TMI Blog2022 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... HAT:- As the judgment in the case of V.C. Shukla (supra) is not in relation to Income-tax Act, it was relating to criminal proceedings and there was no application of section 292C of the I.T. Act in that case. In Income Tax proceedings, strict rule of evidence is not applicable as rightly pointed out by the ld. DR. The CIT(A) should not have placed reliance on the above judgment and he should have independently examined each seized material and ought to have decided the issue on the basis of weightage of those evidence. Accordingly, this ground of revenue Allowed. Undisclosed investment in site at Ramanahalli - AO made addition being undisclosed investment at Ramanahalli based on digital evidence. This amount has been invested in purchasing a site at Ramanahalli, which is the farm house in which assessee is residing - HELD THAT:- In this case, there is a seized material in form of CD recovered from the assessee s place and it is the duty of assessee to explain the contents therein. However, the assessee failed to discharge the burden cast upon him.On the other hand, the plea of the assessee is that there was no corroborative material in the hands of AO to make such addition. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - CIT(A) computed profit from this transaction @ 20% and restricted the addition - HELD THAT:- CIT(A) estimated income @ 20% of the gross turnover which itself is very high as compared to the nature of business carried out by the assessee. Accordingly, we do not find any infirmity in the findings of CIT(A) and same is confirmed. Addition of loan - assessee has shown these loans in its statement of affairs. According to AO, assessee has not proved the receipt of this loan amount - DR submitted that the assessee has not proved the credit worthiness of the transaction and prayed that addition is to be sustained - HELD THAT:- In this case, the CIT(A) observed that the lender is an income tax assessee and capacity to lend the money to assessee. Being so, there is no infirmity in the order of CIT(A). The same is confirmed. This ground of appeal of the revenue in both the AYs is dismissed. Disallowance of depreciation claim on JCB - Assessee claimed depreciation on JCB which was let out on hire - assessee not able to produce the bills and the depreciation is denied - CIT(A) allowed depreciation by observing that assessee has let out the same on hire and offered income from sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house in Basavanahalli. Accordingly, in all these 3 AYs, the issue is remitted to the AO for fresh consideration. Alleged income arising of undisclosed sale os stone crusher unit and hot mix unit - HELD THAT:- CIT(A) deleted the addition only on the proposition that jelly movement register is a record for movement of tar mixed jelly and pure jelly. Tar mixed jelly is used in the business of sister concern, Conc Shade Constructions P. Ltd. There is no basis for such conclusion and also his finding is contradictory in nature as he observed that only gross profit to be taxed in A.Y. 2008-09. However, in the A.Y. 2011-12 he deleted the addition. Hence, we vacate his findings and remit the issue to the file of AO with a direction to assessee to establish how the undisclosed turnover is not relating to his business and it is disclosed in the books of accounts of sister concern. Thereafter the AO has to decide the issue accordingly. Profits from contract receipts - AO mentioned in his order that assessee did not produce books of account and relevant vouchers in support of income declared from his contract business - HELD THAT:- The plea of the assessee is that the assessee is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in certain years estimated income @ 20% and in this AY he estimated 8% which are contradictory. In our opinion, to meet the ends of justice, it is appropriate to remit the issue to the file of AO to decide the issue after examining books of accounts. Undisclosed Investment - AO has then come to infer that the Assessee had a modus operandi where he would enter into agreements thro Anil Kumar and finally purchase the property by a sale deed made directly from the concerned vendor - HELD THAT:- The addition made cannot be made u/s 153 A in as much the same is not forming part of any seized material. Further if it is gathered during the course of search conducted on another person, the same could only be added in a proceeding u/s 153C initiated separately in accordance with law and not under the present proceeding u/s 153 A. The AO is not justified in making this addition based on oral statement made by Anil Kumar, which has no evidentiary value, and which is not corroborated by any other evidence. The statement