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TMI Blog2025 (2) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. The final decision of this appeal shall mutatis mutandis apply to the other appeal as well. ITA no.11/Nag./2023 Assessee's Appeal - A.Y. 2018-19 3. The Revenue in its appeal has raised following grounds:- "1. On the facts and in the circumstances of the case, the CIT(A) eared in holding that the proceedings u/s 153C of the I.T. Act were initiated without any corroborative evidence ignoring the fact that the proceedings were backed by concrete facts and corroborative evidence in the form of statement of Shri Prashant Bongirwar recorded u/s 132(4) of the I.T.Act in which he has clearly stated the name of the partners of Unique Reality, which shows that the Unique reality referred to in the impounded material is the assessee firm M/s Unique Reality Builders and Developers having the same partners namely Shri Yele and Shri Patle. 2. On the facts and in the circumstances of the case, the CIT(A) erred in holding that the proceedings u/s 153C of the I.T.Act were initiated without any corroborative evidence ignoring the fact that Shri Prashant Bongirwar in answer to the Q no.19 has confirmed the receiving of amount from Unique Realities and in answer to the Q no.8 of the same st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts in Brief:- In the present case, during the year under consideration, the assessee was engaged in the business as developer and builder and all kinds of allied activities in real estate business. A search and seizure action under section 132 of the Income Tax Act, 1961 ("the Act") was conducted on 25/06/2019, in the case of Shri Vyankatesh Kunawar. During the course of search & seizure operation under section 132 of the Act, incriminating documents were seized from the residential premise of Shri Vyankatesh Kunawar. The search was finally concluded on 05/07/2019. On the basis of incriminating documents seized from the residential premises of Shri Vyankatesh Kunawar, the case of the assessee was selected for assessment under section 153C of the Act. Also, a survey under section 133A of Act was conducted in the business premises of M/s Saptigiri Developers, 12, 3rd Floor, N.K.Y. Towers, Ajni Square, Nagpur. At the time of survey, a hard disk was found and seized from the business premises of M/s Saptigiri Developers. The Assessing Officer was of the view that the contents of the said Hard Disk represents amount received in cash by M/s. Saptagiri Developers from M/s. Unique Realit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income u/s 69A. The Ld. AR vehemently stated that the document found from the residence of Shri Vyankatesh Kunawar are loose papers and are dumb document. During the hearing, the Ld. AR has travelled through every page of voucher and showed that there has been no name of the appellant written on the voucher or not even any signature of the appellant firm is there. Ld. AR also submitted that on the remaining vouchers there is not even the name of the appellant mentioned in any symbolic or abbreviated form. The appellant has further submitted that the AO has demonstrated in the assessment order on page no. 3 table produced by the AO in Column No. 3 that the amount received is from customer. The Ld. AR vehemently stated. that these people are not the client of the appellant firm and furthermore there are pages other than debit vouchers of AVC Homes which contains name of different people to whom cash is paid. On putting debit voucher and pages containing name it is seen that the exact amount written on debit voucher is given to different persons and there is no name of the appellant amongst these names. In simpliciter, the commission amount is not paid to the appellant firm but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "unique city" is mentioned which is nothing but the project name of AVC homes. This forces to mention that one to one nexus among debit voucher and appellant firm cannot be established. Law is well settled that burden is on the Revenue to establish the identity if any person is to be charged under the Act. Moreover, nothing is on record to show that Shri Vynakatesh Kunnawar has stated about the appellant that whatever the notings found were in respect of the appellant. No corroborative material is found. Reliance is placed on the catena of judgments which states that no addition can be made on the basis of abbreviated name found in diary without establishing a direct nexus with the assessee, as follows:- 7. Hon'ble Pune ITAT in the case of ITO, Ward-2(3), Pune v. Shri Ashok Keshvlal Oswal, ITA No. 357/PN/2012, dated 30/09/2013. 8. Hon'ble Pune ITAT in the case of Jagannath Eknath Lahoti (HUF) v. ITO, Ward-1(1), Pune, ITA.No.453/PN/2012, dated 11/02/2014. 9. Hon'ble Delhi High Court order in Commissioner of Income Tax v. Classic Motors Ltd, [2017] 88 taxmann.com 478 (Delhi). 