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TMI Blog2021 (12) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... and evidence produced by the appellant with regard to the impugned addition. 1.3 The Ld CIT(A) has erred in not holding that the order passed on 22-3-2013 was barred by limitation of time. 2.1 The Ld. CIT (A) has grievously erred in law and on facts in confirming the addition of RS.61,01,104/-. 2.2 That in the facts and circumstances of the case as well as in law, the Ld. CIT(A) ought not to have upheld the addition of Rs.61,01,104/- 2.3 The Ld.CIT (A) has erred in upholding that the appellant had failed to prove by producing the evidence that the impugned amount belonged to the firm and the partners had withdrawn from it so that it was not liable to tax. It is, therefore, prayed that the addition of Rs. 61,01,104/- upheld by the CIT(A) may kindly be deleted. 3. The interconnected issue raised by the assessee is that the learned CIT (A) erred in confirming the addition of Rs. 61,01,104/- on account of undisclosed income. 4. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of Share trading & Investment. The firm comprises four partners namely Shri Mukesh R Modi, Shri Kaushik P Patel, Shri Rakesh Patel and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed by the assessee to keep the proceedings under abeyance. 5.1 However, the assessee further by letter dated 23rd of September submitted certain additional evidences in the form of profit and loss account, statement of income and copies of ITR for the years ending as on 31 March 2001, 2002 and 2003. 5.2 Likewise the assessee has also filed the balance sheet, profit loss account, capital account of the partners, and other ledgers for the year under consideration and the bank statement for the period from 2001 to 2004. Based on these financial statements, it was contended that the amount of withdrawal shown in seized paper have no bearing on the income of the assessee firm. As such the amount represent the understanding between partners in relation to their personal share trading and outstanding amount of outside customer brought by them on which assessee firm earned only brokerage. As per the assessee, the aforesaid details i.e. the profit and loss account and statement of income filed establish the fact that firm has not earned such income. Therefore the AO was wrong in treating the same as distribution of profit of firm among partners. Further it is nowhere written on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd suggesting that the impugned amount was not the income of the assessee but of the partners. Similarly, there was no detail furnished about the fact that the impugned amount shown as withdrawal was the capital of the partners in their individual capacity. Thus the learned CIT(A) confirmed the addition made by the AO in view of seized document found and statement furnished by the Shri Lilachand Patel that amount represents distribution of profit between partners. 6. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 7. The learned AR before us filed a paper book running from pages 1 to 283 and contended that the documents found in the course of such from the 3rd party do not belong to the assessee. Therefore, proceedings under section 153C of the Act cannot be initiated. 7.1 The learned AR also submitted that the amount of withdrawal shown in the seized document does not represent the income of the assessee. As such, the transactions recorded in the seized document represent the personal transactions of the partners which do not have any bearing on the income of the firm. 7.2 The learned AR also contended that there was no opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned amount does not represent the income of the firm. In this regard, we find that the provisions of section 292C of the Act contains the assumption with respect to the documents found in the course of search. The assumption says that the contents of the documents found during the course of search are true. Indeed this presumption is rebuttable by the assessee based on the documentary evidence. The relevant provisions of section 292 reads as under: 292C. (1) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 or survey under section 133A, it may, in any proceeding under this Act, be presumed- (i) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ii) that the contents of such books of account and other documents are true; and 9.3 In view of the above, there remains no ambiguity that the onus lies upon the assessee to prove that the transactions shown in the seized paper do not represent the true contents. 9.4 On examination of the seized document, we note that it was duly signed and dated not only by all the pa ..... 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