MAHESH S AGAR4WAL,MUMBAI vs. DCIT 15(1), MUMBAI

The assessee is aggrieved by the decision of the learned CIT(A) in confirming the addition of ` 15 lakhs relating to alleged unexplained investment made in agricultural land and also in confirming the addition of ` 25.78 lakhs relating to alleged unexplained capital introduced in Bhartiya Spinners Ltd.

Facts relating to the above said issues are stated in brief. The assessee is a director in Bhartiya Spinners Ltd. The Revenue carried out search and seizure operations in the case of Bhartiya Spinners Ltd. and also in the hands of the assessee on 22.3.2007. Consequent thereto, present assessment was completed by the Assessing Officer u/s. 143(3) read with section 153A of the Act.

First issue relates to addition of ` 15 lakhs made by the Assessing Officer as unexplained investment made by the assessee in purchase of land in Jaipur. In the statement taken from the assessee u/s. 132(4) of the Act, the assessee gave list of properties held by him and his family members. In answer given to Question No. 9, the assessee, inter alia, submitted that his wife is having agricultural land in Jaipur, Rajasthan admeasuring 1.25 bighas and the same was purchased in the preceding year for ` 2.50 lakhs. The Assessing Officer referred to page No. 63 of Annexure-A4 ceased from the residence of the assessee, which was a loose sheet containing following noting:-

When this loose sheet was confronted to the assessee, he replied that paper was related to Bhartiya Spinners Ltd. He also submitted that he has already filed an affidavit with DCIT with regard to this paper. The Assessing Officer noticed from the above said noting that a sum of ` 15 lakhs has been sent to Jaipur for purchase of land. The Assessing Officer took the view that the above said amount of ` 15 lakhs has been paid by the assessee as “on money” in respect of agricultural land purchased by assessee’s wife named Smt. Snehlata Agarwal. Accordingly, the Assessing Officer assessed the above said amount of ` 15 lakhs as unexplained investment in the hands of the assessee. The learned CIT(A), however, took the view that the Assessing Officer may not be correct in observing that the above said amount of ` 15 lakhs was invested in agricultural land purchased in the name of wife of the assessee. After observing so, the learned CIT(A), however, proceeded to confirm the addition by holding that the assessee might have invested this amount in any other land in Jaipur.

The Learned AR submitted that the impugned loose sheet is written in the name of “C.P. GNP”, which refers to another director of M/s Bharatiya Spinners Ltd named Shri C.P. Agarwal. He further submitted that the assessee has filed an affidavit before DCIT stating therein that this loose paper belongs to Bhartiya Spinners Ltd. Accordingly the learned AR submitted that there is no reason for linking this loose paper with the assessee at all. He further submitted that there is also no evidence to show that the impugned amount of ` 15 lakhs was paid in respect of land purchased by the assessee’s wife Smt. Snehlata Agarwal. Accordingly, learned AR submitted that the learned CIT(A)

Learned DR on the contrary, submitted that the presumption provided u/s. 132(4A) prescribes that the documents found with possession and control of the assessee belong to the assessee and contents of the said document are true. Accordingly, the learned DR submitted that the onus is placed upon the assessee to prove that the contents are not true. The Learned DR submitted that the assessee has failed to prove that the amount of ` 15 lakhs was not paid for purchase of land and hence the learned CIT(A) was justified in confirming the addition.

In the rejoinder, learned AR submitted that the loose sheet is written in the name of Shri C.P. Agarwal and hence as per the presumption provided u/s. 132(4A) of the Act, the said paper should belong to Shri C.P Agarwal only and hence the assessee cannot be linked with the said document at all.