is a self-serving statement made by Anil Kumar and cannot be used to make an addition in the hands of the Assessee in the absence of any supporting and corroborating evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned A.O amounting to Rs. 61,08,000/- being the alleged undisclosed investments made in land under the facts and in the circumstances of the Appellants case. 4. The learned CIT (Appeals) is not justified in confirming the additions made by the learned A.O by way of alleged undisclosed income arising from sale of property being in agriculture land for Rs. 52,50,000/- which is not exigible to income-tax under the facts and in the circumstances of the Appellant's case. S. The learned CIT (Appeals) is not justified in confirming the additions made by the A.O by way of alleged unsubstantiated liability of Rs. 11,50,000/- under the facts and in the circumstances of the Appellant's case. 6. The Appellant denies himself liable to be charged interest under sections 234 A, 234 B and 234 C of the I.T. Act 1961 under the facts and in the circumstances of the Appellant's case . Further the levy of interest under sections 234 A, 234 B and 234 C of the Act is also bad in law as the period, rate, quantum and method of calculation adopted on which interest is levied are all not discernible and are wrong on the facts and in the circumstances of the Appellant's case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest is levied are all not discernible and are wrong on the facts and in the circumstances of the Appellant's case. 7. The appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 9. The ld. AR has not pressed grounds No.3, 4 5 at the time of hearing and as such, they are dismissed as not pressed. 10. Ground Nos.1, 2 7 are general in nature which do not require adjudication and dismissed accordingly. 11. Ground No. 6 is consequential and mandatory in nature. 12. In the result, ITA No.1494/Bang/2018 is dismissed. ITA No.1496/Bang/2018 (AY 2011-12) 13. The assessee has raised the following grounds:- 1. The order of the learned CIT [Appeals] Bengaluru-11, Bengaluru in as much as it is against the appellant is opposed to law, equity, probabilities, weight of evidence, facts of and the circumstances in the Appellant's case. 2. The appellant denies himself liable to be assessed on a total income of Rs. 1,26,63,894/- as confirmed by the learned CIT (Appeals), as against the total income declared by the appellant of Rs. 1,15,47,280/- on the facts and in the circumstances of the Appellants c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on estimate of income on a substantive basis on the facts and in the circumstances of the Appellants case. 5. The learned CIT [Appeals] is not justified in bringing to tax a sum of Rs.1,25,498/- by way of profit from the alleged undisclosed contract receipts of Rs. 15,68,725/-, which is not exigible top income-tax under the fact and in the circumstances of the Appellants case. 6. The Appellant denies himself liable to be charged interest under sections 234 A, 234 B and 234 C of the I.T. Act 1961 under the facts and in the circumstances of the Appellant's case. Further the levy of interest under sections 234 A, 234 B and 234 C of the Act is also bad in law as the period, rate, quantum and method of calculation adopted on which interest is levied are all not discernible and are wrong on the facts in the circumstances of the Appellants case. 7. The appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 8. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeals be allowed in the interest of equity and justice. 19. The ld. AR has not pressed ground Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deeming presumption that any books of account, other documents, money, bullion, jewellery or other value articles or things are found in the possession and control of any person in the course of search action u/s. 132 or u/s. 133A as it may be, it should be presumed that it is belonging to the concerned assessee and it is the duty of assessee to explain that it is not belonging to the assessee. Thus he submitted that in the present case the assessee failed to explain the contents of CD found in the search action in his case. Being so, it cannot be rejected on the basis of judgment of Supreme Court in the case of V.C. Shukla (supra). In our opinion, the judgment in the case of V.C. Shukla (supra) is not in relation to Income-tax Act, it was relating to criminal proceedings and there was no application of section 292C of the I.T. Act in that case. In Income Tax proceedings, strict rule of evidence is not applicable as rightly pointed out by the ld. DR. The CIT(A) should not have placed reliance on the above judgment and he should have independently examined each seized material and ought to have decided the issue on the basis of weightage of those evidence. Accordingly, this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved from the impugned CD clearly shows that the transactions mentioned therein are not belonging to any individual or business entity and it appears as though they are belonging to a political outfit or organization. The origin of this CD is not known to the Assessee. The Assessee reiterates that the said CD does not belong to him and nor does the data which it allegedly contains pertains to him. (iv) In view of the above facts circumstances the Assessee states that the impugned addition deserves to be deleted in the interest of equity and justice. 