TMI Blog2018 (9) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... essee against the order of Ld. CIT(A)-2, Bhopal dated 9.6.2016. All the appeals were taken up together and are being disposed off by way of a consolidated order for the sake of convenience. 2. First we take up the IT(SS)A No.182/Ind/2016, wherein the assessee has raised following grounds of appeal: 1. The learned CIT(A) has erred in law and on facts in making addition of ₹ 1,00,000/-. 2. The addition of opening cash balance shows in the cash flow statement to the income of appellant cannot be made, as there was no evidence on record to show that a sum of ₹ 1,00,000/- was out of any undisclosed income of the appellant and no proper reason has been given for rejection of opening cash balance shown in the cash flow statement. 3. No addition can be made for the opening cash balance shown in the cash flow statement when the total cash found during the search has already been added to the income of the appellant in the year of search. 4. That the appellant reserves the right to add, alter or amend the grounds of appeal before the appeal is decided, with the permission of Honourable Bench. 3. The only effective ground in this appeal is against conform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to keep any extra cash if any available with him in the bank accounts. In fact the assessee seems to be hand to mouth entity as the cash balance in the bank account was never substantial. Further, the sources of income of the assessee around 1.4.2003 do not in any way justify the cash balance of ₹ 1,00,000/- w2ith the assessee. For example the total income of assessee for F.Y. 2003-04 is ₹ 1,16,929/- only. In fact, it is this opening cash balance on the basis of which the assessee had tried to justify the various expenses made by it. Therefore, the opening cash balance of ₹ 1,00,000/- with the assessee remains unexplained and is added to the total income of the assessee for the A.Y. 2004-05. Penalty proceedings u/s 271(1)(c) are also initiated for furnishing inaccurate particulars of the income for the A.Y. 2004-05. 8.1 On perusal of the cash flow statement submitted by the assessee it is found that the opening cash balance of ₹ 1,00,000/- as on 1.4.2003 gradually increased to ₹ 4,36,000/- as on 1.4.2004 which further increased to ₹ 4,15,000/- as on 1.4.2005 which increased to ₹ 5,00,000/- as on 31.3.2006 which further increased to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no identifiable source to generate such cash in the hands of the assessee. Therefore, the source of following cash expenses made by the assessee remains unexplained. Sl .No. Date Amount Purpose 1. 05.12.2006 42,488 Plot booking in Adhunik Griha Nirman Samiti 2. 05.03.2007 31,500 Plot booking in Adhunik Grha Nirman Samiti 3. 18.06.2007 18,000 Plot booking in Adhunik Grha Nirman Samiti 4. 28.07.2007 39,500 Plot booking in Adhunik Grha Nirman Samiti 5. 03.11.2007 3,15,000 Paid to Akshya Shakti Shiksha Evam Samaj Kalyan Samiti Bhopal in cash 6 17.03.2008 30,000 Plot booking in Adhunik Grha Nirman Samiti 8.4 Therefore, these amount represent unexplained investments by the assessee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Your kind attention is drawn to judgement of honourable bench Indore in case of:- Anant Steel Pvt.Ltd. vis Asstt. Commissioner of Income Tax (2016)28 ITJ 47 (Trib.slndare) in the ITAT, where it was held that It was decided that Uls. 153A to 153C Of Income tax Act 1961- No incriminating Documents found and seized during search. An Additions were made in assessment uls 153A - Assessee challenged that order - HELD - In dy. CIT v. Kalani Brothers(Indore) Pvt. Ltd.,(2016) 27 ITJ 286 (TRIB. - Indore this issue has been decided that in absence of any Incriminating material or documents seized during the course of search, the AO cannot pass order uls 153A rlw Section 143(3) - Following that decision it has been held that in absence of any incriminating document found and seized during the course of search, the AO is not justify in making the addition in non abated assessment order while passing the order uls 153A rlw Section 143(3) Your Kind Attention is also drawn in Judgements of ACIT:- 1. Pr.Commissioner of income tax,Central-2,New Delhi v/s Meeta Gutgutia(2017)82 taxmann.com 287 (HC-Delhi) 2. Shri Basant Bansal vis ACIT Central Circle-Alwar ITA No.5341JP12012 A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and receipts. It is to show the flow of money for various purposes. Merely because a book of account is not maintained on day to day basis, cash flow cannot be rejected without finding a single defect in it. In the given case, cash flow statement for the appellant and his wife were submitted and various receipts and payments were duly disclosed and not even a single defect was found by A.O. in such cash flow. 2. The second reason given by A.O. is that the assessee did not file his return of income regularly, is incorrect, as he was regularly filing the return of income and copy of such return of income were furnished before the A.O. vide reply to questionnaire dated 25109/2011. 3. The third reason given by A.O. is more a suspecision than finding of a fact. The cash flow statement is nothing but a summary of inflow and outflow of cash, which is prepared on basis of source document like salary certificate, bank statement and such other statements. It is not necessary that appellant need to have day to day books of accounts to prepare cash flow statement. Appellant has a fair estimate of his day to day expenses or monthly expenses and accordingly; they are accounted for in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived from Mis Prakhar Builders. The receipts from Prakhar builder was a creation by A.O. himself, without having any material or evidences. It is also important to note that no incrementing material was found during the search, in the premise of appellant to show any receipts from Prakhar builders. Even the piece of paper claimed to be found in premises of Prakhar builder is nothing but a dunb document showing rough scribbling. The amount of Prakhar Builders was disputed by appellant therefore, it cannot be part of cash flow statement. Therefore, finding of A.O. to reject the cash flow statement furnished during. the assessment proceedings is merely a suspicion and surmise and there is no cogent material or finding to reject cash flow statement. Consequently the additions are not sustainable and may please be set aside. 