TMI Blog2023 (4) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... that addition was made based on the amount credited in the bank account of the assessee without referring to incriminating document found in this regard which would have made basis for the addition in the assessment. CIT(A) has also given clear finding that the entries in the bank statement which were the basis for making addition, have already been reported in the return of income filed under section 139 of the Act. There was no other material referred to by the AO while making the addition of credit entries in the bank account. We hold that there cannot be any addition to the total income of the assessee of the regular items as made by the AO in the present case. Accordingly, we do not find any infirmity in the order of the learned CIT (A). Hence, we uphold the same. Thus, the grounds of appeal of the Revenue are hereby dismissed. Addition being unaccounted receipt on account of noting/ jotting on loose paper/pocket diary etc. - CIT(A) held that pages of seized document are either dumb document or non-speaking one and worked out the amount of the receipts or payment from such pages - HELD THAT:- We find that the learned CIT(A) worked out the amount of unaccounted receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore for that reason as well the Ld. CIT-A was pleased to delete the addition made by the AO. The finding of the Ld. CIT-A was based on the order of this tribunal in the case of Rajesh Sundardas Vaswani and others [ 2020 (11) TMI 482 - ITAT AHMEDABAD] At the time of hearing, the Ld. DR has not brought anything on record contrary to the finding of the Ld. CIT-A which has been reproduced somewhere in the preceding paragraph. Therefore, we do not find any reason to interfere in the finding of the Ld. CIT-A. Hence the ground of appeal of the revenue is hereby dismissed. Addition of unexplained credit entries in bank - In the case on hand, the AO has not carried out any independent inquiry and not found any infirmity in the primary documents filed by the assessee but merely doubted the genuineness of transaction since interest was not paid on impugned loan. In our considered view, the prerogative to pay/charge interest on loan is between the parties who accepted/provided the loan and the same also depends upon various factors. Merely the parties agreed to not to charge/pay interest on loan will not vitiate the genuineness of such loan transaction unless and until the revenue bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a search was initiated u/s 132 after 31/5/2003) 4. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in not appreciating that assessment in relation to certain issues not related to the search and seizure may arise in any of the said six assessment years after the search u/s. 132 as conducted in the case of the assessee, and that if the interpretation of the ld. CITIA) were to hold a will not be possible to assess such income in the 163A proceedings while no other parallel proceedings to assess such other income can be initiated. leading to no possibility of assessing such other income, which could not have been the intention of the legislature. Further, the AO is duty bound to assess correct income of assessee as held by the Hon'ble Apex Court in the case of Mahalaxmi Sugar Mills, 160 ITR 920 (SC). 5. On the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the decisions of Hon'ble Delhi High court in the case of CIT Vs Anil Kumar Bhatia [211 Taxman 453, 352 ITR (493)] Kerala High Court in the case of E.N. Gopakumar vs. Commissioner of Income-tax (Central) [2016] 75 Taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned CIT(A) agreed with the contention of the assessee and deleted the addition made by the AO by holding that in the proceedings under section 153A of the Act, the assessment in the case of unabated years can only be framed based on materials found during the search. The relevant finding of learned CIT(A) in this regard reads as under: 7.3 It is apparent that the bank accounts were already shown in the return of income filed by the appellant and the same has not been commented upon with the findings of the search and seizure action carried out in the case of the appellant. 7.4 The issue related to addition u/s 153A in the cases in which the proceedings are not abated has been decided in favour of the assessee by the Jurisdictional High Court and Jurisdictional Tribunal as relied upon by the appellant. Legal position on the issue has been discussed comprehensively in the case of CIT vs. Kabul Chawla (2016) 380 ITR 573 (Del- HC) dated 28/08/2015. 7.5 It is a settled position of law at present that the completed assessments can be interfered with by the Assessing Officer while making assessment under section 153A only on the basis of some incriminating material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminating material/evidence, addition/disallowance cannot be sustained within the scope of section 153A of the Act. In my considered opinion, the action of the AO for making addition of deposit in the regular bank account which is already disclosed in the return of income filed u/s. 139(1) of the IT Act is not justified. Accordingly, the addition made in assessment completed u/s. 1353A is deleted. 