TMI Blog2023 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri G.C. Patidar, an employee of assessee - HELD THAT:- The laptop is seized from the office of assessee. Hence by virtue of section 292C, the laptop is presumed to be owned by assessee. Although the assessee claimed that the laptop belonged to Shri Nilesh Tawtech who had expired on 21.12.2010, it was for the assessee to bring some evidence to rebut the presumption of section 292C which had not been done. If the laptop belonged to Shri Nilesh Tawtech, how could it be retained by assessee till the date of search on 27.08.2014 and not handed over to the heirs of Shri Nilesh Tawtech? Laptop was containing Tally-data in the name of XYZ 0809 2 company. On verification of tally-data, the authorities have found that it contained accounted-transactions of assessee besides unaccounted transactions. Ld. AO is, therefore, correct in concluding that the tally data, which contained the accounted-data of assessee as well, certainly belonged to the assessee. AO has analysed the nature of transactions found in tally-data; corroborated the same with the loose-papers found at the premise of Shri G.C. Patidar, another employee of assessee. To illustrate, the Ld. AO has mentioned working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premise of AIDPL and not from assessee, hence no presumption u/s 292C can be drawn against assessee; (ii) no addition can be made on the assessee u/s 153A on the basis of document found during search conducted upon someone else, particularly because the AY 2009-10 under consideration is a non-abated assessment-year; and (iii) the Ld. AO has not provided any opportunity of cross-examination of AIDPL to the assessee before relying upon the document found in possession of AIDPL. Thus, keeping in view these serious infirmities, the Ld. AO is not justified in using the impugned document against assessee. Bogus payment to petrol pumps - authorities seized certain excel sheets from DGM of assessee, which contained details of unaccounted cash-receipts by the assessee from certain petrol pumps - HELD THAT:- We observe that the Ld. CIT(A) has rightly observed that the addition was warranted to the extent of unaccounted cash-receipt only. We further observe that the excel-sheet reproduced by Ld. AO in assessment-order demonstrates that there was no cash-receipt at least during the previous year 2010-11 relevant to AY 2011- 12 under consideration. Being so, the Ld. CIT(A) is very muc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment on cash loan and has overlooked the findings of the Assessing Officer mentioned in the assessment-order. (4) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 5,52,49,940/- made on account of unaccounted investment and has overlooked the findings of the Assessing Officer mentioned in the assessment-order. (5) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in treating the documentary evidences as dumb documents in the wake of the fact that part details of such documents were matched with the books of account of assessee. IT(SS)A No. 33/Ind/2021 Revenue s appeal for AY 2010-11: (1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 1,07,12,272/- made by the Assessing Officer u/s 14A of the Income-tax Act, 1961 and has overlooked the findings of the Assessing Officer mentioned in the assessment-order. (2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 58,55,122/- made by the Assessing Officer on account of unaccounted interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted assessment-order dated 30.12.2016, wherein additions were made on different counts. Subsequently, the Ld. AO also passed a rectification-order dated 30.07.2019 u/s 154 for AY 2009-10 and 2010-11. Furthermore, the Ld. AO also passed a newer assessment-order dated 11.12.2019 u/s 153A/143(3) read with section 263 for AY 2011-12. Being aggrieved, the assessee went in first-appeals to Ld. CIT(A). The Ld. CIT(A) decided appeals vide separate appellate-order assessment-year wise for AY 2009-10, 2010-11 and 2011-12 giving substantial relief to assessee. Still being aggrieved, now the revenue/assessee have filed these appeals/cross-objections assailing the orders of Ld. CIT(A). 