9911796707
TMI Blog2014 (2) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... i) There is no evidence that the agreement was cancelled as no agreement for cancellation was filed with the AO or with CIT(A) in the proceedings before it. ii) There is no receipt produced of any cash having back returned on the cancellation of the agreement with Sh. Sandeep Kumar. iii) No evidence in support of above two claims was found or seized during the search proceedings. 3. The Ld. CIT(A) has erred in deleting the addition of Rs.20 lac by accepting assessee's explanation that amount of Rs.20 lacs has been returned to Sh. Sandeep Kumar on cancellation of agreement merely on the basis of a chart which was not substantiated by any evidence, original purchase/sale agreement and cancellation agreement specially when the original agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the assessee is either reflected in the capital account of the assessee in the firm or in its profit & loss A/c. 4. During the course of search u/s 132 at M/s. Orthonova Hospital cum residential premises of the assessee, various original agreements, pertaining to sale and purchase of immovable properties were found and seized as per Annexure A-36. 4.1. As per Ist agreement dated 24.07.2006 Annexure A-36, the assessee has made a payment of Rs.15 lakh ( Rs.10 lakh by cash an Rs. 5 lakh by cheque of Bank of Baroda . 4.2. The assessee has not appended any copy of balance sheet to show her purported withdrawal of Rs. 10 lakh. It is relevant to note that a cash payment of Rs.10 lakh has been made alongside a cheque payment for giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , received by her from Shri Sandeep Kumar, on adverse view is being taken on this account. 4.9. On this note the assessee's explanation is rejected and this sum of Rs.30,0,000/- is added to her total income." 3. Before the ld. CIT(A), the assessee made submissions which were sent to the AO for comments, who submitted the comments and the ld. CIT(A) vide para 8 of his order deleted the addition. For the sake of convenience, submissions of the assessee, remand report of the AO and findings of the CIT(A) are reproduced as under: "7. During the course of appellate proceedings the AR of the appellant submitted his arguments on the issue as under: "There is another addition of Rs.20 lacs made by the AO as per para 4.5 to 4.7 of his order whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of property i.e. 749C, GTB Nagar, Jalandhar on 29.9.2006 and thus the subsequent investment did not warrant any adverse view. Having inferred so, the AO went ahead with effortless ease to make the impugned addition of Rs.20 lacs. The above findings of the AO to say the least, are again not consistent with the facts and material placed on record before him. The assessee in the chart referred to above had mentioned that the deal was cancelled and amount returned. In the same chart, the investment in property at GTB Nagar, was also explained to have been made out of advance received from Sandeep Kumar against property at Vill. Malko. What escaped the marvel eye of the AO was that the cancellation of Malko property deal had not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncelled amounts returned'. But there was no further explanation given, may be due to shortage of time, nor any evidence filed about the date of cancellation of deal and returning of amount of Rs.20 lacs. Obviously in the absence of necessary details, during assessment proceedings and also during search, the AO assumed that the amount was not returned but forfeited since no supporting evidence was found or seized during search." 9. I have considered the basis of addition made by the AO and the arguments of the AR on the issue as well as the comments of the AO in the remand report. It is seen that the assessee had received a sum of Rs. 20 lacs from Sh.Jatinder Kumar in cash on account of cancellation of deal in respect of property No.749C GT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly the said forfeited amount was considered as source of income against the deal of purchase of property at 749-C GTB Nagar and accordingly no additions have been made for the source of 749-C GTB Nagar. The said forfeited amount has been adjusted to have been given as an advance against the said property which is evident from para 4.8 of AO's order. 5. The Ld. CIT(A) and the AO in the remand report has relied upon a chart of stock-in-trade and the AO in the remand proceedings had made the assumptions that due to shortage of time, the evidence may not have been filed by the assessee and due to the shortage in the original assessment proceedings must have made assumption that the amount has not been returned but has been forfeit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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