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TMI Blog2019 (1) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... proper enquiry into the matter by recording statements of Shri L.C. Madan, Shri Vikram Sharma and Shri Pawan Khurana under section 131 of the I.T. Act with regard to sale consideration mentioned in the receipt in question - Appeal of Assessee is allowed for statistical purposes. - I.T.A.No.2709/Del./2015 - - - Dated:- 21-1-2019 - SHRI BHAVNESH SAINI, J.M. AND SHRI O.P. KANT, A.M. For The Assessee : Shri Tarun Kumar Batra, C.A. For The Revenue : Ms. Shaveta Nakra Dutta, Sr.D.R. ORDER PER BHAVNESH SAINI, J.M. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-16, New Delhi, Dated 30.03.2015, for the A.Y. 2011-2012, challenging the addition of ₹ 1.44 crores on account of long term capital gains. 2. Briefly the facts of the case are that original return of income was filed on 04.03.2013 under section 139(1) of the I.T. Act, declaring income of ₹ 84,02,200/- under the Head Income from Business and Profession . A search and seizure operation under section 132(1) of the I.T. Act was conducted by DIT (Investigation) on 17.09.2010 in the case of M/s. Sanya Group of cases. The assessee is one of the group case of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty at ₹ 81 lakhs. 3.1. The A.O. however noted that the receipt in question have been issued by Shri L.C. Madan on behalf of assessee being his father and was residing together. Shri L.C. Madan has not denied to have issued this receipts on behalf of the assessee. Therefore, denial of the assessee is an afterthought. The receipt executed of ₹ 1 lakh advanced on 18.04.2010 is witnessed by Shri Vikram Sharma, broker and the said receipt has not been withdrawn and agreement is not cancelled. The statement of assessee was recorded on 17.09.2010 under section 131(1)(A) of the I.T. Act and in Question No.8, the assessee admitted that property in question was sold at ₹ 1.50 crores. The A.O. accordingly taken the sale consideration at ₹ 2.25 crores and computed the capital gains accordingly. 4. The assessee challenged the addition before the Ld. CIT(A) and written submissions of the assessee is reproduced in the appellate order in which the assessee briefly explained that the receipt in question is not singed either by the seller or by the buyer. The statement recorded on 17.09.2010 was under lot of pressure and assessee made a wrong statement declaring the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said document i.e. receipt of ₹ 2.25 crores, Sh Vikram Sharma, did not also come forward to deny or assail it as incorrect. 5. No agreement cancelling the receipt issued by the appellant s father to the purchaser was also produced by the appellant. 6. Vide statement u/s 131(1 A) dated 17.09.2010 the appellant admitted the sale consideration as Rs.l.50 crores. Admission is as much binding on the crown as on an ordinary person. 7. The contents of the receipt stood proved the moment the appellant's father who authored and issued the receipt did not ever come forward to deny that the sale consideration of the said property did not amount to ₹ 2.25 crores. 8. The authenticity of the said piece of paper i.e. money receipt by Sh L.C. Madan, the author of the money receipt, was also not challenged by the appellant before the AO at the stage of assessment proceedings with the help of satisfactory evidence in the form of a letters of rebuttal by the father, the executant of the receipt, and the witness, Sh Vikram Sharma, witnessing the execution. Such admission of the said documents amounted to admission of contents. 9. The very fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee was recorded under section 132(4) of the I.T. Act in which assessee has clearly denied the execution of the receipt in question. He has submitted that there is no evidence on record to prove father of the assessee was authorised to deal with the property of the assessee. He has, therefore, submitted that presumption under section 132 stands discharged and no addition could be made against the assessee. 6. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and produced the assessment record for perusal of the bench and filed copies of the statements recorded on assessee and Shri L.C. Madan and order sheet on record. The Ld. D.R. submitted that since the document in question was found from the possession of the assessee, therefore, presumption raised under section 132(4A) is applicable against the assessee. Since the assessee failed to rebut the presumption, therefore, addition was correctly made. The Ld. D.R. in support of the above contention relied upon several decisions in the written submissions. 7. We have considered the rival submissions and perused the material on record. The A.O. noted that during the course of search, agreement to sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found during the course of search. Therefore, no reliance could be placed upon such statement made under section 131 of the I.T. Act. Since the assessee at the initial stage i.e., on the date of search itself denied having any idea about the receipt of ₹ 1 lakhs in question, therefore, the burden upon the assessee stood discharged as it created a doubt whether the amount was settled for a consideration of ₹ 2.25 crores. Since the assessee was owner of the property, therefore, there were no justification to the A.O. to record that the receipt in question have been issued by Shri L.C. Madan being father of the assessee on his behalf. There is no material on record to support such observation of the A.O. Since the receipt is not signed either by the seller or by the purchaser, therefore, there is no question of withdrawing the same receipt by the parties to the transaction. Similarly, there was no reason for the Ld. CIT(A) to ignore the facts and circumstances of the case and to observe that receipt was executed on behalf of the assessee. According to Section 132(4A) and Section 292C of the I.T. Act, when any document was found in possession or control of any person in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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