Dy. Commissioner of Income Tax Central Cir.-3, Surat V. Shri Kiran Rasiklal Sanghvi, Surat

ITSSA 28/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1848 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-06-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 02-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Tangible material; Documents seized; Set aside
• Section: 191; 192; 48; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER IT(SS)A No. 28/SRT/2021 (AY: 2015-16) (Hearing in Physical Court) D.C.I.T. Central Circle-3, Surat. Vs. Shri Kiran RasiklalSanghvi, H. No. 6/1947, Raj Tilak Apartment, DalfhiaMohallo, Madhirpura, Surat. PAN: AFOPS 0131 D APPELLANT RESPONDEDNT Department by Shri H.P. Meena, CIT-DR Assessee by Shri Manish J Shah, Advocate & Shri Rushin Patel, CA Date of hearing 17/06/2022 Date of pronouncement 22/07/2022 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the Revenue is directed against the order of ld. Commissioner of Income tax (Appeals)-4, Surat [‘ld. CIT(A)’ for short] dated 11/02/2021 for the Assessment Year (AY) 2015-16. The Revenue in its appeal has raised the following grounds of appeal:- “(i) On the facts and circumstance of the case, the Ld. CIT(A) has erred in deleting the addition of Rs.2,37,42,000/- made on account of unexplained income and deleting the addition of Rs.32,93,772/- made on account of interest income earned on unexplained income despite the fact that assessee's explanation regarding seized document found from his Personal Computer was not found satisfactory. IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 2 (ii) On the facts and circumstances of the case, the decision of the Ld. CIT(A) is found to be perverse since on the one hand the Ld. CIT(A) has admitted that provision of section 292C of the Act is applicable in the case of the assessee and on the other hand, the additions were deleted merely on the ground that there are discrepancies in the days mentioned in the seized data, which is apparently not correct. (iii) On the facts and circumstances of the case, the Ld.CIT(A) has erred in not appreciating the fact that the documents in question was seized from the PC of the assessee and the dates mentioned in the seized documents were written in two different formats i.e. DD/MM/YY and MM-DD-YY and hence the same was belonging to him and there was no inconsistency figures/dates mentioned therein For example, entry at Sr.No.1 was written in DD/MM/YY i.e. 28/08/2014 - 28 th August, 2014 (197 days) whereas Sr.No.2 was written in MM-DD-YY i.e. 09.01.2014 - 1 st September, 2014 (193 days). (iv) On the facts and circumstance of the case, the Ld.CIT(A) has erred in deleting the addition of Rs. 2,37,42,000/- made on account of unexplained income as explanation of the assessee in respect of seized document was not acceptable in the light of the provision of section 292C of the Act. (v) It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. (vi) The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal.” 2. Brief facts of the case are that the assessee is individual filed his return of income for the Assessment Year (A.Y.) 2015-16 on 05/12/2015 declaring income of Rs. 1,79,41,770/-. The case was selected for scrutiny. During the assessment, the Assessing IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 3 Officer noted that a survey action was carried out at house No. 6/1947, Raj Tilak Apartment, Daldhia Maholla, Mahidharpura, Surat on 29/11/2016, on the basis of information that old denominations currency notes of Rs. 500/- and Rs. 1000/- were exchanged on commission basis. During the course of survey proceedings, unaccounted income of Rs. 1.01 crore (Rs. 1.00 crore round figure) was recovered. On confrontation of such fact, the assessee stated the said cash was of Kiran Rasiklal Sanghavi- HUF, which was earned on retail trading of diamonds. The survey was converted into search on 30/11/2016. During the search action, certain incriminating material and documents were seized from the premises of Kiran Rasiklal Sanghavi-HUF, out of which, certain entry pertains to assessee. Consequent upon search, a notice under section 153C of the Income Tax Act, 1961 (in short, the Act) dated 07/09/2018 was served on the assessee for filing return of income for various assessment years. In response to notice under Section 153C, the assessee filed his return of income on 23/10/2018 for the A.Y. 2015-16 declaring income of Rs. 1.793 crore. During the assessment, the Assessing officer noted that from the desktop computer of assessee, some incriminating documents was found which contains three papers IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 4 excel sheets, which contains calculation of advance and interest thereon for the period of F.Y. 2013-14 and 2014-15 i.e. related to A.Y. 2014-15 and 2015-16. The summary of such excel sheets is recorded in para 5 of assessment order. On