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2019 (8) TMI 730

..... that the reasons given by the assessee that he could not noticed service of order from the office of the CIT(A) due to mistake of assessee working at residence appears to be reasonable and comes within the meaning of reasonable cause, as provided u/s 273B. We further noted that ordinarily, a litigant does not stand to benefit by filing an appeal late, rather it creates undue hardship to the litigant, because of tax demand. Therefore, when the appellant gives reasons, for not filing the appeal within the due date prescribed under that and such reasons are supported by necessary sworn affidavit, then merely for the reason of no supporting evidences, the contents of affidavit cannot be ignored. We are of the considered view that there is a reasonable cause for not filing appeal within the time limit provided under the Act, and hence, the delay in filing of appeal is condoned and appeal filed by the assessee is admitted for hearing Addition of unaccounted money of the assessee u/s 69A - cash found during the course of search o/s 132 - assessee claims that cash found during the course of search belongs to his brother in law, who also confirmed this facts - HELD THAT:- The assessee all a .....

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..... ing the addition of ₹ 18 lacs on the ground that the assessee failed to establish the claim with regard to the alleged transaction of the property deal as the assessee has not produced confirmation letter from the party concerned or any other evidence to prove his claim. iv) The Commissioner (Appeals) failed to appreciate that at the first available opportunity b the course of me search, the assessee had explained and proved that the cash found at his residence is belonging to Shri Sanath Kumar Shetty and who had accepted ownership of the same over telephone before the officer of me Investigation Wing and hence, the addition ought not to have been made to the income of the assessee, more so when the entries in respect of the said cash were recorded in the books of Shri Sanath Kumar Shetty. v) The order of the Commissioner (Appeals) confirming the addition of Rs.l8 lacs is bad in laws and without jurisdiction. vi) Your appellant craves leave to add it to, alter, amend or delete any of the foregoing grounds of appeal. 3. At the outset, the Ld. Counsel, for the assessee submitted that there is a delay of 655 days in filing present appeal before the ITAT, for which necessary appl .....

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..... terials available on record and gone through orders of the authorities below. We have carefully considered reasons given for not filing appeal within the due date provided under the Act, and found that the reasons given by the assessee that he could not noticed service of order from the office of the CIT(A) due to mistake of assessee working at residence appears to be reasonable and comes within the meaning of reasonable cause, as provided u/s 273B of the I.T.Act, 1961. We further noted that ordinarily, a litigant does not stand to benefit by filing an appeal late, rather it creates undue hardship to the litigant, because of tax demand. Therefore, when the appellant gives reasons, for not filing the appeal within the due date prescribed under that and such reasons are supported by necessary sworn affidavit, then merely for the reason of no supporting evidences, the contents of affidavit cannot be ignored. Further refusing to condoned delay can result in merotious matter being thrown out the very threshold and cause of justice being defeated. As against this, when the delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. .....

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..... Ld. AO, on the basis of statement recorded from the assessee, during the course of search coupled with further enquiries conducted during assessment proceedings came to the conclusion that although, assessee claims that cash seized from his residence belongs to his brother in law shri Sanath Kumar Shetty, but, on perusal of statements given by the parties along with evidences, it is noticed that there is major discrepancy between the stand taken at the time of search and reasons given in the affidavit of Shri Sanath Kumar Shetty . Therefore, he opined that the assessee has failed to prove with necessary evidences that cash found in his residence is belongs to Sanath kumar Shetty and accordingly, made additions of ₹ 18 Lacs, as unaccounted money of the assessee u/s 69A of the I.T.Act, 1961. 7. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee reiterated his submissions made before the AO to argue that it was the stand of the assessee right from the date of search till completion of assessment that cash found in his residence is belongs to M/s. S.K.S. Group, a partnership firm, where his brother in la .....

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..... er it in the residence of the appellant where as in the affidavit it is stated that the books cash available in the books of account of M/s SKS group was sent to Mumbai for giving token advance for acquisition of immovable property in Mumbai and since the deal did not materialize the appellant was requested to hold the cash till shri Sanath Kumar Shetty comes to Mumbai. In the both the statements the appellant failed to establish his claim with regard to the alleged transaction or the property deal. The appellant must have produced confirmation letter from the parties concerned or any other evidence to prove his claim. Mere statement or affidavit which is not supported by evidence cannot be accepted. 7.2 Further, the bus ticket evidencing the proof for travel of Shri Prasad Shetty from Mangalore to Mumbai has also not been produced. If the said travel was true, the appellant could have at least obtained the confirmation from the travel agency proving the travel on the date. The source of income for the partners of M/s SKS group is stated to be agricultural income which also requires further verification. The appellant also did not furnish any document in support of the agricultural .....

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..... mployee of Shri Sanath Kumar Shetty. 9. The Ld. DR, on the other hand, strongly supporting order of the Ld.CIT(A) submitted that when any cash, jewellery or other valuable articles is found in the possession or control of any person in the course of search, it is presumed that such money, bullion or other documents belongs to such person, unless such person proves that money or other assets found in the possession is not belongs to him. The Ld. DR further submitted that provision of section 292C is very clear, as per which, unless the assessee demonstrate with evidences that such assets found in his possession are not belongings to him, it is presumed that assets or other books of accounts found in his possession is belongs him and contents of such books of accounts is correct. The Ld. DR further referring to provision of section 110 of the Indian Evidence Act, 1872 submitted that burden of proof as to ownership is lies on the assesse, and the question is whether, any person is owner of anything of which, he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In this case, although the assessee claims t .....

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..... Sanath Kumar Shetty. These facts were not disputed by the AO, as well as the Ld. CIT(A). The AO made additions towards cash found during the course of search only on the ground that although, assessee claims that cash found in his residence belongs to Mr. Sanath Kumar Shetty, but there is a major discrepancy between the stand taken, at the time of search, while recording statement u/s 132(4) and at the time of filing of affidavit of Mr.Sanath Kumar Shetty. No doubt there is difference in explanations offered by the assessee , at the time of search, in respect of cash found in his premises, as per which cash belongs to Mr. Sanath kumar Shetty, however said cash has been collected from one of the buyer from Mumbai and kept in his residence. Whereas, at the time of confirmation filed along with affidavit, it was explained that said cash has been brought from Mangalore through one of his employee Shri Prasad Shetty for the purpose of purchase of immovable property in Mumbai and the same has been handover to the assessee for safe keeping. On perusal of statement recorded , during the course of search and contents of affidavit filed by Mr.Sanath Kumar Shetty, we find that there is no dif .....

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