5.3 Being aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us. 6. The learned DR before us reiterated the findings contained in the assessment order and supported the order of the AO. 7. On the other hand, the learned AR before us vehemently relied on the order of the learned CIT-A. 8. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, there was search and seizure action and under section 132 of the Act dated 4th December 2014 (i.e. during the financial year 2014-15 corresponding to A.Y. 2015-16) which was carried out in the case of Barter Group and in consequence to the same, the proceedings under section 153A of the Act was initiated in case of respondent assessee for year und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income filed under section 139 of the Act. There was no other material referred to by the AO while making the addition of credit entries in the bank account. 10. At the time of hearing, the learned DR has not brought anything on record contrary to the finding of the learned CIT (A). Accordingly, we hold that there cannot be any addition of the regular items which were disclosed by the assessee in the regular books of accounts. In holding so, we draw support and guidance from the judgment of Hon ble Gujarat High Court in case of Saumya Construction (P.) Ltd (supra) wherein it was held as under: Thus, while in view of the mandate of sub-section (1) of section 153A in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, the earlier assessment would have to be reiterated. 11. In view of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained the same in the specified format wherein he has shown receipts and payments of Rs. 4,61,89,000/- Rs. 4,89,97,800/- respectively. The assessee regarding other noting on the loose papers/ pocket diary which were not incorporated in the working sheet filed by him contended that the same are rough noting/ jotting/estimate. So, no credence can be given to them. However, the AO noticed that details w.r.t. land transaction situated at Memnagar, Hasdad, and Hasol with Alankar Infra were also found from the premises of Shri Ashot Vora as result of search. The seized documents contain clear names, amounts and in some cases clear dates also. Accordingly, the AO was of the view that transaction noted on seized documents/papers/diary etc. are not rough jotting or estimates. Thus, the AO based on seized document/paper/diary worked out the unaccounted receipts and payments at Rs. Rs. 11,58,54,994 and 21,20,96,524/- for all three years discussed above respectively and proposed to treat the same as explained money and unexplained expenses by issuing a show cause notice. The response of the assessee to the SCN are summarized as under: i. There cannot be any inference drawn based on mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried the matter before the Ld. CIT-A. 18.1 The assessee before the learned CIT(A) made contentions applicable to all the years in dispute i.e. A.Y. 2013-14 to 2015-16 which are detailed as under: (i) During the search operation, no assets, being money, bullion, jewelry etc. were found whereas the AO, based on loose paper containing unaccounted receipt/ payments worked out addition under section 69A of the Act. However, there is no correlation between the income determined and assets found. Hence, the provision of section 69A of the Act is not applicable. (ii) During the assessment proceedings, the explanations were made for each loose papers and jottings and, if any receipts or payments were coming out of those loose papers/jottings, the same has been duly recorded in the cash flow statement as submitted during the assessment proceedings. Thus, the onus cast on him was duly discharged but the AO without making any independent enquiry and bringing out any contrary material on record disregarded his contentions merely based on surmise and conjecture. (iii) The transactions in the loose papers at the most may be treated as his business turnover and the profit embedded in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO, the learned CIT(A) analyzed the specific page in the light of content on such pages and oral statement of the assessee if any recorded during the search proceeding, thereafter, he worked out the amount of receipt or payments as per his analysis. 3. In cases where the assessee was not agreed with the amounts worked out by the AO from specific pages at all, the learned CIT(A) analyzed the specific page in the light of content on such pages and oral statement of the assessee if any recorded during the search proceeding. Thereafter, the ld. CIT-A either accepted the version of assessee or AO or re-worked out other amount as per his understanding. 