DCIT, Central Circle-1(2), Ahmedabad V. Asit Harilal Vora, Ahmedabad

ITSSA 266/AHD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1574 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: O P SHARMA; L P JAIN
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Income from undisclosed sources; Rectification of order; Search and seizure; Loose papers; Document seized; Additional evidence; Tax effect; Onus to prove; Revised return; Documents seized
• Section: 143(3); 153A; 208; 43; 13; 68; 132; 154; 15

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD ( CONVENED THROUGH VIRTUAL COURT ) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO. 76/AHD/2020 WITH ./ I.T.A. NO. 2376/AHD/2018 ( ASSESSMENT YEAR : 2012-13) ASSISTANT COMMISSIONER OF INCOME-TAX/D.C.I.T. CENTRAL CIRCLE - 1(2), AHMEDABAD ROOM NO. 305, 3 RD FLOOR, AAYKAR BHAWAN, ASHRAM ROAD, AHMEDABAD / VS. SHRI ASHIT HARILAL VORA 5-B, VASUPUJYA SOCIETY, P. T. COLLEGE ROAD, PALDI, AHMEDABAD 380007 ./ ./ PAN/GIR NO. : ACJPV1280C ( APPELLANT ) .. ( / RESPONDENT ) & () ./ I.T(SS).A. NO. 266/AHD/2018 WITH CROSS OBJECTION NO. 46/AHD/2020 ( ASSESSMENT YEAR : 2012-13) DCIT/ACIT CENTRAL CIRCLE - 1(2), AHMEDABAD / VS. SHRI ASHIT HARILAL VORA 5-B, VASUPUJYA SOCIETY, P. T. COLLEGE ROAD, PALDI, AHMEDABAD 380007 M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 2 - ./ ./ PAN/GIR NO. : ACJPV1280C ( APPELLANT / RESPONDENT ) .. ( RESPONDENT / CROSS OBJECTOR ) / APPELLANT BY : SHRI KETAN H. SHAH WITH SHRI AMAN K. SHAH, A.RS. / RESPONDENT BY : SHRI O. P. SHARMA, CIT.DR & SHRI L. P. JAIN, SR. D.R. !' DATE OF HEARING 19/08/2020 & 15/12/2020 #$%& !' / DATE OF PRONOUNCEMENT 15/12/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION, APPEAL AND CROSS OBJECTION DIRECTED AT THE INSTANCE OF REVENUE AND A SSESSEE ARISE FROM THE RESPECTIVE ORDERS OF THE COMMISSIONER OF I NCOME TAX (APPEALS) (CIT(A)) AGAINST DIFFERENT ASSESSMENT Y EARS AS TABULATED BELOW: ITA NOS. NAME OF ASSESSEE AY CIT(A)S ORDER DATED AOS ORDER DATED AOS ORDER UNDER SECTION M.A. NO. 76/AHD/20 WITH 2376/AHD/18 SHRI ASHIT HARILAL VORA 2012-13 17.07.2018 29.12.2016 143(3) R.W.S. 153A(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IT(SS)A NO. 266/AHD/18 A/W. CO NO. 46/ AHD/20 -DO- 2012-13 -DO- -DO- -DO- 2. THE REVENUE HAS FILED MISCELLANEOUS PETITION NO. 76/AHD/2020 ARISING IN ITA NO.2376/AHD/2018 DATED 1 4.08.2019 CONCERNING AY 2012-13 IN CASE OF THE CAPTIONED ASSE SSEE. AS PER THE MISCELLANEOUS PETITION, IT WAS SUBMITTED ON BEH ALF OF THE M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 3 - REVENUE THAT ASSESSMENT ORDER UNDER S.143(3) R.W.S. 153A OF THE ACT WAS PASSED ON 29.12.2016 IN CASE OF ASSESSEE FOR AY 2012-13 BY MAKING FOLLOWING ADDITIONS: * UNEXPLAINED CASH CREDIT U/S. 68 RS.2,60,00,000/- * UNEXPLAINED MONEY (ON PROTECTIVE BASIS) RS.36,36, 760/- 3. THEREAFTER, FIRST APPELLATE ORDER DATED 17.07.20 18 WAS RECEIVED BY THE AO WHEREIN ADDITIONS OF RS.2,60,00, 000/- STOOD DELETED. HOWEVER, ANOTHER ADDITION OF RS.36,36,760 /- REMAINED TO BE DISPOSED OFF IN THE SAID APPELLATE ORDER OF THE CIT(A). THE TAX EFFECT ON DELETION OF ADDITIONS OF RS.2,60,00,000/- WAS RS.80,34,000/-. THEREFORE, THE DEPARTMENT FILED SEC OND APPEAL BEFORE THE TRIBUNAL ON 01.10.2018 VIDE IT(SS)A NO. 266/AHD/2018 AGAINST THE AFORESAID ORDER OF THE CIT(A). THEREAF TER, A RECTIFICATION ORDER UNDER S.154 OF THE ACT DATED 11 .09.2018 CAME TO BE PASSED BY THE CIT(A) IN THE CASE OF ASSESSEE FOR AY 2012-13 ADJUDICATING ANOTHER GROUND OF APPEAL WHICH HAD REM AINED TO BE DISPOSED IN CIT(A)S EARLIER ORDER DATED 17.07.2018 . THE CIT(A) VIDE RECTIFICATION ORDER DATED 11.09.2018 HAS ALSO DELETED THE ADDITION OF RS.36,36,760/- MADE BY THE AO. THE TAX EFFECT WAS RS.11,56,489/-. THE REVENUE FILED APPEAL BEFORE IT AT FOR THIS SECOND LIMB OF ADDITIONS/DISALLOWANCES VIDE ITA NO.2376/AHD/2018. THE ITAT VIDE ORDER DATED 14.08. 