TMI Blog2020 (4) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... running at the same time, otherwise the Assessing Officer ought to have subjected them to tax in the assessment year 2009-10 as well, which had not been done. Addition on the basis of the expenditure made out of books of accounts - CIT(A) deleted the said addition accepting the plea of the assessee that the papers pertaining to the expenses shown in those papers were not part of his accounts but were related to the sub-contractors and the sub-contractors had also filed ITRs showing 8% NP - CIT(A) also deleted the addition on the ground that the Revenue failed to substantiate that the papers pertained to project other than Shanti Residency and there was reason to believe that when the profit was calculated on the basis of the NP/GP rate then there was nothing to separate the expenses therefrom - HELD THAT:- In view the findings recorded by the CIT(A) which have been affirmed by the learned Tribunal and considering the same on the touchstone and anvil of the arguments advanced by the learned counsel for the appellant/Revenue, we find no reason to differ as no illegality or perversity has been pointed out by learned counsel for the Revenue in the aforesaid findings of fact, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion without appreciating the fact that at the time of survey, more than one projects were in progress, the facts of which was admitted by one of Director Shri Rahul Saraf at the time of survey proceedings? 4. Whether on the facts and in the circumstances of the case, the ITAT was justified in law in upholding the decision of the Ld. CIT(A) in deleting the addition of ₹ 3,82,24,844/- made by the Assessing Officer on the basis of the impounded loose papers without appreciating the fact that the Assessing Officer had considered impounded material for A.Y. 2009-10 and A.Y. 2010-11 separately and, therefore, order of ITAT is perverse on the facts? 5. Whether on the facts and in the circumstances of the case, the ITAT was justified in law in upholding the decision of the Ld. CIT(A) in deleting the addition of ₹ 3,13,166/- made on account of expenses incurred outside the books of accounts without appreciating the fact that the addition was made on the basis of impounded material which were not recorded in the books of accounts of the assessee? 6. Whether on the facts and in the circumstances of the case, the ITAT was justified in law in upholding the decision of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidency. It was also taken into consideration by the CIT(A) that once the profit was calculated by applying NP/GP rate then the expenses were deemed to have been taken care of. Against the order of the CIT(A), the Revenue filed an appeal before the Tribunal, which was dismissed by the Tribunal vide order dated 19.06.2018 (Annexure A-3) thereby upholding the order of the CIT(A). In this manner, the present appeal has been filed by the appellant-Revenue. 4. Learned counsel for the appellant has assailed the impugned order inter alia on the ground that the onus was on the assessee to explain each and every paper found in his possession and since he failed to explain the loose papers impounded during the survey proceedings and the same were found to be unrecorded in his books of accounts, therefore, rightly the addition of ₹ 3,82,24,844/- was made by the Assessing Officer in that behalf. To bolster this argument, learned counsel has placed reliance upon the Supreme Court decision in Chuharmal vs. Commissioner of Income Tax, M.P. Bhopal (1988) 172 ITR 250 (SC) = (1988) 3 SCC 588. It was further contended that during the survey, loose papers belonging to all the six sites rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned and after considering the written submissions made by the assessee and verifying with the books of the assessee, the Assessing Officer assessed the income at ₹ 4.23 Crores and made the aforesaid additions (₹ 3,82,24,844 + ₹ 3,13,166 + ₹ 10,81,612) totalling to ₹ 3,96,19,622/- with the observation that the assessee failed to explain the papers, which were also found not recorded in the books of account. Before the CIT(A) it was contended by the assessee that during the survey conducted on 15.04.2010 only one project namely, Shanti Residency was going on. The Assessing Officer made addition of ₹ 36.62 Lac which was further enhanced by the CIT(A) by ₹ 68.37 Lac vide order dated 10.09.2013. In this manner, the total addition was confirmed of ₹ 1.05 Crores and further addition was confirmed at ₹ 2 Lac under Section 68 of the Act. Having observed so, the CIT(A) found that the present assessment (A.Y. 2010-11) was based on the same set of papers on the basis of which additions were made and confirmed in the assessment year 2009-10. It was noted that the assessee had filed second appeal against the decision of the CIT(A) relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was not done, or which, if done, has not yielded a result in conformity with the conclusions which have been drawn by the AO. Even if for argument sake, it is assumed that there was likelihood of multiple projects, all could not pertain to the instant A. Yr. If so how none of them were brought to tax in any manner in A. Yr. 2009-10 is a moot point. 3.3 It is further observed that the assessee has submitted an affidavit in line with the spirit of law embodied in rule 10 of Appellate Tribunal Rule 1963. In case of facts not (decisively) proven either way, an affidavit is a useful tool of evidence which can be utilized for drawing conclusions on insufficient premises when neither direct evidence nor preponderance of probabilities operate and apply. In the instant case the contention of the assessee is in fact, stronger because it has been demonstrated that there is complete absence of positive proof on the part of the department. It is trite law that the onus of proof lies on the party making the affirmative claim. It is not for the opposite party to prove the negative unless and until mandated by law (for example u/s 68). 3.4 The case of the assessee is further strengthene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the submission advanced by the appellant that at the time of survey more than one project was in progress. The CIT(A) specifically observed that the Assessing Officer had failed to prove that the seizure was in respect of site different from Shanti Residency project and no effort was made by him to make spot inspection to prove that at the time of survey other projects of the assessee were also running. The Assessing Officer had also not been able to substantiate that there was really any other project running at the same time, otherwise the Assessing Officer ought to have subjected them to tax in the assessment year 2009-10 as well, which had not been done. 10. As regards the argument of the learned counsel in respect of deletion of addition of ₹ 3.13 Lac on the basis of the expenditure made out of books of accounts, it is gathered that the CIT(A) deleted the said addition accepting the plea of the assessee that the papers pertaining to the expenses shown in those papers were not part of his accounts but were related to the sub-contractors and the sub-contractors had also filed ITRs showing 8% NP. The CIT(A) also deleted the addition of ₹ 10,81,612/- on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aptioned as estimate. Along with this fact, there being only one project running also is a relevant fact. I find it ironical that papers which were being contested by the assessee that they are not germane to the estimation of income are now being relied upon for their veracity in order to buttress its contention that the addition should not be made. Be that as it may, the force in the contention of the assessee is clear. The aspect of papers being captioned as estimate and not being established as pertaining to project other than Shanti Residency are uncontroverted. The NP rate argument too is unassailable. Hence, based on above reasoning the addition is directed to be deleted. 11. On the appeal of the Revenue, the learned Tribunal found that the Revenue had not brought any material to rebut the findings of the CIT(A) and thus, the findings recorded by the CIT(A) in deleting all the three additions being the findings of fact rendered after thorough and detailed analysis of the material on record by the CIT(A), were affirmed by the Tribunal. 12. Keeping in view the findings recorded by the CIT(A) which have been affirmed by the learned Tribunal and considering the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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