21. Thus, the learned CIT-A based on the above discussion worked out the amounts of receipts and payments pertaining to different assessment years and made the addition of difference between receipts and payments in the following manner: A. Year Receipts (in Rs.) Payments (in Rs.) Difference Net receipt from PY Addition to total income 2013-14 37,68,640 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce amount as income of the assessee and thereby the learned CIT(A) provided the substantial relief to the assessee. Now both the assessee and Revenue are before us in separate appeal for separate assessment years. The issue before us can be summarized as under: (i) Whether income can be assessed based on noting or jotting on the loose sheets /diary etc. found during search? (ii) The materials found in the premises of the present assessee are dumb documents or not? (iii) The quantum of transaction of receipt and payment on the impugned sheets? 25.1 With regard to the first question, we note that the provisions of section 132(4A) and section 292C of the Act provide that in the search proceedings any books of account, other document found from the possession and control of any person then it may be presumed that such books of account or document belong to such person and contents of such books of accounts and documents are true. However, we find that such a presumption under section 132(4A) or 292C of the Act is rebuttable. It is upon the assessee to rebut such presumption based on cogent material. In holding so, we find support and guidance from the judgment of Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument contains some transaction subjected to tax and consequently bears the tax liability. (ii) If yes, taxability in whose hands? (iii) The year of taxability of such income. (iv) The rate and amount of tax 25.3 A non-speaking document without any corroborative material, evidence on record and finding that such document has materialized into transactions giving rise to income of the assessee which had not been disclosed in regular books of account by such assessee, must disregarded for the purposes of assessments to be framed pursuant to search and seizure action. From the search and seizure perspective, such non-speaking seized documents are to be referred to as Dumb Documents . Therefore, in our considered opinion any loose sheets/diary/note pad containing certain noting or jotting found but on perusal of the same it not discernible that whether any transaction taxable in nature materialized which has not been recorded in the regular books of account or not corroborating with some other cogent material shall not be used for making assessment despite being presumption provide under section 132(4A) and under section 292C of the Act. In holding so, we draw support an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f C.B.I. v. V.C. Shukla [1998] 3 SCC 410 held as under: 20. It is apparent from the aforesaid discussion that loosesheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiaryvalue. The entire prosecution based upon such entries which led to the investigation was quashed by this Court. 25.6 Thus, in view of the above discussion the answer to the question is that no assessment can be made in the hand of the assessee on basis of certain noting/jotting/rough estimates on the loose sheets/note pad/diary etc. unless and until same is corroborated with independent cogent material giving rise to undisclosed income. 25.7 Now coming to the facts of the present case, we note that there were several documents in the form of loose papers/diary etc. found and impounded containing various financial transactions. Some of the pages contain dates whereas some are undated and unsigned, some pages contain clear names and narration such as receipts or payments whereas some pages contain only noting of some amount without being specific narration. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10 Likewise, the learned CIT(A) analyzed every page of seized material in the light of finding of the AO, submission of the assessee and the oral statement of the assessee recorded under section 132(4) of the Act and the contents of pages. Accordingly, the learned CIT(A) held that pages of seized document are either dumb document or non-speaking one and worked out the amount of the receipts or payment from such pages. The finding and analysis of the learned CIT(A) nowhere been controverted either by the learned AR or the learned DR. Therefore, the finding of the learned CITA(A) cannot be brushed aside in absence of cogent contrary materials. 25.11 We find that the learned CIT(A) worked out the amount of unaccounted receipt or payment based on admission by the assessee either in the statement recorded during the search or in the submission made during assessment or appellate proceeding and based on analysis of seized document which has not been controverted. Therefore, we do not find any infirmity in the order of the learned CIT(A). Nevertheless, we find that the sum of Rs. 12,58,333 has been added twice i.e. in the AY 2014-15 and 2016-17 which is not desirable under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -14. The issue has been dealt with in detail vide paragraph no. 25 of this order where we have decided the issue against the Revenue. For detailed discussion, please refer to the paragraph of this order. Hence, the grounds of appeals filed by the Revenue are hereby dismissed. 