. These mentioned Shri Khandelwal’s name as against which certain amounts were indicated. The other material was the statement of Shri S.K. Gupta recorded on 13.12.2006. Shri S.K. Gupta was further examined on 5.4.2011. The AO took recourse to the presumption permissible under Section 132 (4A) on the basis of these two statements. It is a matter of the record - duly noted by the CIT (A) as well as ITAT that the three companies or business concerns whose monies were supposed to have been reflected in the handwritten ledgers (Bondwell Insurance Brokers, E-Synergy Infosystems Pvt. Ltd. and Paradigm Advertising) were all concerns in which the assessee’s family members or relatives were alleged to have been interested. CIT (A) held that in the absence of any corroborative evidence found during the search at the premises of the appellant, no adverse inference can be drawn against the appellant merely on the basis of the seized documents as found and seized from the premises of the third party. As has been held in a Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 17 number of judicial pronouncements relied on by the appellant and extracted in para 2.2.2 hereinabove, presumption u/s 134(4A)/292C is available only in the case of the person from whose possession and control the documents are found and it is not available in respect of a third party. Even in the case of such a person from whose possession and control any incriminating document is found, the presumption u/s 132(4A)/292C is a rebuttable one. Since in the case of the appellant, no corroborative documents or evidence has been found from the control or possession of the appellant, the legal presumption as incorporated u/s 132(4A)/292C will not be available to the Assessing Officer in the appellant's case. It is well settled in law that the loose papers, diaries and documents cannot possible be construed as books of account regularly kept in the course of business. Such evidence would, therefore, be outside the purview of Section 34 of the Evidence Act, 1972. Therefore, the revenue would not be justified in resting its case just on the loose papers and documents found from third party if such documents contained narrations of transactions with the assessee as decided by the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. V.C.Shukla (1988) 8 SSC 410 and Chuharmal vs. Commissioner of Income Tax (1988) 172 250/138 Taxman 190 (SC).” 7.10 The Hon’ble High Court of Bombay in the case of Pr. CIT Central-1 vs. Hassan Ali Khan 2019 (2) TMI 1593 (BomHC) was pleased to hold as under: “Having heard the learned Counsel for the parties and having perused the documents on record, we notice that, the search was not conducted at the premises of the Assessee but at the residence of the third party from where, the bank drafts were recovered. The draft in question did not contain name of the Assessee as payee but of Pan Asian Distribution Ltd. It was in this background that, the Tribunal refused to accept the Revenue's contention that, the Assessee was beneficiary of this payment. The Tribunal noted that, there was no material on record to suggest that, such a company did not exist nor there was any evidence of any link between the said Company and the Assessee. The Tribunal, therefore, observed that the presumption as referred to in Section 292C of the Income Tax Act, 1961 (in short “the Act”) in such a case would not arise.” 7.11 The Hon’ble Delhi High Court in the case of Pr. CIT Central-2 vs. Vinita Chaurasia 2017 (5) TMI 992 (Del.) has held as under: Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 18 “Initiation of proceedings against the Assessee u/s 153C - cash payments from unaccounted sources - whether document belonged to the Assessee? - Held that:- It is nobody’s case other than the Revenue that the document found in the premises of Mr. Lalit Modi belongs to the Assessee. Mr. Shivpuri referred to Section 292 C of the Act for the purposes of drawing two presumptions (i) the one contained in Section 292 C (1) (i) to the effect that the document found in possession of a person should be presumed to belong to such person. As far as this is concerned, clearly, since the document was found in possession of Mr. Modi, the presumption, if at all, is attracted only qua Mr. Lalit Modi and not the Assessee herein.” 7.12 It has further been submitted by the appellant that on the basis of said loose paper, additions of Rs.5,60,50,000/- and Rs.15,40,00,000/- respectively were made in the hands of Shri Nilesh Ajmera and Shri Ritesh Ajmera in the assessment orders passed in their cases under the provisions of section 153A read with section 143(3) of the Income Tax Act, 1961 for the relevant assessment year. Against these assessment orders, both Shri Nilesh Ajmera and Shri Ritesh Ajmera had preferred separate appeals before the predecessor in my Office and the then CIT, vide his separate orders dated 28-03-2013 in Appeal No. 7/IT-922/11-12 in the case of Shri Nilesh Ajmera and in Appeal No. 7/IT-872/11-12 in the case of Shri Ritesh Ajmera, had deleted the additions made in the hands of these assessees. It has further been submitted by the appellant that against the aforesaid orders of the then CIT(A), the revenue had preferred further appeals before the Hon’ble ITAT, Indore in the cases of both the aforesaid assessees and the Hon’ble ITAT, in the case of Shri Nilesh Ajmera, vide its order dated 17-05-2016 in Appeal Nos. IT(SS)A Nos. 182 to 184/Ind/2013 & ITA-538/Ind/2013 and in the case of Shri Ritesh Ajmera vide its order dated 05-05-2016 in Appeal Nos. IT(SS)A 190 to 192/Ind/2013, had dismissed the appeals of the department thereby confirming the actions of the CIT(A) in deleting the said additions. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 19 7.13 I have gone through the orders passed by my predecessor as well as the orders passed by the Hon’ble ITAT, Indore in the cases of Shri Nilesh Ajmera and Shri Ritesh Ajmera. For the sake of ready reference, the relevant part of the order of my predecessor in the case of Shri Nilesh Ajmera on the subject issue, is being reproduced as under: “I have considered the AO's order as well as the appellant's A/R submission and also various documents placed on record. Considering all the factual position of the case, I am of the considered view that the impugned addition has been made by the AO without having any cogent material or corroborative evidence on record. Therefore, I find no substance in the impugned addition being devoid of any merit. In addition to this, I also find that the observations and findings of the AO in the impugned order are in radical contradiction to each other. I find that at the para 7.3, the AO has given the finding that some persons like Shri Nilesh Ajmera, Smt. Sonali Ajmera, Shri Ritesh Ajmera and others belonging to Satellite Group have invested in 'The World Project' by acquiring an island i.e. 'D 49'. However, at the conclusion part of para 7.4.5(v), the AO has stated as 'The purchaser of the island D49 are M/s Neel 1 Ltd. and M/s C.S. Developers Ltd.'. The AO again at para 7.4.5(vi), stated that 'Therefore, from the above it is evident that the purchaser of the island 'D49' were M/s Neel 1 Limited and M/s C S Developers. However, it is imperative to find out the main persons behind these concerns and the deal of D49'. The AO at concluding para 7.7, has given a finding as regard unexplained investment by the appellant and Shri Ritesh Ajmera in Dubai Project whereas at para 7.5, the AO has held unexplained investment on account of Dubai Hawala. The AO again at para 7.4.7 of the order, stated that various persons, who were part of Neel 1 Ltd., have made substantial investment in the project at Dubai but while making the addition at para 7.7 the A.O. has held the investment in the Dubai Project by the appellant and Shri Ritesh Ajmera in their individual capacity. In the concluding para i.e. at para 7.7, the AO has given the finding as regard to some unexplained investment in Dubai Project but in the computation part of the order the A.O. has used the terminology as 'Dubai Hawala'. From all such contradiction, I am of the considered view the addition has been made merely on guess work and conjectures. In my considered view, if as per the AO's own findings, the subject property has been purchased by some M/s. Neel 1 Ltd. and M/s. C S Developers Ltd., no addition by alleging Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 20 unexplained investment in the same property can be made in the hands of the appellant. In the instant case, as per the AO's own findings, the ostensible owners of the property at Dubai are only M/s. Neel 1 Ltd. and M/s. C S Developers Ltd. Therefore, unless and until it is established that the appellant was the real owner of the property and the above entities were only benamidars of the appellant, in my considered view, no unexplained investment in the said property can be presumed to have been made by the appellant. For this proposition, my view also gets support from the pronouncement of Hon'ble High Court of Kerala in the case of CIT vs. K. Mahim Udma (2000) 242 ITR 133 (Ker.). Further I find substance in the submission of appellant's A/R that the only basis taken by the AO for making the impugned addition is certain loose papers/ computer printouts which were not recovered from the possession or control of the appellant but the same were recovered only from a company namely M/s. Phoenix Devcons Pvt. Ltd., in which the appellant was merely one of the directors. The AO could not bring any evidence on record that the loose papers so found were either in the handwriting of the appellant or they were prepared under the instruction of the appellant. In such circumstances, in my considered view, the provisions of section 292C giving presumption as regard to the trueness of such documents would have no application. 