9911796707
TMI Blog2023 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... Cross-Objection No. 44/Ind/2021, 45/Ind/2021 and 46/Ind/2021 are filed by assessee respectively out of those IT(SS)As. 2. At the time of hearing, the Ld. AR appearing on behalf of assessee had chosen not to press all three Cross-Objections, namely C.O. No. 44/Ind/2021, 45/Ind/2021 and 46/Ind/2021, filed by assessee. Hence the same are treated as dismissed at the request of Ld. AR. We would take up Revenue's appeals for adjudication. 3. The grounds raised by revenue are as under: IT(SS)A No. 32/Ind/2021 - Revenue's appeal for AY 2009-10: "(1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 1,80,71,675/-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. 82,03,684/- made by the Assessing Officer on account of unaccounted interest payment on cash loan and has overlooked the findings of the Assessing Officer mentioned in the assessment-order. (3) On the facts and in the circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,00,97,137/- 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. (3) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law in deleting the addition of Rs. 35,67,34,692/- made on account of unaccounted investment 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 by holding only 8% of bogus transaction with paper entity Geet Exim Pvt. Ltd. as taxable while the assessee had claimed expenses of Rs. 38,77,55,100/- as sub-contract expenses and that actual work carried by Geet Exim Pvt. Ltd. remain unproved." 4. Heard the learned Representatives of both sides at length and case records perused. 5. Briefly stated the facts are such that the assessee is company engaged in the business of developing, operation and maintenance of infrastructure projects of roads and bridges, toll collection contracts, etc. A search u/s 132 was conducted on assessee on 27.08.2014 and the cases of assessee were assessed for AY 2009-10 to 2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO for a fresh decision after certain verification. Further, while deciding appeal of AY 2010- 11 and 2011-12, the ITAT deleted the disallowance. Ld. AR submitted that in the present appeals, the same additions have again been made by Ld. AO. Hence, the issue being already settled in first-round of litigation, no disallowance ought to have been made. Ld. AR submitted that the Ld. CIT(A) has made an elaborate discussion not only on factual and legal aspects of the disallowance but also considered the aforesaid Orders already passed by ITAT and thereafter deleted the disallowance. Ld. AR submitted that there is no infirmity in the order of Ld. CIT(A), hence the deletion of disallowance must be upheld. 11. Ld. DR dutifully supported the orders of Ld. AO and argued that the disallowance must be sustained. 12. We have considered the facts, rival submissions and perused the material held on record. We observe that the Ld. CIT(A) has made a detailed discussion of the entire gamut of issue by considering factual and legal aspects and came to conclude that the disallowance u/s 14A / Rule 8D was not warranted in the present case. Further, in Para No. 4.1.12 of his order, the Ld. CIT(A) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opened in the tally-system. It was further submitted that Shri G.C. Patidar worked as an accountant in the office of assessee and also worked for others. It was further submitted that Shri G.C. Patidar had informed the assessee that most of the entries were hypothetical and a few entries were copied from actual transactions of assessee for imparting training to Mr. Nilesh Tawrech. The assessee also submitted an affidavit dated 28.12.2016 of Shri G.C. Patidar in this regard. The assessee also submitted that "XYZ 08092" company is a dummy company opened by Shri G.C. Patidar / Shri Nilesh Tawrech and the assessee had neither awareness nor any connection with such company. In the affidavit dated 28.12.2016, Shri G.C. Patidar also retracted his statements recorded during search. This way, the assessee disowned the "XVZ 08092" company as well as the cash-transactions alleged by authorities. However, Ld. AO did not accept the submissions of assessee mainly for the reasons that (i) the laptop having been found from possession of assessee, the same is presumed to belong to assessee by virtue of section 292C of the act; (ii) the tally-data found in the laptop under "XYZ 08092" company conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for brevity) 4.2.2 I have considered the facts of the case, plea raised by the appellant and findings of the AO. Admittedly, the sole basis of such huge addition is one the tally data recovered from laptop of old employee and loose papers sheets seized vide LPS-1 to 8 from premises of Shri G C Patidar. 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. As a matter of fact the appellant before, AO as well as before me has stated that the entries in respect of laptop data which has been seized from the office of the company was used by one of its employee Mr. Nilesh Tawrech who was taking tally accounting training under Shri G.C. Patidar, who used to provide him hypothetical entries for learning purpose for that reason and for learning purpose name of the company was taken as 'XYZ'. The appellant has claimed not having any knowledge of company 'XYZ' which has also been stated by appellant during the course of assessment proceedings. The appellant after the search proceedings enquired from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri G.C. Patidar and does not belong to him. The owner and creator of the documents have admitted that the said impugned printouts have been made by his exemployee who is no more and had also explained the reason for preparing such documents. Shri G.C. Patidar has clearly stated that the tally accounts have been prepared for training purpose only and the data are picked from different sources which also includes random data of appellant. The AO failed to consider that neither the appellant nor his accountant has stated that any such firm actually exists and the transactions as mentioned in the seized printouts have been executed. The additions have been imposed on sheer presumption and assumption basis. Further, the AO did not even bother to carry out independent enquiries from the person whose names are mentioned on LPS-1 & LPS 8 which was seized from the premises of G C Patidar. The trainee junior Nilesh Tawarech has untimely passed away. Therefore, it is impossible for the appellant to bring Shri Nilesh Tawarech in person for examination on oath. It is pertinent to mention that no incriminating material was found during search having sole direct nexus with any of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at one BS-4 was found during the course of search which contain names of certain persons who are invitees to the party. The AO has applied all possible guess work in support of his allegation and stated that the name of the person whose names are written on BS-04 are known to appellant and in all probability will give loan