6. We would proceed year-wise and if common grounds are raised for multiple years, same will be dealt together. Ground No. 1 of Revenue s appeal for AY 2009-10 (Rs. 1,80,71,675), Ground No. 1 of Revenue s appeal for AY 2010-11 (Rs. 1,07,12,272), Ground No. 2 of Revenue s appeal for AY 2011-12 (Rs. 1,00,97,137): 7. These grounds relate to the disallowance u/s 14A read with Rule 8D. 8. Ld. AO made this disallowance for the reason that the assessee has made investments yielding exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: 4.1.12 Furthermore, it is worth mentioned that in the case of appellant itself, the issue of disallowance u/s 14A r.w.r 8D for AYs 2009-10 to 2011-12 has already been dealt with by Hon ble jurisdictional ITAT Indore vide appeal no ITA 589/Ind/2015 dated 20.09.2016 and 227, 228/Ind/2017 dated 25.04.2018. Hon ble ITAT has allowed claim of the appellant by stating that the investment made in quoted/unquoted shares was made out of interest free funds. Therefore, judiciously following the order of Hon ble ITAT Indore in the case of appellant addition made by the AO is deleted. 13. Clearly, therefore, there is no infirmity in the findings made by Ld. CIT(A). Before us, the Revenue has not rebutted the findings by placing any contrary material on record. Therefore, we do not see any reason to interfere with the order of Ld. CIT(A). Hence we uphold the action of Ld. CIT(A) and dismiss these grounds. Ground No. 2 of Revenue s appeal for AY 2009-10 (Rs. 82,03,684): 14. This ground relates to the addition of unaccounted interest payment on cash-loans. 15. The facts qua this addition are such that during the course of search, the authorities seized a laptop from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unted transactions and unaccounted transactions of assessee, hence the entire tally-data has to be treated as belonging to assessee and the data cannot be said to be dumb documents . Finally, the Ld. AO worked out the effect of financial transactions recorded in XYZ 08092 company and arrived at a conclusion that the assessee had taken cash-loans and paid interest thereon from unaccounted sources. With such understanding, the Ld. AO made an addition of Rs. 82,03,684/- in AY 2009-10 vide Para No. 13 to 13.2.12 of the assessment-order. 16. During first-appeal, the assessee made a detailed submission to Ld. CIT(A). After considering submission of assessee, the Ld. CIT(A) deleted this addition. The relevant paragraphs of the CIT(A) s observation are extracted below: 4.2 Ground No. 4, 5, 9 to 12:- Through these grounds of appeal, the appellant has challenged the addition of Rs. 14,83,394/-, Rs. 82,03,684/- Rs. 5,52,49,940/- on account of cash loans to directors and interest payment on cash loan. During the course of search a Lenovo laptop was found from office premises of the appellant. The AO during the course of assessment proceedings found that one tally data in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquired from his staff member regarding the impugned printouts. Mr G.C. Patidar, who worked as an accountant usually comes to office and worked for others and uses the printer installed at the premises of the appellant, informed that he has opened this account on tally to train his junior Mr. Nilesh Tawrech and most of the figures are imaginary and few of the figures were copied from the data of appellant. The appellant in support has filed affidavit of Shri G.C. Patidar regarding the same. 4.2.3 After considering the entire factual matrix and evidence/material on record inter alia written submissions filed, I reach to conclusion that impugned additions have been made on the basis of assumption and presumption which neither sustainable on facts nor in law. The AO has reached to conclusion that few of the entries in printouts and books of appellant are matching, therefore, the same represents correct picture of books of accounts of the appellant and subsequent addition was made to the income of the appellant. On perusal of copy of affidavit filed by Shri G.C. Patidar, it is observed that the said tally dummy company has been created on his instruction in order to train his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with any of the impugned cash loan transaction. Furthermore, neither the AO call any of the person whose names were mentioned on loose paper for examination nor any person whose name were mentioned on loose paper turned out to AO and has admitted that any such transaction has taken place. Therefore, in absence of any cogent evidence having direct nexus with the impugned transactions, the said impugned papers and tally data account cannot be used against the appellant. The AO has also alleged that some of the data is accounted and some of the data is unaccounted in books of accounts, however, has failed to explain that the unaccounted data. Also, the data found from the premises of Shri G.C. Patidar was not matching with the data found from the office premises of the appellant in the seized impugned tally data. The AO has also compared data found from premises of Shri GC Patidar and impugned tally account of DM Poddar. On bare reading one could easily establish that the entries mentioned in the ledger account of D.M Poddar does not matches with the jottings of the loose paper seized from