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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ NEW DELHI
Before: SHRI I.C. SUDHIR & SHRI L.P. SAHU
ORDER
Per L.P. Sahu, Accountant Member:
This is an appeal by the Revenue against the order of ld.CIT(A)-III, New Delhi dated 12.12.2011 for the assessment year 2006-07 on the following grounds : "
1. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of Rs. 5,00,000/- made by the Assessing Officer u/s 69B of the Income Tax Act, 1961 on account of unexplained investment.
2. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of Rs. 7,33,50,000/- made by the Assessing Officer on account of undisclosed income.
3. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,17,428/- made by the Assessing Officer on account of low household withdrawal.
4. The order of the CIT(A) is erroneous and is not tenable on facts and in law.
2. The brief facts of the case are that search and seizure operation u/s. 132 of the Act was carried out in Vipul Group of cases on 01.06.2006 covering the flagship company of the group M/s. Vipul Ltd. and their director’s. This also included search action at the residence of Sh. Puneet Beriwala, the assessee at 15/10, Sarvpriya Vihar, New Delhi. In pursuance to the search, a notices u/s 153 A of the Act in respect of the assessment year 2001-02 to 2006-07 were issued and served on the assessee on 20.03.2007. The assessee in compliance thereto, furnished return of income on 26.07.2007 for each of the assessment year including the assessment year under consideration 2006-07. In respect of the assessment year 2006-07 the assessee furnished a return declaring his total income at Rs. 1,24,36,040/-. The learned A.O. however, framed an assessment at an income of Rs. 8,64,03,4607- inter-alia making following additions to the declared income: (i) Addition on a/c of low household withdrawals Rs.1,17,428/- (ii) Addition on a/c of investment u/s. 69B Rs.5,00,000/- (iii). Undisclosed income Rs.7,33,50,000/- Total Additions: Rs.7,39,67,428/- Aggrieved by the aforesaid order of assessment, the assessee preferred an appeal before the learned CIT(A), who by his order dated 12.12.2011, deleted each of the three additions observing as under :
On a consideration of the assessment order and the submissions made by the appellant the following finding is given with respect to each of the addition. A. Addition on account of undisclosed investment in Rolex Watch:- From the assessment order it is noted that the AO has made an addition of Rs. 5 lacs as unaccounted investment in Rolex Watch for the reason that while the assessee had in his original surrender made before party B-l accepted through Annexure A-3 to the panchnama that the investment of Rs. 5 lacs in Rolex watch have not been disclosed but in the statement of affairs for the period ending 31.03.05 the assessee has in the details given for income and utilization of the funds disclosed as additional income shown as having spent a sum of Rs. 5 lacs for conversion and purchase of jewellery for his wife Smt. Sunita Beriwala. Thus as the assessee has not adhered to the surrender originally made with respect to unaccounted investment in Rolex Watch for Rs. 5 lacs the same has been added to the income of the assessee by the AO. As against this in his submission dated 09.05.11 the appellant has inter alia upon giving a bifurcation of the total surrendered undisclosed income for Rs. 1,01,05,976/- submitted that this entire surrender comprises of six different types of application of the undisclosed income of Rs. 1,01,05,976/-. That in the statement of affairs prepared on the basis of loose papers, as on 31.03.06( page 74 of the paper book) , the appellant has made the following addition to the capital account:-
Add: Income disclosed in Search on 1.06.06 & Survey Proceedings on 19.09.08 Income on the basis of Annexure A-1/3&5 Rs. 66,44,976/- Cash paid to father for personal expenses Rs. 9,90,000/- (on the basis of Pg 7, Annexure A-l) Income on the basis of Annexure A-l/10 Rs. 8,75,000/- Income on the basis of Annexure A-l/11 Rs. 6,75,000/- Expenses for conversion & purchase Rs. 5,00,000/- of jewellery for wife Sunita Beriwala (on the basis of Annexure A-3) Rs. 4,21,000/- Rs.3,461,000/- Amount spent on traveling expenses Rs.1,01,05,976/- The submission of the appellant is that therefore while there was an item of Rs. 5 lacs offered and included in the breakup of the additional income disclosed during the search proceedings for Rs, 1,01,05,976/- , which was on the basis of Annexure A-3, but while writing the narration in the addition to capital account as above instead of writing the description of Rolex watch and Mont Blanc Pen in the capital account , the same was inadvertently mentioned as "expenses for conversion and purchase of jewellery for wife Sunita Beriwala". That this was a clerical mistake as evident from the fact that as per Annexure A-3, it is these items i.e. Rolex Watch ( Rs. 4 lakhs) and Mont Blanc pen (Rs. 1 lakhs) which has been inventorised and surrender of additional income was made to only these items. The submission of the appellant as well as Annexure A-3 to the panchnama dated have been gone through as also the copy of statement of affairs as on 31.03.06 filed through the paper book. It is seen from "Annexure -3" to the panchnama dated 01.06.06 prepared at the residence of the appellant at 15/10, Sarvpriya Vihar that there is a narration to the following effect: - "The Rolex watch detailed at S. No. 2 and the Mont Blanc pen at S.No. 3 have been bought by me during the FY 2005-06 cash and the same will be filed in my AY 2006-07 return." Thereafter the signature of Sh. Punit Beriwala has been made on Annexure -3. Thus from the same annexure it is evident that there is no mention of "expenses for conversion and purchase of jewellery for wife Sunita Beriwala" on Annexure A-3. That therefore the explanation of the appellant that there has been a inadvertent clerical error while giving the narration of breakup of undisclosed income as shown in the capital account in the statement of affairs is logically acceptable . This is also for the reason that in this very statement of affairs, drawings for undisclosed expenses (which have already been treated as income) has also been mentioned in the capital account and that under this head expense for conversion and purchase of jewellery for Sunita Beriwala at Rs 5 lacs has separately been mentioned. While giving no finding on the correctness and truthfulness of the statement on Rs. 5 lakh spent on conversion of jewellery, the fact remains that from the above noted details it is observed that the disclosure of income for Rs. 1,01,05,976/- made by the appellant at the time of search has been adhered to and the investment in Rolex Watch for Rs. 4 lacs and for Mont Blanc pen for Rs. 1 lac (total Rs. 5 lacs) has been shown as part of the undisclosed income and therefore the addition made on this account is directed to be deleted. B. As regards the addition of undisclosed income of Rs. 7,33,50,000/- is concerned , upon a careful reading of the AO's findings and the appellant submission thereon and the perusal of the copy of the seized documents the following notable points emerge:- i. It is a matter of record, as noted by the AO himself, that Annexure A-l pages 1 to 109, which mostly relate to narration regarding family settlement of Beriwala group has been found and seized from the residence of Sh. Vinit Beriwal the brother of the assessee, at 10/11, Sarvpriya Vihar, New Delhi. ii. It is also a matter of record that none of these pages bears the signature of the appellant or for that matter any other person including Sh. Vinit Beriwala and Sh. Shyam Sundar Beriwala the brother and father of appellant. iii. No statement on oath has been recorded at the time of search or even during post search investigation or during assessment proceedings in case of Sh. Vinit Beriwala, from whose residence these seized papers were found. Thus it is not clear as to in whose hand writing these pages have been written. iv. There is considerable force in the submission of the appellant that the presumption under law in section 132(4A) and 292C of the IT Act would only apply with respect to books of accounts /documents found in possession or control of any person. Now as the documents at pages 1 to 109 of A-l have not been found from the possession or control of Sh. Punit Beriwala therefore the presumption under these two sections cannot be raised against the appellant. v. Thus as there is no evidence to suggest that these seized documents are in the handwriting of the appellant and as it is a matter of record that there are no signature of Sh. Punit Beriwala on these documents therefore the same cannot be held as "belonging to" the appellant (under S. 132(4A)/292C) and accordingly the contents and narration on these pages cannot be used for assessing the income of the appellant by implicitly invoking the provisions of section 153C in the case of the appellant. For this proposition reliance is placed on the decisions in Vijay Bhai N.Chandrani vs. ACIT 38 DTR 225; Saif Ali Khan in Mum /2009 ITAT Mumbai and Meghmani Organics Ltd. 36 DTR 187 which hold that it is a condition precedent for issuing notice u/s 153C that the document in question should "belong to the assessee". The relevant portion in finding in case of Vijay Bhai N.Chandrani vs. ACIT 38 DTR 225 (Gui. High Court) are as under:- “11. The controversy in issue pertains to the interpretation of the provisions of s. 153C of the Act which reads thus: "153C. Assessment of income of any other person-Notwithstanding anything contained in s. !39, s. 147, s. 148. s. 149, s. 151 and s. 153, where the AO is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in s. 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the AO having jurisdiction over such other person and that AO shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of s. 153A."
