TMI Blog2021 (4) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, one with ₹ 15 lakh and another with ₹ 5 lakh. In the impugned assessment order, the AO had stated that there is reason to believe that the amount of ₹ 1 crore chargeable to tax for assessment year 2009-2010 have escaped assessment, while the impugned order relates to the assessment year 2011-2012. All these facts point to a situation that the addition has been made merely on surmises, conjectures and without any valid evidences. On identical facts arising out of the same search case, the Tribunal in the case of D.S. Suresh v. ACIT [ 2021 (4) TMI 1 - ITAT BANGALORE] had held that the addition of ₹ 10 lakh for assessment year 2009-2010 and ₹ 49 for the assessment year 2011-2012 is to be deleted. Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income and one such recipients of the payment from RNSIL was the assessee. According to the A.O., there was reason to believe that an amount of ₹ 1 crore chargeable to tax has escaped assessment within the meaning of section 147 of the I.T.Act. Hence, the assessment was reopened by issuance of notice u/s 148 of the I.T.Act. The assessment u/s 143(3) r.w.s. 147 of the I.T.Act was completed vide order dated 28.03.2016, wherein the A.O. held that RNSIL is a leading contractor, which had executed several Government contracts for building roads, bridges, canals etc. in the State of Karnataka. During the course of search and seizure, several incriminating material was unearthed pointing out unaccounted income being paid to public servants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance), RNSIL during the crossexamination, stated that the statement recorded on 16.02.2012 was by force and he intimated the same to DDIT (Investigation) Bangalore as early as on 07.03.2012. The VP (Finance) RNSIL had also stated neither he nor RNSIL had made any payment to the assessee. The A.O. sent his report vide his letter dated 22.10.2018 and was forwarded by the concerned JCIT vide letter dated 25.10.2018. The CIT(A), however, rejected the contentions of the assessee and confirmed the addition of ₹ 5 lakh made by the A.O. The CIT(A) held that mentioning of ₹ 5 lakh in one set of reason for reopening and ₹ 15 lakh in another is only a mistake and a typographical error. The CIT(A) further held that though the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronic record and the same is not collected in compliance with section 65-B of Indian Evidence Act r.w.s. 2(1)(t) of Information Technology Act and section 132(iib) of the I.T.Act. Any electronic record can only be considered as a piece of evidence which shall be as per section 65-B of the Indian Evidence Act and on complying the conditions enumerated u/s 65B(4) of the Indian Evidence Act. The above said principle has been settled by the Hon ble Supreme Court in the case of (Anver P.V. v. P.K.Basheer and Ors. reported in (2014) 10 SCC 473. The diary noting, the statement of VP (Finance), RNSIL has not pointed out any payment to the assessee. The statement recorded on 16.02.2012 (date of search) was retracted by the VP (Finance) RNSIL on 07.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RNSIL to that of the assessee. There is no mentioned anywhere that the assessee was the recipient of the payment, the alleged quantum of payment, the date, the month or the year of the alleged payment. There were two sets of reasons for reopening the assessment, one with ₹ 15 lakh and another with ₹ 5 lakh. In the impugned assessment order, the A.O. at page 2 had stated that there is reason to believe that the amount of ₹ 1 crore chargeable to tax for assessment year 2009-2010 have escaped assessment, while the impugned order relates to the assessment year 2011-2012. All these facts point to a situation that the addition has been made merely on surmises, conjectures and without any valid evidences. 7.2 On identical fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve evidence to make any evidence towards undisclosed escaped income. It was held by the Hon'ble Supreme Court in the case of CBI Vs. V.C. Shukla 3 SCC 410 that file containing loose sheets or papers are not books and hence entry therein are not admissible u/s. 34 of the Evidence Act, 1872. In the present case, the seized material having certain entries are found, regarding amount which was presumed thus are illegal payments to the persons mentioned therein. These entries are unsubstantiated. On that basis one cannot reach to the conclusion that figures mentioned therein are the undisclosed payments in these assessment years under consideration to the present assessee. In our opinion, the documents relied on by the Assessing Officer fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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