premises of Shri GC Patidar. Similarly the ledger account of R.P. Poddar is also not matching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 G.L. Modi Name not found 7 Kailash Agrawal Name not found 8 Kavita Nagliya Name not found 9 Manju Anil Modi Name not found Mishraji Name not found 11 Narendra Kala Name not found 12 Neeaj Modi Name not found 13 Nitin Goyal Name not found 14 R.P. Poddar Name not found 15 R.S. Modi Name not found 16 Santosh vrindavanagrawal Name not found 17 Satish Mewada Name Found 18 Savitri Poddar Name not found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the details about the transactions of the assessee in the relevant assessment year. Any gap in the various components as mentioned in section 4 of the Income Tax Act must be filled up by the Assessing Officer through investigations and correlations with the other material found either during the course of the search or on the investigation. As a result, we hold that document No.7 is a non-speaking document. Most important ratio laid down in the said judgment is that impugned document must be speaking one and without any second interpretation and must reflect all the details about transactions of the assessee. In the instant case, the dummy tally account was created for training purposes by Shri G.C. Patidar but taking data from different sources including that of appellant. It would not be out of world to point out that the AO has never asked/enquired from the persons whose names are mentioned on the loose papers. The AO also did not enquired from Shri G.C. Patidar who has admitted to have been owner and creator of the tally account and subsequently retracted by filing affidavit dated 28.12.2016. Absence of these vital details is making the loose paper under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no evidence on record to rebut/controvert the said explanation- Additions not sustainable CIT Vs. S M Agarwal (2007) 293 ITR 43 (Del) Held that In this case the department seized documents Annexure A-28 p. 15, - gives the details of certain handwritten monetary transactions which shows that the assessee had given a loan of Rs. 22.5 lacs on interest and earned interest income of Rs. 3.55 lacs on it. The Tribunal hold this document as dumb document. The relevant findings of the Tribunal as mentioned in the above order is as under:- We have ourselves examined the contents of the document and are unable to draw any clear and positive conclusion on the basis of figures noted on it. The letters H.S. , T.2 and D-Shop cannot be explained and no material has been collected to explain the same. Likewise, the figures too are totally unexplained and on the basis of notings and jottings, it cannot be said that these are the transactions carried out by the assessee for advancing money or for taking money. Thus, in our opinion, this is a dumb document. Hon ble High Court confirmed the findings of the Tribunal and relevant findings was as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in any chit fund company or otherwise. The document found and seized might raise strong suspicion, but it could not be held as conclusive evidence without bringing some corroborative material on record. The document contained only the rough calculations and was silent about any investment. On the basis of such a dumb document, it cannot be said that there were investments made in fact by the assessee. Heavy onus lay upon the Revenue to prove that the document gives rise to undisclosed investment by the assessee. This onus has not been discharged. Accordingly no addition of undisclosed income could be made on the basis of such a document. Such a view has also been entertained by the Hon ble Allahabad High Court in CIT vs. Dayachand Jain Vaidya (1975) 98 ITR 280 (All). The addition so made, therefore, is directed to be deleted. Stanamsingh Chhabra vs. Dy. CIT (2002) 74 TTJ (Lucknow) 976: None of the loose papers seized are in the hand writing of the assessee. There is some jotting by pencil in some coded form on the loose papers made by the surveyed person or some other person. Moreover, no entries are supported by any corroborative evidence; such loose pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence is necessary as to trustworthiness of those entries which is a requirement to fasten the liability. 