TMI Blog2017 (8) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... lone. Normally the director should be keeping the cash balance of Bombay branch only for safe custody purpose. The said cash book shows cash balance of ₹ 4.36 lakhs as on 31.10.2009, but the same represents cash balance available as at the close of business on that date. Hence it is not clear that the above said cash balance pertains to Bombay branch alone or it was a combined cash balance of all branches. Hence we are of the view that claim of the assessee that the entire cash balance of the business concern was available with him is hard to believe. Accordingly we are of the view that the credit for entire cash balance cannot be given. The possibility of keeping some portion of cash belonging to Bombay branch cannot be ruled out. Accordingly we are of the view that an adhoc sum of ₹ 1.00 lakh can be given credit and the same would meet the ends of justice. - Appeal of the assessee is partly allowed. - I.T.A. No. 4773/Mum/2015 And I.T.A. No. 4699/Mum/2015 - - - Dated:- 31-7-2017 - Shri B.R. Baskaran (AM) And Sandeep Gosain (JM) And Vice-Versa For The Assessee : Shri J.P. Bairagra For The Department : Shri S.Padmaja ORDER Per B.R. Baskaran (AM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent cannot be the basis for arriving such a conclusion without further corroboration. He also noticed that the Mumbai Bench of the ITAT has expressed the view in assessee s own case relating to A.Y. 2006-07 to 2008-09 that the Assessing Officer cannot be extrapolate numbers into lakhs and cannot make addition purely on the basis of surmises and conjunctures. The learned CIT(A) also took support of the decision rendered by Hon'ble Apex Court in the case of CIT Vs. Kalyansundaram (294 ITR 94). However, the learned CIT(A) confirmed the addition of ₹ 11 lakhs relating to unexplained cash. Aggrieved by the order passed by the learned CIT(A), both the parties have filed appeals on the issues decided against each of them. 6. We heard the parties and perused the record. We shall first take up the appeal filed by the revenue. We notice that the assessee has made detailed submissions before the Ld CIT(A) with regard to the addition of ₹ 22.05 crores and hence he has called for a remand report from the AO. Even though the AO has stood by the assessment order, yet the Ld CIT(A) was convinced with the contentions of the assessee. For the sake of convenience, we extract belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noting does not prove that the entries pertain to the year 2002. The assessee has not produced any supporting evidence to establish that the notings are pertaining to year 2002. No satisfactory explanation with supporting evidence was filed by the assessee before the AO. Hence, the AO has correctly made addition of ₹ 22.05 Crores and I rely on findings of the AO given in the assessment order. The appellant in response to the remand report of the Assessing Officer vide letter dt. 05.12.2014 had submitted as under : 10. It is submitted that the appellant has placed reliance on noting 2002 in the scanned copy and the same has been furnished by the Revenue. The appellant is merely explaining the contents that have been retrieved by the Department from forensic department. It is a document relied upon by the Department for making addition by retrieving the deleted entries and on such retrieval, it is noticed that there is reference to 2002 which clearly indicate the year to which these entries relate. 11. The Assessing Officer has stated that the contention of the appellant is not acceptable and further added that The noting does not prove that the entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer has concluded the remand report by stating that Hence, the AO has correctly made addition of ₹ 22.05 Crores and I rely on findings of the AO given in the assessment order . This clearly shows that the Assessing officer, in the remand proceedings, has relied upon the findings given by his predecessor because he has not found any material to prove contrary to the contentions raised by the appellant. 13. In the circumstances, it is humbly submitted that the remand report submitted by the Assessing Officer contains no fresh findings, no production any material that prove the contentions of the appellant to be wrong and it merely contains reiteration of the findings and reasons given by the predecessor Assessing Officer. Therefore, the addition made by the Assessing Officer - which is on assumption I that appellant admitted the figures appearing are in lakhs - is unsustainable, bad in law and hence, Your Honour May kindly delete the same. 14. Without prejudice, it is submitted that it is undisputed that the impugned document did not contain any entries when it was seized. The entries in the documents were erased because it did not had any relevance as it me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtains to the AY 2010-11. The figures mentioned in the paper cannot be extrapolated into lacs and added to the income of the appellant purely based on assumptions and presumptions without there being, any corroborative evidence and making additions merely on the basis of some not legible and irrelevant entry/jotting on a page of a diary and so the addition of ₹ 22,05,06,000/- is deleted. Therefore, Ground of Appeal No.3 is allowed. 7. The Ld D.R submitted that the assessee could not offer any valid explanation to the nature of entries noted in the incriminating material. He submitted that the burden to disprove the presumption placed on the seized documents u/s 132(4A) of the Act lies upon the assessee, which the assessee has failed to discharge. The Ld D.R submitted that the Ld CIT(A) has deleted the addition of ₹ 22.05 crores by placing reliance on the order passed by the Tribunal. However the decision rendered by Hon ble Delhi High Court in the case of CIT Vs. Naresh Kumar Aggarwala (331 ITR 510) and the decision rendered by Hon ble Bombay High Court in the case of Surendra M Khandhar Vs. ACIT (321 ITR 254) state that the entries noted in the incriminating docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating material did not bring out anything about its nature. Some figures have been noted in a columnar form. It is not clear as to whether they pertained to receipt or payment . The AO also could not bring any material on record to understand the meaning and nature of entries. Hence, in the absence of any other corroborative material, we are of the view that the said document should only be construed as dumb document. We also find no reason for extrapolating the figures into lakhs. Hence the addition made by the AO has to be taken as an addition made on surmises and conjectures, which is liable to be deleted. We notice that the co-ordinate bench of Tribunal has also taken an identical view in the assessee s own case in the order dated 29-04-2015 passed in ITA No.3890/Mum/2013 and others relating to AY 2006-07 to 2008-09. We notice that the assessee has given detailed explanations before the Ld CIT(A) and hence the Ld CIT(A) has deleted the addition by placing reliance on the decisions referred supra. Under these set of facts, we do not find any reason to interfere with the order passed by Ld CIT(A) on this issue. Accordingly we uphold the order passed by him on this issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h balance has been accepted by the AO. A perusal of cash book would show that the assessee has received a sum of ₹ 50,000/- by way of lease rent in the month of October, 2009 and no other receipts was seen recorded from 1.4.2009 to 31.10.2009. On the other hand, the assessee has paid money to various business concerns and also withdrawn money out of his opening cash balance. It is well settled proposition that the statement given u/s 132(4) can be rebutted with evidences. Even though the assessee has stated that the cash balance belong to the business concern, yet in our considered view, the assessee should be given set off of personal cash balance as the probability is that the cash balance found at the residence shall be out of his personal cash balance only. Accordingly we direct the AO to allow set off of ₹ 7.33 lakhs against the addition of ₹ 11.00 lakhs. 14. The assessee has also given copy of cash ledger of M/s Flemingo Duty free shop. A careful perusal of the same would show that the same records cash transactions of all the shops located in various airports like Kolkatta, Chennai, Trichy etc., meaning thereby, it does not pertain to Bombay branch alone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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