Asst. Commissioner of Income Tax, CC-4, Surat V. Shri Vinod Kumar Goswami, Surat

ITSSA 5/SRT/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 7838 (ITAT-SURAT)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-08-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 01-01-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASSESSEE. THIS IS AN IMAGE OF HAND WRITTEN LOOSE PAPER; ASSESSEE. LAND AT BLOCK NO.
• Assessee Lawyers: Not Found
• Keywords: Unexplained investment; Search and seizure; Loose papers; Document seized; Opportunity of cross examination; Corroborative evidences; Third party statement; Documents seized
• Section: 132; 143(3); 153A; 69A; 43; 48; 13; 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर (खोज और जÞती) सं./IT(SS)A Nos.5 & 6/SRT/2023 (AYs: 2017-18 & 2020-21) The ACIT, Central Circle-4, Surat Vs. Vinod Kumar Goswami, 405, Surya Palance, City Light, Surat – 395002. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ACJPG6973H (Appellant) (Respondent) ĤǓत आपƣी/Cross Objection Nos.3 & 4/SRT/2023 (Arising in IT(SS)A Nos. 5 & 6/SRT/2023) (AYs: 2017-18 & 2020-21) Vinod Kumar Goswami, 405, Surya Palance, City Light, Surat – 395002. Vs. The ACIT, Central Circle-4, Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ACJPG6973H (Appellant) (Respondent) Appellant by Shri Ashok B. Koli, CIT(DR) Respondent by Shri Ramesh Malpani, CA Date of Hearing 04/08/2023 Date of Pronouncement 24/08/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned two appeals filed by the Revenue and two Cross Objections filed by Assessee, pertaining to assessment years (AYs) 2017-18 and 2020-21, all are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals), which in turn arise out of separate assessment orders, passed by the Assessing Officer, under section 143(3) r.w.s. 153A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). Page | 2 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 2. Since, the issues involved in all these appeals are common and identical; therefore, these appeals have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. 3. Now, we shall take IT(SS)A No. 5/SRT/2023, for assessment year (AY).2017-18 and CO. No. 3/SRT/2023 for assessment year (AY.) 2017-18. 4. Although, this appeal filed by the Revenue, for Assessment Year 2017-18, contains multiple ground of appeals, however, at the time of hearing we have carefully perused all the grounds raised by the Revenue and we have summarized and concise the grounds of appeal of Revenue in IT(SS)A No. 5/SRT/2023, which reads as follows: “IT(SS)A No.5/SRT/2023 (Revenue’s Appeal, for AY.2017-18): (i) Ground Nos.1 and 2 relates to deleting the addition of Rs.1,80,00,000/- made under section 69A of the Act, despite the facts that seized papers duly signed, name of person as V.G has also mentioned on the documents and the assessee has failed to explain contents noted on the seized papers. (ii) Ground Nos.3 to 6 relates to deleting the addition of Rs.8,03,26,500/- made on account of unaccounted investment. The ld. CIT(A) erred in observing that the sauda chitthi, which is not signed by the assessee and which is not between the actual owners of the land cannot be the basis for determining the on- money payment of purchase of land, at block no.786 ignoring the fact that as per the seized documents including sauda chitthi, it is evident that Shri Rajendra B. Chandak and Jayantilal B. Patel had originally purchased the land of Block No.786 admeasuring 3750 sq. yard @ 61,551 per sq. yard (total consideration Rs.23,08,16,250) and thereafter the assessee and others have claimed same land to be purchased @ 8,000/- per sq. yard (total consideration Rs.3,00,00,000/-) from Shri Rajendra B. Chandak and Jayantibhai B. Patel, which is far below. The ld. CIT(A) also ignored the principles of ‘Human Probability Test’. 5. The grounds of appeal raised by the assessee in CO No. 3/SRT/2023, are as follows: “1. That on the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in confirming the addition of Rs.5,35,060/- on account of presumptive unexplained investment for purchase of land at Bhojasar, Rajasthan, just on the basis of unsigned and unexecuted Page | 3 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami ikrarnama (proposal), without any finding at all of any such actual investment. 2. That the learned CIT(A) has erred in law in holding that the higher tax rate of 60% plus surcharge as per substituted section 115BBE by the Taxation Laws (Second Amendment) Act, 2016 is applicable w.e.f. the year under appeal i.e. AY.2017-18, whereas the same is not applicable to year under appeal but is applicable from the F.Y. beginning on and from 01.04.2017 i.e. AY.2018-19 and onwards and thereby erred in upholding the charging of tax u/s 115BBE of the Act @ 60% plus surcharge as against the correct rate of 30% applicable for the year under appeal. 6. Now, we shall take above concise and summarized grounds of Revenue and assessee one by one. 7. The Concise and summarized grounds nos. 1 and 2 raised by the Revenue, is reproduced below for ready reference: “(i) Ground Nos.1 and 2 relates to deleting the addition of Rs.1,80,00,000/- made under section 69A of the Act, despite the facts that seized papers duly signed, name of person as V.G has also mentioned on the documents and the assessee has failed to explain contents noted on the seized papers.” 8. Succinct facts qua the issue are that during the assessment proceedings, the assessing officer observed that in the residential premises of the assessee at C-405, Surya Palace, City Light Road, Surat, during the course of Search certain loose papers were found which were inventorized from Serial No.1 to 63 marked as Annexure A-l. The Page No.1 to 5 of the said Annexure contained certain amounts written in coded format, which according to the assessing officer were ignoring 3 zeros. The assessing officer has reproduced the coded amounts and actual amounts date-wise on page no.3 and 4 of the assessment order, which gives the total amount as Rs.82,000/- being the total of coded figure and which comes to Rs.8,20,00,000/- after adding 3 zeros to the said figures. Out of the said amount of Rs.8,20,00,000/-, the figures pertaining to the impugned assessment year comes to Rs.1,80,00,000/-. During the assessment proceedings, the assessing officer asked the assessee to show these transactions in Page | 4 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami the books of accounts, else give the complete details, as to from whom these amounts are taken or to whom these amounts are given along with documentary evidences. During the assessment proceedings, the assessee submitted before the assessing officer that the papers found which is relied by the assessing officer were the photocopies of some loose sheets which were initially found in the car of the assessee which were subsequently brought at the residence of the assessee and seized. The assessee had made a statement u/s 132(4) of the Act during the course of Search that the papers in question do not belong to him and he was not aware as to how they were found in his car. The assessee, further clarified that he is into the business, as real estate broker and as part of his profession needs to take his clients and other brokers in his car to show the various sites, properties, projects. Hence, it was submitted that the papers of someone else could have been left out, at the car. The assessee further submitted that the papers do not contain any name or the details about the transactions and even the handwriting on the papers was not his and even the signature on the said papers was also not his or any of his associates. Hence, it was submitted that the said loose papers should be treated as dumb documents. However, the assessing officer relied upon the provisions of section 132(4A) of the Act and held that as the papers in question were seized from the residence of the assessee, the responsibility and the onus was on the assessee to prove its contents. As the assessee has not proved the contents, the assessing officer presumed that it is the unaccounted income of the assessee, therefore, the assessing officer made addition of Rs.1,80,00,000/- u/s 69A of the Act. 9. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A), who has deleted the addition made by the Assessing Officer. The ld CIT(A) observed that Page | 5 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami the jottings in the loose sheets, cannot be conclusive proof of money transactions of the assessee. None of these jottings as found in the loose papers had been corroborated by the assessing officer with any other findings during the assessment proceedings. Hence, the presumption u/s 132 (4A)/292C of the Act cannot be considered against the assessee when there is no other corroborative evidence regarding the entries found in the loose papers. No other supporting evidence regarding the transactions in question was found during the course of Search. Therefore, the papers found in search and seizure do not conclusively prove that the assessee had unexplained money for taxing u/s 69A of the Act, hence, based on this factual position, the ld CIT(A) deleted the addition of Rs. 1,80,00,000/-. 10. Aggrieved by the order of Ld. CIT(A), the Revenue is in appeal before us and assessee has also filed cross objection before us. 11. Learned Departmental Representative (ld. DR) for the Revenue, argued that during the course of search proceedings of residential premise of assessee, at C- 405, Surya Palace, City light Road, Surat on 06.02.2020, various loose papers were found and inventoried from Sr. No. 1 to 63 in Annexures A-l. The Page No. 1 to 5 are the copies of the pages of one of the diaries. On analysis of the diary seized, the assessing officer made a guess work that the numbers/figures in the diary are written in the coded form with the suppression of three zeroes as "2500" in the coded format will be expanded to "25,00,000". The ld DR, therefore, contended that addition was made by the assessing officer, after making analysis of the seized material, hence the same may be upheld. Page | 6 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 12. On the other hand, Shri Ramesh Malpani, Learned Counsel for the assessee, argued that assessing officer made presumptive addition of Rs. 1,80,00,000/-, u/s 69A of the Act. There has been no finding of any such unexplained money during the course of search and seizure action in the case of assessee or in any other proceeding. The addition has been made by making arbitrary presumptions in respect of certain loose papers found from the back side seat of car of assessee during search and seizure action on 06/02/2020 and seized as page nos. 1 to 5 of Annexure - A -1 from the residence of the assessee. These loose papers found and seized are not original papers but are Xerox copies of some loose papers/ diary not belonging to assessee. Original papers/ diary have not been found/ seized from assessee but these Xerox copies of some loose papers/ diary were found from back side seat of car of assessee and seized from residence of assessee. The assessee is in the business of real estate brokerage. In the course of this business, assessee carries many clients, brokers, sub-brokers and persons in his car to show the sites, properties and projects in the day to day life. These loose papers do not belong to assessee. Name of the assessee is not mentioned in these papers. Observation of the A. O. that this diary is in the name of assessee is factually wrong. Nowhere the name of assessee or any of his family members is there on these loose papers/diary. In fact, the assessee was totally unaware about these papers. In these papers there is no details of any property, transaction or any other meaningful narration from which the nature or type of the jottings in these papers can be inferred. Therefore, ld Counsel stated that these are the dumb documents and it is settled law that such loose papers (dumb documents) have no evidentiary value, hence ld CIT(A) has rightly deleted the addition. Page | 7 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 13. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. We note that assessing officer made the addition based on loose sheet. The contents of these pages are tabulated as below: On analysis of the diary seized, the assessing officer made a guess work that the numbers/figures in the diary are written in the coded form with the suppression of three zeroes as "2500" in the coded format will be expanded to “25,00,000”. We note that in the loose sheet found by the search team, it was not mentioned that assessee has written the amount in the coded format. The statement of the assessee, Page | 8 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami taken by the Income Tax Authorities, does not say that amount was written in the coded format, the statement of the assessee also does not say that three zeroes were omitted by the assessee. We note that this is the guess work of the assessing officer that figures in the diary were written in the coded form with the suppression of three zeroes. The assessing officer could assume two zeroes, or five zeroes. Hence, assumption of the assessing officer that figures in the loose papers are written in the coded form with the suppression of three zeroes, is an arbitrary approach and said arbitrary approach does not have any base by way of documentary evidence, therefore the said approach should not be relied to fasten the tax liability on the assessee. 14. We note that there is no mention of details of any property, transaction or any other meaningful narration from which the nature or type of the jottings in these loose papers can be inferred. It is settled law that such loose papers (dumb documents) have no evidentiary value and no addition can be made on the basis of same. For this the reliance is placed on following case laws: “(i) COMMON CAUSE vs. UNION OF INDIA - (2017) 77taxmann.com 245 (SC) (ii) NISHANT CONSTRUCTION PVT. LTD. vs. ACIT ITA NO. 1502/AHD/2015” In the case of COMMON CAUSE (supra), Hon'ble Apex Court has laid down the following ratio: "16. With respect to the kind of materials which have been placed on record, this Court in V.C. Shukla's case (supra) has dealt with the matter though at the stage of discharge when investigation had been completed but same is relevant for the purpose of decision of this case also. This Court has considered the entries in Jain Hawala diaries, note books and file containing loose sheets of papers not in the form of "Books of Account'' and has held that such entries in loose papers/sheets are irrelevant and, not admissible under Section 34 of the Evidence Act, and that only where the entries are in the books of account regularly kept, depending on the nature of occupation, that those are admissible............................................................” Page | 9 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 15. We note that Coordinate Bench of ITAT, Ahmedabad, in the case of NISHANT CONSTRUCTION PVT. LTD, vide ITA NO. 1502/AHD/2015, on the identical facts, has held as follows: “28. It is apparent from the aforesaid discussion that the loose sheets of papers are wholly irrelevant as evidence being not admissible u/s 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. 29. Moreover, the Assessing Office did not make any inquiry from buyers of flat in respect of actual prices paid by them. He also did not make any other inquiry in order to corroborate his conclusion. There is no incriminating evidence to show that the assessee has sold the flats at a higher rate. 30. In our understanding of the facts, the impounded loose sheet can at the most be termed "dumb document" which did not contain full details about the dates, and its contents were not corroborated by any material and could not relied upon and made the basis of addition.” 16. The above case law of Hon'ble ITAT, Ahmedabad has been upheld by Hon'ble Gujarat High Court in the case of PCIT vs. NISHANT CONSTRUCTION PVT. LTD. - [2019] 101 taxmann.com 179 (GUJ) and SLP filed by the Revenue has been dismissed by Hon'ble Apex Court reported at [2019] 101 taxmann.com 180 (SC), by holding that there is no good ground for interference. Thus, it is settled law that the loose papers, diaries etc. found during search and seizure actions have no evidentiary value and no addition can be made on the basis of same, if there are no other corroborative evidences. 17. The ld CIT(A) observed that papers found by search team were the papers of the photocopies of a diary. No evidence has been brought on record that the diary was belonging to the assessee, as there is no name of the assessee on the diary or any other person on the said papers. What is mentioned in the papers is the amount in figures and words and there is a signature of the same person on all the transactions with the date. But there is no mention as to whether this amount is taken by the assessee or given by the assessee. Even nothing Page | 10 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami was brought on record as to whose handwriting it is and who had signed on the said transactions. The assessee right from the time of Search has been saying that neither the papers are in his handwriting nor the signature on the papers is that of his. Further, the said papers which are the photocopies were found from the car of the assessee and not from the residence. The assessee has also clarified that he takes many clients and brokers in his car to show the properties and sites and some client / broker could have left his papers in his car cannot be ruled out after considering the profession of the assessee. The ld CIT(A) relied on the decision of the ITAT Amritsar Bench in the case of Harmohinder Kaur Vs DCIT (2021) 124 Taxmann.com 68 wherein it was held that without corroborative evidence to prove the authenticity of the diary seized during the course of Search, the assessing officer could not make addition to assessee's income on the basis of the notings in the diary of third party by making presumptions as per Section 292C/132(4A) of the Act. In the assessee's case being the photocopy of the loose sheets found during the course of Search, it is clear that the jottings in the diary cannot be conclusive proof of money transactions of the assessee. None of these jottings as found in the loose papers had been corroborated by the assessing officer with any other findings during the assessment proceedings. Hence, the presumption u/s 132 (4A)/292C of the Act cannot be considered against the assessee when there is no other corroborative evidence regarding the entries found in the loose papers. No other supporting evidence regarding the transactions in question was found during the course of Search. Therefore, the papers found do not conclusively prove that the assessee had unexplained money. Moreover, this ground of Revenue is covered by the order of this Bench, in assessee`s own case in IT(ss)A Nos.03/04/SRT/2023 for assessment year 2015-16 and Page | 11 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 2016-17, wherein based on the same facts the Tribunal has dismissed the ground of Revenue. We have gone through the above findings of the ld CIT(A) and noted that conclusion reached by ld CIT(A) does not contain any infirmity. That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed. 18. In the result, Ground Nos.1 and 2, raised by the Revenue in IT(SS)A No.5/SRT/2023, are dismissed. 19. Summarized and concise grounds Nos. 3 to 6, raised by the Revenue is reproduced below for ready reference: “(ii) Ground Nos.3 to 6 relate to deleting the addition of Rs.8,03,26,500/- made on account of unaccounted investment. The ld. CIT(A) erred in observing that the sauda chitthi, which is not signed by the assessee and which is not between the actual owners of the land cannot be the basis for determining the on- money payment of purchase of land, at block no.786 ignoring the fact that as per the seized documents including sauda chitthi, it is evident that Shri Rajendra B. Chandak and Jayantilal B. Patel had originally purchased the land of Block No.786 admeasuring 3750 sq. yard @ 61,551 per sq. yard (total consideration Rs.23,08,16,250) and thereafter the assessee and others have claimed same land to be purchased @ 8,000/- per sq. yard (total consideration Rs.3,00,00,000/-) from Shri Rajendra B. Chandak and Jayantibhai B. Patel, which is far below. The ld. CIT(A) also ignored the principles of ‘Human Probability Test’. 20. The brief facts qua the above summarized ground is that during the assessment proceedings, the assessing officer observed that a search action was conducted at the residence of Mr. Sunny J Patel and Mr. Jayantibhai B Patel at 240 Lai Quila, Punagam, Surat, and certain digital evidences in the form of scanned images were found wherein details of purchase of lands bearing Block No.786, 787 and 789 at Village Punagam was found from the whatsapp chat of Mr. Sunny J Patel and Mr. Jayantibhai B Patel. The assessing officer has reproduced the said digital image on page No. 10 of the assessment Page | 12 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami order. The said image is a satakhat between Mr. R D Palitana as a seller and Mr. Rajendra B Chandak and Mr. Jayantilal B Patel as the purchasers. The satakhat is signed by all the 3 parties with witness Mr. Milan B Vasani and Mr. Ramesh Pithwadi. The satakhat is for 3 blocks of land (Block No.786, 787 and 789) admeasuring 17,785 sq yds, agreed to be sold at the rate of Rs.61,551/- per sq. yds for total consideration of Rs.109,46,84,535/-. The down payment was 27% to be completed within 90 days and balance 73% in 3 equal installments from 09.11.2017 to 09.09.2019. There were further evidences, as per the image reproduced on page No. 12, of the assessment order wherein certain amounts were paid by Mr. Rajendra B Chandak and Mr. Sunny J Patel. The assessing officer observed that the assessee along with Mr. Rakesh Khaitan and Mr. Vishal N Jalan purchased Block No.786 on 22.02.2021 for a total consideration of Rs.3,00,00,000/- and as per the satakhat found value of the land was Rs.23,08,16,250/- and the assessee and other 2 co-owners bought the land for Rs.3,00,00,000/-, hence, it was held that Rs.20,08,16,250/- was the on money paid on the transaction. Accordingly, the assessing officer issued a show cause notice to the assessee to tax 40% of Rs.20,08,16,250/- being assessee's share in the land which comes to Rs.8,03,26,500/-. 21. In response, during the assessment proceedings, it was submitted by the assessee that the land at Block No.786, Punagam was purchased by the assessee along with other 2 co-owners from Shri Purshottambhai B Radadia and his family members and not from Mr. Rajendra Chandak and Mr. Jayantibhai B Patel. In support of assessee's contention, Form No.6 of mutation entry was produced relating to Block No.786 which shows that Mr. Rajendra Chandak, Mr. Jayantibhai Patel or Mr. R D Palitana were never the owners of this land. The land in question was owned by Mr. Purshottambhai Radadia Page | 13 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami family from 18.02.2016 and prior to them the said land was owned by Mr. Dineshchandra Ghelabhai, Mrs. Revaben Dineshbhai and Mr. Tusharbhai Dmeshbhai. However, the assessing officer rejected the contention of the assessee and made the addition of Rs.8,03,26,500/-, on the basis of the satakhat found in the digital image, vide para No.7.1 of assessment order. 