12.7 I find that the provisions of s.292C have been inserted in the statute by the Finance Act, 2007 w.r.e.f. 1.10.1975 to empower the Income Tax Authorities to make certain presumptions on books of account, other documents, money, bullion, jewellery or other valuable article or thing found in the possession or control of any person in the course of a search under s.132 even for the purpose of assessment. Such provision has been inserted in the background of decision of Hon'ble Apex Court in the case of P.R. Metrani vs. CIT (2006) 287 ITR 209 (SC) in which the Apex Court held that the presumption under s.132(4A) is not available for the assessment proceedings. The phraseology used in sub-section (1) of section 292C is pari-materia with that of section 132(4A). I find that many judicial authorities in the context of provisions of section 132(4A) have clearly laid down the ratio that the presumption under s.132(4A) is available only against the person from whose possession the document is found and such presumption is not available against any third party. For this proposition support is drawn from the judicial pronouncements in the case of Smt. Bommana Swama Rekha vs. ACIT (2005) 94 TTJ (Visakha) 885, Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 21 Straptex (India) (P) Ltd. vs. DCIT (2003) 79 TTJ (Mumbai) 228, Jaya S. Shetty vs. ACIT (1999) 64 TTJ (Mumbai) 551, Ashwani Kumar vs. ITO (1992) 42 TTJ (Del) 644, Kishanchand Sobhrajmal vs. ACIT (1992) 42 TTJ (JP) 423, Rama Traders vs. First ITO (1988) 32 TTJ (Pat) 483 (TM), ACIT vs. Kishore Lal Balwant Rai & Ors. (2007) 17 SOT 380 (Chd), Sheth Akshay Pushpavadan vs. DCIT (2010) 130 TTJ (Abd)(UO) 42. 12.8 Accordingly, in my considered View, without bringing any corroborative evidence and cogent material on record, merely on the basis of such loose papers unless and until the details noted therein is evidenced with documentary evidence of any such transaction, no adverse inference ought to have been drawn against the appellant merely on suspicion and conjectures. The Hon'ble Apex Court, in the case of Dhakeswari Cotton Mills Ltd. vs. CIT (1954) 26 ITR 775 (SC), has held that while making an assessment, there must something more than bare suspicion to support the assessment. The Apex Court, again in the case of Lalchand Bhagat Ambica Ram vs. CIT (1959) 37 ITR 288 (SC) held that where any fact finding authority acts without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the Court is entitled to interfere. 12.9 I also find substance in the contention of the appellant's A/R that the loose papers inventorised as page no. 75 to 78 of LPS-33 (Xerox copies whereof have been given by the AO himself at page no. 29 to 32 of the impugned order), which are basically in the nature of computerized excel sheet printouts only, no significant details have been given by A.O. in the assessment order. I further find that in none of the above said loose papers there is any reference of any date/ month or year. Therefore, it cannot be perceived from such loose papers that to which period such loose papers pertain. Further from a perusal of such computerized sheets, the vital details such as the very purpose of preparing such sheets, the name of the person punching the data in computer for making such sheets, the name of the person or the entity for which such data's were fed in the computer are also not discernible. Further, it is not clear that whether such data's pertain to the receipt of money or payment of money. It is a settled law that no addition can be made on the basis of any non-speaking document. The Hon'ble High Court of Delhi, in the case of CIT vs. Girish Chaudhary (2008) 296 ITR 619 (Del) held that before an addition of undisclosed can Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 22 be made, the AO has to bring on record the material found as a result of search to show that there is an undisclosed income. My view also gets support from various decisions i.e. ACIT vs. Ashok Kumar Vig (2007) 106 TTJ (Ranchi) 422, MM Financiers (P) Lts. Vs. DCIT (2007) 107 TTJ (Chennai) 200, Dimsy Foods & Chemicals (P) Ltd. vs. DCIT (2007) 110 TTJ (Del) 450, ACIT vs. Ravi Agricultural Industries (2009) 121 TTJ (Agra) TM 903, Mahaan Foods Ltd. Vs. DCIT (2009) 27 DTR (Del) (Trib) 185, Nagarjuna Construction Co. Ltd. vs. DCIT (2012) 52 SOT 178 (Hyd.), ACIT vs. Satyapal Wassan (2008) 5DTR (Jab) (Trib) 202, Gyankumar Agarwal (Ind.) vs. ACIT (2012) 146 TTJ (Hyd.) 334, Jagdamba Rice Mills vs. ACIT (2000) 67 TTJ (Chd) 838, Rakesh Goyal vs. ACIT (2004) 87 TTJ (Del) 151, NK. Malhan vs. DCIT (2004) 91 TTJ (Del) 938, Brijlal Rupchandvs. ITO (1991) 40 TTJ (Ind.) 668, Raj Pal Singh Ram Autar vs. ITO (1991) 39 TTJ (Del) 544, Embee Clearing & Shipping Services (P) Ltd. vs. ACIT (2007) 12 SOT 227 (Mumbai). 7.14 I find that the Hon'ble ITAT, Delhi 'A'Bench in the case of Bansal Strips (P) Ltd. & Ors. Vs. ACIT (2006) 100 TTJ (Del) 665, has held as under: "36. We have carefully considered the rival submissions. We see force in the contention of the assessee that there is no provision of law under which the addition of Rs.53,69,260 could be made to the income declared by the assessee. It is trite law that if an income not admitted by an assessee is to be assessed in the hands of the assessee, the burden to establish that there is such income chargeable to tax is on the AD. With a view to assist the AD and to reduce the rigour of the burden that lay upon the AD, provisions ofss. 68, 69, 69A to 69D have provided for certain deeming provisions where an assumption of income is raised in the absence of satisfactory explanation from the assessee. As there are deeming provisions the condition precedent for invoking such provisions are required to be strictly construed. The facts and circumstances giving rise to the presumption have to be established with reasonable certainty. The AD cannot first make certain conjectures and surmises and thereafter apply the deeming provisions based on such conjectures and surmises. In the absence of adequate material as to the nature and ownership of the transaction, undisclosed income cannot be assed in the hands of the assessee merely by arithmetically totalling various figures jotted down on the loose documents. In other words for the purpose of resorting to Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 23 deeming provisions, dumb documents or documents with no certainty have no evidentiary value. . " 7.15 The Hon'ble ITAT, Patna in the case of ACIT vs. Dr. Kamla Prasad Singh (2010) 3ITR (Trib) 533 (Pat) has also held that no additions can be sustained in the following words: "Having considered the rival submissions, the provisions relating to assessment for the block period under Chapter XIVB of the Act and the assessee's case including the documents under reference, which have been made annexure to this order also, we are of the opinion that it is now well settled that undisclosed income for the purpose of block assessment has to be computed solely on the basis of seized material and any enquiry made by the AD thereafter relatable to such material; meaning thereby neither any enquiry report nor any document procured either before or after the search can be considered while computing the undisclosed income. Similarly, it is also settled law that any document found and seized during the course of search has to be interpreted literally and nothing can be added or substracted. If facts of the assessee's case before us are evaluated in the light of the aforesaid settled principles of law, it will be revealed that the documents found and seized and relied upon for making the addition under appeal by the Revenue have neither date nor the name of the assessee and therefore, it cannot be assumed or presumed as to when and by whom the notings were recorded. It is also not known as to in what connection the notings even if considered as giving and taking - of money were made; meaning thereby that these documents being dumb documents, no addition can be made on the basis of assuming or presuming the notings in those documents relating to any other transation nor recorded in the documents. In a nutshell, any infirmity in the order of the CIT (A) on this point (sic) and therefore, following the law laid down in various decisions relied upon by the assessee in its synopsis, we uphold the order of the CIT(A) on this point. The Revenue's ground is rejected." 7.16 The Hon'ble ITAT, Jabalpur Bench, in the case of ACIT vs. Satyapal Wassan (2008) 5 DTR (Jab) (Trib) 202 has held that unless, in any case, a document fulfils four essential components viz., the taxable event, the person chargeable, the assessment year in which charge is leviable and Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 24 the total income, it has no evidentiary value and cannot be relied upon in following words: "The above decision also leads us to infer that a charge on the basis of document can be levied only when the document is a speaking one. The document should speak either out of itself or in the company of other material found on investigation and or in the search. The speaking from the document should be loud, clear and umambiguous in respect of all the four components as described above. If it is not so, then document is only a dumb document. No charge can be levied on the basis of a dumb document." 