We have heard the rival contention on this issue and perused the record. We notice that the impugned addition of ` 15 lakhs has been made by the AO on the basis of entries noted in a loose sheet (page No. 63 of Annexure-A4) found from the assessee during the course of search. As submitted by the assessee, we noticed that noting made therein was under the name of C.P. GNP, who is identified as Shri C.P. Agarwal by the assessee. It is further written therein that a sum of ` 15 lakhs is given for purchase of land at Jaipur. Since assessee’s wife had also purchased an agricultural land at Jaipur admeasuring 1.25 bigha for a sum of ` 2.50 lakhs, the Assessing Officer has presumed that ` 15 lakhs mentioned in the loose sheet might be the on money given by the assessee in connection with the agricultural land purchased by his wife.

We noticed that the view so taken by the AO was only presumption drawn by the Assessing Officer and it is not supported by any other material. In fact, the assessee has filed a reply to the Assessing Officer and also an 5 Shri Mahesh S. Agarwal affidavit before DCIT stating that the impugned loose sheet actually belonged to Bhartiya Spinners Ltd. We noticed that the Assessing Officer has not brought on record any material to contradict the submissions made in the Affidavit. In any case, the impugned loose sheet is written in the name of C.P.GNP, who is identified as Shri C.P. Agarwal by the assessee. The said explanation of the assessee is also not found fault with. Learned AR further submitted that the Assessing Officer has himself has observed that this loose sheet has been owned by Bhartiya Spinners Ltd., and above said company has disclosed unaccounted income of ` 1.54 crores in its hands, which included cash transaction of ` 87 lakhs noted in the above said loose sheet. Once this loose sheet was found to be belonging to Bhartiya Spinners Ltd., in our view, it may not be proper to select one transaction under pick and choose method and linking the same with the assessee. In fact, the land has been purchased by the assessee’s wife Smt. Snehlata Agarwal and not by the assessee. We have earlier noticed that the learned CIT(A) has also observed that the Assessing Officer was not right in holding that the impugned amount of ` 15 lakhs was utilized for purchase of agricultural land in the name of wife of the assessee. We noticed that the said observation of the learned CIT(A) has not been challenged by the Revenue, meaning thereby, the entire presumption drawn by the Assessing Officer has already been overruled by the learned CIT(A). As noticed earlier the learned CIT(A) has proceeded to confirm the addition by observing that the assessee might have invested the above said amount of ` 15 lakhs in any other land in Jaipur. The learned CIT(A), in our view, has made the above said observation on mere conjecture and surmises, i.e., nothing has been brought on record by the learned CIT(A) to support his conclusion. In the absence of any other material to support the addition, we are unable to agree with the view taken by the Assessing Officer as well as by the learned CIT(A). Accordingly, we are of the view that there is no material to support the addition of ` 15 lakhs in the hands of the assessee. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and direct the Assessing Officer to delete the impugned addition of ` 15 lakhs.

The next issue urged by the assessee relates to the addition of Rs.25.78 lakhs made by the AO as relating to unexplained investment made in M/s Bharatiya Spinners Ltd. The facts relating thereto are that a document numbered as “page no.30 of Annexure A-1” was found during the course of search and it contained a Balance sheet (Statement of Affairs) titled as “Approx. Position as on 31.1.07”. In the said statement, the capital contribution of the assessee (mentioned as ‘Balram M A’) was stated as Rs.123.33 lakhs. In his personal books of accounts, the assessee had shown an amount of Rs.5,000/- only as his investment in M/s Bharatiya Spinners Ltd. Hence the AO asked for explanations from the assessee with regard to the remaining amount of Rs.123.28 lakhs.