the basis of said summary, the Assessing Officer recorded the assessment year wise unexplained income and undisclosed interest income in the following manner: A.Y. Amount 2014-15 45,26,000 + interest Rs. 6,15,458 2015-16 2,37,42,000 + Interest Rs. 32,93,772 3. On the basis of aforesaid summary, the assessee was asked to explain vide show cause notice dated 13/11/2018 as to why such undisclosed income and interest income be not added at the hand of the assessee. The assessee filed his reply dated 22/11/2018 and stated that these documents are not related to him and that the allegations of unexplained cash credit and undisclosed interest income is baseless. The assessee also stated that rough calculation was done by one of his staff and he was totally unaware about such calculation. The Assessing Officer has not accepted the explanation furnished by assessee. The Assessing Officer held that the computer was in the possession of assessee and the assessee claimed that he was totally unaware IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 5 about the calculation sheet and tried to put the onus on his staff. The scrutiny of seized document reveals the unaccounted income which was recovered from the possession of assessee. The contention of assessee that document does not pertain to him is not tenable. The Assessing Officer after referring the Section 110 of Evidence Act, held that the burden of proving that he is not the owner is on the person to affirm that he is not the owner and referred the decision of Hon’ble Supreme Court in the case of Chuharmal Vs CIT 172 ITR 230 (SC), on the ratio that third party evidence has evidentiary value and can be used if corroborated by other circumstantial evidence. The assessing officer made addition of Rs. 2.374 crore as unexplained income and Rs. 32,93,772/- as interest income from undisclosed sources. 4. On appeal before the ld. CIT(A), the assessee challenged the validity of addition. The assessee filed detailed written submissions as recorded in para 5 of order of ld. CIT(A). The assessee in his written submissions also referred question No. 4 and 6 and answer thereto, recorded during the course of search action. In sum and substance, the assessee stated that during the course of search action, certain details were seized from the premises of Kiran Rasiklal Sanghavi-HUF, which are stated to be IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 6 related with assessee. On the basis of such information related to assessee, proceeding under Section 153Cof the Act were initiated against the assessee which resulted in making addition of Rs. 2.374 crore as unexplained income and Rs. 32,97,772/- on account of unaccounted interest income. The assessee further stated that in search proceedings, three excel sheets were found from the computer of assessee. As per the Assessing Officer, the excel sheets contained advances given and the interest earned. Although, no such specification mentioned on such excel sheets. The assessee also referred the details of entry in his written submissions, as recorded by Assessing Officer in para 5 of assessment order. The assessee further explained that when the assessee was asked to explain these noting, the assessee explained that these are rough noting made by one of his staff and he was unaware about such noting. The argument/explanation of assessee was not accepted by the Assessing Officer. The Assessing Officer assumed that the assessee has made unexplained advances of Rs. 2.374 crore and also assumed earning of interest income of Rs. 32,93,772/-. The entire addition is baseless and based merely on surmises without any clinching evidence. The assessee submitted that the IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 7 Assessing Officer stated that the said excel sheets belongs to assessee. The assessee denied the fact and clearly explained that the alleged sheets were prepared by his staff member and is not related to assessee. The excel sheets are rough sheets and can be referred as ‘dump document’ as it does not contain any vital information like name of assessee is not mentioned in any way, address of the assessee is not mentioned, there is no initial, it does not include as to whether his income, expenditure, deposit or loan or advance. These sheets nowhere contained the name of parties to whom such/ alleged advances are given nor did the Assessing Officer bring any evidence of third party accepting the fact that the assessee has given such advances or that the assessee earned interest income. There is no cash trail found which can prove that the assessee was engaged in business as assumed/presumed by the Assessing Officer. In absence of relevant details, the contents of such excel sheets cannot be assumed to be the details of advance by assessee. The assessee specifically stated that excel sheet prepared and deleted by the staff. The backup of