7.17 The Hon'ble High Court of Gujarat in the case of Ushakant N. Patel vs. CIT (2006) 282 ITR 553 (Guj.) has pronounced that before invoking the provisions of s.69 of the Act, it is incumbent upon the authority to establish that there were investments made by the assessee; that such investments were not recorded in the books of accounts maintained by the assessee and that such investments had been made in the financial year immediately preceding the assessment year in question and without satisfying the pre-requisite conditions of s. 69 of the Act, AO cannot make any addition by invoking the provisions ofs.132(4A) of the Act. I also find substance in the appellant's A/R's contention that the various loose papers of LPS-33, as discussed by the AO at paras 7.4.1 to para 7.4.5 have no live link or nexus with the key page i.e. page No.76 of LPS-33 at which there is a mention with the narration - "Nilesh Ajmera - Rs.5,55,00,000 and 55,000; 50,00,000 and 50,000 DHS - Cash". I find that on such page the total under the column of "DHS" has been stated at 3,38,16,050 which do not tally with any of the figures stated at para 7.4.5 (i) of the AO's order. In my considered view, the AO could not establish that the subject loose paper, i.e. page No.76 of LPS-33, pertains only to the project "The World" as referred to by the AO at various parts of the order. In my considered view, the AO has made the impugned addition merely on assumption/hypothesis only. In such circumstances, relying upon the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 25 decision of the Hon'ble Apex Court in the case of Omar Salay Mohamed Sait vs. CIT (1959) 37 ITR 151(SC), I do not find justification in the action of the A.O. of making such addition. Further, in my considered view, if the appellant had made any investment in Dubai, as alleged by the AO then at least some documents such as money receipts, purchase agreement, title deed etc. could have been found from any of the premises of the appellant or his associates. However, neither during the course of search nor during the course of assessment proceedings, even the existence of such papers has been brought on record. Further, from the findings given by the AO himself in the impugned order, I find that the company M/s. Neel 1 Ltd. or Neel Holdings Ltd., in which according to the AO the appellant or his associates were having vested interest, are foreign companies. I further find that the AO could not bring on record even an iota of any evidence through which it can be established that the appellant made any investment in such companies from the funds remitted from India. I could not find from the material on record that during the course of search in the premises of the appellant, any such evidence such as any share certificate, money receipt or any other document establishing such investment by the appellant could be found. I also find substance in the appellant's A/R submission that any remittance out of India through the Hawala route is a serious punishable crime and there are various agencies such as Enforcement Director, FEMA Authorities etc. to have a check on such transactions. The contention of the appellant's A/R is that the Income Tax Department had made a reference of the alleged transactions to the above authorities and such authorities, after making necessary enquiries did not find any substance in the stand of the Income Tax Department. Although, the A/R of the appellant could not produce any documentary evidence in support of making of any reference by the Department to Enforcement Director or FEMA Authorities Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 26 nor in support of his such assertion in respect of outcome of such enquiry. Further, even I find that the AO also has not brought on record any adverse finding either of Enforcement Director or of the Foreign Taxation Division of CBDT in respect of the alleged 'hawala' transactions. Taking note of all the factual position of the case, in my considered view, the impugned addition made by the AO on account of Dubai Hawala at Rs.5,60,50,000/- is devoid of any merit. Accordingly, the addition so made by the A.O. is deleted. In the result, appellant's appeal is allowed. However, I would like to mention very categorically that if in future, the Enforcement Directorate or FEMA Authorities or any other authorities regulating the remittance of money from India gives any conclusive finding as regard to making of the impugned hawala transaction by the appellant, then the A.O. would be free to take necessary action in accordance with the provision of law.” 7.18 Further, the relevant part of the Order of the Hon’ble ITAT, Indore in the case of Shri Nilesh Ajmera, is also being reproduced as under: “We have heard the rival contentions of both the parties and have perused the material available on record. We find that during the course of search, a loose paper inventorised as page no.75, 76 and 77 of LPS-33 which is placed on paper book as pages 131 to 133 was seized. The ld. CIT(A) has held that these documents are dumb documents. These documents do not contain any date or period. These documents also do not contain details that whether these are of nature of receipt or payment. The AO has not made any inquiry after loose paper found. The AO has held that some companies like, M/s. Neel 1 Ltd. and M/s. CS Developers has made investment in their property. We find that Id. CIT(A) has held that the AO has not made any inquiry whether the assessee has made investment in the Dubai property or in M/s. Neel 1 Ltd. or CS Developers who have allegedly made investment in the property. The Id. CIT(A) has further held that if alleged Dubai hawala is made by the assessee, no action has been taken by the other govt. agencies as Enforcement Director, Fema Authorities. The ld. CIT(A) has also given the direction to the AO that if the E.D. or Fema Authorities or any authorities regulating the remittance of Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 27 money from India gives any conclusive finding as regard making of hawala transaction by the assessee then the AO would be free to take action against the assessee in accordance with the provisions of law. We find that when ld. CIT(A) has given the specific direction and the Department is not bringing any evidence that assessee has made any investment in the property, no addition can be made on the basis of simple documents found from the possession of the assessee. We are of the view that ld. CIT(A) is justified in his action for giving the direction and deleing the addition of Rs.5,60,50,000/-. We are also in agreement with the direction of the ld. CIT(A), which reads as under: "However, I would like to mention very categorically that if in future, the Enforcement Directorate or FEM Authorities or any other authorities regulating the remittance of money from India gives any conclusive finding as regard to making of the impugned hawala transaction by the appellant, then the A.O. would be free to take necessary action in accordance with the provision of law." 7.19 After giving a thoughtful consideration to the above mentioned orders, it has been observed that when the additions so made in the hands of the persons from whose possession the loose papers were seized have themselves got deleted and have attained finality with the orders of the Hon’ble ITAT, there does not remain any question of sustaining any addition in the hands of the appellant. Accordingly, concurring with the decision of my predecessor and relying upon the decision of Hon’ble ITAT, on identical facts in the cases of Shri Nilesh Ajmera and Shri Ritesh Ajmera, addition of Rs.12,00,00,000/- so made by the AO in the appellant’s income on account of Dubai Hawala is hereby deleted. Therefore, these grounds of appeal of the appellant are allowed.” 6.2 We find that in the instant case, the addition has been made solely on the basis of some loose papers inventorized as Page nos. 74 to 76 of LPS-33 which were seized from the premises of some Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 28 third person namely M/s. Phoenix Devcons Pvt. Ltd. during the course of some other search carried out earlier in the premises of such company and thus, it is an undisputed fact that the loose papers relied upon by the AO were not found from the possession and control of the assessee and therefore, the provisions of section 292C of the Income-Tax Act, 1961 cannot be invoked in the case of the assessee without having any adverse corroborative material. 