22. On appeal, ld CIT(A) deleted the addition. The ld CIT(A) observed that by taking the rate per sq. yard from the digital image of the sauda chithi, which is not signed by the assessee and which is not between the actual owners of the land cannot be the basis for determining the ‘on money’ payment on purchase of land at Block No.786. The ld CIT(A) has discussed the fact of the assessee and noted that the satakhat in question was dated 09,09.2016 and assessee purchased the land from the original on 22.02.2021 and there has been no nexus between the said satakhat and the purchase deed executed by the assessee along with 2 other co-owners. There is no other corroborative evidence found during the course of Search or brought on record by the assessing officer to prove that the land purchased by the assessee was part of the satakhat dated 09.09.2016. Therefore, the addition of on money made by the assessing officer on presumption that the payments were made as per satakhat dated 09.09.2016 cannot be sustained, and hence ld CIT(A) deleted the addition of Rs.8,03,26,500/-. Aggrieved by the order of Ld. CIT(A), the Revenue is in appeal before us and assessee has also filed cross objection before us. 23. Learned DR for the Revenue, argued that during the assessment proceedings, the assessee was asked to explain whether all the above transactions are recorded in his books of accounts or not and to furnish Page | 14 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami details regarding these transactions. Further, if the transactions do not belong to him, furnish name, complete address, PAN of the persons who are associated with these transactions with relevant documentary evidences. In response, the assessee could not furnish any satisfactory explanation. The assessing officer has noted that the assessee has made huge investment in land in Surat and is partner in many firms related to Kuberji group, along with Sunny Jayantibhai Patel, Rajendra Babulal Khetan, Vimal Jain, Nitesh R Khetan and others. The ld DR further stated that in real estate market, in Surat, the practice of ‘on-money’ transaction for sale /purchase of land/shop/flat etc. are through diary and the amounts/figure are jotted in the coded form by hiding 03 or 05 zeros in the last. In this case, the loose papers were found and seized from possession of the assessee and the same belongs to him. It is to be noted that on page no. 2 of Annexure A-1, it is mentioned - "Entry of Diary No. 4". Thus, considering the assessee's occupation of real estate brokerage and prevalent ‘on-money’ transaction in Surat for sale/purchase of land/shop/flat etc, through diary system, there is possibility that the noted amount mentioned in page no. 1 to 5 of Annexure A1 are entries related to sale/purchase of land/shop/flat and belongs to the assessee. Thus, based on these facts, the addition made by the assessing officer may be sustained. 24. On the other hand, Shri Ramesh Malpani, vehemently argued that huge presumptive addition of Rs.8,03,26,500/- was made in the name of unaccounted investment, by the assessing officer, on the basis of totally irrelevant digital images stated to be found from digital devices of third parties without even providing copies of the same and without providing copies of statement/ explanation of those third parties in respect of those digital images found from them. From Para 7.1 (page nos. 5 to '14') of assessment order, it is apparently and Page | 15 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami abundantly clear that impugned digital images found from third parties are totally irrelevant for assessee and have nothing to with assessee. The ld Counsel further argued that as per settled law, this impugned addition is beyond the scope of Section 153A of the Act, as the same is not based on any incriminating material found and seized during the course of search and seizure action in the case of assessee. The ld Counsel further argued that none of the images mentioned by assessing officer is relevant in the case of assessee. There is not even a whisper about assessee in these images. These images were found/ seized in the case of third parties and pertain to them only and assessee has no concern/ relevance at all with the same. Therefore, ld Counsel contended that ld CIT(A) has passed a detailed and speaking order, hence the same may be upheld. 25. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that digital image stated to be found as 'WhatsApp chat' from mobile phone of Shri Sunny J. Patel and pasted on page no. '10' of the assessment order is apparently irrelevant for assessee. This is an image of hand written loose paper written in Gujarati language on 09/09/2016. In this loose paper, some Shri R. D. Palitana agrees to sell the lands at blocks no. 786, 787 & 789 of Village: Puna, to some Shri Rajendrabhai Chandak & Shri Jayantibhai Bhulabhai, as per terms mentioned in the same and the same was signed by these parties. Neither the assessee is party to it, nor has it been signed by the assessee. Nowhere the name of assessee is mentioned on this paper. Moreover, neither so called Shri R. D. Palitana was owner of these lands nor so called Shri Rajendrabhai Page | 16 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami Chandak & Shri Jayantibhai Bhulabhai, have ever purchased and became owners of these lands. As per the Any ROR website of Govt, of Gujarat (as referred by assessing officer) owners of these lands are Shri Parshottambhai Bachubhai Radadia and his family members since 2015-2016. As per assessing officer, this image is in respect of some transactions between Shri Dharmesh Bhai Havalo, Jayantibhai Havalo and Rajendra Chandak. There is no mention of any relevance of any such evidence with the assessee. 26. We note that write ups/jottings in these images are of the year 2016. These, write ups are by and between the persons mentioned therein. These are totally irrelevant for assessee. Land at block no. 786, Puna Village was purchased by the assessee and two co- owners on 22/02/2021, as per purchase deed submitted by assessee. Mutation of the same in Land Revenue Records in the names of assessee and co- owners was done on 10/06/2021 as per village form no. '6'. Thus, the land at block no. 786 was purchased after one year from the date of search and seizure action in the case of assessee (06/02/2020) and after around four and half years after the write ups in the digital images of third parties. Reading and applying such write ups of irrelevant third parties of the year 2016 into the genuine purchase transaction of assessee in the year 2021 (post-search) and thereby making such huge presumptive addition in the hands of assessee without even an iota of finding in the case of assessee is apparently and grossly unjustified. We also note that digital images/ evidence on the basis of which this addition has been made were found/ seized from third parties. It is up to the person(s) from whose possession these images etc. were found, to explain about the same. Statements of these third parties about these images have not been provided to assessee. There is no mention in the assessment order about their statements in respect of these images. Page | 17 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami This means that there is nothing about assessee in their statements in respect of these images etc. found from them. In such a case, as per settled law, no addition can be made in the hands of assessee on the basis of these images/evidences found from third parties having no relevance at all with assessee. For this ld Counsel relied on following case laws: “(i) CIT vs. VALLAMJI RAVAJIBHAI PATEL-TAX APPEAL NO. 1813 OF 2006(GUJ). (ii) PRARTHANA CONSTRUCTION PVT. LTD. vs. DCIT - [2001] 70 TTJ 122 (Ahd).” 27. We note that ld CIT(A) observed that a satakhat found in the mobile phone of Mr. Sunny J Patel and Mr. Jayantibhai Patel dated 09.09.2016, which was between Mr. R D Palitana, as a seller, and Mr. Rajendra B Chandak and Mr. Jayantibhai B Patel, as the buyers for Block No.786,, 787 and 789 of Pimagam, Surat, was made the basis for making the addition in the hands of the assessee. Therefore, ld CIT(A) noted that the assessee is not the party to the said satakhat dated 09.09.2016. Further, as seen from the information submitted by the assessee, that Mr. R D Palitana was never the owner of the land in question in last 20 years. The land in Block No.786, as seen from the revenue records furnished, was initially owned by Mr. Dineshchandra Ghelabhai, Mrs. Revaben Dineshbhai and Mr. Tusharbhai Dineshbhai from FY 1999-2000 and from them it was purchased by Mr. Purshottambhai B Radadia and family. Similarly, the other 2 Blocks No. 787 and 789 also were owned by some other persons from whom Mr. Purshottam B Radadia purchased in FY 2015-16. Thus, none of the 3 blocks were ever owned by Mr. R D Palitana, as seen from the revenue records. Further, Mr. Rajendra Chandak and Mr. Jayantibhai Patel who are the purchasers as per the satakhat, were also never the Page | 18 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami owners of the said land. Therefore, how far the contents of the satakhat can be believed is the question mark, as the facts relating to the ownership of the land in last 20 years as per the revenue records are not relating to either Mr. R D Palitana or Mr. Rajendra Chandak and Mr. Jayantibhai Patel. Further, the assessing officer has not been able to bring on record any statement from Mr. Rajendra Chandak or Mr. Jayantibhai Patel or for that matter Mr. R D Palitana that the assessee or his co-owners in Block No.786 had purchased or agreed to purchase the land in question from them and how they were part of the satakhat when they were never the owners of either of the 3 Blocks. 28. Therefore, ld CIT(A) observed that other than the satakhat, which is on a plain loose paper and which is not notarized cannot be made the basis for making the addition unless there are any other corroborative evidences in support of making the addition, as done by the assessing officer. Moreover, the satakhat in question relied by the assessing officer is dated 09.09.2016, which is for 3 Blocks but whereas the assessee has purchased only 1 block (786) that too on 22.02.2021, almost after 4 and a half years after the date of the satakhat, relied by the assessing officer. In fact, the transaction of purchase of Block No. 786 has been done by the assessee, along with 2 other co-owners after the date of Search in FY 2020-21. In such a situation, whether the contents of the satakhat which was signed between some third parties, in, 2016 can be applied without there being any nexus by the assessee or his co-owners with the parties mentioned in the satakhat. In absence of any such nexus to prove that the parties to the satakhat helped the assessee to buy the land or the said parties sold the land to the assessee which was in their possession through that satakhat, the addition cannot be made in the hands of the assessee merely on the basis of a presumption that the purchase of land made by Page | 19 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami the assessee was the continuation of satakhat found which was again in the mobile phone of some third party and not the assessee. Therefore, ld CIT(A) held that taking the rate per sq. yard from the digital image of the sauda chithi which is not signed by the assessee and which is not between the actual owners of the land cannot be the basis for determining the on money payment on purchase of land at Block No.786. There is no other corroborative evidence found during the course of Search or brought on record by the assessing officer to prove that the land purchased by the assessee was part of the satakhat dated 09.09.2016. Therefore, ld CIT(A) deleted the addition of Rs.8,03,26,500/-. We have gone through the above findings of ld CIT(A) and noted that the conclusions arrived at by the CIT(A) are correct and admit no interference by us. We, approve and confirm the order of the CIT(A) and dismiss the grounds raised by the Revenue. 29. In the result, ground Nos.3 to 6 raised by the Revenue are dismissed. 30. Coming to assessee’s Cross Objection No. 3/SRT/2023, for A.Y. 2017-18, wherein the grounds raised by the assessee are as follows: “1. That on the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in confirming the addition of Rs.5,35,060/- on account of presumptive unexplained investment for purchase of land at Bhojasar, Rajasthan, just on the basis of unsigned and unexecuted ikrarnama (proposal), without any finding at all of any such actual investment. 