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TMI Blog2011 (2) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra M. Thakker, brother of the assessee. The assessee was general Power of Attorney holder in respect of the same property. Notice u/s. 158 BD was issued to the assessee while giving intimation of the same to the A.O having jurisdiction over the assessee. During the assessment proceedings, in the case of the assessee, the A.O provided material found during the proceedings u/s. 132(4) in the premises of Mr. Y.P. Trivedi, partner of M/s. Rishiraj Builders & Developers. The assessee was asked as to why the cash of ₹ 9,45,000/- and ₹ 26,09,3509/- against the sale of plot No. 42 and 33 should not be taxed in his hands. Being not satisfied with the explanation of the assessee, the A.O framed the assessment making addition of ₹ 29,04,350/- against the assessee. Assessee went in first appeal questioning the said action of the A.O. The first objection of the assessee was regarding the validity of action initiated u/s. 158BD of the Act. The Ld CIT(A) held that the notice issued u/s. 158BD against the assessee is unjustified on the basis that the Development Agreement of Plot No. 42 and 33 was between M/s. Rishiraj Builders & Developers and Shri Paraji Abaji Karanjkar, thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s invalid on the basis that satisfaction arrived at by the A.O against the assessee was baseless. The A.O disbelieved and disallowed the cash payments based on the same seized document while framing assessment in the case of the person searched, i.e. M/s. Rishiraj Builders & Developers. Thus A.O could not have come to a different conclusion that the same payments would form undisclosed income of the present assessee. The A.O, in fact took a contradictory stand in respect of two persons, i.e. "the person searched" and the "other person" on same set of facts and evidence on the same item. Noting these material facts, in our view the Ld. CIT(A) has rightly come to the conclusion that the contradictory stand adopted by the A.O does not amount to proper satisfaction to initiate proceeding u/s. 158BD of the Act against the assessee. We thus affirm this action of the Ld CIT(A) in holding the notice issued u/s. 158BD against the assessee as unjustified. 6. So far merits of addition is concerned, we find that the A.O has determined the undisclosed income in question in the hands of the assessee relying upon the entries made in the seized documents found during the course of search and seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thakker u/s. 131 of the Act wherein also Shri Narendra M. Thakker has flatly denied any knowledge about the transactions. We find from the first appellate order that the Ld CIT(A) while accepting the contention of the assessee that opportunity to cross-examine Shri Y.P.Trivedi was not granted to the assessee, had directed the A.O to grant the opportunity of cross-examination of Shri Y.P. Trivedi to the assessee. The same was complied with. On the basis of that cross-examination granted on 3rd March 2008, the assessee made following submissions reproduced at page No. 20 & 21 of the first appellate order : "From the cross-examination of Shri Y.P. Trivedi, partner of M/s. Rushiraj Builders & Developers, following position emerges. 1.1 The seized diary, in which alleged payments to Narendra Thakker are noted, was written by Shri. Y.P. Trivedi (please refer second para of Answer to Q.No.13). 1.2 Mr.Y.P. Trivedi, author of the seized diary, was neither involved in negotiation of any of the transactions of plot Nos. 33 as well as 42 nor in making actual payments against the said transactions (please refer second para of Answer to Q.No.13). 1.3 Mr.Y.P. Trivedi never made any payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r party to any of the documents in relation to Plot No.33 or were paid any consideration against the transaction of Plot No.33 under any of the said documents. 2.3 It is also conceded by Shri. Y.P. Trivedi (second para of answer to Q.No.13 on page No.7) that, along with the name of Narendra Thakker names of Patel and Bhanubhai also appeared in the notings in the seized diary. However, he failed to properly explain, why the payments should be treated as made to Narendra Thakker and not to Patel or to Bhanubhai. He also failed to bring out any reason for making payments to Narendra Thakker, in relation to the transaction of Plot No. 33, when he was not a party to any of the documennts or had any interest in the property at Plot No. 33. Further, no reason for alleging the cash payments to the appellant (i.e.Jitendra Thakker) is coming out of any of the documents, statement of Shri. Y.P. Trivedi, seized material, affidavit of Shri. Y.P.Trivedi and his cross-examination. From the above, it is evident that, there is no valid reason for M/s.Rushiraj Builders and Developers to make any payment to the appellant against the transaction of Plot No. 33. 3. In answer to Q.No.12, it is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the seized documents and there was no reason for receipt of 'on-money' by him. In his remand report dated 17.3.2008, the A.O submitted before the Ld CIT(A) that Shri Shastri was a trusted man of Shri Y.P. Trivedi. Therefore, Shri Y.P. Trivedi was fully aware of the actual facts and consultation in respect of the property transactions with Shri Narendra Thakkar, who is a brother of the assessee. The A.O reported further that the other name appearing in the said seized documents were nothing but the representatives of Shri Narendra Thakkar. Further, the A.O reported that Shri Jitendra M. Thakkar was GPA holder of the properties mentioned in the seized documents and the fact that Shri Shastri held negotiations with Shri Narendra Thakker is enough to hold that the payments were made to the assessee. Considering these material facts of the case, we are of the view that the Ld CIT(A) has rightly observed that the stand of the A.O is not acceptable because the seized documents was maintained by Shri Y.P. Trivedi based on the information supplied by one Shri Shastri and there was no evidence on record confirming the transactions from Shri Shastri. Thus, the entries based on the unconfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) has also followed the decision of Mumbai Bench of the Tribunal in the case of Satraptax (India) Pvt. Ltd., 84 ITD 320 (Mum) holding that the presumption u/s. 132(4A) is applicable only against the person from whose possession the books of accounts or other documents were found and not against any other person. In the present case before us, such presumption has not been successfully rebutted by the Revenue to make the addition in question in the hands of the assessee while framing assessment u/s. 158BD against him. 9. The Ld CIT(A) has rightly held that in absence of any corroborative evidence no value can be attached to the seized documents under the facts and circumstances of the present case. The first appellate order on the issue is comprehensive and reasoned one. We are thus not inclined to interfere with. The same is upheld . The Grounds questioning the action of Ld CIT(A) in holding the notice issued u/s. 158 BD against the assessee as unjustified and in deleting the addition of ₹ 29,04,350/- as undisclosed income in the hands of the assessee are thus rejected. Consequently, the appeal is dismissed. The order is pronounced in the open Court on 23rd February 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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