The ACIT, Central Circle-2(3), Ahmedabad V. Bharatkumar Rasiklal Shah, Mehsana

ITSSA 59/AHD/2021

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6309 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-06-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-06-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 30-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Loose papers; Onus to prove; Set aside
• Section: 69C; 143(3); 133A; 153A; 69A

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ “B”, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद । ।। । IN THE INCOME TAX APPELLATE TRIBUNAL “ B ” BENCH, AHMEDABAD ] ] BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI MAKARAND V. MAHADEOKAR, ACCOUNTNAT MEMBER 1. IT(ss)A No.59/Ahd/2021 2. IT(ss)A No.60/Ahd/2021 Assessment Year : 2015-16 1. The ACIT Central Circle-2(3) Ahmedabad 2. Bharatkumar Rasiklal Shah, Mehsana-384 002 (Address same above) Vs 1. Bharatkumar Rasiklal Shah 41, Krishna Society Outside Gopi Nala Jail Road, Mehsana – 384 002 2. The ACIT Central Circle-2(3) Ahmedabad PAN: ADIPS 1398 C / (Appellants) ..... / (Respondents Assessee by : Shri K.C. Thaker, AR Revenue by : Shri Sudhendu Das, CIT-DR /Date of Hearing : 11 /06/2024 /Date of Pronouncement: 26/06/2024 आदेश/O R D E R PER SHRI MAKARAND V. MAHADEOKAR, AM: These two appeals are filed by both the Assessee and the Revenue against the order dated 31-3-2021 passed by the Ld.Commissioner of Income Tax (Appeals)-12, Ahmedabad [hereinafter referred to as “the Ld.CIT(A)”] arising out of an order of the Assessing Officer (hereinafter referred to as “the AO”) passed under Section 143(3) read with Section 153A of the IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 2 Income Tax Act, 1961 (hereinafter referred to as "the Act"), for the Assessment Year Assessment Year (AY) 2015-16. Facts of the Case: 2. The Assessee filed the original return of income on 31-03-2016 declaring a total income of Rs.12,07,420/-. Subsequently, a search and survey action under section 132/133A of the Act was conducted on 15-02- 2017 at the premises of Rameshbhai Chaturbhai Prajapati & Others Group, in which the Assessee was also covered. The search action triggered the provisions of Section 153A of the Act, and accordingly, a notice under section 153A of the Act was issued on 09-04-2018 to the Assessee. The Assessee filed the return of income on 30-09-2019 in response to the said notice under Section 153A of the Act, declaring a total income of Rs.15,07,420/-. The assessment order was passed under section 143(3) read with Section 153A of the Act on 28-12-2019, determining a total income of Rs.2,06,54,920/-, after making various additions. 3. The Assessee preferred an appeal before the Ld.CIT(A) against the order of AO, who partly allowed the appeal of the Assessee. 4. Aggrieved by the order of the Ld.CIT(A), both the Assessee and the Revenue are in appeal(s) before us, with respective grounds of appeal are as under:- IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 3 (A) Assessee’s Grounds of Appeal: “1. The learned CIT(A) has erred in law and on facts in upholding disallowance of Rs.10,00,000/- being the claim towards booking cancellation and partial confirming of disallowance of Rs.4,69,500/- out of claim of site expenses. 2. The learned CIT(A) ought to have deleted the disallowance of Rs.10,00,000/- and the partially confirmed disallowance of Rs.4,69,500/-. 3. It is therefore prayed that the disallowances of Rs.10,00,000/- and Rs.4,69,500/- may be deleted.” (B) Revenue’s Grounds of Appeal: “1. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.5,00,000/- out of total addition of Rs.19,69,500/- made by the AO treating the same is unexplained expenditure u/s. 69C of the Act. 2. On the facts and in the circumstances of the case and in law, the Id.CIT(A) has erred in law and facts in deleting the addition of Rs.21,29,917/- made by the A0 u/s. 69 of the Act. 3. On the facts and in the circumstances of the case and in law, the Id.CIT(A) has erred in law and on facts in deleting the addition of Rs.64,00,000/- made by the AO treating the same as unexplained income of the assessee. 4. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in Law and facts in deleting the addition of Rs.85,70,083/ - made by the A0 u/s. 69 of the Act. 5. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) ought to have upheld the order of the A.O. 6. It is, therefore, prayed that the order of the La. CIT(A) be set aside and that of the A.O. be restored to the above extent.” On Ground Nos. 1 to 3 of Assessee’s appeal and Ground No. 1 of Revenue’s appeal: IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 4 5. These grounds of appeal(s) relate to the addition of Rs.19,69,500/- that comprises Rs.10,00,000/- towards booking cancellation and Rs.9,69,500/- towards site expenses. The Ld.Counsel for the assessee explained that – - During the course of assessment proceedings, the assessee was asked to explain the details of Rs.41,00,000/- written on a chit whose image was found during the course of survey. - This amount was relating to a scheme called “Anmol Sahara-2” and it is a booking amount received in cash and the same has been considered in the cash flow statement prepared for disclosure working. - The cash transactions were handled by the assessee, the amount was considered in his working: - Rs.15,00,000/- was relating to the F.Y. 2014-15. - The assessee had refunded Rs.10,00,000/- due to cancellation of booking and incurred Rs.9,69,500/- was expensed in cash. This was included in the cash book prepared for submission. - The AO disallowed this cash outflow and added the same u/s 69C of the Act. - The Ld.CIT(A) in his order gave relief of Rs.5,00,000/-on ad-hoc basis relating to expenditure of the project. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 5 5.1. The Ld.Counsel for the assessee contented that, when all the receipts as per cash books are considered for addition expenses and refund should also be considered and Ld.CIT(A) has granted relief purely on ad-hoc basis without any logic. The Ld.Departmental Representative (DR) relied on the order of AO. 6. We have heard the contentions of both the parties and perused the material available on records. The assessee has not provided documentary evidence for the refund of Rs.10,00,000/- due to booking cancellation or the site expenses of Rs.9,69,500/-. The only basis for the claimed expenses is the assessee's declaration during the assessment process. 6.1. Section 69C of the Act allows for the addition of unexplained expenditures, if the assessee fails to provide satisfactory explanations. The language of Section 69C of the Act stipulates two conditions necessary for deeming the expenditure incurred by the assessee to be his income for the said year, (i) where no explanation is offered; and (ii) where the explanation offered is not found to be satisfactory. At the same time, the use of the word “may” in the aforesaid provision makes the deeming provision discretionary and not mandatory. In other words, even if no explanation is offered or it is found to be unsatisfactory, it is not mandatory to treat such unexplained expenditure to be the income of the assessee. 6.2. As held by the Hon’ble Apex Court in the case of Sumati Dayal v. CIT [(1995) 214 ITR 801 (SC)], the principle of preponderance of probabilities can be applied in such cases, where direct evidence is not IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 6 available, and the circumstances surrounding the transaction are taken into account. This principle suggests that a fact is considered proven, if it is more likely than not to be true. 6.3. In the present case, the assessee submitted that such amounts relating to refund of booking amounting to Rs.10,00,000/- and construction/site expenses of Rs.9,69,500/- in Financial Year (FY) 2014-15 were necessary to be accounted for in the cash flow statement as it has actually reduced cash in hand. Assessee also stated that refund of booking amount of Rs.47,50,000/- was considered by the AO in subsequent financial year, i.e. 2015-16 and reduced the same from the addition. 6.4. After considering the overall circumstances and patterns surrounding the assessee's claim, we are of the opinion that the AO was not justified in adding the total amount of Rs.19,69,500/- u/s.69C of the Act. When the AO accepts the refund of one plot and does not accept the refund of other two plots, he neglects the preponderance of probabilities. The cash balance in hand as presented by the assessee in the cash flow statement arrived after considering the refund and expenses and thus needs to be considered. While making additions based on seized documents, it is necessary to consider the complete picture, including both income and expenses. The Ld.CIT(A)'s ad-hoc relief of Rs.5,00,000/- appears to lack a solid rationale and does not provide a clear basis for partially accepting the assessee's claim. An addition of Rs.19,69,500/- made by AO u/s 69C of the Act is hereby deleted. Therefore, we allow the Ground Nos.1 to 3 of assessee’s appeal and dismiss the Ground No.1 of Revenue’s appeal. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 7 Ground 2 of the Revenue: 7. The second ground of appeal concerns the addition of Rs.21,29,917/-. This addition was made by AO based on the digital image retrieved from the laptop of Shri Atul Mansukhlal Mehta, an Accountant of the assessee during the survey proceedings u/s.133A of the Act at the office premises of Apna Associates. The AO concluded that this total amount of Rs.21,29,917/- is a loan given to various parties and added to the income of assessee u/s 69 of the Act. 8. During the course of hearing before us, the Ld.Counsel for the assessee took us through the order of Ld.CIT(A) and relied on the order of Ld.CIT(A) in respect of this addition. For the sake of clarity, we reproduce hereunder the relevant para of the order of the Ld.CIT(A). “7.1 