TMI Blog2022 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... lity by the Department in the case of company, no addition in the hands of assessee can be made. Statement made under section 132 and cash found [with reference to section 132(4A)] certainly make assessee rival for taxation but this liability of assessee has to be evaluated with other circumstantial evidences. If assessee is able to prove otherwise, certainly he will get rescue from the provisions of section 132(4) and 132(4A) of the Act. In that situation onus will be shifted on the Revenue to prove otherwise to make assessee liable for tax. We set-aside the additions made by the AO and restore the matter back to the file of AO, with a direction to verify assessee s submission with specific reference to the cash flow statement filed by company and relied upon by the assessee. Appeal filed by the assessee is allowed for statistical purposes. - ITA No. 178/Mum/2021 - - - Dated:- 3-8-2022 - SHRI PAVAN KUMAR GADALA , JUDICIAL MEMBER AND SHRI GAGAN GOYAL , ACCOUNTANT MEMBER Appellant by : Sh. Subhodh Ratnaparkhi Respondent by : Sh. Nimesh Yadav , CIT - DR ORDER PER GAGAN GOYAL , A. M : This appeal by the assessee is directed against the order of Ld. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act. [Explanation.-For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.] [(4A) 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, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found and seized. The said paper is claimed to reflect the details of transactions of proposed sale of FS1 to various parties. As per the said paper, it is stated that a sum of Rs 59,73,77,100/- was received in cash by M/s RADHE from various parties along with bank receipts of Rs.04,31,00,000/- Shri Anil Gupta another director of M/s RADHE, in his statement recorded u/s 132(4) confirmed that the cash receipts were advances for sale of proposed FS1 to the parties reflected on seized paper. It is stated that the cash receipts totalling Rs.69,73,77,100/-, have been taxed as undisclosed income in the hands of M/s RADHE by the AO for AY 2011-12 to AY 2015-16 and this has also been confirmed in appeal by CIT(A)-11, Pune. It is claimed that M/s RADHE has substantial amount of cash on the date of search and the appellant being one of the director was holding part of such cash as a custodian. It is also claimed that the AO has relied on the statement of the appellant and ignored the statement of Shri Anil Gupta (another director) which was also recorded during the search Reliance is also placed on the copy of cash flow statement of M/s RADHE submitted in the course of assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt a copy of letter dtd.9/9/2016 along with cash flow statement of M/s RADHE submitted in the course of assessments of M/s RADHE has also been produced. A perusal of the said cash flow statement, indicate cash receipt and payments end on 31/7/2014 # sum of Rs.3,82 84,000/- has been shown as cash seized from Devendra Ladhani from the opening balance of cash of Rs.29,79,76,438/- in the books of M/s RADHE as on 1/7/2014. It is therefore, claimed that the company M/s RADHE had sufficient cash balance and cash of Rs.3,82,84,000/- was kept at the residence of the appellant which was found and seized on the day of search e. 31/7/2014. Admittedly, this cash flow statement has been prepared after the search and therefore, the entries are only suggestive and not Confirmatory in nature and the evidentiary value of the same is suspecting at the best and cannot be taken at face value. 8. This submission of assessee cannot be ignored. The provisions of section 132(4) and 132(4A) of the Act has to be read with other circumstantial situations and submissions of the assessee. The statute casts an obligation on the assessee to prove otherwise. As reproduced above in para-7, the amount of cash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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