6.3 We have carefully gone through the loose papers inventorized as page no. 75 to page no. 78 of LPS-33 seized from the premises of Phoenix Devcons Pvt. Ltd., situated at 434, Orbit Mall, 305-306, A.B. Road, Indore during the course of the search under section132 of the Income Tax Act, 1961 on 19-11-2009 in the case of Satellite/Phoenix Group, the copies whereof have been furnished by the assessee at page no. 77 to 80 of his Paper Book. We find that the AO has also reproduced the scanned copy of such loose papers at page nos. 7 to 10 of his assessment order. For the sake of a ready reference, the scanned copies of such loose papers are being reproduced as under : Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 29 Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 30 Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 31 Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 32 6.4 On a perusal of loose papers scanned hereinabove, we found that these loose papers are in the form of spreadsheets/ excel sheets in which there is no caption. From such excel sheets, it is not discernible as to who had prepared the same and for which period these loose papers pertain to. Further, on a plain reading, the purpose of preparation of such excel sheets can also not be gathered. We further observe that in the excel sheets, inventorized as page no. 77 & 78, which are placed at page no. 79 & 80 of the Paper Book, there is no mention of any name as ‘Chitresh’. However, at the excel sheets inventorized as page no. 75 & 76, inter alia, there is a mention of name of some Ritesh Ajmera, Nilesh Ajmera and some Chitresh. On the loose paper inventorized as page no. 76, as placed at page no. 78 of the Paper Book, against the name of Chitresh, there has been mention of five amounts of Rs.1,00,00,000/-, Rs.2,00,00,000/-, Rs.2,50,00,000/-, Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 33 Rs.3,50,00,000/- and Rs.3,00,00,000/- aggregating to a sum of Rs.12,00,00,000/-. However, from such loose papers, it is not at all discernible that (i) the name ‘Chitresh’ attributes to Chitresh Mehta i.e. the assessee only (ii) these are the details for making some payments for purchasing some properties in Dubai and (iii) these payments have been sent through hawala channel during the financial year relevant to A.Y. 2009-10. It is also an undisputed fact that during the course of entire search operations in the assessee’s own premises, not a single loose paper or any other document was found or seized from which could have inferred that the assessee made any investment in any property at Dubai by making hawala transactions. It seems that the entire addition has been made by the Ld.AO merely on guess work by presuming that the word ‘Chitresh’ written in the loose paper attributes to no other person than the assessee himself. The contention of the counsel of the assessee has been found tenable that during the course of the search proceedings in the case of the assessee, no document was found as regard to the ownership of any property of the assessee in Dubai or for that matter, the assessee was not found to have given any advance for purchase for any property at Dubai. Therefore, without bringing any other corroborative evidence, merely on suspicion or extraneous considerations, it was not correct on the part of the AO to presume that the name ‘Chitresh’ attributes to the assessee only. Further, none of the assessee’s submissions, given during the course of the assessment proceedings are found to have been rebutted by the AO on going through the assessment order. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 34 Merely for the reason that one of the companies of the assessee had purchased some property from a company in which one of the directors was also a director in Phoenix Devcon Pvt. Ltd. could not be a ground for holding that the assessee made any financial transaction along with Ritesh Ajmera or Nilesh Ajmera. Further, being belonging to the same community, if the assessee was socially acquainted with Ritesh Ajmera, then also it could not be a ground for suspecting any financial transaction and that too of hawala between the assessee and Nilesh Ajmera and Ritesh Ajmera. In our considered opinion, the judgment of Hon’ble Apex Court in the case of CBI vs. V. C. Shukla (supra), squarely applies in the present set of facts and this judgment was subsequently also followed by Hon’ble Apex Court in the case of Common Cause vs. Union of India (2017) 30 ITJ 197 (SC) and finding of Hon’ble Court already stands reproduced in the finding of Ld.CIT(A) (supra). 6.5 We also find force in the the contention of Learned Counsel for the assessee that had the assessee been found indulged in any such hawala activities alleged to have taken place nearly 12 years back, some action may have been taken by the Enforcement Agencies which is not a case here. In our view, the Ld. AO has relied upon the extraneous considerations for justifying his action of making the addition. 6.6 We also find that for adjudicating the issue and deleting the addition, the ld. CIT(A) has rightly placed his reliance on the decisions of Dhakeswari Cotton Mills Ltd. vs. CIT (1954) 26 ITR 754 Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 35 (SC), CIT Central & United Provineer Vs. Laxmi Narain Badre Dass (1937) 5 ITR 170 (SC), Pr. CIT vs. Shri Pukraj Soni (2019) 34 ITJ 489 MP (HC.), CIT vs. Anil Khandelwal (2015) 93 CCH 0042 (Del.), Pr. CIT Central-1 vs. Hassan Ali Khan 2019 (2) TMI 1593 (BomHC), Pr. CIT Central-2 vs. Vinita Chaurasia 2017 (5) TMI 992 (Del.), Bansal Strips (P) Ltd. & Ors. Vs. ACIT (2006) 100 TTJ (Del) 665, ACIT vs. Dr. Kamla Prasad Singh (2010) 3ITR (Trib) 533 (Pat), ACIT vs. Satyapal Wassan (2008) 5 DTR (Jab) (Trib) 202, Ushakant N. Patel vs. CIT (2006) 282 ITR 553 (Guj.) 6.7 We thus find material substance in the contentions of the Ld.AR that merely on the basis of said loose paper, additions of Rs.5,60,50,000/- and Rs.15,40,00,000/- respectively were also made in the hands of Nilesh Ajmera and Ritesh Ajmera in the assessment orders passed in their cases under the provisions of section 153A read with section 143(3) of the Income Tax Act, 1961 for the relevant assessment year. Against these assessment orders, both Nilesh Ajmera and Ritesh Ajmera had preferred separate appeals before the then CIT(A) and the then CIT, vide his separate orders dated 28-03-2013 in Appeal No. 7/IT-922/11-12 in the case of Nilesh Ajmera and in Appeal No. 7/IT-872/11-12 in the case of Ritesh Ajmera, had deleted the additions made in the hands of the aforesaid assessee(s). It has further been submitted by the assessee that against the aforesaid orders of the then Ld.CIT(A) in the case of Nilesh Ajmera and Ritesh Ajmera, being the persons in whose cases the subject loose papers were seized, the revenue had preferred appeals before this Tribunal and this Tribunal, in the case of Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 36 Nilesh Ajmera, vide its order dated 17-05-2016 in Appeal Nos. IT(SS)A Nos. 182 to 184/Ind/2013 & ITA-538/Ind/2013 and in the case of Ritesh Ajmera vide its order dated 05-05-2016 in Appeal Nos. IT(SS)A 190 to 192/Ind/2013, had dismissed the appeals of the Revenue thereby confirming the findings of the Ld.CIT(A) in deleting the said additions. The copies of the Orders passed by this Bench, deleting the entire additions on the basis of subject loose papers, in the case of Ritesh Ajmera are filed at page no. 123 to 184 of the assessee’s Paper books and in the case of Nilesh Ajmera at page no. 185 to 303 of the assessee’s paper book. For a ready reference, the relevant findings given by this Bench in the case of Nilesh Ajmera vs. DCIT-3(1), Indore, in its common Order dated 11-05- 2016, while adjudicating the Ground Nos. 4 & 4.1 of the Revenue at page no. 105 and 106, are reproduced as under: “We have heard the rival contentions of both the parties and have perused the material available on record. We find that during the course of search, a loose paper inventorised as page no.75, 76 and 77 of LPS-33 which is placed on paper book as pages 131 to 133 was seized. The ld. CIT(A) has held that these documents are dumb documents. These documents do not contain any date or period. These documents also do not contain details that whether these are of nature of receipt or payment. The AO has not made any inquiry after loose paper found. The AO has held that some companies like, M/s. Neel 1 Ltd. and M/s. CS Developers has made investment in their property. We find that Id. CIT(A) has held that the AO has not made any inquiry whether the assessee has made investment in the Dubai property or in M/s. Neel 1 Ltd. or CS Developers who have allegedly made investment in the property. The Id. CIT(A) has further held that if alleged Dubai hawala is made by the assessee, no action has been taken by the other govt. agencies as Enforcement Director, Fema Authorities. The ld. CIT(A) has also given the direction to the AO that if the E.D. or Fema Authorities or any authorities regulating the remittance of money from India gives any conclusive finding as regard making of Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 37 hawala transaction by the assessee then the AO would be free to take action against the assessee in accordance with the provisions of law. We find that when ld. CIT(A) has given the specific direction and the Department is not bringing any evidence that assessee has made any investment in the property, no addition can be made on the basis of simple documents found from the possession of the assessee. We are of the view that ld. CIT(A) is justified in his action for giving the direction and deleing the addition of Rs.5,60,50,000/-. We are also in agreement with the direction of the ld. CIT(A), which reads as under: "However, I would like to mention very categorically that if in future, the Enforcement Directorate or FEM Authorities or any other authorities regulating the remittance of money from India gives any conclusive finding as regard to making of the impugned hawala transaction by the assessee, then the A.O. would be free to take necessary action in accordance with the provision of law." 6.8 We thus respectfully following the findings given by this Tribunal in the cases of Nilesh Ajmera (supra) and Ritesh Ajmera (supra), in which this Bench in the similar circumstances and on the same set of facts, has deleted the addition made in the above cases as per the findings extracted hereinabove, find absolutely no substance in the addition of Rs.12,00,00,000/- made by the ld. AO merely on the basis of an uncorroborated dumb documents and thus, confirm the findings given by the ld. CIT(A). Consequently, the ground No. 1 of the Revenue is hereby Dismissed. However, we would like to mention very categorically that if in future, the Enforcement Directorate or FEM Authorities or any other authorities regulating the remittance of money from India gives any conclusive finding as regard to making of the impugned hawala transaction by the assessee, then the A.O. would be free to take Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 38 necessary action in accordance with the provision of law at the relevant time. 7. Ground No. 2 of the Revenue 7.1 Through this ground of appeal, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.95,00,000/- made by the AO u/s. 68 of the Act on account of amount received from a partnership firm namely M/s. M.P. Real Estate & Developers. 