computer was extracted by the search team. Such sheets, nowhere specifies that deleted data is related to assessee. During the assessment, the assessee explained that the IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 8 computer was freely assessable by staff member and it was not possible to have control of computer as used by the personal purpose of staff. The assessee also referred question No. 4 and 6 and answer thereto, wherein the assessee clearly explained during recording of his statement that these excel sheets were retrieved from the deleted data and that such excel sheets were seen by assessee for the first time. It was also explained that one boy was attending his office for learning the official work and those excel sheets might have been prepared by him for his learning and he may have deleted the same. The assessee also relied on various case laws. 5. The ld. CIT(A) after considering the contents of assessment order, written submissions furnished by assessee and on considering the various decisions relied by the assessee held the documents were found in the computer owned by the assessee, therefore, presumption under Section 292C of the Act is against the assessee. However, the seized documents should be analysed carefully to arrive on a right conclusion. The ld. CIT(A) held that the documents were confronted to the assessee on the same day, the assessee clearly stated before the authorised officer that he has seen this document for the first time and entry must have IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 9 been made by some staff. He again repeated similar fact before the Assessing Officer during the assessment. On analyzing seized document, the ld. CIT(A) noted that the papers have heading “period from 28/08/2014 to 13/03/2015” which is not reproduced by Assessing Officer in the assessment order. In these sheets, the first column is Sr. No., second column is date, third column is days, fourth column is amount and fifth column is interest. If the entries are analysed mentioned at Sr. No. 1 which is of ‘28/08/2014’ and showing 197 days and amount of Rs. 2,57,000 and interest is Rs. 50629/- are written. The period from 28/08/2014 to 13/03/2015 as mentioned on this paper is 197 days which is exactly matches, if further analyzed the entry like entry mentioned at Sr. No. 2, 3 and 4, in many entries, the correct period does not match with the days written on seized material (excel sheets). On the basis of such observation, the ld. CIT(A) held that the assesse is correct in showing that the period from 09/1/2014 to 31/3/2015 is 428 days and not 193 days as written on these papers at Sr. No.2. Out of 117 entries, such inconsistency is found in 52 entries. Further, these papers do not contain the name of any person to whom loans were given or from amount was received. The ld CIT(A) held that on the basis of IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 10 these documents, it cannot be ascertained that whether it is income of assessee or expenditure incurred or receipt of payment of the assessee. Further in absence of name of person on these papers, no conclusion can be drawn. 6. The ld. CIT(A) by referring the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs Mauli Kumar K. Shah 307 ITR 137 (Guj) held that mere entries are not sufficient to prove that the assessee indulged in such transaction. The ld. CIT(A) also relied on the decision of Hon'ble Delhi High Court in the case of CIT Vs. Vatika Land Base (P) Ltd. (2016) 383 ITR 320 (Del). On the basis of his observation and decision of various Superior Courts, the ld. CIT(A) held that these papers do not contain names of persons and there are several inconsistencies as recorded by him. Further it does not show whether these transactions related to receipts/payments or income/expenditure of assessee. Thus, the ld CIT(A) concluded that the addition of unexplained income and the interest is not justified. Aggrieved by the order of ld. CIT(A), the Revenue has filed the present appeal before this Tribunal. 7. We have heard the submissions of the learned Commissioner of Income-tax-departmental representative (ld. CIT-DR) for the IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 11 revenue and the learned authorised representative (ld. A.R.) of the assessee. The ld. CIT-DR for the revenue submits that during the course of search action, incriminating material in the form of calculation sheet was recovered from the computer in the possession of assessee. The incriminating material clearly indicates the income from the entry mentioned on excel sheets, recovered from computer data it is clearly discernible that the assessee was having undisclosed income and earned interest thereon. The assessee was confronted with such entries. The assessee before authorised officer claimed that such entries were prepared by his employee. The assessee was very well aware that such data was deleted and on retrieval of such data was recovered. The assessee disowned such entries which clearly shown undisclosed income of the assessee. The assessee simply denied the entries on the document. The ld. CIT-DR submits that on the basis of circumstantial evidence, the entries on the excel sheets clearly suggest unaccounted income of assessee. The ld. CIT-DR for revenue prayed for reversing the order of ld. CIT(A) and to restore the order of the Assessing Officer. 