2019 HAS DISMISSED THE APPEAL FILED BY THE DEPARTMENT IN ITA NO. 2376/AHD/2018 VIDE ORDER DATED 05.12.2018 DUE TO LO W TAX EFFECT INVOLVED IN THE SAID APPEAL HAVING REGARD TO CIRCUL AR NO. 3 OF 2018 ISSUED BY CBDT. HOWEVER, CONSIDERING THE OVERALL T AX EFFECT WHICH WAS RS.91,90,489/-, THE DEPARTMENT FILED APPEAL BEF ORE THE ITAT ON 05.12.2018 IN THE CASE OF THE ASSESSEE FOR AY 2012- 13 VIDE ITA NO. 2376/AHD/2018 BEFORE THE ITAT. M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 4 - 4. IN THIS FACTUAL BACKGROUND, IT IS THE CASE OF TH E REVENUE THAT BOTH DEPARTMENTAL APPEALS IN IT(SS)A NO.266/AHD/201 8 AND ITA NO.2376/AHD/2018 RELATES TO ONE ASSESSEE FOR THE ON E ASSESSMENT ORDER ARISING FROM THE SAME ASSESSMENT ORDER UNDER S.143(3) R.W.S. 153A OF THE ACT DATED 29.12.2016. THEREFORE, APPEA L FILED ON 05.12.2018 IN ITA NO.2376/AHD/2018 IS URGED TO BE R ECALLED AND MERGED WITH THE ORIGINAL DEPARTMENTAL APPEAL FILED ON 01.10.2018 VIDE IT(SS)A NO.266/AHD/2018 FOR AY 2012-13 UNDER CONSIDERATION. IT WAS THUS PRAYED THAT ITA NO.2376 /AHD/2018 AS WELL AS IT(SS)A NO.266/AHD/2018 FOR AY 2012-13 DEAL ING WITH TWO DIFFERENT POINTS ARISING FROM THE SAME ASSESSMENT Y EAR BE HEARD BE ADJUDICATED ON MERIT AS THE CIRCULAR NO.3 OF 2018 W OULD NOT APPLY IN THESE PECULIAR FACTS. 5. THERE WAS NO SERIOUS OPPOSITION FROM THE ASSESSE E FOR RECALLING THE APPEAL IN ITA NO.2376/AHD/2018 AND CL UBBING THE SAME WITH IT(SS)A NO.266/AHD/2018 AS POINTED OUT ON BEHALF OF THE REVENUE ON THE GROUNDS OF INAPPLICABILITY OF CBDT C IRCULAR. 6. IN THE LIGHT OF THE FACTS NARRATED ON BEHALF OF THE REVENUE AS NOTED IN PRECEDING PARA, WE FIND THAT CIRCULAR NO.3 OF 2018 SHOULD NOT APPLY WHERE COMBINED TAX EFFECT FROM THE SAME A SSESSMENT ORDER EXCEEDS THE PRESCRIBED LIMIT WITH WHICH THERE IS NO QUARREL FROM THE ASSESSEE. RESULTANTLY, THE MISCELLANEOUS PETITION NO.76/AHD/2020 IS ALLOWED AND ITA NO. 2376/AHD/2018 IS RECALLED AND RE-FIXED FOR HEARING TODAY WITH THE CONSENT OF THE PARTIES TOGETHER WITH THE MAIN APPEAL IN IT(SS)A NO. 266/AH D/2018 LISTED FOR HEARING TODAY. 7. IN THE RESULT, M.A. OF THE REVENUE IS ALLOWED. M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 5 - 8. WE SHALL NOW DISPOSE OF BOTH THE CAPTIONED APPEA LS ARISING FROM THE SAME ASSESSMENT ORDER HEREWITH. IT(SS)A NO. 266/AHD/2018-A.Y. 2012-13 9. AS PER THE GROUND OF APPEAL, THE REVENUE HAS ASS AILED THE ACTION OF THE CIT(A) IN DELETING THE ADDITIONS OF R S.2,60,00,000/- ON ACCOUNT OF UNEXPLAINED CREDIT UNDER S.68 OF THE ACT . 10. BRIEFLY STATED, THE ASSESSEE FILED RETURN OF IN COME UNDER S.139 OF THE ACT ON 08.07.2012 DECLARING TOTAL INCOME AT RS.7,13,357/-. AFTER FILING OF RETURN, A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE OF THE ASSESSEE UNDER S.132 OF THE ACT ON 04.12.2014. A NOTICE UNDER S.153A O THE ACT WAS ISSUED AND THE AS SESSEE FILED RETURN OF INCOME DECLARING HIS INCOME AT RS.6,09,66 0/- IN COMPLIANCE OF THE AFORESAID NOTICE. THE AO COMPLET ED THE ASSESSMENT UNDER S.153A OF THE ACT ASSESSING TOTAL INCOME AT RS. 3,38,83,177/-. THE ADDITIONS MADE TOWARDS UNEXPLAI NED CASH CREDIT BY INVOKING PROVISIONS OF SECTION 68 OF THE ACT AMO UNTING TO RS.2,60,00,000/- IS IN CHALLENGE IN THE CAPTIONED A PPEAL. 11. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E AO NOTED THAT THE ASSESSEE HAS RECEIVED UNSECURED LOAN OF RS.2,60 ,00,000/- FROM ONE ANUSTHAN BUILDCON PVT. LTD. (LENDER). THE AO A SKED THE ASSESSEE TO PROVE IDENTITY, CAPACITY AND GENUINENES S OF THE TRANSACTION. IN REPLY, THE ASSESSEE SUBMITTED LEDG ER COPY OF UNSECURED LOAN AND CONFIRMATION. HOWEVER, THE AO O BSERVED THAT THE CONFIRMATION IS NOT SIGNED BY THE LENDER CONCER NED. THE AO FURTHER NOTED THAT FUNDS RECEIVED IN THE LENDERS A CCOUNT HAVE TO BE TREATED AS NON-GENUINE AND THEREFORE FUNDS RECEIVED BY THE ASSESSEE IN THE FORM OF UNSECURED LOAN FROM THE LENDER ARE A LSO TREATED AS M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 6 - NON-GENUINE SINCE CREDITWORTHINESS OF THE LENDER IS NOT PROVED. IT WAS THUS SHOW CAUSED TO THE ASSESSEE THAT IN THE AB SENCE OF PROPER EVIDENCE AND EXPLANATION TOWARDS UNSECURED LOANS OB TAINED BY THE ASSESSEE WHICH ARE TREATED AS