9911796707
TMI Blog2010 (3) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... the search (page No. 16 of Annex. A of Panchanama dt. 15th Feb., 2006 containing the details of the cost of other plots in the same scheme." 2. Briefly, the facts are that a search operation was carried out on 14th Feb., 2006 at the residential and business premises of the respondent assessee. Certain incriminating documents were recovered as a result of search. In pursuance to notice issued under s. 142(1). the assessee filed its return of income on 20th Nov., 2006 declaring total income of ₹ 1,33,032. Notice under s. 143(2) was also issued on 30th Aug., 2007, in response to which the requisite details and information were furnished by the assessee. During the course of search, certain documents reflecting the investment of ₹ 64 lacs alleged to have been made in purchase of two plots Nos. 185 and 186 in Ummaid Heritage. Jodhpur, were seized. Out of this investment of ₹ 64 lacs, ₹ 39,50,000 were paid by cheques and remaining ₹ 24,50,000 were alleged to have been paid in cash. The assessee in his statements recorded under s. 132(4) of the Act surrendered the amount of ₹ 24,50,000 on this count. He. however, did not disclose the surrendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itage. It was incumbent upon the purchaser to get the construction work done through developers only. Since the amount of construction was to be paid only when the construction commences, there was no investment of the amount so mentioned in relation to the construction. 5. The learned AO, however, did not consider the explanation of the assessee convincing. He observed that evidence of filing the affidavit was not submitted. He further observed that in the seized paper at Annex. A, Ext. 1 at p. 40 the cost of plot Nos. 185 and 186 has been taken at the rate of 6,500 per sq. yard, according to which the total cost comes to ₹ 55,90,000. At p. 50 of the same annexure, the cost has been worked out at ₹ 64 lacs. Even as per page No. 16 of Annex. A3, the value of plot has been mentioned at the rate of ₹ 6,500 per sq. yard. All these seized documents indicate that the assessee has purchased the plot @ ₹ 6,500 per sq. yard and this fact goes to prove that the assessee had paid ₹ 24.50 lacs in cash. Therefore, acting upon the statements of assessee recorded under s. 132(4) of the Act, the learned AO treated the amount of ₹ 24.50 lacs as unaccounted inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold to other parties in the same scheme. It has also been contended that even on the basis of seized documents, it is evident that no "on-money" has been paid towards purchase of these two plots. Separate construction agreement was executed on 26th Dec., 2005 and the assessee was liable to pay ₹ 24.53 lacs towards construction. The mention of such construction work to be done by the developer is evident from various clauses of the sale agreement as also from the seized documents. If the cost of such construction is excluded, the investment shown by the assessee is fully verifiable. In the preliminary statement recorded on 14th Feb., 2006, the assessee in reply to question No. 4 has unequivocally stated that the investment in these plots is ₹ 37-38 lacs, which is commensurate to the payment made by assessee by cheque. Not only this, Annex. A1 pp. 1 to 52 in the preliminary statement on 15th Feb., 2006, the assessee has stated that figure of 24.50 represents the estimate for skeleton stone work, which is to be got done from the developer. Therefore, no importance can be attached to the subsequent surrender made at the midnight under coercion and pressure. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities, i.e., CBDT. The AO, however, placed no credence to such photocopy of the affidavit placed before him, as also the assessee did not prove the allegations. The learned CIT(A), however. reached a finding that the surrender is not found obtained in a voluntary manner, but obtained under pressure. This finding, however, is not supported by any relevant material on record. He appears to have acted on irrelevant considerations for reaching such a finding of fact. Photocopy of the affidavit placed on record of the AO or for that matter even before the learned CIT(A) had very little evidentiary value, as the assessee neither produced the original thereof nor placed on record of the authorities below any evidence of filing such an affidavit in original before them or any of the IT authorities. The original affidavit has also not been filed before us. The Hon'ble Supreme Court, in the case of Moosa S. Madha & Azam S. Madha vs. CIT 1973 CTR (SC) 325: (1973) 89 ITR 65(SC) has also entertained a view that photocopies have very little evidentiary value. In fact, the assessee has offered no satisfactory explanation for not giving the affidavit in original to the AO or placing on his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the payment schedule and price of structure etc. In Annex. Al/40, total price is quoted @ ₹ 6,500 per sq. yard. In Annex. A1/50 containing payment schedule, price of plot has been shown at ₹ 3,150 per sq. yard and in Annex. A1/35A, the rate of plot is shown at ₹ 4,500 per sq. yard. The AO has, however, acted on the basis of price @ ₹ 6,500 per sq. yard. The payment schedule, however, contained at Annex. A1/50 reveals that an amount of ₹ 24.50 lacs is on "others" account. As per scheme, the purchaser is also required to make payment for construction of ₹ 2,50,000 in advance. The letter dt. 30th July, 2000 from Ummaid Heritage found seized at Annex. A1/51 reveals that 10 per cent of advance is to be paid at the time of registry. This annexure also gives telephone numbers of Ajai Kumar Mathur as 0291-3091591 and Mr. C.V. Arora as 0291-3092342 but no enquiry has been made from these two persons. The Department also relies on another paper placed at paper book page No. 79 which is a copy of seized Annex. A3/16. This does not reveal the rate of plot of a size, which the assessee has purchased. The perusal of all these documents does not re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