29. The next issue raised by the revenue is that the Ld. CIT-A erred in deleting the addition of Rs. 91,80,000/- on account of unexplained credit entries in bank. 30. The necessary facts are that the AO during the assessment proceeding found that the assessee s bank account maintained with Ahmedabad District Cooperative Bank Ltd was credited by Rs. 1,69,25,848/- throughout the year. The AO, in absence of satisfactory explanation regarding to the identity, genuineness and creditworthiness of the depositor treated the same as unexplained investment under section 69 of the Act and added the same to total income of the assessee. 31. The aggrieved assessee preferred an appeal before the learned CIT(A). 31.1 The assessee before the learned CIT(A) submitted that he does not maintain any books of account therefore details were not readily available as required by the AO regarding credit entries in the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO for remand report. The AO in the remand report submitted that the assessee furnished details about the credit of Rs. 91.5 lacs whereas the total amount credited in the bank is of Rs. 1,69,25,848/- only. Thus, the amount credited in the bank to the extent of Rs. 77,75,848/- remains unexplained therefore addition to this extent needs to be sustained. 31.4 With regard to the credit entry from Shri Paresh N Patel for Rs. 59 Lacs the AO submitted that the bank statement of party was not legible as the Xerox copy was faded, hence the same was not acceptable. Likewise, in the case of the party namely Shree Pushkar Construction Co., the confirmation letter was not dated, and the bank statement also pertains to different periods. 31.5 With regard to credit entry from Labdhi Finance for Rs. 15 Lacs, the AO submitted that same is proprietary concern of Shri Atul Hiralal Shah in whose case the transaction of loans or advances were not found to be genuine. 31.6 With regard to the credit entry of Rs. 10 lakhs from Shri Dharmesh Chandulal Patel, the AO submitted only confirmation and bank statement. There is no detail of ITR, hence the creditworthiness was not verified. 32. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ource of any investment. Since, AO has not found any investment as unexplained, in the books of accounts or otherwise, thus the question of invoking provisions of section 69 does not arise. The addition could have been made by the AO u/s 68 of the IT Act only but the same has been done u/s 69 of IT Act As has been held in the preceding paras that the identity, creditworthiness and genuineness has been duly proved by the appellant by furnishing the necessary details and documents in support. Therefore, the primary onus cast upon the appellant has been discharged except in the case of Jalaram Finvest Ltd from whom the appellant has obtained the loan of Rs 77,45,000/-. Thus the addition to the extent of Rs 77,45,000/- in respect of Jalaram Finvet Ltd has not been established to be genuine and neither the creditworthiness is proved, hence the same is confirmed . 8.6 However, in respect of the other depositors the addition is legally found not sustainable and the same are deleted respectfully following the decisions/judgments of the Hon'ble Courts including the followings: a) CIT v/s Apex Therm Packaging Pvt Ltd (2014) (42 taxman.com 473 (Guj)) b) Pratapbhai Virjibha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO revealed that either the assessee was not traceable or there was no such file and, accordingly, the first ingredient as to the identity of the creditors had not been established. If the identity of the creditors had not been established, consequently, the question of establishment of the genuineness of the transactions or the creditworthiness of the creditors did not and could not arise. The Tribunal did not apply its mind to the facts of this particular case and proceeded on the footing that since the transactions were through the bank account, it was to be presumed that the transactions were genuine. It was not for the ITO to find out by making investigation from the bank accounts unless the assessee proved the identity of the creditors and their creditworthiness. Mere payment by account payee cheque was not sacrosanct nor could it make a non-genuine transaction genuine. 35.1 Now, 1st we proceed to understand the identity of the party. The identity of the party refers to the existence of such a party which can be proven based on the evidence. As such the identity of a party can be established by furnishing the name, address and PAN detail, bank details, passport, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. 