9911796707
TMI Blog2013 (8) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... Del/2008 - - - Dated:- 31-7-2013 - Shri B. C. Meena And Shri C. M. Garg,JJ. For the Petitioner : Shri Ved Jain Ms. Rano Jain, CAs For the Respondent : Ms. Veena Joshi, CIT DR ORDER Per B. C. Meena, Accountant Member :- This appeal filed by the assessee emanates from the order of CIT (Appeals)-III, New Delhi dated 25.03.2008. 2. The assessee is an individual. A search was conducted at the residential premises of the assessee at B - 7, Greater Kailash Enclave, New Delhi on 27.07.1999. While making the assessment u/s 158BC, an addition of Rs.37 lacs was made on account of purchase of 3rd Floor, property no.17, Poorvi Marg, Vasant Vihar, New Delhi. The CIT (A)-III, New Delhi vide its order dated 15.03.2002 restricted the addition to Rs.1,92,600/- on the basis of the valuation report furnished. Against that order of the CIT (A), the revenue went in appeal before the ITAT, New Delhi and in the first round, the ITAT in its order dated 29.09.2006 set aside the matter with regard to the addition of Rs.37 lacs with the following observations :- "3.11 So far as the transaction of sale between the assessee and Vigyan Bikram Shah is concerned, the learned CIT (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, 1961 dated 27/11/2007, wherein you have required us to explain the nature of page 16 of annexure A-16 and page No.137 of annexure A-22 seized from the premises of Shri R.K. Gupta, we submit as under :- That the page No.16 of Annexure A-16 an original receipt of Rs.4 Lac executed by Shri Vigyan Bikarm Shah and page No.137 of annexure A-22 is also an original receipt for Rs.1 Lac only executed by Shri Vigyan Bikram Shah in favour of Shri R.K. Gupta. Regarding the contents of page No.137 of annexure A-22/B-7, G.K. Part-I, New Delhi and the page No. 16 of Annexure A-16/B-7, G. K. Part-I, New Delhi, it is submitted that the assessee had negotiated a deal with Mr. Ajay Dhawan on behalf of Shri Vigyan Bikram Shah resident of 76/3/1, Rajpur Road, Saket Lane-II, Dehradun, Uttarakhan for sale of his flat at 3rd Floor (Rear Side) 17, Poorvi Marg, Vasant Vihar, New Delhi for Rs.19 Lacs and out of this Rs.17 Lacs was to be paid to Shri Vigyan Bikram Shah and balance of Rs. 2 Lacs was commission/profit of the assessee. In fact, the assessee firstly received the cheques from Shri Ajay Dhawan and than on the same date issued the cheques in favour of Shri Vigyan Bikram Shah. The detail of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on record. The ITAT in its order dated 29.3.2006 has held that the appellant had purchased this property from Sh. V.B. Shah and not that he received any commission of Rs.2 lacs on the sale of property by V.B. Shah to Sh. Ajay Dhawan. Therefore, it is established that the appellant had made investment in the purchase of the said property from Sh. V.B. Shah. It is undisputed that the above mentioned two documents in question were seized during the course of search operations u/s 132 carried out at the residential premises of the appellant on 27.7.99. Document no. 137 of Annexure A-22 seized from the residence of the appellant is receipt dated 9.3.99 issued by Sh. V.B. Shah wherein it is mentioned that he has-received a sum of Rs. 1 lac as advance out of total sale amount of Rs. 54 lacs against his flat on plot no. 17, Poorvi Marg, Vasant Vihar, New Delhi, (rear portion) from Sh. R.K. Gupta (the appellant). In this receipt, it has also been mentioned that Rs. 4.50 lacs will be paid on or before 25.3.99 and the balance of Rs. 48.50 lacs will be paid on or before 30.6.99. The receipt has been signed by Sh. V.B. Shah at two places, one of the signatures being on the Revenue stamp. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst sale consideration of Rs. 17 lacs in respect of the said property admitted by him, the sale consideration as per the two receipts discussed above was Rs. 54 lacs and what he had to say about this in reply, he stated as under:- "As far as I remember, the total consideration for the property was Rs.17,00,000/- (seventeen lakh). Out of which I have received Rs.16,50,000/- as on date. This I have already stated in earlier answer. The balance of Rs.50,000/-.is yet to be paid to me by Sh. R.K. Gupta. Regarding the statement of "balance Rs.49,00,000/- .... " I confirm that though it is in my handwriting I do not know, under what circumstances I have written the same," This clearly shows that Sh. V.B. Shah had no explanation to offer with regard to the difference in the sale consideration as per the seized documents and as shown by him. He gave only evasive reply in spite of the fact that he admitted having signed these documents. The documents have been written so meticulously that the contents and evidentiary value of these documents cannot be ignored. The documents in question were seized from the residential premises of the appellant during the course of search operations. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date Particulars Amount (Rs.) 20.3.1999 Pay order issued 2,00,000.00 28.4.1999 Cheque no. 840856 1,00,000.00 26.4.1999 Cheque no.595775 1,00,000.00 19.5.1999 Cheque no. 67510 5,50,000.00 19.5.1999 Cheque no.67511 5,00,000.00 21.6.1999 Cheque no.277987 2,00,000.00 Total 16,50,000.00 If we compare the above payments with the payments reflected in the two receipts discussed above, it is noticed that the payment of Rs. 1 lac by cash on 9.3.99 as reflected in seized document no 137 does not find place in the details of payment shown by the appellant. The payment of Rs. 2 lacs on 20.3.99 finds place in the seized document page no. 16 as well as in the chart above. But the two payments of Rs. 1 lac each on 5.4.99 and 8.4.99 by cheque no. 840886 and Cheque no. 840887 do not find place in the above chart. It further proves the fact that seized document page no. 16 cannot be denied by the appellant because one of the payments mentioned in this document matches with one of the payments shown by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrary and against the law of natural justice and facts of the case. 5. That the assessee craves right to add, delete, substitute, modify nay one or more of the grounds of appeals at the time of hearing. It is therefore prayed that additions amounting to Rs. 37.00 Lacs so made may kindly be deleted and the appeal of the assessee be allowed." 5. While pleading on behalf of the assessee the ld. AR submitted that this is a case of block assessment u/s 158BC where search was conducted on 27.07.1999 and addition of undisclosed income can be made only to the income which pertains to the period up to the date of search, i.e. 27.07.1999. The amount of dispute involved in the appeal is Rs.37 lacs which is claimed to have been paid over and above the amount stated in the sale deed for purchase of flat based on the two receipts seized copy placed at paper book at pages 49 50. These receipts show that payment of Rs.1 lac was received as per receipt at page 50 of paper book and Rs.4 lacs was received by three cheques as per receipt placed at page 49 of the paper book. Balance amount was to be paid by 30.06.1999. There is no detail of actual payment of balance amount as mentioned in thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. The Assessing Officer completely failed to carry out the investigation to a logical end as directed by ITAT in its order in the first round. The Assessing Officer completed the assessment on same facts on which the CIT (A) deleted the addition in first round. There is no document on record to establish that the payment for balance amount has been made by the assessee. Neither the seller, Shri Vigyan Bikram Shah nor the ultimate purchaser of flat, Shri Ajay Dhawan has ever stated that such payments were received/made. The Assessing Officer has completely failed to bring positive material on record to justify the addition in the block assessment u/s 158BC of the Act. Ld. AR pleaded that the onus was on the Assessing Officer to bring positive material on record. These receipts did not state anything about the actual payment of balance amount. Ld. AR also relied on the decision of Hon'ble Kerala High Court in the case of CIT vs. Smt. K.C. Agnes reported in 262 ITR 354 (Kerala), Amarjit Singh Bakshi HUF vs. ACIT - 86 ITR 13 (Del.) and CIT vs. Chaman Lal Dhingra - (1994) 121 Taxman 272 (All.) 6. Ld. DR relied on the orders of the authorities below and submitted that these docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Power of Attorney in favour of Shri Ajay Dhawan on 18.05.1999, i.e. this date is prior to the date by which the assessee was to make the full and final payments as shown in the seized receipts placed at pages 49 50 of the paper book. It is also a fact that ultimate purchase deed in respect of this flat was executed on 05.11.1999 between the owner, Shri Vigyan Bikram Shah and Ajay Dhawan. There is no document seized and found or even stated in the statements recorded during the search and after the search that the balance amount as stated in these receipts was made by assessee on or before 30.06.1999 or even till the date of the search. The search was conducted on 27.07.1999. No other document was found and seized except these two receipts which show that the balance payment was to be made. In the second round also, Assessing Officer failed to collect any evidence in this regard. In the absence of any documentary evidence, no presumption can be drawn that amount would have been paid by that date. There is no evidence whatsoever to establish that actual money has been paid. The execution of Power of Attorney in favour of Ajay Dhawan on 18.05.1999 and final sale to Shri Ajay Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties. It is true that on the basis of the agreement the sale deed was executed. But it is not necessary that the price stated in the agreement will be the price shown in the sale deed. Sometimes, it may be higher and sometimes it may be lower. Sometimes intentionally a lesser value may be shown in the sale deed. Even if it is assumed to be so, unless it is proved that the agreement was acted upon and unless the amount stated in the agreement was paid for the sale one cannot come to the conclusion that the price mentioned in the sale deed is not correct. In this case, further it is found that in the assessment of purchaser, it was finally found that the amount was received only at Rs.8,000 per cent. It is taking into all these matters into consideration that the Tribunal held that the property was sold at the rate of Rs.8,000 per cent. Thus, the Tribunal, on the basis of the facts and circumstances of the case and on the appreciation of evidence, rightly came to the conclusion that Rs.12,951 was not the amount for which the property was sold. There is no rule that the amount shown in the receipt was the actual amount paid." Considering all these facts, we set aside the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
