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2019 (6) TMI 1443 - ITAT AHMEDABADSurvey u/s 133A - addition allegedly based on computer printout - Onus to prove - HELD THAT:- We observe that Section 102 of the Evidence Act provides that the burden of proof lies on that party would fail, if no evidence at all were given on either side. Thus, if an assessee claimed that money or bullion found in his possession at the time of search or survey does not belong to him but someone else, the onus is on him to establish it, because the ordinary presumption is that he is the owner as the money etc. was found in his possession. Similarly, in all cases where a particular receipts is sought be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where there is statutory rebuttable presumption against the assessee, as in the case of cash credit etc. under section 68 or unexplained investment under section 69, the initial burden of proof is on the assessee to show that the how cash credit is genuine or the investment is not unexplained. Assessee has failed to discharged the burden of proof and rebut the presumption of section 292C of the Act. In the light of above facts and circumstances, we note that the assessee has been provided sufficient opportunities keeping in view of the principle of natural justice by the Ld. CIT(A) as well as the AO, but he was not able to furnish any explanation or document in support of his contention. In view of this matter, we have no reason to deviate from the findings recorded by the lower authorities in applying 8% of Gross Profit of total cash receipts reflected in computer printouts. Accordingly, Ground No. (I) of the appeal of the assessee is therefore, dismissed. Addition on account of alleged loan - HELD THAT:- The impounded material BF-2 page 51 was found from the premises of the assessee being computer printout indicating that loan of ₹ 1 lakh each was given the 4 persons namely Premjibhai, Lavjibhai, Rameshbhai and Pareshbhai indicating a loan agreement and clearly mentioning that the principal amount with monthly interest and yearly interest from each individuals. Therefore, unless otherwise proved, it will be presumed that such books of accounts etc., belongs to such person and its contents are true as per provisions of section 292C. Since the incriminating documents was recovered from the premises of the assessee, therefore, we find no reason to draw adverse inference in the finding recorded by the lower authorities, accordingly same is confirmed. However, the addition on the basis of seized material is worked out to ₹ 4, 72,000 [being loan amount of ₹ 4 lakhs and interest of ₹ 72,000/-]. Therefore, addition of ₹ 4,72,000 is confirmed and balance addition of ₹ 1, 00, 000 is deleted. However, since the assessee has claimed that telescoping should be allowed with respect to addition sustained in Ground No.1 above ₹ 86.44 lakhs. The assessee is entitled to telescoping of ₹ 4 lakhs. Therefore, same is allowed out of ₹ 86.44 lakhs. Therefore, addition of ₹ 4 lakhs sustained is covered by telescoping and balance addition of ₹ 72,000/- is upheld. Accordingly, this ground of appeal of the assessee is partly allowed. Addition on account of alleged booking receipts and unaccounted income - assessee failed to explain the loose paper notings - HELD THAT:- CIT(A) has analyzed all the entries appearing in the impounded material and also have obtained the remand report from the AO. Therefore, since the factual aspects has been examined by the ld.CIT(A), hence we do not find any infirmity in the order of ld.CIT(A), accordingly restriction the addition of unaccounted income of ₹ 34,82,000/-, 1,42,60,000/- and ₹ 5,43,49,000/- to ₹ 1,34,86,000/- is correctly found to be correct. In view of this matter, we do not find any infirmity in the order of ld.CIT(A), accordingly Ground No.5 of the Revenue appeal is therefore dismissed. With regard to claim of benefit of telescoping out of remaining addition of ₹ 74,66,000/-. We are of the view that the same is required to be co-related with the amount of received from the prospective buyers at the time of booking. This aspect has not been examined by the lower authorities. Accordingly, set-aside for limited purpose to the file of the Assessing Officer, for examination if there is any co-relation between income of ₹ 74.66 lakhs generated and said amount was available for set-off against the amount paid. The Assessing Officer will examine the claim of cash flow fund out of which, how much amount can be telescoped by way of these payments. Therefore, this ground is set-aside for limited verification Enhancement of income by the ld. CIT(A) - HELD THAT:- In absence of any evidence on record to substantiate the claim made by the assessee, we are not inclined to agree with his version. We also note that claim of the assessee that a sum of ₹ 10 Lakh received as part of sale consideration of ₹ 1.90 crores from Shradda Developer was available is also not found acceptable, as the property sold in question was belonging to the assessee and not of Smt. Rasilaben from whom the receipts has been claimed by the assessee. Therefore, same cannot be set-off against the receipts from Rasilaben. Moreover, no such claim was emanating from the findings of CIT(A). In view of these facts and circumstances, we find that the action of the ld. CIT(A) in making enhancement of the income as just and proper. Considering the totality of the facts and circumstances, we do not have any reason to deviate from the findings of Ld. CIT(A). In view of this, the addition made on account of enhancement of income by the Ld. CIT(A) is upheld. Adjustment of unaccounted receipts / unaccounted expenditure - HELD THAT:- We have already given direction to the Assessing Officer to verify the claim of telescoping of ₹ 4 lakhs in Ground No.