On a plain reading of the aforesaid provisions it is apparent that ss. 153A, 153B and 153C lay down a scheme for assessment in case of search and requisition. Sec. 153A deals with procedure for issuance of notice and assessment or reassessment in case of the person where a search is initiated under s. 132 or books of account, other documents or assets are requisitioned under s. I32A after the 31st day of May, 2003. Sec. 153B lays down the time-limit for completion of assessment under s. 153A. Sec. 153C which is similarly worded to s. 158BD of the Act, provides that where the AO is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in s. 153A he shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person. However, there is a distinction between the two provisions in as much as under s. 153C notice can be issued only where the money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belong to such other person, whereas under s. I58BD if the AO is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under s. 132 or whose books of account or other documents or assets were requisitioned under s. 132A, he shall proceed against such other person under s. 15SBC.
Thus a condition precedent for issuing notice under s. 153C and assessing or reassessing income of such other person, is that the money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned should belong to such person. If the said requirement is not satisfied, resort cannot be had to the provisions of s. 153C of the Act.
Examining the facts of the present case in the light of the aforesaid statutory scheme, it is an admitted position as emerging from the record of the case, that the documents in question, namely the three loose papers recovered during the search proceedings do not belong to the petitioner. It may be that there is a reference to the petitioner in as much as his name is reflected in the list under the heading 'Samutkarsh members details' and certain details are given under different columns against the name of the petitioner along with other members, however, it is nobody's case that the said documents belong to the petitioner. It is not even the case of Revenue that the said three documents are in the handwriting of the petitioner. In the circumstances, when the condition precedent for issuance of notice is not fulfilled any action taken under s. 153C of the Act stands vitiated. " The relevant portion in finding in the case of Meghmani Organics Ltd. 36 DTR 187 are as under:- "18. The Tribunal Bangalore Bench in the case of P. Srinivas Naik (140 TTJ 856) held that if any documents found though pertaining to the assessee, if not belonging to such assessee, the action under s. 153C r/w.s. 153A cannot be invoked. The Tribunal in this case held as under:- "7. We have heard both the parties. It is an undisputed fact that books of account or documents do not belong the assessee, as these were seized from the premises of Shri Reddy. It is nowhere stated that these books of account or documents showed that all the transactions were belonging to the assessee. Such books of account or documents contained the transactions relating to the group concerns of Shri Reddy. No valuable belonging to the assessee has been seized during the course of search. The term belonging implied something more than the idea of casual association. It involves the action of continuity and indicates one more or less intimate connection with the person over a period of time. The books of account or documents seized during the course of search have a close association with the group concern of Shri Reddy. It records the transaction carried out by that group. It does not record the transaction carried out by the assessee. Under the WT Act, assets belonging to assessee were taxable. The expression belonging to the assessee connotes both the complete ownership and limited ownership of interest. Of course, belonging to is capable of connoting, interest, which is less than absolute perfect legal title. However, there should be some limited ownership of interest, if it is to be permitted that the assets belong to the assessee. In the instant case, documents or books of account found during the course of search and seized cannot be termed to be indicating any limited interest of the ownership of the assessee in such books of account or documents. The language used in s. I53C is materially different from the language used under s. 158BD. As per s. 158BD, if any undisclosed income relates to other person, then action against such other person can be taken provided such undisclosed income is referable to the document seized during the course of search. However, s. I53C says that if valuable or books of account or documents belonging to other persons are seized then action under s. I53C can be taken against that person. In the instant case, we are satisfied that books of account or documents do not belong to the assessee and, therefore, the AO was not justified in initiating action under s. I53A r/w s. I53C of the IT Act. The AO is free to take proper remedial measure as per law."