Appellant has submitted in the appellate proceedings that the AO has taken the view that these jottings reflect appellant's investment by way of loans, whereas this is calculation of receipts towards booking of plot on installment basis. As per appellant's submission before the AO (page 11 of the order) the appellant has taken into account the entire receipt of Rs.37,74,440/- appearing at the last stage of November, 2015, in the cash-flow statement prepared for working out the additional income declared in the returns filed u/s. 153A of the Act. The appellant submitted that the actual receipt during the F. Y. 2014-15 was Rs.3,00,000 / - which is given effect in A. Y. 2015-16 i.e. year under appeal, and the balance of Rs.34,74,440 / - is considered in the subsequent A. Y. 2016- 17. After going through the record, I find force in the appellant's submission that the AO has not appreciated the facts properly and treating the amounts noted as investment by way of loan lacks logic. Actual receipt of Rs.3,00,000/-during the year has been duly considered in the A. Y. 2015-16 and the remaining amount of Rs.34,74,440/- appearing at the stage of November, 2015, has been considered for declaring additional income u/s. 153A of the Act in the in the A. Y. 2016-17. Since the document does not show any receipt other than Rs.3,00,000/- in A. Y. 2015-16 and the said amount has already been disclosed, addition of Rs.3,00,000/- made by the IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 8 AO amounts to the same amount being added twice. As regards the addition of Rs. 18,29,917/ - being the amount appearing as receivable but not actually received, the said amount forms part of the amount of Rs.34,74,440/- which is considered in disclosure u/s. 153A of the Act in A. Y. 2016-17 and has been assessed as such in that year.” 9. We also noted that Ld.CIT(A) has dealt with the provision relating to addition u/s.153A of the Act on the basis of impounded material during the survey proceedings u/s.133A of the Act. Considering the factual and legal position, the Ld.CIT(A) deleted the addition of Rs.21,29,917/- u/s.69 of the Act. The Ld.DR relied on the order of AO. 9.1. Upon careful examination of the facts and submissions presented, we find that the assessee has contended during the appellate proceedings that the Assessing Officer (AO) misconstrued the jottings as indicative of the assessee’s investment by way of loans, whereas these jottings were, in fact, calculations of receipts towards the booking of plots on an installment basis. Specifically, the assessee has pointed out (referencing page 11 of the AO's order) that the entire receipt of Rs.37,74,440/- noted at the last stage in November-2015 was accounted for in the cash-flow statement used to calculate the additional income declared in the returns filed under Section 153A of the Income Tax Act, 1961. 9.2. The assessee received Rs. 3,00,000/- during the FY 2014-15, which has been duly recorded in the assessment year (AY)2015-16. The remaining amount of Rs.34,74,440/- was considered in the subsequent AY 2016-17. This division of receipts aligns with the assessee’s submission. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 9 9.3. The AO’s conclusion that the amounts noted in the jottings were investments by way of loans lacks a logical basis. The actual receipt of Rs.3,00,000/- during AY 2015-16 has already been disclosed by the assessee, and the remaining amount of Rs.34,74,440/-, appearing in November-2015, has been considered for additional income declaration under section 153A of the Act in AY 2016-17. Therefore, adding the Rs.3,00,000/- again for AY 2015-16 results in double addition, which is not justified. 9.4. The amount of Rs.18,29,917/-, which appears as receivable but not actually received, is part of the Rs.34,74,440/- considered in the additional income disclosure under section 153A of the Act in AY 2016-17. As this amount has been appropriately assessed in AY 2016-17, its addition in AY 2015-16 would lead to unjustified duplication. 9.5. The Ld.CIT(A) thoroughly examined the provisions relating to additions under section 153A of the Act, particularly in the context of material impounded during the survey proceedings under section 133A of the Act. The Ld.CIT(A), after considering the factual and legal position, deleted the addition of Rs.21,29,917/- made under section 69 of the Act. The Ld.DR relied on the AO's order without providing substantial evidence to counter the Ld.CIT(A)'s findings. 