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TMI Blog2017 (10) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... at case of the Revenue raised for the first time is not substantiated in any manner. Annexure-B is the Panchanama prepared at the time of search on 29.01.2003. ORF 67 is concerned, in the Panchanama, it is stated that ORF 67 consists of “loose sheets containing statement of accounts, Serial Nos.1 to 23”. Therefore, the Mahazar prepared at the time of search does not record that ORF 67 included page 2 of an agreement as stated in the Assessment Order or as contended before this Court. Now we shall refer to Annexure-A, which is the letter dated 03.12.2004 sent by the Assessing Officer to the assessee. In this letter, it is stated that among the undisclosed income allegedly earned by the assessee, one of the items is the undisclosed sale price of City Centre space in the case of Shri Jamaluddin and Shri V. Muneer and that one of the items is “undisclosed sale price of City Centre Space in the case of Shri Jamaluddin and Shri V. Muneer ₹ 51 lakhs during the financial year 2002-03”. Thereafter, it is again stated that “the above are evidenced from seized documents ORF-6, 8, 10, 14, 15, 27, 28, 40, 159 and impounded documents from the premises of Shri Abdul Salam and Shri Jamalu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, in law and facts of the case, in remanding the issue, relating to alleged undisclosed profit of ₹ 50,81,874/- on sale of land and building, back to the assessing officer for fresh consideration even after the Tribunal taking note of the fact that the CIT(A) have deleted the addition, inter alia, on the ground that there was no material found in the course of search for this addition and also after getting convinced that the assessing officer is also silent about availability of seized material. Is not the finding perverse and illegal? 3. Whether the Tribunal is correct, in law and facts of the case, in restoring/confirming the addition made by the assessing officer to the tune of ₹ 50 lakhs as undisclosed sale proceeds of City Centre space in the case of Sri.Jamaluddin and Sri.Muneer? 4. Whether the Tribunal is right in law and facts of the case, in holding that the statement taken on oath u/s 131 from Sri.Muneer at the time of survey proceeding in firm M/s Malabar Tower and Superior Decor prior to the search has got evidentiary value and addition can be made in the hands of assessee based on the said statement of Sri.Muneer? 5. Whether the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s impugned by the assessee was with respect to the addition of undisclosed profit of ₹ 50,81,874/- on sale of land and constructed area. This issue also was remitted by the Tribunal and the reasons thereof are stated in paragraph 8.2 thus: ...... In our view, the AO has tried to quantify the said difference and treated the same as the undisclosed income of the assessee. However, he has failed to highlight/consider the terms of agreement between the assessee company and the land owners in this regard. If according to the agreement, the assessee company is entitled to enjoy the excess price realised on sale of land and further if it has failed to account the same as its income, then the said difference, in our view, can be treated as undisclosed income in the hands of the assessee company. We may mention here that all depends upon the terms of agreement between the assessee company and land owners, which requires examination, as the same was not brought on record by the AO. In view of the foregoing discussions, we are of the view that this issue also requires re-examination in the light of discussions made above. Accordingly, we set aside the order of Ld. CIT(A) on this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of books of account or other documents and such material or information as are available with the Assessing Officer and relatable to such evidence. The expression such evidence should be read as evidence found as a result of search or requisition issued. So read, computation of undisclosed income shall be; 1) on the basis of evidence found as a result of search under Section 132; or 2) on the basis of requisition of books of account or other documents under Section 132A; 3) and such other materials or information as are available with the Assessing Officer and relatable to such evidence, viz. the evidence found as a result of search or requisition of books of account or other documents. 11. If the Section is so read, the computation of undisclosed income can be made by the Assessing Officer on the basis of evidence found as a result of search or requisition of books of account or documents and such other materials, if such other material or information is relatable to evidence recovered at the time of search or gathered on the basis of requisition of books of accounts or other documents. This Section does not authorise computation of undisclosed income relying on e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid judgments, the order passed by the Tribunal sustaining the addition is legally untenable. 13. Further, insofar as this case is concerned, on facts, there is yet another difficulty for the Revenue. In the assessment order, the addition has been made stating thus: Undisclosed sale price of City Centre space in the case of Shri Jamaluddin and Shri V. Muneer: The company had sold 2911 Sq. Ft. of City Centre space to Malabar Tower and Superior Decor of Shri Jamaluddin and Shri V. Muneer on 26.03.2002. During the course of search certain loose papers numbered 1 to 27 inventorised as ORF 67 were found and seized from the office premises of the assessee company. Page 16 of this set of loose papers is page 2 of an agreement entered into by Shri Jamaluddin for purchase of 1711 Sq. ft. of City Centre space @ ₹ 5,000/- per Sq. ft. This page of agreement, though not signed by the seller, was signed by the purchaser, Shri Jamaluddin. During the course of an independent survey action conducted by the Department at the business premises of Shri Jamaluddin and Shri V. Muneer, evidences of on-money payment of ₹ 51,00,000/- for purchase of 2911 Sq.ft of City Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the page 2 of an agreement is part thereof, according to us, that case of the Revenue raised for the first time is not substantiated in any manner. Annexure-B is the Panchanama prepared at the time of search on 29.01.2003. Insofar as ORF 67 is concerned, in the Panchanama, it is stated that ORF 67 consists of loose sheets containing statement of accounts, Serial Nos.1 to 23 . Therefore, the Mahazar prepared at the time of search does not record that ORF 67 included page 2 of an agreement as stated in the Assessment Order or as contended before this Court. 16. Now we shall refer to Annexure-A, which is the letter dated 03.12.2004 sent by the Assessing Officer to the assessee. In this letter, it is stated that among the undisclosed income allegedly earned by the assessee, one of the items is the undisclosed sale price of City Centre space in the case of Shri Jamaluddin and Shri V. Muneer and that one of the items is undisclosed sale price of City Centre Space in the case of Shri Jamaluddin and Shri V. Muneer ₹ 51 lakhs during the financial year 2002-03 . Thereafter, it is again stated that the above are evidenced from seized documents ORF-6, 8, 10, 14, 15, 27, 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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