TMI Blog2023 (9) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... ese documents are dumb documents as far as the assessee is concerned and relying upon these documents for making additions in the hands of the assessee is not justified. The assessee's case is covered on this issue by the binding judgments of Hon'ble Supreme Court t in the case of CBI vs. V.C Shukla [ 1998 (3) TMI 675 - SUPREME COURT] and common Common cause Vs. UOI [ 2017 (1) TMI 1164 - SUPREME COURT] Additions made by the AO are not found sustainable and deserved to be deleted. Moreover the AO stated that in the backup of i-phone taken from mobile phone of Shri Agam Vadecha, Phone Number of the assessee were in his mobile. Storing of assessee s telephone number in other person s phone cannot be made the basis for making additions particularly, even after taking backup of the i-phone, no sms/communication was found which remotely indicate that the assessee had transactions with the Param Properties, as written in these documents. As there is no Cheque entry tallying with any of the bank account of the assessee and there is no such reference in the assessment order by the AO, CIT(A) correctly deleted the addition - Decided against revenue. - SHRI PAWAN SING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to and information contained therein related to assessee. Consequent to the said search-action, notices u/s 153C of the Act were issued to the assessee for various assessment years and the case of the assessee. Notice u/s 143(2) of the Act vide No. ITBA/AST/S/143(2)/2017-18/1006565883(1) dated 26.09.2017 was issued which was duly served upon the assessee. Thereafter, notice u/s 142(1) of the Act along with questionnaire was issued to the assessee and same was also duly served. In response to aforesaid notices under section 143(2) of the Act, assessee Shri Abhishek Ramaniklal Shah has submitted certain documents along with written submission dated 29.12.2017. During the year the assessee has earning interest on loan and advances and he is also partner of M/s Lipica Enterprises. One of the core evidences in this case is that the documents and evidences seized during the course of search in the case of M/s Param properties contained several entries of the assessee Shri Abhishek Shah, written as Abhishek /ABK which were in the nature of loan transactions also cash receipts from sale of flats and cash payments for booking / purchase of flats in the projects Florence undertaken by Enn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies revealed that Shri Abhishk Ramniklal Shah is a resident of 4-E, Anjan Shalaka Tower, Near Lal Bungalow, Opp: V.T. Chokshi College, Athwalines Surat and is assessed to tax with the ITO Ward 1(3)(1), Surat. Thus on perusal of the same, it was ascertained that Abhishek / ABK stands for Shri Abhishek Ramniklal Shah. Further, the above detail gets strengthen by this fact that back up of i-phone of Shri Agam Vadecha, one of the partners of M/s Param Properties, was taken during the course of search proceedings, under section 132 of the Act. This number is not only featuring in the contact list but also featuring in the call log list as under which shows that assessee was in regular touch with the partners of Param Properties. Thus, it is correctly ascertained that the transaction reflect in seized documents in the name of Abhishek/ABK are of assessee Shri Abhishek Ramniklala Shah. 5. In view of the facts, the assessing officer held that to tax the amount reflecting in the seized documents, in hands of the assessee on substantive basis, which is based on a sound footing is proper, therefore, assessing officer made addition of Rs. 2,35,00,000/- on account of unexplained cash payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Abhishk Ramniklal Shah is a resident of 4-E, Anjan Shalaka Tower, Near Lal Bungalow, Opp: V.T. Chokshi College. Athwahnes Surat. Thus on perusal of the same, it was ascertained that Abhishek / ABK stands for Shri Abhishek Ramniklal Shah. Further, the above detail gets strengthen by this fact that back up of i-phone of Shri Agam Vadecha, one of the partners of M/s Param Properties, was taken during the course of search proceedings u/s. 132 of the Act. Based on these facts and circumstances, ld DR contended that addition made by the assessing officer should be sustained. 9. On the other hand, Shri Rasesh Shah, Learned Counsel for the assessee begins by pointing out that the documents were found from the 3rd party premises, these are not in the hand writing of the assessee and these are not signed by the assessee and moreover the party from whom documents were found, did not identify, the name of the assessee, hence the AO was not justified in relating these documents to the assessee. The complete name of the assessee is also not written on these papers and there are other names also written on these papers. These facts clearly shows that these documents are dumb documents as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st contention of the assessee is that the cross examination of Shri Agam Vadecha partner of M/s Param Properties was not allowed in spite of specific request made. However on going through the assessment order, there is no mention of any statement of Shri Agam Vadecha Partner of M/s Param Properties which has been used against the assessee. Rather it is mentioned in the Assessment order that Shri Agam Vadecha has not identified the person written on this paper Abhishek/ABK . From the assessment order, it is found that there is no statement against the assessee relied upon for making the additions, the contention of the cross-examination does not found acceptable hence, this contention is dismissed. The assessee further contended that in the seized material, which has been relied upon for making addition, the entries noted are in the name of ABK, Abhishek Jain, Abhi Tulsian and Rahul Jain. Thus, these entries or transactions do not belong to the assessee. The assessee further stated that on being asked to Shri Agam Vadecha partner of M/s Param Properties, he did not mentioned written as Abhishek/ABk . Therefore relating to the name written on these papers to the assessee has no ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by the AO are not justified. The assessee stated that the mere call between two persons cannot be made basis for making the additions in the hands of the assessee. The assessee is engaged in the business of real estate and he is known to Shri Agam Vadecha does not mean that the transactions written on these papers relate to the assessee. 13. The ld CIT(A) observed that it is undisputed fact that the documents relied upon for making additions were found at the premise of M/s Param Properties i.e. 3 rd party and not at the premises of the assessee. It is further undisputed fact that these documents are not in the hand writing of the assessee and not signed by the assessee. These documents were found from the premises of M/s Param Properties and on specific question by the authorized officer to identify the name of the person written on this paper, Shri Agam Vadecha partner of M/s Param Properties did not identify that the name written as Abhishek/ABK is the assessee. In such circumstances that the documents were found from the 3 rd party premises, these are not in the hand writing of the assessee and these are not signed by the assessee and moreover the party from whom docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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