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2007 (2) TMI 658 - ITAT JABALPURIncome from undisclosed sources - Search and seizure Operation - addition was based on a loose paper No. 7 - dumb document - whether presumption lying under Section 132(4A) can be raised against the assessee - non-speaking order - Notice issued u/s 143(2) - Re-opening of the assessment u/s 148 - HELD THAT:- We notice that the AO could not establish that the assessee has charged any interest, if at all the impugned; figures were advances. There is no material to show that the AO has taxed these advances as wealth of the assessee. There is also no material to show that the assessee has taken any action to recover the money from the alleged debtors. It is not believable that the assessee or his legal heir would forget their money lying with the debtors. By one way or other, he or his legal heir would try to recover the money. The department has not done anything to find out that after the search in April, 1995. We are also unable to satisfy ourselves as to why the alleged transactions are considered in the assessment year 1989-90 when there is no date mentioned on the document. Once search took place in April, 1995, then undated paper could be presumed to be belonging to that period and hence the year of taxability would be assessment year 1996-97. Thus, it is merely by surmises that the AO has taxed it in the year 1989-90. Thus, a document found during the course of search must be a speaking one and without any second interpretation, must reflect all the details about the transaction of the assessee in the relevant assessment year. Any gap in various components as mentioned in Section 4 of the I.T. Act must be filled up by the AO through investigations and correlations with other material found either during the No. 7 course of the search or on investigation. As a result, we hold that document No. 7 is a non-speaking document. Since the facts of the present case are similar to the case of Sri Kantilal & Bros., we are of the view that no addition u/s 68 of the Act can be made on the basis of loose sheet being document No. 7 found during the course of the search. Presumption lying u/s 132(4A) - In our considered view, such presumption is available to the proceedings u/s 132(5). In Section 278D, a separate presumption has been provided for invoking in prosecution proceedings. As no such presumption is provided in assessment proceedings, we infer that where the Legislature intended to provide such presumption it has been so provided in various Chapters. In Chapter relating to search and seizure that presumption about books of account and documents is provided but it is limited to the summary proceedings about retention or release of the assets u/s 132(5). This cannot be extended to assessment proceedings. Our view is supported by the decision of the Hon'ble Supreme Court in P.R. Metrani v. CIT [2006 (11) TMI 136 - SUPREME COURT]. Thus, the case of the Revenue is not assisted by Section 132(4A) in any way. Even otherwise our considered view is that such presumption can only be raised when document is speaking one and it reflects complete transactions without two interpretations. As a result, we hold that the impugned document No. 7 is a dumb document and no addition an be made on that basis. Therefore, we confirm the order of the Ld. CIT (A) and dismiss the appeal filed by the revenue. Re-opening of the assessment u/s 148 and addition on the basis of a seized loose paper No. 9 - We find that there is a direct nexus of the material available with the AO with the formation of the belief. Once it is done, in our considered view the reopening is justified. As a result, we reject the contention of the ld. A.R. in this regard. We uphold the order of ld. CIT (A) wherein he has confirmed the re-opening of the assessment. This ground of the assessee is, therefore, rejected. It also does not show that the assessee has, in fact, advanced Rs. 20,000 or for that matter Rs. 5,30,000 on various dates. Thus, on the basis of same reasoning as we have given in respect of document No. 7 in revenue's appeal, we hold that the document No. 9 also is non-speaking so far as entry of Rs. 20,000 or for that matter entry of Rs. 5,30,000 being the total of various entries are concerned. It is not established by the AO that they are monies advanced. It is also not established that they are not recorded in the regular books of accounts. It is also not established that they relate to the assessee. As held in Revenue's appeal, presumption u/s 132(4A) cannot be raised in assessment proceedings. Thus, following our own reasoning in Revenue's appeal, the addition sustained by the Ld. CIT (A), in our view, is incorrect and the same is, therefore, deleted. Unexplained investment - search and seizure operations - found loose paper - HELD THAT:- The nature of transaction is clear that they are purchases. The date is available i.e. 27.6.1992 and finally the quantum of expenditure is also clear i.e. Rs. 1,31,736. Thus, there is no room for any doubt and therefore, we are of the considered view that lower authorities were justified in treating this amount as expenditure/investment and as no explanation was forthcoming, it was rightly treated as unexplained investment. It was for the assessee to submit cogent material so as to show that inference drawn by the AO was incorrect. It was for him to bring evidence from the concerned party that it is not a purchase but only a quotation. Since no such material was produced by the assessee, the onus shifted back to the assessee, remained undischarged. As a result, we confirm this addition. This ground of the assessee, therefore, fails. Notice issued u/s 143(2) - assessment completed u/s 143(3) - We are of the view that there is no merit in the argument of the Ld. A.R. It is because there has been amendment in Section 148 wherein issuance of notice u/s 143(2) after expiry of 12 months is no longer required and in absence of issuance of such notice within 12 months, the assessment will not be declared invalid. This amendment was introduced by the Finance Act, 2006 with retrospective effect from 1.10.1991. Even otherwise, our view that assessment cannot be annulled merely because notice u/s 143(2) was issued beyond 12 months in re-assessment proceedings initiated under Section 148(1) finds support from the decision of I.T.A.T. Amritsar Bench in the case of Sharma and Co. v. ACIT, [2004 (6) TMI 242 - ITAT AMRITSAR]. After the amendment by Finance Act, 2006, the view was explicitly made clear that time limit for issuance of notice u/s 143(2) will not apply in re-assessment proceedings. Therefore, this additional ground taken by the assessee has no force and hence fails. As a result, this ground of the assessee is dismissed. As a result, the appeal filed by the assessee is partly allowed.
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