The decisions relied upon by the learned Departmental Representative will not apply in this case as in both cases the facts are that the assessments were framed under s. 153A of the Act i.e., the assessee was the person in whose case search was initiated under s. 132(1) of the Act. It is also found that the assessments were pending in those cases and it was also observed that "it is not the complaint of the assessee that any income which is already subjected to the assessment under s. 143(3)/148 of the Act which was completed prior to search has also been included in the assessments framed under s. I53A of the Act." Therefore, both the cases relied upon by the learned Departmental Representative will not help the case of the Revenue. In view of our above finding and applying the decision of the Tribunal Calcutta Bench in the case of LMJ International Ltd., since we have found that the documents found during the search at the residential premises of Shri Lalit K. Patel and Kantilal M. Patel do not "belong to the assessee" the AO was not competent to initiate action under s. 153C of the Act so as to frame assessment under s. 153 A of the Act. We, therefore, set aside the assessments." The word "belonging to" has also been seen in "Concise Law Dictionary" published by LexisNexis Butterworths ,Wadhwa ,Nagpur. From the third edition of this book it is seen that the word "belonging to" refers to ownership. Though capable of denoting an absolute title it can also signify even possession of an interest less than full ownership. It signifies something more than the idea of casual association and indicates a more or less intimate connection.
I have given considerable thought to the facts of the case and the arguments made by the appellant . Now the requirement under the law is regarding the ownership of the document itself and the fact of the matter is that the there is no absolute or limited ownership of the assessee over the seized documents. As there is no intimate connection between the contents of the seized document and the appellant and neither there is any other corroborative evidence to the effect that the appellant had parted with the cash portion recorded in the seized document therefore the requirement under the law of the fact that the seized document should belong to the assessee for initiation of proceeding u/s 153C of the IT Act are not fulfilled in the case of the appellant. vi. Coming to the contents of the document referred to in Annexure A-l( Pages 1-109 ) the appellant in his submission has inter-alia stated that these pages mainly related to the deeds of family settlement of Beriwala group at different point of time. Referring to page no 106 it is stated that this page contains an action plan as it records "understanding reached on 11.04.06". That against point no.7 on this page it is written that "PB will pay cash to VB/SSB@ 50,00,000/- per week at least to complete by 31st May." That this paper appears to be written on 11.04.06 and that negotiation for family settlement were going on since April., 2005 and many drafts papers were prepared, but due to one or other reason the settlement among the family members did not materialize. Referring to page 107 the appellant has submitted that this page is dated 12,09.06 and contains details of "pending portion arising from family settlement of 12.09.06". Referring to the last para on this page wherein notings of "payments till date PB—»SSB-1.25 and PB —»VB 6.0850 the argument being made by the appellant is that from the fact that this is written under the heading "pending portion arising from family settlement', therefore it is not clear whether the narration meant that the "payments that were to be made till date" or "payments made till date." That interpretation can be made either way since this narration forms part of the paper consisting of pending portion arising from family settlement. The appellant has further argued that no source and no availability is reflected from where the payments could have been made in cash. That these papers are only draft papers where jottings have been made relating to steps to be implemented. Referring to page 104 the submission is that this page is regarding Division of assets Beriwala Group as on 31.03.05 and in the three columns the assets under the control of Sh./Shri SS Beriwala, Punit Beriwala and Vinit Beriwala have been mentioned. That the statement on this page reveals that there is no availability of funds because the asset allocation does not allocate any liquid funds in any of these groups stated in the settlement papers. It has lastly been argued that there is no presumption about earning of income and the AO cannot make addition based on incomplete entries and notings made on unsigned, rough paper which does not clearly