2. That the learned CIT(A) has erred in law in holding that the higher tax rate of 60% plus surcharge as per substituted section 115BBE by the Taxation Laws (Second Amendment) Act, 2016 is applicable w.e.f. the year under appeal i.e. AY.2017-18, whereas the same is not applicable to year under appeal but is applicable from the F.Y. beginning on and from 01.04.2017 i.e. AY.2018-19 and onwards and thereby erred in upholding the charging of tax u/s 115BBE of the Act @ 60% plus surcharge as against the correct rate of 30% applicable for the year under appeal. Page | 20 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 31. About ground No.1 of cross objection, the ld Counsel argued that learned CIT(A) has erred in confirming the addition of Rs.5,35,060/-. The ld Counsel stated that said addition was made on the basis of unsigned and unexecuted ikrarnama (proposal).There is no any finding of the assessing officer in respect of actual investment. On the other hand, ld DR for the Revenue relied on the stand taken by the assessing officer. We have heard both the parties and gone through the findings of ld CIT(A). We note that original copy of Ikrarnama was found in the premises of the assessee and the same land was purchased by the assessee subsequently goes to proves that the Ikrarnama was the starting point of sale deed executed, therefore we dismiss the ground No.1 of cross objection. 32. About ground No.2 of cross objection, the ld Counsel submitted that learned CIT(A) has erred in law in holding that the higher tax rate of 60% plus surcharge as per substituted section 115BBE by the Taxation Laws (Second Amendment) Act, 2016 is applicable w.e.f. the year under appeal i.e. AY.2017-18. The ld Counsel submitted that section 115BBE of the Act is not applicable for assessment year 2017- 18 and relied on several judgments. For this reliance was placed by ld Counsel on the judgment of Jurisdictional High Court of Gujarat in the case of Panchmahal District Co-operative Bank Ltd, [2023] 148 taxmann.com 93 (Guj). The ld Counsel explained that section 115BBE of the Act, is applicable from the Financial Year beginning on and from 01.04.2017 i.e. AY.2018-19 and onwards and thereby assessing officer erred in upholding the charging of tax u/s 115BBE of the Act @ 60% plus surcharge as against the correct rate of 30% applicable for the year under appeal. On the other hand, ld DR for the Revenue, relied on the findings of lower authorities. We have heard both the parties. We note that section 115BBE of the Act was substituted by the Page | 21 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami Taxation Laws (Second Amendment) Act, 2016, with effect from 01.04.2017. Therefore, it starts from financial year 01.04.2017 and ends on 31.03.2018, hence it is applicable from assessment year 2018- 19 onwards. In the assessee`s case the assessment year involved is the assessment year 2017-18, hence provisions of section 115BBE of the Act is not applicable to the assessee under consideration. For this, reliance can be placed on the decision of this Bench in the case of Samir Shantilal Mehta, in ITA No.42/SRT/2022, for Assessment Year 2017-18, wherein it was held that provisions of section 115BBE of the Act are to be effective from AY 2018-19. Therefore, ground No.2 of assessee`s cross objection is allowed. 33. In the result, ground No.2 of assessee`s cross objection is allowed. 34. Now, we shall take Revenue`s appeal in IT(SS)A No. 6/SRT/2023, for assessment year 2020-21. The summarized and concise grounds of appeal, are as follows: “(i) Ground No.1 and 2 raised by the Revenue relates to deleting the addition of Rs.3,15,15,350/- made on account of unaccounted contribution of the assessee at the time of entry as a new partner in the partnership firm, M/s Kuberji Enterprises, on the basis of valuation of assets. The ld. CIT(A) also ignored the loose papers seized during the course of search wherein it is clearly mentioned that “Hisab Aapko diya hua hai”, name of the new partners as V.G and R.K (in coded language) has also mentioned on the documents, that the said partnership agreement has been signed by the assessee. (ii) Summarized and concised ground nos. 3 and 4 relates to deleting the addition of Rs.2,10,62,281/-, made on account of unaccounted investment in property of the assessee. The ld. CIT(A) ignored the fact that the seized papers having name of the assessee ‘Vinodji’ and ‘Khetanji’ and the assessee has totally failed to explain the contents narrated in the seized papers. (iii) Summarized and concised ground no.5 raised by the Revenue relates to deleting the addition of Rs.5,58,00,000/- being unaccounted cash loan of Rs.4,50,00,000/- from Mr. Jayantibhai Patel and interest payable thereon Page | 22 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami of Rs.1,08,00,000/- despite the fact that such addition was made on the basis of seized documents. (iv) The ld. CIT(A) has erred in deleting the addition of Rs.5,24,801/- despite the fact that such addition was made on the basis of seized documents. (v) The ld. CIT(A) has erred in restricting the addition of Rs.58,63,950/- made on account of unexplained cash (inadvertently taken as Rs.43,00,000/-) to Rs.23,60,708/-, which is contrary to the facts. The ld. CIT(A) also ignored the principles of ‘Human Probability Test’.” 35. The grounds raised by assessee, in cross objection in CO No. 4/SRT/2023, for assessment year 2020-21, are as follows: “1. That on the facts and in the circumstances of the case, as well as in law, the learned CIT(A) has erred in upholding the validity of the assessment order passed by ld. assessing officer and thereby dismissing the ground of appeal No. ‘1’ of assessee, whereas the assessment order passed by ld. assessing officer is clearly invalid and bad in law as per CBDT Circular No. 19 of 2019 dated 14.08.2019. 2. That on the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in sustaining the addition of Rs. 23,60,708/- by holding the cash found during the search to above extent as unexplained, whereas the whole of the cash found during search was duly explained with supporting evidences.” 36. Grounds Nos. 1 and 2 raised by the Revenue in IT(SS)A No. 6/SRT/2023, relate to the same issue, which is reproduced below for ready reference: (i) Ground No.1 and 2 raised by the Revenue relates to deleting the addition of Rs.3,15,15,350/- made on account of unaccounted contribution of the assessee at the time of entry as a new partner in the partnership firm, M/s Kuberji Enterprises, on the basis of valuation of assets. The ld. CIT(A) also ignored the loose papers seized during the course of search wherein it is clearly mentioned that “Hisab Aapko diya hua hai”, name of the new partners as V.G and R.K (in coded language) has also mentioned on the documents, that the said partnership agreement has been signed by the assessee. 37. Succinct facts qua the issue are that while making scrutiny assessment, the assessing officer observed that during the course of search at the residence of Shri Naresh B. Agarwal, a copy of the agreement relating to change in partnership deed of the firm M/s Shree Kuberji Enterprises (SKE) was found. As per the said agreement, two Page | 23 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami more partners namely Mr. Vinod M Goswami (assessee) and Mr. Nitesh R. Khetan were to be admitted, as new partners into the said firm M/s Shree Kuberji Enterprise, w.e.f. 01/02/2020, with profit sharing ratio of 2.50% to each. The two new partners were to be admitted in the partnership firm was confirmed by Mr. Naresh B Agrawal, in his Statement u/s 132(4) of the Act. The assessee, Mr. Vinod Kumar Goswami, who was to be admitted as partner, was also subjected to search and loose papers No.8 and 11 in Annexure A-l, were found in his premises, wherein total area of the land of the firm was mentioned as 13,405 sq. yds and 5% of the same was worked at 670 sq. yds. The said details were relating to land at RS No.36, TP No.8, Umarwada, FP No.83 of M/s Shree Kuberji Enterprise. The assessing officer has reproduced the copy of the seized loose papers 8 and 11 of Annexure A-l on Pg. No. 11 and 18 of the assessment order. On the basis of the working given in these loose papers, the assessing officer held that the cost of the land is at the rate of Rs. 1 lakh per sq. yd. and worked out the contribution by the assessee for 2.5% share, other than through banking channel, at Rs.3,15,15,350/- (the total investment in the firm was computed at Rs.3,35,12,500/-, out of which the assessee was to give cheques of Rs.20,86,490/-. Thus, the cash component was computed to be Rs.3,15,15,350/-. Therefore, the assessing officer asked the assessee to explain the said cash component of Rs.3,15,15,350/-. 38. In response, the assessee submitted that the loose papers found from his residence, contain the details of the offer received by him from Shri Naresh B. Agarwal to become partner in the firm M/s Shree Kuberji Enterprise, which offer was ultimately declined by him and was not materialized. The assessee also filed an affidavit, dated 13/08/2021, with the assessing officer stating that though initially he Page | 24 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami accepted this offer and also signed on the partnership amendment agreement but immediately thereafter when he came to know about the legal problems in the land of said firm, he denied and refused the said offer, which did not ultimately materialize. It was further stated that two cheques issued by assessee of Rs.10,00,000/- and Rs.10,86,490/- pursuant to initially accepting this offer, were not given to the said firm and the bank was also instructed to stop the payments of the same and that an agreement to the effect of not joining the said firm was also signed immediately. In this way, the assessee submitted before the assessing officer that the said loose papers 8 and 11 found from him were in respect of the offer so received from Shri Naresh B. Agarwal, which offer was ultimately not accepted by him and he did not join the said firm and no investment or capital contribution was made by him for becoming partner into the said firm M/s Shree Kuberji Enterprise. However, the assessing officer did not accept the above explanation of the assessee and made the addition of Rs.3,15,15,350/- towards unaccounted capital contribution by the assessee for becoming partner of 2.5 % share in the said firm and its land. 39. On appeal, ld CIT(A) deleted the addition. The ld CIT(A) observed that the incriminating material relied upon by the assessing officer do not suggest any contribution/ investment actually made by the assessee. Therefore, the addition made by the assessing officer of Rs.3,15,15,350/- was deleted by ld CIT(A). Aggrieved by the order of ld CIT(A), the Revenue is in appeal before us and assessee also filed cross objection before us. 40. Learned DR for the Revenue, argued that during the course of Search at the residence of Shri Naresh B. Agarwal, a copy of the agreement relating to change in partnership deed of the firm M/s Shree Page | 25 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami Kuberji Enterprises (SKE) was found. As per the said agreement, two more partners namely, Mr. Vinod M Goswami (assessee) and Mr. Nitesh R Khetan were to be admitted as new partners into the said firm M/s Shree Kuberji Enterprise w.e.f. 01/02/2020 with profit sharing ratio of 2.50% to each. The two new partners were to be admitted in the partnership firm was confirmed by Mr. Naresh B Agrawal, in his statement u/s 132(4) of the Act. The assessee, Mr. Vinod Kumar Goswami, who was to be admitted as partner was also subjected to search and loose papers No.8 and 11 in Annexure A-1 were found in his premises wherein total area of the land of the firm was mentioned as 13,405 sq. yds. The assessing officer has reproduced the copy of the seized loose papers 8 and 11 of Annexure A-l on Pg. No. 11 and 18 of the assessment order. On the basis of the working given in these loose papers, the assessing officer held