NON-GENUINE, INTEREST PAID ON SUCH LOAN SHOULD ALSO BE DISALLOWED. THE ASSESSEE INTER ALIA SUBMITTED COPY OF LEDGER ACCOUNT OF LENDER IN THE BOOKS OF TH E ASSESSEE, BANK STATEMENT OF THE ASSESSEE REFLECTING RTGS CREDITS R ECEIVED THROUGH BANKING CHANNEL FROM THE LENDER AND POINTED OUT THA T THE LENDER IS ALSO ASSESSED IN THE SAME CHARGE AND BY THE SAME AO AND FURTHER ENQUIRY MAY BE CARRIED OUT. IT WAS FURTHER POINTED OUT THAT IN THE EVENT OF UNSATISFACTORY EXPLANATION OF SOURCE OF TH E LENDER, THE ADDITION MAY BE CARRIED OUT, IF ANY, IN THE HANDS O F THE LENDER AND NOT IN THE HANDS OF THE ASSESSEE AS THE ASSESSEE HA S DISCHARGED HIS OBLIGATIONS BY PROVIDING NECESSARY DETAILS WITH REG ARD TO THE CREDITWORTHINESS OF THE LOAN PARTY. THE AO, HOWEVE R, DID NOT PAY HEED TO THE VARIOUS EXPLANATION OFFERED ON BEHALF O F THE ASSESSEE AND MADE AN ADDITION OF RS.2,60,00,000/- TO THE TOT AL INCOME DECLARED BY THE ASSESSEE WITH THE AID OF SECTION 68 OF THE ACT AFTER TAKING NOTE OF CERTAIN SEIZED DOCUMENTS. 12. AGGRIEVED BY THE AFORESAID ACTION, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 13. THE CIT(A) TOOK NOTE OF THE DETAILED WRITTEN SU BMISSIONS AND THE EVIDENCES FILED IN SUPPORT OF THE BONAFIDES OF THE LOANS. SEVERAL JUDICIAL PRONOUNCEMENTS WERE QUOTED ON BEHALF OF TH E ASSESSEE AS ALSO REPRODUCED IN THE ORDER OF THE CIT(A). LEGAL SUBMISSIONS WERE ALSO MADE BEFORE THE CIT(A) THAT IN THE ABSENCE OF ANY INCRIMINATING DOCUMENT EVIDENCE FOUND IN THE COURSE OF SEARCH, IT WAS NOT OPEN TO THE AO TO MAKE RE-ASSESSMENT OF CON CLUDED ASSESSMENT IN THE GARB OF INVOKING THE PROVISIONS O F SECTION 153A M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 7 - OF THE ACT AS SUCH ACTION WILL DEFEAT OTHER RELEVAN T PROVISIONS OF THE ACT AND ALSO THE RIGHTS OF THE ASSESSEE ACCRUED BY VIRTUE OF A COMPLETED ASSESSMENT. THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT VS. SAUMYA CONSTRUCTION PVT. LTD. 387 ITR 529 (GUJ.) WAS RELIED UPON. AFTER TAKING COGNIZANCE OF THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE, THE CIT(A ) FOUND A CONCEIVABLE CASE IN THE JUSTIFICATION LED BY THE AS SESSEE AND DELETED THE ADDITIONS MADE ON MERITS. 14. IT WILL BE PERTINENT TO REPRODUCE RELEVANT OPER ATIVE PARA OF THE DECISION MAKING PROCESS OF THE CIT(A) FOR EASY REFE RENCE: 7. SUBMISSION OF THE APPELLANT ASSESSMENT ORDER, R EPORT OF THE AO AND REJOINDER D BY THE APPELLANT HAVE BEEN CAREFULL Y CONSIDERED. THE FIRST GROUND OF APPEAL IS GENERAL IN NATURE, HENCE, DOES NOT REQUIRE ADJUDICATION. THEREFORE, IT IS DISMISSED . FACTS OF THE CASE IN BRIEF ARE THAT THE APPELLANT FILED RETURN OF INCOME FOR AY 20 12-13 ON 08.07.2012 SHOWING TOTAL INCOME OF RS.7,13,357/. A SEARCH U/S. 132 OF THE ACT WAS CONDUCTED UPON THE APPELLANT ALONGWITH OTHER GROUP PERSONS/CONCERNS ON 4.12.2014. NOTICE DATED 22.7.2015 WAS ISSUED ON 22.7.2015 U/S. 153A OF THE ACT AND SERVED UPON THE APPELLANT. THE APPELLANT VIDE LETTER DATED 9.9.2015 REQUESTED TO THE AO THAT THE RETURN FILED ORIGINALLY ON 30.9.2009 MAY BE TREATED AS RETURN FI LED IN RESPONSE TO NOTICE ISSUED U/S. 153A OF THE ACT. NOTICE U/S. 143 (2) DATED 16.12.2015 WAS ISSUED & SERVED UPON THE APPELLANT. THE APPELLA NT, THEREAFTER, FILED REVISED RETURN OF INCOME, DURING THE COURSE OF ASSE SSMENT PROCEEDINGS BEFORE THE AO ON 15.11.2016 SHOWING TOTAL INCOME OF RS.6,09,660/-. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APP ELLANT FILED ADDITIONAL EVIDENCES UNDER RULE 46A AND REQUESTED T HAT THE SAME MAY BE ADMITTED KEEPING IN VIEW THE FACT THAT THE AR OF THE APPELLANT WITHDREW FROM THE ASSESSMENT PROCEEDINGS IN BETWEEN . THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT WERE FORWARDED TO THE AO FOR HIS COMMENTS. THE AO SUBMITTED REPORT VIDE LETTER DATED 05.03.2018, RECEIVED THROUGH JT.CIT, CENTRAL RANGE-1, AHMEDABAD 'S LETTER DATED 07.03.2018. THE AO OBJECTED AGAINST THE ADMISSION O F ADDITIONAL EVIDENCES STATING THAT THE APPELLANT HAD SUFFICIENT TIME TO FILE THE EVIDENCES BEFORE WITHDRAWING AUTHORITY BY THE AR OF THE APPELLANT, THEREFORE, THE APPELLANT CASE IS NOT COVERED BY ANY EXCEPTION GIVEN UNDER RULE 46A. THE AO ALSO SUBMITTED REPORT ON MER IT OF THE CASE ALONGWITH HIS LEGAL OBJECTIONS. FACTS OF THE CASE H AVE BEEN CONSIDERED IN TOTALITY. THE AO MADE THE ADDITIONS CONSIDERING LOAN OF RS.2,60,00,000/- FROM ANUSTHAN BUILDCON PVT. LTD. A S UNEXPLAINED CREDITS STATING THAT THE APPELLANT COULD FILE ONLY CONFIRMATION FROM THE CREDITORS AND COPY OF ITR ACKNOWLEDGEMENT RECEIPTS, THEREFORE, THE APPELLANT DID NOT DISCHARGE ONUS. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT FILED DETAILS OF PAN IN RESPECT OF THE M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 8 - CREDITOR, CONFIRMATION AND COPY OF ITR. THE APPELLA NT ALSO SUBMITTED THAT ALL THE CREDITORS ARE GROUP CONCERNS/PERSONS & ALL HAVE BEEN COVERED UNDER SEARCH ACTION ALONGWITH THE APPELLANT . ASSESSMENT OF ALL THIS CONCERNS/PERSONS HAS BEEN MADE BY THE AO HIMSE LF. THEREFORE, ALL THE DETAILS ABOUT THE CREDITORS IS AVAILABLE WITH T HE AO WHILE MAKING THE ASSESSMENT. LOOKING TO THE FACTS THAT ALL THE C REDITORS HAVE BEEN ASSESSED BY THE AO OF THE APPELLANT OBJECTION AGAIN ST ADMISSION OF ADDITIONAL EVIDENCE IS NOT FOUND JUSTIFIED. KEEPING IN VIEW THIS FACT, THE OBJECTIONS RAISED BY THE AO AS NOT FOUND JUSTIFIED, HENCE, REJECTED. THE ISSUES ARE DECIDED ON MERIT IN THE COMING PARAS. SECOND GROUND OF APPEAL IS AGAINST THE ADDITIONS OF RS.2, 60,00,000/- MADE BY THE AO U/S 68 OF THE ACT CONSIDERING THE CR EDITS AS UNEXPLAINED. THE AO STATED THAT DURING THE YEAR, TH E APPELLANT OBTAINED LOAN OF RS.2,60,00,000/- FROM ANUSHTHAN BU ILDCON PVT. LTD. TO SUBSTANTIATE THE GENUINENESS OF THESE CREDITS, THE APPELLANT SUBMITTED CONFIRMATIONS FROM CREDITORS, COPY OF ACKNOWLEDGEME NT OF ITR AND BANK ACCOUNT BY HIGHLIGHTING THE TRANSACTIONS. THE APPEL LANT FURTHER STATED THAT THE CREDITORS ARE ASSESSED WITH THE AO HIMSELF AND THESE ARE ALSO COVERED UNDER SEARCH ACTION WITH THE APPELLANT. SO ALL THE DETAILS OF THE CREDITORS ARE AVAILABLE WITH THE AO. THE AO STATED IN THE ASSESSMENT ORDER &REITERATED IN REMAND REPORT THAT THE PERSONS /CONCERNS OF THIS GROUP HAVE BEEN FOUND INDULGED IN TRADING IN SHARE MARKET, MANIPULATION OF SHARE PRICES, GIVING & TAKING ACCOM MODATION ENTRIES AND INVESTING UNACCOUNTED INCOME IN REAL ESTATE & O THER BUSINESS ACTIVITIES. THEREFORE, THE AO CONSIDERED THAT THE L OAN OBTAINED BY THE APPELLANT REMAINED UNEXPLAINED. THE APPELLANT CONTE NDED THAT TO PROVE THE GENUINENESS OF CREDIT IN THE BOOKS OF ACCOUNTS, THE FOLLOWING THREE THINGS ARE TO BE PROVED :- I) IDENTITY OF THE CREDI TOR II) GENUINENESS OF THE TRANSACTION AND III) CREDITWORTHINESS OF THE CR EDITOR THE APPELLANT CONTENDED THAT ALL THE CREDITORS WERE COVERED UNDER SEARCH ACTION U/S. 132 OF THE ACT BY THE DEPARTMENT ALONGWITH THE APPE LLANT AND HAVE BEEN ASSESSED BY THE SAME AO. THEREFORE, IDENTITY OF THE CREDITOR IS PROVED BEYOND DOUBT. TO PROVE THE GENUINENESS OF THE TRANS ACTIONS, THE APPELLANT CONTENDED THAT THE LOAN WAS TAKEN THROUGH REGULAR BANKING CHANNEL. IT HAS BEEN REFLECTED IN THE BANK ACCOUNT OF BOTH THE PARTIES. THE CREDITOR HAS FILED CONFIRMATION FROM THE CREDIT OR IN THIS REGARD. THEREFORE, THE TRANSACTION IS GENUINE ONE. TO PROVE CREDITWORTHINESS OF THE CREDITOR, THE APPELLANT CONTENDED THAT THE LOAN WAS RECEIVED THROUGH REGULAR BANKING CHANNEL AND THERE WAS NO IM MEDIATE CASH DEPOSITS IN THE ACCOUNT OF THE CREDITOR. THE APPELL ANT ALSO CONTENDED THAT THE CREDITOR IS ASSESSED BY THE AO WHO IS AO O F THE APPELLANT AND HUGE ADDITIONS HAVE BEEN MADE BY THE AO IN THE HAND S OF THE CREDITOR. THESE FACTS PROVE THE CREDITWORTHINESS OF THE CREDI TOR. WITH THESE CONTENTIONS, THE APPELLANT STATED THAT HE HAD DISCH ARGED HER ONUS TO PROVE THE GENUINENESS OF THE CREDITS, HENCE, ADDITI ONS MADE BY THE AO ARE NOT FOUND JUSTIFIED. 