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TMI Blog2014 (4) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant seized document was dumb document having no corroborative material found – thus, there is no reason to interfere in the order of the CIT(A) – Decided against Revenue. Deletion u/s 69B of the Act – Unaccounted investment – Held that:- CIT(A) rightly held that the AO had not pointed out any single defect in the books of accounts of the assessee and had accepted the payment made to seller of bungalow as genuine transactions - the difference in the cost shown and the cost estimated by the DVO is minor and is less than 15% - Revenue could not point out any specific error in the order of the CIT(A) - No material could be brought on record to show that the assessee has made any payment over and above the amount mentioned in the registered deed which was also accepted by the State Government for the purposes of levy of stamp duty – thus, there is no reason to interfere in the findings of the CIT(A) – Decided against Revenue. Addition on account of unaccounted business receipts – Held that:- Merely from the document it cannot be concluded that the assessee in fact received Rs 10,00,000/- on 03.06.2005 from any unspecified person and that too in respect of his business on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was asked in case of Kiranbhai R. Vasani, different legal identity: The appellant has referred to the explanation given in case of Kiranbhai R. Vasani which was as under: 'As per point No. 12 your good selves have asked the explanation of page No. 4 of Annexure A-2 seized from 24/25, Krishnanagar shows name of Kalubhai 31.68.750/-. In this matter, I state that the noting which your good selves referring on the said paper contains the noting figure of 12.24.000/- and 19,44,750. It is stated that it is not in my hand writing. It is rough noting and from the writing it seems that some labour may have written the figures. U is also stated that against the figure nothing mentioned like receipt/payment which results income or expenses. Thus the page referred is dump paper and no financial relevance which results into unaccounted income or unaccounted expenses.' Apart from this, the appellant submitted as under- 1.4 Without prejudice to the above, appellant states during the course of search, post search and assessment proceedings, it had repeatedly stated that the figures mentioned on page No. 4 of Annexure - A/2 seized from the residential premises of appellant contains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant seized documents show that the amounts mentioned therein relate to some expenditure, in the absence of any other evidence found during the course of search or brought on record by the AO to show that the said expenditure was actually incurred by the assessee, the same cannot be added to the undisclosed income of the assessee by invoking provisions of s. 69C-Assessee Explained that the said entries represented estimates made by employees in respect of proposed expenditure - There is no evidence on record to rebut/controvert the said explanation - Additions not sustainable (ii) Decision of Gujarat High Court in case of DCIT v. Jivanlal Nebhumal (HUF) [2004] 134 TAXMAN 660 (GUJ.) wherein the Hon'ble High Court have held as under, 'section 69 of the Income-tax Act', 1961 - Unexplained investments - Tribunal having round that there was no material on record to indicate that assessee - HUF, whose family had 50 per cent share in J company, had in fact paid any 'on-money' to Said J company in respect of shops purchased by them over and above amount recorded in their books of account, deleted addition made by Assessing Officer and confirmed by Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the contents thereof in light of the aforecited decisions of the Honourable Supreme Court, we find that the said paper contains jottings of certain figures by the same does not describe or express the substance of any transaction and even if the said paper has been seized from the possession of the assessee the contents thereof are not capable of the describing the transactions the way the Assessing Officer has deciphered them without support of corroborative evidence of the parties attributed to the alleged transaction. The said paper, therefore, does not come within the compass of the definition of the word document1 to be used as evidence. The paper seized, therefore, has no evidentiary value and accordingly the same cannot form the basis for assessing the undisclosed income. - (vi) Decision of Delhi ITAT in case of SMC Brokers Limited V/s DCIT 109 TTJ 700 wherein Tribunal has held that diary seized was not containing any evidence regarding any receipts of money by way of cheques of Rs. 50,00,000 each and also the diary was not written by assessee or his employees. There was no evidence on record to substantiate that assessee has earned any undisclosed income hence addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Ld. DR could not point out any specific error in the above quoted order of the Ld. CIT(A). The Ld. DR could not bring any material before us to show that Rs 31,68,750/- was any actual transaction made by the assessee during the year under consideration and the relevant seized document was dumb document having no corroborative material found. We, therefore, do not find any good reason to interfere with the order of the Ld. CIT(A), and therefore, the same is confirmed and the ground of appeal of the Revenue is dismissed. 10. In Assessment Year 2006-07, ground no. 1 of the appeal of the Revenue is directed against the order of Ld. CIT(A) deleting the addition of Rs 3,44,497/- made on account of unaccounted investment u/s 69B of the Act. 11. The brief facts of the case are that the Assessing Officer observed that the investment shown by the assessee in the property situated at B-6, Shabri Kutir Bungalow, Vastrapur might be more than the value of property shown by the assessee. He referred the matter to the DVO to determine the value of the property u/s 142A of the Income Tax Act on 31.08.2008. The DVO gave the report on 11.12.2008 determining the value at Rs 25,45,847/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stification in considering the value of building as per DVO report. 5.2 It was argued by the appellant that the entire purchase document has been registered with valuation officer and stamp duty on the property purchased and stamp duty computed on purchase deed has been undisputedly accepted by the assessing officer since the assessment proceedings were carried on. Hence, it was clear that entire transactions have been made at Jantari Value which is accepted by Sub register. The AO and DVO has no right to substitute the value of purchase without bringing any other evidences of unaccounted payment. The appellant in this connection made reference to the decision of Madras High Court in case of K. R. Palanisamy Ors. V. Union Of India Ors. 2008-(306)-ITR -0061 -MAD. It was also contended that valuation is very subjective matter and changes on person to person basis. It was stated that the difference between actual cost .of purchase and fain value estimated by valuer is minor amount of Rs.3,44,497/- which is less than 15% of value determined by DVO hence there was no justification in adopting the value of investments as made by DVO. Reliance was placed on the decision of Haris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale and not for self residence. (iv) Plinth area rate considered by the Valuation Officer per square meter is applicable to first-class bungalows constructed by the private parties in their own case, while in the present case the property constructed was only for sale and material used therein cannot be of the high quality, like those in the private bungalows. If this is considered, the estimate .will go down by about 20%. 