that the cost of the land is at the rate of Rs. 1 lakh per sq. yd. and worked out the contribution by the assessee for 2.5% share, other than through banking channel at Rs.3,15,15,350/-. The ld DR further argued that during the assessment proceedings, the assessee has submitted an affidavit dated 13.08.2021 which was sworn after 18 Months of the search i.e. 06.02.2020, that is, aimed only to discredit the incriminating evidences found during the course of search. The Ld. CIT(A) has erred by restricting to the fact that the revised constitution of the firm was never given effect to and completely overlooking the fact that the cheque payment (Rs. 20,86,490 mentioned in Page 8 of Annexure A-l) is matching with the submission of copy of cheques seized [ Rs 10,00,000/-(Ch 827261) and Rs 10,86,490/- (Ch 827260) ] from the premises of the assessee. The assessee accepted payment of Rs. 20,86,490/- via cheque and also accepted that he signed the partnership agreement. Therefore, ld DR contended that addition made by the assessing officer may be upheld. Page | 26 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 41. On the other hand, Shri Ramesh Malpani, Learned Counsel for the assessee, pleaded that presumptive addition of Rs. 3,15,15,350/-, in the name of unaccounted capital contribution in the firm, M/s Shri Kuberji Enterprise, for becoming partner of 2.5% share in the said firmwas made by the assessing officer without any base. The fact is that the assessee has never become partner in the said firm and has not contributed any capital into the said firm. The addition has been made solely on the basis of an offer received by assessee on behalf of a partner of the said firm to join the said firm with 2.50% share, which offer was ultimately not accepted by the assessee and was declined and the assessee has not joined the said firm nor has become partner into the said firm and has not invested any amount for becoming partner into the said firm. Addition has been made just on the basis of presumptions, surmises and conjectures on the basis of rough jottings of the offer/ proposal so received, which offer was not accepted and was ultimately declined by the assessee and was not materialized. The fact that assessee has never become partner of the said firm M/s. Shri Kuberji Enterprise and have never got any right, share, title or interest in its impugned land or any other assets, which is very much evident from the following statutory records of this firm: (i) ITBA and PAN data base of the said Firm with the I. T. Department itself. (ii) I. T. Returns of the said Firm. (iii) Records of Registrar of Firms. (As mentioned by Id. assessing officer this firm is registered with (ROF) (iv) Land Revenue Records The assessing officer was also requested to verily these facts from above statutory records. There is no mention of any adverse finding by assessing officer in these verifications. The assessing officer was also Page | 27 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami requested to verily above facts from the said firm and its partners. There is no mention of any adverse finding in any such verification. Thus, these are the duly proved facts that the assessee has never become partner into the said firm of M/s. Shri Kuberji Enterprise. The ld Counsel, therefore stated that addition made by the assessing officer was wrong, fallacious, and contrary to the statutory records. The ld Counsel, therefore contended that order passed by the ld CIT(A) may be upheld. 42. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee. We find merit in the arguments advanced by ld Counsel to the effect that assessee has never become partner of the said firm M/s Shri Kuberji Enterprise and have never got any right, share, title or interest in its impugned land or any other assets, which is very much evident from the statutory records of this firm, such as ITBA and PAN data base of the said Firm with the Income Tax Department itself, Income Tax Returns of the said Firm and Records of Registrar of Firms and Land Revenue Records. The ld CIT(A) has rightly observed that the fact which was not denied by the assessing officer is that the land is owned by the firm M/s Shree Kuberji Enterprises. The basis of addition of the assessing officer is the partnership amendment agreement dated 01.02.2020, whereby the assessee and Shri Nitesh R Khetan were to be admitted, as new partners and two loose papers (page no. 8 and 11 of annexure A-l) found from the residence of assessee containing the details of the offer so received. On perusal of the partnership amendment agreement as pasted on page no. 3 to 8 of the assessment order, it is evident that the same is not signed by one of the existing partners, namely Shri Natwarbhai M. Harlalka and by the incoming partner Shri Nitesh R. Khetan. This shows that the said agreement was not signed by all the Page | 28 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami parties and did not become final. It is submitted by the assessee that though he initially accepted this offer and signed on this agreement but immediately thereafter on knowing about the legal problems in the land of the said firm, he denied to become the partner in it. In support of this he has also furnished copy of an agreement cancelling the above partnership amendment agreement, which is signed by the assessee and Shri Hemant Naresh Agarwal and has claimed that this cancelation agreement was also found during the course of Search from the premises of Shri Naresh Agarwal. During assessment proceeding, assessee also requested the assessing officer to verify the fact of his not joining the said firm from the ITBA and PAN data base of the said firm, latest return filed by the said firm, registrar of firms as also from the said firm and its partners. It was submitted that there is no mention of any adverse finding by the assessing officer in this regard. Thus, nothing has been brought on record by the assessing officer to prove that the assessee had in fact joined the said firm and became its partner. This being the fact of the case that the partnership firm was never reconstituted as envisaged in the copy of the partnership amendment agreement found, the working of the two loose papers referred by the assessing officer without corroboration with the actual facts cannot be fully relied upon for making an addition. Undisputedly, these loose papers contained the details of the offer received by the assessee to become partner into the said firm. When the offer itself was ultimately not materialized, then the addition on the basis of these loose papers containing the details of the offer cannot be sustained. 43. We note that there is no material with the assessing officer relating to unaccounted investment/ contribution by the assessee for becoming partner of the said firm. The document relied upon being the partnership amendment agreement dated 01.02.2020 was not executed Page | 29 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami and cannot be the basis for making the addition. As the revised constitution of the firm was never given effect to, the loose papers No. 8 and 11 of annexure A-l cannot be held to be having necessary evidentiary value for making addition as done by the assessing officer. There is no mention of finding of any material showing that such unaccounted contribution / Investment was in fact made by the assessee. The ld Counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of Common Cause vs. Union of India – 77 taxmann.com 245 and on the judgment of Hon'ble ITAT, Ahmedabad in the case of Nishant Construction Pvt. Ltd. Vs. ACIT - ITA No. 1502/Ahd/2015 holding that the loose papers by themselves have no evidentiary value and addition cannot be made merely on the basis of jottings on the loose papers in the absence of any other corroborative evidence. The said case of Hon'ble ITAT, Ahmedabad Bench has been upheld by Hon'ble Gujarat High Court in the case reported at (2019) 101 Taxmann.com 180 (Gujarat). Relying on the above judicial pronouncement, it is contended by the ld Counsel that jottings on loose sheets of papers found as page no. 8 and 11 of Annexure A-1 containing the details of offer received have no evidentiary value, more so when it is a fact that the said offer was not ultimately accepted and materialized as the assessee did not become partner of the said firm. In view of the law laid down in above case laws, the addition made just on the basis of two loose sheets of papers containing the details of offer received but not materialized cannot be sustained in the absence of any other corroborative evidence or finding. The ld CIT(A) therefore held that the loose papers by themselves have no evidentiary value and addition cannot be made merely on the basis of jottings on the loose papers in the absence of any other corroborative evidence. In the light of the above facts, ld CIT(A) held that the addition made Page | 30 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami towards the unaccounted/ unexplained investment/ contribution for becoming partner into the said Firm M/s Shree Kuberji Enterprise and its land cannot be sustained. The incriminating material relied upon by the assessing officer do not suggest any contribution/ investment actually made by the assessee. Therefore, the addition made by the assessing officer of Rs.3,15,15,350/- was deleted by ld CIT(A). We have gone through the above findings of ld CIT(A) and observed that there is no infirmity in the conclusion reached by ld CIT(A), hence we are not inclined to accept the contention of the Assessing Officer in any manner and hence the addition so made is rightly deleted by ld CIT(A). 44. In the result, ground Nos.1 and 2 raised by the Revenue, in IT(SS)A No.06/SRT/23, are dismissed. 45. The concise and summarized ground No.(ii) raised by the revenue is reproduced below for ready reference: “(ii) Summarized and concised ground nos. 3 and 4 relates to deleting the addition of Rs.2,10,62,281/-, made on account of unaccounted investment in property of the assessee. The ld. CIT(A) ignored the fact that the seized papers having name of the assessee ‘Vinodji’ and ‘Khetanji’ and the assessee has totally failed to explain the contents narrated in the seized papers.” 46. Brief facts qua ground No.3, as culled out from the records, are that while making scrutiny assessment, the assessing officer observed that during the course of Search in the premises of Mr Jayantibhai Patel at 240, Lal Quila, Punagam, Surat on 06.02.2020, certain loose papers, bearing No.71 and 86 of Annexure A-23 were found and seized. The said pages have been reproduced by the assessing officer on page No.23 of the assessment order. The contention of the assessing officer is that the figures mentioned on the pages are the payments made by Mr. Jayantibhai Patel, Mr. Rajendra B Khetan and the Page | 31 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami assessee. The page No.71 which are the total transactions worth Rs.4,17,24,562/-, the second part is also written in coded form which comes to Rs.4,17,91,500/- and third part is again details of payment made for purchase of immovable property and share in the property. There are some figures on top of page No.86 of Annexure A-23 which match with the figures written on page No.71. The assessing officer, on page No.26 of the assessment order, has noted that page No.71 of Annexure A-23 (wrongly written as A-l by the assessing officer) is the immovable property purchased after making a payment of Rs.10,98,90,000/- in which 30% of the value of the property was paid by Mr Sunny J Patel and 70% was paid by Mr Rajendra Khetan and the assessee. Thus, the assessing officer has worked out the share of the assessee, in the transaction at Rs.3,84,61,500/-, being 50% of Rs.7,69,23,000/- (which is 70% of Rs.10,98,90,000/-). Further, the assessing officer held that out of Rs.3,84,61,500/- being the share of the assessee in the property, the cash payment being the on money made by the assessee as per the working is Rs.2,10,62,281/- (being 50% of Rs.4,21,24,562/- as per page No.71 of Annexure A-23). Thus, the assessing officer made the addition of Rs.2,10,62,281/- as unexplained investment in the property purchased. 