2005 (8) TMI 534 - AT - Income Tax

Summary

Issues Involved:
1. Validity of initiation of proceedings under section 158BD.
2. Addition of undisclosed income based on seized documents.
3. Evidentiary value of loose papers found during the search.
4. Procedural fairness and opportunity to the assessee.

Detailed Analysis:

1. Validity of Initiation of Proceedings under Section 158BD:
The assessee challenged the initiation of proceedings under section 158BD on the grounds of non-recording of satisfaction by the Assessing Officer. The CIT(A) addressed this issue by referring to the provisions of section 158BD, which requires the Assessing Officer to be satisfied that any undisclosed income belongs to a person other than the one searched. The CIT(A) concluded that it is not mandatory for the Assessing Officer to record a written satisfaction note. The satisfaction required is only a prima facie satisfaction that there is seized material showing undisclosed income of another person. The CIT(A) further noted that the Assessing Officer had recorded his satisfaction in the order sheet entry dated 26-7-2002 before issuing the notice under section 158BD.

2. Addition of Undisclosed Income Based on Seized Documents:
The Assessing Officer added Rs. 5,50,36,030 as undisclosed income based on seized documents, specifically page Nos. 23 and 24 of Annexure A-1, which detailed cash and cheque payments received by the assessee from Dinesh Jain Group. The assessee contended that these documents did not pertain to them and that no cash transactions were made. The CIT(A) upheld the addition, noting that the sale consideration of commercial flats sold to Dinesh Jain group was significantly lower than that of other purchasers, indicating possible cash transactions. The CIT(A) also observed that the cheque payments recorded in the seized documents matched the entries in the assessee's books of account, suggesting that the cash payments mentioned in the same documents were also likely accurate.

3. Evidentiary Value of Loose Papers Found During the Search:
The assessee argued that the loose papers found during the search were unsigned and not in their handwriting, making them "dumb documents" with no evidentiary value. The CIT(A) disagreed, stating that the documents contained detailed entries of cheque payments that matched the assessee's books, implying that the cash entries were also credible. The Tribunal referred to the Supreme Court's decision in the case of Sumati Dayal, emphasizing that the apparent must be considered real until proven otherwise, and the surrounding circumstances and human probabilities must be considered.

4. Procedural Fairness and Opportunity to the Assessee:
The assessee claimed that the assessment was framed without giving them proper opportunity to explain the documents and statements. The Tribunal noted that while the CIT(A) made several findings, the assessee was not given a chance to address these issues. The Tribunal emphasized the need for procedural fairness, stating that the assessee should be provided with all relevant material and given an opportunity to explain before any adverse conclusions are drawn. The Tribunal set aside the orders of the CIT(A) and the Assessing Officer, remanding the matter back for fresh consideration with a direction to afford the assessee a reasonable opportunity to explain the material used against them.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, emphasizing the need for procedural fairness and proper opportunity for the assessee to explain the material used against them. The matter was remanded back to the Assessing Officer for fresh consideration.