18. This Court has further laid down in V.C. Shukla (Supra) that meaning of account book would be spiral note book/pad but not loose sheets. The following extract being relevant is quoted hereinbelow :- 14. In setting aside the order of the trial court, the High Court accepted the contention of the respondents that the documents were not admissible in evidence under Section 34 with the following words: An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Admittedly, the alleged diaries in the present case are not records of the entries arising out of a contract. They do not contain the debits and credits. They can at the most be described as a memorandum kept by a person for his own benefit which will enable him to look into the same whenever the need arises to do so for his future purpose. Admittedly the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries there in are on mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on the basis of the dumb loose papers seized during search, in absence of any corroborative material to show undisclosed cash loan given/taken by the appellant. Some of the case laws are as under:- (i) M M Financiers (P) Ltd Vs. DCIT (2007) 107 TTJ (Chennai) Held that no addition could be made in the hands of assessee on the basis of the dumb loose slips seized from his residence, in the absence of any corroborative material to show payment of any undisclosed consideration by the assessee towards purchase of land . (ii) Monga Metals (P) Ltd Vs. ACIT 67 TTJ 247 (All. Trib): Holding that Revenue has to discharge its burden of proof that the figures appearing in the loose papers found from assessee s possession constitute undisclosed income. [In the present case, loose papers were not even seized from assessee s possession]. (iii) Pooja Bhatt Vs. ACIT (2000) 73 ITD 205 (Mum. Trib) Held that where document seized during search was merely a rough noting and not any evidence found that actual expenditures were not recorded in books of account, additions not justified. [In the instant case, similarly no other corroborative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i non neganti incumbit probation means burden of proof lies upon him who affirms and not upon him who denies. Similarly as per doctrine of common law incumbit probation qui digit non qui negat i.e. burden lies upon one who alleges and not upon one who deny the existence of the fact. The AO has failed to discharge his onus of proof especially when penalty has been imposed under deeming fiction . In view of this lacune on the part of AO, the penalty imposed is legally not sustainable. As held in the case of CIT v/s KP Varghese 131 ITR 574 (SC) by Hon ble Apex Court in absence of evidence that actually assessee paid more amount than declared in registered deed, no addition can be made. In the case of Bansal Strips (P) Ltd Ors Vs. ACIT (2006) 99 ITD 177 (Del) it has been held that :- If an income not admitted by assessee is to be assessed in the hands of the assessee, the burden to establish the such income is chargeable to tax is on the AO. In the absence of adequate material as to nature and ownership of the transactions, undisclosed income cannot be assessed in the hands of the assessee merely by arithmetically totally various figures jotted down on loosed docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities tried to corelate these figures with the various supplies made to M.P Health Dept. but AO did not call any of the parties or if called for has not brought statement of any of the parties, if recorded, on record to prove whether these parties have paid any commission to the Assessee. Even no information was supplied or given to us or brought on records what happened in the case of these parties. Inference was simply drawn on the basis of the interpretation given to the various figures appearing in the loose papers. Inference, as we have already held, whatsoever strong, cannot take the place of actuality. We have gone through the various decisions as has been relied. Hon. Supreme Court in the context of sec. 69C in the case of Pr. CIT Central III Vs. Lavnya Land Pvt Ltd [ 2019] 103 Taxmann.com 9 (SC) / [2019] 261 Taxmann 454 (SC) dismissed the SLP arising out of the Judgment CIT Vs. Lavnya Land Pvt Ltd [2017] 83 Taxmann.com 161 (Bom). The issue decided in favor of assessee as under, Whether since seized document did not belong to Assessee but seized from residential premises of one DD who had later retracted his statement, no action Under section 153C co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e account of M/s PACL India Ltd. In view of this admitted position, no infringement of Section 269SS of the Act is made out. In the present case, the entries during the course of training in a dummy Company XYZ found in one Laptop and some loose sheets found at the premises of G.C. Patidar are the sole basis. Neither there is any payment or receipt of money nor these entries have established any Debtor Creditor relationship. The taking or accepting a loan is a bilateral action but there is nothing on record to suggest such essential bilateral character which is vital to constitute a transaction of loan or deposit. Any