35.8 The next amounts aggregating to Rs. 59 Lacs and 2.5 Lacs were credited from Shri Naresh N Patel and Shree Pushkar Construction Co. respectively. The assessee during appellate proceeding claimed the same as loan credit and to establish identity, genuineness and credit worthiness furnished PAN, copy of confirmation letter, copy of bank statement of parties and copy of ITR acknowledgment. The AO in the remand report only objected to that bank statement either not visible or of another period. The AO did not feel it necessary to call for another copy of the bank statement. Therefore, in such facts and circumstances, we hold that assessee discharged primary onus cast upon him, hence we do not find any infirmity in the finding of the learned CIT(A) as he rightly deleted the addition made by the AO to this extent. 35.9 With regard to the credit aggregating to Rs. 15 Lacs from Labdhi Finance, we note that the assessee furnished PAN, copy of confirmation letter, copy of bank statement of party, and copy of ITR acknowledgment. The AO in the remand only objected that the sources of fund and advance made by the party namely Labdhi Finance held as bogus. In this respect, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed whereas the ground of appeal of the assessee is allowed for statistical purposes. 35.12 In the result, the appeal of the Revenue is hereby dismissed. Coming to IT(SS)A No. 47/AHD/2021, an appeal by the Assessee for the A.Y. 2014-15 36. The assessee has raised following grounds of appeal: 1. The Ld. CIT(A)-11 erred in law and on facts in confirming addition of Rs.36,87,106/- being alleged unaccounted payments, ignoring detailed factual and legal submission of the Appellant. 2. The Ld. CIT(A)-11 erred in law and on facts in confirming the addition of Rs.77,45,000/- made u/s. 68 of the Act ignoring the fact that the Appellant is not required to maintain any books of account and therefore, question of any unexplained credit entry in the same doesn t arise. 3. The assessee craves leave to add, amend, delete or alter one or more grounds of appeal. 37. The first issue raised by the assessee is that the Ld. CIT-A erred in sustaining the addition for Rs. 36,87,106/- made by the AO on account of unaccounted payment based on loose paper. 38. At the outset, we note that the issue raised by the assessee in his grounds of appeal for the year under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A) is right in holding that the entire unaccounted receipts or payments cannot be brought to tax and it is only the real income which is to be taxed, and accordingly restricting the net unaccounted payment of Rs.75,11,691 (Rs.6,39,76,925 Rs.5,64,65,234), when no one to one correlation has been made by the assessee so as to grant him the benefit of telescoping. 4. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition on account of unexplained credit entries in Bank of Rs.8,00,000/- despite the assessee could not establish the genuineness of transaction even during assessment proceedings or remand proceedings. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 6. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent. 42. The 1st issue raised by the revenue is that the Ld. CIT-A erred in deleting the addition made by the AO for Rs. 70,00,000/- representing unexplained cash based on the seized material found on the premises of the assessee without considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in response to such show cause notice submitted that the diary was found from the premises of the 3rd party and the nature of such transaction can only be explained by the person who maintained it i.e. Shri Ashit Haribhai Vora. Such transactions were not recorded in the handwriting of the assessee and therefore the same cannot be used against him (the assessee). 48. The assessee with respect to the seized document bearing page No. 7 of annexure-A1 submitted that it was not discernible from such seized document whether it relates to the payment made by the assessee on the stipulated dates. As such, the impugned transactions were pertaining to the barter group. 49. Likewise, the assessee also contended that he has not purchased any piece of land either in his name or in the name of his family members. As such the entire transaction relating to the land was carried out between M/s Neminath Traders Pvt Ltd and 3rdparties. Thus, in such a situation, the question of making any payment to Shri Ashit Haribhai Vora does not arise. 50. It was also submitted by the assessee that he, being a social worker, was involved in resolving the disputes of various parties between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appealnt as is clearly evident from the handwritings. During the course of the assessment proceedings Ld.Assessing Officer had put-forth the figures as jotted down on Pages No.9 10 of Annexure A/7 found and seized from the residence of Shri Ashitbhai H. Vora. On comparative study of both these papers, it was noticed that the paper found from appellant s residence contained jottings totaling to Rs.2446.86 whereas the papers found from the residence of Shri Ashit H. Vora and as shown during the course of the assessment proceedings, contained the total of Rs.2446.86 in the first coloumn, and thereafter under appellant s name there is jotting as under in the second column. Mihirbhai 50 26.06.14 15 27.06.14 5 Cheque Neminath Thereafter, in the third column the total of first column of 2446.86 