8.1 FACTS OF THE CASE, SUBMISSION OF THE APPELLANT, ASSESSMENT ORDER, REMAND REPORT & REJOINDER HAVE BEEN CONSIDERED CARE FULLY. DURING THE YEAR, THE APPELLANT HAD TAKEN LOAN OF RS.2,60,00,00 0/- FROM ANUSHTHAN BUILDCON PVT. LTD. THESE LOAN WAS TAKEN THROUGH REG ULAR BANKING CHANNELS AND REFLECTED IN THE REGULAR BOOKS OF ACCO UNTS. THE APPELLANT FILED CONFIRMATIONS FROM THE CREDITOR DURING THE AS SESSMENT AND APPELLATE PROCEEDINGS. IN THE BANK ACCOUNT OF ANUST HAN BUILDCON PVT M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 9 - LTD, THE CREDITOR, THERE IS NO CASH DEPOSITS IMMEDI ATELY PRIOR TO GIVING LOAN TO THE APPELLANT. ALL THESE FACTS CLEAR LY PROVE THAT THE APPELLANT HAD DISCHARGED ONUS CAST UPON HIM TO SUBS TANTIATE THE GENUINENESS OF THE CREDITS. THE CREDITOR IS ASSESSE D WITH THE AO OF THE APPELLANT AFTER CONDUCTING SEARCH BY THE DEPARTMENT , PROVES HIS IDENTITY. THE APPELLANT FILED CONFIRMATION, TRANSAC TION IS THROUGH REGULAR BANKING CHANNELS & REFLECTED IN THE BOOKS O F ACCOUNTS OF BOTH THE PARTIES, PROVE THE GENUINENESS OF THE TRANSACTI ONS. THE CREDITORS HAVE BEEN ASSESSED BY THE SAME AO AND HUGE INCOME H AS BEEN DETERMINED IN THE HANDS OF THE CREDITOR. THIS FACT COUPLED WITH THE FACT THAT THERE IS NO CASH DEPOSIT IN THE BANK ACCOUNT O F THE CREDITOR IMMEDIATE BEFORE GIVING LOAN TO THE APPELLANT, PROV E CREDITWORTHINESS OF THE CREDITOR. THIS FACT SHOWS THAT ALL THE INGRE DIENTS TO PROVE THE GENUINENESS OF CREDITS HAVE BEEN COMPLIED WITH. KEE PING IN VIEW THE DISCUSSION ABOVE, THE ADDITIONS OF RS.2,60,00,000/- MADE BY THE AO U/S. 68 OF THE ACT IS NOT FOUND JUSTIFIED. MOREOVER, THE CASE OF THE APPELLANT HAS BEEN FOUND COVERED BY THE FOLLOWING BINDING JUD GMENTS OF HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD. DCIT V/S ROHINI BUILDERS 256 ITR 360 (GUJ) CIT V/S, RANCHHOD JIVABHAI NAKHAVA 208 TAXMAN 35 (GUJ) CIT V/S. APEX THERM PACKAGING P LTD 42 TAXMAN.COM 473 (GUJ) CIT V/S. DHARMDEV FINANCE (2014) 43 TAXMAN.COM 39 5 (GUJ) CIT V/S. SHAILESH KUMAR RASIKLAL MEHTA (2014) 41 TA XMAN.COM 550/224 (GUJ) LOOKING TO THE FACTS OF THE CASE, AS NARRATED ABOVE AND BINDING JUDGMENTS, THE ADDITIONS MADE BY THE AO U/S. 68 AMO UNTING TO RS.2,60,00,000/- ARE NOT FOUND JUSTIFIED, HENCE, DELETED . THIS GROUND OF APPEAL IS ALLOWED . 15. AGGRIEVED BY THE REVERSAL OF ADDITIONS UNDER S. 68 OF THE ACT BY FIRST APPELLATE AUTHORITY, THE REVENUE HAS FILED AN APPEAL BEFORE THE TRIBUNAL TO ASSAIL THE ACTION OF THE CIT(A). 15.1 THE LEARNED DR FOR THE REVENUE STRONGLY RELIED UPON THE CONTENTS OF ASSESSMENT ORDER. IN FURTHERANCE, THE LEARNED DR SUBMITTED THAT THE GENUINENESS OF LOANS IN QUESTION IS BACKBONE OF THE ENTIRE CONTROVERSY. MAKING REFERENCE TO DISCUS SIONS IN THE ASSESSMENT ORDER, IT WAS POINTED OUT THAT ONE JUPI TER BUSINESS LTD. (JBL) HAS TRANSFERRED MONEY TO ANUSTHAN BUILDCON P VT. LTD. (ABPL) WHICH WAS, IN TURN, TRANSFERRED TO THE ASSES SEE BY WAY LOAN. THE WHOLE ACTION OF ROUTING MONEY FROM ONE ENTITY T O OTHER AND THEN M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 10 - TO ASSESSEE SMACKS OF A DESIGN. IT WAS POINTED OUT WITH REFERENCE TO PARA 4.3 OF THE ASSESSMENT ORDER THAT CERTAIN CASH WAS GIVEN TO JBL ON ACCOUNT OF ANUSTHAN ENTITY AS PER THE SEIZED DOC UMENT AND SIMILAR AMOUNT HAS BEEN GIVEN BY JBL TO ABPL. IT W AS THUS SUBMITTED THAT WHEN READ IN CONJUNCTION WITH THE SE IZED PAPER, THE LOAN THAT ULTIMATELY LANDED IN THE BOOKS OF ASSESSE E IS PRIMA FACIE NON-GENUINE AND A MERE CONFIRMATION THEREOF BY THE LENDER WOULD NOT BE SUFFICIENT IN THESE PECULIAR CIRCUMSTANCES. THE LEARNED DR SUBMITTED THAT THE AO HAS DEMONSTRATED THE TRANSFER OF MONEY FROM ONE ENTITY TO OTHER WITH REFERENCE TO THE SEIZED DO CUMENTS. IT WAS CONTENDED THAT THE OBSERVATION OF THE CIT(A) IS IN TOTAL DISREGARD OF THIS GLARING FACTS WHERE THE MODUS OPERANDI HAS BEEN PROPERLY ESTABLISHED AND THE ONUS WAS SHIFTED ON THE ASSESSE E. THE LEARNED DR RELIED UPON THE DECISION OF THE HONBLE DELHI HI GH COURT IN THE CASE OF CIT VS. N R PORTFOLIO 263 CTR 456 (DELHI) TO CONTEND THAT PAYMENT MADE THROUGH BANKING CHANNEL BY LENDER IN I TSELF IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE LOAN TRA NSACTIONS AND THE ONUS WHICH LAY UPON THE ASSESSEE UNDER S.68 OF THE ACT REMAINS UNDISCHARGED. THE LEARNED DR ACCORDINGLY CONTENDED THAT THE ACTION OF THE CIT(A) REQUIRES TO BE REVERSED AND AC TION OF THE AO REQUIRES TO BE RESTORED. 