TMI Blog2020 (2) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Tribunal is perverse in upholding the order passed by the CIT(A) deleting the additions made by the Assessing Officer on the basis of loose papers found and impounded from the premises of the assessee. The Tribunal has also upheld the inference drawn by the CIT(A) under Section 292C of the Act, 1961 so as to sustain the additions made by the CIT(A). Tribunal has given cogent reasons and arrived at conclusion on the basis of the materials and the fact found on record, which cannot be interfered in absence of any material on record to show the contrary fact on record. - Decided against Revenue. - R/TAX APPEAL NO. 803 of 2019 With R/TAX APPEAL NO. 804 of 2019 - - - Dated:- 10-2-2020 - MR. J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: Mrs Kalpanak Raval(1046) For The Appellant(s) No. 1 for the Opponent(s) No. 1 COMMON ORAL ORDER (PER : MR. JUSTICE BHARGAV D. KARIA) 1. Both the appeals are filed at the instance of the Revenue under Section 260A of the Income Tax Act, 1961 [for short, 'the Act, 1961'] arising out of the common judgment and order passed by the Income Tax Appellate Tribunal, Surat Bench, Surat [for sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and in law, the Hon'ble ITAT is correct in upholding the order passed by the Ld. CIT(A) and dismissing the appeal filed by the Revenue without considering that the assessee during the assessing proceeding failed to explain the documents / loose papers found and impounded from his premises and even disowned the same whereas the provisions of Section 292C of I.T. Act were clearly applicable? (g) Whether on the fact and circumstances of the case and in law, the Hon'ble ITAT is perverse in upholding the order passed by the Ld. CIT(A) deleting the additions made by the AO on the basis of loose papers found and impounded from his premises of the assessee, which were not explained or disowned by the assessee during the assessment proceedings and by completely ignoring the provisions of Section 110 of the Indian Evidence Act where burden of proof as to ownership has been defined as 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? 4 The facts giving rise to these appeals may summarised as under: 4.1 The survey action under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unaccounted income 4,82,56,000 Deleted 3 On account of unaccounted income 5,72,000 Confirmed 4 On account of unaccounted income 1,50,00,000 Deleted 5 On account unaccounted income 12,63,96,132 Deleted 6 On account of unaccounted onmoney receipts 40,27,600 Deleted 7 On account of unaccounted expenditure u/s 69C of the Act 97,24,958 Deleted 8 On account of unaccounted income 1,43,60,000 Partly allowed by restricting the addition to ₹ 1,34,86,000 / out of total addition made of ₹ 7,21,91,000 9 On account of unaccounted income 1,43,60,000 10 On account of unaccounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 3 Iakh Assessee was directed to explain contents of document found during course of search Assessee explained that contents of said document were rough working and no loan was given out Assessing Officer rejected assessee s explanation Whether on basis of material recovered during search, lower authorities had rightly drawn presumption in terms of section 292C Held, yes Whether, therefore, impugned addition was to be confirmed Held, yes [In favour of revenue] 17. Since the incriminating documents was recovered from the premises of the assessee, therefore, we find no reason to draw adverse inference in the finding recorded by the lower authorities, accordingly same is confirmed. However, the addition on the basis of seized material is worked out to ₹ 4,72,000 [being loan amount of ₹ 4 Lakhs and interest of ₹ 72,000/ ]. Therefore, addition of ₹ 4,72,000 is confirmed and balance addition of ₹ 1,00,000 is deleted. However, since the assessee has claimed that telescoping should be allowed with respect to addition sustained in Ground No. 1 above ₹ 86.44 lakhs. The assessee is entitled to telescoping of ₹ 4 lakhs. Therefore, same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of CIT(A), accordingly, same is upheld. This ground of appeal of revenue is therefore, dismissed. ● Question [b]: Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT erred in upholding the order passed by the Ld. CIT(A) in respect of addition made on account unaccounted income of ₹ 1,50,00,000/ by accepting the explanation of the assessee? We have heard the rival submissions and perused the relevant material on record. We find that BF 2 Page No. 40 reflected 10 number cheques of ₹ 15 Lakh each in respect of Five person. These cheques were pertaining to Bhavnagar District Co operative Bank Ltd. with whom the assessee, nor any of his family members were having any bank account. Further, such cheques were not cleared or deposited with bank account of the assessee maintained with Surat Peoples Co operative Bank Ltd. These facts stands verified by the AO during remand report proceedings and by Ld. CIT(A) in appellate proceedings. Therefore, in absence of any corroborating evidences, the addition made by the AO in respect of cheque entries has been rightly deleted. Having careful consideration of facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in no way associated with Sarjan Co operative Society. Having careful consideration of above facts, we are of the considered opinion there was no corroborating evidences on record, which suggested that the transactions, were related to in any manner with the assessee. In view of these facts and circumstances, we are of the considered view that Ld. CIT(A) was not in error in deleting the addition so made by the AO. Therefore, this grounds of appeal of revenue is accordingly, dismissed. ● Question [d]: Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT erred in upholding the order passed by the Ld. CIT(A) and dismissing the appeal filed by the Revenue in respect of addition made on account of unexplained expenditure u/s 69C of ₹ 97,24,958/ ? We have heard the rival submissions and perused the relevant material on record. We find that the AO has made enquiries during the course of remand proceedings wherein he has examined Shri Lavjibhai Haribhai Patel, the President of Madhav Darshan Co op Housing Society Ltd. who developed the Laxmi Darshan Complex. It has been emerged that the assessee has acted as Panch in resolving a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in coded figures and arrived at a correct figure of which working is given in Para 6.8.5 of his order as reproduced in this appellate order above. Thus, considering the totality of the facts and details entries pertaining to each plot recorded in the impounded document showed that the assessee has sold 10 plots to various 10 buyers and had received a sum of ₹ 74,66,000/as advanced towards the sale of plot. It is further noticed that the assessee has paid simple interest @2% per month on the amount deposited by the buyer which has been calculated at ₹ 60,20,000/ by the Ld. CIT(A). Thus, the total amount returned back to the various buyers has been worked out at ₹ 1,34,86,000/ [ 74,66,000 + 60,20,000] which included the interest as well as the principal amount. Since, the assessee was not able to furnish any details regarding the source of these payments the ld.CIT(A) has rightly upheld the addition to this extent. Therefore, we do not find any infirmity in the order the ld.CIT(A) in sustaining the addition of ₹ 1,34,86,000/ , hence, same is upheld. With regard to Revenue s ground of appeal in respect of deletion of addition of ₹ 34,82,000/ we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no interference is warranted. As there are concurrent finding of fact by both the authorities, none of the questions of law being questions No.[a] to [e] can be termed as substantial questions of law, the appeal stands dismissed. 14. As regards to questions Nos.[f] is concerned, the same pertains to application of Section 292C of the Act, 1961 and perversity in the order of the Tribunal. As the Tribunal has, in fact, confirmed the application of Section 292C of the Act, 1961 invoked by the CIT(A), question No.[f] does not arise from the impugned order of the Tribunal. 15. As regard to question No.[g], the Tribunal has arrived at finding of fact on the basis of the materials placed before it, there is nothing on record to come to the conclusion that the Tribunal has ignored the material which is required to be considered or has taken into consideration the material which is not relevant. Moreover, it is not the case of the Revenue that the Tribunal has arrived at the aforesaid finding of fact without any evidence. Therefore, the application of Section 100 of the Indian Evidence Act cannot be said to be ignored by the Tribunal, as canvassed by the Revenue. In the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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