TMI Blog2015 (4) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the statement of the assessee before the AO that he does not know Shri Shreeram H. Soni cannot be ignored and addition cannot be made in the hands of the assessee.- Decided in favour of assessee. - ITA Nos. 1789, 1790 & 1791/PN/2013 - - - Dated:- 30-4-2015 - Ms. Sushma Chowla, Judicial Member and Shri R.K. Panda, Accountant Member Assessee by : Shri Nikhil Pathak Shri Suhas P. Bora Revenue by : Shri Pradeep Kumar ORDER PER R.K. PANDA, AM: The above three appeals filed by the assessee are directed against the common order dated 05-08-2013 of the CIT(A)-III, Pune relating to Assessment Years 2000-01, 2001-02 and 2002-03 respectively. Since identical grounds have been taken by the assessee in all these appeals, therefore, for the sake of convenience these were heard together and are being disposed of by this common order. 2. In ground of appeal no. 1 the assessee has challenged the order of Ld. CIT(A) in confirming the action of the AO in reopening the assessment u/s. 147 of the Act. 3. The Ld. Counsel for the assessee did not press the above ground for which the Ld. Departmental Representative has no objection. Accordingly, the same is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see under consideration the same was written as :50.00 DS. PALD , on examination of the number of loose papers and documents the identify of the aforesaid assessee was established by the Addl. CIT, Central Range-2, Pune while completing the Block Assessment in the case of Shri Shreeram Soni and others. In his report sent to the Assessing Officer, Satara vide letter No. PN/Addl.CIT/ OR-2//Soni/ /Inves.Int./06-07/23 dtd. 26.3.2007, Para 6 he has reported as under :- As per, the seized documents at least ₹ 5 lakhs was invested by your assessee in money lending, as on 31.3.2001, which is unaccounted. Since the documents could not be said to be belonging to your assessee, within the meaning of Section 153C of the IT Act. You are requested to take necessary action u/.s 148 for the A. Y. 2001-02, for which the limitation expires on 31.3.2007. Similar action for subsequent A. Vs. may also be taken after ascertaining the unaccounted investment/interest income of your assessee. Your assessee and his family members may have been advancing loans by cheqye also, during the relevant period, through my assessee or his brother Shrikant H. Soni, which may be taken into account. Following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee s name was appearing as investor . On a cumulative verification of the seized materials at page nos. 27, 94, 47 and 107, the Assessing Officer came to the conclusion that the assessee had made investment of ₹ 15,00,000/- which was not disclosed in the regular return of income filed for A.Y. 2001-02 on 30-07-2001 along with interest thereon. He therefore made addition of ₹ 15,00,000/- u/s.69B and interest thereon amounting to ₹ 1,00,000/- for A.Y. 2001-02. Similarly, addition of ₹ 30 lakhs was made for A.Y. 2002-03 on the same grounds by the Assessing Officer u/s.69B and ₹ 1,23,750/- towards interest. 8. Before the CIT(A) the assessee vehemently opposed the addition made by the AO u/s. 69B amounting to ₹ 5,00,000/- and the addition of ₹ 75,000/- on account of interest thereon for A.Y. 2000-01. Similar additions made in A.Y. 2001-02 and 2002-03 were also challenged. Various decisions were also brought to the CIT(A). 9. However, the Ld. CIT(A) also did not accept the contention of the assessee and upheld the addition made by the AO. While doing so he observed that the name of the assessee has been very literally mentioned as PALD TJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Shreeram H. Soni so as to conclusively prove that it is only the assessee and no other person. Nothing has been brought on record by the AO to show that the assessee has given any loan to Shri Shreeram H. Soni and has earned interest. Shri Shreeram H. Soni, from whose premises the diary was found, has never taken the name of the assessee nor admitted that he has received any money from Shri Tulsiram J. Pallod of Mahabaleshwar. Therefore in absence of any admission by Shri Shreeram H. Soni who resides at Pune the AO should not have added an amount of ₹ 5,00,000/- u/s. 69B of the I.T. Act. He submitted that the assessee from the very beginning has denied to have known Shri Shreeram H. Soni. He denied to have made any transaction either accounted or unaccounted with Shri Shreeram H. Soni. Neither the statement of the assessee was recorded by the AO nor the AO has asked the assessee to crossexamine Shri Shreeram H. Soni. When Shri Shreeram H.Soni was searched no corroborative evidence whatsoever belonging to the assessee was found from his premises. The Ld. Counsel for the assessee relied on the following decisions: i. M/s. Kejals Furnishings Vs. ACIT, ITA Nos. 928 92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, it is also an admitted fact that Shri Shreeram H. Soni had refused to identify each and every person. It is also an admitted fact that neither Shri Shreeram H. Soni has admitted to have accepted any money from the present assessee nor any document or evidence whatsoever was found from the residence of Shri Shreeram H. Soni belonging to the assessee. We find during the course of assessment proceedings ,the assessee had categorically stated before the AO that he does not know Shri Shreeram H. Soni. Nothing has been brought on record to show that the above submission of the assessee is false or untrue. Further, the statement of the assessee was never recorded by the AO nor the AO has granted any opportunity or directed the assessee to cross-examine Shri Shreeram H. Soni. When the assessee resides at Mahabaleshwar and Shri Shreeram H. Soni resides at Pune therefore, in absence of any corroborative evidence whatsoever found from the residence of Shri Shreeram H. Soni belonging to the assessee, the statement of the assessee before the AO that he does not know Shri Shreeram H. Soni cannot be ignored and addition cannot be made in the hands of the assessee. 15. We find under ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be controverted by the Ld. Departmental Representative. The Assessing Officer has also not summoned Mr. Rashmikant Gandhi to find out the veracity of the submission of the assessee firm that it has not lent any money to Mr. Sony. The notings in our opinion, do not clearly indicate that the firm has advanced any money. It may at best be that of one individual Mr. Rashmi Gandhi in whose hands addition could have been made. However, the Assessing Officer has not examined that person. 11.1 We find an identical issue had come up before the Tribunal in the case of Jagannath Eknath Lahoti (HUF) (Supra). We find under identical facts and circumstances the Tribunal has deleted the addition by observing as under: 8. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case made addition of ₹ 15 lakhs and corresponding interest as well as brokerage on the same on the basis of certain documents seized from the premises of Mr. Shriram H. Soni. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide is whether the identity of the assessee is proved that he is the same Oswal Ashok or Oswal ASK . As per the remand report given by the Assessing Officer, no promissory note or blank cheques on the names of the assessee were found. On perusal of the remand report, we find that Assessing Officer himself has examined many persons on suspicion, whose names were Ashok Oswal and the middle name was different. Admittedly, in the seized document, there is no middle name. The assessee filed the specific affidavit denying having any relation with Shriram H. Soni. In the remand proceedings, the AO examined bank account and has reported that no transaction was found between Shriram H. Soni and the assessee. It is very much interesting that when the AO himself is not sure about the identity of Oswal Ashok , the name which is found in the seized document, how the assessee can be fastened with the liability of unaccounted transactions. We find that the AO himself admits that the assessee has specifically denied. Law is well settled that burden is on the Revenue to establish the identity if any person is to be charged under the Act. The action of the AO examining the different persons ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