person of ordinary prudence, giving loan in cash would ask for security such as post dated cheque, collateral guarantee etc or at least a promissory note to secure his lending. Nothing has been found during the course of search to justify the huge alleged cash borrowings. Further, as per the own averment of the Learned AO, subsequent to the Financial Year 2008-09 and 2009-10, such entries were not found carried out in the subsequent years. If these entries represent actual state of financial affairs i.e. loan taken or given in cash, they are invariably required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of Yogesh Gupta recorded on 31st May, 2006. in the said statement Yogesh Gupta had disclosed and surrendered an amount of Rs.13.05 crores as additional income in the financial year 2005-06. This included Rs.2 crores in his own hand and Rs.9.05 crores as income of Real Tech Projects Pvt. Ltd. Rs.2 crores was disclosed as undeclared income of Home Developers Pvt. Ltd. In the said statement in question Nos. 11 and 12 Yogesh Gupta 16 others was asked to explain document A-12. Yogesh Gupta had stated that these were unaccounted transactions in cash. No question was put to state or furnish the details of the writer or recipient i.e. the details of the companies, which had received the said amounts. He was also not asked to specify or state whether the amount received was on account of advances for flats or loan. Revenue was fully satisfied by the surrender made and closed their investigation. Thus, in the present case, there is doubt, but it is not established that the respondent-assessee had taken loan/deposit in cash. There is suspicion but this alone without further verification and investigation cannot justify the finding that the respondent-assessee had taken loan/deposit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dumb documents which were found during the course of search. Therefore, additions made by the AO amounting to Rs. 14,83,394/- on account of unaccounted interest paid to AIDPL (Para 13.4.10 of assessment order) (relates to other ground, hence stricken through)., Rs.82,03,684/- on account of interest payment made in cash (Para 13.2.12 of assessment order ) Rs. 5,52,49,940/- on account of cash loan advanced by PATH to its directors as per XYZ tally data are Deleted. Therefore appeal on these grounds is Allowed. 17. Before us, the Ld. DR relied upon the assessment-order and Ld. AR relied upon the order of first-appeal. 18. We have considered rival submissions of both sides and perused the material held on record carefully. After a careful consideration, we observe and find as under: (i) The laptop is seized from the office of assessee. Hence by virtue of section 292C, the laptop is presumed to be owned by assessee. Although the assessee claimed that the laptop belonged to Shri Nilesh Tawtech who had expired on 21.12.2010, it was for the assessee to bring some evidence to rebut the presumption of section 292C which had not been done. If the laptop belonged to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which are recorded during the proceeding of section 132(4) have an evidentiary value and cannot be taken lightly. (vi) In Para No. 4.2.2., the Ld. CIT(A) has taken into account During the course of search, statement of Shri GC Patidar was recorded on oath which has been retracted vide affidavit dated 28.12.2016. Since, the statement given during search has been retracted, therefore, the same cannot be relied upon. On perusal of records, we observe that the affidavit dated 28.12.2016, though made in the name of Assessing Officer, yet there is no whisper by Ld. AO in the assessment-order on affidavit having been filed or the contents of affidavit. It is also noteworthy that the assessment-order depicts that the assessee filed last-reply to Ld. AO on 26.12.2016 and the affidavit is dated 28.12.2016. Be that as it may be, assuming that the said affidavit was submitted to Ld. AO, there are several infirmities. Firstly, the affidavit which is claimed to contain the retraction is filed not before 28.12.20216, which is after about a period more than 2 years from the date of search as well as at the feg-end of assessment-order. Further, to appreciate the contents of affidavit, we re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The document contained two tables, the upper-table contained the name of assessee and the transactions which were corroborated by the books of assessee. But the lower-table neither contained the name of assessee nor the transactions mentioned therein were corroborated by assessee s books. However, the Ld. AO attributed the transactions mentioned in the lower-table to the assessee for the reason that the transactions mentioned in the upper-table