2013 (7) TMI 687 - AT - Income Tax

Search and Seizure - Whether Documents seized are Dumb Documents Presumption u/s 292C - Held that - The document seized from the appellant s premises are not dumb documents. Names of the partners and contractors are appearing in seized material. From the words Extra Bill , Adjustment Bills , it is clear that the appellant has inflated the expenses. It is the duty of the appellant to explain the nature of the expenses and the sources for such expenses - The decisions relied on by the appellant is distinguishable since those cases are concerned with dumb documents Decided in favor of Revenue. Documents seized not mentioned in panchnama - Relevant Page-71 appearing in the loose paper of Annexure A-1, which has been placed in the paper book at Page-77 was not found during the course of search and seizure action in case of the assessee from any of its premises Held that - In the panchanama prepared in case of the assessee this annexure or document does not find any mention about such kind of annexure or loose paper - The loose papers which have been mentioned in the panchanama are entirely different and the annexure A-1 / Page-71 on which the Assessing Officer has placed reliance is entirely different - The alleged seized document on which the Assessing Officer has made the addition does not belong to the assessee and, hence, no addition is called for. Further, the said document which contains some entries is not based on double entry system as there is no matching debit / credit side entries. Various instances have been pointed out to show that there is no co-relation between the debit and credit side entries and, hence, it cannot be said that these entries suggest any kind of inflated expenses. Even the Assessing Officer not mentioned as to from where the document was found. If that is the fact, then, there cannot be any presumption under section 292C which postulates that onus is upon the assessee to explain the nature of all the documents and the entries given therein, if found from the possession of the assessee at the time of search. Under these facts and circumstances and without going into the merits of the addition, this matter required to be restored back to the file of the Assessing Officer to verify this fact Decided against the Revenue.

Summary

Issues Involved:
1. Deletion of addition made on account of estimated on-money received on the sale of flats.
2. Confirmation of addition on account of alleged inflation of expenses.

Detailed Analysis:

1. Deletion of Addition on Account of Estimated On-Money:

The Revenue's appeal challenged the deletion of the addition made by the Assessing Officer (AO) on account of estimated on-money received on the sale of flats. The assessee, a real estate developer, was subjected to a search and seizure operation, during which certain papers indicating on-money transactions were found. The assessee declared Rs. 1.81 crores as on-money for 39 flats based on the seized papers. However, the AO estimated additional on-money for 37 other flats not mentioned in the seized papers at Rs. 500 per sq.ft., leading to an addition of Rs. 2,24,32,000.

The assessee argued that the addition was based on presumption and surmises without any material evidence. The learned Commissioner (Appeals) (CIT(A)) agreed, noting that the addition was purely estimated and not based on any evidence found during the search. The CIT(A) emphasized that assessments post-search should be based on evidence collected, not on estimates. The CIT(A) deleted the addition, finding no basis for the AO's estimation of on-money for the other flats.

The Tribunal upheld the CIT(A)'s decision, stating that the AO's estimation was not supported by any material or evidence. The Tribunal highlighted that the rate of sale of flats depends on various factors, and there cannot be a uniform rate. The Tribunal found that the assessee had demonstrated that the flats not mentioned in the seized material were sold at higher rates, which was not rebutted by the Department. The Tribunal concluded that pure guesswork and wild estimates without evidence cannot be the basis for assessment.

2. Confirmation of Addition on Account of Alleged Inflation of Expenses:

The assessee's appeal challenged the confirmation of the addition on account of alleged inflation of expenses. The AO noted that the assessee had inflated expenses based on a seized document (A-1/Page-71) indicating extra and adjustment bills. The CIT(A) confirmed the addition, stating that the document was not a dumb document and that the assessee failed to explain the nature and source of the expenses.

Before the Tribunal, the assessee contended that the document was not found during the search and did not relate to the assessee. The assessee argued that the document was a rough noting without corroborative evidence and had no evidentiary value. The Tribunal noted that the document did not appear in the panchanama prepared during the search and that the entries did not follow a double-entry system. The Tribunal found merit in the assessee's contention and restored the issue to the AO to verify whether the document was part of the panchanama. If the document did not pertain to the assessee, no adverse inference should be drawn.

Conclusion:

The Tribunal dismissed the Revenue's appeal, confirming the CIT(A)'s deletion of the addition on account of estimated on-money. The Tribunal allowed the assessee's appeal for statistical purposes, remanding the issue of alleged inflation of expenses to the AO for verification. The Tribunal emphasized that assessments should be based on cogent material and evidence, not on presumption or suspicion.