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2010 (3) TMI 939 - ITAT PATNABlock Assessment u/s 158BD - Addition u/s 68 - Unexplained loan and advances - seized diary identified as KPS-53 u/s 132 - levy of surcharge - HELD THAT:- If facts of the assessee's case before us, it will be revealed that the documents found and seized and relied upon for making the addition under appeal by the Revenue have neither date nor the name of the assessee and therefore, it cannot be assumed or presumed as to when and by whom the nothings were recorded. It is also not known as to in what connection the nothings even if considered as giving and taking of money were made; meaning thereby that these documents being dumb documents, no addition can be made on the basis of assuming or presuming the nothings in those documents relating to any other transaction nor recorded in the documents. In a nutshell, any infirmity in the order of the CIT(A) on this point (sic) and therefore, following the law laid down in various decisions relied upon by the assessee in its synopsis, we uphold the order of the CIT(A) on this point. The Revenue's ground is rejected. Levy of surcharge - We, after hearing the parties, restore this issue to the file of the CIT(A) with a direction that the same may be reconsidered in the light of the decision of the hon'ble Supreme Court in the case of CIT v. Rajiv Bhatara[2009 (2) TMI 12 - SUPREME COURT]. In the result, the Revenue's appeal is partly allowed for statistical purposes. Addition on Seized material bearing identification mark KPS-55 - Assessing Officer had proposed to Initiate action for making assessment u/s 158BD in the case of seven parties - HELD THAT:- We are of the opinion that the Assessing Officer having taken a conscious decision as required under the provisions of section 158BD of the Act for initiating proceedings in the case of Baldev Singh and others on the basis of various documents seized the issue relating to interpretation of document under reference and consequential effect can be decided only after the decision in the case of Baldev Singh and since the Revenue has not brought any information on record as to what happened in the case of Baldev Singh, we, in the interest of justice, are of the opinion that the addition on the basis of that very document, which has to be considered in the hands of Shri Baldev Singh, cannot be sustained in the assessee's case. Consequently to meet the ends of substantial justice, we set aside this addition and restore the issue back to the file of the Assessing Officer with the directions that question of computing any undisclosed income on the basis of document placed at Revenue's paper book (supra) may be decided afresh in accordance with law after considering the action having been taken in the case of Baldev Singh and allowing the assessee a proper opportunity of being heard. Since the assessee has not raised any other issue, the assessee's appeal is allowed for statistical purposes.
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