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TMI Blog2012 (5) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the addition of ₹ 12.50 lacs which was added by the Assessing Officer on the ground that assessee has made investment outside books of account. The next grievance of the revenue is that Learned CIT(Appeals) has deleted the addition of ₹ 1,62.283 which was added by the Assessing Officer on the ground that on the amount advanced outside the books, assessee has earned interest income which has not been shown in the return. 3. In the assessee's appeal, his grievance is that Learned CIT(Appeals) has erred in confirming the addition of ₹ 5 lacs which has been advanced by the assessee outside the books to one Arneja & Co. He further pleaded that Learned CIT(Appeals) has erred in upholding the addition of ₹ 55,200 on the allegation that it represents the interest income earned by the assessee on the investment made out side the books by way of a advance to Arneja & Co. 4. The brief facts of the case are that a search and seizure operation under sec. 132 of the Income-tax Act, 1961 was carried out on the residence of the assessee on 22.03.2006. The assessee is running a proprietaryship concern in the name and style of M/s. Shivank Traders. The business premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Atul Gupta. Learned Assessing Officer did not accept the contentions of the assessee on the ground that document was found from the premises of the assessee. It is the duty of the assessee to explain the contents in the documents. Assessee failed to file any confirmation from M/s. Arneja & Co. exhibiting of not taking any loan by that concern from the assessee. In this way, learned Assessing Officer has made the addition of ₹ 5 lacs. He also estimated the interest income ought to have been earned by the assessee on this investment and made further addition of ₹ 55,200. 5. Appeal to the learned CIT(Appeals) did not bring any relief to the assessee. 6. Before us, learned counsel for the assessee submitted that Assessing Officer has erred in observing that documents were found from the premises of the assessee. It was found from the briefcase of assessee's father. He made reference to Question No. 26 of the assessee's father. It reads "I am showing you bunch of papers Nos. 1 to 68 marked as Annexure A1 which was found from your briefcase in your presence during the course of search operation at your residence" "--------". On the strength of this question, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the hands of the assessee but solely on the basis of such type of document which was not found from the possession of the assessee, addition cannot be made, because the other circumstance do not corroborate the version of the Assessing Officer. The assessee has pointed out that he never used his name as Atul Kumar, rather in all his transactions he always used Atul Kumar Gupta. Inspite of search at the residence as well as business premises, revenue authorities, could not collect any other corroborative material. The onus put upon the assessee to file a confirmation from M/s. Arneja & Co. by the A.O. to show that no loan was taken from the assessee is concerned, in our opinion, it should have been other way round i.e. Assessing Officer ought to have called M/s. Arneja & Co. and confronted the assessee about the loan taken by them from the assessee only then the matter could have been clinched. The assessee has explained that this paper appear come in possession of his father on account of some dispute between this concern and other party which was resolved by Kiryana Committee, where his father has acted as a Punch. The assessee has filed confirmation from the committee showing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.29 19450 1945 21395 11. The case of the Assessing Officer is that assessee has advanced a sum of ₹ 12,50,000 through Shri Brij Mohan Gupta to various companies mentioned above. The assessee has not accounted these loans in his books of account and he has not accounted the interest income on such advances given by him. Therefore, he made an addition of ₹ 12,50,000 on account of unexplained advancement of loan without recording them in the books of account. Further, he estimated the interest income at ₹ 1,62,283 and made the addition. On similar analogy, additions have been made in other assessment years. 12. On appeal, Learned CIT(Appeals) has deleted the addition by observing as under: "4. I have considered the assessment order, the submissions of the appellant, the facts of the case and the position of law in his context. The following conclusion emerge: a) Except the mention of the first name of "Atul", there appears to be precious little evidence found or searched by the A.O. to link up this appellant with the documents found at the search operations of the premises of Shri Brij Mohan Gupta in 2004 in spite of the fact that this appellant's premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that in this post-search analysis, revenue was able to establish a nexus between the loans advanced by Shri Brij Mohan Gupta to various concerns and the source of fund from where such advances have been made. She took us through page No.37 and pointed out that name of "Atul" which has been linked with Supari & Co., Ishwar Bhawan, has been noted. Similarly, she made a reference to page No. 40. She pointed out that Shri Ram Avtar Singh in his statement categorically explained the modus operandi of Shri Brij Mohan Gupta and how the names of persons who have advanced money through Shri Brij Mohan Gupta to various concerns have been noted in abbreviated form. She submitted that the learned Assessing Officer has rightly made the addition and Learned CIT(Appeals) has erred in deleting such additions. 15. The learned counsel for the assessee on the other hand took strong objection for filing the copies of working sheets of papers in the case of Brij Mohan Gupta available at pages 9 to 49 of the paper book of the department. He submitted that these are not the original seized material rather it is the working done by the income-tax authorities on an interpretation of the seized mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Assessing Officer, however, made the addition in the hands of the assessee. When the dispute travelled to the Hon'ble High Court, the Hon'ble Court has observed that where the revenue contends that any amount found with any person belongs to the assessee then burden is on the revenue to prove the same by bringing positive evidence on record. He further relied upon the decision of Hon'ble Calcutta High Court in the case of Vimal Kumar Damani vs. CIT reported in 261 ITR 635 and submitted that in this case Hon'ble Court has observed that the question of presumption of possession is confined to the amount recovered form a person and that possession of another cannot be presumed to be possession of the assessee. He also made reference to the decision of Hon'ble Supreme Court in the case of CBI vs. V.C. Shukla reported in (1999) 3 SCC page 410. On the strength of this decision, he pointed out that independent evidence as to trust worthiness of entries in the diaries of third person is necessary to fastened the liability on the basis of said entries. He further relied upon the decision of Hon'ble Delhi High Court in the case of CIT vs. P.K. Gupta reported in 303 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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