Income Tax Appellate Tribunal - Jaipur
Acit, Jaipur vs Dilip Kumar Manihar (Huf), Jaipur on 16 July, 2018
ITA No. 1131/JP/2016
The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 1131/JP/2016
fu/kZkj.k o"kZ@Assessment Year: 2007-08
The ACIT cuke Shri Dilip Kumar Manihar (HUF)
Circle - 1 Vs. 1197, Partaniyon Ka Rasta
Jaipur Johri Bazar, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACHD 0865 J
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by: Shri A.S. Nehra, JCIT - DR
fu/kZkfjrh dh vksj ls@Assessee by: Shri S.L. Poddar, Advocate and
Ms.Eisha Kanoongo, Advoacte
lquokbZ dh rkjh[k@ Date of Hearing : 09/07/2018
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 16 /07/2018
vkns'k@ ORDER
PER BHAGCHAND, AM
The appeal filed by the Revenue emanates from the order of the ld. CIT(A)-
1, Jaipur dated 07-10-2016 for the Assessment Year 2007-08 raising therein following grounds of appeal.
''(i) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the disallowance of cash payment of Rs. 40,05,344/- for purchase of flats from M/s. Lotus Primate Estate Pvt. Ltd.
1 ITA No. 1131/JP/2016The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur
(ii) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in holding that addition was made on the basis of assumption and presumption whereas addition was made on the basis of seized documents and not in suspicion.
2.1 Apropos Ground No. 1 and 2 of the Revenue, the facts as emerges from the order of the ld. CIT(A) are as under:-
''3.2.2 Determination
(i) The brief facts of the case are that Dilip Kumar Manihar (HUF), Yogesh Kumar Manihar (HUF), and Shri Girdhari Lal booked number of flats in Lotus Plaza, Jaipur being developed by M/s Lotus Estate P Ltd during the years 206 to 2008 and subsequently, these flats were transferred by these people to their company known as M/s Ramanuj Buildcon Pvt. Ltd. and the flats were finally registered in the name of Ramanuj Buildcon P Ltd during the year 2011-12. It may be mentioned that Shri Yogesh Kumar Manihar, Shri Dilip Kumar Manihar are brothers and Shri Girdhari Lai is their father.
During the course of search at the residence of Shri Nilesh Nanda, a paper marked as Annexure AS/exhibit-2/38 was seized from his possession. The said paper is a typed paper with certain notings made by hand also. The said document, besides containing the amount received through cheques from 'Ashok Gupta', 'Dilip Ji', 'Yogesh Ji', 'Ram Prakash' and 'Sanjeev' on various dates, also contains certain amounts which were received in cash on different dates ranging from 05.09.2006 to 12.06.2008. However, no name or narration was written against these cash receipts.
(ii) The AO on the basis of the above referred seized document and relying upon the above referred statements of Shri Nilesh Nanda arrived at the conclusion that the cash payments were also made by the persons who made the cheque payments and made addition of Rs. 40,05,344/- on account of cash payments in proportion to the payments made through cheques by these persons, to the income of the appellant.
(iii) During appellate proceedings, it was the contention of the appellant that the name of the appellant has not been written against the cash entries on page no. 38 of the seized material and it cannot be presumed that the appellant had paid the said cash. Further, it was the contention of the appellant that the AO made the addition on proportionate basis in the hands of the appellant which shows that the addition was made on the basis of assumption, presumption and surmises only and there was no positive evidence with the AO for making the addition of Rs. 40,05,344/- in the hands of the appellant. It placed reliance upon a number of judicial pronouncements to support its case. It was an-other contention of the appellant that opportunity of cross examination of Shri Nilesh Nanda was not provided to it though specific request was made to the AO in this regard.
2 ITA No. 1131/JP/2016The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur
(iv) During appellate proceedings, the AR filed a copy of the affidavit of Shri Nilesh Nanda dated 11.05.2015 as an additional evidence wherein it was stated by him that:
''1. That a search was carried out at my residence on 18.07.2012.
2. That during the course of search some incriminating documents were found and seized which includes annexure AS exhibit-2 also.