has been carried forward and thereafter the same has been enhanced to Rs.2517.86 Thus, in nutshell, the paper found from appellant s residence did not contain any entries, as are mentioned in the second and the third column of the pages found from the residence of Shri Ashit H. Vora. The Jottings showin total of Rs.2446.86 pertains to the third party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of estimating the undisclosed income and the estimated tax liability for the purpo.se of deciding whether the seized assets should be seized or retained. The presumption cannot have the effect of excluding or overriding the provisions of s. 69 of the IT Act during the course of regular assessment proceedings. In light of the above, the addition of Rs.70,00,000/- made by the L.d. Assessing Officer deserves, to be deleted. Date 06/02/2018 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 1.3 The Appellant, at the outset, submits that the reference to section 132(4A) made by the AO in support of his conclusion is totally misconceived. Further the observations made by the AO that certain jottings found in the seized paper No.A-1/70 from the residence of the Appellant matches with the description contained in the papers / diary seized from the premises of Shri Ashit Vora is absolutely wrong and evident from the above documents themselves. The papers seized from the residence of Shri Ashit Vora referred to by the AO in the assessment order are for the period from 25/6/2014 to 28/6/2014 on which dates or even thereabout, no matching transactions are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law requires is corroborative material i.e. independent evidence in support of entries in the seized papers which can only lead to determination of undisclosed income. 53. The assessee in support of his contentions discussed above has also referred to various judicial pronouncements which are duly extracted on pages 34 to 38 of the appellant order. 54. The Ld. CIT-A after considering the submission of the assessee called for the remand report from the AO who submitted that all the transactions recorded in the diary are matching with the document found from the premises of the assessee except the payment of Rs. 70,00,000/- which represents the brokerage payment to the assessee. Similar brokerage was also recorded in the impugned diary paid to other brokers namely Nileshbhai Jamnagar, Nitinbhai Jamnagar which was also added in their respective hands and the same addition was confirmed by the Ld. CIT-A (11) in the hands of Shri Nileshbhai by order dated 1st November 2019. Thus, the AO in the remand report vehemently contended that the amount of Rs. 70,00,000/- in relation to the land transaction deal was not received by Shri Ashit Haribhai Vora. It is because such income wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong n our earlier submission. Further, the AO had not offered any comments on the affidavit of Shri Asit Vora clearly denying any financial involvement of the Appellant in the said land deal. The Appellant submits that the entire conclusion arrived at by the AO is vague and based on his own whims and conjectures without even remote connection with the ground realities. Unfortunately, the AO has grossly misdirected himself, is not deliberately chosen to shake his hands off, from his duty as AO to make any investigation of his own. 56. The Ld. CIT-A after considering the submission of the assessee and the remand report of the AO deleted the addition made by the AO by observing as under: DECISION 14. The grounds of appeal No. 1 to 1.5 are relating to addition of Rs.70,00,000/- treating the same as payment made for purchase of land. 14.1 I have carefully considered the facts of the case, the assessment order and the submissions made by the appellant during the course of appellate proceedings. The relevant discussion has been made by the AD at Para 5 of the assessment order A search u/s 132 was carried out on Barter Group including one Shri Asit Vora and ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidences filed by the appellant and a Page 5, he changed his stand and contended that the sale Rs 70,00.000/ is the undisclosed brokerage income of the appellant and the brokerage payment made to Nileshbhal Jamnagar, Nitinbhai Jamnagar and Mihither were not received by Amit Vora. The AO submitted his remand report dated 26.02.2020 to his office and the same was forwarded to the appellant for his comments. 14.4 The appellant filed his rejoinder to remand report and requested for admission of additional evidences and highlighted that as per the contents of the diary seized from the premises of Shri Asit Vora, the alleged Rs 70,00,000/- in the name of Mihirlibal are reflecting on the left side of the account, meaning thereby Shri Asit Vora has received the said amount. Had it been the brokerage pop made to Mihirbhai by Shri Asit Vora as alleged by the AO in his remand region then the same would be reflecting at the debit side and not on the credit side of the seized document. Hence, the observations of the AO as per assessment order and remand report are contradictory in the assessment order the same have been treated as appellant's undisclosed investment but sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of appellant has been completed by the AO. Thus on this legal aspect the addition on this account is not tenable in the case of appellant. 