reveal that the assessee has earned income. That accordingly no reliance can be placed on such dumb document. Reliance has been placed on the decision of Delhi High Court in case of C1T vs. Kulwant Rai 2911TR 36 and it has been submitted that the addition made by the AO without any corroboration of the seized rough papers based on any direct/circumstantial evidence is not in accordance with law and therefore may be deleted. The contents of the documents have been gone through which are cryptic in nature . Even the deciphering of the figure of 1.25 and 6.0850 into Rs. 1.25 Crores and Rs. 6.0850 Crores is based on assumption. Moreover no dates are recorded against these narrative and that on the top of page 107 (which in my view should be correctly read as “pending portion 12.04.2006) refers to arising from family settlement of 12.04.06”. It is also a matter of record that the impugned documents have not been seized from the possession or control of the appellant but rather have been seized from residential premises of Sh. Vineet Beriwala, the younger brother of the appellant. As already noted above there is no evidence to the effect that the seized documents are in hand writing of the assessee. No statement has been recorded from the person in whose possession / control these documents are found & seized and therefore the issue of confronting/cross examination to the appellant does not arise, which was a basic legal requirement. Moreover there has been no addition to income in hands of either Sh. Vineet Beriwala or Sh. SS Beriwala for A.Y.2006-07 (based on the above narrative), copy of assessment order for which has been enclosed. Further there is no record of any cash for Rs. 7,33,50,000/- or a lesser amount found at any of the premises of Sh. Vineet Beriwala or Sh. SS Beriwala , nor any details of any investment/ expenditure having been made out of this supposed amount of Rs. 7,33,50,000/-found in search on Sh. Vineet Beriwala or Sh. SS Beriwala. It is relevant to note that the search has been conducted on 01.06.06, which is barely 50 days from the date of written on page 12.04.06. Thus there has been no corroborative evidence found in search or post search investigation to substantiate the fact that the appellant has made unaccounted cash payment for Rs. 7,33,50,000/- to Sh. Vineet Beriwala or Sh. SS Beriwala during the year. vii. In view of the above discussion in totality and relying on the judicial principles in the decisions in cases referred above, I am of the considered view that the addition made for Rs. 7,33,50,000/-in case of the appellant, based on the papers seized from the residential premises of Sh. Vinit Beriwala, is not sustainable either in law or facts and is therefore directed to be deleted. C. As regards the issue of addition to income made for Rs. 1,17,428/- on account of low house hold withdrawal the appellant's arguments are twofold. Firstly, it has been submitted that apart from the cash drawings of Rs. 8,733/- made by the appellant he has also made separate withdrawal for Rs. 23,997/-for school fees and Rs. 4,85,542/- for LIC premium. Further Smt. Sunita Beriwala has also apart from the cash drawings of Rs. 16,000/- made a separate withdrawal of Rs. 2,94,156/- as LIC premium ; Rs. 33,677/- for school fees etc. That thus the consolidated drawings of the assessee and his spouse comes to Rs. 9,12,878/- . That apart from the above the assessee has also shown drawings for undisclosed expenses, which has been treated as income for the year amounting to Rs. 34,61,000/- and therefore there is no case for making an addition of Rs. 1,17,428/- as unexplained expenditure on house hold expenses. The other argument of the appellant is that no addition u/s 153A can be made unless there are certain documents or material found in the search. Reliance in this regard has been placed on the decision in Anil Kumar Bhatia 1 ITR (Trib.) 484 & other cases. On a consideration of the submission of the appellant it is noted that while it is apparent that as such the withdrawals for household expenses are quite low considering the status of the appellant and his family ( as the withdrawal and LIC premium and school fees are distinct from normal expenses incurred on electricity, vehicle, fooding, and the expensive life style) but then it is also a matter of record that there has been an substantial drawing for undisclosed investment for Rs. 34,61,000/- during the year which has been treated as income as per the disclosure made by the appellant. This includes miscellaneous expenses of Rs. 15.50 lacs and travelling expenses for Rs. 4.21 lacs. Thus taking a over view of the above facts the addition made for Rs. 1,17,428/- is directed to be deleted.” 3. Aggrieved by the order of ld. CIT(A), the Revenue is in appeal before the Tribunal.