3. That the entries recorded on page No. 38 of annexure AS exhibit-2 for cash does not pertain to Shri Dilip Manihar S/o Shri Girdhari Lai Manihar.
That no cash amount was received or paid by me on behalf of Shri Dilip Manihar S/o Shri Girdhari Lai Manihar in the transaction offlats purchased by him from M/s Lotus Prime Estate Pvt. Ltd., Jaipur."
(v) The appellant made an application under Rule46A of the IT Rules for admitting the additional evidence in the form of the above referred affidavit of Shri Nilesh Nanda and stated that the case of the appellant falls under the category Rule 46A(l)(c) where the appellant was prevented by sufficient cause from producing before the AO any evidence which is relevant to any ground of appeal and also falls under rule 46A(l)(d) where the AO has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
(vi) I have duly considered the prayer of the appellant for admission of the additional evidence in the form of affidavit of Shri Nilesh Nanda and the same is admitted under the provisions of Rule 46A of the Act as the said affidavit goes to the root of the matter and in the interest of natural justice and also looking to the fact that no opportunity of cross examination of Shri Nilesh Nanda was provided to the appellant by the AO, though specific request was made by the appellant in this regard. It may be mentioned that a copy of the said affidavit was forwarded to the AO for making necessary enquiries but it is evident from the remand report of the AO that the AO neither made any enquiry thereof nor recorded the statement of Shri Nilesh Nanda even during the remand proceeding to controvert the affidavit of Shri Nilesh Nanda.
(vii) I have duly considered the submissions of the appellant, remand report of the AO, its rejoinder by the AR and the material placed on record. It is evident from the material placed on record that during post search enquiries, the statements of Shri Yogesh Kumar Manihar, the Karta of the appellant HUF, Shri Dilip Kumar Manihar, Karta of Dilip Kumar Manihar HUF, Shri Girdhari Lai, father of Manihar brothers, Shri Rajesh Jain, Director of Lotus Prime Estate P Ltd were recorded on oath u/s 131 of the Act wherein all of them denied the cash transaction as recorded on impugned page No. 38. The Director of Lotus Prime Estate P Ltd denied to receive the cash amounts stated in the said paper. In fact, the payments through cheques were accepted by the above mentioned persons and also found recorded in the books of accounts of Lotus Prime Estate P Ltd.
(viii) During post search investigation, Shri Nilesh Nanda was required to explain the entries appearing on page 38 which is under consideration and vide his statements recorded on oath u/s 131 of the Act dated 29.08.2012, it was submitted by him that:-