8. On the other hand, the ld. AR of the assessee submits that during the search action of Kiran Rasiklal Sanghavi-HUF, no IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 12 incriminating material pertaining or relating to assessee was found. Certain excel sheets was retrieved from the computer by the search team, during the search action. The statement of assessee was recorded in the form of question and answer. In response to question No. 4, the assessee clearly replied that he has seen such entries for the first time. The computer from which the entries were retrieved is operated by his staff member ‘Rinku’. It was also explained in reply to question No. 6, that such excel sheets are retrieved and such entry might have been recorded by his staff member and who later on might have deleted. Before the Assessing Officer, the assessee clearly stated that such entry do not pertain or belongs to assessee. A number of consistencies were explained without admitting such entries. Before the ld. CIT(A), the assessee again explained the fact that these document/excel sheets are ‘dump document’ and does not pertain to assessee. The document does not mention the name and address of assessee, is not initialed or signed by assessee; it does not specify whether, it is income, expenditure, deposit, loan or advances. There is no cash trail which can prove that the assessee is in such business of letting money for interest. The addition was purely based on imagination of Assessing Officer. IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 13 No other corroborative evidence was brought on record. The ld. AR for the assessee submits that the Assessing Officer made addition solely on the basis of assumption and presumption. The ld. CIT(A) appreciated the fact and on considering such fact, came to a certain conclusion that the seized material do not show, whether the transactions are related to receipt of payment or income or expenditure of the assessee. The ld. AR of the assessee submits that mere entries or noting in absence of corroborative evidence is not admissible as evidence against the assessee. To support his submission, the ld. AR of the assessee has relied on the following decisions:  ITO Vs Maulikumar K Shah (2008) 307 ITR 137 (Guj),  Dr.Keyur Parikh Vs. ACIT IT(SS)A No. 604/Ahd/2011,  Nishant Construction Pvt. Ltd. Vs DCIT ITA No. 2732/ Ahd/2016,  CIT Vs Vatika Landbase (P) Ltd. (2016) 383 ITR 320 (Del),  Nitaben Devrajbhai Patel Vs ACIT ITA No. 1781/Ahd/2016,  Rajesh Sajjanraj BafnaIT(SS)A No. 110/Ahd/2018,  Shri Neeraj Goel Vs ACIT ITA No. 5951/Del/2017. 9. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied upon by the Ld. CIT(A). Ld. CIT(A) of the assessee as well as referred by the Ld. CIT(A). CIT(A) in his order. As recorded above, the Assessing IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 14 officer has made the addition by taking a view that the computer was in the possession of assessee and the assessee claimed that he was totally unaware about the calculation sheet and tried to put the onus on his staff. The scrutiny of seized document proved it was unaccounted credit and unaccounted income earned by the assessee. It was recovered from the computer in possession of assessee. The Assessing Officer after referring the Section 110 of Evidence Act, held that burden of prove that he is not the owner, is on the person who affirm that he is not the owner. The ld. CIT(A) though deleted the both additions. However, on the ownership of the documents the ld CIT(A) held that the documents were found in the computer owned by the assessee, therefore, presumption under Section 292C of the Act is against the assessee. The Ld. CIT(A) CIT(A) held that seized documents should be analysed carefully to arrive on a right conclusion. It was held that the documents were confronted to the assessee on the day of search, the assessee clearly stated before the authorised officer that he has seen this document for the first time and entry must have been made by some staff. He again repeated similar fact before the Assessing Officer during the assessment. The Ld. CIT(A) Ld. CIT(A) on scrutiny of seized IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 15 document, held that the papers have heading “period from 28/08/2014 to 13/03/2015” which is not recorded by Assessing Officer in the assessment order. And that if the entries are analysed mentioned at