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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI D.T. GARASIA
Per D.T. Garasia, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 21.09.2016 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2010-11.
The short facts of the case are that a search and seizure action was carried out u/s 132 of the Act at the residence of the assessee in May 2011. Consequent to search a notice under section 153A was issued and the assessee has filed the return. The Assessing Officer (hereinafter referred to as the AO) has made the addition of Rs.11,24,300/- by observing as under:
2 Mrs. Nimmi K. Chhabria “5.1…………….. “6. During the search action at the residence of the assessee's certain loose papers where found and seized. The assessee was given opportunity to reconcile it during the post search proceedings. But the assessee could not file satisfactory reply. At the time of search assessment, the assessee was once again' given opportunity to reconcile the seized documents found from the residence of KK Chhabria at Surya Apts, Mumbai in Annexure —A-i with books of accounts. The assessee was asked to particularly reconcile Page no. 11 & 26 (copy Enclosed as Annexure). The same apparently seems to be cash receipts from out of books. The assessee was asked to reconcile the same with books of account. The assessee could not reconcile page no. 11 & 26. These unexplained papers contain the detail of cash transactions done by the assessee. The nature of cash transactions indicate that either unaccounted cash has been received by the assessee against the sale. During the assessment proceedings, the AR has explained that these amounts appearing on the seized papers are accounted but with different grouping that's why it cannot be reconciled in exact figure. The explanation of the AR cannot be accepted because reconciliation between the figures mentioned on the seized papers and accounted figures could not be furnished by the AR. Page no. 11 of seized annexure-the paper contains the information regarding cash receipt against the sale. The paper contains the information regarding year wise transaction done by the assessee. For the year under consideration amount involve is Rs. 4,75,000/-. The AR is asked to reconcile the same with the books of account. Due to the non-reconciliation of the seized paper as discussed in the above paragraph, an amount of Rs. 4,75,000/- is added to the income of the assessee. Penalty proceedings u/s 271(1) (c) is initiated separately. Page no. 26 of seized Anneuxre-the paper contains the information regarding the cash receipt against the sale amounting to Rs.6,49,300/-. The AR is asked to reconcile the same with the books of account. Due to the non-reconciliation of the seized paper as discussed in the above paragraph, an amount of Rs.6,49,300/- is added to the income of the assessee. Penalty proceedings u/s 271 (1)(c) is initiated separately.”
The matter carried to the Ld. CIT(A) and the Ld. CIT(A) has confirmed the addition of Rs.4,59,500/-. Therefore, assessee is in appeal before us.
3 Mrs. Nimmi K. Chhabria 4. I have heard the rival contentions of both the parties. I have gone through the order of Ld. CIT(A) and the Ld. CIT(A) has confirmed the addition of Rs.4,75,000/- on account that Mr. Jayantilal has received this amount. I find that without examining Mr. Jayantilalbhai Patel no addition can be made. I find that unless and until Mr. Jayantilalbhai Patel is examined no addition can be made, therefore, the assessee is directed to produce Mr. Jayantilalbhai Patel before the AO. I restore this issue back to the file of the AO to decide the matter afresh, as per law.
In the result, appeal is allowed for statistical purposes. Order pronounced in the open court on 03.10.2017.