3 ITA No. 1131/JP/2016The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur ^^i`'B la[;k 38 esjs }kjk fofHkUu O;fDr;ksa dks djok;s x;s tehu ,oa IykWVksa ds lkSnksa ls lEcfU/kr fooj.k ntZ gS ftles Åij eq.s nykyh yh gSA mijkSDr ntZ fooj.k ds ckjs esa eq.s edku ,oa tehu cspus okyksa ds lEcU/k esa dksbZ tkudkjh ugha gS ysfdu buds lkSnksa esa eq>s 2 izfr'kr nykyh izkIr gqbZ Fkh ftldk iwjk fooj.k blesa ntZ gSA blds vuqlkj dqy lkSnksa dk Hkqxrku uxn esa :i;s 2]39]65]000@& gqvk Fkk ftl ij eq>s yxHkx :i;s 5]00]000@& nykyh izkIr gqbZ FkhA tks eSa for o'kZ 2006&07] 2007&08 ,oa 2008&09 esa dj ds fy, lefiZr djrk gwWAa ^^ iz'u la-4 % eSa vkidks vkids ;gkWa ryk'kh dh dk;Zokgh ds nkSjku tCr dkxtkr Annexure-A3 ds Exhibit-2 ds i`'B la[;k 36 o 37 fn[kk jgk gwWa d`i;k ns[kdj crk;s fd buesa ntZ izfof'V;kWa D;k gS vkSj ;g fdlls lacfa /kr gS\ mŸkj% eSusa Annexure-A3 ds Exhibit-2 ds i`'B la[;k 36 o 37 dks vPNh rjg ls ns[k fy;k gS vkSj le> fy;k gSA i`'B la[;k 36 ij fofŸk; o'kZ 2010&11 esa gekjh dEiuh eSa jkekuqt foYMdksu izk- fy- }kjk Lotus Plaza esa tks 23 QySV [kjhns x;s gS mudk fooj.k ntZ gS rFkk mijksDr jkf'k dk lkjk Hkqxrku pSd }kjk fn;k x;k gs tks eS- jkekuqt fcYMdksu izk0 fy- ds cgh [kkrksa esa fn[kk;k gqvk gSA i`'B la[;k 37 esa Lotus Plaza }kjk csps x;s 33 QySVksa ij yxus okyh Stamp Duty ,oa vU; [kpksZa dk calculation gSA bl i`'B esa igyh Table esa fn;s x;s QySV fdlh vU; }kjk [kjhns x;s gS vkSj uhps dh Table esa fn;s x;s 23 QySV gekjh dEiuh eS- jkekuqt fcYMdksu izk-fy- }kjk [kjhns x;s gSA
(ix) The Statement of Shri Nilesh Nanda was again recorded on oath u/s 131 of the Act on 20-09-2012 wherein it was stated by him that:
^^ iz'u la-7% d`i;k Ex-2 ds i`'B la-36]37 ,oa 38 ds ckjs esa i`'Bokj foLrkj ls crk,aA d`i;k crk,a d i`'B la-38 ij mfYyf[kr Jh v'kksd xqIrk] fxj/kkjh th] fnfyi th] ;ksx's k th] jkeizdk'k vkfn dks vki tkurs gS\ ;fn gkWa rks fdl izdkj\ mŸkj% egksn; i`'B la[;k 36 ij gekjh dEiuh eS- jkekuqt fcYMdksu izk- fy- }kjk [kjhns x;s Flat dh details gSA bl i`'B ds dkWye la[;k 1 ij QySV ua- dkWye ua-2 ij Build up Area dkWye ua-3 ij total area dkWye ua-4 esa Skelton DLC Rate dkWye ua-5 esa Round DLC Rate dkWye la[;k 6 esa cheques dh detail gS ,oa dkWye ua-7 esa Balance Amount ¼ysuk@nsuk½ dh details gSA egksn; i`'B la[;k 37 ij mYysf[kr 23 Flats dh details gekjh dEiuh eS- jkekuqt fcYMdksu izk- fy- ls lEcfU/kr gSA blesa Flat wise purchase cost (purchase+purchase related exp.) mention fd, gq, gSA i`'B la[;k 38 ij mYysf[kr ---------------------esjh o'kz 2006 ls twu 2008 ds chp esjs }kjk fofHkUu O;fDr;ksa dks Lotus Prime Pvt.Ltd. dh txriqjk fLFkr Ldhe esa fcdok, x, edkuks@ a Vilas@Flat dh nykyh ls lEcfa/kr gSA mDr nykyh eq>s dEiuh }kjk dk;Z iwjk gksus ds ckn o'kz 2009&10 esa izkIr gqbZ gSA bl isVs eq>s :i;s 5]00]000@& ¼ikWp a yk[k ek=½ dh nykyh izkIr gqbZ gSA ftls eSusa viuh v?kksf'kr vk; ekurs gq, djkjksi.k gsrq iwoZ esa gh lefiZr dj fn;k gSA egksn; bl i`'B ij mfYyf[kr Jh v'kksd xqIrk] fnyhi th] fxj/kkjh th ,oa ;ksx's k th dks eSa tkurk gwWAa budks Lotus Prime Pvt. Ltd. Ls Flats eSusa gh fnyok, Fks] ftl ij eq>s nykyh feyh gSA^^ 4 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur
(x) Thus, it is evident from the above referred statements of Shri Nilesh Nanda that on page No. 38, details of brokerage received by him on the sale transactions of various persons in the Jagatpura Scheme of M/s Lotus Prime Pvt. Ltd. during the period 2006 to June, 2008 made through him have been recorded. He further submitted that the brokerage of Rs. 5,00,000/- was paid to him by the company on completion of sale transactions during the Financial Year 2006-07, 2007-08 and 2008-09 respectively.
