TMI Blog2023 (4) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... identical to the facts narrated above that loan was received through banking channel and same was repaid along with interest through banking channel. The transaction of loan shown by the assessee is genuine. Thus, in our considered opinion addition cannot be made based on impugned cash receipt found from the premises of Shri Hitesh Bagdai which has been denied by the both assessee and Shri Hitesh Bagdai. Hence, the ground of appeal of the Revenue is hereby dismissed. - ITA No. 150/Rjt/2018 With C.O No.18/Rjt/2018 - - - Dated:- 22-3-2023 - SHRI WASEEM AHMED , ACCOUNTANT MEMBER And SHRI T. R. SENTHIL KUMAR , JUDICIAL MEMBER For the Revenue : Shri B. D Gupta, Sr. D.R For the Assessee : Shri R. K. Doshi, A.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue and CO filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-11, Ahmedabad, dated 07/02/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2009-10. 2. The Revenue has rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, income escaping proceedings under section 147 of the Act were initiated in the case of assesse. 5. The assessee during the assessment proceeding denied to have entered into any cash transaction with Shri Hitesh Bagdai except the transaction of loan through banking channel which was duly recorded in the books of accounts. The assessee further contended that impugned receipt was neither found from its premises nor signed or written by its director/employee/key person. Shri Hitesh Bagdai in the statement recorded under section 132(4) of the Act also categorically denied to have received cash or entered into any unaccounted cash transaction with it (assessee). There is no clarity with respect to the fact who wrote the impugned cash receipt and there was no other corroborative material suggesting cash payment was made by the assessee. Therefore, considering the fact that the impugned material found from the premises of third party without having any direct nexus and supporting corroborative evidence, no credence can be given to such cash receipt and no adverse inference can be drawn against it. 6. However, the AO disagreed with the assessee and held that the cash receipt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor or employee of the appellant. This document is not signed by any director or employee of the appellant. In such circumstances, this document is nothing but a 'dumb document' as far as the appellant is concerned and the additions made on the basis of 'dumb' document in the hands of third person ore not legally sustainable. The Hon'ble jurisdictional High Court of Gujarat, Ahmedabad held in the case of Krishan Textiles v/s, CIT (2009) 310 ITR 227 (Guj) that an amount found credited in the name of the assessee in the books of another party, the same cannot be treated as unexplained income of the assessee, The Hon'ble High Court of Delhi in the case of CIT v/s Vivek Agrawal (2015) 121 DTR 241 held that if the document found is unsigned by the assesses, it could be held as a dumb document and no addition can be made on the basis of such document. Similar findings have been given by the various judicial authorities in several cases. In the case of Meghmani Organics vis. DCIT 6 ITR 360 (And), jurisdictional Ahmedabad Tribunal has held that when the papers found showing the name of an assessee were found from a third party but papers were not prepared by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant's premises. Reason to believe is good for reopening of the assessment proceedings but to make the additions, concrete evidences are required. Mere reason to believe is not sufficient. In para 9.3 of the order, it is stated that it is possible that Mr. Bagdai might have prepared the receipt to handover to the appellant but as search took place, it could not be handed over. Here also, only possibilities are written to make the additions. The receipt contain the date of 26.6.2008 and search took place on 15.9.2009 i.e. about after 15 months. Therefore, even, this possibility is found factually incorrect. Mr. Bagdai had enough time to handover receipt to the appellant. In para 10, it is stated that facts transpires from the whole gamut of the transaction. But additions cannot be made on the basis of transpires but there has to be definite findings. Regarding making the CIT{A}'s order in the case of Shri Hitesh Bagdai as basis for making additions in the appellant's case, the CIT(A)'s order is not binding upon the AO. The AO should have make independent enquiries and give his findings. There is no mention that the CIT{A) has given these findings after allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the AO for the reasons discussed above. 12.1 On perusal of the seized document discussed above, it is transpired that the information contained therein is self-explanatory and without any ambiguity. In simple words, the information contained in the seized document can be interpreted and the inference based on the same can be drawn as far as the message reported therein is concern without any misleading of the facts. Whatever has been recorded in the seized document is also getting corroborated based on the books of accounts as far as banking transactions are concern. Thus we are of the view that such information cannot be alleged as dumb information. Accordingly, we are of the view that the same is incriminating information. But the crucial question arises whether information contained in the seized document can be used for the purpose of the addition in the hands of the assessee in the given facts and circumstances. First of all, we note that the information contained in the seized document is unilateral act of the party namely Shri Hitesh Bagdai. In other words, the signature of the assessee is not a appearing anywhere. Assuming that the party namely Shri Hitesh Bagd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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