10. Hon'ble Delhi High Court order in Commissioner of Income-tax v. Sant Lal, [2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT in case of Asstt. CIT v. Layer Exports (P.) Ltd. [20171 88 taxmann.com 620]. 12. The Hon'ble Delhi High in case of Kaycee Electricals v. DCIT, 87 ITD 35 (Del.). 13. The Kolkata Tribunal in the case of Asstt. CIT v. Sri Radheshyam Poddar [1992] 41 ITD 449 (Cal). 14. The Delhi Tribunal in the case of Ashwani Kumar v. ITO [1991] 39 ITD 183 (Delhi). As far as the question of tenability of addition under section 69A is considered the same cannot be made as in first place no money, bullion, jewellery etc is found from the possession of the the appellant and second there the appellant is not conclusively the "owner" of it as the additions are made on the basis of debit vouchers only. In support the reliance is placed on the following judgments as follows:- 7. The Hon'ble ITAT Pune Bench 'A' in case of Pradeep Amrutlal Runwal v. Tax Recovery Officer, Range-3, Pune, [2014] 47 taxmann.com 293 (Pune - Trib.). 8. Calcutta High Court in Kantilal Chandulal & Co. v. CIT [1982] 136 ITR 889. 9. The Madras High Court in the case Mohammad [1997] 228 ITR 113/92 Taxman 169. of CIT v. K.T.M.S. 10. The Calcutta High Court in Durga Kamal Rice Mills v. CIT [2004] 265 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he argument of the Ld. AR and emphasis on para number 64 and 73 of the written submission is made and accepted s, also that on the piece of paper "Not Accepted" is written. Without corroborative evidences the AO erred in making addition. The document founds are nothing more than dumb document in case of no corroboration. I find force in the argument of the appellant that there cannot be any addition based merely on the piece of loose papers. The additions need to be backed by cogent and reliable evidences. In the present case it can be seen from the assessment order that there has been no corroborative evidence brought forth by the AO. There has been no reference made to the document other than impounded material. Reliance is placed on the judgement following judgment where it has been held that no addition can be based on dumb documents. 1. The Hon'ble Supreme Court in case of Common Cause (A Registered Society) v. Union of India, [2017] 77 taxmann.com 245 (SC) 2. The Hon'ble Supreme Court in case of Central Bureau of Investigation v. V.C. Shukla, [1998] 1998 taxmann.com 2155 (SC). 3. The Mumbai ITAT in case of ITO v. Kranti Impex (P.). Ltd. (IT Appeal No. 1229 (Mum. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visible. The learned Counsel for the assessee failed to give any information as to whether the transactions were at all recorded in the books of account. In fact, she did not submit any documentary evidences to buttress her case. We are constrained to note that the learned CIT(A) has merely relied on certain case laws, but without realising that how the same are applicable in assessee's case. The learned CIT(A) failed to perform his statutory function to act judiciously by not correlating the additions made with the corresponding assessment orders of AVC Homes, Saptagiri Builders. He was swayed that there is no exchange of money as submitted by the learned Counsel for the assessee. But here it is beyond comprehension that why cash details are mentioned in the print-out obtained which is stark reality glaring at the face. It is also surprising that there has been no participation by the assessee before the Assessing Officer to effectively explain the documents in its entirety. Before the learned CIT(A), vouchers in respect of AVC Homes are submitted wherein certain vouchers clearly bear the name of the Unique Realities Builders & Developers (the assessee herein). If that be so, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 153C is initiated upon by the Assessing Officer being satisfied that any books of account or documents seized or requisitioned pertains or any information contained therein relates to a person other than person referred to in section 153A of the Act. The section was amended w.e.f. 01/06/2015 to negate the judgment of the Hon'ble Apex Court in Pepsi Foods Pvt. Ltd., [2018] 89 taxmann.com 10. This Special Leave Petition was dismissed against the High Court ruling that before issuance of notice under section 153C of the Act, the Assessing Officer is required to arrive at a conclusive satisfaction that documents belong to a person other than searched person. The reliance made by learned Counsel for the assessee on the above judgment which has favourably considered by the learned CIT(A) is misplaced, misconceived and unsustainable. The learned Counsel for the assessee has tried to create a confusion that in view of multiple entities with prefix unique relationship with Unique Realities Builders and Developers is not established. We fail to understand that how such an issue can be raised once the challenge to 153C proceedings is absent. The diametric opposite stand of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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