TMI Blog2022 (9) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ] also held that mere entries in seized material are not sufficient to prove that assessee has indulged in such a transaction in which 'on money' has been received. Thus, in view of the aforesaid factual and legal position, we are also of the considered opinion that absence of any cogent evidence on record, we do not find any infirmity or illegality in the order passed by ld CIT(A). In the result, ground No. 2 of the appeal is dismissed. Alleged violation of Rule 46A - HELD THAT:- We find that during first appellate stage no new or fresh evidence was filed by the assessee, except narration of facts. We further find that while restricting the addition under section 69, the ld CIT(A) specifically noted that new explanation offered before him, qua cash of M.D. Infra Developers of Rs. 2.00 lacs, was contrary to the initial statement and accordingly, new explanation was rejected. No new evidence relied by the assessee is specifically brought to our notice, thus, we do not find any merit in this ground of appeal. In the result, this ground of result is also dismissed. - ITA No. 1554/Ahd/2017 - - - Dated:- 31-8-2022 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.4,48,88,893/- on account of undisclosed income without appreciating the fact involved in this case that the assessee neither appeared nor filed any explanation before the A.O during the assessment proceedings. 3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the above addition s without appreciating that the am order was passed in this case u/s 144 of the I.T. Act as the assessee neither appeared nor filed details during the assessment proceedings. 4. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in admitting the submission of the ae and thereafter deciding the facts on its own without providing any opportunity of being heard to the A.O as mandated as per Rule 46A of the Income Tax Rule, 1962. It is, therefore, prayed that the order of the Ld. CIT(A) may be set aside and that of the AO may be restored to the above extent I Brief facts of the case are that the assessee is an individual and was partner in firms namely M.D. Infra Developers, Shital Textile and director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed income/investment in the hand of assessee. The Assessing Officer noted that the assessee has failed to give any detail. The Assessing Officer in absence of any detail, proceeded under Section 144 of the Act and made further made addition of Rs. 4.488 crores while passing the assessment order under Section 144 of the Act dated 30/03/2015. 3. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A) and filed detailed written submission. Since the assessment for A.Y. 2007-08 to 2012-13 was also completed under Section 153A r.w.s 144 of the Act. The assessee also challenged those assessment orders. The ld. CIT(A) passed the consolidate order for A.Y. 2007-08 to 2013-14. For the A.Y. 2013-14, the assessee filed detailed consolidated written submissions for all years. On the addition on account of undisclosed income of Rs. 4.488 crores, the assesse submitted that the alleged addition is made by the Assessing Officer solely based on dump papers seized vide Annexure A-4 (page No. 25) and Annexure A-2 (page Nos. 82, 85, 86, 88 and 95) without having any corroborative or cogent evidence or material contrary to the explanation given by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in CIT Vs Vivek Aggarwal (2015) 56 taxmann.com 7 (Delhi) and Delhi Tribunal in ACIT Vs Sharad Chaudhary (2015) 55 taxmann.com 324 (Delhi Trib). 5. On the other addition of Rs. 7,60,087/-, the assesse contended that the Assessing Officer made addition under Section 69A of the Act. The assessee submitted that he has filed detailed written submission before the Assessing officer vide submission dated 14/3/2015 wherein the assessee has fully and satisfactorily explained with evidence to the nature and source of cash of Rs. 8,43,000/- found at the time of search from the premises of assessee. The Assessing Officer in para 9 of the assessment order has abruptly mentioned that on going through the cash book of assessee, it is seen that there is only cash balance of Rs. 83,413/- on the date of search and difference of Rs. 7,60,087/- was treated as unexplained money. Such action of Assessing Officer was not expected being a quasi-judicial officer. The assessee has explained regarding the cash of Rs. 8,43,500/- and its source vide written submission submitted dated 14/3/2015. The assessee explained that the cash belonged to the partnership firm M/s M.D Infra Developers wherein son of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven any finding about the nature of noting whether it is of loan or investment or expenditure or sales or just some numbers. The ld. CIT(A) by referring the decision in the case of Shri S.K. Gupta Vs DCIT (1999) 63 TTJ 532 wherein it was held that notings on the piece of paper do not indicate the actual transaction. The paper in question does not indicate that any transaction had ever taken place because it does not contain any information as to what the nature of transactions and that was, when no evidence has been brought on record to corroborate the allegation that assessee has entered into any transaction or had earned any income or whether any relevancy to determination the income in the hand of assessee. The ld. CIT(A) also relied upon the decision of Hon ble Delhi High Court in the case of CIT Vs Girish Chaudhary (2008) 296 ITR 619 (Delhi) wherein the Hon ble High Court relied on the decision of Hon ble Apex Court in the case of CBI Vs V.C. Shukla others (supra) wherein it was held that the file containing loose sheets of papers are not book and hence entries therein are not admissible under Section 34 of the Evidence Act. Based on his observation, the ld. CIT(A) held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A). There was consistency in the stand of the assessee. The ld CIT-DR for the revenue prayed to restore the order of assessing officer. 