(xi) In his statement, Shri Nilesh Nanda stated that the page no. 38 under consideration pertained to booking of houses/villas/flats of M/s Lotus Prime Estate P Ltd by Shri Nilesh Nanda, as a broker. He submitted that he knows Shri Ashok Gupta, Dilip Ji, Girdhari Ji and Yogesh Ji as the sale transactions of the flats of M/s Lotus Prime estate Pvt. Ltd. were made through him and he received brokerage on these transactions.
However, no direct question was asked from Shri Nilesh Nanda that whether S/Shri Yogesh, Dilip, Girdhari Lai etc. has made any cash payment for booking of flats or whether the cash payments recorded on impugned page 38 of the seized material were made by these persons. It is pertinent to mention here that no name or narration was recorded on the said paper against cash receipts and even Shri Nilesh Nanda in his statements recorded on oath did not reveal the name and addresses of the persons who made the cash payments.
(xii) It is undisputed fact that the document under consideration was seized from the residential premises of Shri Nilesh Nanda and not from the possession of the appellant. It was neither in the hand writing or signed by the Karta of the appellant HUF. It is also an undisputed fact that the names of Karta of appellant HUF, Dilip, Shri Girdhari Lai and others were stated on said page against the cheque payments only and not against the cash payments. In fact, no narration was stated against cash receipts. Shri Rajesh Jain, Director of Lotus Prime Estate P Ltd had also denied the cash transactions. In his statements recorded on oath, Shri Nilesh Nanda never stated that the appellant and others made the cash payments. In fact, by his above referred affidavit, Shri Nilesh Nanda stated that the appellant has not made any payment in cash for the purchase of flats from M/s Lotus Prime State Pvt. Ltd. The said affidavit remained uncontroverted which is against the settled legal position on the issue that the contents of the affidavit can be rejected only by confronting the same to the deponent which is missing in this case. The AO has not brought on record any other material which may support the case of the AO. Therefore, the AO was not justified in stating that no cognizance could be given to the above referred affidavit of Shri Nanda.
(xiii) It is a matter of fact that not even a single corroborating evidence was brought on record by the AO to support the proportionate addition made by the AO on account of cash transactions recorded on page no. 38 of the seized material. In fact, it is noted from other documents No. 36, 37 of Exhibit 2 of Annexure AS seized from the residence of Shri Nilesh Nanda that these papers contain the flat wise DLC rates for the flats sold by M/s Lotus Prime Estate Pvt. Ltd. and the amount stated therein is related to cheque payments made by the appellant and there is no reference to the cash amount, if any, paid by the appellant. It appears that the registrar of properties charged the stamp duty on the amounts declared as paid through cheques only as sale consideration. It would be 5 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur appropriate here to discuss the judicial pronouncements on the issue under consideration as under:
(a) The Hon'ble ITAT, Jaipur Bench in the case of Shri Ghanshyam Das Agarwal Vs ITO in ITA No. 1161/JP/2010 held as under:-
"In the present case in appeal, the sale deed was a duly registered document having recital of payment of stamp registration charges by the seller. The assessee had thus discharged its onus that lay upon him by laying such document on record. In absence of any conclusive evidence, the document could not have been dis-believed.''
(b) In the case of Rajinder Kumar Hak Vs ITO [2016] 46 CCH 174 (Amritsar Trib.), vide its recent order dated 26.02.2016, it was held by the Hon'ble ITAT that:
"17. As against the above, the sale deed executed on 18.05.2005 specifies in no uncertain terms, the purchase consideration to be at Rs.8,50,000/. This sale deed is admittedly a registered one. The contents thereof are duly sworn before fhe Magistrate. As against this document, there is nothing on record, other than the above discussed assumptions and presumptions of the AO and the Id. CIT(A), which also are contradictory interse. There is no material on record to suggest any understatement of the purchase price of the flat by the assessee. The purchase value stands accepted as such by the Registering Authority too. Besides, the provisions of section 50C of fhe Act also do not stand invoked.
18. Thus, looked at from any angle, the order under appeal is unsustainable in law. It has been passed on merely assumptions and presumptions, without any corroborative evidence to support the observations made. The same, is accordingly, reversed. The addition of Rs. 10,50,000/ is, accordingly, delefed."
