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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 ..... ourse of search proceedings including the fact that, no regular books of accounts were being maintained at all upto the date of search and therefore, everything disclosed by the assessee for the I.T. proceedings conducted for the earlier years was not based on any day to day records as are required to be maintained in regular course of business activity?" (C) "Whether the Appellate Tribunal is right in law and on facts in deleting the addition of Rs.2,01,000/- 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?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... group?" (J) "Whether the Appellate Tribunal is right in law and on facts in deleting the addition made by Assessing Officer of Rs.1,80,000/- being unaccounted investment in Santro Car, without appreciating the fact that, the assessee himself has admitted during the course of search proceedings that he had purchased the Car of Rs.1,80,000/- and also without considering the fact that the assessee has not been able to explain the source of investment either before the Assessing Officer or before the CIT(A)" (K) "Whether the Appellate Tribunal is right in law and on facts in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mart as reflected in that return of income should be taken into consideration by the AO while determining the difference between closing balance for the AY 1999-00 and the opening balance for AY 2000-01 and the difference between the same would be upheld as addition. Though the assessee has agreed in principle that the personal books, the account of Nanak Cutlery Mart shows balance of Rs.2,03,591/- whereas in the books of NCM, the capital shown was Rs.1,30,635/-, such difference being not reconcilable, the addition may be sustained. However, this had not arisen from the seizure of the assets/records during search; such addition cannot be made in view of the 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer. Cumulatively, thus, 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. This issue, therefore, requires no further consideration. 7. Question No.[E] relates to deletion of addition made by Assessing Officer of Rs.5 lakhs being unaccounted investment made with Shri Yogesh Raval. It is argued by learned counsel that proof of payment to Shri Raval was not at all considered by the Tribunal while deleting the said amount. The respondent-assessee had booked a cellar no.3 in Nirmal Apartment. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- each. The Assessing Officer concluded that difference of Rs. 7,43,000/- between cost of Rs.14,80,000/- less the payment of Rs. 6,65,000/- represented payment in cash out of unaccounted income. The Tribunal held thus: "16.4 We have duly considered the contention of the assessee and also perused the documentary evidences produced by the assessee. On perusing the facts it is apparent that the addition is made based on the general practice of cash payments made outside the books of accounts in the case of immovable property transactions. Revenue was of the opinion that there are ample instances that cash payments are made almost about 50% outside the books of accounts in effecting real estate transactions and therefore, the statement made by one of the partner can be relied and the addition sustainable. However, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired Bunglow No.3, Dhwirup Bunglow through commission issued by the court. Shri Mahendrakaur Suri had paid Rs.2 lakh, Smt. Manjeetkaur Suri paid Rs.1 lakh besides his contribution of Rs.2 lakh. It was submitted that all the above transactions were duly reflected in their books of accounts. After obtaining the possession of the property, the assessee came to know that the said property has been mortgaged with SBI, Laghu Udhyog Branch and a copy of legal suit filed has also been produced s proof. With regards to payment of Rs.5 lakh, it was claimed that it has been properly accounted for and supported by a sale deed executed by Shri Jayseel Patel in favour of the assessee dated 15.10.1999. The registration charges of Rs.51,000/- has also been reflected in the assessee's books of accounts. It was further, submitted that the assessee was having sufficient cash balance with him and family members 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80,000/- as promised. He, therefore, returned the car & received back the sum of Rs.1 lakh advanced. This was a used car and documents were found at the time search operation. As these facts were crystal clear and are based on facts essentially, this issue deserves no further consideration. 13. Question No.[K] pertains to deletion of addition of Rs.3 lakhs made by Assessing Officer on the ground that there were fictitious entries in the name of Bharat Textiles. The Tribunal noted that the drafts have been purchased from the cash available at the relevant period as there were sufficient and adequate balance. In absence of any contrary evidence adduced by the revenue, it rightly deleted such addition. No question of law arises and therefore, this issue deserves no consideration. 14. Question No. [L] pertains to deletion of addition made by Assessing Officer of Rs.1,17,900/- and Rs.76,635/- being unaccounted investment in shares. The Assessing Officer did not consider the genuineness of the entries appearing in computerized cash book. The Tribunal, therefore, made detailed examination of rival contentions and did not endorse the rejection of assessee's explanation by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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