The ld. DR, as to the deletion of addition of Rs.5,00,000/-, relied on the order of the ld. Assessing Officer and submitted that the ld. CIT(A) was not justified in deleting this addition ignoring that through annexure A-3 to the Panchnama, the assessee accepted undisclosed investment of Rs.5 lacs in purchase of Rolex Watches, whereas in the statement of affairs prepared on the basis of loose papers seized, the assessee has given details of additional / undisclosed income & utilization of fund of Rs.500000/-, as having been spent for conversion and purchase of jewellery for his wife Smt. Sunita Beriwala. Therefore, the assessee having not been adhered to the original surrender, the AO had rightly made addition of Rs.5,00,000/-.
On the other hand, the ld. AR of the assessee relied on the order of the ld. CIT(A) and submitted that the addition has been rightly deleted after considering the explanation of the assessee that there had been computer error in the statement of affairs when instead of reflecting the pens and watches, it had erroneously been stated to be the expense for conversion and purchase of jeweler for Sunita Beriwala. The narration made on Annexure -3 clearly shows the investment for purchase of watches and pens. This annexure was signed by the assessee and on this annexure there is no mention about any investment in conversion or purchase of jewellery. Therefore, the typographical error which crept in writing the narration against expenditure of Rs.500000/- itself stands proved by Annexure A-3 itself. It was submitted that the ld. CIT(A) has made an elaborate discussion and has rightly deleted the addition considering the explanation of assessee given on this count as logical.
We have considered the rival submissions and have gone through the orders of the authorities below and we find no justification to interfere with the order of the ld. CIT(A) on this issue. The clerical mistake is proved from the fact that as per Annexure A-3, the items Rolex Watch ( Rs. 4 lakhs) and Mont Blanc pen (Rs. 1 lakhs) were inventorised by the search party and surrender of additional income was made only to these items. On this Annexure, there is no mention of any purchase or conversion of jewellery. The ld. CIT(A) has also found that in the statement of affairs, drawings for undisclosed expenses already treated as income, have also been mentioned in the capital account and that under this head expense for conversion and purchase of jewellery for Sunita Beriwala at Rs 5 lacs has separately been mentioned. We, therefore, find that the disclosure of income for Rs. 1,01,05,976/- made by the assessee at the time of search has been adhered to and the investment in Rolex Watch for Rs. 4 lacs and for Mont Blanc pen for Rs. 1 lac (total Rs. 5 lacs) has been shown as part of the undisclosed income. There being no contrary material on record, we confirm the findings reached by the ld. CIT(A) on this issue. Accordingly, ground No. 1 of the appeal of the Revenue is dismissed.
Regarding deletion of addition of Rs.7,33,50,000/-, it was submitted by the ld. DR that the Assessing Officer on the basis of notings on different pages of memorandum of family settlement, sized from the residence of Sh.Vinit Beriwala, has made aforesaid addition, with reference to details of shareholdings, valuation of various assets of the group and its division amongst the three family groups etc. It was submitted that the aforesaid amount was mentioned to have been paid by the assessee to Vinit Beriwala and Shyam Sunder Beriwala, which stood unexplained. Therefore, the ld. CIT(A) was not justified in deleting the addition.