7.2 Briefly stated facts of the issue, as culled out from records, are that during the course of assessment proceedings, the Ld.AO noted from the bank statement and books of account of the assessee for the F.Y. 2008-09 that the assessee had received an amount of Rs.95 lakhs from M/s. M.P. Real Estate & Developers. The Ld.AO further noted that the assessee and other partners of the aforesaid partnership firm were required to produce the books of account of the firm but the same were not produced for verification. Further, the Ld.AO stated to have conducted enquiry on the given address of the firm but he could not find any firm working from such address. The AO also noted from the various documents furnished by the assessee that the documents do not establish genuineness of transaction and creditworthiness of the firm. Finally, the Ld.AO proceeded to make an addition of Rs.95,00,000/- in the assessee’s income under section 68 of the Act. 7.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 39 first appellate proceedings, the assessee made detailed written submissions along with documentary evidences. Before the ld. CIT(A), the assessee also furnished various documents, as additional evidences under Rule 46A which were forwarded to the Assessing Officer for comments. According to the Ld. CIT(A), the Assessing Officer had challenged the identity of the loan creditor on the ground that during the course of assessment proceedings, enquiry was conducted at the firm’s address but no such firm was found to be working. In contrast, the assessee had canvassed his arguments that assessments under section 147/143(3) of the Income-Tax Act, 1961 were subsequently framed in the case of the loan creditor for three assessment years 2006-07 to 2008-09 on 26- 03-2014/27-03-2014 and therefore, the identity of the firm cannot be doubted by the AO. Further, as per ld. CIT(A), the AO has remained silent and has not commented anything in his remand report on the assessment orders of the firm so furnished by the assessee. Thus, the ld. CIT(A) reached to a conclusion that the assessee has duly established the identity and creditworthiness of the firm and also the genuineness of the transaction as contemplated under the provisions of section 68 of the Act. Accordingly, the ld. CIT(A) deleted the entire addition of Rs.95,00,000/- so made by the Ld.AO on account of unexplained cash credit u/s. 68 of the Act. The relevant findings of the ld. CIT(A) are reproduced as under: “8.1 I have gone through the assessment order, the written submissions filed by the appellant, the documentary evidences placed on record, the remand report of the AO on the issue and the counter comments filed by Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 40 the appellant. From the assessment order, it has been found that the AO has made the impugned addition of Rs.95,00,000/- merely on the examination of bank statement and books of account of the appellant for the relevant financial year. On such examination, the AO has found that the appellant has received a sum of Rs.95,00,000/- from M/s M.P. Real Estate & Developers, a partnership firm in which the appellant was one of the partners, in three installments. According to the AO, the appellant could not produce the books of account of such firm. However, in the entire body of the assessment order on the subject issue, the AO has not made any reference of any incriminating material. On the contrary, it gets fully fortified that the subject addition has been made on the basis of bank statements and books of account produced by the appellant himself for the relevant financial year. 8.2 I have further examined the case on merits also and do not find any substance in the action of the AO for making the impugned addition in the hands of the appellant. It has been observed that the addition has been made by the AO for the reason that the appellant could not produce the books of account of the firm for verification. It is also noticed that the funds of Rs.95,00,000/- have been given by the firm to the appellant through banking channels only. Further, during the course of appeal proceedings, the appellant had furnished various documents such as confirmation letter of the firm, copy of bank statement of the firm, copy of income-tax return of the firm and copies of the assessment orders under section 147/143(3) of the Income-Tax Act, 1961 passed in the case of the firm for A.Y. 2006-07 to A.Y. 2008-09. Since these documents were filed by the appellant along with an application under Rule 46A of the Income-Tax Rules, 1962, the same were forwarded to the concerned AO for his comments vide this Office letter dated 09/01/2018. The AO, vide his letter dated 12-04-2018 has submitted his remand report to this office. The AO, in his remand report has objected to the admission of the additional evidences filed by the appellant. The AO further doubted the identity and creditworthiness of the firm and genuineness of the transaction. The relevant part of the remand report is being reproduced as under: “However, the comments are also made on merits of the case on the basis of facts on record in compliance to your office letter dated 09/01/2018 to verify the additional evidence taken before your honor by the captioned assessee are as under:- The assessee has submitted the copy of confirmation letter, bank statement and acknowledgement of return for A.Y.2008-09 & 2009-10 of the creditor firm M/s M.P. Real Estate and Developers as additional evidence. On perusal of the acknowledgement of return of the both A.Ys.2008-09 & 2009-10 it was observed that the creditor firm has shown only Nil income. No any other evidences submitted by assessee which Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 41 establish the loan giving capacity of creditor firm. Thus, the creditworthiness of the creditor firm remained unexplained in this stage also. In respect of the identity of the firm it is worthy to mention that the assessee himself stated that the address of the creditor firm M/s M.P. Real Estate and Developers is G-9 Alankar Complex Bada Sarafa, Indore, however, on enquiry conducted during the course of assessment proceeding, on the given address no such firm was found to be working. In view of the above, the identity & creditworthiness of the creditor and genuineness of the transaction remained unexplained. Therefore, the additions made by the A.O is justified & in accordance with law and the contention of assessee is not acceptable.” 8.3 The remand report of the AO was supplied to the appellant for his rejoinder. The appellant, vide his counsel’s letter dated 03-12-2018, has submitted the rejoinder which has been carefully perused and placed on record. The relevant part of the rejoinder of the appellant is being reproduced as under: “In this context, it is submitted as under: 1. As regard comment of the learned AO that the creditor firm has shown Nil income in its return of income and the creditworthiness is not established, it is submitted that the learned AO failed to consider the material fact that the appellant has also furnished the copies of bank statements of the creditor firm wherein the unsecured loans of Rs.95,00,000/- have been advanced to the appellant through banking channels only. The learned AO also failed to consider that the creditor has not given the loans to the appellant by depositing cash in its bank account but by receiving funds through banking channels only. It is submitted that every receipt appearing in the bank statement of a person cannot be regarded as the income of that person. The credit can also be in the nature of loan or advance. It is therefore, submitted that the creditworthiness of the creditor firm cannot be adjudged merely on the basis of income-tax return furnished by it. 2. As regard comment of the AO for identity of the creditor firm, it is submitted that assessments under the provisions of section 147/ 143(3) of the Income-Tax Act, 1961 were framed in the case of M/s. M.P. Real Estate & Developers, for as many as three assessment years commencing from A.Y. 2006-07 to A.Y. 2008-09 by the learned Deputy Commissioner of Income-Tax, 2(1), Indore vide three separate assessment orders, all passed on 26-03-2014/ 27-03-2014. It shall be pertinent to note that the assessments were framed under the provisions of s.143(3) of the Act. It shall thus be appreciated by Your Honour that since regular assessments have been framed in the case of the creditor firm by the Department, the identity of the creditor firm cannot be doubted at all. Even during the appellate proceedings, copies of the assessment orders passed under s.147/ 143(3) in the case of M/s. M.P. Real Estate & Developers for A.Y. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 42 2006-07 to A.Y. 2008-09 were provided to the learned AO for his comments on the issue. However, the learned AO has not commented anything on this vital fact. It shall be pertinent to note that the above named creditor had duly shown making of advances to the appellant in its books of account and during the course of the assessment proceedings under s.147/ 143(3) in the case of such creditor, the sources of making of advances have fully been examined by the AO of the creditor and no adverse inference in respect of sources of making such advances was formed by him. It is a settled law that a transaction which has duly been accepted in the case of one party to the transaction, the same transaction cannot be disbelieved in the case of other party to such transaction. 