9.6. Based on the detailed analysis of the records and submissions, we find merit in the assessee's arguments. The AO's approach of treating the amounts noted as investments by way of loans is flawed. The actual receipt of Rs.3,00,000/- during AY 2015-16 has been duly accounted for, and the IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 10 remaining amount of Rs.34,74,440/- has been correctly considered in AY 2016-17. Consequently, the addition of Rs.3,00,000/- made by the AO for AY 2015-16 amounts to duplication and is not warranted. Additionally, the amount of Rs.18,29,917/- forms part of the disclosure under section 153A of the Act for AY 2016-17 and should not be added again in AY 2015-16. Therefore, the order of the Ld.CIT(A) deleting the addition of Rs.21,29,917/- under section 69 of the Act is upheld. Thus, Ground No. 2 of Revenue’s appeal is dismissed. Ground No.3 of the Revenue: 10. The third ground of the Revenue pertains to the addition of Rs.64,00,000/- made by AO u/s 69A of the Act, which was deleted by Ld.CIT(A). This addition was based on a digital image found from the laptop of the Shri Atul Mansukhlal Mehta, assessee’s Accountant. The image as per AO is a loose-paper noting which reflects the investment in purchase of land at Shankheshwar Village, for which final sale deed has also been executed. The AO noted that the names of Pintu and Maheshkaka are mentioned on this paper and that Pintu's real name is Parag Babulal Doshi, and Maheshkaka is assessee's younger brother and that both of them are related to the assessee. The noting gave dates of investment falling within the Financial Year 2014-15 of Rs.40,00,000/- and Rs.24,00,000/- in the preceding year 2013-14. 10.1 The Assessee was asked to explain as to why the transaction should not be considered for the purpose of tax in the hands of the assessee. The Assessee denied the transaction and stated that neither he nor any of his IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 11 family members have made any investment or sold any property/land at Shankheshwar. Assessee also requested the AO to verify the record of the Sub-Registrar of properties at Sami to ascertain the facts. It was also submitted that the document is a dumb document as it doesn't give particulars of property like survey number, block number, location, nature and mode of payment etc. The AO however added Rs.64,00,000/- u/s 69A of the act as the assessee failed to give satisfactory explanation. 10.2. The Ld.CIT(A) deleted this addition. The relevant paras from Ld. CIT(A)’s order is reproduced hereunder: “8.1 I have gone through the assessment order and have carefully considered the appellant's submissions in the appellate proceedings. I find that the loose paper does not mention the name of the appellant or his family members. Appellant has also categorically denied having made any such transaction and has even asked the AO to verify this fact from the record of the Sub-Registrar of properties at Sami. While the AO has asserted that the sale deed has been executed, he has not brought documentary evidence on record to show that the appellant was involved in the transaction. The AO has not brought on record independent corroborative evidence particularly because the appellant had denied the transaction, and the noting did not show his name. In this regard the appellant has also relied upon the decision of Hon'ble ITAT, Ahmedabad Bench, in the case of Nishant Construction- (2017) 49 CCH 0100 Ahd Trib referring to the Hon'ble Supreme Court judgment in the case of Common Cause & Others v. Union of India in (2017) 98 CCH 0028 ISCC. 8.2 As discussed in the preceding paras of this order that no addition in the assessment completed u/s.153A of IT Act could be made for the impounded material during the course of survey u/s.133A of IT Act as has been held by Hon'ble Courts. Thus legally on the basis of the impounded pages the addition made by the AO is not tenable. 8.3 The AO is not correct in holding that the onus was upon the appellant to explain that the noting on the digital image did not relate to him as burden to prove the negative cannot be thrown upon the appellant. On this issue appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of K. P. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 12 Varghese reported in 131 ITR 0597. I also find force in the submission that the AO has not invoked any particular provision of the Act to add the amount of Rs.64,00,000/- as unexplained income. If it is unexplained investment, the fact of actual investment is not established. If it is assumed to be receipt of sale, the AO has not shown which land in the ownership of appellant is sold and what about working of the cost and gain. I therefore agree with the appellant's submission that the addition is made on the basis of dumb document, surmises and conjectures. The addition of Rs.64,00,000/ - is therefore not sustainable and is deleted.” 10.3. Upon careful consideration of the facts, the submissions by the assessee, the observations of the AO, and the detailed order of the Ld.CIT(A), we concur with the findings of the Ld.CIT(A) for the following reasons: - The document in question does not directly implicate the assessee or his family members, and no independent corroborative evidence has been presented by the AO to substantiate the claim of unexplained investment. - The AO did not follow up on the assessee's request to verify records with the Sub-Registrar of properties at Sami, which could have provided critical verification. - The AO improperly shifted the burden of proof to the assessee, contrary to established legal principles, as highlighted in the judgments cited by the Ld.CIT(A). - The document is deemed a "dumb document" due to its lack of detailed information about the property and transaction specifics, making it an insufficient basis for addition under section 69A of the Act. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 13 - As reinforced by the referenced judgments, including K. P. Varghese and Common Cause, the addition based on such insubstantial evidence is not tenable. 10.4. Based on the aforementioned findings, we uphold the decision of the Ld.CIT(A) to delete the addition of Rs. 64,00,000/- made by the AO under section 69A of the Income Tax Act, 1961. Therefore, Ground No.3 of Revenue’s appeal is dismissed. Ground No. 4 of the Revenue: 11. The fourth ground of appeal is in respect of the addition of Rs.85,70,083/- based on digital images retrieved from the laptop of the Assessee’s accountant. The addition is again based on the digital images retrieved from the laptop of Shri Atul Mansukhlal Mehta, who is the Accountant of the assessee. The digital images reflect certain calculations appearing on loose-sheets of paper incorporated on page numbers 15 to 17 of the order. The AO mentioned that the loose paper noting reflects the investment in purchase of shops nos. 1 to 6 and 18 to 33 in the Swagat Enclave scheme developed by Radhe Developers. The AO asked assessee to explain why addition of Rs.20,00,000/- should not be made u/s. 69 of the Act on the basis of these papers. The Assessee submitted that he has not made any such investment and produced letter of confirmation of the developer, Radhe developers confirming that the assessee has not purchased any property and also produced the list of shops sold till 05-11-2019. Thereafter, the AO again called for explanation as to why IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 14 addition of Rs.1,71,00,000/- should not be made u/s.69 of the Act and proceeded to make the addition of Rs.85,70,083/- disregarding the appellant's submissions reiterating the previous reply. 11. The Ld.CIT(A) deleted the addition by recording following observations: “9.1 I have gone through the assessment order and have carefully considered the appellant's submissions in the appellate proceedings. I find that the loose papers do not mention the name of the appellant or his family members. Appellant has also categorically denied having made purchase of shops in Swagat Enclave developed by Radhe Developers and produced confirmation of the said Developer to the effect that the appellant has not purchased the shops as alleged. Radhe Developers produced the list of all shops sold till 05-11-2019 to show names of purchasers. Appellant also disputed the AO's demand to prove that the transactions did not relate to him, being against the settled law on the subject (131 ITR 0597). Appellant, considering that the AO was sure to make the addition of Rs. 1,71,00,000/-,as a precautionary measure took the alternative plea to reduce the addition and the resultant demand requested that the other two proposed additions of Rs.21,29,917/- and Rs.64,00,000/-should be telescoped against the proposed addition of Rs. 1,71,00,000/-. The AO has proceeded to make the addition of Rs.85,70,083/- allowing the alternative plea of the appellant. 9.2 I find that the appellant in his submissions has dealt with in detail the AO's reasoning for the addition. I find force in the appellant's main contentions disputing the addition as mentioned below. That the AO has not brought on record independent corroborative evidence particularly because the appellant had denied the transaction and the nowhere it show his name. In this regard, the assessee relied upon the decision of Hon'ble ITAT, Ahmedabad Bench, in the case of Nishant Construction- (2017) 49 CCH 0100 Ahd Trib referring to the Hon'ble Supreme Court judgment in the case of Common Cause & Others v. Union of India in (2017) 98 CCH 0028 ISCC, whereby it has been held as under: 30. In our understanding of the facts, the impounded loose sheet can at the most be termed as "dumb document" which did not contain full details about the dates, and IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 15 its contents were not corroborated by any material and could not relied upon and made the basis of addition." The Hon'ble Supreme Court in the case of Ramji Dayawala & Sons Pvt. Ltd. Vs. Invest Import AIR 1981 Supreme Court 2085 ha observed that the truth of the facts stated in the document had to be proved by admissible evidence and not by mere handwriting Further Hon'ble Allahabad High Court in the case of CIT Vs. Shri Yogendra Singh in ITA No. 12 of 2014 dated 17.02.2017 has observed that mere drawing of presumption u/s.292C does not mean that every document will result in some addition. For that purpose one has to mention as to the nature of document, nature and year of transaction, quantum as to how it should be treated, whether it is an investment, expenditure, income or earning, and unless all these things are clear, no addition can be made. The Tribunal has rightly stated those documents as 'dumb document', which obviously will result in automatic denial of addition. 