TMI Blog2022 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... computer were available. The appellant / revenue is not helpless and it can use all its powers under the Act to compel / force the assessee to share the user id, and password of the computer and the revenue can use its power under the Act to take coercive measures against the assessee and also impose a penalty for non-cooperation but nothing has been done in the present case except to sit idle and wait for the assessee to provide the information to the Department. As mentioned herein above, the Department retrieved the data on 9/12/2013 after having access to the system, the same is clear from the Mahazarnama at page 2, of the paper book. No question was asked by the search team as to whether the assessee had any other premises or factory other than the premises, which was the subject matter of the search. Incidentally, in the present case, cash was found from the business premises and residence of the assessee however, no question was asked about whether the assessee had any other factory or not. Admittedly, the assessee had the availability of cash as per books of accounts and it is not mandatory for the assessee to keep the cash only in the business premises of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be considered real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. 7. The Learned CIT(A) ought to have appreciated the fact that the rental agreement dated 01.04.2009 filed to prove the existence of factory premises, where cash of Rs.1,71,59,105/- was claimed to have been kept, is a forged document in as much as that the stamp paper used for the agreement was purchased by the landlord on 18.06.2009 whereas the agreement is stated to have been entered on 01.04.2009. 8. Any other ground that may be urged at the time of hearing . 3. Facts of the case, in brief, are that the assessee, M/s Gokul Gems Jewels (P) Ltd is a company engaged in the business of Manufacturing and trading of Gold Jewelry/ Ornaments. A search and seizure operation u/s 132 of Income Tax Act, 1961 was carried out in the above group of cases on 19-11-2013 and notice u/s 142(1) was issued and served upon the assessee on 03-07-2015 requiring the assessee to file the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve replies wanted to file, have been filed by post only. With various excuses, the assessee was found to have been lingering the proceedings till the end. 5. During the course of Search and Seizure operation, the assessee had not afforded the necessary facility to inspect the books of accounts or other documents maintained in electronic form in a laptop and CPU in PACT package. On the date of search, they had not provided the password and user ID for computers containing the electronic form of books of account to the Authorized Officer on the plea that the same was available with his Accountant. On the date of search, cash of Rs.13,69,000/- was found in the business premises and in the absence of any supporting books of accounts, the money available physically was treated as unexplained and seized to the extent of Rs.13,00,000/-. During the post search proceedings, the books of account in the electronic form were verified and found that entries were updated till 14-11-2013 only. As on 14- 11-2013, the cash balance was Rs.1,88,16,905/-. After considering the pending entries and reconciliation, the cash balance as on the date of search was arrived at Rs.1,88,69,150/-. 6. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in electronic form which was opened under Panchanama on 09/12/2013. Thereafter, the Assessing Officer proceeded to add the cash deposits made allegedly from the above cash balance available. The contention of the assessee is that the cash was 3ACT available at factory premises which were not searched. The Assessing Officer held that the assessee did not state in any statement recorded that cash was available at other premises. The explanation was taken as afterthought. But it is seen that no specific questions were put to the assessee as to cash balance vis-a-vis availability as the computer was not opened/operated. The books of account were not verified on the day of search. The Assessing Officer having found that balance as per books was Rs.1,88,16,905/- cannot make addition, if the amounts from the cash balance available are deposited in bank accounts without bringing on record any evidence to the contrary. Mere doubting the explanation of the assessee without any evidence against it and making addition holding the explanation as afterthought cannot be sustained. In the facts and circumstances as above, it is held that the addition is not warranted and the same is deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary placed at pages 44 to 47 of the Paper Book. It was submitted that it is obvious for the assessee not to keep the cash at the business premises, and it is always wise to keep the cash at safe premises. 14. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find that initially the assessee in the instant case has not given access to the books of accounts, cash book etc., which are maintained in the computer. However, from the perusal of the record, it is clear that the said electronic computer, etc., were sealed by the Department and thereafter, it was accessed only on 09.12.2013. Revenue had failed to point out the efforts undertaken by it either to retrieve or find out user id / password of computer immediately after the search. In this age of technology, the user ID and password can always be retrieved with the help of various software and technical help. However, the Department in the present case has not resorted to taking any such help as is clearly discernible from the record of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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