were corroborated to assessee and hence the document has to be considered in entirety. Based thereon, the Ld. AO framed a view that the assessee has taken a cash loan of Rs. 1,15,00,000/- during 27/03/2008 to 31/03/2008 relevant to AY 2008-09. Further, the Ld. AO also found a transaction captioned as buy-back of shares of Rs. 3,66,25,000/- made during the previous year 2008-09 relevant to AY 2009-10 but concluded the same to be a transaction of cash-loan taken by assessee from AIDPL. The Ld. AO also observed that the assessee must have paid an interest of Rs. 14,83,394/- on the aforesaid transactions to AIDPL out of undisclosed sources. When the Ld. AO confronted the assessee in the matter, the assessee submitted that the impugned loose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The statement given which has to be used against the assessee has to be confronted and opportunity to cross examine has to be provided, which squarely apply in relation to loose paper seized from the premises of Agroh where the statement was taken behind the back. 4.2.11 Last but not the least, the loose papers relating to alleged loan and interest were found and seized from premises of Agroh Group of Indore located at Aqua Point, Umaria, Mhow as page no 19-23 of LPS-1. As far as legality of the addition, it is settled position of law that no addition/ disallowance can be made to the total income of the appellant in absence of any incriminating documents in the case of non-abate assessment year. Accordingly, the scope of assessment u/s. 153A would be restricted to incriminating material found during the course of search from premises of appellant . In the instant case the loose papers were found and seized from the premises of AIDPL (third party). Hon ble Delhi Tribunal in the case of Trilok Chand Chaudhary (2019) 33 NYPTTJ 610 (Del-Trib) dt.20-8-19 has held as under:- 5.4 it is evident that the material relied upon for making addition was not found from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch of third party, then sec 153C would be applicable and have to be adhered to. Thus, in the instant case, the AO was required to first complete the proceedings u/s 153A in hand, which were initiated by way of notice dt.30-6-14 and thereafter, he was at liberty to take action u/s 153C for bringing the material found from the premise of Shri Ashok Choudhary to tax in the hands of the assessee. 5.7. In Shivani Mahajan (Del-Trib) dt.19-3-19 ITA No.5585/DelTrib/2015, identical que was raised before the Tribunal as under: 9. we find that in these appeals, following 2 questions arise for our consideration: (i) Whether any material found in the search of any other person than the assessee in appeal, can be considered in the assessment u/s 153A of the assessee. 5.8. The Tribunal after considering arguments of the parties held as under: 14. From a reading of the above decisions of Hon ble jurisdictional HC, it is evident that completed assessment can be interfered with by the AO on the basis of any incriminating material unearthed during the course of search. If in relation to any AY no incriminating material is found, no addition or disallowance can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oose sheets vide seized document reference KKS/1 comprising of 8 pages, for which satisfactory Explanation has been given by the assessee and no addition was made by the ld AO on this seized document. The seized document used by the ld AO for making the addition in sec 153A assessment is CG/1 to 11 and CG/HD/1 which were seized only from the office premises of Cygnus group of companies in which assessee is a director. In this regard, it would be pertinent to note that as per sec 292C, there is a presumption that the documents, assets, books of accounts etc found at the time of search in the premises of a person is always presumed to be belonging to him/them unless proved otherwise. This goes to prove that the presumption derived is a rebuttable presumption. Then in such a scenario, the person on whom presumption is drawn, has got every right to state that the said documents does not belong to him/ them. The ld AO if he is satisfied with such Explanation, has got recourse to proceed on such other person (i.e., the person to whom the said documents actually belong to) in terms of sec 153C by recording satisfaction to that effect by way of transfer of those materials to the AO asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of AIDPL to the assessee before relying upon the document found in possession of AIDPL. Thus, keeping in view these serious infirmities, the Ld. AO is not justified in using the impugned document against assessee for drawing adverse inferences and making any addition. Being so, we are in agreement with the Ld. CIT(A) that the addition of Rs. 14,83,394/- is not sustainable. We, therefore, approve the action of Ld. CIT(A). This ground is, thus, dismissed. Ground No. 4 of Revenue s appeal for AY 2009-10 (Rs. 5,52,49,940), Ground No. 3 of Revenue s appeal for AY 2010-11 (Rs. 5,37,00,603): 25. These grounds relate to the additions on account of cash-loan given by assessee to its directors and their relatives, which are treated as unaccounted investments. 