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TMI Blog2015 (6) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by Shri G. Babu does not relate to any material or evidence found during the course of search operation. The evidence of Shri G. Babu could be relied upon provided the Assessing Officer is in possession of any evidence which was found during the course of search operation. In the absence of any material found during the course of search operation, this Tribunal is of the considered opinion that the statement recorded from Shri G. Babu on 29.12.1999 cannot be relied upon for making any addition in the hands of the present assessee. Therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly deleted the addition of ₹ 31 lakhs. Assessing Officer for the purpose of computing undisclosed income for the block period, the CIT(A) cannot travel beyond the evidence found during the course of search operation. The CIT(A), by referring to payment of stamp duty, registration charges etc. estimated the undisclosed income at ₹ 5 lakhs. This Tribunal is of the considered opinion that in the absence of any material found during the course of search operation, the power of the CIT(A) which is co-terminus with that of the Assessing Officer cannot be extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee and Revenue filed the present appeals against the order of the Commissioner of Income-tax (Appeals) (Central)-II, Chennai, dated 5.7.2002 and pertains to block assessment years 1990-91 to 2000-01. Since common issue arises for consideration in both the appeals, we heard them together and dispose of the same by this common order. 2. Shri V.D.Gopal, ld. Counsel for the assessee submitted that the Assessing Officer made an addition of ₹ 31 lakhs towards onmoney payment for purchase of immovable property. However, the CIT(A) deleted the addition made by the Assessing Officer on the ground that there was no material found during the course of search operation. The CIT(A) made another addition of ₹ 5 lakhs in the course of appellate proceedings. According to the ld. Counsel, even for making this addition of Rs. 5 lakhs, no material was available on record. According to the ld. Counsel, during the course of search operation, no material was found against the assessee. In the absence of any material, according to the ld. Counsel, the CIT(A) ought not to have sustained the addition of ₹ 5 lakhs. 3. Referring to the next ground of appeal, the ld. Counsel submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) ought not to have deleted 215 gms of gold jewellery which was found to be excess during the course of search operation. 6. We have considered the rival submissions on either side and also perused the material available on record. The first ground in the assessee s appeal is with regard to addition of ₹ 5 lakhs sustained by the CIT(A). We have carefully gone through the order of the lower authority. The CIT(A) while deleting the addition to the extent of ₹ 31 lakhs found that the power of the first appellate authority is coterminus with that of the Assessing Officer and proceeded to make addition to the extent of ₹ 5 lakhs towards cost of construction. The CIT(A) after taking into consideration the stamp duty, registration fee etc paid by the assessee and the extent of construction made by the assessee, estimated the unexplained investment at ₹ 4,85,236/-. However, he rounded off the same to Rs. 5 lakhs for making the addition. The fact remains that there was no material found during the course of search operation. Even though the Assessing Officer claims that a statement was recorded from the assessee u/s 132(4) of the Act on 29.12.199 during the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any other statement is available on record which was said to be recorded by the assessee on 29.12.1999. In the case before us, search itself took place on 29.12.1999 and the assessee filed appeal before this Tribunal in 2002. The matter is pending before this Tribunal for the last 13 years, therefore, remanding the matter to the file of the Assessing Officer at this stage may not serve any purpose. Therefore, there is no option to this Tribunal except to decide the appeal on merits. 8. We have carefully gone through the provisions of section 158BB(1) of the Act. Sec. 158BB(1) of the Act provides for method of computation of undisclosed income for the block period. The Assessing Officer shall compute the undisclosed income for the block period in accordance with the provisions of the Act on the basis of the evidence found as a result of search or other documents, materials or information as are available with the Assessing Officer and relatable to such evidence found during the course of search operation. In the case before us, no such material is available on record as explained by the Assessing Officer himself in Annexure 1 to the assessment order other than stock of gold je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable with regard to the construction of the building. In the absence of any material, this Tribunal is of the considered opinion that there cannot be any addition with regard to the so called improvement to the property. Accordingly, the order of the CIT(A) is set aside and the addition made to the extent of Rs. 5 lakhs towards investment in immovable property and another addition of Rs. 83,700/- towards improvement of the property are deleted. 11. Now coming to the Revenue s appeal, the first ground is with regard to deletion of ₹ 31 lakhs by the CIT(A). 12. While discussing the assessee s appeal in the earlier part of this order, this Tribunal found that there was no material found during the course of search operation. The so called statement said to be recorded from the assessee u/s 132(4) of the Act does not disclose anything about payment of on-money. Therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly deleted the addition. 13. We have gone through the decision of Ahmedabad Bench of this Tribunal in Kantilal C Shah vs ACIT [2011] 133 ITD 57 relied upon by the ld. DR. In the case before the Ahmedabad Bench of this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted total investment of ₹ 12.50 lakhs out of which ₹ 9.50 lakhs was disclosed in books of the co-owner s name. The balance ₹ 3.50 lakhs was offered as undisclosed income of the assessee. The Revenue Authorities obtained the valuation report which indicated the cost of construction at ₹ 21,63,727/-. After giving 10% deduction for supervision, the cost was adopted at ₹ 19.48 lakhs. The difference between the cost disclosed by the assessee and cost determined after considering the valuation report was treated as undisclosed income of the assessee to the extent of ₹ 3.50 lakhs. In the case before us, no incriminating material was found except certain gold jewellery and silver. Statement was not recorded from the assessee. The statement was recorded from the assessee s son u/s 132(4) of the Act. The vendor of the property was examined u/s 131 of the Act and not u/s 132(4) of the Act. In those circumstances, this Tribunal is of the considered opinion that the decision of the Hyderabad Bench of this Tribunal also may not be of any assistance to the Revenue. 15. We have also gone through the judgment of the Hon'ble Himachal Pradesh High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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