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TMI Blog2013 (8) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... th the following observations :- "3.11 So far as the transaction of sale between the assessee and Vigyan Bikram Shah is concerned, the learned CIT (Appeals) has recorded a finding that the assessee purchased the property from Vigyan Bikram Shah. This finding has not been assailed by the assessee, hence it is established that the assessee made investment in the purchase of the property from Vigyan Bikram Shah. Hence the assessee was under obligation to explain the exact amount for which he purchased property from Mr. Shah and the mode of the payment of the same. In fact, the A.O. should have summoned and examined the assessee in order to ascertain these facts and should have also confronted him in relation to the two receipts found during the course of search from his premises in which it is written that the sale consideration agreed was Rs.53 lacs. Since the documents were found from the premises of the assessee, necessary presumption could have also been drawn against the assessee if he failed to rebut the contents, as per law. Neither the A.O. nor the learned CIT (Appeals) has considered these aspects. None of these authorities made any further inquiry to elicit correct facts. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the payments made by the assessee to Shri Vigyan Bikram Shah is as under:- Date Particulars Amount (Rs.) 20.03.1999 Pay Order Issued 2,00,000.00 28.04.1999 Cheque No.840856 1,00,000.00 26.04.1999 Cheque No.595775 1,00,000.00 19.05.1999 Cheque No.67510 5,50,000.00 19.05.1999 Cheque No.67511 5,00,000.00 21.06.1999 Cheque No.277987 2,00,000.00 Total 16,50,000.00 Balance sum of Rs. 50,000/- was to be paid to Shri Vigyan Bikram Shah. In fact the said flat was never purchased by the assessee, but was sold to Shri Ajay Dhawan directly through him. Moreover during the course of block assessment proceedings as well as before the D.D.I. Investigation, statement of Shri Vigyan Bikram Shah was recorded on 17/01/2000 with reference to the actual consideration which had been received by him in respect of sale of flat at 17, Poorvi Marg (3rd Floor Real Side), Vasant Vihar, New Delhi. Shri Vigyan Bikram Shah has no where in his statement has ever confirmed that he has received a consideration of Rs.54 Lacs. In his rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been witnessed by Sh. Sagar B. Shah and Sh. Devender Kumar. Page 16 of Annexure A-16 is an undated receipt issued by Sh. V.B. Shah in respect of the same flat as mentioned above stating therein that Rs. 4 lacs had been received from Sh. R.K. Gupta (the appellant) as part-payment against the said flat. The details of Rs. 4 lacs given in the receipt are as under :- i) Pay order nO.595648 dated 20.3.99 PNB, Alaknanda. Rs. 2 lacs ii) Cheque nO.840886 dated 5.4.99, PNB, Alaknanda. Rs. 1 lac iii) Cheque no. 840887, dated 8.4.99, PNB, Alaknanda. Rs. 1 lac Total: Rs. 4 lacs It has also been mentioned on the receipt that the balance payment of Rs., 49 lacs will be made on or before 30.6.99. The receipt has been signed on two places by Sh. V.B. Shah, confirmed by Mrs. Anju Shah and witnessed by Sh. Sagar B. Shah and Sh. Narvir Shah. Although this receipt is undated, but it is clear that the receipt was issued on or after 8.4.99 and before 30.6.99. As per both these receipts, the sale consideration of the property in question was Rs. 54 lacs. The receipt of Rs. 1 lac dated 9.3.99 is the first receipt and the receipt of Rs. 4 lacs is second receipt in continuation of the first receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contents of these documents are true and the onus is on the appellant to explain the same. The presumption can be rebutted only if the appellant comes forward to explain the contents of the papers and brings evidence on record in rebuttal of the presumption to be drawn u/s 132 (4A). Thus the appellant was under obligation to explain the contents of these documents and to explain the exact amount for which he purchased the property. The circumstances under which these documents were prepared have also not been explained by the appellant. The appellant cannot wash off its hands by stating that the property in question was purchased by him for Rs. 17 lacs when the documents in question clearly speak that the property in question was purchased for Rs. 54 lacs. As per the directions of the Hon'ble ITAT, the AO issued summons u/s 131 to the appellant Sh. Ajay Dhawan, (the final buyer of the flat) Sh. V.B. Shah (seller) and Sh. Devender Gupta, witness to the receipt dt. 9.3.99 of Rs. 1 lac. Summons in respect of Sh. Ajay Dhawan and Sh. V.B. Shah were received back undelivered with the remarks "left without address, returned to sender". Sh. Devender Gupta (witness) confirmed the signatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear, unambiguous and speaking that no other inference