2015 (1) TMI 1215 - AT - Income Tax

Validity of proceedings u/s. 158BD - Held that - although 2 plots owned by M/s. Manoj Marketing Pvt. Ltd. and M/s. Vasumati Marketing Pvt. Ltd. (both having equal share in the 2 plots) were sold to M/s. Rishiraj Builders and Developers, however, we find no addition has been made in the hands of M/s. Vasumati Marketing Pvt. Ltd. No corroborative material whatsoever was found showing any on -money received by M/s. Manoj Marketing Pvt. Ltd. No MOU, no receipt, no signature of the assessee in token of receipt of any on -money was found during the course of search from the premises of M/s. Rishiraj Builders and Developers. Although according to the affidavit/statement of Shri Y.P. Trivedi that payments were made by Shri Shastri who is office manager, however, it is a fact that statement of Shri Shastri was never recorded. Further, even the cheque payments made to the assessee and cheque payments as per the seized documents also do not tally. We find the AO has not acted on the basis of the figures appearing in the seized papers at ₹ 57,75,370/ - or the affidavit of Shri Y.P. Trivedi ₹ 57,75,000/ -but he has proceeded on the basis of certain other entries amounting to ₹ 33 lakhs. In view of the above and in view of the detailed reasonings given by Ld. CIT(A) and following the decision of the Pune Bench of the Tribunal in the case of Shri Jitendra M. Thakkar (2011 (2) TMI 1397 - ITAT PUNE), we find no infirmity in the order of the Ld. CIT(A) deleting the addition - Decided in favour of assessee.

Issues Involved:

1. Validity of the notice issued under section 158BD.
2. Addition of Rs. 16,50,000 as undisclosed income.
3. Presumption under section 132(4A) and its applicability to third parties.
4. Evidentiary value of seized documents and affidavits.
5. Cross-examination of witnesses and corroborative evidence.

Detailed Analysis:

1. Validity of the Notice Issued Under Section 158BD:

The assessee challenged the validity of the notice issued under section 158BD, arguing that it was void and illegal. The CIT(A) upheld the notice, stating that any defect in the notice was curable under section 292B. The assessee also raised additional grounds, claiming that the satisfaction note was recorded after the completion of the block assessment of the searched party, making the notice invalid. However, these grounds were not pressed during the hearing, leading to the dismissal of the cross objections.

2. Addition of Rs. 16,50,000 as Undisclosed Income:

The AO added Rs. 16,50,000 as the assessee's share of undisclosed income based on seized documents indicating cash payments. The assessee argued that no evidence linked them to the alleged undisclosed income, and the CIT(A) deleted the addition. The CIT(A) observed that the AO relied on uncorroborated entries in seized documents and statements from third parties without direct evidence against the assessee. The Tribunal upheld the CIT(A)'s decision, noting inconsistencies in the AO's reliance on the affidavit and seized documents.

3. Presumption Under Section 132(4A) and Its Applicability to Third Parties:

The AO presumed the seized documents to be true under section 132(4A) and applied this presumption to the assessee, a third party. The CIT(A) and Tribunal disagreed, stating that the presumption under section 132(4A) applies only to the person from whom the documents were seized. The Tribunal emphasized that the AO did not provide corroborative evidence to support the presumption against the assessee.

4. Evidentiary Value of Seized Documents and Affidavits:

The CIT(A) and Tribunal scrutinized the evidentiary value of the seized documents and affidavits. The Tribunal noted that the AO failed to corroborate the seized documents with independent evidence. The affidavit by Shri Y.P. Trivedi, which claimed cash payments, was based on information from an employee and not firsthand knowledge. The Tribunal found that the AO did not verify the statements with the employee, Shri Shastri, and relied on unconfirmed information.

5. Cross-Examination of Witnesses and Corroborative Evidence:

The assessee was allowed to cross-examine Shri Y.P. Trivedi, who admitted that he had no direct involvement in the transactions and relied on information from Shri Shastri. The Tribunal found that the AO did not summon Shri Shastri to verify the transactions. The Tribunal concluded that there was no direct evidence linking the assessee to the alleged cash payments and that the AO's reliance on uncorroborated documents and statements was insufficient to justify the addition.

Conclusion:

The Tribunal upheld the CIT(A)'s decision to delete the addition of Rs. 16,50,000, finding that the AO's reliance on uncorroborated documents and statements was not justified. The Tribunal emphasized the need for direct evidence and proper verification of statements before making additions based on seized documents. The cross objections raised by the assessee regarding the validity of the notice under section 158BD were dismissed as not pressed.

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