Decided on January 23,2008



B.C. Meena, A.M. - (1.) THIS appeal of the revenue relates to block period comprising of assessment years 1997-98 to 2002-03 and has been filed against the order of the learned Commissioner (Appeals) dated 5-1-2006.
(2.) Briefly stated, the facts of the case are that a search and seizure operation was carried out at the residential/business-cum-office premises of the assessee on 23-10-2002. During the course of search cash of Rs. 23,75,250 was found, out of which Rs. 23,00,000 was seized as per Annexure "C". This cash was stated to belong to M/s Soni Marbles the details of which were given by the assessee as under: JUDGEMENT_8971_TLIT0_20080.htm During the course of search, Shri Radheshyam Soni was also confronted regarding cash of Rs. 23,75,250 found at the residence of his father at Fatehnagar. He replied that he kept Rs. 16 lakhs in the safe of his father's home, which was withdrawn from the books of M/s Soni Marble from time to time. He further stated Rs. 5,00,000 was also withdrawn by another partner of M/s Soni Marble, Shri Murli Dhar Soni on 12-10-2002. The assessing officer did not accept the above explanation of the assessee and made the impugned addition. On the contrary, the learned Commissioner (Appeals) has deleted the impugned addition and therefore, the revenue is aggrieved. We have heard the rival submissions and have perused the available materials on record, carefully.
(3.) HAVING given careful thought to the facts and other materials available on record, we are in agreement with the conclusion that the attention drawn by the learned Commissioner (Appeals) that the entire disputed case stands explained. The main reason for arriving at the above conclusion is that to ascertain and verify the claim of the assessee that cash of Rs. 16,00,000 was withdrawn from the cash of M/s Soni Marbles by Shri Radheshyam Soni and Rs. 5,00,000 by Shri Murlidhar, a letter dated 18-3-2005 was written to the learned assessing officer with a copy sent to the Commissioner, Central and Additional Commissioner, in response of which the learned assessing officer sent his report dated 7-4-2005. The learned Commissioner (Appeals) also forwarded lengthy written submissions, which were reproduced in the appellate order, on which comments with specific request to comment on the sales shown in the books of M/s Soni Marble from 1st October till the date of search. The learned assessing officer submitted reports dated 23-11-2005 and 21-12-2005, the copies of which were given to learned Authorised Representative for his comments. The learned assessing officer has repeated the similar facts and observations as were narrated in the assessment order. In the cash book and ledger of M/s Soni Marble, the withdrawals of cash found were duly recorded. It is also observed that there was a sufficient cash balance available on the dates of withdrawals in the cash book of M/s Soni Marble. The assessee had furnished the entire details of sales made from 1st October till the date of search along with dates, truck 'number, sale amount, royalty details, amount of royalty, sales-tax number etc. The assessing officer verified the entire details and did not find any discrepancy therein. From the report dated 21-12-2005, it is also manifested that the assessing officer did not dispute the claim of the assessee, however, he added that there was no nexus between the cash of Rs. 16 lakhs and Rs. 5 lakhs and the amount found during the course of search. But from the evidences available on record, we are convinced that the cash of Rs. 21 lakhs found during search were duly recorded in the seized cash books of M/s Soni Marble and the transactions recorded therein are fully verifiable which are also found genuine. There is no reason to reject these transactions. When the withdrawals of cash are duly recorded in the seized cash book of M/s Soni Marble, there cannot be any reason for not accepting them as genuine. Therefore, in the absence of any evidence on record which can suggest that this cash is not the same cash which was withdrawn as above, we are left with no other option but to accept claim of the assessee in this regard. With the force of above observation, we have to dismiss ground No. (1) of revenue's appeal.;

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