14.8 This view has been subscribed and followed from the Recent decision of Hon'ble ITAT, Ahmedabad Bench in the case of Rajesh Sundardas Vaswani, and Others in a bunch of 107 appeals rendered on 12/11/2020. 57. Being aggrieved by the order of the Ld. CIT-A, the Revenue is in appeal before us. 58. The Ld. DR before us reiterated the findings contained in the assessment order and supported the view of the AO. 59. On the other hand, the Ld. AR before us filed a paper book running from pages 1 to 165 and reiterated the findings contained in the order of the learned CIT-A and vehemently supported the view taken by the learned CIT-A. 60. Both the Ld. DR and the AR before us vehemently supported the order of the authorities below as favourable to them. 61. We have heard the rival contentions of both the parties and perused the materials available on record. From the foregoing paragraph, we note that the AO in the assessment order has made the addition of Rs. 70,00,000/- in the hands of the assessee on the reasoning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were matching with the documents recovered from both the parties namely assessee and Shri Ashit Haribhai Vora barring few transactions which were aggregating to Rs. 70,00,000/-. The AO has not made any addition of whatsoever of the transactions which were matching with the seized documents recovered from the premises of the assessee and Shri Ashit Haribhai Vora except the transactions which were not matching. These unmatched transactions represented the sum of Rs. 70,00,000/-. Thus, the dispute before us revolves to the tune of Rs. 70,00,000/- only. Undeniably, the AO has taken contradictory stand in the assessment order and the remand report. The AO in the assessment order has assumed the sum of Rs. 70,00,000/- representing the payment made by the assessee whereas in the remand report it was contended that the sum of Rs. 70,00,000/- represents the commission income in the hands of the assessee. First of all, we note that the transactions recorded in the seized document itself does not represent any income per se until and unless these are corroborated by the other materials or information and these documents read in aggregation of other documents/information. But, in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The next issue raised by the revenue is that the Ld. CIT-A erred in deleting the addition of Rs. 8,00,000/- on account of unexplained credit entries in bank. 65. The necessary facts are that the AO during the assessment proceeding found that the assessee bank account maintained with Ahmedabad District Cooperative Bank Ltd was credited by Rs. 3 Lacs and Rs. 5 Lacs on 5th March 2014. The AO, in absence of satisfactory explanation regarding the identity, genuineness and creditworthiness of the depositor treated the same as unexplained investment under section 69 of the Act and added the same to total income of the assessee. 66. On appeal by the assessee the learned CIT(A) deleted the addition made by the AO by observing as under: 16.1 I have perused the assessment order, submission made by the appellant before the AO before this office. I have also gone through the legal decisions furnished by the appellant in this regard. At the outset, it is clear that insufficient opportunity was granted to the appellant before completing the proceedings. The appellant has availed unsecured loans from Paresh N Patel Paresh N Patel HUF during the year under consideration. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discharged as identity, creditworthiness and genuineness of the depositors is proved. 67. Being aggrieved by the order of the learned CIT(A) the Revenue is in appeal before us. 68. The Ld. DR before us reiterated the findings contained in the assessment order and supported the view of the AO. 69. On the other hand, the Ld. AR before us reiterated the findings contained in the order of the learned CIT-A and vehemently supported the view taken by the learned CIT-A. 70. We have heard the rival contention of both the parties and perused the materials available on record. Admittedly, during the year the bank account of the assessee was credited by Rs. 8 Lakh which was treated as unexplained investment by the AO in the absence of necessary detail. The assessee during the appellate proceeding before the learned CIT-A submitted that same represent receipt of unsecured loan from Paresh N Patel and Paresh N Patel HUF. To this effect the assessee also furnished copy confirmation letter from the parties and copy of their PAN as well as ITR acknowledgment. The learned CIT(A) after considering the submission of the assessee and remand report from the AO, was pleased to delete the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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