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2022 (6) TMI 20 - AT - Income TaxAssessment u/s 153A - Addition based on Cash found in search - HELD THAT:- AO accepted the income as shown in the Income & Expenditure A/c - This income is source of cash found in search. Thus, taxing professional receipt on the one hand and also taxing the cash balance found in search has resulted into double taxation. Hence, separate addition of cash surrendered in search is uncalled for. So far as observation of AO that cash book is manipulated is concerned, we may point out that while making surrender for cash found assessee did not consider the receipt from private practice for which patient register maintained in normal course was seized. In fact the entries in the cash book are fully verifiable from the patient register found in search. The AO has not found any defect therein. Due to preconceived mind AO has treated the incomplete cash book which was later completed by the assessee on receipt of seized patients register as manipulation of the cash book. At the same time AO has accepted the cash book for assessing the income. Thus, the allegation of manipulation by AO is without basis. Considering the totality of facts and circumstances, we are of the view that the ld. CIT(A) has passed a well-reasoned order and no new facts or circumstances have been brought before us by the ld DR in order to controvert or rebut the factual findings so recorded by the ld. CIT(A), therefore, we see no reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) qua this issue and we uphold the same. Receipt of on-money pertaining to land transaction - HELD THAT:- AO has stated that the agreement of the land are of July 2014 and Jan 2015 and therefore it is unbelievable that cash received on sale of this land was still lying with at the residential premises of the assessee after more than one and half years. In this connection, the ld. AR has stated that cash was received subsequently after the agreement to sale. In fact the purchaser first paid the cheque and thereafter paid the cash. The assessee has specifically stated that the cash was received few days back as the cash was to be paid before the registry and registry was to be done after 11th August 2016. Thus there is no basis with the AO to hold that amount was received more than one and half years back. Otherwise also there is no bar that the assessee can’t keep cash with himself for more than one and half years and therefore the observation of the AO as to keeping of the cash at the residential premises is only on surmises and conjectures. Whether CIT(A) instead of giving relief to the assessee merely on the ground that opportunity to cross examine the buyers was not given should have himself done the needful by exercising its power u/s 250(4)? - As it was not mandatory for Ld. CIT(A) to carry out enquiries or get the cross examination done at her end inasmuch as section 250(4) of the Act only give a discretion to CIT(A) for further enquiry if the facts so warrant but do not compel him to make further enquiry/ provide opportunity of cross examination. Considering the totality of facts and circumstances, we are of the view that the ld. CIT(A) has passed a well-reasoned order and no new facts or circumstances have been brought before us by the ld CIT-DR in order to controvert or rebut the factual findings so recorded by the ld. CIT(A), therefore, we see no reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) qua this issue and we uphold the same. Addition as buyer of the land denied to pay any on-money in land transaction to his wife - HELD THAT:- AO only on assumption and presumption held that this represents the undisclosed investment. There is neither any mention of name or the date to whom the alleged loan has been given and therefore on the basis of this paper no addition can be made on account of the alleged loan. So far as the statement of the buyers are concerned, we are of the view that neither any specific question was asked from them nor any person making payment of ‘On money’ will accept about the same. Hence simply because the buyer did not say anything about the ‘on money payment’, statement of the assessee in the absence of any contrary evidence can’t be rejected. The AO has made the addition u/s 68 of the Act. This Section applies when any sum is found credited in the books of accounts, source of which is not explained to the satisfaction of the AO. Noting on a paper can’t be said to be an entry in the books of accounts. We also draw strength from the decision of Coordinate Bench of Mumbai Tribunal in the case of S.P. Goyal Vs. DCIT [2002 (4) TMI 952 - ITAT MUMBAI] .wherein the Coordinate Bench has held that loose sheet of paper torn out of a diary could not be construed as books for the purpose of section 68 and further held that addition could not be made simply on the basis of certain notings on loose sheets of a diary without any corroborative evidence in the form of extra cash, jewellery or investment outside the books. - Decided against revenue.
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