3. As regard the genuineness of the loan transaction, it is submitted that such genuineness gets established from the fact that the creditor after giving loan confirmation in writing had reconfirmed the transaction before the learned AO while giving his statement under s.131 of the Act. The genuineness of the transaction is also established from the fact that it was made through account payee cheques and it is getting clearly reflected in the bank statements of both, the appellant as well as the loan creditor.” 8.4 It has been found that the AO has challenged the identity of the firm on the ground that during the course of assessment proceedings, enquiry was conducted at the firm’s address but no such firm was found to be working. In contrast, the appellant had canvassed his arguments that assessments under section 147/143(3) of the Income-Tax Act, 1961 were subsequently framed in the case of the firm for three assessment years 2006-07 to 2008-09 on 26-03-2014/27-03-2014 and therefore, the identity of the firm cannot be doubted by the AO. Further, the AO has remained silent and has not commented anything in his remand report on the assessment orders of the firm so furnished by the appellant. The genuineness of the transaction has been established by the appellant by way of furnishing a confirmation letter from the firm which has also not been controverted by the AO. It was also demonstrated by the appellant that before giving the sum of Rs.95,00,000/-, the firm was having sufficient balance in its bank account and therefore, the creditworthiness of the firm cannot be doubted. Nothing had prevented AO to examine the funds available in the bank account during assessment as well as remand proceedings. 8.5 Thus, the appellant has duly established the identity and creditworthiness of the firm and as also, the genuineness of the transaction as contemplated under the provisions of section 68 of the Income Tax Act, 1961. In such circumstances, the AO was not justified in making the addition of Rs.95,00,000/- in the appellant’s income and is hereby deleted. Accordingly, this ground of appeal is allowed. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 43 7.4 Aggrieved with the Order of the ld. CIT(A), the revenue is in appeal before us. 7.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 7.6 Per Contra, Learned Counsel for the assessee made his reliance on the findings of Ld.CIT(A), written submissions filed by him before the ld. CIT(A) and before this Tribunal and other documents explaining the source of alleged cash credit placed in Paper Book containing 404 pages, from page no. 1 to 36. 8.1 We have heard rival contentions, perused the records placed before us and carefully gone through the facts and circumstances of the case, orders of lower authorities, Remand Report of the AO, Rejoinder of the assessee, documentary evidences placed on record, and written and oral submissions made from both the sides. We find that in the instant case, the Ld.AO has made the impugned addition of Rs.95,00,000/- merely on the examination of bank statement and books of account of the appellant for the relevant financial year and from such examination, the Ld.AO found that the appellant has received a sum of Rs.95,00,000/- from M/s M.P. Real Estate & Developers, a partnership firm in which the appellant was one of the partners, in three installments. According to the Ld.AO, the appellant could not produce the books of account of such firm. We find that, in the entire body of the assessment order on the subject issue, the Ld.AO has not made any reference of any incriminating material. On the contrary, it gets fully fortified that Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 44 the subject addition has been made on the basis of bank statements and books of account produced by the appellant himself for the relevant financial year. We find that the assessment year under appeal is A.Y. 2009-10 and the Assessment Order has been passed by the AO under s.153 r.w.s. 143(3) of the Act on the basis of a search carried out u/s. 132(1) of the Act in the assessee’s premises on 25-11-2010. We find that the assessee had furnished his original return of income u/s.139(4) of the Income Tax Act, 1961 on 08-03-2010 i.e. before the date of search, as mentioned by him in the computation of total income furnished along with the return furnished in compliance to the notice u/s. 153A of the Act, the copy whereof is placed at page no. 51 of the Paper Book filed by the assessee. The furnishing of the original return by the assessee on 08-03-2010 has not been disputed by the ld. DR. We find that at the relevant time, any notice u/s. 143(2) for A.Y. 2009-10 could have been issued only uptill 30-09-2010 whereas the search in the premises of the assessee has been initiated on 25-11-2010, but, undisputedly, no notice u/s. 143(2) was issued to the assessee for the assessment year under consideration within the aforesaid period. Thus, it can safely be concluded that the assessment year under consideration was a completed year for which as on the date of search, no proceeding was pending. In such a situation, in our considered view, without having recourse to any incriminating material, no addition could have been made to the income of the assessee. We find that the subject addition has been made by the ld. AO without having recourse to any incriminating material but, Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 45 merely on the basis of the bank statement and books of account furnished by the assessee himself during the course of the assessment proceedings. Accordingly, in view of the various judicial pronouncements of various High Courts including the judgement of Hon’ble Delhi High Court in the case CIT vs Kabul Chawla 380 ITR 573 (Del.) and other judicial authorities, we did not find any legal sanctity of the addition so made. 8.3 Even on merits, we do not find any substance in the action of the Ld.AO for making the impugned addition in the hands of the appellant. It has been observed that the addition has been made by the Ld.AO for the reason that the appellant could not produce the books of account of the firm for verification. It is also noticed that the funds of Rs.95,00,000/- have been given by the firm to the appellant through banking channels only. We find that before the ld. CIT(A) as also, before us, the appellant furnished various documents such as confirmation letter of the firm, copy of bank statement of the firm, copy of income-tax return of the firm and copies of the assessment orders under section 147/143(3) of the Income-Tax Act, 1961 passed in the case of the firm for A.Y. 2006- 07 to A.Y. 2008-09. We also find that the ld. CIT(A) has admitted the documentary evidences furnished before him for the first time under Rule 46A of the Income Tax Rules, 1962 after giving due opportunity to the concerning Ld.AO. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 46 8.4 We further find that the Ld.AO has challenged the identity of the firm on the sole ground that during the course of assessment proceedings, enquiry was conducted at the firm’s address but no such firm was found to be working. In contrast, we found that in the case of the lender firm, assessments under section 147/143(3) of the Income-Tax Act, 1961 were subsequently framed for three assessment years 2006-07 to 2008-09 on 26-03-2014/27-03-2014 and therefore, in our considered view, the identity of the firm could not have been doubted by the Ld.AO. Further, we find that the Ld.AO has remained silent and has not commented anything in his remand report on the assessment orders of the firm so furnished by the appellant. The genuineness of the transaction has been established by the appellant by way of furnishing a confirmation letter from the firm which has also not been controverted by the Ld.AO. It was also demonstrated by the appellant that before giving the sum of Rs.95,00,000/-, the firm was having sufficient balance in its bank account and therefore, the creditworthiness of the firm cannot be doubted. 8.5 We are thus of the considered view that the appellant has successfully discharged his onus of establishing the identity and creditworthiness of the lender firm and as also, the genuineness of the transaction as contemplated under the provisions of section 68 of the Income Tax Act, 1961 for the alleged cash credit of Rs.95,00,000/- .In such circumstances, we do not find any infirmity in the action of the ld. CIT(A) in deleting the addition of Rs.95,00,000/- made by the Ld.AO, u/s. 68 of the Act, in the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 47 appellant’s income. Accordingly, this ground no. 2 of the Revenue is Dismissed. 9. Ground No. 3 of the Revenue 9.1 Through this ground of appeal, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.45,00,000/- made by the Ld.AO u/s. 68 of the Act on account of unsecured loan received by the assessee from one company namely M/s. SCS Builders & Developers Pvt. Ltd.. 9.2 Briefly stated facts of the issue, as culled out from the records, are that during the course of assessment proceedings, the AO noted that a summon was issued to the Principle Officer of M/s. SCS Builders & Developers Pvt. Ltd. for furnishing various documents in support of the loan given to the assessee. On a perusal of the documents so submitted by the company, the Ld.AO further noted that Shri Balkrishan had given funds to the company and in turn, the amount has been transferred to the assessee. The Ld.AO has noticed that Shri Balkrishan was the man of assessee who was managing the affairs of the assessee. The Ld.AO thus held that the creditworthiness of the company and genuineness of transaction was not established and accordingly, made an addition of Rs.45,00,000/- in the assessee’s income under section 68 of the Income-tax Act, 1961. 