TMI Blog2018 (5) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... PER R. K. PANDA, AM : The above two appeals filed by the assessee are directed against the common order dated 05.01.2015 of the CIT(A)- 30, New Delhi relating to assessment years 2005-06 and 2006-07 respectively. For the sake of convenience, both the appeals were heard together and are being disposed of by this common order. ITA No.2413/Del/2015 (A.Y. 2005-06) : 2. Facts of the case, in brief, are that the assessee is an individual and derives income from salary and other sources. A search u/s 132 of the Income Tax Act, 1961 was conducted at the residential premises of the assessee at E-47, Ground Floor, Greater Kailash-II, New Delhi on 22.09.2005. In response to the notice u/s 153A which was issued on 15.05.2006, the assessee filed return of income on 14.09.2007 disclosing total income of ₹ 20,78,558/-. The Assessing Officer during the course of assessment proceedings observed that certain documents were found and seized from the residential premises of the assessee at the time of search. As per Annexure-2 Annexure-8 several documents pertaining to various payments and various receipts on account of Byculla Residence were found. On being questioned by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were found. On being questioned by the Assessing Officer, it was submitted that the same relates to some presentation/estimates in respect of some work relating Omaxe Plaza. It was submitted that the person who worked in some of the Moti Mahal Restaurant may have left the paper. The assessee completely denied the ownership of such handwritten paper. However, the Assessing Officer was not satisfied with the explanation given by the assessee. He held that since the paper was found from the premises of the assessee and the assessee was unable to explain the nature and source of amount mentioned therein, therefore, he is liable for the same. He accordingly made addition of ₹ 4,02,000/- to the total income of the assessee. Thus, in effect the Assessing Officer made addition of ₹ 22,93,000/- to the total income of the assessee and determined the income at ₹ 43,71,558/-. 4. In appeal, the ld. CIT(A) confirmed the addition made by the Assessing Officer. 5. Aggrieved with such order of the ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds of appeal :- 1. The Ld. CIT (A) has grossly erred on facts as well as in law in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he submitted that the document does not have any date, therefore, it cannot be said that it pertains to financial year 2004-05. Further, the document has simply some jottings of certain figures and does not mention the name of the assessee. The document does not indicate whether the figures are for receipt or payment and is not in the handwriting of the assessee. It does not indicate the mode of payment, if any, i.e. whether in cash or by cheque. The document does not mention the purpose of the payment. It does not indicate the identification of the payer/payee, if any, by way of name, address, phone no., PAN etc. and the document does not say that the figures are in lakh. 9. So far as addition of ₹ 15,91,000/- in respect of Byculla property is concerned, he submitted that the assessee does not have any residence in Byculla nor this document indicates that payments were received by the assessee. Further, the document was not in the handwriting of the assessee and it does not indicate the identification of the recipient by way of name, address, phone no. and PAN etc. Further, the document does not bear anybody s signature. He submitted that this is a rough paper on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find during the search at the premises of the assessee certain papers relating to Byculla property were found and seized as per Annexure-2 Annexure-8. Similarly, paper containing receipt of ₹ 3,00,000/- was found at page 56 of Annexure-2. Further page 122 of Annexure-5 containing some amounts as per handwriting was also found the total of which comes to ₹ 4,02,000/-. In absence of any proper explanation by the assessee, the Assessing Officer made addition of the above amounts totaling to ₹ 22,93,000/- which has been upheld by the ld. CIT(A). It is the submission of the ld. counsel for the assessee that the papers do not belong to the assessee and they pertain to the Omaxe Plaza of which the assessee is Director Finance. It is his submission that the assessee does not own any property at Byculla and the papers do not contain his name or his signature nor these papers are in his own handwriting. It is also his submission that page 56 of Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 qua AY 2004- 05, do not bear name, address, signatures and handwriting of the assessee. 7. In the backdrop of the aforementioned facts and circumstances, undisputed facts and contentions raised by the parties, the first question arises for determination is :- as to whether addition made by AO and affirmed by CIT (A) at ₹ 98,16,450/- and ₹ 95,27,126/- qua AYs 2003-04 and 2004-05 respectively on the basis of loose paper recovered during search and seizure operation conducted at the residential premises of M/s. Omaxe Limited on 22.09.2005 is not sustainable as alleged by the assessee. 8. Bare perusal of the assessment orders and impugned orders passed by CIT (A) shows that documents seized during search and seizure apparently goes to prove that the assessments in these cases have been made by the AO and affirmed by the CIT (A) on the basis of suspicion, which is not sustainable in the eyes of law for the following reasons :- i. that the first document lying at page 1 of the paper book on the basis of which addition of ₹ 5,00,000/- has been made is categoric enough to disclose that one K.L. Bhatia, S/o Lal Chand Bhatia has taken interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaser nor does AO brought on record any evidence by making verification qua invoice no.162133 if issued by Johnson, wherein it is categorically mentioned that the payment has been received by way of cheque. AO has also not traced the cheque as to making the payment of the aforesaid amount form the issuing agency of the invoice in question; vi. that even otherwise, the AO has also not brought on record any material to prove that the assessee was in conscious possession of aforesaid documents on the basis of which addition has been made rather vaguely stated that the document/papers were recovered from the house of assessee. vii. that despite denial of the assessee that the loose papers do not belong to him in any manner, AO invoked the deeming provisions without collecting any corroborative evidence; viii. that the AO has made addition of ₹ 1,00,000/- qua AY 2004-05 as unexplained expenditure u/s 69 of the Act on the basis of paper/document, available at page 1 of the paper book -B. Bare perusal of the paper shows that the same does not bear the name of the assessee nor it is in the handwriting of assessee nor does it explain the purpose of making and receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c evidence to prove the handwriting of the loose paper relied upon by him to make the addition, which is exclusively made on the basis of suspicion and guesswork. Even no corroborative material has brought on record by the AO to substantiate the addition nor the CIT(A) has called for any remand report seeking corroborative evidence, if any. 6. In the considered view of the Court, the addition of ₹ 49 lakhs to the returned income of the Assessee was based on surmises and conjectures and that too on the basis of a single document without making any further enquiry. No attempt was made by the AO to find out if in fact it constituted the construction expenses of any project of the aforementioned company of which the Assessee was a director. 16. Since the assessee in the instant case was also denying from the very beginning that the assessee does not own any property at Byculla and documents relating to addition of ₹ 3,00,000/- and ₹ 4,02,000/- do not mention the name of the assessee nor are in the handwriting of the assessee, therefore, following the decision of the Tribunal in assessee s own case on the basis of similar seized papers which has been uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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