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TMI Blog2014 (2) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s.148 to which the assessee objected. After disposing of the objections the Assessing Officer proceeded to complete the assessment. 2.1 The Assessing Officer noted that during the course of the search operation u/s.132 in the case of Shri Shriram H. Soni on 29.07.2003, a large number of seized documents, books of accounts have been seized, relating to the finance/finance brokerage business of Shri Soni. Shri Soni is engaged in finance broking and also money lending. Apart from the regular transactions, relating to the finance brokerage, incriminating documents relating to the advance of cash loans running into several crores of rupees, have been found and seized. These documents are mostly in the form of blank promissory notes (duly signed by the borrowers) and blank undated cheques duly signed by the borrowers (with amounts of loan mentioned). Besides, the entries in the cash book (of part period 01.09.2000 to 30.06.2001) (vide B.No.100/Panchanama dated 2.8.2003), checklist of the borrowers indicating the due dates of payment of interest and brokerage to Shri. Soni, have been found (for the period 1.1.2000 to 31.12.2002, with broken periods) (B.No.98 and 99 of the Pancha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st income on such unaccounted investments. 2.5 The AO observed that the assessee's name appears in the seized documents in abbreviated and/or distorted form (Jagusheth Lati or J.R. Lati, Jagannath Lahoti), which was intended to conceal the identity of such persons. Shri Soni has declined to identify such investors/persons, and such credits was added as unexplained, on a protective basis, in his hands. However, there are plenty of direct and indirect evidences in the form of loose papers, suggesting the identity and actual transactions by such persons. 2.6 The AO noted that from the seized documents that Rs. 15 lakhs was invested by Shri Lahoti in money lending to following persons, as on 31- 03-2000, as detailed below & which is unaccounted : Sr.No. Name Date Amount 1 Rajlaxmi Agarwal 20-01-2000 5,00,000 2 B. Manikshet 03-01-2000 5,00,000 3 Ashok Rajushet 13-02-2000 5,00,000 2.7 Certain loose papers found during the course of search operation in the case of Shri Soni bear signature of the assessee". 2.8 The Assessing Officer accordingly asked the assessee to explain as to why an amount of Rs. 15 lakhs should not be added to the total income as unexplained inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT reported in 214 ITR 801 and CIT Vs. Durga Prasad More reported in 82 ITR 540 the Assessing Officer made addition of Rs. 15 lakhs to the total income of the assessee u/s.69 of the Act. He also added Rs. 71,250/- being interest thereon @ 1.5% per month which was not disclosed by the assessee u/s.56 of the I.T. Act and an amount of Rs. 3,750/- being brokerage paid to Shriram Soni @ 0.25% u/s.69C of the I.T. Act. 4. Before the CIT(A) the assessee reiterated same submissions as made before the Assessing Officer. It was submitted that the addition made in the hands of the assessee on the basis of documents/books of account impounded during the course of search action of Mr. Soni is not justified. It was argued that it is the responsibility of Mr. Soni to explain credits appearing in his books of account impounded during the search action which belongs to him in terms of section 132(4A). Mr. Soni has neither identified the assessee as the person who has advanced loan to him nor gave the identity, genuineness or credit worthiness of the loan creditors. He has failed to explain the sums credited in his books of account and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 was valid in law. 2. The Ld.CIT(A) failed to appreciate that the provisions of section 147 were not applicable at all and for making such an addition, the provisions of section 153C were only applicable and hence, the asst. is bad in law. 3. The Ld.CIT(A) erred in confirming the following additions: (a) of Rs. 15 lakhs u/s.69 as the alleged amount given to Shri Soni on interest. (b) of Rs. 71,250/- on account of the alleged unaccounted interest income. 4. The Ld.CIT(A) was not justified in holding that the particulars of the notings regarding the funds taken by Shri S.H. Soni of Rs. 15 lakhs in the seized papers found with him pertained to the appellant. 5. The Ld.CIT(A) failed to appreciate that - (a) On the basis of the notings in the seized papers found with Shri S.H. Soni, the conclusion could not be drawn against the appellant that the funds of Rs. 15 lakhs were provided by him and he earned the interest of Rs. 71,250/- thereon. (b) The above presumption is not justified without any concrete evidence. (c) Even Shri Soni has not admitted in any of his statements that the impugned entries in the seized papers pertained to the appellant or that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 6.1 Referring to the copy of the order of the Tribunal in the case of ITO Vs. Ashok Keshvlal Oswal vide ITA No.307/PN/2012 order dated 30-09- 2012 for A.Y. 2001-02 he submitted that under identical facts and circumstances the addition made by the Assessing Officer amounting to Rs. 22,02,2000/- on the basis of search conducted at the premises of Mr. Shriram H. Soni was deleted by the CIT(A) and the Tribunal dismissed the appeal filed by the Revenue. He submitted that since the facts in the instant case are identical to the facts in the case decided by the Tribunal in the case of Ashok Keshvlal Oswal, therefore, the addition made by the Assessing Officer and sustained by the CIT(A) should be deleted. The Ld. Counsel for the assessee referring to Page 120 of the paper book further submitted that no addition has been made by reopening the assessment of the subsequent year although the name of the assessee was clearly appearing which otherwise indicates that the Department itself has accepted that "Jagannath E. Lahoti" is different from "Jagusheth Lati". 7. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). He submitted that the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und from the premises of Mr. Shriram H. Soni so as to prove that the assessee is the same person especially when Mr. Shriram H. Soni in his statement recorded u/s.132(4) has refused to identify each and every investor. 8.1 We find under similar facts the Coordinate Bench of the Tribunal in the case of Ashok Keshvlal Oswal (Supra) has dismissed the appeal filed by the Revenue wherein the CIT(A) has deleted the addition of Rs. 22,02,2000/- made by the Assessing Officer on account of additions made on the basis of documents found from the residence of Shriram Soni during the course of search and seizure operation. The relevant observation of the Tribunal reads as under : "5. We have heard the rival submissions of the parties and perused the record. The first issue we have to 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 differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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