26. Learned Representatives of both sides fairly agree that these additions do not arise from the original assessment-order dated 30.12.2016 which is subject-matter of present appeal, in fact these additions originate from the rectification-order dated 30.07.2019 passed by Ld. AO u/s 154 of Income-tax Act, 1961. Hence, the revenue cannot raise these grounds in present-appeal though a separate appeal against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seized excel most important sheet is sheet Main Req. appearing in File Required at the location Working Copy Data Ajaychouhansystems Attachments - Excel Files From this sheet the unaccounted generation of cash through two petrol pumps namely Hari Service Station and Maliram Filing Station. The main sheet is filtered and the transactions related to said petrol pumps also confronted to the assessee vide note sheet dated 27.12.2016. In response assessee mentioned that this office has verified the sheet . The assessee has again stated partial truth the complete sheet is a big sheet in which numerous transactions are mentioned whereas the sheet which is as under is filtered sheet of transactions pertaining to those petrol pumps about which even assessee has accepted that it has made non-genuine payments and generated the cash. The modified sheet of the main sheet reflecting transactions is as under: Date Requirement details Debit Credit Remarks 18-Dec-2010 Hari Service Station-Diesel Bill Dt.13/12/10 2139927 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 500000 17.07.2011 Cash recd (Maliram) 500000 10.08.2011 Cash recd (Maliram) 500000 02.09.2011 Cash recd (Maliram) 500000 06.09.2011 Cash recd (Maliram) 500000 14.09.2011 Cash recd (Maliram) 500000 19.09.2011 Cash recd (Maliram) 500000 21.09.2011 Hari service station Diesel bill 215550 215550 RTGS HO by 28.09.2011 Cash recd (Maliram) 400000 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact mentioned above the submission of the assessee and incriminating nature of payment made as above to petrol pumps namely Maliram Filing and Hari Service Station, Following Additions are made as per the filtered sheet above. Addition as per the facts above. A.Y. Bogus payment made to Petrol pumps Amount (in Rs.) 2011-12 1,29,09,512/- 2012-13 2,05,83,759/- 32. During first-appeal, the assessee made a detailed submission to Ld. CIT(A). After considering submission of assessee, the Ld. CIT(A) agreed that the assessee has booked bogus expenditure and made unaccounted cashreceipts from petrol pumps. But, however, he analysed the excel-sheet cited by Ld. AO in assessment-order (already reproduced in preceding paragraph) and observed that the Ld. AO has made addition of full amount of Rs. 1,29,09,512/- instead of making addition to the extent of cash-refund. Ld. CIT(A) further observed that the full amount of Rs. 1,29,09,512/- is on account of total purchases of petrol/diesel during the year and not the amount of cash-receipt. Finally, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by Hon ble jurisdictional High Court in the case of Manmohan Sadani (Supra) CIT Vs. Balchand Ajit Kumar (Supra), the income which ought to have been taxed comes at Rs. 3,10,20,408/- (Rs. 38,77,55,100/- x 8.00%) which is Confirmed and appellant gets relief of Rs. 35,67,34,692/-. Therefore, appeal on these grounds is partly allowed. 37. In this backdrop, the Ld. AR representing the assessee claims that addition of 38,77,55,100/- [or the relief of Rs. 35,67,34,692/- granted by Ld. CIT(A) out of that] emanate from the newer assessment-order dated 11.12.2019 which in itself was passed in pursuance of the revisionary-order dated 14.03.2019 by Ld. PCIT. Hence, the Ld. AR vehemently contends the revenue ought to have filed a separate appeal in the matter of addition of Rs. 38,77,55,100/- [or the relief of Rs. 35,67,34,692/- granted by Ld. CIT(A) out of that] and could not raise these issues in the present-appeal. In fact, Ld. AR further went on arguing further that even the revisionary-order dated 14.03.2019 passed by Ld. PCIT has also been quashed by Indore Bench of ITAT in ITA No. 565/Ind/2019 order dated 31.01.2022. As a result thereof, the newer assessment-order dated 11.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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