31. We have heard both the parties and perused the record. In this case, there is a seized material in form of CD recovered from the assessee s place and it is the duty of assessee to explain the contents therein. However, the assessee failed to discharge the burden cast upon him. 32. On the other hand, the plea of the assessee is that there was no corroborative material in the hands of AO to make such addition. Also the addition is made in the hands of Smt. Pallavi Ravi substantively. 33. In our opinion, if the addition is sustained in the hands of Smt. Pallavi Ravi, there cannot be any addition in the hands of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the Assessee has net agricultural Income of 7,75,000/- and gross agricultural receipts received in cash would be at least Rs. 38,75,000/-, apart from contract receipts received in cash to the extent of Rs. 1,05,07,277/- and JCB Hire Charges received in cash of Rs. 24,60,000/-. The opening cash balance as on 01-04- 2008 was Rs. 16,64,700/-. Thus, the gross receipts of the Assessee, in cash, from these sources is Rs. 1,85,06,977/-. Accordingly, all deposits stand explained and the AO has not applied his mind on this issue but, has proceeded to add all deposits as income without considering the facts of the case. (ii) The CIT(A) has rightly deleted this addition based on undisputed facts. 38. We have heard both the parties. As discussed in AY 2008-09, this issue is remitted to the AO to examine the cash flow statement for the relevant financial year and decide accordingly as discussed in A.Y.2008-09 39. For AY 2010-11 addition of Rs. 2,44,92,795/- : In this assessment year also, there is an addition on account of cash deposits into bank account. The ld.DR relied on the order of AO and prayed that issue may be remitted to the AO for fresh consideration. The ld. AR submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash deposit of Rs. 82,64,280/-. (ii) Further, the Assessee has also earned income of Rs. 90,00,000/- from property dealings which he has offered to tax. (iii) These are sufficient to explain the cash deposit of Rs. 82,64,280/-. (iv) The CIT A has rightly deleted this addition based on undisputed facts. 44. We have heard both the parties. As discussed in AY 2008-09, this issue is remitted to the AO to examine the cash flow statement for the relevant financial year. UNDISCLOSED ELECTION RELATED RECEIPTS: 45. The AO based on the data retrieved from CD found at the residence belonging to Smt. Pallavi Ravi, has brought the following amounts to tax holding the same to be undisclosed election Receipts for the following Assessment Years: AY Election Related Receipts 2008-09 12,15,745 2009-10 2,55,91,960 2011-12 63,45,500 Total 3,31,53,205 46. In this regard, it is stated that the AO has made addition based on the alleged contents of a CD, allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Smt. Pallavi Ravi, wife of C.T. Ravi. There is no evidence at all to hold that amounts are received by the Assessee or that it is Undisclosed Income of the Assessee. 51. Further, it is apparent from the seized documents, that most of the receipts and payments do not pertain to the Assessee but others, who are either known to or related to Assessee and the AO proceeded to treated the same received by the Assessee which warrants further investigation in as much as they constitute prima facie evidence of a possibility of there being Undisclosed Income, but In view of the decision of the Hon ble Supreme Court in the case of V.C. Shukla, relied upon by the Assessee, the data contained in the said CD will not by itself constitute evidence to foist a liability on the Assessee. There is no corroborative evidence available on record to lend credence to the conclusion that the receipts which are taxed as Undisclosed election related receipts do in fact constitute the income of the Assessee. Accordingly, the CIT(A) concluded that the addition is not warranted and deleted the same accordingly. 