Sr. No. 1 which is of 28/08/2014 and showing 197 days and amount of Rs. 2,57,000 and interest is Rs. 50629/- are written. The period from 28/08/2014 to 13/03/2015 as mentioned on this paper is 197 days which is exactly matches, but on if further analysis the entry like entry mentioned at Sr. No. 2, to 4, and in many entries, the correct period does not match with the days written on seized material (excel sheets). The Ld. CIT(A). CIT(A), on such observation, held that the assessee’s contention is correct in showing that the period from 09/1/2014 to 31/3/2015 is 428 days and not ‘193’ days as written on these papers at Sr. No.2. And that out of 117 entries, similar inconsistency is noted in 52 entries. These papers do not contain the name of any person to whom loans were given or from amount was received. It was held that on the basis of these documents, it cannot be ascertained that whether it is income of assessee or expenditure incurred or receipt of payment of the assessee. Further in absence of name of person on these papers, no conclusion can be drawn. IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 16 10. The Ld. CIT(A). CIT(A) after relying on various case laws held as these papers do not contain names of persons and there are several inconsistencies as recorded by him. Further it does not show whether these transactions related to receipts/payments or income/expenditure of assessee. Thus, the addition of unexplained income and the interest is not justified. 11. We find that is such excel sheet, out of total 117 entries, 52 entries is not consistent. Some of which were specified by the ld. CIT(A) particular at Sr. No. 2,3 and 4. For appreciation of fact, initial five entries are referred below: Sr. No. Date Days Amount Interest 1. 28/08/2014 197 257000 50629 2. 09/01/2014 193 259000 49987 3. 09/02/2014 192 268700 51590 4. 09/03/2014 191 284700 54378 5. 09/04/2014 190 273200 51908 - 117 12. We have independently examined the entries on seized material/excel sheets and find that the observation of ld. CIT(A) are correct. We further noted that the Assessing Officer has not brought any corroborative evidence to substantiate that the entries were in the form of advances and that the assessee earned such interest income. We, find that during the search IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 17 action, the statement of assessee was recorded. In the statement, the assessee clearly specified that the computer of which the entries were retrieved was operated by his staff member Rinku. The statement of other staff member was not recorded nor is any other independent or corroborative evidence brought on record. The assessing officer on his own concluded from the entries on the excel sheet that the assessee made advance of such amount and earned unaccounted income. The assessing officer has not recorded as to when such excel file was created in computer or when it was deleted. 13. The Hon'ble Gujarat High Court in CIT Vs Mauli Kumar K Shah (supra) has held that mere entries in the seized document are not sufficient to prove that the assessee has indulged in such transaction. Further the Hon'ble Delhi High Court in the case of CIT Vs Vatika Land base (P) Ltd. (supra) held that when during the search and seizure operation, revenue seized various material including documents stored in the computer of employee, the documents were undated, unsigned, the addition merely on the basis of unsigned and undated seized document is not sustainable. The relevant part of the decision of Hon'ble Delhi High Court is extracted below: IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 18 “40. Turning to the case on hand, the document recovered from the file in the computer of Mr. Awasthi, forms the basis of the addition made by the AO, which was further reduced by the CIT (A). This was in the form of a computer print out of three sheets which were unsigned and undated. The first sheet was titled 'Cash-in-flow detail for the revenue', the next was titled 'Revenue details' and the third was titled 'Vatika Triangle, Guargaon.' The notes to the documents are indicative of their being projections. Noting (i) states that “it is presumed that the building will be completed and fully let out in the month of November 2002." Another note states "Further, the sale of the building will took place over a period of nine months." Admittedly, as on the date of the search the construction was still in progress. Flats up to the fourth floor had been sold. The view taken by the ITAT that mere fact that the print out states that the flats on second and third floor have been sold, does not necessarily mean that they were sold at the rates indicated therein is definitely a plausible view to take. 41. Considering that the document was recovered from the computer of Mr. Sunil Awasthi, he ought to have been summoned to explain the rates of sale shown therein for