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TMI Blog2018 (9) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- In this case, neither the searched party has given a specific statement with regard to the receipt of money from the assessee nor the AO has collected the details of date wise payments from the Vizag Profiles Ltd. Even there the AO has not ascertained in the statement with regard to the unaccounted payment made by the assessee in the statement. Though the Managing Director has given general statement or the practice of the company with regard to the acceptance of cash component of 25% to 40% , the general statements and the observations cannot be inferred adversely against the third party without the specific information and the relevant evidence. The department has no material to hold that the assessee had made the payment of 91,27,000/- to the VGP and to make the addition of 91,27,000/- as unaccounted consideration. Accordingly we set aside the orders of the lower authorities and delete the addition made by the AO and allow the appeal of the assessee on this ground. With regard to the difference in sale consideration in the registered sale deed the Ld.CIT(A) did not make any addition since at the end of the F.Y. the consideration recorded in sale deed, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in granting liberty to the assessing officer to consider the balance cash payments of ₹ 25,00,017/- and ₹ 12,81,183/- for addition for the assessment years 2010-11 and 2011-12 as such direction is beyond the scope of appeal before him. 5. Any other ground that may be urged at the time of appeal hearing. We have heard both parties and admit the revised grounds for adjudication. 3. Ground No.1 and 6 are general in nature which does not require specific adjudication. 4. Ground No.2 is related to the validity of issue of notice u/s 148. The Ld.AR argued that the Ld.CIT(A) ought not to have upheld the notice issued u/s 148 which is void ab initio. We have gone through the Ld.CIT(A)'s order and grounds of appeal filed before the Ld.CIT(A) in form No.35. The assessee has not raised the grounds relating to the issue of notice u/s 148 either in the form 35 i.e. memo of appeal or before the Ld.CIT(A) or in a separate petition for admission of additional ground with regard to validity of issue of notice u/s 148. . However, the Ld.CIT(A) has made a passing remark with regard to the validity of initiation of proceedings u/s 147 of the Income Tax Act (hereinafter called as 'Act') ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. The assessee explained that she had not made any payment over and above the registered sale deed of ₹ 84,74,000/- (excluding the stamp duty) and actual payment up to 31.03.2009 was ₹ 72,88,905/- and further stated that stamp duty of ₹ 4,89,900/- was paid directly and not included in the above sums. Not being convinced with the explanation of the assessee the AO held that the assessee had made the payment of ₹ 1,76,00,000/- towards the purchase of two villas and accordingly made the difference amount of ₹ 1,03,11,095/- (1,76,00,000- 72,88,905)as addition to the returned income. 6. Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and stated that that she has not paid any amount over and above the sale consideration registered in the sale deeds. The assessee submitted that the said properties were purchased from Vizag Profiles Ltd. vide sale deeds dated 28.07.2008 registered vide document No.1879/08 and 1880/08 for a consideration of ₹ 25,76,000/- each aggregating to ₹ 51,52,000/- and it was also agreed that the assessee had to pay ₹ 16,61,000/- towards additional construction as per the additional co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the vendor would convey the title to the vendee without receiving the entire consideration or without endorsing the vendee's liability to pay. The endorsement in the registered sale deeds raise a strong presumption that the recitals stated therein are correct and as agreed between the parties. In these factual scenario it has to be reasonably inferred that some part of the consideration had passed in cash as found and accepted during the search in the vendor's case. Besides, it was noted that as per the assessee, the payments made during the year to VPL was ₹ 67,99,005/- while the documented consideration was ₹ 51,52,000/-. In this regard, it is to be noted, that the agreement for additional construction was entered only on 23.3.2010, much after a year from the date of registration. Therefore the contention that the extra amount paid during the year was towards the extra work is untenable. All these indicate that the consideration for the two villas was not as per the registered sale deeds and that consideration over and above the documented consideration was paid by the assessee. Taking into account, the totality of all these 'facts along with the Inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished by the assessee along with account copy of the vendor which is in synch and reconciled. In respect of the seized material the Ld.AR argued that it was dumb document and there was no tangible material to support the unaccounted payment stated to have been made by the assessee. Therefore, argued that though there was difference with regard to the payments recorded and the actual payments at the time of registration since the assessee made the payments in accordance with the reconciliation and the entire payment was made during the financial year 2008-09i.e ₹ 67,99,005/- with stamp duty of ₹ 4,89,900/- aggregating to ₹ 72,88,905/- argued that there is no case for inferring the seized material against the assessee and making the addition on account of unexplained investment. Hence, requested to set aside the order of the Ld.CIT(A) and allow the appeal of the assessee. 8. On the other hand, the Ld.DR supported that there was material available in the seized document in page No.47 and 49 indicating unexplained investment made by the assessee for purchase of property to the extent of ₹ 91,27,200/- which is further supported by the seized material in page No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receiving the sales receipts to the extent of 60% to 75% through cheque and rest in the cash. He also admitted that the cash receipt was not accounted in the regular books of accounts. In response to the question No.23, he has stated that he would quantify the component of cash which is not entered in the regular books of accounts and submit the same on 23.04.2012. Whether the AO has recorded any other statement from the Vizag Profiles on 23.04.2012 or not was not enlightened either by the Ld.AR or DR. Therefore, the issue is to be decided on the basis of the seized material found during the course of search and the statement recorded on 19.04.2012. Loose sheet was found in the premises of Vizag Profiles Ltd., but not in the premises of the assessee. Therefore, the presumption u/s 292C is not available to the department to hold that the assessee has made the payment of unaccounted money over and above the accounted consideration. From the statement of Mr. B.Suresh it is neither clear nor specified what was the actual consideration received from the assessee for sale of two flats to the assessee. Unless there was specific evidence with regard to the receipt of the cash over and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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