52. The Assessee submits that a receipt becomes the Income of the Recipient only when the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY Receipts (Rs. 2008-09 1,08,26,400 2009-10 1,75,00,000 Total 2,83,26,400 (ii) In this regard, it is stated that the AO has made addition based on the alleged contents of a CD seized in the residence owned by Smt. Pallavi Ravi, during search proceedings conducted on 8th of June 2012. The Assessee states that the data allegedly found in said CD is not pertaining to him. The receipts and the payments mentioned therein are not belonging to him. (iii) A prima-facie look at the data allegedly retrieved from the impugned CD clearly shows that the transactions mentioned therein are not belonging to any individual or business entity and it appears as though they are belonging to a political outfit or organization. The Assessee states that he is not a part of any political movement. The origin of this CD is not known to the Assessee. The Assessee reiterates that the said CD does not belong to him and nor does the data which it allegedly contains pertains to him. (iv) The Assessee submits that all receipts do not constitute income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ership over the said receipt and the right to deal with the same in any manner he so likes and not in any other case is not only logical but also legally correct. In other words, it is only the Real Income of a person that can be taxed. Real income postulates right of ownership as well as right of disposal. In the present case, there is no evidence to show that the Assessee received the monies, much less having Right of Ownership and Right of Disposal over the same. 59. Accordingly, the CIT(A)in view of these circumstances and respectfully following the decision of the Apex Court in the VC Shukla case, deleted the addition made on this count. 60. We have heard both the parties on the issue. As discussed earlier, there should be independent seized material to sustain the addition. If there is only uncorroborative entry in the CD, it cannot be basis for addition. The AO has to establish the live link between CD and other collateral evidence collected during the course of search action. Accordingly, the issue is remitted to the AO for fresh consideration and decision. DISALLOWANCE OF EXPENSES CLAIMED AS DEDUCTION U/S 57 OF RS. 83,95,493/- (AY 2008-09) 61. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Therefore, in view of the above it is stated that the AO is not justified in disallowing the entire expenditure claimed of Rs.83,95,493/-, u/s 57 in the circumstances of the Assessee s case. (vi) Further the AO is not justified in holding that the Assessee has made a profit of the entire sum of Rs. 97,85,000/- (i.e. the total turnover itself) in his business of timber which is without any basis and only a hypothesis, conjecture and surmise. (vii) The CIT A has rightly decided this issue in favour of the Assessee. 64. We have heard both the parties on the issue. The CIT(A) estimated income @ 20% of the gross turnover which itself is very high as compared to the nature of business carried out by the assessee. Accordingly, we do not find any infirmity in the findings of CIT(A) and same is confirmed. ADDITION OF LOAN FROM K G RAJESH AS UNDER for AY 2008-09 AY 2009-10 65. The assessee has shown these loans in its statement of affairs. According to AO, assessee has not proved the receipt of this loan amount. The ld. DR submitted that the assessee has not proved the credit worthiness of the transaction and prayed that addition is to be sustained. 66. The ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -09 6,37,500 2009-10 11,57,798 2010-11 21,82,139 2011-12 64,11,813 2012-13 45,08,714 Total 1,48,97,964 (ii) It is submitted that the Assessee has made an additions to the Fixed Assets and has claimed depreciation thereon and the bills and invoices in this regard were produced before the AO during the assessment proceedings. But the AO has ignored the same and has erroneously made the addition thereof. (iii) The CIT(A) has in the appellate proceedings, verified the bills of purchase and deleted the above additions as not warranted. (iv) Further the CIT A also upheld the contention of the assessee, that once income is determined as a percentage of turnover and in view of the additions made the rate of 8% of the business receipts, the question of disallowance of depreciation does not arise in as much as claim of depreciation is not made at all. 71. We have heard both the parties. IN all this four assessment years, i.e. 2009-10 to 2012-13, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is at a loss to understand how this addition is made. The AO has purportedly relied upon a registered sale deed dated 11/08/2009 in support of his addition. The same has however not been made available to the Assessee for his comments /rebuttal, which is opposed to principles of natural justice. (ii) The CIT(A) has erroneously held that, that apart from merely denying the transaction the Assessee has not done anything else to disprove the Sale Deed thus proceeds to confirm the addition made by the AO. The Assessee submits that, when the Assessee has entered into transaction and the document of sale is not made available to the Assessee, the question of disproving the transaction does not arise. 