15.2 THE LEARNED AR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE CIT(A) AND VARIOUS SUBMISSIONS MADE BEFORE HIM. THE LEARNED AR POINTED OUT THAT THE ASSESSEE HAD DISCHARGED ITS ONUS BY FILING CONFIRMATION AND BANK STATEMENT ETC. THE LENDER HA S SHOWN THE ACT OF LENDING TO THE ASSESSEE IN ITS BOOKS AND BOTH TH E ASSESSEE AND THE LENDER WERE ASSESSED BY THE SAME AO. THE SOURCE OF LENDING, IN TURN, BY THE LENDER IS ALSO ON RECORD OF THE AO WHI CH IS NOT CASH BUT A BANKING CHANNEL TRANSACTION. IT WAS POINTED OUT THAT THE SEIZED PAPERS RELIED UPON BY THE AO ARE DUMB DOCUMENTS WHI CH DO NOT M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 11 - MAKE ANY AFFIRMATIVE REVELATION NOR HAS BEEN SIGNED BY THE ASSESSEE. IT WAS FURTHER POINTED OUT THAT THERE IS NO LINK BETWEEN JBL FROM WHOM THE MONEY WAS SOURCED BY LENDER AND A SSESSEE. IT WAS CONTENDED THAT THE ACT OF REVENUE TO CAST DOUBT ON GENUINENESS OF LOAN IS BASED ON CONJECTURES AND SURMISES. THE LEARNED AR THUS SUBMITTED THAT CIT(A) HAS RIGHTLY DECIDED THE ISSUE IN THE LIGHT OF THE BINDING DECISIONS OF THE JURISDICTIONAL HIGH CO URT LISTED IN THE FIRST APPELLATE ORDER AND NO INTERFERENCE THEREFORE WITH THE ORDER OF THE CIT(A) IS CALLED FOR. 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE ADDITIONS UNDER S.68 OF THE ACT AMOUNTING TO RS.2,6 0,00,000/- ON LOAN RECEIVED BY ASSESSEE FROM A GROUP COMPANY ABPL IS IN CONTROVERSY. THE IDENTITY AND CAPACITY OF THE LEND ER HAS NOT BEEN CHALLENGED ON BEHALF OF THE REVENUE. THE GENUINENE SS OF TRANSACTION HOWEVER HAS BEEN CHALLENGED. THE AO PR OCEEDED ON THE FOOTING THAT THE DOCUMENTARY EVIDENCES TOWARDS CONF IRMATION, BANK STATEMENT OF THE LENDER IS NOT AVAILABLE AND THE SE IZED DOCUMENTS REVEAL THAT ABPL HAS RECEIVED MONEY FROM JBL WHICH HAS BEEN TRANSFERRED TO THE ASSESSEE. IT IS THE CASE OF THE AO THAT SOME INSTANCES OF CASH DEPOSITED IN JBL HAS COME TO THE NOTICE OF THE DEPARTMENT WHICH GIVES AN INFERENCE THAT UNACCOUNTE D CASH OF ASSESSEE AS PROVIDED TO JBL HAS COME BACK IN THE FO RM OF LOAN ENTRY IN THE HANDS OF THE ASSESSEE. 16.1 THE CIT(A) IN THE FIRST APPEAL COLLECTED THE C ONFIRMATION, BANK STATEMENT ETC. FROM THE ASSESSEE. IT WAS FURT HER NOTED THAT THE LENDER IS ALSO ASSESSED WITH THE SAME AO AS THAT OF ASSESSEE AND THE RELEVANT DOCUMENTS WERE AVAILABLE WITH THE AO ASSES SING BOTH THE ENTITIES. THE CIT(A) HAS TAKEN NOTE OF VARIOUS DEC ISIONS RENDERED BY HONBLE HIGH COURT AS WELL AS OTHER NON-JURISDIC TIONAL HIGH M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 12 - COURTS IN ITS ORDER AND FOUND THAT WHERE THE AMOUNT RECEIVED BY THE ASSESSEE FROM THE LENDER IS THROUGH BANKING CHANNEL AND THE TRANSACTIONS ARE REFLECTED IN THE BANK ACCOUNT OF A SSESSEE AS WELL AS THE LENDER, THE ASSESSEE CAN BE DEEMED TO HAVE SUFF ICIENTLY DISCHARGED ITS BURDEN WHICH LAY UPON IT TO EXPLAIN NATURE AND SOURCE OF CREDIT ENTRY APPEARING IN ITS ACCOUNT. THE SUSP ICION CAST ON SOURCE OF MONEY RECEIVED BY LENDER OF THE LENDER IS OF NO CONSEQUENCE INSOFAR AS THE ASSESSEE HEREIN CONCERNE D. THE ASSESSEE HAS ESTABLISHED THE SOURCE FROM WHICH THE MONEY HAS BEEN RECEIVED AND ADMITTEDLY FOUND RECORDED IN THE BOOKS OF THE L ENDER. THE SOURCE OF MONEY RECEIVED BY LENDER IS ALSO NOT IN C HALLENGE. THE ASPERSIONS HAVE BEEN CAST ON THE SOURCE OF SOURCE O F LENDER WHICH WOULD MEAN SOURCE OF SOURCE OF SOURCE OF LENDING IN THE HANDS OF ASSESSEE IS THE BASIS FOR INVOKING SECTION 68 OF TH E ACT. THE GENUINENESS OF LOAN RECEIVED HAS BEEN DOUBTED BY RE VENUE ON SUCH GROUND. THE ACTION OF REVENUE SEEKING TO CAST ASPE RSIONS ON GENUINENESS ON SUCH REMOTE AND UNSUPPORTED BASIS IS IN THE REALM OF CONJECTURES AND SURMISES AS CANVASSED ON BEHALF OF ASSESSEE. 16.2 NOTICEABLY, THERE IS NOTHING ON RECORD TO SHOW ANY OUTCOME OF ENQUIRY, IF ANY, FROM THE LENDER OF LENDER FOR SOUR CE OF HIS MONEY. 