TMI Blog2019 (4) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... addition without confronting the same with the assessee and giving opportunity of cross examination - HELD THAT:- There is no dispute with regard to the fact that the addition has been made on the basis of the statement of employee of one Shri Nilesh Ajmera recorded in relation to the certain transaction recorded in the diary of Shri Nilesh Ajmera. The assessee was not confronted with the employee of Shri Nilesh Ajmera nor any cross examination of Nilesh Ajmera or his employee was given to the assessee. The addition is based on a diary of a third party. As relying on SHRI PUKHRAJ SONI [2019 (2) TMI 733 - MADHYA PRADESH HIGH COURT] evidence in the nature of diary or loose papers which are not maintained in the course of business by the third party would not be a good piece of evidence. Therefore, we are of the view that the assessing officer was not justified in making the addition without confronting the same with the assessee and giving opportunity of cross examination to the assessee. - Decided in favour of assessee. - IT(SS)A Nos.162/Ind/2016 - - - Dated:- 8-4-2019 - SHRI KUL BHARAT, JUDICIAL MEMBER And SHRI MANISH BORAD, ACCOUNTANT MEMBER Appellant by Shri Pavan Ved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. He contended that the satisfaction recorded u/s 153 of the Act cannot be super imposed as the satisfaction recorded u/s 148 of the Act. He contended that the aforesaid provision operate in two different fields. He submitted that the issue goes to the root of the exercising jurisdiction by the assessing authority. In support of these averments, Ld. Counsel drew our attention at the paper book pages Nos.1 2, wherein satisfaction recorded u/s 153A of the Act is enclosed. Ld. Counsel for the assessee submitted that even if it is assumed without prejudice to the submissions made herein before that it was an error on the part of the A.O., but such error remained un-ratified. Now the assessing officer cannot take shelter u/s 292B of the Act. He submitted that such error is un-rectified. 4. Ld. D.R. opposed the submissions of the Ld. Counsel for the assessee and supported the order of the authorities below. Ld. CIT(DR) submitted that the assessee is in response to notice issued u/s 148 of the Act which was issued on 17.12.2013 filed his return of income on 27.12.2013 declaring income at ₹ 1,80,870/-. Thereafter, the assessee participated into proceedings and did not raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y. 2009-10 and ₹ 4,00,000/- in A.Y. 2010-11. 2. Analysis of seized documents reflect that at page 165 of LPS A/23 contains the details of Hundi amount received, period, interest rate along with Dalali. Further, page 164 give details of post dated scrutiny cheques issued by the assessee, the hundi dealer Shri Sushil Golecha against the respective hundi borrowing as scrutiny cheques. To substantiate further, the reply of the Branch Manager of Bank of Rajasthan (presently ICICI Bank) received which confirmed that all the cheques were from the cheque book issued to Shri Nilesh Ajmera against his joint account No.1460101427487 maintained with his wife Smt. Sonali Ajmera. The manager further confirmed that these cheques were unused meaning thereby that these cheques were not presented before the bank. That assertion thus establishes that these were security cheques meant for security against the cash hundi loan given to the assessee. In view of the foregoing it is established beyond doubt that Shri Nilesh Ajmera has taken loan on hundis in cash from Shri Sushil Golecha. 3. The above borrowing gets further established by other findings viz. Noting at S.No.3 of page 164 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act reads as under: [Return of income, etc., not to be invalid on certain grounds. Section 292B. No return of income, assessment, notice, summons or other proceedings, or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.] 8. The law is well settled where the issue of jurisdiction of assessing authority is concerned, if the jurisdiction assumed is not in accordance with law, then it cannot be cured or ignored under the provisions of section 292B of the Act. In our considered view, the assumption of jurisdiction would begin from the recording of satisfaction by the A.O. that certain income has escaped assessment pertaining to a particular assessment year. Admittedly, the assessee has not challenged the validity of notice u/s 148 of the Act. The assessee was duly supplied satisfaction recorded u/s 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als in form of random sheets, loose papers, computer prints, hard disk and pen drive etc. and has held that they are inadmissible in evidence, as they are in the form of loose papers. 8. In the present case also entries found during search and seizure which are on loose papers are being made the basis to add income of this respondent. 9. Resultantly, in light of the Supreme Court judgements, referred above, no case for interference is made out with the order passed by the Tribunal. Moreover no substantial question of law arises in the present appeal, the appeal is dismissed. 12. Further, from the above judgement of the Hon'ble Jurisdictional High court, it is clear that such evidence in the nature of diary or loose papers which are not maintained in the course of business by the third party would not be a good piece of evidence. Therefore, we are of the view that the assessing officer was not justified in making the addition without confronting the same with the assessee and giving opportunity of cross examination to the assessee. This ground of the assessee is allowed. The A.O. is directed to delete this addition. 13. Ground No.3 is in respect of awarding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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