© In the case of Sunita Dhadda vs. DCIT, (2012) 31 CCH 0281 Jaipur Trib / (2012) 148 TTJ 0719, it was held by the Hon'ble ITAT that:
"AO grossly erred in relying upon fhe vague, unrelated statement of one which is unsupporfed by any other material or corroborative evidence, which was at the back of assessee wifhout providing a righf fo cross-examine person who so stated adversely."
(d) In the case of Add/. CIT v. M/ss Lata Mangeshkar [1974] 97 ITR 696 (Bom), the addition was made in the hands of the assessee on the basis of the entries in the books of third persons. Hon'ble Bombay High Court held that such addition could not be made only on the basis of the notings in the books of third persons.
(e) In the case of Pradeep Amrutlal Runwal Vs TRO [2014] 47 taxmann.com 293 (Pune-Trib.), it was held that where Assessing officer made additions in case of assessee 6 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur on basis of noting in loose papers found during search proceedings in case of third party against name of assessee as there was no evidence to suggest that payments were made to assessee, additions so made were not justified.
(f) In the case of Umacharan Shaw & Bros v. CIT [1959] 37 ITR 271(SC),it was held by the Hon'ble Apex Court that there was no material on which the Income-tax Officer could come to the conclusion that the firm was not genuine and further observed "the conclusion is the result of suspicion which cannot take the place of proof in these matters".
(g) In the case of CIT v. S.M. Aggarwal 293 ITR 43 (Delhi), the Hon'ble High Court observed:
"It is well-settled that the only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. So, unless and until the contents of the document ore proved against a person, the possession of the document or handwriting of that person on such document by itself cannot prove the contents of the document."
(h) In the case of R. K. Gupta vs. ACIT (2016) 46 CCH 0558 Del Trib, the Hon'ble ITAT relied upon the decision of Hon'ble Punjab & Haryana High Court in the case of CIT vs. Jawaharlal Oswal and Others (I.T.A. No. 49 of 1999, Judgment delivered on 29.01.2016) wherein the Hon'ble High Court dismissed the Department's appeal by holding that suspicion and doubt may be the starting point of an investigation but cannot, at the final stage of assessment, take the place of relevant facts, particularly when deeming provision is sought to be invoked. The Hon'ble High Court has observed:
"...The principle that governs a deeming provision is that the initial onus lies upon the revenue to raise a primo facie doubt on the basis of credible material. The onus, thereafter, shifts to the assessee to prove that the gift is genuine and if the assessee is unable to offer a credible explanation, the Assessing Officer may legitimately raise on inference against the assessee. If, however, the assessee furnishes all relevant facts within his knowledge and offers a credible explanation, the onus reverts to the revenue to prove that these facts are not correct. The revenue cannot draw an inference based upon suspicion or doubt or perceptions of culpability or on the quantum of the amount, involved particularly when the question is one of taxation, under a deeming provision. Thus, neither suspicion/doubt, nor the quantum shall determine the exercise of jurisdiction by the Assessing Officer....Further a deeming provision requires the Assessing Officer to collect relevant facts and then confront the assessee, who is thereafter, required to explain incriminating facts and in case he fails to offer a credible information, the Assessing Officer may validly raise an inference of deemed income under section 69-A. As already held, if the assessee offers an explanation and discloses all relevant facts within his knowledge, the onus reverts to the revenue to adduce evidence and only thereafter, may an inference be raised, based upon relevant facts, by invoking the deeming provisions of Section 69-A of the 7 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur Act. It is true that inferences and presumptions are integral to an adjudicatory process but cannot by themselves be raised to the status of substantial evidence or evidence sufficient to raise an inference. A deeming provision, thus, enables the revenue to raise an inference against an assessee on the basis of tangible material and not on mere suspicion, conjectures or perceptions."
(i) In the case of Addl. DIT Vs Jignaben Bipin Shah (2015) 44 CCH 0200 (Ahd. Trib.), it was held by Hon'ble ITAT that:
"where the document found at the time of search was a third party document, which was neither in the handwriting of the Assessee nor bore her signature and Revenue had not brought any material to controvert or pointed to any fallacy in his observations, the findings of CIT (A) holding that assessee was not at fault was justified to be upheld."