(II) above and ₹ 1,34,86,000/- in Ground No.(III) while dealing these grounds of appeal. The set-off of ₹ 10 lakhs of cash availability is also stands decided. Hence, this ground is covered by above grounds, hence, does not require specific adjudication. Charging of interest u/s 234A is mandatory as held by Hon`ble Supreme Court in the case of Anjum M. H. Ghaswala [2001 (10) TMI 4 - SUPREME COURT] Unaccounted loans, advances, and interest - deletion of addition by CIT-A - HELD THAT:- We find that the impounded sheet contained name of probable lenders as date of interest column dated and amount of interest payable has been found as blank. Further, six persons mentioned in the chart have denied to have done any financial transactions with the assessee. The AO has wrongly treated these as loans given whereas the list/ chart indicates probable lenders. We find that the AO has not brought on record anything contrary to the submissions made by the assessee. Therefore, in such circumstances, we do not find any infirmity in the order of CIT(A), accordingly, same is upheld. This ground of appeal of revenue is therefore, dismissed. Unaccounted income - assessee was not able to explain the details of cheques impounded from his premises - CIT-A deleted the addition - HELD THAT:- We find that BF-2 Page No. 40 reflected 10 number cheques of ₹ 15 Lakh each in respect of five person. These cheques were pertaining to Bhavnagar District Co-operative Bank Ltd. with whom the assessee, nor any of his family members were having any bank account. Further, such cheques were not cleared or deposited with bank account of the assessee maintained with Surat Peoples Co-operative Bank Ltd. These facts stands verified by the AO during remand report proceedings and by Ld. CIT(A) in appellate proceedings. Therefore, in absence of any corroborating evidences, the addition made by the AO in respect of cheque entries has been rightly deleted. Having careful consideration of facts and circumstances, we do not find any infirmity in the order of CIT(A), accordingly, it is upheld. Accordingly, this grounds of appeal of revenue is therefore, dismissed. On-money receipts - assessee has failed to produce any explanation regarding the on-money receipts reflected in seized material from his residence - CIT-A deleted the addition - HELD THAT:- Summons under section 131 of the Act was issued to Paresh Patel, whose statement was recorded on 04.12.2012 in which he stated that Shri Ghanshyambhai D Sutariya is having no connection with his society. He is neither member nor holding any plot in Sarjan society. He do not know as to how the papers of Sarajn were found during survey at the premises of Ghanshyam D Sutariya. The other members from whom information was collected under section 133(6) also denied knowing the appellant or having any type of financial transactions with the appellant. In view of these facts, the CIT(A) observed that the appellant has in no way associated with Sarjan Co-operative Society. Having careful consideration of above facts, we are of the considered opinion there was no corroborating evidences on record, which suggested that the transactions, were related to in any manner with the assessee. In view of these facts and circumstances, we are of the considered view that Ld. CIT(A) was not in error in deleting the addition so made by the AO. Therefore, this grounds of appeal of revenue is accordingly, dismissed. Unaccounted expenditure - assessee has given contradictory statement even while admitted that he is an organizer of the Madhav Darshan Co-op Housing Society Ltd. Project. - CIT-A deleted the addition - HELD THAT:- AO has made enquiries during the course of remand proceedings wherein he has examined Shri Lavjibhai Haribhai Patel, the President of Madhav Darshan Co-op Housing Society Ltd. who developed the Laxmi Darshan Complex. It has been emerged that the assessee has acted as Panch in resolving a dispute arose between members of society on reducing the alignment of shops by the SMC. Since the CIT(A) as well the AO has accepted that the assessee has no financial dealings with Laxmi Darshan Complex. The copy of papers of the society being a copy of decision taken by the member of society was found in possession of the assessee as he being a Panch has retained a copy of decision taken by the Panchayat. Having careful consideration of facts, we are of the view that Ld. CIT(A) was correct in deleting the addition made as unexplained expenditure - this grounds of appeal of Revenue is therefore, dismissed.
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