47. On appeal, ld CIT(A) deleted the addition, therefore, Revenue is in appeal before us and assessee also filed cross objections. The ld Counsel argued before us that presumptive addition of Rs.2,10,62,281/- in the name of unaccounted investment for purchase of some imaginary immovable property, jointly with Shri Sunny J. Patel and Shri Rajendraprasad Khetan was made by the assessing officer. No such property or any other assets, in which alleged unaccounted investment might have been made, has been identified by the assessing officer. During assessment proceeding, it was explicitly Page | 32 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami submitted before the assessing officer that no such joint property has been purchased, sold or held by assessee. During the assessment proceedings, the assessing officer was also requested to identify, as to in which immovable property, the alleged unaccounted investment might have been made. However, assessing officer failed to identify any property. Therefore without identifying any such immovable property, of other assets or investment, this presumptive addition should not have been made by the assessing officer. The ld Counsel stated that the assessee has not purchased, sold or jointly held any such property with so called Shri Sunny J. Patel. The addition has been made by assessing officer, just on the basis of some rough jottings on two loose papers found and seized from a third party Shri Jayantibhai Bhulabhai Patel by arbitrarily presuming and relating the same with the assessee, without any valid and cogent basis. The ld Counsel further pointed out that as per settled law, this addition is beyond the scope of Section 153A of the Act, as the same is not based on any incriminating material found and seized during the course of search and seizure action in the case of assessee. The addition has been made on the basis of two rough loose papers found and seized from a third party - viz- page no, 71 and 86 of annexure A-23 seized from premises of some Shri Jayantibhai Bhulabhai Patel and therefore such an addition is completely beyond the scope of section 153A of the Act. The assessing officer should have framed the assessment under section 153C instead under section 153A of the Act. Therefore, ld Counsel, contended that the addition so made by the assessing officer was grossly wrong. Therefore, ld Counsel defended the order passed by the ld CIT(A). 48. On the other hand, Ld DR for the Revenue, argued that during the course of Search in the premises of Mr. Jayantibhai Patel at 240, Lal Quila, Punagam, Surat on 06.02.2020, certain loose papers bearing Page | 33 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami No.71 and 86 of Annexure A-23 were found and seized. The said pages have been reproduced by the assessing officer on page No.23 of the assessment order. The assessing officer noted that the figures mentioned on the pages are the payments made by Mr. Jayantibhai Patel, Mr. Rajendra B Khetaii and Mr. Vinod Kumar Goswami. The Page No.71 which are the total transactions worth Rs.4,17,24,562/-, the second part is also written in coded form which comes to Rs.4,17,91,500/- and third part is again details of payment made for purchase of immovable property and share in the property. There are some figures on top of page No.86 of Annexure A-23 which match with the figures written on page No.71. The assessing officer, on page No.26 of the assessment order, has concluded that page No.71 of Annexure A-23 is the immovable property purchased after making a payment of Rs. 10,98,90,000/- in which 30% of the value of the property was paid by Mr. Sunny J Patel and 70% was paid by Mr. Rajendra Khetan and Mr. Vinod Kumar Goswami. Thus, the assessing officer has worked out the share of the assessee in the transaction at Rs.3,84,61,500/- being 50% of Rs.7,69,23,000/- (which is 70% of Rs.10,98,90,000/-). Further, the assessing officer held that out of Rs.3,84,61,500/- being the share of the assessee in the property, the cash payment being the on money made by the assessee as per the working is Rs.2,10,62,281/- (being 50% of Rs.4,21,24,562/- as per page No.71 of Annexure A-23). Thus, the assessing officer made the addition of Rs.2,10,62,281/-. Therefore, ld DR simply reiterated the findings of the assessing officer and stated that addition made by the assessing officer may be upheld. 49. We have heard both the parties. We note that there is nothing in these rough loose papers (as narrated by the assessing officer above) to construe or to infer any unaccounted investment or payments by the Page | 34 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami assessee. On face of these loose papers (pasted on page no. '23' of assessment order), it is evident that these are rough papers containing some rough jottings/calculations without any dates, descriptions, signatures and meaningful narrations. There is no mention of any immovable property or any other assets/ investment for which these jottings may be relevant. There is no mention of any date and period. It is not clear as to for what purpose these rough jottings may be made. Thus, both these rough papers are clearly 'dumb documents' seized from a third party having no relevance with assessee. As per settled law, such rough loose papers and dumb documents have no evidentiary value and no addition can be made on the basis of same. In this regard, reliance is placed by the ld Counsel, on following case laws of Hon'ble Apex Court, jurisdictional High Court and ITAT: (i) COMMON CAUSE vs. UNION OF INDIA - (2017) 77taxmann.com 245 (SO (ii) NISHANT CONSTRUCTIONPVT. LTD. vs. ACIT ITA NO. 1502/AHD/2015 (iii) SMT. HARMOHINDERSJNGHKAUR vs. DOT- (2021) 187ITD289 It is, thus, settled law that the loose papers etc. have no evidentiary value and no addition cab be made solely on the basis of such rough loose papers. 50. Learned CIT(A) also observed that it is a fact that the assessing officer on the basis of incriminating material has determined the unexplained investment in the property made by the assessee but has not been able to identify the property which has been purchased. The contention of the assessee, before the assessing officer as well as during the Appellate Proceedings is that the assessee never purchased any immovable property jointly with Mr Sunny J Patel and Mr Rajendra P. Khetan. The unexplained investment in any immovable Page | 35 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami property can be brought to tax only when the immovable property has been identified to have been purchased. Without identifying the property if the addition is made it is only on the basis of presumption that the assessee has purchased the immovable property. Therefore, we note that no addition can be made in the hands of the assessee on the basis of rough papers or diaries etc. found / seized from third parties without corroborative evidence. Further, it was pleaded that the incriminating material contains the name “Vinodji” or “V.G.” which cannot be the basis for treating the jottings relating to the assessee, especially when there is no property alleged to be purchased jointly was identified by the assessing officer and hence, it was submitted by ld Counsel that the incriminating material found in the form of loose sheets should be treated as dumb document and merely resemblance of the name or the initial cannot be the basis for making the addition in the hands of the assessee. Hence, ld CIT(A) has rightly observed that the jottings on the loose papers found have not been corroborated with any other evidence or the property purchased or invested by the assessee. Therefore, the jottings made without identification of any asset or investment cannot be the basis for making the addition of unexplained investment, therefore, the addition of Rs.2,10,62,281/- was deleted by ld CIT(A). 51. In the result, ground nos. 3 and 4 raised by the Revenue are dismissed. 52. Summarized and concise grounds no.(iii) of the Revenue is reproduced below for ready reference: “(iii) Summarized and concised ground no.5 raised by the Revenue relates to deleting the addition of Rs.5,58,00,000/- being unaccounted cash loan of Rs.4,50,00,000/- from Mr. Jayantibhai Patel and interest payable thereon of Rs.1,08,00,000/- despite the fact that such addition was made on the basis of seized documents.” Page | 36 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 53. Succinct facts qua grounds no.(iii) of the Revenue, are that during the assessment proceedings, the assessing officer noted that in the residential premises of Mr. Sunny J. Patel, loose papers No.69 to 79 of Annexure A-23, were found, containing unaccounted transactions, which are reproduced on page no.27 and 29 of the assessment order. After analysis of the said incriminating material, the assessing officer held that the assessee has taken a cash loan of Rs.4,50,00,000/- from Mr. Jayantibhai Patel and interest payable thereon was found to be jotted at Rs.1,08,00,000/- and therefore assessing officer made an addition of Rs.5,58,00,000/-.( vide para 7 of assessment order). 54. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has deleted the addition made by the Assessing Officer. The ld CIT(A) observed that the loan taken by the assessee, has not been conclusively proved, by the assessing officer and it is not clearly evident from the incriminating material and at the same time no other evidence in the form of statements of the persons in whose possession the loose papers were found, brought on record. There are no evidences of loan taken by the assessee found during the course of Search in the residential premises of the assessee and even any details of interest paid on such loans. Besides Loans taken as such cannot be taxed in the hands of the assessee, as it is a capital receipt and not a revenue receipt. Considering all these aspects, ld CIT(A) deleted the addition made by the assessing officer of Rs.5,58,00,000/-. Aggrieved by the order of ld. CIT(A), the Revenue is in appeal before us. 55. The ld. DR for the Revenue argued that incriminating material referred by the assessing officer, which is the basis for this addition, Page | 37 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami was found from the residence of Shri Sunny Jayantibhai Patel, who has various land transaction with the assessee. On verification of case record available, the assessing officer noted that there is incriminating material that shows that Shri Rajendra Chandak and Shri Jayantibhai B Patel, have sold the land at block no. 786. Therefore, there is a nexus between Shri Jayantibhai Patel, Shri Sunny J. Patel and the assessee, Shri Vinod Kumar Goswami. In real estate market like in Surat, to evade the taxation, this type of practice has been adopted by the Land/Property dealers. For the same, they make agreement on plain paper/satakhat with signature and date for sale/purchase of land/property. This is not a presumption or guesswork of the assessing officer because the assessee was associated with many transactions related to M/s Kuberji Group. The ld DR pointed out that the assessee had made huge investment in land in Surat and is partner in many firms related to Kuberji Group along with Sunny Jayantibhai Patel, Rajendra Babulal Khetan, Vimal Jalan, Nitesh R Khetan & others, therefore addition made by the assessing officer may be upheld. 