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TMI Blog2015 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... Surat dated 09-05-2011 in appeal no. CAS-II/395/10-11, in proceedings under section 158BC r.w.s. 254 of the Income Tax Act, 1961; in short the Act . 2. The Revenue s sole substantive ground challenges the CIT(A) s order deleting addition of unaccounted payment of ₹ 20 lacs added u/s. 158BC of the Act. The case file reveals that the original assessee has expired. Case called twice. The deceased assessee s legal representative stands served through an RPAD notice. None has come present. We proceed ex-parte accordingly against the respondent/assessee s legal representative. 3. The original assessee was engaged in the business of metals scrap trading. The department conducted a search in his case on 27-02- 1997 leading to seizure of alleged incriminating material. The Assessing Officer completed a block assessment on 30-03-1999 inter alia adding a sum of ₹ 31,53,217/- introduced in the family business and an amount of ₹ 45 lacs paid/received by the family. The CIT(A) deleted the same in his order dated 27-04-2000. The Revenue came in appeal. A co-ordinate bench restored the same back to the Assessing Officer in its order dated 26-06-2009 as under:- We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was struck for ₹ 65 lacs. This made him to ignore assessee s retraction and resulted in the impugned addition of ₹ 26,21,700/- i.e. ₹ 65 lacs-Rs. 45 lacs = ₹ 20 lacs+the above said cash payments being made in the assessee s hands. 5. The assessee preferred appeal. The CIT(A) has accepted his corresponding grounds as under:- 8.2.1 The second ground of appeal is against the merits of the addition. The appellant's submission, on this ground of appeal, reproduced above, is also on merits. The Assessing Officer has assessed the income of the appellant at ₹ 26,21,710/-, as under: (i) As admitted by Shri Anwarbhai Lakhani during the course of search on 27-02-1997 total consideration amount for acquiring of 67% share in the business of petrol pump in the name of M/s. R.H. Patel Co. from Shri Kishorbhai Ratilal Naik was settled for a consideration of f 65,00,000/-, out of which ₹ 25,00,000/- had already been paid in cash about one year prior to search, in five installment of ₹ 5 lac each and amount ₹ 20,00,000/- was paid in the form of value of ten shops in Belgium Tower, Silver Plaza, near Linear Bus Stand, Ring Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination on oath on 23-03- 1999, stated that ₹ 45,00,000/- was paid by way of cash payment of ₹ 25,00,000/- and value of shops at ₹ 20,00,000/-, and no other amount remained to be paid. In reply to a question as to whether ₹ 20,00,000/-,' which had to be paid by the appellant, up to December 1997 to Shri Kishorbhai Naik, was for transaction of petrol pump, Shri Anwarbhai Lakhani replied that ₹ 20,00,000/- had to be brought by the appellant, as 'working capital up to December 1997 and the same was not to be paid for transaction of petrol pump. Further, in reply to a question as to whether he was in the knowledge of transaction of ₹ 65,00,000/-, Shri Anwarbhai Lakhani in his statement dated 27-02-1997, said that he did not have any such personal knowledge. 8.2.3. Shri Kishor Naik in his statement recorded on 23-03-1997, in reply to a question that remaining amount of ₹ 20,00,000/-, as decided between the two parties had to be paid in December 1997 stated that he has not sold the petrol pump,, but only land surrounding the petrol pumps and has also executed documents for the same and, for reducing his share in the petrol pump to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased appellant or his legal heir that amount of ₹ 20,00,000/- had been paid by him. 8.3.3. The Assessing Officer has considered the entire entries of ₹ 31,53,217/- in pages 6 to 8 of seized document Annexure-B3, as payment made by the appellant towards taking over 67% share in the firm M/s.. R H Patel Co, whereas, the Hon'ble Tribunal has in the order, recorded that Annexure-B3 contained the heading R H Patel Co. and various other concerns and further that some of the entries in the above pages was by way of cheques and were found to be reflected in the accounts of M/s. R H Patel Co. therefore, if out of the entries of ₹ 31,53,217/~ in the above pages of Annexute-B3 are taken to contain ₹ 25,00,000/- of cash payment made in installment of ₹ 5,00,000/- each and ₹ 6,53,217/- towards payment of remaining amount of ₹ 20,00,000/- in cash, it means the entries of ₹ 31,53,217/- do not include any cheque entry reflected in the books of accounts of R H Patel Co., which is contrary to the above finding of the Tribunal. 8.3.4. The Assessing Officer has also disregarded the fact that entries of the above amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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