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TMI Blog2009 (1) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... on, jewellery or other valuable article or thing is found in the possession or control of any person, then, it will be presumed that such books of account, etc. belong to such person and its contents are true, there is a presumption of signature and stamping. In this manner, according to the facts of the present case, a presumption has been raised in respect of correctness of the document impounded in the course of search. The documents found and impounded during the course of search describe the nature of amount as unsecured interest-free loan and seized document does not mention that the said amount represented the income of the assessee. It may also be mentioned that as per well established law as explained by Hon'ble Supreme Court in the case of Smt. Tarulata Shyam Ors. vs. CIT[ 1977 (4) TMI 3 - SUPREME COURT] , there is no scope for importing into the statute words which are not there. The intention of the legislature is primarily to be gathered from the words used in the statute. Once the assessee comes within the letter of law he must be taxed. Ld DR has relied upon the provisions of s. 292C which raise a presumption/legal fiction. The presumption as envisag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vatika Greenfield (P) Ltd. from Vatika Township (P) Ltd. and its associates. We confirm that the shares would be transferred in your favour on presentation at our next board meeting to be held on 29th March, 1999. We are proud of your association with us. Thanking you, Yours faithfully, For Vatika Greenfiled (P) Ltd. Sd/- Anil Bhalla, Managing director" 3. The contents of notice issued under s. 158BD as found placed at p. 8 of the paper book read as under: "Notice under s. 158BD of the IT Act, 1961 F.No./Dy. CIT CC-20/2001-2002/l70 Block period: 1-4-989 to 10-2-2000 IT Office: Dy. CIT-CC-20, New Delhi Dt. 4th Feb., 2002 To M/s Vatika Greenfield (P) Ltd. 301, Vishal Bhawan, 95, Nehru Place, New Delhi. In pursuance of the provisions of s. I58BD of the IT Act, 1961, you are required to prepare a true and correct return of your total income including the undisclosed income in respect of which you as company are assessable for the block period mentioned in s. 158B(a) of the IT Act. The return should be in the prescribed Form No. 2B and be delivered in this o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering the fact that on the seized paper it is clearly confirmed that Rs. 2.15 crores has been received by the assessee's company against development of its project 'First India Place'. 3. The assessee had already received Rs. 1.15 crores from Shri Raja Singh Sethi during the month of December, 1998 and the possibility of further cash of Rs. 1 crore from Shri Raja Singh Sethi along with the cheque amount cannot be ruled out. The date mentioned on the seized paper is 15th Jan., 1999 which is the same period during which substantial amount of money was invested by Shri Raja Singh Sethi in the assessee company. 4. Shri Raja Singh Sethi in his statement on oath has admitted payment of only Rs. 1.15 crores to M/s Vatika Greenfield (P) Ltd. No reliance can be placed on this statement since it is self-serving. In case he admits payment of cash of Rs. 1 crore, he would have to explain its source and would also be liable for penalty under the IT Act. 5. The assessee had received Rs. 4 lacs from Shri Arun Kumar and Rs. 6 lacs from M/s Bhagwan Dass Time Industries (P) Ltd., through cheque in its books of account. However, during the course of search, evidence was found of further rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence was made to the order of Tribunal in the case of Vatika Farms (P) Ltd. in IT(SS)A No. 186 and 187/Del/2005, dt. 10th March, 2006. 7. After considering the submissions of the assessee, learned CIT(A) has arrived at a conclusion that statement of Shri Raja Singh Sethi is a self-serving document and the holding percentage of equity by Shri Raja Singh Sethi has no relevance to determine the quantum of loan received by the assessee. 8. Considering the alternative plea of the assessee that if a sum of Rs. 2.15 crores is a loan, the same cannot be treated to be the income in view of the decision of Tribunal in the case of Vatika Farms (P) Ltd. After considering the above decision of the Tribunal in the case of group concern of the assessee, the CIT(A) has observed that addition on account of unexplained money under s. 69A can be made only if an assessee is found to be the owner of any money, bullion, jewellery or other valuable articles and in case of unexplained loan, the owner of such money is definitely the recipient of the loan and, thus, addition under s. 69A is not permissible. In this manner addition of Rs. 1 crore has been deleted against which the Revenue is aggrieved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued under s. 158BD, the contents of which have already been reproduced in the above part of this order, pleaded that initiation of block assessment proceedings in the case of assessee was invalid only on the ground that no satisfaction was recorded by the AO as is discernible from the contents of notice. He contended that though assessee is neither cross-objector or appellant, but assessee can support the order of the CIT(A) as per r. 27 of IT Rules, 1962. For raising such contention, learned Authorised Representative has relied on the following decisions: (i) B.R. Bamasi vs. CIT (1972) 83 ITR 223 (Bom), wherein it has been held that respondent is entitled to raise a new ground, provided it is a ground of law and does not necessitate any other evidence to be recorded, the nature of which would not only be a defence to the appeal itself, but may also affect the validity of the entire assessment and such ground would serve only as a weapon of defence against the appeal and it could not be made a weapon to attack the order insofar as it was against the assessee. (ii) Marolia Sons vs. CIT (1979) 8 CTR (All) 170 : (1981) 129 ITR 475 (All), wherein it has been held that a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is held that the AO cannot be permitted to treat the amount of loan as income for the purpose of assessing tax thereon while framing the assessment and, at the same time, to treat it as a loan for the purpose of s. 269SS r/w s. 271D and subject the transaction to penalty as such course would be self-contradictory. 13. Finally, it was submitted by learned Authorised Representative that learned CIT(A) has rested its decision on the basis of Tribunal decision in the group case of the assessee and if a different view is to be taken by this Bench, then matter may be referred to the Larger Bench in view of the decision of Hon'ble Delhi High Court in the case of DLF Universal Ltd. vs. CIT (2008) 6 DTR (Del) 113 : (2008) 172 Taxman 107 (Del), wherein it has been held that if another Bench of Tribunal disagrees with the view taken earlier by another Bench, to refer the matter to a Larger Bench. 14. In the rejoinder, apart from reiterating the submissions made earlier, learned Departmental Representative submitted that as per decision of Rajasthan High Court in the case of CIT vs. Ajay Kumar Sharma (2002) 177 CTR (Raj) 539 : (2003) 259 ITR 240 (Raj) that very fact that some entries are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding under this Act, be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. (2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of s. 132A, then, the provisions of sub-s. (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in cl. (a) or cl. (b) or cl. (c), as the case may be, of sub-s. (1) of s. 132A, had been found in the possession or control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held by Hon'ble Karnataka High Court that while interpreting a provision in a tax law wherein a legal fiction is created, such provision will have to be strictly interpreted. 18. In the case of Orissa State Warehousing Corporation vs. CIT (1999) 153 CTR (SC) 177 : (1999) 237 ITR 589 (SC), it has been held that a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. 19. In the case of S.C. Cambatta Co. Ltd. vs. CIT (1952) 21 ITR 121 (Bom), it has been held that in a fiscal statute the Court should not permit a wider or more extensive obligation to be cast upon the subject than the clear language of the fiscal statute lays down. 20. In the case of CIT vs. Shrishakti Trading Co. (1994) 118 CTR (Bom) 196 : (1994) 207 ITR 442 (Bom), it has been held that it is well-settled that legal fictions are for a definite purpose and they are limited for the purpose for which they are created and should not be extended beyond that legitimate field. 21. A conjoint reading of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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