2.6 Without prejudice to what is stated herein above, appellant states that as referred herein above, appellant has maintained his books of account wherein amount paid to seller of aforesaid property is shown and no unaccounted expenditure has been found during the course of search hence addition solely on the basis of DVO's report is required to be deleted. It is submitted that the assessee is entitled to the benefit of the Rajasthan High Court decision in CIT vs. Pratap Singh Amrosingh Rajendra Singh Deepak Kumar (1993) 200 ITR 788 which may be noticed and digested as follows : Issue involved Income from undisclosed sources - Addition - Proper books maintained - Books not rejected - Addition on the basis of report of valuation officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered with valuation officer and stamp duty on the property purchased and stamp duty computed on purchase deed was also paid by the appellant. Further as stated by the appellant, the Assessing Officer had not pointed out any single defect in the books of accounts of the appellant and had accepted the payment made to seller of bungalow as genuine transactions. It is also noticed that the difference in the cost shown and the cost estimated by the DVO is minor and is less than 15%. The valuation made by the DVO is-, estimate made by him applying certain rates of material, labour etc. on standard basis, which cannot be the same in all cases. In such estimate, thus there are bound to be differences between actual and estimate to certain extent. Therefore, looking to the facts in entirety, and having regards to the fact that the value shown by the assessee for purchase of the bungalow was as per Jantri Value which was accepted by the Sub register and was also accepted by state authorities for the purpose of stamp duty, and further the difference between the actual and estimate is less than 15%, there was no justification for any addition for the unaccounted investment. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al entity. The appellant has referred to the explanation given in case of Kiranbhai R. Vasani which was as under: As per point No. 11 your good selves have asked the explanation of page No. 11 of Annexure A - 3 seized from 24/25, Krishnanagar Society shows a receipt of Rs. 10 lacs on 30-06-2005. In this matter, I state that the said paper contains the notings of figure of Rs. 5,00,0007- two times total 10.00.000/- with the word written against it Received and no any other thing written/mentioned on the said paper. It is also stated that it is not in my hand writing. It is also stated that on the same it is not mentioned from whom received, who have received, even the said paper does not have sign of any person. Thus the page referred is dump paper and no financial relevance which results into unaccounted income.' 4.2 Apart from this, the appellant submitted as under- 1.4 Without prejudice to the above, appellant states that aforesaid seized material seized from residential premises of appellant contains only noting and jottings pertaining to figures of Rs.10,00,000. Apart from above, appellant states as under why addition should not be made. (i) The paper in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries represented estimates made by employees in respect of proposed expenditure - There is no evidence on record to rebut/controvert the said explanation - Additions not sustainable (ii) Decision of Gujarat High Court in case of DCIT v. Jivanlal Nebhumal (HUF) [2004] 134 TAXMAN 660 (GUJ.) wherein the Hon'ble High Court have held as under, Section 69 of the Income-tax Act, 1961 - Unexplained investments - Tribunal having found that there was no material on record to indicate that assessee - HUF, whose family had 50 per cent share in J company, had in fact paid any 'on-money' to said J company in respect of shops purchased by them over and above amount recorded in their books of account, deleted addition made by Assessing Officer and confirmed by Commissioner (Appeals), on account of unexplained investments and also reduced addition in respect of low household expenses - Further, question with regard to levy of interest under section 139(8)/215 was restored back to file of Assessing Officer for fresh adjudication in accordance with law after giving opportunity of hearing to assessee - Whether since Tribunal had appreciated facts and evidence on record and had come t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em without support of corroborative evidence of the parties attributed to the alleged transaction. The said paper, therefore, does not come within the compass of the definition of the word document to be used as evidence. The paper seized, therefore, has no evidentiary value and accordingly the same cannot form the basis for assessing the undisclosed income. (vi) Decision of Delhi Tribunal in case of SK Gupta v/s DCIT 63 TTJ 532 wherein ITAT has held that addition made on the basis of loose sheets cannot be sustained as same does not indicate that any transaction ever took place arid does not contain any information in relation to nature and party to the transaction in question. (vii) Decision of Delhi ITAT in case of SMC Brokers Limited V/s DCIT 109 TTJ (700 wherein Tribunal has held that diary seized was not containing any [evidence regarding any receipts of money by way of cheques of Rs. 50,00,000 each and also the diary was not written by assessee or his employees. There was no evidence on record to substantiate that assessee has earned any undisclosed income hence addition based on dumb document is deleted. The appellant states that in its case, also no evidence is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the assessee, the Assessing Officer rightly added the same to the income of the assessee. 25. On the other hand, the Ld. AR of the assessee relied upon the order of the Ld. CIT(A) and submitted that the seized document does not specify the nature of transaction, details of the recipient and/or payer of the amount and this document is a dum document wherein there was even no signature of any person and the document has no evidentiary value and is of no legal consequence. Therefore, the Ld. CIT(A) was justified in holding that no addition can be made in an assessment merely on the basis of such dum document. 26. We find that copy of seized document is placed at page no. 27 of the paper book filed by the assessee. A perusal of the same shows that the only noting made therein are as under: Received Rs 5,00,000/- Received Rs 5,00,000/- 10,00,000/- 3/6/05 27. The said document does not bear signature of any person. The document also does not specify the name of party to whom this document or noting made therein relates to. The said document does not specify the nature of the transaction whether the transaction, if made at all, was a revenue transaction o ..... 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