The assessee submitted that the above said document has already been considered in the assessment of M/s Bharatiya Spinners Ltd. He further submitted that he has invested only Rs.5000/- as his capital and the remaining amount has been contributed by following concerns, in which the assessee is either director or related:- M/s Purak Vinimay Ltd - Rs.97.50 lakhs Shri Krishna Trading - Rs. 9.35 lakhs Advance received from customers From Western region - Rs.16.43 lakhs -------------------- Rs.123.28 lakhs ============== The assessee furnished Balance sheet of M/s Purak Vinimay Ltd and the AO noticed from the same that the said company has invested in Rs.97.50 lakhs in Bharatiya Spinners Ltd (Rs.82.00 lakhs as equity capital and Rs.15.50 lakhs as advance payment). Hence the AO accepted the explanation given for Rs.97.50 lakhs. With regard to the remaining two amounts, the assessee did not produce any document to support his explanations. Hence the AO assessed the remaining two amounts aggregating to Rs.25.78 lakhs as unexplained investment in the capital of Bharatiya Spinners Ltd. The Ld CIT(A) also confirmed the same.

The Ld A.R submitted that the Balance sheet found in the seized documents itself is titled as “Approx. Position as on 31.1.07”, meaning thereby, it was not an authentic one. He submitted that the investments relating to the assessee and other persons known to the assessee might have been grouped and shown against the assessee. He submitted that Page no.8 of Annexure I contains the details of investments made through the assessee and the aggregate amount of investments made through the assessee as on 31.3.2000 stood at Rs.115.23 lakhs. Accordingly he submitted that the investment of Rs.115.23 lakhs might have been made upto 31.3.2000 and the remaining amounts might be investments made between 2000 to 2006. Accordingly he submitted that no addition is called for on the basis of this document.

On the contrary, the Ld D.R submitted that the assessee has explained sources as contribution made by others. However, the assessee could produce details relating to one person named M/s Purak Vinimay Ltd and he could not produce the explanations/details for other persons.

We heard the rival contentions on this issue and perused the record. We notice that the impugned addition has been made on the basis of a document found during the course of search. The said document contained a Statement of Affairs titled as “Approx position as on 31.1.07”. Under the Capital column, a sum of Rs.123.33 lakhs was shown against the name of the assessee. Identical statements for other periods were also found and the assessee has included them in the paper book. Another document numbered as Page 8 of Annexure I also found during the course of search, which also contains the year wise amount of capital collected through the assessee. This documents starts with an opening balance as on 1.4.1996 of Rs.49.65 lakhs, which consists of amount collected from Purak, Sh.Krishna Trading Co. and SRT). The balance as on 31.3.2000 is shown as Rs.115.22 lakhs. The amount shown in the Statement of Affairs as on 31.1.2007 was 123.33 lakhs.

A perusal of the above said noting found in various seized documents would show that there is merit in the contentions of the assessee that the capital/ loans collected from various persons known to the assessee have been grouped and shown under the name of the assessee in the rough statement of affairs prepared by someone. The assessee has also furnished the details of Rs.123.33 lakhs as contribution received from various persons and the AO has also accepted the explanation to the tune of Rs.97.50 lakhs. The contribution made by Shri Krishna Trading has been shown in Annexure 8 of Annexure-I as Rs.9.35 lakhs as on 1.4.1996, meaning thereby, the above said amount was invested prior to 1.4.1996. In that view of the matter, no addition could be made in the year under consideration. With regard to the remaining amount, it is seen that the balance shown as on 1.4.2000 itself was Rs.115.22 lakhs, meaning thereby, the entire capital balance is being brought forward from earlier years. The difference between Rs.123.33 lakhs and Rs.115.22 lakhs represent accretion made during 2000 to 2006. In that view of the matter, it cannot be presumed that the amount of Rs.123.33 lakhs has been invested during the year under consideration.

Even though no addition could be made on the basis of noting made in loose sheets unless they are corroborated with other evidences, yet the foregoing discussions would show that the capital amount of Rs.123.33 lakhs was not an item of investment made during the year under consideration. Further, the other documents found during the course of search also would show that the same has not been contributed by the assessee, but by others and it was shown under his known for some convenience in the Statement of affairs. Under these set of facts, we are of the view that no addition is warranted on the basis of entries found in the loose documents. Accordingly we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete this addition also.

In the result, the appeal of the assessee is allowed.