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TMI Blog2013 (7) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of the scrutiny assessment proceedings, the Assessing Officer observed that Search and seizure proceedings were conducted in the case of M/s. Rochem Separation System (I) Pvt. Ltd. and Shri K.K. Goel HUF. The AO observed that in those search operations, it was found that they have paid certain on money outside regular books to the assessee company for purchase of office and residential premises. Based on these facts of M/s. Rochem Separation System and M/s. K.K. Goel, the AO issued notice u/s. 153C and served upon the assessee. The assessee filed requisite return of income declaring total income at ₹ 5,41,27,880/-. The assessee is engaged in business of real estate developments. The AO further noted that the assessee has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction of ₹ 80 lakhs found in a seized paper was nothing but an advance given by cheque which was duly reflected in the books of account of both the parties i.e. assessee company and the purchasing company. Therefore, there is no question of any receipt of on money . 3.2. Referring to the paper, wherein it has been mentioned that some on money of ₹ 1,66,40,000/- has been paid, the assessee explained that nowhere in the said paper, it is mentioned that the purchasing company has paid this amount to the assessee company. Again referring to the seized paper wherein the details of payment of ₹ 1,66,40,000/- mentioned, the assessee pointed out that nowhere in this paper, the date of cash payment is shown. In any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance amount of ₹ 1,66,40,000/- was payable in cash out of which ₹ 50 lakhs was immediately paid and the balance of ₹ 80 laskhs was paid by the cheque to M/s. HDIL i.e. assessee as shown in the books of the purchasing company. On such firm belief, the AO went on to make an addition of ₹ 1,66,40,000/- as undisclosed income of the assessee. 4. The assessee carried this matter before the Ld. CIT(A) and reiterated its stand and explanation as made before the AO. After considering the facts and submissions, the ld. CIT(A) went on to discuss the seized documents on page 17 of Ld. CIT(A) s order at para 3.1. The Ld. CIT(A) observed at para 3.7 of page 20 of his order that the AO has relied on the statement of Shri K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Hon ble Supreme Court in the case of V.C. Shukla. The Ld. CIT(A) concluded that the documents which were seized remained third party evidence so far as assessee is concerned and since no opportunity to cross examine has been allowed to the assessee, such an act is violation to the rule of natural justice and went on to delete the addition made by the AO. 5. The Revenue is aggrieved by this findings of the Ld. CIT(A) and is before us. 6. The Ld. Departmental Representative strongly supported the assessment order. It is the say of the Ld. DR that the onus is upon the assessee to establish that the sum of ₹ 1,66,40,000/- referred to in the loose paper was actually paid by the company M/s. Rochem Separation Syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as there was no guarantee that the entries were genuine. The Hon ble High Court confirmed the findings of the Tribunal as they were based on findings of the facts. The facts of the case of the assessee shows that the entries upon which the department is relying upon was found on a loose paper therefore such evidence is more vulnerable than the entries found recorded in the books of accounts as in the case of Miss Lata Mangeshkar. Moreover such entries found on the loose sheet have not been corroborated by the Revenue by any cogent material evidence on record. The only evidence, if at all, it can be considered as evidence, is the statement of Shri K.K. Goel but even that cannot be accepted because it has been admitted by the AO in gross v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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