9.3 Where a document is silent as to the payer and payee of the amount in question nor does it disclose that the payment was made by cheque or cash nor it is proved that the document is in the handwriting of assessee or at least bears his signatures, no addition can be made on the basis of such document. 9.4 That the AO is not correct in holding that the onus was upon the appellant to explain that the noting on the digital image did not relate to him as burden to prove the negative cannot be thrown upon the appellant. On this issue appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of K. P. Varghese reported in 131 ITR 0597. 9.5 That the Radhe Developer's confirmation and the list of shops sold has been disregarded without assigning any reasons whatsoever. 9.6 As discussed in the preceding paras of this order that no addition in the assessment completed u/s.153A of IT Act could be made for the impounded material during the course of survey u/s.133A of IT Act as has been held by Hon'ble Courts. Thus, legally on the basis of the impounded pages the addition made by the AO is not tenable. 9.7 The appellant has also submitted in the appellate proceedings that the alternative plea for restricting the addition by adjusting the other two additions was taken only for the purpose getting reduction in assessed income and resultant demand, and that he emphatically objects to the addition of Rs.85,70,083/- being unjustified on facts and in law as explained in detail. After considering the totality of the facts and circumstances of the case as explained by the appellant in his IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 16 detailed written submissions, I am of the considered opinion that there is no case made out for addition of Rs.85,70,083/-. Therefore, the addition of Rs.85,70,083/- is not sustainable and hence the same is deleted. The ground of appeal is allowed.” 12. The Ld.DR on the other hand relied on the order of AO. 13. After carefully considering the facts and circumstances of the case, along with the Ld.CIT(A)'s detailed observations and the assessee’s submissions, we conclude as follows: 13.1. The addition of Rs.85,70,083/- was primarily based on loose-sheets retrieved from the laptop of the assessee’s Accountant. These loose-sheets did not contain the assessee’s name or any direct link to the assessee. 13.2. The assessee provided credible evidence, including a confirmation letter from Radhe Developers and a list of shops sold, to substantiate that no such investment was made. 13.3. The AO did not provide independent corroborative evidence to support the addition, nor did he adequately address the assessee’s submissions. The legal principles established by various judicial pronouncements, including those from the Hon'ble Supreme Court and High Courts, support the assessee’s position that additions cannot be made based on uncorroborated loose sheets or presumptive evidence. 13.4. In light of the above, we uphold the Ld.CIT(A)'s decision to delete the addition of Rs.85,70,083/-. As a result, the Ground No. 4 of the Revenue’s appeal is dismissed. IT(ss)A Nos.59 & 60/Ahd/2021 The ACIT vs. Bharatkumar Rasiklal Shah & Bharatkumar Rasiklal Shah vs. The ACIT (respectively) Asst. Year : 2015-16 17 14. In the combined result, Assessee’s appeal is allowed, whereas Revenue’s appeal is dismissed. Order pronounced in the Open Court on 26 June, 2024 at Ahmedabad. Sd/- Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER (MAKARAND V.MAHADEOKAR) ACCOUNTANT MEMBER Ahmedabad, Dated 26/06/2024 . ी. य , . . ./T.C. NAIR, Sr. PS ! "# /Copy of the Order forwarded to : 1. "!ी $% / The Appellant 2. &य$% / The Respondent. 3. '(')* य य + / Concerned CIT 4. य य + )"!ी (/ The CIT(A)-12, Ahmedabad 5. . /ीय )* , य "!ी य ")* , ज /DR,ITAT, Ahmedabad, 6. / 12 3 /Guard file. / BY ORDER, &य ! //True Copy// ह य !'जी (Asstt. Registrar) य "!ी य ")* , ITAT, Ahmedabad 1. Date of dictation (word processed by Hon’ble AM in his laptop) : 14.6.2024 2. Date on which the typed draft is placed before the Dictating Member. : 14.6.2024 3. Date on which the approved draft comes to the Sr.P.S./P.S : 4. Date on which the fair order is placed before the Dictating Member for pronouncement. : 5. Date on which fair order placed before Other Member : 6. Date on which the fair order comes back to the Sr.P.S./P.S. : 26.6.24 7. Date on which the file goes to the Bench Clerk. : 26.6.24 8. Date on which the file goes to the Head Clerk. : 9. The date on which the file goes to the Assistant Registrar for signature on the order. : 10. Date of Despatch of the Order :