16.3 IN THE CIRCUMSTANCES NOTED ABOVE, THE GENUINEN ESS OF THE TRANSACTION HAS TO BE READ IN THE CONTEXT OF ALL AT TENDANT FACTS CUMULATIVELY AND CANNOT BE SEEN IN ISOLATION. THE BURDEN ON THE ASSESSEE UNDER S.68 OF THE ACT IS LIMITED TO PROVIN G THE NATURE AND SOURCE OF THE CREDIT ENTRY. THE BURDEN DOES NOT EX TENT TO ESTABLISH THE QUALITY OF SOURCE OF MONEY IN THE HANDS OF SOUR CE OF SOURCE PER SE. IN THE INSTANT CASE, THE LENDER AS WELL AS THE LEND ER OF THE LENDER ARE BOTH LIMITED COMPANY AND ARE TAX ASSESSEE IN TH E RECORD OF DEPARTMENT. IN ABSENCE OF ANY EVIDENCE AGAINST THE ASSESSEE QUA THE M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 13 - LENDER OF THE LENDER, THE ONUS ON THE ASSESSEE TO E STABLISH GENUINENESS AND CREDITWORTHINESS OF LENDER, IN OUR VIEW, STANDS DISCHARGED. WE SEE NO ERROR IN THE PROCESS OF REAS ONING ADOPTED BY THE CIT(A) WHILE CONCLUDING THE ISSUE IN FAVOUR OF THE ASSESSEE. WE THUS DECLINE TO INTERFERE. 17. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. CROSS OBJECTION NO. 46/AHD/2020 18. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN CO READ HEREUNDER: 1. THE C.I.T.(APPEALS) ERRED IN NOT APPRECIATING T HE FACTS THAT, THERE IS NO APPLICATION OF MIND BY JOINT CIT WHILE GIVING APPROVAL U/S 153D VIDE NO.17/2013 DATED 29-12-2016 AS MENTIONED BY ASSESSING OFFICER IN HIS ORDER DATED 2 9-12-2016 PARA 7 AND THEREFORE, THE WHOLE PROCEEDINGS UNDER S EC. 153A(1)(B) IS ITSELF BAD IN LAW AND VOID AND LIABLE TO BE QUASHED. 2. THAT, IT IS RESPECTFULLY PRAYED THAT, THIS CROSS OBJECTION IS GOING TO THE ROOT OF THE MATTER REGARDING JURISDICTION OF THE AUTHORITY OF SEC.153D AND IT IS CAME TO OUR KNOWLEDGE ONLY WH EN OUR NEW COUNSEL HAS GUIDED US RECENTLY WHILE GOING THROUGH THE BRIEF OF THE CASE AND THEREFORE, THIS CROSS OBJECTION MAY PL EASE BE DECIDED ON MERITS. 19. AT THE TIME OF HEARING, THE LEARNED AR FOR THE ASSESSEE CLEARLY SUBMITTED THAT IN ORDER TO AVOID PROTRACTED LITIGAT ION, HE DOES NOT WANT TO PRESS THE ISSUE. THE CROSS OBJECTION IS AL SO NOTICED TO BE BELATED BY 575 DAYS. THE CO OF THE ASSESSEE IS ACC ORDINGLY DISMISSED AS WITHDRAWN. I.T.A. NO. 2376/AHD/2018 20. IN ITS APPEAL, THE REVENUE HAS CHALLENGED THE R ELIEF GRANTED BY THE CIT(A) TOWARDS ADDITIONS OF RS.36,36,760/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT AS CAPITAL OF THE ASSESSEE. M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 14 - 21. THE AO MADE ADDITIONS OF RS.32,88,000/- (2% OF RS.16,44,00,000/-) TOWARDS PURCHASE OF LAND AT ALTH AN BY SHAH HIRALAL LLP AND SINCE THE ASSESSEES SHARE IN THE S AID FIRM IS 2%. THE AO FURTHER MADE ADDITIONS OF RS.2,48,760/- ON A CCOUNT OF UNACCOUNTED EXPENSES BEING 2% OF TOTAL EXPENSES (2% OF TOTAL EXPENSES RS.1,24,38,000/- INCURRED BY SHAH HIRALAL BUILDCON LLP). THE AO ALLEGED THAT ASSESSEE HAS FAILED TO CONVEY W ITH EVIDENCE THAT HE HAS NOT MADE ANY CASH CONTRIBUTION OF RS.32 ,88,000/- TOWARDS HIS SHARE AS PRESUMED. 22. THE CIT(A) IN THE APPELLATE ORDER DATED 17.07.2 018 HAS FAILED TO ADJUDICATE THE ISSUE INADVERTENTLY. ACCORDINGLY , THE RECTIFICATION APPLICATION WAS MOVED BY THE ASSESSEE FOR DISPOSAL OF THE GRIEVANCE. THE CIT(A) VIDE RECTIFICATION ORDER PASSED UNDER S. 154 OF THE ACT FOR AY 2012-13 DATED 11 SEPTEMBER, 2018 ACCEPTED TH E MISTAKE APPARENT FROM RECORD AND DISPOSED OFF THE ISSUE IN FAVOUR OF ASSESSEE BY A BRIEF DISCUSSIONS AS UNDER: 'GROUND NO.3 : THE LD. AO HAS GRAVELY ERRED IN PRES UMING THAT THE APPELLANT HAVING MADE INVESTMENT AS CAPITAL IN SHAH HIRALAL BUILDCON LLP OF RS.3636760/- ON PROTECTIVE BASIS. THE SAME I S PRAYED FOR DELETION. 2. AS THIS IS A MISTAKE APPARENT FROM RECORD, HENCE , THIS GROUND OF APPEAL IS DECIDED NOW BY PASSING THIS ORDER U/S. 15 4 OF THE ACT. THIS GROUND OF APPEAL IS AGAINST THE ADDITIONS OF RS.363 6760/- MADE BY THE AO ON PROTECTIVE BASIS CONSIDERING THAT THE APPELLA NT HAS INVESTED RS.3288000/- AS INVESTMENT IN LAND PURCHASED AND RS .248760/- AS EXPENDITURE TOTALING TO RS.3636760/- AND THE SAME R EMAINS UNEXPLAINED. AS SUBSTANTIVE ADDITIONS HAVE BEEN MAD E IN THE CASE OF SHAH HIRALAL BUILDCON LLP, THE AO MADE THE PROTECTI VE ADDITIONS. 