than the one drawn by the AD can be drawn on the basis of these documents. In the present case, the AD has discharged his burden of proving that the actual sale consideration was Rs. 54 lacs and not Rs. 17 lacs by relying on two documents which were seized from the residence of the appellant and the same have neither been denied by the appellant nor by Sh. V.B. Shah (seller). The appellant as well as the seller failed to explain the circumstances in which the documents in question were prepared and why in both these documents figures were clearly written at Rs 54 lacs instead of Rs. 17 lacs shown by the appellant. In view of the facts and circumstances stated above, I am of the considered view that the AD was justified in taking the sale consideration of the property in question at Rs. 54 lacs and was justified in holding the difference amount of Rs. 37 lacs as the appellant's income from undisclosed sources within the meaning of Section 69 of the I.T. Act, 1961. Therefore, the addition of Rs. 37 lacs made by the AO is upheld." 4. Now, the assessee is in appeal before us by taking the following grounds of appeal :- "1. That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.49 lacs is to be paid on or before 30.06.1999. There is no evidence found during the search and even in the post search enquiries that this balance amount was paid on any subsequent date. Even in the second round of investigation as directed by ITAT, no evidence was collected which could throw any light on the issue of payment of balance amount as stated in these receipts. None of the person connected with this transaction had been asked by Assessing Officer in this regard. In absence of any evidence, no addition can be made only on the basis of these receipts where the balance amount is shown payable by some future date. These seized papers in the form of receipts were with regard to some payment received but the balance amount was to be received by same date. Therefore, these receipts cannot be made a basis to presume that balance amount must have been paid by that date and transaction was complete. There has to be some evidence in this regard. There cannot be any presumption that money was supposed to have been paid when there is no such evidence to establish the same. The sale of property in question was completed on 05.11.1999 between Shri Ajay Dhawan as purchaser and Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these receipts are true and assessee has failed to controvert this. She further submitted that this property was purchased by the assessee from Shri V.B. Shah. Therefore, the claim that he has received commission of Rs.2 lacs only is not correct. She further submitted that since the receipts were signed by the witnesses and the assessee has purchased the property and as per the receipts, the payment was to be made by 30.06.1999, therefore, the addition in the hands of assessee on account of unexplained investment is justified. Since the documents seized from the premises of the assessee and in view of the provisions of section 132(4A), the documents are presumed to be true and the onus is on the assessee to explain the same. The assessee was under obligation to explain the contents of these documents. She further submitted that case laws relied upon by the assessee are rendered on specific facts of individual cases. In the assessee's case, the receipts are so clear and unambiguous that no other inference can be drawn on the basis of these documents except the fact that assessee purchased the property at Rs.54 lacs and payment has been made. 7. We have heard both the sides. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed in his income. In the first round of the appeal, the ITAT has restored back the matter to the Assessing Officer to make proper enquiry as reproduced in earlier part of this order. The ITAT directed the Assessing Officer to summon the witnesses of these receipts and also the seller and ultimate purchaser, Shri Ajay Dhawan. ITAT also directed to ascertain the value of the property at that time. The Assessing Officer has failed to carry out further investigation as per the direction of ITAT and reach at logical end. The assessment in remand proceedings has been concluded on the same facts on which the CIT (A) deleted the addition in the first round. Assessing Officer has failed to collect any evidence to establish that the balance payment as stated in these receipts has been made by the assessee to Shri Shah by 30.06.1999 or even up to the date of the search. Neither the seller nor the ultimate purchaser Ajay Dhawan has ever stated that such payments were made. Since there was no evidence regarding the payment of balance amount as stated in these receipts prior to the date of the search there cannot be an addition on the basis of presumption that such payments would have been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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