76. We have heard both the parties and perused the record. In this case, the CIT(A) only remitted the issue to AO for fresh consideration, though he has no power to remit the issue to the AO for fresh consideration. In our opinion, the issue has to be examined at the end of the AO. As such, he should have called for the remand report to decide himself. Instead of this, he remitted the issue to the AO for fresh consideration. We vacate that findings of CIT(A) and remit the issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade herein to that extent. He therefore restricted the addition by way of Unexplained Investments to Rs. Rs.16,08,000/- and delete the balance addition of Rs.45,00,000/-. (vii) In view of the fact that, he was not given an opportunity of cross examining the witnesses, which is in grave violation of principles of natural justice, the Assessee submits that the addition itself needs to be deleted. 80. We have heard both the parties and perused the record. In our opinion, on the basis of gross receipt from sale of agricultural land, the addition cannot be deleted and he must have seen the cash/fund flow statement of assessee for the relevant financial year before deleting the addition and accordingly we remit this issue to the file of AO with a direction to the assessee to explain the payment of sale proceeds to various parties by producing the complete cash flow statement / fund flow statement for the relevant financial year. On that basis, the AO has to decide the issue afresh. 81. For AY 2010-11 : The AO made addition towards investment in lands which are not reflected in the balance sheet at Rs.40.75 lakhs. However, CIT(A) though confirmed the addition in principle to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of unsubstantiated liability of Rs. 11,50,000/- being the difference in the balance outstanding in the name of M/s. Conc Shade Constructions Pvt. Ltd., in the Assessee s books of account as on 31.3.2009 since the difference in balance between the books of the Assessee and the Conc Shade Constructions Pvt. Ltd., is on account of omission in the books of accounts of M/s Conc Shade Constructions Pvt. Ltd., in making certain entries therein by the concerned employee. (ii) The CIT(A) has confirmed the addition for the reason that the said amount of rs.1,15,000/- is not reflected in the financials filed by M/s Conc shade Constructions. 88. We have heard both the parties on the issue. In our opinion, the assessee has to reconcile the assessee account with Conc Shade Constructions P. Ltd. Accordingly the issue is remitted to the AO for fresh consideration. Undisclosed investment Residential house in Basavanahalli (AY 2010-11 to 2012-13) 89. The AO based on seized material made these additions in 3 AYs for Rs.3,26,05,531. The CIT(A) deleted the addition by observing that the addition is only based on CD and there is no corroborative material. Against this, revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted the same accordingly. 92. We have heard both the parties and perused the material on record. The CIT(A) deleted addition in wholesome manner by passing cryptic order without going through the actual seized material. In our opinion, the issue to be examined by AO by co-relating the seized material to the investment made by the assessee in the residential house in Basavanahalli. Accordingly, in all these 3 AYs, the issue is remitted to the AO for fresh consideration. THE ISSUE OF ALLEGED INCOME OF RS.3,12,84,946/- ARISING OUT OF THE UNDISCLOSED SALE OF THE STONE CRUSHER UNIT AND HOT MIX UNIT FOR THE AY 2011-12. 93. The assessee declared total turnover of the stone crusher at Rs.3,68,40,668 and declared a net profit of Rs.31,12,980. The AO has suspected that actual turnover is Rs.7,81,77,105 as against declared turnover by assessee. The AO estimated profit at 44% and computed net profit at Rs.3,43,97,926 and reduced the amount of Rs.31,12,980 returned by the assessee and made net addition of Rs.3,12,84,946. However, CIT(A) deleted addition on the reason that there is no concrete proof of undisclosed turnover disclosed during search. The entire estimate is based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stone crushing only. (v) It is now alleged by the AO that the Assessee has not offered the income to tax with regard to the sale of Rs. 