9. In support of ground No. 2, the ld. CIT-DR also submits that during search, certain loose papers as per Annexure A/4 and A/2 were found and seized and the assessee was failed to explain the same. The ld. CIT-DR submits that due to non-submission of details by the assessee after issuing show cause by the competent authority, the Assessing Officer made the addition because the assessee has failed to comply with all the terms of notice issued under sub-section (1) of Section 142 of the Act. The seized documents found from the premises of the assessee and the assessee has accepted the same as these were seized from his premises. The ld. CIT-DR has vehemently supported the order of Assessing officer. 10. On the other hand, the ld. AR of the assessee has submitted that the alleged addition of Rs. 4.488 Core, as made by the Assessing Officer solely based on dump papers seized vide Annexure A-4 (page No. 25) and Annexure A-2 (page Nos. 82, 85, 86, 88 and 95) without having any corroborative or cogent evidence or material contrary to the explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the partner and partner in firm M/s Shital Textile wherein the assessee is one of the partners. There is nothing tangible with the Assessing Officer, contrary to the explanation furnished by the assessee from the date of search but the Assessing Officer treated the cash of the firm as unexplained money of assessee. The ld. AR of the assessee also submits that on the day of search, the authorised officer asked to explain the cash of Rs. 8,43,500/-, the assessee replied that the amount of Rs. 5.00 lacs belong to M/s Shital Textile, kept as one of the partner at his residence for the purpose of making salary and wages to the staff and workers. Thus, the authorised officer has not seized the amount of Rs. 5.00 lacs. For balance amount of Rs. 3,43,500/- seized by the authorised officer, it was explained that it was money of flat booking in M.D. Infra Developers wherein son of assessee is partner who kept the money in his residence for safety purpose. The Assessing Officer has rightfully accepted the fact that the flat booking receipt duly recorded in the books of account of M.D. Infra Developers wherein the Assessing Officer himself treated the amount of cash of Rs. 3,43,500/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing officer relied to the said notices. Thus, there is no violation of Rule 46A. No new/ fresh/ additional evidence was filed before ld CIT(A) 14. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We have also deliberated on various case law relied by the ld AR for the assessee. We find that during the assessment, the Assessing Officer noted during search at residential premises of assessee, a cash f Rs. 8,43,500/- was found. And that on show cause the assessee explained that he has sufficient cash balance in his cash book on the date of search. Ongoing through the cash book, the Assessing officer was of the view that only cash balance of Rs. 83,413/- on the date of search was available with the assessee. Thus, he made the addition of difference of Rs. 7,60,087/- (Rs. 8,43,500-83,413) under Section 69A of the Act. As recorded above before, ld CIT(A) the assessee filed his detailed submissions. The ld CIT(A) after considering the submissions of assessee held that during search action, statement of assessee was recorded on oath on 17/7/2012. The assessee was also confronted with cash found during s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld CIT(A), the assessee filed his written submissions. The ld. CIT(A) after considering the submissions of assessee held Assessing Officer made addition on the basis of loose paper found and seized. The ld. CIT(A) held that how can mere figures mentioned on the page can be held to be undisclosed income. The Assessing Officer has not given any finding about the nature of noting, whether it is of loan or investment or expenditure or sales or just some numbers. 16. The ld. CIT(A) by referring the decision in Shri S.K. Gupta Vs DCIT (supra) wherein it was held that where the paper in question does not indicate that any transaction had ever taken place as it does not contain any information as to what was the nature of transactions and that when no evidence has been brought on record to corroborate the allegation that assessee has entered into any transaction or had earned any income or whether any relevancy for determination of the income in the hand of assessee. No addition can be made. The ld. CIT(A) also referred the decision of Hon ble Delhi High Court in the case of CIT Vs Girish Chaudhary (supra) wherein the Hon ble High Court relied on the decision of Hon ble Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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