56. On the other hand, ld Counsel for the assessee, pleaded that assessing officer made addition of Rs. 5,58,00,000/- based on surmise and conjecture, in the name of unaccounted loan taken and presumptive interest payable thereon, as assumed from the rough jottings on the loose papers stated to be found and seized from residential premises of Shri Sunny Jayantibhai Patel. The ld Counsel pointed out that as page no. 79 & 69 of annexure A-23 and pasted on page nos. 27 and 29 of assessment order, the addition so made is grossly wrong. There is no relevance or concern of assessee with these rough loose papers or any of the jottings therein seized from the third party. The ld Counsel also pointed out that as per settled law, this addition is beyond the scope of Section 153A of the Act, if the Page | 38 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami assessing officer wanted to make any addition, it should have been made under section 153C of the Act.The addition has been made on the basis of two rough loose papers found and seized from a third party — viz- page no. 69 and 79 of annexure A-23 seized from premises of some Shri Jayantibhai Bhulabhai Patel, therefore, such an addition is completely beyond the scope of Section 153A of the Act. 57. We have heard both the parties. We have gone through the loose papers mentioned in the assessment order and noted that there is nothing in these rough loose papers to infer any such unaccounted loan taken by the assessee and any such interest payable thereon. In fact, the assessee has no concern or relevance, at all, with these loose papers and with the jottings therein. These loose papers are not in the hand writing of assessee. The Page no '69' contains some rough jottings/ calculations in respect of some projects/ concerns 'Gopnath + Palace'. The assessee has no concern or relevance, at all, with any project or concern with these names. There is nothing on this rough page about assessee. It is with respect to rough jottings -viz- "5/10/18 - 3000 - Vinodji (in Gujarati)"and "+0.54 - Interest of Vinodji (in Gujarati)", the assessing officer has presumed that the same pertain to assessee. There is no mention of any basis for this presumption. Similarly, jottings on page no. ‘79' are also in Gujarati language and are totally irrelevant for assessee. It is only in respect of one rough jotting "1.08 - Vinodji (in Gujarati)", and the assessing officer has presumed that this rough jotting relates to assessee. There is no mention of any basis as to how these rough jottings belong to assessee. Merely because the first name of assessee is "Vinod" does not mean that all the jottings by anyone, whosoever, with the name "Vinod" belong to assessee. There is no mention of any basis for holding that these rough jottings with the name 'Vinodji' pertain to assessee. The jottings on these rough loose Page | 39 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami papers are apparently rough jottings and for what purpose these rough jottings were made, is known only to person who wrote the same or from whose possession these papers were found. 58. Thus, presumption by assessing officer that the rough jottings on these loose papers with the name 'Vinodji' pertain to assessee, is completely wrong. There must be some corroborative evidence and logical base for making such an inference implicating other. Further, there is nothing in these loose papers of any such unsecured loan of Rs. 4,50,00,000/ and interest payable thereon. Further, on the face of these loose papers '69' and '79' as pasted on page no. '29' & '27' of assessment order, it is evident that these are rough papers containing some rough jottings/ calculations without any dates, descriptions, signatures and meaningful narrations. There is no mention of any such unsecured loan taken by assessee and interest payable thereon. Therefore, we note that assessing officer made addition based on surmise and conjecture. Thus, we are of the view that both these rough papers are clearly 'dumb documents' seized from a third party having no relevance at all with assessee. As per settled law, such rough loose papers and dumb documents have no evidentiary value and no addition can be made on the basis of same. In this regard, reliance is placed, by ld Counsel, on following case laws of Hon'ble Apex Court, jurisdictional High Court and Tribunal: (i) COMMON CAUSE vs. UNION OF INDIA - (2017) 77taxmann.com 245 (SC) (ii) NISHANT CONSTRUCTION PVT. LTD. vs. ACIT ITA NO. 1502/AHD/2015 (iii) SMT, RARMOHINDER SINGHKAUR vs. DOT- (2021) 187 ITD 289 59. It is clear that these loose papers have not been found from assessee but have been found and seized from third party. The assesse has no concern at all with these loose papers. The assessing officer Page | 40 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami has also not mentioned, as to what this third party, from whom these loose papers have been found, and whether third party has explained these loose papers or not. Neither copy of third party statement has been provided to assessee nor has any such statement, if any, been confronted with the assessee. It is settled law that no addition can be made on the basis of such loose papers or documents found and seized from third parties without any corroborative evidence. In the absence of any such corroborative finding, as per settled law, no addition can be made on the basis of such rough loose papers found/seized from third party. Reliance in this regard is placed by ld Counsel on following case laws: (i) CIT vs. VALLAMJIRA VAJIBHAI PATEL - TAX APPEAL NO. 1813 OF 2006(GUJ) [Copy End.] (ii) PRARTHANA CONSTRUCTION PVT. LTD. vs. DCIT - [2001] 70 TTJ 122 (Ahd) 60. The ld CIT(A) also observed that the incriminating material referred by the assessing officer which is the basis for this addition was found from the residence of Mr. Jayantibhai Patel, who is a third party, as far as the assessee is concerned. The assessing officer has not reproduced any statement of Mr. Jayantibhai Patel, in the assessment order explaining the exact nature of the jottings, made in the loose papers, found in his premises. The ld CIT(A) also placed reliance on the judgment of Hon'ble Gujarat High Court in the case of in the case of Vallamji R Patel TA No. 1813 of 2006 and of ITAT Ahmedabad in the case of Prarthana Construction Pvt. Ltd. Vs DCIT 70 TTJ 122 (Ahmedabad). In both the above judgments, it has been held that no addition can be made in the hands of the assessee on the basis of rough papers or diaries etc. found / seized from third parties without corroborative evidence. Further, it was pleaded that the incriminating material contains the name "Vinodji" which cannot be the basis for Page | 41 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami treating the jottings relating to the assessee especially when there is no statement recorded that the assessee was a recipient of any loan from Mr. Jayantibhai Patel and hence, it was submitted that the incriminating material found in the form of loose sheets should be treated as dumb document and merely resemblance of the name cannot be the basis for making the addition in the hands of the assessee. Based on this factual position, the ld CIT(A) deleted the addition made by the assessing officer of Rs.5,58,00,000/-.The above conclusions arrived at by the CIT(A) are, therefore, correct and admit no interference by us. We, approve and confirm the order of the CIT(A) and dismiss the ground raised by the Revenue. 61. In the result, ground no.5 raised by the Revenue, is dismissed. 62. Summarized grounds no.(iv) raised by the Revenue, is reproduced below for ready reference: “(iv) The ld. CIT(A) has erred in deleting the addition of Rs.5,24,801/- despite the fact that such addition was made on the basis of seized documents. 63. Brief facts qua the issue are that this ground raised by the Revenue is relating to addition of Rs.5,24,801/-, made by the assessing officer, on the basis of whatsapp message retrieved from the mobile phone of assessee’s family member, which showed a certain transaction of Rs.5,24,801/-, which was added by the assessing officer. 64. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has deleted the addition made by the Assessing Officer, observing as follows: “10.1 It is submitted that the assessee had filed the submissions before the assessing officer on 18.09.2021 online stating that the message in question was retrieved from the mobile phone of assessee’s son who is the Prop. of M/s Swaraj Food Products and is doing an independent business of Namkeens. This message was sent by the staff member of assessee’s son Page | 42 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami about the sale transaction of the said business to Mr. Vasuji and which is supported by the e-way bills to the said party. The copies of the e-way bills were furnished during Appellate Proceedings, which were produced before the assessing officer as well. 10.2 From the details furnished, it is seen that the figures on the whatsapp message are same as in the e-way bills. The son of the assessee is into the business of Namkeens is a separate GST assessee is evident from the e-way bills produced. Hence, the addition made by the assessing officer of Rs.5,24,801/- stands deleted..” 65. Aggrieved by the order of ld. CIT(A), the Revenue is in appeal before us. We have heard both the parties. The Ld. Counsel for the assessee defended the order passed by the ld. CIT(A).On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. We have gone through the above findings of the ld CIT(A) and noted that there is no infirmity in the order passed by ld CIT(A), hence we confirm the findings of the assessing officer. 66. In the result, ground No.6 raised by the Revenue is dismissed. 67. The Concise and summarize grounds no.(v) raised by the Revenue, is reproduced below for ready reference: (v) The ld. CIT(A) has erred in restricting the addition of Rs.58,63,950/- made on account of unexplained cash (inadvertently taken as Rs.43,00,000/-) to Rs.23,60,708/-, which is contrary to the facts. The ld. CIT(A) also ignored the principles of ‘Human Probability Test’.” 68. Brief facts qua the issue are that during the assessment proceedings, the assessee submitted before the assessing officer, vide letter dated 13.09.2021 that the cash found during the search was belonging to the following firms and family members of the assessee: 1) M/s AADESHWAR ENTERPRISES Rs. 13,00,000/- 2) M/s NEW SUPREME DEVELOPERS Rs. 10,00,000/- 3) As per cash book of SMT. LALITA GOSWAMI Rs. 17,92,673/- 4) As per cash book of VINOD GOSWAMI Rs. 14,09,069/- Rs. 55,01,742/- Page | 43 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami In support of above explanation, cash books of above firms and family members were furnished to the assessing officer, evidencing that the availability of cash balance with above firms and family members. It was further explained that the assessee is partner in M/s Aadeshwar Enterprises and M/s New Supreme Developers and both being builder firms, it is not safe to keep the cash at their offices and as per normal practice, cash of these firms was kept at assessee's (partner's) residence. Total cash balance as per cash book of M/s Aadeshwar Enterprises, as at the close of 05/02/2020, is Rs.13,10,421/-, out of which, Rs.13,00,000/-, was kept at assessee's residence and total cash balance, as per cash book of M/s New Supreme developers, as at the close of 05/02/2020, is Rs.10,93,206/- out of which Rs.10,00,000/-, was kept at assessee's residence. However, the assessing officer did not accept above contention of the assessee, on the ground that assessee has not given any evidence regarding this during search proceeding, as well as assessment proceeding and therefore assessing officer made the addition of Rs.43,00,000/- on account of unexplained cash found during the course of search at the premises of the assessee. 69. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has partly deleted the addition made by the Assessing Officer. Aggrieved by the order of ld CIT(A), the Revenue as well as assessee, are in appeal before us. 70. We have heard both the parties. Learned Counsel for the assessee, pleaded that during the course of search and seizure action at residence of assessee, cash of Rs.58,63,950/- was found, out of which cash of Rs.55,00,000/- was seized. During the course of post search inquiries, as well as during assessment proceedings, sufficient Page | 44 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami explanation along with copies of cash books of the business concerns and family members, to whom this cash belonged, were furnished. The assessee submitted a copy of letter dated 21/11/2020, which was submitted by assessee to ITO (Inv), explaining the source of cash so found and seized. Before that, vide letter dated 27/06/2020, submitted through E-mail on 29/09/2020 by the assessee, with explanation of cash, which was furnished to the ITO (Inv.). During assessment proceedings also, above explanation was submitted, vide letter dated 13/09/2021. Copies of cash books of assessee, his wife Smt. Lalita Goswami and of the firms M/s ADESHWAR ENTERPRISES and M/s NEW SUPREME DEVLOPERS were also furnished to A.O. in support of the explanation. No defect has been found or pointed out by assessing officer in this explanation and in the cash books, so furnished. Despite that, assessing officer has made addition of Rs.43,00,000/- out of the cash seized by arbitrarily assuming this much cash seized, as unexplained. There is no mention of any valid or lawful reason for assuming cash of Rs.43,00,000/- as unexplained, whereas sufficient explanation of the cash so found and seized with supporting evidences in the form of cash books were furnished to assessing officer and no defect has been found or pointed out by assessing officer in the same. The cash found and seized was explained by assessee before ld CIT(A), which is given below: "Thus, cash seized of Rs. 55,00,0000/-, was out of cash balance, as per books of accounts of following firms/ family members: M/s AADESHWAR ENTERPRISES Rs.13,00,000/- M/s NEW SUPREME DEVELOPERS Rs.10,00,000/- As per cash book of SMT. LALITA GOSWAMI Rs.17,92,673/- As per cash book of VINOD GOSWAMI Rs.14,09,069/- Rs.55,01,742/ 71. The assessee submitted before the ld CIT(A), the copies of cash Books of all the above firms/persons. The assessee submitted before ld Page | 45 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami CIT(A) that he is partner in M/s AADESHWAR ENTERPRISES and M/s NEW SUPREME DEVELOPERS and both being builder firms, it is not safe to keep the cash at office. Hence, as per normal practice, cash of these firms was kept at assessee`s home i.e. partner's home. Thus, the cash of above firms i.e. Rs.13,00,000/- of M/s AADESHWAR ENTERPRISES and Rs.10,00,000/- of M/s NEW SUPREME DEVELOPERS was kept at partner`s house. Total cash balance, as per cash book of M/s AADESHWAR ENTERPRISES, as at the close of 05/02/2020, is Rs.13,10,421/-, out of which Rs.13,00,000/- were kept at partner`s house. Similarly, cash balance as per cash book of M/s NEW SUPREME DEVELOPERS, as at the close of 05/02/2020 is Rs.10,93,206/-, out of which Rs.10,00,000/ was kept at assessee`s house. Thus, cash seized of Rs.55,00,000/- is out of cash balance of assessee`s above firms/family members as above. This fact was explained at the time of search action, as also thereafter to ITO(Inv), Surat, during post search inquiries. Thus, cash seized during search action was explained before ld CIT(A), as above. It was also explained that remaining cash found was household cash of family. Thus, sufficient explanation of cash found and seized with evidences in the form of cash books were furnished before ld CIT(A). 72. Therefore, ld Counsel reiterated the submissions made before ld CIT(A) and stated that no defect or deficiency has been found in above explanation or cash books furnished. Above explanation about cash on hand of above firms lying at the residence of assessee (partner) has been given in the assessment proceeding of these firms and same has been accepted. The A.O. has not pointed out any defect or deficiency in above explanation and evidences. Same assessing officer has accepted this explanation in the case of above firms. It seems that assessing officer has accepted this explanation (cash of firms) in the Page | 46 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami case of assessee also but due to computational error made addition of Rs. 43,00,000/- as against Rs. 32,00,000/- (55,00,000 -13,00,000 - 10,00,000/-). But, there is no reason for not accepting the cash as per cash book of assessee and his wife. Thus, whole of the cash found and seized has been duly explained and cash as per cash books of above firms and family members. The assessing officer is completely wrong in mentioning that the assessee has not given any evidence in support of above explanation. Evidences, in the forms of cash books of above firms and family members have been furnished to assessing officer. No defect and deficiency have been found in the same. Therefore cash found and seized has been duly explained by assessee, hence ld Counsel prays the Bench that balance cash Rs.23,60,708/- treated by ld CIT(A) may be deleted. 73. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 74. We note that before ld CIT(A), the assessee has contended that the explanation about cash of the firms M/s Aadeshwar Enterprises (Rs. 13,00,000/-) and of M/s New supreme Developers (Rs. 10,00,000/-) lying at the residence of the assessee, has been accepted by the assessing officer, in the assessments of those firms. In support of this, the copy of explanation so furnished and assessment orders passed u/s 143(3) of the Act in the case of both these firms has been furnished. As regards the cash book of the assessee and his wife Smt. Lalita Goswami, the assessee has submitted that the opening balance in their cash books is supported by the returns of income filed by them for A.Y. 2019-20, which were filed before the date of search. The Page | 47 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami Return of income in case of assessee for A.Y. 2019-20, was filed on 31.08.2019, in which in schedule AL cash balance of Rs.6,10,570/-, is reflected. The Return of income in case of Lalita Goswami for A.Y. 2019- 20 was filed on 30.08.2019. Though, in her return, the schedule AL was not applicable but it is the contention of the assessee that the return has been filed on the basis of her books of accounts of F.Y. 2018-19, as per which she had cash balance of Rs.5,92,673/-, on 31.03.2019, which is the opening balance in cash book for the year under appeal. On the basis of these arguments, the assessee contended before ld CIT(A) that the cash books of the assessee and his spouse are genuine books of account and cash balance as on the date of search as per these cash books being Rs.6,10,570/- and Rs.5,92,673/- respectively must be considered as explained being cash found during the course of search. From copy of explanation submitted in the cases of two partnership firms, namely, M/s. Aadeshwar Enterprises and of M/s. New supreme Developers and the assessment orders passed in their cases u/s 143 (3) of the Act, the ld CIT(A) noted that it is evident that above explanation about cash of these firms, totaling to Rs.23,00,000/- (Rs. 13,00,000 + Rs.10,00,000) lying at the residence of assessee, being partner of these firms, has been accepted in the cases of these firms. Hence, there is no reason not to accept this explanation in the hands of assessee. In respect of cash balance as per cash books of assessee and his wife Smt. Lalita Goswami, the assessee has been able to prove only opening balances from the returns and books of account of last year and not the cash balance as on the date of search i.e. 06/02/2020. These cash books were not submitted at the time of search to explain the cash so found. Hence, explanation in this regard to extent of opening balance totalling to 12,03,242/- Rs.(6,10,569 + 5,92,673) can only be accepted as explained cash being Page | 48 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami evident from the return of income of last year filed before the date of search. Based on these facts, the ld CIT(A) held that out of the total cash found during the search of Rs.58,63,950/-, the cash to the tune of Rs.23,00,000/- (being cash of two firms lying at the residence of assessee) and Rs. 12,03,242/- (being opening balance as per cash book of assessee and his wife) stands explained and balance of Rs.23,60,708/- being excess cash was treated as unexplained. 75. Before us, ld Counsel contended that balance addition of Rs.23,60,708/-, sustained by ld CIT(A) may be deleted. The ld Counsel stated that all the cash seized were reflected in the respective cash books of the various firms and family members. If the addition of Rs.23,60,708/-, is sustained in the hands of the assessee, then it amounts to double addition, as the assessee had already mentioned the said amount in the books of accounts. Considering this factual position, we find some merit in the submission of ld Counsel, as the cash seized were already disclosed by the assessee in his respective Firms and family members. However, we note that assessee has submitted these evidences after search is over, therefore cannot be relied on, hence we confirm the findings of ld. CIT(A) and dismiss ground no.7 raised by the assessee. 76. In the result, ground No.7 raised by the Revenue is dismissed. 77. Now, we shall take Cross Objection, CO No.4/SRT/2023 for AY.2020-21, wherein the grounds of appeal raised by the assessee are as follows: “1. That on the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in upholding the validity of the assessment order passed by ld. assessing officer and thereby dismissing the ground of appeal No. ‘1’ of assessee, whereas the assessment order passed by ld. assessing officer is clearly invalid and bad in law as per CBDT Circular No.19 of 2019 date 14/08/2019. Page | 49 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 2. That on the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in sustaining the addition of Rs.23,60,708/- by holding the cash found during the search to above extent as unexplained, whereas the whole of the cash found during search was duly explained with supporting evidences.” 78. About ground No.1 of cross objection, the ld Counsel submitted that the learned CIT(A) has erred in upholding the validity of the assessment order passed by assessing officer and thereby dismissing the ground of appeal No. ‘1’ of assessee, whereas the assessment order passed by assessing officer is clearly invalid and bad in law as per CBDT Circular No.19 of 2019 date 14/08/2019, as the assessment order was passed without DIN. On the other hand, ld DR relied on the assessment order passed by the assessing officer and argued that assessment order was passed after generation of “document identification number” (DIN) number. We have head both the parties and gone through the findings of the ld CIT(A) and noted that there is no any infirmity in the order passed by ld CIT(A), the ld DR also submitted an evidence showing generation of “document identification number” (DIN) number, therefore we dismiss ground No.1 of CO No.4/SRT/2023 raised by the assessee. 79. In ground No.2 of cross objection, the solitary grievance of the assessee is that learned CIT(A) has erred in sustaining the addition of Rs.23,60,708/- by holding the cash found during the search to the extent Rs.23,60,708/-, as unexplained, whereas the whole of the cash found during search was duly explained with supporting evidences. We note that we have already adjudicated this issue, while adjudicating Revenue`s ground No.7, vide para 75 and 76 of this order. Therefore, ground No.2 raised by the assessee in cross objection is dismissed. Page | 50 I T(SS)A Nos. 5 & 6/SRT/2023 & Co. 3 & 4/SRT/2023 Vinod Kumar Goswami 80. In the result, ground No.2 of Cross Objection No.4/SRT/2023 raised by the assessee, is dismissed. 81. In the result, appeal filed by the Revenue [in (IT(SS)A No.5/SRT/2023] is dismissed. Appeal filed by the Revenue in [IT(SS)A No. 6/SRT/2023] is also dismissed, whereas Cross Objections filed by the Assessee [in CO No. 3] is partly allowed, and Cross Objections filed by the Assessee in [CO No.4/SRT/2023] is dismissed. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced on 24/08/2023 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 24/08/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat