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TMI Blog2013 (8) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of donor had been proved and the cash book of donor was found to be having sufficient cash balance to gift - There was a declaration of gift executed and all the accounts of the donor had been maintained by computerized books - no error in the reasonings of the Tribunal to interfere as the assessee succeeded in proving identity, genuineness of the transaction and creditworthiness of the donor. The assessee had discharged the burden - Decided against Revenue. Unaccounted investment - Investment in Co-op. Housing Society - Held that:- there was no conclusive documentary evidence to hold that the assessee-respondent had invested a sum in Ninad Co-op. Housing Society by using his four employees as conduits for booking of flats - No opportunity of cross objection was given to person in whose books of account, the said transaction of Co-op. Housing Society had emerged - when the Tribunal found that there was violation of principles of natural justice by not allowing cross examination despite such request coupled with absence of any evidence, no error much less any substantial error is committed by the Tribunal in deleting the said amount - Decided in favour of Revenue. Unaccount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- made by Assessing Officer on account of gift received from assessee's mother as undisclosed income, by not appreciating the fact that the creditworthiness of the donor and genuineness of the transactions were never proved by the assessee?" (D) "Whether the Appellate Tribunal is right in law and on facts in deleting the addition made by Assessing Officer of Rs.20 lakhs being unaccounted investment in Ninad Co-op. Housing Society without considering the fact that the employees of the assessee had accepted that the investment in the flats and the suit for possession were made at the behest of the assessee and that the assessee himself has also accepted the same?" (E) "Whether the Appellate Tribunal is right in law and on facts in deleting the addition made by Assessing Officer of Rs.5 lakhs being unaccounted investment made with Shri Yogesh Raval, without considering the statements of Mr. Raval and only considered the version of the assessee to conclude that the investment was made beyond the Block period?" (F) "Whether the Appellate Tribunal is right in law and on facts in deleting addition made by Assessing Officer of Rs.5 lakhs on account of unaccounted invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleting the addition made by Assessing Officer of Rs.3 lakhs being fictitious entries in the name of Bharat Textiles without appreciating the fact that the assessee has failed to explain the source of investment and without considering the fact that the books were prepared subsequent to the date of search, and as such, for the purpose of Block assessment they cannot be relied upon?" (L) "Whether the Appellate Tribunal is right in law and on facts in restricting the addition made by Assessing Officer of Rs.1,17,900/- to Rs.76,635/- being unaccounted investment in shares without considering the findings brought out by the Assessing Officer?" 2. We have heard learned counsel Ms. Mauna Bhatt for the revenue and with her assistance, determined these questions. 3. Brief facts leading to filing of this Tax Appeal are as follow. 3.1 A search and seizure operation under Section 132(1) was carried out on 06.09.2001. Pursuant to such operation, a notice was issued under Section 158BC on 04.02.2003 by the Assessing Officer directing the assessee to file return of income for the relevant block period. The assessee filed return of income on 02.06.2003 where he disclosed certain in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rulings of the jurisdictional Hon'ble High Court cited supra. In conformity with the rulings of the Hon'ble High Court, the addition requires to be deleted. Hence, both the additions of Rs. 3,46,189/- and Rs. 72,956/- are deleted." We are in complete agreement with the findings of the Tribunal and the facts being so glaring with substantiating evidences, the Tribunal has rightly applied law to the facts in this case and therefore, no interference is necessary. 5. Question No. [C] pertains to deletion of addition of Rs.2,01,000/- made by Assessing Officer on account of gift received from assessee's mother as undisclosed income. Revenue challenged that neither genuineness of the transaction nor creditworthiness of the donor has been proved by the assessee. The Tribunal noted that the identity of donor had been proved and the cash book of donor was found to be having sufficient cash balance to gift a sum of Rs. 2.01 lakhs leaving a balance of Rs. 84,790/-. There was a declaration of gift executed on 30.08.1999 and all the accounts of the donor had been maintained by computerized books. Thus, we find no error in the reasonings of the Tribunal to interfere as the assessee su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The payment of Rs.4.5 lakhs was made in cash and Rs.50,000/- was given by cheque as reflected in the computerized book. The statement of Shri Yogesh Raval was recorded by the Assessing Officer, however, no permission was granted to cross examine him. Although it can be noticed that the legal suit was initiated against the builder necessary documents were also produced. The agreement concerned was of March, 1995 whereas the block period was from 01.04.1996 to 06.09.2001. The Tribunal rightly held that the transaction would not fall within the block period under consideration and therefore on that count also, this issue deserves no further consideration. 8. Question No. [F] concerns deletion of addition made by Assessing Officer of Rs.5 lakhs being unaccounted investment alleged to have been made with Shri Dinesh Dhabalia. A Civil Suit was preferred by Shri Dinesh Dhabalia against the assessee-respondent seeking possession of the documents pertaining to the flat situated at Thaltej. The statement of Shri Dinesh Dhabalia indicated that he needed to raise loan of Rs.5 Lacs. He was therefore required to part with the documents to the assessee who lent the said amount. It was furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we do not subscribe to this view of the revenue. In order to establish that the assessee had paid amount outside the cooks of accounts for effecting real estate transactions substantial evidence has to be placed on record which is absence in this case. It would be unjust if an addition is made on the appellant based on a statement made by one of the partners of the firm without further making inquiries and collecting evidence. Therefore, we hereby delete the addition of Rs.7,43,000/- and Rs.2,00,000/- made by the Ld. AO and confirmed by the Ld. Commissioner of Income Tax (Appeals)." This entire question is based on facts and therefore, no interference is necessary. 10. Question No.[H] concerns deletion of addition of Rs.10 lakhs made by Assessing Officer being unaccounted investment in the land purchased from Bhavya Ghantakarnan Cottage Association. It is argued before us by the learned counsel that the Tribunal disregarded the seized material in the form of loose paper files containing receipts of investment made in cash. We notice that the entire issue has been dealt with by the Tribunal at length. The assessee had also claimed investment of Rs.5 Lacs through ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs as per the books of the accounts. However, the AO had rejected such books of accounts and held that the investment though mentioned in the books of accounts they were from unaccounted income. It was submitted that though the AO had not accepted the cash credit, but, no addition of unexplained cash credit was made. In conclusion, it was pleaded that the assessee had debited the amount in the books of accounts, the cash balance available was fully proved and thus there was no justification in making the addition of Rs.5.51 lakh which requires to be deleted. 18.4 On a perusal of the evidences produced by the assessee, it has been observed that the payment of Rs.3 lakh made through cheques have been duly reflected in the books of account of Mahendrakaur N Suri and the assessee and Rs.2 lakh of cash was paid from the account of Nanak Cutlery Mart (Refer: Pages 173, 174 and 175 of PB]. They had sufficient cash balance to make such payments. Documents on a stamp paper [worth Rs.50,000/-] was executed for the purchase of the said house from Jayseel Patel [source P 176 -180 PB] duly acknowledging the sale consideration through cheques for Rs.3 lakh and cash of Rs.2 lakh. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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