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TMI Blog2017 (8) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not justified when the Appellant has disowned the seized paper. (b) Without prejudice to the above, the finding in the original assessment proceeding as good as an ex-parte basis looses it colour on the face of Remand Report having passed with duly accorded opportunity. Therefore, the Order of the Id. CIT(A) is perverse and the same may be vacated. 2. Levy of Penal Interests The Appellant, on merits, denies her liability to penal interest. 3. The Appellant craves leave to add, amend or alter all or any of the above Ground of Appeal". 2. The present appeal filed by the assessee involves a delay of a period of 3 days. That the assessee had filed before us an application dated. 02.11.2015 seeking condonation of delay in filing of the present appeal. That as stated by assessee applicant, though the appeal was liable to be filed before the Tribunal on 15.03.2013, the same however could be filed only as on 18.03.2013, which thus involved a delay of a period of 3 days. The assessee applicant in his aforesaid application had fairly stated that as he was during the relevant point of time due to a personal family dispute, away to Mangalore, therefore, by the time he came back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the loans advanced by the assessee to various parties, while for the amount of Rs. 48,868/- mentioned in the said document was the interest received by the assessee on the said loans. The A.O thus in the course of such 'fresh assessment' made an addition of Rs. 5,08,868/- [i.e Rs. 4,60,000/- (+) Rs. 48,868/-] in the hands of the assessee. The assessee carried the aforesaid order passed by the A.O u/s 143(3) r.w.s 254 before the CIT(A) who deleted the addition of Rs. 5,08,868/-(supra) made by the A.O. The revenue aggrieved with the order of the CIT(A) assailed the same before the Tribunal. The Tribunal vide its order dated 06.02.2008, passed in ITA No. 1542/Mum/2004 restored the matter to the file of the A.O, with a direction that a 'fresh order' be passed after affording an opportunity to the assessee. The Tribunal while setting aside the matter to the file of the A.O, observed as under:- "The Assessing Officer, by decoding the figure, had arrived at conclusion that the figure of total loan advanced by the assessee may be of Rs.4,60,000/- and interest thereon may be of Rs.48,868/- as mentioned at Page No. 128. Since this particular page was not found from the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 5,08,868/-(supra) in the hands of the assessee, vide his order passed u/s 143(3) r.w.s 254, dated. 29.12.2008. The assessee assailed the assessment framed by the A.O before the CIT(A). The CIT(A) in the course of the appellate proceedings observed that the A.O had failed to carry out any verification as regards the entries mentioned in the seized annexure, viz. A/12 - Page 128. The CIT(A) thus called for a 'remand report' and directed the A.O to peruse the seized document, viz. Page 128 and correlate the contents of the same with the other 'seized material'. The CIT(A) further specifically directed the A.O to verify as to whether the amount mentioned therein represented 'loan taken' or 'loan given'. The CIT(A) also observed that nothing was discernible from the date '31.10.1994' as was found mentioned in the zerox copy of the 'seized document', viz. Page 128 (supra). The A.O in compliance to the 'directions' of the CIT(A) furnished his 'remand report', dated. 17.01.2011. The A.O in his 'remand report' referring to the facts emerging from a letter dated 08.01.2001 which was issued to the assessee by his predecessor, therein stated that the then A.O had in his aforesaid letter pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition made by the A.O was justified. 5. The assessee being aggrieved with the aforesaid order of the CIT(A) had carried the matter in appeal before us. That it was submitted by the ld. Authorized Representative (for short 'A.R') for the assessee that the name of the assessee did not find any mention in the 'seized document', viz. Annexure A/12- Page 128, nor was there any other 'material' which could go to relate the same with the assessee. It was further averred by the ld. A.R that even otherwise as no date was found mentioned in the aforesaid 'seized document', therefore, for the said reason also no adverse inferences in context of the same were liable to be drawn in the hands of the assessee during the year under consideration. The ld. A.R. in order to drive home his aforesaid contention took us through the earlier order of the ITAT, Mumbai Bench 'A' in the case of the assessee, viz. ITO Vs. Shri Kauntey M. Tanna (ITA No. 1542/Mum/2004), dated 06.02.2008. The ld. A.R further drew our attention to the order passed by the A.O u/s 143(3) r.w.s. 254, dated 29.12.2008, and submitted that despite the fact the matter was 'set aside' by the Tribunal to the file of the A.O for fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 410, had held that as the entries in the 'books of accounts' are merely corroborative evidence, thus independent evidence is necessary so that the trustworthiness of the entries contained therein could be verified. Thus in the backdrop of the aforesaid factual matrix read with the settled position of law so laid down by the Hon'ble Supreme Court, it was submitted by the ld. A.R that the CIT(A) had gravely erred in law by upholding the order of the A.O, wherein the latter had made additions despite absence of any 'material' which could go to justify drawing of adverse inferences in the hands of the assessee. Per contra, the ld. D.R relied on the orders of the lower authorities. 6. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We have purposively culled out the facts as had emerged right from the framing of the 'Original assessment', till the passing of the impugned order by the CIT(A) in the case of the assessee, as the same will have a strong bearing on the adjudication of the issue under consideration. We find that the Tribunal had vide its order dated 06.02.2008, passed in IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the records reveals that the A.O while framing the assessment under consideration, had vide his letter dated 08.01.2001 proposed that the amount of Rs. 4,60,000/-(supra) be treated as loans taken by the assessee. We find that as the assessee had claimed that the 'seized document', viz. Page 128 did not belong to him, nor was he aware of the parties whose names were found mentioned in the said document, therefore, only for the said reason the A.O without assigning any reason, much the less a cogent reason shifted from his earlier view, and held that the amount of Rs. 4,60,000/-(supra) represented the loans advanced by the assessee to various parties, and had on the said count made an addition of Rs. 4,60,000/- in the hands of the assessee. We are of the considered view that the revenue had absolutely failed to establish as to whether the amount of Rs. 4,60,000/- (supra) as gathered from the impugned 'seized document', viz. Page 128 pertained to a loan given or a loan taken by the assessee, which factual position is discernible from the inconsistent and contradictory stands that had been taken by the authorities during the course of the proceedings. We further find that the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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