(j) In the case of CIT vs. Anil Khandelwal (2015) 93 CCH 0042 (Del HC), it was held by the Hon'ble High Court that:
"It is quite evident that what materially persuaded the AO to make the addition were the extracts from documents - in the form of handwritten ledger entries seized from Shri S.K. Gupta. These mentioned Shri Khandelwal's name as against which certain amounts were indicated. The other material was the statement of Shri S.K. Gupta recorded on 13.12.2006. Shri S.K. Gupta was further examined on 5.4.2011. The AO took recourse to the presumption permissible under Section 132 (4A) on the basis of these two statements. It is a matter of the record - duly noted by the CIT (A) as well as ITAT that the three companies or business concerns whose monies were supposed to have been reflected in the handwritten ledgers (Bondwell Insurance Brokers, E-Synergy Infosystems Pvt. Ltd. and Paradigm Advertising) were all concerns in which the assessee's family members or relatives were alleged to have been interested. CIT (A) held that in the absence of any corroborative evidence found during the search at the premises of fhe appellant, no adverse inference can be drawn against the appellant merely on the basis of the seized documents as found and seized from the premises of the third party. As has been held in a number of judicial pronouncements relied on by the appellant and extracted in para 2.2.2 hereinabove, presumption u/s 134(4A)/292C is available only in the case of the person from whose possession and control the documents are found and it is not available in respect of a third party. Even in the case of such a person from whose possession and control any incriminating document is found, the presumption u/s 132(4A)/292C is a rebuttable one. Since in the case of the appellant, no corroborative documents or evidence has been found from the control or possession of the appellant, the legal presumption as incorporated u/s 132(4A) /292C will not be available to the Assessing Officer in the appellant's case. It is well settled in law that the loose 8 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur papers, diaries and documents cannot possible be construed as books of account regularly kept in the course of business. Such evidence would, therefore, be outside the purview of Section 34 of the Evidence Act, 1972. Therefore, the revenue would not be justified in resting its case just on the loose papers and documents found from third party if such documents contained narrations of transactions with the assessee as decided by the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. V.C. Shukla (1988) 8 SSC 410 and Chuharmal vs. Commissioner of Income Tax (1988) 172 250/138 Taxman 190 (SC)."
(xiv) It may be mentioned that the presumption u/s 132(4A) is available only in respect of the person from whom the document is seized. It could not be applied against a third party and hence, no addition could be made on the basis of the evidence found with third party. The presumption u/s. 132(4A) could be used only against the person from whose premises the documents are found and nof against the person whose name appears in the seized papers. In this case, the addition has been made on the basis of the documents found with Shri Nilesh Nanda and thus, the presumption u/s. 132(4A) could not be used against the appellant since no incriminating documents were found from its possession. Further, in the instant case under consideration, the contents of the impugned page no. 38 seized from the possession of Shri Nilesh Nanda was not proved against the appellant by any corroborative evidence including the statements recorded on oath of Shri Nilesh Nada during the course of search proceedings. In fact, the affidavit of Shri Nilesh Nanda remained uncontroverted wherein it was stated by him that the appellant has not made any payment in cash and nothing has been brought on record by the AO that the averments made in the said affidavit were contrary to other material. It is evident from the assessment order as well as remand report of the AO that nothing has been brought on record by the AO that the cash receipts as recorded on impugned page No. 38 was made by the appellant. In fact, on the impugned page no. 38, the cash receipts relating to the year under consideration are as under:
Date Amount (in Rs.)
05-09-2006 15,00,000/-
17-09-2006 35,00,000/-
18-09-2006 38,00,000/-
19-09-2006 11,00,000/-
Thus, it is evident that none of the entries or any combination thereof leads to the figure of Rs. 40,05,344/-. There is no other corroborative evidence which may suggest that the amount was paid by the appellant in cash not to speak about the exact amount as determined by the AO was paid in cash by the appellant.