9. On the contrary, Ld. D.R. opposed the submissions. The Ld. A.R. submitted that the addition has been made not on the basis of any incriminating material found during the course of search but it is on the basis of rejecting the claim of the assessee of cash on hand. 10. We have heard the rival submissions, perused the material available on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abul Chawala (2015) 61 Taxmann.comn 412. Ld. A.R. could not controvert the submissions of the assessee that no incriminating material was found. Moreover, we find that the addition is sustained merely on the basis of the presumption. We therefore, direct the A.O. to delete this addition. 15. Now, we take up IT(SS)A No.185/Ind/2016 pertaining to the assessment year 2009-10. The assessee has raised following grounds of appeal: 1. That the learned CIT(A) has erred in law and on facts in confirming addition of ₹ 2,00,000/-. 2. That the addition made for a sum of ₹ 2,00,000/- merely on the basis of a document, showing some amount as payment to the appellant without any supporting evidence, is not sustainable. 3. No addition can be made in the hands of appellant for a receipt of sum, unless it is shown how the amount received, constitutes an income under the Income Tax Act, 1961. 4. No addition can be made on the basis of suspicion, surmise and conjecture and without having any evidence on record to sustain such addition. 5. That the appellant reserves the right to add, alter or amend the grounds of appeal before the appeal is decided, with the perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spicion and surmise, without discharging onus by the A.O. In The Judgement of, Anant Steel Pvt. Ltd. V. Asstt. Commissioner of Income Tax(20J6) 28 ITJ 47 (Trib. - Indore) It was decided that U/s. 153A to 153C Of Income tax Act 1961- No incriminating Documents found and seized during search. An Additions were made. in assessment u/s 153A - Assessee challenged that order - HELD - In dy. CIT v. Kalani Brothers(Indore) Pvt. Ltd.,(2016) 27 ITJ 286 (TRIB.. -Indore this issue has been decided that in absence of any Incriminating material or documents seized during the course of search, the AD cannot pass order u/s 153A rlw Section 143(3) - Following that decision it has been held that in absence of any incriminating document found and seized during the course of search, the AO is not justify in making the addition in non abated assessment order while passing the order uls 153A rlw Section 143(3) It is further submitted that same amount is added to the income of MIs Akshay Shakti Shiksha Evam Sarna] Kalyan Samiti. Therefore, the same income cannot be added in two hands for the same reason. Unless, it is shown on the basis of evidences and in accordance with law that it constitutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as under: For 2010-11 During this year an addition of ₹ 6,00,0001- as undisclosed investment made on account of some paper found at the premises of Shri Pushpendra Mishra at the time of search upon him uls 132. In this regard we hereby submit that Appellant has not received any money as claimed in the assessment order from Shri Pushpendra Mishra. As claimed to be paid by him. Even the so called personal statement Shri Pushpendra-Mishra were not confronted to assessee to rebut the same. However the copy of such rough document, claimed to be the basis of receipts of ₹ 6, 00,0001- is enclosed herewith for your perusal. The document which is referred to, is said to be found in the premises of Shri Pushpendra Mishra during the search, cannot be the basis of making any addition in the hands of appellant unless there is a material or corroborating evidence to show that this amount was received by.the appellant. In Fact the presumption uls 292C states that any such document, if at all found, shall be treated as belonging to such searched person which means it does not belongs to other person. There is no corroborating material to support such transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,2001- was made to the income of appellant by the assessing officer, for the reason that, on the date of search i.e. 23/07/2009, this cash was found in the searched premises. Statement of Shri Kamta Prasad Dwivedi was recorded at the time of search and appellant in his statement, vide his reply to Question No.5, has informed that this amount of ₹ 1,53,2001- includes sum borrowed by him from Shri Ganesh Prasad Dwivedi, Shri Krishan .Pal Dwivedi and Shri Anirudh Pare as a loan for the purpose of activities of the society of which he is the Chairman. During the course of Assessment Proceedings the appellant furnished a cash flow statement for himself and his wife Smt Chandra Kanta Dwivedi who was also searched simultaneously. The cash flow so filed clearly accounts for all the transactions and the same was verified by the Assessing Officer without rejecting it or finding any specific defects in it. The appellant has also filed affidavits of Shri Anirudh Pare, Shri Krishan Pal Dwivedi and Shri Ganesh Prasad Dwivedi confirming such loans to the assessee. The total amount of ₹ 35,0001- was received as loans from these three people and sum of ₹ 74,5001- was reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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