to appellant. Even if the perusal of the contents of the BS 4 is made, there is only a single name matching with the name from whom loans are allegedly borrowed in cash, which is as under:- Sl. Name of the alleged Lenders on the basis of tally data./ loose sheets Name as per BS-4 who are invitees to the party 1 Anil Poddar Name not found 2 DD Singhal Name not found 3 Dev Modi Name not found 4 DM Poddar Name not found 5 Dr. Modi Name not found 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflect 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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:- "12. It is well settled that the only perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 papers can not be called even the documents as they are simply the rough papers to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. They have been shown in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken 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 evidence was found in search to prove that details/figures mentioned in notings on page 117 to 119 of A/1 represent 'on money' payments by the assessee]. (iv) Atual Kumar Jain Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 document". 4.2.8 It is settled law that AO cannot make any addition merely on basis of suspicion, however strong it may be. The AO is not justified in presuming certain facts without having anything to corroborate. Hon'ble Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 could have been undertaken in respect of Assessee, Held - Yes. Whether further since entire decision was based on seized document and there was no material to conclusively show that huge amount revealed from seized document were actually transferred from one side to anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 to be carried forward to next year as is the practice strictly followed in book keeping and accounts. 4.2.10 Even if the legislative presumption under section 132(4A) is available in the statute of income tax, yet the ingredient of default has to be established by the Department. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in cash. The findings recorded by the tribunal are not perverse. 6. In view of the aforesaid factual position, we do not think that the order passed by the tribunal requires any interference in exercise of power under Section 260A of the Act. Accordingly, the appeal is dismissed. 4.2.11 XXX (rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h (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 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? (ii) 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 reproduce a scanned copy of the same: It is noteworthy that in Para No. 8 of the affidavit, Shri G.C. Patidar has clearly admitted that he had made jottings on various loose papers and diaries under the instruction of Shri Puneet Agarwal. Thereafter in Para No. 10 of the affidavit, he has further admitted that he used to provide those loose-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 paper was seized from AIDPL in an independent search proceeding conducted upon AIDPL and not from assessee. Hence any presumption u/s 292C should be taken against AIDPL, not against assessee. However, the Ld. AO did not accept the submissions of assessee and made an addition of Rs. 14,83,394/- on account of cash-payment of interest from undisclosed sources in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 the premises of the assessee. 5.5 We also find that during relevant period, i.e., FY14-15, for using any material found from the premises of the third party during the course of the search in assessment proceeding of the assessee, the AO of the third party was required to record satisfaction as the material belong to the assessee in terms of sec 153C and then was required to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be made in relation to that year in exercise of power u/s 153A. Obviously, the reference to the incriminating material in the above decisions of Hon'ble Jurisdictional HC is in regard to incriminating material found as a result of search of the assessee's premises and not of any other assessee. The legislature has provided sec 153C by invoking the same the Revenue can utilise the incriminating material found in the case of search of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 assessing the such other person. This is the mandate provided in sec 153C. In the instant case, if at all, the seized documents referred to in CG/1 to 11 and CG/HD/1 is stated to be belonging to assessee herein, then the only legal recourse available to the deptt is to proceed on the assessee herein in terms of sec 153C. In this regard, we would like to place reliance on Pinaki Misra & Sangeeta Misra (2017) (Del HC) dt.3-3- 17, wherein it was held that, no addition could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue'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 order dated 30.07.2019 could have been filed by revenue. Faced with such congruence of parties, we dismiss these grounds, being non-maintainable in present appeal. The revenue is, however, at liberty to file a separate appeal against the order dated 30.07.2019 in accordance with the relevant provisions of law. Ground No. 2 of Revenue's appeal for AY 2010-11 (Rs. 58,55,122): 27. This ground relates to the addition of unaccounted interest payment on cash-loans. 28. The impugned addition em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet". 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 500000 Party RTGS dt.20.12.10 20-Dec-2010 Hari Service Station-Diesel Bill Dt.15/12/10 569585 409512 Party RTGS dt.24.12.10 03-Jan-2011 Hari Service Station-Diesel Bill 5742562 2500000 15-Jan-2011 Hari Service Station 1497232 17-Jan-2011 Hari Service Station 2000000 Party RTGS 28-Jan-2011 Hari Service Station dt.31.01.11 2451420 09-Feb-2011 Hari Service Station dt.06.02.11 5361647 14-Feb-2011 Hari Service Station 1000000 Party RTGS 16-Feb-2011 Hari Service Station 1000000 Party RTGS 18-Feb-2011 Hari Service Statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 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, Ld. CIT(A) concluded that the Ld. AO should have made addition to the extent of cash-receipt from petrol pumps only and since the excess-sheet does not show any cash-receipt during the previous relevant to AY 2011-12, no addition could have been made in AY 2011-12. 33. Ld. DR emphasized the assessment-order. Per contra, Ld. AR placed heavy reliance upon the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11.12.2019 has also become non-est. Being so, the Ld. AR claims, the department cannot agitate the addition of Rs. 38,77,55,100/- [or the relief of Rs. 35,67,34,692/- granted by Ld. CIT(A) out of that] as of now. Hence taking into this status, these grounds of revenue are not maintainable at all, Ld. AR prays to dismiss the same. 38. We confronted the Ld. DR on these pleadings made by Ld. AR. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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