2014 (4) TMI 937 - AT - Income Tax

Jurisdiction u/s 153A of the Act Held that - CIT(A) s view that in cases assessment u/s. 153A can be made without finding any seized material is not sustainable - it is not denied that it was a valid search and material was found from the premises which also houses of the group companies in which the assessee is also a Director Relying upon CIT vs. SM Aggarwal 2007 (3) TMI 226 - DELHI High Court it cannot be said that AO has assumed jurisdiction without any material found during search - Whether addition on the basis of the said material is sustainable or not is a matter which has to be considered subsequently after the assumption of jurisdiction - the contention of the assessee that the assumption of jurisdiction u/s. 153A was not proper cannot be accepted - the material was found from the premises which also belonged to the assessee group company thus, the jurisdiction of assessment u/s. 153A was valid Decided against Assessee. Failure in rebuttal of legal presumption u/s 132(4)/292C of the Act Held that - The seized material in the shape of diary did not belong to the assessee - It belonged to the assessee s brother - He has not at all been confronted with the contents of the diary - Assessee cannot be called upon to explain the contents of diary which belonged to the assessee s brother and was found from the brother. There is no mention of the assessee s name in the particulars of diary - Though there is mention of the farm house belonging to the assessee, there is no mention of the total price paid etc. - the seller has denied having taken any money over and above the disclosed sale consideration - Even the total price paid for the property is not mentioned in the seized material - The jottings in the diary by no stretch of imagination can be treated as conclusive proof of on money transactions by the assessee - It is not the case that the circle rate or the value as per stamp registration authorities of the impugned property is more than what has been disclosed - Relying upon CIT vs. Kalyansundaram 2007 (9) TMI 25 - SUPREME COURT OF INDIA - there is no case that any part of the jottings in the diary has been corroborated from any other findings - presumption u/s 132(4A)/292C of the Act cannot be taken against the assessee the addition of on money transaction is not sustainable Decided in favour of Assessee.

Issues Involved:
1. Validity of jurisdiction assumed by the Assessing Officer under Section 153A of the Income Tax Act.
2. Attribution of the contents of the seized diary to the assessee.
3. Addition of Rs. 35,00,000/- as undisclosed investment based on the seized diary.
4. Reliance on statements of third parties and property brokers.
5. Legal presumption under Section 132(4) / 292C of the Act.

Detailed Analysis:

1. Validity of Jurisdiction Assumed by the Assessing Officer under Section 153A:
The assessee challenged the jurisdiction assumed by the Assessing Officer (AO) under Section 153A, arguing that no incriminating material belonging to the assessee was found during the search. The CIT (Appeals) held that the initiation of a valid search under Section 132 or requisition under Section 132A is the only condition for invoking Section 153A. The Panchnama indicated that the search was conducted under Section 132, covering the office premises of the appellant. The Tribunal upheld this view, noting that material was found from premises associated with the assessee group company, thus validating the jurisdiction under Section 153A.

2. Attribution of the Contents of the Seized Diary to the Assessee:
The seized diary, found in the office of the assessee's brother, contained entries about transactions related to a farmhouse purchased in the name of the assessee. The CIT (Appeals) rejected the contention that the diary should have been attributed to the brother, stating that both the appellant and his brother had control over the common premises. The Tribunal, however, noted that the diary did not belong to the assessee and was not in his possession. The contents were not confronted with the brother, and there was no mention of the assessee's name in the diary.

3. Addition of Rs. 35,00,000/- as Undisclosed Investment:
The AO inferred from the diary entries that the assessee paid Rs. 35,00,000/- in cash over and above the disclosed sale consideration for the farmhouse. The CIT (Appeals) upheld this addition, referencing Section 292C and 132(4A), which allow adverse inferences based on seized documents unless rebutted. The Tribunal disagreed, emphasizing that the diary did not conclusively prove the alleged on-money transaction. The seller denied receiving any amount beyond the disclosed consideration, and no corroborative evidence supported the AO's inference.

4. Reliance on Statements of Third Parties and Property Brokers:
The AO relied on statements from property brokers who claimed that the market value of the farmhouse was higher than the disclosed amount. The Tribunal found these statements insufficient to substantiate the addition, especially since the seller denied receiving any extra payment. The Tribunal stressed that the burden of proof lies with the Revenue to establish any understatement or concealment in the consideration shown.

5. Legal Presumption under Section 132(4) / 292C of the Act:
The CIT (Appeals) held that the assessee failed to rebut the legal presumption under Sections 132(4) and 292C, which allows the AO to presume the correctness of seized documents. The Tribunal, however, found that the presumption could not be applied in this case due to the lack of direct evidence linking the assessee to the diary entries. The Tribunal cited precedents, including the Supreme Court's decision in K.P. Varghese vs. ITO, emphasizing that the burden of proof rests with the Revenue.

Conclusion:
The Tribunal concluded that the addition of Rs. 35,00,000/- as undisclosed investment was not sustainable due to the lack of conclusive evidence and the improper attribution of the seized diary to the assessee. The appeal was partly allowed, setting aside the orders of the lower authorities. The Tribunal emphasized the need for concrete evidence to substantiate allegations of undisclosed income and upheld the principles of burden of proof and legal presumption in favor of the assessee.

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