The ld. AR of the assessee relied on the order of the ld. CIT(A) and submitted that the ld. CIT(A) has accepted the contentions of assessee after giving good reasons. Therefore, the impugned order does not require any interference. It was submitted that the alleged document was not seized from the control or possession of the assessee nor does it bears any signature and hand writing of assessee. It was submitted that page No. 107 of this document does not show that the assessee had paid the alleged sum of Rs.7,33,000/- in F.Y. 2005-06 to Sh. Vinit Beriwala and Shri S.S. Beriwala. No statements of Vinit Beriwala or SS Beriwala are brought on record about receipt of such payments, if made by the assessee. It was also submitted that the narration “the payment till date” if read in the context of title to the documents could only mean that as on 12.04.2006 payment due to be received from Sh. Punit Beriwala was as a result of proposed family settlement initiated in F.Y. 2001- 02. The contention of the assessee has been that no payments either to Vinit Beriwala or Sh. SS Beriwala were made and negotiations were going on to determine which of the asset of the family be shared with which of the family member. No corroborative evidence is brought on record to support any payment made by the assessee on the basis of seized documents.
We have considered the rival contentions and gone through the entire material available on record and we find that there is no corroborating evidence on record to justify the payment of Rs.7,33,50,000/- by the assessee to other family group. No statement has been recorded of the person (s) from whose possession these documents were found. The ld. CIT(A) has categorically mentioned that there has been no addition to income in hands of either Sh. Vineet Beriwala or Sh. SS Beriwala for A.Y.2006-07 based on the narration found made on the seized papers or that they have anywhere declared the receipt of payments from the assessee. There is nothing on record to contradict the findings of the ld. CIT(A) that no cash for Rs. 7,33,50,000/- or a lesser amount found at any of the premises of Sh. Vineet Beriwala or Sh. SS Beriwala , nor any details of any investment/ expenditure having been made out of this supposed amount of Rs. 7,33,50,000/- were found in search on Sh. Vineet Beriwala or Sh. SS Beriwala. Thus there being no corroborative evidence found in search or post search investigation to substantiate the fact that the appellant has made unaccounted cash payment for Rs. 7,33,50,000/- to Sh. Vineet Beriwala or Sh. SS Beriwala during the year, the assumption of payment of cash derived from alleged paper seized cannot be supported. Therefore, ld. CIT(A) has rightly deleted the addition. The ld. CIT(A) has also recorded the findings on legal aspect of the case also, inasmuch as the alleged paper was not found from the possession of assessee and there was no corroborating evidence to show that the said papers seized from third party belong to the assessee. He has also relied on several decisions of Hon’ble Higher courts. The Revenue has not brought any material on record contrary to the findings reached by the ld. CIT(A) on this aspect also. We accordingly, do not find any justification to interfere with the findings reached by the ld. CIT(A) on this issue. Accordingly, the ground No. (ii) of appeal of the Revenue also deserves to be dismissed.
As far as the last issue of deletion of addition of Rs. 1,17,428/- on account of low house hold withdrawals is concerned, the contention of the assessee has been that that apart from the cash drawings of Rs. 8,733/- made by the assessee he has also made separate withdrawal for Rs. 23,997/-for school fees and Rs. 4,85,542/- for LIC premium. The assessee’s wife has also apart from the cash drawings of Rs. 60,000/- made a separate withdrawal of Rs. 2,94,156/- as LIC premium ; Rs. 33,677/- for school fees etc. Therefore, the ld. CIT(A) has rightly observed that if the consolidated drawings of the assessee and his wife of Rs.9,12,878/- is taken into consideration, it cannot be said that there was low household withdrawals. Besides this, the assessee has also shown drawings for undisclosed expenses, which has been treated as income for the year amounting to Rs. 34,61,000/-. Moreover, no addition can be made u/s. 153A unless there are certain documents or material found in the search to support the view of the AO regarding low household withdrawals. However, no such material is brought by the Revenue to our notice. Therefore, in our considered opinion, no case is made out by the Revenue for making addition of Rs.1,17,428/- on account of low withdrawals. There being no contrary material from the side of Revenue, we uphold the conclusion reached by the ld. CIT(A) on this count.
In view of what has been discussed above, the appeal of the Revenue is found to have no merits and is liable to be dismissed and the impugned order of the ld. CIT(A) to be sustained.