7,81,77,105/- carried on by Shree Deveeramma Stone Crushers during the financial year 2010-11 pertaining to the Assessment year 2011-12, based on the digital data that was seized during a survey operation conducted in the premises of crusher unit on 08.06.2012. (vi) In this regard it is stated that the digital data that was found at the stone crusher premises is not the books of Account maintained by the Assessee with regard to his stone crushing business. A prima facie look, at the impugned digital data reveals that it is not any accounting data but was only the data of movement of tar mixed jelly and unmixed jelly from the crusher unit to the spot where the asphalting was carried out. The data was recorded by the in-charge at the crushing unit just in order to have control over the quantum of stock of jelly and the tar used for mixing with jelly. It should be noted here that he is not a trained Accountant and further one simply cannot maintain books of Account in a jelly crushing unit which is about 20 Kms away from the town of Chikmagalur. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may be seen from the seized digital data itself that there is no uniform sales throughout the year. Therefore, it may be safely assumed that the plant is capable of running at the capacity of only about 70% ie.,0.7 X 365 (Days) X 25 (tones) X 16 (Hours) X 425 (Rs.) = 4,34,35,000/- during the FY 2010-11 the plant worked only for the 10 Months Rs.4,34,35,000 X 10 = 3,61,95,850/- 12 (xiv) It needs to be noted that the Assessee has shown a sale of Rs.3,68,40,668/- which is higher than the probable sale of Rs.3,61,95,850/- as arrived above. (xv) Another important point for consideration is that M/s Conc Shade Constructions has in its Profit Loss account accounted Purchase of Jelly to the extent of Rs 96,52,500/- for the y.e 31/03/2011 which is also the sale reflected in the books of the stone crusher unit maintained by the Assessee. In the event the sale as perceived by the AO is adopted then the purchase in the hands of Conc Shade Constructions should also go up. In a way, suppression of turnover, if any, is revenue neutral as the same is not treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y gross profit to be taxed in A.Y. 2008-09. However, in the A.Y. 2011-12 he deleted the addition. Hence, we vacate his findings and remit the issue to the file of AO with a direction to assessee to establish how the undisclosed turnover is not relating to his business and it is disclosed in the books of accounts of sister concern. Thereafter the AO has to decide the issue accordingly. Profits from contract receipts of Rs. 11,16,614/- for the AY 2011-12 RS. 20,56,458/- for AY 2012-13: 97. The AO mentioned in his order that assessee did not produce books of account and relevant vouchers in support of income declared from his contract business. Hence he estimated income from contract business @ 8% of turnover and made addition on this count. The CIT(A) observed that addition of 8% is unreasonable and this addition by way of estimation of income was done protectively by AO in view of his disallowing depreciation and unexplained liabilities which is not proper and he should have been the other way around with income being estimated substantively and depreciation and other liabilities disallowed on a protective basis. He however confirmed the addition based on estimation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d entire amount of current liabilities as on 31.3.2011 at Rs.2,36,20,498. However, CIT(A) deleted the addition holding that the income has been estimated @ 8% on a substantive basis. 102. The ld. DR submitted that assessee has not produced the books of account, liabilities to be substantiated. 103. The ld. AR submitted as follows:- (i) The AO on going through the Balance sheet of the Assessee as on 31/03/2011, has added the entire amount of Current liabilities as on 31/03/2011 of Rs. 2,36,20,498/- holding the same to be unsubstantiated for want of confirmations from the concerned creditors. (ii) The Assessee submits that the table given below gives the breakup of the current liabilities payable as on 31.03.2011 and the particulars thereof. It needs to be borne in mind that out of the outstanding balance the sum of Rs. 72,86,970/- (Rs. 88,86,970 - Rs. 16,00,000) is opening balance which does not pertain to the impugned Assessment Year. The Assessee also states that each of the balance outstanding is pertaining to the Assessees regular business, genuine and capable of being confirmed. (iii) Be it as it may In view of the fact that the CIT(A) upheld the determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LOAN ADVANCE OF RS. 2,44,71,632/- (AY 2012-13) 109. The AO relying solely upon the contents of an excel Sheet to make the addition. The CIT(A) held that the addition is not made based on evidence which will stand the test of law deleted the same in the absence of corroborative evidence in support of the same. Further in view of the fact that he had confirmed the addition made to Income from business @ 8% of turnover on a substantive basis, the CIT(A) deleted this addition on this count too. 110. The ld. DR relied on the order of AO. 111. The ld. AR submitted that it is not clear from the excel sheet itself as to what those amounts represent. There are no details as to purpose of the amounts mentioned therein. No enquiry is made about these transactions. 