9 ITA No. 1131/JP/2016The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur
(xv) Therefore, in view of the totality of facts and circumstances of the particular case under consideration, the judicial pronouncements as relied upon by the appellant and as discussed above, it is held that in the absence of any corroborative evidence, the AO was not justified in making addition of Rs 40,05,344/- to the income of the appellant which was made on the basis of only assumptions and presumptions and it is a trite law that suspicion, however strong it may be, it cannot substitute the evidence required for making addition. Hence, the addition of Rs. 40,05,344/- made by the AO cannot be sustained, thus deleted.'' 2.2 During the course of hearing, the ld. DR supported the order of the AO that the ld. CIT(A) has erred in deleting the disallowance of cash payment of Rs.
40,05,344/- for purchase of flats from M/s. Lotus Prime Estate Pvt. Ltd.
2.3 On the other hand, the ld.AR of the assessee relied on the order of the ld.
CIT(A).
2.4 We have heard the rival contentions and perused the materials available on record. Brief facts of the case are that the assessee M/s. Dilip Kumar Manihar (HUF) filed return of income on 08-10-2007 for the Assessment Year 2007-08 declaring total income of Rs. 97,50,830/-. Subsequently, notice u/s 148 was issued on 29-03-2014. In response to this notice, return was filed on 04-10-2014 disclosing the same income as shown in the original return. The assessment had been completed by the AO on 30-07-2014 u/s 147/143(3) of the Act determining total income at Rs. 1,37,58,820/- and making an addition of Rs. 40,05,344/- on account of alleged unexplained cash payment to M/s. Lotus Prime Estate Pvt. Ltd.
In first appeal, the ld. CIT(A) has deleted the addition of Rs. 40,05,344/- by observing as under:-
10 ITA No. 1131/JP/2016The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur ''(xv) ...it is held that the in the absence of any corroborative evidence, the AO was not justified in making addition of Rs. 40,05,344/- to the income of the appellant which was made on the basis of only assumption and presumptions and it is a trite law that suspicion, however strong it may be, it cannot substitute the evidence required for making addition. Hence, the addition of Rs. 40,05,344/- made by the AO cannot be sustained, thus deleted' We have gone through the affidavit of Shri Nilesh Nanda dated 11-05-2015 (PBP 13) wherein he submitted that the search was carried out at his residence on 18-07-2012. Some incriminating documents during the course of search were found and seized which included annexure AS Exhibit -2 also. It is further mentioned therein that the entries recorded on page no. 38 of Annexure AS Exhibit
-2 for cash does not pertain to Shri Dilip Manihar S/o Shri Girdhari Lal Manihar. It is further mentioned therein that no cash amount was received or paid by him on behalf of Shri Dilip Manihar in the transaction of flats purchased by him from M/s.
Lotus Prime Estate Pvt. Ltd. It is also observed from the assessment order and the remand report of the AO that nothing had been brought on record by the AO that the cash receipts as recorded on page no. 38 was made by the assessee. It is also noted that during the course of hearing the ld. DR could not controvert the findings of the ld. CIT(A) that there is any corroborative evidence against the assessee as to making addition of Rs. 40,05,344/- by the AO in the hands of Shri Dilip Kumar Manihar (Huf). Hence, taking into consideration the facts, circumstances of the 11 ITA No. 1131/JP/2016 The ACIT, Circle - 1, Jaipur vs M/s. Dilip Kumar Manihar (HUF), Jaipur case and the case laws relied on by the ld. CIT(A) in his order (supra), we concur with his findings. Thus the appeal of the Revenue is dismissed.
3.0 In the result, the appeal of the Revenue is dismissed. .
Order pronounced in the open Court on 16 -07-2018.
Sd/- Sd/- ¼ fot; iky jko ½ ¼HkkxpUn½ (Vijay Pal Rao) (Bhagchand) U;kf;d lnL; /Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 16+/07/ 2018 *Mishra
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1.vihykFkhZ@The Appellant- The ACIT, Circle - 1, Jaipur
2. izR;FkhZ@ The Respondent- Shri Dilip Kumar Manihar (Huf), Jaipur
3. vk;dj vk;qDr¼vihy½@ CIT(A).
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No.1131 /JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar 12