TMI Blog2015 (1) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, their details and particulars were not ascertained, verified and examined - Following decision of assessee's own previous case [2015 (1) TMI 420 - DELHI HIGH COURT] - Order of tribunal is not preverse - Decided against Revenue. - ITA 803/2014 - - - Dated:- 23-12-2014 - Sanjiv Khanna And V. Kameswar Rao,JJ. For the Appellant : Mr. Rohit Madan, Sr. Standing Counsel with Mr. Ruchir Bhatia, Advocate For the Respondent : Through ORDER Sanjiv Khanna, J. (Oral) This appeal filed by the Revenue pertains to assessment year 2004-05 and impugns the findings recorded by the Income Tax Appellate Tribunal (Tribunal, for short) in their order dated 21st September, 2012. 2. The appeal, it appears, was filed within time, but returned under office objection and there is a prolonged delay of 650 days in re-filing of the appeal. However, before issuing notice on the application for condonation of delay, we deem it appropriate to examine the grounds of appeal on merits. 3. The respondent, a company and persons associated with it, were subject to search and seizure operations under Section 132 of the Income Tax Act, 1961 (Act, for short) on 28th March, 2006. Notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are considered in the hands of M/s Home Developers Private Limited. The additions to be made on this account would be as per the discussion in the following paragraphs wherein specific documents evidencing the receipt of loan and its repayments has been indicated. xxxxxx 2. Similar are the facts of Page No. 16 to 18 (Annexure A-11) seized from the residence of Yogesh Gupta. These pages gives details of loans/ deposits and the interest paid/ payable thereon to some Ojhaji Sharmaji which comes to 75 lacs (8 lacs to 67 lacs) in AY 04-05. It is held that these loans received, have been repaid in AY 04-05 itself. Further, the interest thereon as paid/ payable comes to ₹ 15 lacs. Total addition on account of this page would work out to ₹ 90 lacs. (75+15). This page is found mentioned on page No. 22 of Annexure A-11. I am satisfied the assessee has furnish/ concealed particulars of his income. Penalty proceedings u/s 271(1)(c) is being initiated on this point separately. 5. The Commissioner of Income Tax (Appeals) in the quantum appeal observed that the addition on account of unaccounted transactions was not justified as the assessee himself had surrendered ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought no other material on record to establish that as per the loose papers, any amount was borrowed by the assessee. They have not even examined the person whose name is claimed to have been mentioned on the loose papers. In the loose papers, no where it is mentioned that they belonged to the assessee i.e. M/s Home Developers (P) Ltd. which is a company. Admittedly, the loose papers were found from Shri Yogesh Gupta and not the assessee company. The undisclosed income represented by such loose papers had already been offered by Shri Yogesh Gupta and other group companies which has been accepted by the Revenue. Photocopy of the loose papers have also been produced by the assessee in his paper book. For the sake of brevity, we shall mention herein below only one loose paper i.e. page No.43 in which, according to the Revenue, there is an evidence of loan of 22,40,00,000/- taken by the assessee. We find that the Assessing Officer has considered the entries at the left hand side of the paper which is totaled to 22,40,000/-. On this loose paper, only one name Paliwal is written and there are dates and amounts without any narration. The total of amounts is 22,40,000/-. It is the inferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to take the view that the noting on the loose papers is with regard to loan taken by the assessee, then the burden was upon the Revenue to establish so. However, the Assessing Officer did nothing except to make series of presumptions and then made the addition and levied the penalty on the basis of his presumptions. We find that similar situation was dealt with by the ITAT while considering the Revenue's appeal for penalty for AY 200102, 2002-03 2003-04 and the ITAT has held that the document does not indicate that the assessee has accepted loan or deposit from any other person. The name of the assessee is completely absent from the said document. Identical is the situation in the years under appeal before us. None of the documents indicate that the assessee i.e. M/s Home Developers (P) Ltd. has taken any loan or deposit from any other person. The above finding of the ITAT has been upheld by the Hon'ble Jurisdictional High Court. The Hon'ble Jurisdictional High Court held that though there is a doubt but it is not established that the respondent assessee had taken loan/deposit in cash. Their Lordships further observed that there is suspicion but this alone witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, the reply quoted by the Assessing Officer refers to real estate transactions and advances/loans received against certain commitments for purchase of properties. The Tribunal noticing the statement made by Yogesh Gupta on oath during the course of search came to the conclusion that the findings of the Assessing Officer that there were loan transactions in cash and interest was paid in cash was merely an assumption. Even on the quantum, the addition made was on mere assumption. 8. The Tribunal in the impugned order has referred to the order passed by this Court on 23rd May, 2012 in ITA Nos. 301, 304 and 305 of 2012 titled CIT versus Home Developers Pvt. Ltd. The said order records that substantial surrender was made during the course of search. Reference was made to the statement of Yogesh Gupta wherein he had accepted that there were unaccounted for transactions in cash, but no question was put to him about the details of the writer or the recipient i.e. the details of the person, who had received the said amounts. At that time, the officers were duly satisfied with the investigation and the surrender. It is further recorded that the allegation that loans/deposits must have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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