SUNIL KUMAR JAISWAL,UNNAO V. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, KANPUR

ITSSA 83/LKW/2018

AI Insights

This case involves an appeal by Shri Sunil Kumar Jaiswal against the order of the CIT(A) which confirmed an addition of Rs.13,00,000 to the assessee's income for the assessment year 2011-12. The addition was initially made by the Assessing Officer based on a document seized during a search operation under section 132 of the Income Tax Act, 1961, which was believed to indicate an unexplained loan received by the assessee. The CIT(A) upheld this addition, citing legal provisions that incriminating documents found during a search are deemed to be true unless rebutted by the assessee. The ITAT found inconsistencies in the CIT(A)'s and Assessing Officer's interpretations regarding whether the amount was a loan received or advanced by the assessee, and thus remanded the matter back to the CIT(A) for further investigation.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 47035 (ITAT-LUCKNOW)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-04-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAMITA S. PANDEY
• Keywords: Set aside; Loose papers
• Section: 132; 153A; 68; 13

Judgement Text

"I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW BEFORE SHRI KUL BHARAT, VICE PRESIDENT AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.(SS)A. No.83/Lkw/2018 Assessment Year: 2011-12 Shri Sunil Kumar Jaiswal, 8/276, Opposite Gangaghat Thana, Shuklaganj, Unnao. PAN:ABBPK9365J Vs. Dy.C.I.T., Central Circle-1, Kanpur. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) This appeal has been filed by the assessee for assessment year 2011- 12 against impugned appellate order dated 22/12/2017 passed by learned Commissioner of Income Tax (Appeals) [“CIT(A)” for short]. Grounds of appeal are as under: “1. That the learned CIT(A) has erred in confirming addition of Rs.13 lac made u/s 68 of the Act on account of unexplained loan. Appellant by None (written submissions) Respondent by Smt. Namita S. Pandey, CIT (D.R.) I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 2 2. That the learned Assessing Officer has erred in making addition u/s 68 of the Act whereas no such credit entry was recorded in the books of account. 3. That the learned CIT(A) has erred confirming addition made by the Assessing Officer without any corroborative evidence in support of loose papers 6 page 31. 4. That the learned CIT(A) has erred confirming addition made by the AO without any enquiry or independent application of mind.” (B) In this case the assessment order dated 19/12/2016 was passed u/s 153A of the Income Tax Act, 1961 (“the Act” for short); whereby the assessee’s income was assessed at Rs.15,33,930/-. In the aforesaid assessment order an addition of Rs.13,00,000/- was made on the basis of a paper seized at the time of search u/s 132 of the Act in Tilak Raj Sharma Group of cases on 09/07/2014. The Assessing Officer treated the aforesaid amount as unexplained loan received by the assessee and made the aforesaid addition. Vide impugned appellate order dated 22/12/2017, the learned CIT(A) dismissed the assessee’s appeal and confirmed the aforesaid addition of Rs.13,00,000/-. Relevant portion of the order of learned CIT(A) is reproduced as under: I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 3 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 4 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 5 (B.1) As can be readily seen, the learned CIT(A) took the view that the loan was not reflected in regular books of account of the assessee. He confirmed the addition observing that it was well settled proposition in law, u/s 132(4A) and u/s 292C of the Act, that incriminating documents found during the search action was deemed to be belonging to the person, and contents of the documents were to be deemed to be true. He further observed that the assessee has not rebutted this presumption of law. (B.2) Present appeal has been filed by the assessee in Income Tax Appellate Tribunal against the aforesaid impugned appellate order dated 22/12/2017 of the learned CIT(A). In the course of appellate proceedings in Income Tax Appellate Tribunal, a paper book containing the following particulars was filed from the assessee’s side: I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 6 (B.3) Hearings in this case were fixed initially on 04/12/2018. Thereafter, from time to time several hearings were fixed in this case. Vide letter dated 29/07/2024 and 03/11/2024 of the learned Counsel for the assessee, it was intimated that the appellant assessee was considering opting for Vivad Se Viswas Scheme, 2024 (“VSVS” for short) to settle the tax litigation. Therefore, the hearings were adjourned. However, there is no material on record to suggest that the assessee indeed opted for VSVS. When the matter came up for hearing on 27/02/2025, a letter dated 25/02/2025 was filed containing written submissions, and requesting that the addition made may kindly be deleted or any appropriate order may kindly be passed in the interest of justice. The relevant portion of the aforesaid letter dated 25/02/205 is reproduced as under: I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 7 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 8 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 9 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 10 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 11 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 12 (B.5) The matter was finally heard on 01/04/2025. At the time of hearing, there was none present on behalf of the assessee. However, a letter dated 29/03/2025 was sent by the learned Counsel for the assessee requesting that the case of the appellant may kindly be decided on the basis of written submissions and paper book. In effect, the assessee and his counsel have opted not to avail of personal hearing. Further, despite the aforesaid letter dated 29/07/2024 and 03/11/2024 [referred to in foregoing paragraph (B.3) of this order], there is nothing on record to suggest that the assessee has opted for VSVS. In the absence of any oral representation from the assessee’s side, we heard learned D.R. He relied on the impugned appellate I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 13 order of the learned CIT(A) and the aforesaid assessment order passed by the Assessing Officer. (C) We have perused the materials on record. It is found that the Assessing Officer has made the addition treating the aforesaid amount of Rs.13,00,000/- as unexplained loan. However, on perusal of the impugned order of learned CIT(A), relevant portion of which has been reproduced in foregoing paragraph No.(B) of this order [attention is drawn to para 5.3 of the impugned order of the learned CIT(A) of the impugned order], it is seen that the learned CIT(A) has confirmed the addition treating the aforesaid amount of Rs.13,00,000/- as loan advanced by the assessee. It is obvious that there is lack of clarity; on going through the orders of the learned CIT(A) and the Assessing Officer; as to whether the aforesaid amount of Rs.13,00,000/- was loan received or loan advanced by the assessee. It is not prudent to give a verdict on whether the addition of aforesaid amount of Rs.13,00,000/- is to be sustained or not; when the relevant facts are not clear. This matter requires further verification and inquiry. Therefore, the issue in dispute regarding the aforesaid addition of Rs.13,00,000/- is set aside to the file of the learned CIT(A) with the direction to pass de novo order in accordance with law after conducting necessary verification and inquiry, and after providing reasonable opportunity to the assessee. (D) In the result, the appeal of the assessee is partly allowed for statistical purposes. (Order pronounced in the open court on 08/04/2025) Sd/. Sd/. (KUL BHARAT) (ANADEE NATH MISSHRA) Vice President Accountant Member Dated:08/04/2025 I.T.(SS)A. No.83/Lkw/2018 Assessment Year:2011-12 14 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. Concerned CIT 4. The CIT(A) 5. D.R. ITAT, Lucknow "