the flats on different floors. In fact, the Assessee did make a request for his cross-examination. The other possibility was to examine the purchasers of the flats as they would have confirmed the price paid by them and how much of it was in cheque and what extent in cash. However, that too was not done. 42. In S.M. Aggarwal (supra), in similar circumstances certain slips of paper were recovered during search and their author was not examined. The Court observed: "It is well-settled that the only person competent to give evidence on the truthfulness of the contents the document is the writer thereof. IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 19 So, unless and until the contents of the document are proved against a person, the possession of the document or handwriting of that person on such document by itself cannot prove the contents of the document. These are the findings of fact recorded by both the authorities, i.e. the Commissioner of Income-tax (Appeals) and the Tribunal. 13. In Mahavir Woollen Mills case [2000] 245 ITR 297 (Delhi), during the course of search and seizure proceedings, certain slips were found, which, the Assessing Officer concluded, contained details of payment beyond those which were made by cheques and drafts and were duly reflected in the books of account. The assessee's stand before the Tribunal was that the documents were " dumb documents” which did not contain full details about the dates of payment and its contents were not corroborated by any material and could not be relied upon and made the basis of addition. The Tribunal considered this aspect and observed that on comparison of the seized documents and ledger accounts of the parties, the seized documents could not be regarded as "dumb documents" 43. The Revenue has not been able to counter the submission of the Assessee that there are anomalies in the figures mentioned in Sheet Nos. 3 and 4 of the said document. This can be understood in a tabulated form as under: Floor Rate as per Sheet No. 3 (Rs. Per sq. Ft) Rate as per Shet No.10(Rs. Per sq.ft) Ground Floor 5,538 4,154 First floor 4,000 3,360 Second floor (already sold) 3,250 Third floor (already sold) 3,250 Fourth floor 4,000 3,250 Fifth floor 4,000 3,350 Sixth floor 4,000 3,360 Seventh floor 4,000 3,360 IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 20 44. The above projection statement mentions rates for seven floors whereas the construction was still in progress and the seven floors had not been completed. There is another anomaly inasmuch as in para 8.28 of the order of the CIT (A), it is observed that the said document cannot form the basis of determining the actual rate of sales for the remaining floors, and yet, as rightly pointed out by the ITAT, those rates have been relied upon by the CIT (A) to determine the amount that should be added in respect of the sales of the flats on the second and third floors of VT. 45. As pointed out in S.M. Aggarwal {supra) the said document can at best be termed as a 'dumb' document which in the absence of independent corroboration could not possibly have been relied upon as a substantive piece of evidence to determine the actual rates at which the flats were sold. Further as pointed out in D.K. Gupta {supra) merely because there are notings of offers on slips of paper, it did not mean that those transactions actually took place. Likewise in Girish Chaudhary {supra), the Court termed a loose sheet containing some notings of figures as a 'dumb document' since there was no material to show as to on what basis the AO had reached a conclusion that the figure '48' occurring in one of them was to be read as Rs. 48 lakhs. 46. In the present case, there was again no material on the basis of which the AO could have applied a standard rate of Rs 4,800 per sq ft for all the floors of VT. It was also not open to the AO to draw an inference on the basis of the projection in the document, particularly when the Assessee offered a plausible explanation for the document. The burden shifted to the Revenue to show, on the basis of some reliable and tangible material, how the rate at which the flat on the second and third floors of VT was higher than that indicated in the sales register or the sale deeds themselves.” IT(SS)A No. 28/SRT/2021 DCIT Vs Sh. Kiran Rasiklal Sanghvi 21 14. In view of the aforesaid factual and legal position, we affirm the order of ld. CIT(A) with these additional observation. No contrary fact or law is brought to our notice to take other view. In the result, the grounds of appeal raised by the revenue are dismissed. 15. In the result, appeal of the revenue is dismissed. Order pronounced on 22/07/2022 in open court and result was placed on notice board. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 22/07/2022 *Ranjan Copy to: 1. Assessee – 2. Revenue - 3. CIT(A) 4. CIT 5. DR 6. Guard File By Order Sr. Private Secretary, ITAT Surat