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TMI Blog2013 (10) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... enue challenging the impugned judgment and order passed by the Income-tax Appellate Tribunal [for short "ITAT"] dated 25-06-2012 in Tax Appeal No.72/Ahd/2010 with respect to the assessment year 2001-02 by which the ITAT has dismissed the said appeal preferred by the Revenue confirming the order passed by the CIT(A) by which the CIT(A) set aside the order of penalty imposed under Section 271(1)(c) of the Income-tax, 1961 [for short "IT Act"]. 2. Facts leading to the present appeal in nut-shell are as under: 2.1 That a search action under section 132 of the IT Act was carried out covering residential and business premises of one Kabhai Chauhan Group of Companies on 04-03-2005 inclusive of one M/s. Om Shivam Corporation. During the search, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he had disclosed in his revised return of income but stated that Rs. 29 lacs has not been received from M/s. Om Shivam Corporation. As stated above, the two cheques worth Rs. 16,43,000/-and Rs. 14,50,000/- were seized from the premises of M/s. Om Shivam Corporation during the course of search action which were in the name of the assessee. The AO was of the opinion that as the assessee could not furnish any satisfactory explanation with respect to the aforesaid cheques and therefore, it proved that the said amount was settled in cash between the assessee and the purchaser and the aforesaid two cheques were returned. Therefore, the AO passed an order to add Rs.30.93 lacs in the total income of the assessee and also passed an order to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal before the ITAT, even the quantum appeal preferred by the assessee before the ITAT against the order passed by the CIT(A) confirming the assessment order and in directing to add Rs.30.93 lacs in the income of the assessee, came to be allowed by the ITAT by judgment and order dated 01-07-2011 and set aside the orders of the authorities below and directed to delete the condition of Rs. 30.93 lacs. 2.4 In view of the fact that the orders of authorities below making addition of Rs. 30.93 lacs [with respect to two cheques recovered from the premises of M/s. Om Shivam Corporation] came to be set aside by the ITAT and directed to delete the addition of Rs. 30.93 lacs which was the basis of the order of penalty under section 271(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that as such the Revenue though aggrieved by the decision of the ITAT in quantum appeal, did not prefer appeal before this Court on account of low tax effect. It is submitted that therefore, the Tribunal has materially erred in deleting the penalty solely relying upon the decision of the ITAT in quantum appeal deleting the addition of Rs. 30.93 lacs. 4. Heard Shri Parikh, learned counsel appearing for the Revenue and perused the impugned order passed by the AO imposing the penalty under section 271(1)(c) of the IT Act; the order passed by the CIT(A) quashing and setting aside the order of penalty as well as the impugned order passed by the ITAT as well as the order passed by the ITAT in quantum appeal directing to delete addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om M/s. Om Shivam Corporation during the course of search. According to the said agreement the assessee had soe development rights in the property belonging to the land owners and such development rights were ultimately purchased by M/s. Om Shivam Corporation subject to payment. The amount received by the assessee through this agreement and shown in the revised return is not in dispute surrendering his undisclosed income. The dispute is left with the amount of Rs. 30,93,000/- which relates to the recovery of two postdated cheques during the course of search which were in the name of the assessee. The learned Counsel for the assessee demonstrated from the agreement in question that both the two post-dated cheques referred to in the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived cash for return of the cheques. The AO has also not recorded any statement of concerned person of M/s. Om Shivam Corporation that the said firm has paid the amount in question to the assessee. No statement either of the assessee or of M/s. Om Shivam Corporation in this regard has been brought on record. Considering the facts and circumstances of the case noted above, we are of the view that addition is made against the assessee merely on presumption or suspicion expressed by the AO regarding some facts which are not in existence. The law is settled that suspicion howsoever may be grave but it cannot take the place of legal proof. For making addition u/s 153C of the IT Act, the AO shall have to prove that the seized documents or the u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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