9.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 48 first appellate proceedings, the assessee made detailed written submissions along with documentary evidences. The Ld. CIT(A) observed that the date of receipt of loan as 12-12-2007 has been stated by the AO himself at various places in the body of the assessment order. The ld. CIT(A) further noticed that the subject loan was received by the assessee only during the financial year 2007-08 relevant to A.Y. 2008-09 i.e. on 12-12-2007. According to the ld. CIT(A), there was absolutely no justification for the AO to make the impugned addition in the income of the assessee for A.Y. 2009-10. Accordingly, the ld. CIT(A) deleted the addition on the ground of a wrong assessment year. The relevant findings of the ld. CIT(A) are reproduced as under: “9.1 I have gone through the assessment order, the written submissions filed by the appellant and the documentary evidences placed on record. The appellant has strongly contended that impugned amount of loan of Rs.45,00,000/- was received on 12/12/2007, relevant to assessment year 2008-09. I am in agreement with the contention of the counsel of the appellant that the subject loan was taken by the appellant only on 12-12-2007 which falls in the previous year 2007-08 relevant to assessment year 2008- 09 and therefore, by no means of law, such addition can be made during the assessment year under consideration i.e. A.Y. 2009-10. It has been observed that the date of receipt of loan as 12-12-2007 has been stated by the AO himself at various places in the body of the assessment order. Even from the copy of the letter of confirmation of SCS Builders & Developers Pvt. Ltd. filed at page no. 119 of the Paper Book and copy of bank statement of the appellant placed at page no. 149 of the Paper Book, it has been noticed that the subject loan was received by the appellant only during the financial year 2007-08 relevant to A.Y. 2008-09 i.e. on 12-12-2007. Further, from the copy of the balance sheet of the lender company i.e. SCS Builders & Developers Pvt. Ltd., as filed at page no. 143 of the Paper Book, it is further seen that a sum of Rs.45,00,000/- has been shown as given to the appellant in the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 49 balance sheet dated 31-03-2008. In such circumstances, there was absolutely no justification for the AO to make the impugned addition in the income of the appellant for A.Y. 2009-10. Therefore, the addition deserves to be deleted on the ground of a wrong assessment year. However, the AO shall be at liberty to examine and assess the impugned amount of loan in the A.Y. 2008-09 in accordance with the law. Since, the addition has been deleted in the relevant assessment year for the reasons as detailed above, I do not consider it necessary to go further into the merits of the addition. Accordingly, the addition so made by the AO is hereby deleted. Therefore, this ground of appeal is allowed.” 9.4 Aggrieved with the Order of the ld. CIT(A), the revenue is in appeal before us. 9.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 9.6 Per Contra, Learned Counsel for the assessee made his reliance on the written submissions filed by him before the ld. CIT(A), copies whereof were filed before us in a voluminous Paper Book containing 404 pages, from page no. 1 to 36. 10.1 We have heard rival contentions and perused the records placed before us. Without going into the genuineness of the transactions, we are of the considered view that since as per the Ld.AO himself, the transactions of accepting the loan of Rs.45,00,000/- by the assessee from M/s. SCS Builders & Developers was carried out on 12-12-2007, which falls in the A.Y. 2008-09 only, no addition is sustainable in the income of the assessee for A.Y. 2009-10. Thus, fully concurring with the findings Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 50 of the ld. CIT(A), as extracted hereinabove, the ground No. 3 of the Revenue is hereby Dismissed. 11. Ground No. 4 of the Revenue and Ground No. 2 of the Cross Objection filed by the assessee 11.1 Through these grounds of appeal, both the revenue and the assessee have challenged the action of the ld. CIT(A) in partially confirming the addition to the tune of Rs.50,000/- out of the total addition of Rs.1,28,750/- made by the AO on account of low household expenses. 11.2 Briefly stated facts of the issue, as culled out from the records, are that during the course of the assessment proceedings, the AO required the assessee to furnish the details of members of family, their occupation, PAN annual income and withdrawal by them for house hold expenses. The assessee was also required to justify withdrawals for house hold expenses keeping in view the size of her family. In response, the assessee furnished a chart explaining the detail of house hold expenses by family but without any supporting documents. From such chart, the Ld.AO noted that increase in household expenditure by family during the span of four years was mere 33% which was not possible looking to the rate of inflation, high standard of living and social status of the family. Accordingly, the Ld.AO estimated the household expenses of the assessee at Rs.1,75,000/- as against the same shown by the assessee at Rs.46,250/- thereby making an addition of Rs.1,28,750/- in the hands of the assessee. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 51 11.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made detailed written submissions along with documentary evidences. The Ld. CIT(A) observed that Ld. AO rightly made analysis of comparative house hold expenses during the relevant year and earlier year. According to the ld. CIT(A), since, the assessee failed to explain the analysis of findings of the AO, the house hold withdrawals for the relevant assessment year were found inadequate as such the Ld.AO was justified in making appropriate addition under this head. However, as per ld. CIT(A), the addition of Rs.1,28,750/- was highly excessive as such the same was restricted by the ld. CIT(A) to Rs.50,000/- to cover the infirmities as pointed out by the AO. The relevant findings of the ld. CIT(A) are reproduced as under: “11.1 The appellant during the course of appeal proceedings has filed written submissions which are duly reproduced above in the assessment order. I have gone through the assessment order and written submissions filed by the appellant along with the documentary evidences placed on record. It has been found that the AO has rightly made analysis of comparative house hold expenses during the relevant year and earlier year. Since, the appellant failed to explain the analysis of findings of the AO, in my considered opinion, the house hold withdrawals for the relevant assessment year have been found inadequate as such the AO has been found justified in making appropriate addition under this head. However, the addition of Rs.1,28,750/- has been found highly excessive as such the same is restricted to Rs.50,000/- which shall be sufficient to cover the infirmities as pointed out by the AO. Accordingly, this ground of appeal is partly allowed.” Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 52 11.4 Aggrieved with the Order of the ld. CIT(A), the revenue is in appeal before us and the assessee has also filed his cross objections before us. 11.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 11.6 Per Contra, Learned Counsel for the assessee made his reliance on the written submissions filed by him before the ld. CIT(A), copies whereof were filed before us in a voluminous Paper Book containing 404 pages, from page no. 1 to 36. 12.1 We have heard rival contentions and perused the records placed before us, We find that in the instant case, the AO has made the impugned addition of Rs.1,28,750/- merely on the basis of the capital account furnished by the assessee himself before him during the course of the assessment proceedings. We find that, in the entire body of the assessment order on the subject issue, the AO has not made any reference of any incriminating material. We find that the addition has been made by the AO without having recourse to any incriminating material found during the course of the search, in respect of an assessment year for which no assessment proceedings was pending on the date of search, in view of our findings given hereinabove while adjudicating the ground no. 2 of the Revenue supra, no addition on account of household withdrawals so made by the AO deserves to be sustained. Accordingly, in our considered view, the entire addition of Rs.1,28,750/- made by the AO on account of low household Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 53 withdrawals is liable to be deleted. Consequently, the ground No. 4 of the Revenue is Dismissed and Ground No. 2 of the Assessee’s cross objection is hereby Allowed. 13. Ground Nos. 1(a) & 1(b) of the Assessee’s Cross Objecton 13.1 Through these grounds of appeal, the assessee has challenged the action of the ld. CIT(A) in confirming the addition of Rs.5,00,000/- made by the AO on account of receipt from M/s Phoenix Leisure & Lifestyle Pvt. Ltd.. 13.2 Briefly stated facts of the issue, as culled out from the records, are that during the course of the assessment proceedings, the AO noted that during the course of search under section 132 of the Income-Tax Act, 1961 in Satellite Group of cases on 19-11-2009, several incriminating documents were seized from the premises of one company M/s Phoenix Devcons Pvt. Ltd. The AO has further noted that one loose paper inventorized as page no. 1 of LPS-A/1 contained the details of total cheque & cash payments received from the customers in the project Zenith Tower and as also, cash payments made to various persons. As per such details, the Ld.AO found that the assessee was also given a sum of Rs.5 lacs. Thus, the Ld.AO held that the assessee could not furnish any justification for not recording the transaction in his books. Therefore, the AO proceeded to make an addition of Rs.5,00,000/- in the assessee’s income. 13.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 54 first appellate proceedings, the assessee made detailed written submissions along with documentary evidences. The Ld. CIT(A) observed that the assessee had simply tried to avoid the liability only on the ground that the document did not pertain to him, but, nothing was stated on the facts and merit on the addition as discussed by the AO in the assessment order. According to the ld. CIT(A), in the absence of anything concrete stated on the facts and merits on the case and without controverting the findings of AO, the assessee cannot take the plea that the amount cannot be added in his income. Thus, the ld. CIT(A) held that the AO was justified in making the impugned addition of Rs.5 lacs which was accordingly confirmed. The relevant findings of the ld. CIT(A) are reproduced as under: “10.1 I have gone through the assessment order, the written submissions filed by the appellant and various documentary evidences placed on record. It has been found that the addition has been made on the basis of a loose paper inventorized as page no. 1 of LPS-A/1 which was seized from the premises of party namely M/s Phoenix Devcons Pvt. Ltd. during the course of some other search carried out in the premises of such company. The AO has been found made sufficient examination of documents to see the veracity of the impugned documents which according to him has been detailed in serial no. 3 in the assessment order. During the course of appeal proceedings, the appellant has simply stated that since the documents were found and seized from third party, the same cannot be considered in the case of the appellant. 10.2 I have gone through the contents of the assessment order on the relevant issue and also the written submissions filed by the appellant Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 55 during the course of appeal proceedings. It has been observed that the appellant has simply tried to avoid the liability only on the ground that the document did not pertain to him. But, nothing has been stated on the facts and merit on the addition as discussed by the AO in the assessment order. In my considered opinion, in the absence of anything concrete stated on the facts and merits on the case and without controverting the findings of AO, the appellant cannot take the plea that the amount cannot be in his income. In my opinion, the AO has been found justified in making the impugned addition of Rs.5 lacs which is accordingly confirmed. Accordingly, this ground of appeal is dismissed.” 13.4 Aggrieved with the Order of the ld. CIT(A), the assessee has filed his cross objections before us. 13.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 13.6 Per Contra, Learned Counsel for the assessee made his reliance on the written submissions filed by him before the ld. CIT(A), copies whereof were filed before us in a voluminous Paper Book containing 404 pages, from page no. 1 to 36. 14.1 We have heard rival contentions and perused the records placed before us. We find that during the course of the search, in the case of M/s. Phoenix Devcons Pvt. Ltd. one loose paper inventorized as page no. 1 of LPS-A/1 was found and seized and from such document, it was apparent that the assessee has carried out a financial transaction of Rs.5,00,000/- with M/s. Phoenix Leisure & Lifestyle Pvt. Ltd. and neither during the course of the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 56 search nor during the course of the appellate proceedings, the assessee could explain the nature and source of such transactions and therefore, the ld. AO was having no alternate than to hold the same as the undisclosed income of the assessee. Accordingly we find no infirmity in the action of the ld. CIT(A) in confirming the addition. Consequently, the ground Nos. 1(a) & 1(b) of the Assessee are hereby Dismissed. 15. Ground Nos. 3(a) & 3(b) of the Assessee 15.1 Through these grounds of appeal, the assessee has challenged the action of the ld. CIT(A) in confirming the addition of Rs.1,10,000/- made by the AO on account of agricultural income. 15.2 Briefly stated facts of the issue, as culled out from the records, are that during the course of the assessment proceedings, the AO noted that the assessee had shown agricultural income of Rs.40,000/-. The assessee was required to furnish the copy of purchase bills for seeds, pesticides, fertilizers alongwith documents in support of sale of agricultural produces in support of his claim for agricultural income. The assessee was also required to furnished the per hectare yielding of proceeds in the agricultural area with the nature of land (whether irrigated or non irrigated) and receipt issued by Krishi Upaj Mandi where agricultural produce were sold. The assessee was also required to furnish copy of land revenue record such as B-1 and P-II in support of agricultural activities. The assessee could not furnish any of the above information. It was noted by the AO from the statement of affairs that assessee was the Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 57 owner of two agricultural lands and on examination of the area of agricultural land, it was noted that the agricultural income of the assessee, if two crops are produced every year, cannot be less than Rs.1,50,000/- per year. Accordingly, the AO made an addition of Rs.1,10,000/- in the hands of the assessee on account of agricultural income. 15.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made detailed written submissions along with documentary evidences. The Ld. CIT(A) observed that the AO had rightly made analysis of agricultural income during the relevant year. As per the ld. CIT(A), the assessee failed to explain and controvert the findings of the AO and thus, in his opinion, the agricultural income for the relevant assessment year was rightly estimated by the AO only for the rate purpose. Accordingly, the ld. CIT(A) confirmed the addition of Rs.1,10,000/- in the hands of the assessee. The relevant findings of the ld. CIT(A) are reproduced as under: “12.1 The appellant during the course of appeal proceedings has filed written submissions which are duly reproduced above in the assessment order. I have gone through the assessment order and written submissions filed by the appellant along with the documentary evidences placed on record. It has been found that the AO has rightly made analysis of agricultural income during the relevant year. Since, the appellant failed to explain and controvert the findings of the AO, in my considered opinion, the agricultural income for the relevant assessment year has been found Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 58 rightly estimated by the AO only for the rate purpose. Accordingly, this ground of appeal is dismissed.” 15.4 Aggrieved with the Order of the ld. CIT(A), the assessee has filed his cross objections before us. 15.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 15.6 Per Contra, Learned Counsel for the assessee made his reliance on the written submissions filed by him before the ld. CIT(A), copies whereof were filed before us in a voluminous Paper Book containing 404 pages, from page no. 1 to 36. 16.1 We have heard rival contentions and perused the records placed before us. We find that in the instant case, the AO has made the impugned addition of Rs.1,10,000/- merely on the basis of return of income furnished by the assessee. We find that, in the entire body of the assessment order on the subject issue, the AO has not made any reference of any incriminating material. We find that the addition has been made by the AO without having recourse to any incriminating material found during the course of the search, in respect of an assessment year for which no assessment proceedings was pending on the date of search. Thus in view of our findings given hereinabove while adjudicating the ground no. 2 of the Revenue (supra), no addition on account of agricultural income so made by the AO deserves to be sustained. Accordingly, in our considered view, the entire addition of Rs.1,10,000/- made by the AO on account of agricultural income is liable to be deleted. Chitresh Mehta,AY 2009-10 IT(SS) No.260/Indore/2019 & CO, 59 Consequently, the ground Nos. 3(a) & 3(b) of the assessee are hereby Allowed. 17. In the result, the appeal of the Revenue for ITA(SS) No.260/Ind/2019 for AY 2009-10 is dismissed and the cross objections of the assessee CO.No.08/Ind/2020 are partly allowed. The order pronounced as per Rule 34 of ITAT Rules, 1963 on 08.03.2022. Sd/- Sd/- (MAHAVIR PRASAD) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER दनांक /Dated : 08 .03 .2022 Sr. PS/Patel Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file. By Order, Sr. Private Secretary, I.T.A.T., Indore
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