112. We have heard both the parties. The addition is deleted by CIT(A) there is no corroborative evidence to support the addition. However, this finding is not based on the examination of the seized material. The AO has to examine the parties concerned and confront the same to the assessee. Thereafter he shall decide the issue afresh in accordance with law. Accordingly the issue is remitted to AO for fresh consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. 118. The ld. AR submitted that the correct amount of Contract Receipts of the Assessee for the F.Y 2011-12 pertaining to the A.Y 2012-13 is Rs. 13,93,06,0451 which is also disclosed in the in the Profit Loss A/c. The Contract Receipts as per Form 26 AS is Rs. 14,08,74,770/-. This same is based on:- (i) The Contract awarded documents (ii) The form No. 16A issued by the various customers of the Assessee in respect of the works contract carried on by him during the F.Y. 2011-12 pertaining to the A.Y. 2012-13. (iii) On the basis of the acknowledgement given by the customers of the Assessee in respect of the Vat deducted at source (Form No. 156) for the F.Y. 2011-12. (iv) The various bank statements of the Assessee for the F.Y. 2011-12. 119. The ld. AR further stated as follows:0 (i) The Assessee states that the difference between the figures as evidenced by the hard copy of the Form No. 16A issued by the customers of the Assessee the Form No. 26AS is an account of the late uploading of details by officials of the Public Works Department of the State Government and the Assessee not being aware of the same at the time of filing return of income. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that when the books are rejected income is estimated as a percentage of turnover, no addition can be made by holding certain liabilities as unexplained. The decision of the CIT A is in consonance with his decision to uphold the estimation of income. 123. We have heard both the parties. As discussed in AY 2011-12, this issue is remitted to AO for fresh consideration. UNDISCLOSED INVESTMENTS IN LAND IN THE NAME OF SPOUSE OF RS. 24,09,135/- FOR AY 2012-13 124. The AO based on certain materials alleged to have been seized during the course of search (A/HBS/10, Pages 20 to 23) has concluded that the actual consideration paid is Rs.29,00,000/- and thus made the addition of a sum of Rs. 24,09,135/- to the income of the Assessee by way of undisclosed investments. 125. The ld. AR submitted that the investments in question are fully accounted by the Assessee in his books of Accounts for a total sum of Rs.4,90,865/- being the actual investments in this regard and the sources for the same are fully explained by the Assessee before Income Tax Department. Further the Assessee was not given a copy of alleged seized material at any point of time during the assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made u/s 153 A in as much the same is not forming part of any seized material. Further if it is gathered during the course of search conducted on another person, the same could only be added in a proceeding u/s 153C initiated separately in accordance with law and not under the present proceeding u/s 153 A. The AO is not justified in making this addition based on oral statement made by Anil Kumar, which has no evidentiary value, and which is not corroborated by any other evidence. The statement is a self-serving statement made by Anil Kumar and cannot be used to make an addition in the hands of the Assessee in the absence of any supporting and corroborating evidence. 131. In view of the above, the CIT(A) held that the addition is not made based on evidence which will stand the test of law. The AO has merely relied upon a self-serving statement made by Anil Kumar and in the absence of corroborative evidence in support of the statement, which appears to be purely self-serving in nature and rightly deleted the said addition of Rs.1,05,82,000/-. 132. The Assessee submits that the data allegedly found in the CD cannot be relied upon solely in order to make an addition to the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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