3. THE APPELLANT CONTENDED THAT NO INVESTMENT WAS M ADE BY HIM IN PURCHASING THE LAND AND INCURRED EXPENDITURE WHICH REMAINS UNEXPLAINED AS STATED BY THE AO. THE PAYMENT FOR PU RCHASE OF LAND IN CASH WAS MADE FROM THE BOOKING AMOUNT RECEIVED ON B OOKING OF UNITS OF THE PROJECTS AND SAME IS EVIDENT FROM 'THE SEIZED M ATERIAL. THESE SEIZED DOCUMENTS WERE RELIED UPON BY THE AO TO MAKE ADDITI ONS IN THE HANDS OF HIRALAL BUILDCON LLP ON SUBSTANTIVE BASIS. M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 15 - 4. THE FACTS OF THE CASE HAVE BEEN CONSIDERED CAREF ULLY. THE AO MADE ADDITIONS ON SUBSTANTIVE BASIS IN THE HANDS OF HIRA LAL BUILDCON LLP FOR UNEXPLAINED INVESTMENT MADE IN PURCHASE OF LAND BUT THE SAME HAS BEEN DELETED BY MY ORDER DATED 13.08.2018 WHILE DECIDING THE APPEAL OF HIRAIAL BUILDCON LLP FOR A.Y. 2012-13. IN THE SAID APPEAL ORDER, THE SEIZED MATERIAL HAS BEEN ANALYSED IN DETAIL AND IT HAS BEEN ADJUDICATED THAT THE CASH PAYMENT FOR PURCHASE OF LAND WAS PAID OUT OF AMOUNT RECEIVED AGAINST BOOKING OF UNITS IN THE PROJECTS. THEREFORE, ADDITIONS OF RS.3288000/- MADE BY THE AO CONSIDERING THE UNEX PLAINED INVESTMENT BY THE AO IS NOT FOUND JUSTIFIED AND HEN CE, DELETED . REGARDING THE ADDITIONS OF RS.2487607-CONSIDERING A S UNEXPLAINED EXPENDITURE, IT HAS BEEN CONSIDERED IN THE APPELLAT E ORDER PASSED FOR HIRALAL BUILDCON LLP FOR A.Y. 2012-13 THAT THE FIND ING OF THE AO ARE FACTUALLY INCORRECT AS THE SEIZED MATERIAL HAVE BEE N ANALYSED WRONGLY. THEREFORE, THE SUBSTANTIVE ADDITION WAS DELETED IN THE HANDS OF HIRAIAL BUILDCON LLP AND IT IS HEREBY DELETED ALSO. THIS GROUND OF APPEAL IS ALLOWED . 23. AGGRIEVED BY THE RELIEF GRANTED BY THE CIT(A), THE REVENUE HAS PREFERRED APPEAL BEFORE THE TRIBUNAL. 23.1 THE LEARNED DR FOR THE REVENUE MAINLY RELIED U PON THE FINDINGS GIVEN BY THE AO. 23.2 THE LEARNED AR, ON THE OTHER HAND, DEFENDED TH E ACTION OF THE CIT(A) AND ALSO POINTED OUT THAT PAPERS SEIZED BY T HE DEPARTMENT WHICH FORMS BASIS FOR PRESUMPTION OF CONTRIBUTION B Y THE ASSESSEE IN PROPORTION TO THE PARTNERSHIP SHARE IS A WILD SU RMISE AND IS DEVOID OF ANY LEGALLY SOUND BASIS. THE PAPERS SEIZ ED RELATES TO THE PARTNERSHIP FIRM SHAH HIRALAL BUILDCON LLP AND NOT TO THE ASSESSEE HEREIN. IT WAS FURTHER POINTED OUT THAT SUBSTANTIV E ADDITIONS WERE MADE IN THE HANDS OF THE PARTNERSHIP FIRM. 24. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE ADDITIONS TOWARDS PRESUMPTIVE CASH CONTRIBUTION AMO UNTING TO RS.32,88,000/- IN PROPORTION TO THE PARTNERSHIP SHA RE APPEARS PRIMA FACIE INEXPLICABLE. THE ONUS IS ON THE REVENUE TO BRING SOME COGENT EVIDENCES ON RECORD TO ESTABLISH THAT ALLEGE D UNACCOUNTED CASH CONTRIBUTION HAS BEEN ACTUALLY MADE BY THE ASS ESSEE PARTNER INDEED. SIMILARLY, THE ALLEGED UNACCOUNTED EXPENSE S FOR M.A. NO. 76/AHD/20 A/W. ITA NO. 2376/AHD/18 & IT(SS)A NO.266/AHD/18 A/W. CO NO. 46/AHD/20 - 16 - CONSTRUCTION PROJECT CARRIED OUT BY THE PARTNERSHIP FIRM HAS BEEN ATTRIBUTED TO THE PARTNER IN PROPORTION TO THE PART NER SHARE AS A FIGMENT OF IMAGINATION WITHOUT ANY LEGALLY SUSTAINA BLE BASIS. THE IMPUGNED ACTION OF AO IS APPARENTLY DRIVEN BY MISPL ACED SUSPICION AND A MERE IPSE-DIXIT WHICH IS NOT OBJECTIVELY JUSTIFIABLE. IT IS WELL SETTLED THAT SUSPICION, HOWSOEVER STRONG, CANNOT TA KE THE PLACE OF PROOF. IN OUR VIEW, THE CIT(A) HAS ANALYZED THE FA CTS IN ITS NATURAL PERSPECTIVE AND HAS RIGHTLY REVERSED THE ACTION OF AO. WE DO NOT SEE ANY PERCEPTIBLE MERIT IN THE APPEAL OF THE REVE NUE AND THUS DECLINE TO INTERFERE. 25. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 26. IN THE COMBINED RESULT, MISCELLANEOUS APPLICATI ON FILED BY REVENUE IS ALLOWED AND BOTH APPEALS OF THE REVENUE ARE DISMISSED WHEREAS ASSESSEES CO IS DISMISSED AS WITHDRAWN. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMA R KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD: DATED 15/12/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED ON 15/12/2020