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TMI Blog2019 (3) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased in joint-names and, therefore,e the entire addition cannot be made in the hands of the assessee unless the AO is able to bring on record any material to substatntiate that the entire ‘money’ was paid by the assessee. All these issues were required to be examined by the lower authorities which both the AO and the Ld. CIT (A) has failed to consider. At the same time, we also note that the contention of the Ld. AR that the presumption under section 132(4A) read with section 292C is available only against the person from whose possession or control such document is found is also correct. From the facts stated hereinabove, apparently, it appears that the seized document was found at a place other than the place where the search on the assessee has been carried out. Thus, in these circumstances, it cannot be said that this document was found in possession or control of the assessee. If that be so, then the presumption under section 132(4A) will not be available In case such document was not found in the course of the search on the assessee then the same cannot be the subject matter for addition in assessment proceeding under section 153A of the Act. Since, the facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty transaction was executed for a total amount of ₹ 2,60,00,000/- out of which ₹ 49,50,000/- was paid in cheque and the balance i.e. ₹ 2,09,50,000/- was paid in cash which he treated as unexplained investment. 2.1 Aggrieved by the order of the AO, the assessee filed appeal before the Ld. CIT (A). The contention of the assessee before the Ld. CIT (A) was that the addition made by the AO was unsustainable both in law and on facts as the seized document was not found during the course of search in the assessee s premises and, hence, the same could not be the subject matter of any addition for the year under consideration as assessment for the year was not abated. It was further contended by the assessee that the addition had been made by AO without bringing any corroborative material on record. It was also contended that the Assessing Officer had made assumptions and drawn inferences without carrying out any investigation or verification from the alleged seller. 2.2 The Ld. CIT (A) rejected the legal contention of the assessee that in the absence of any incriminating material found in the course of search on the assessee, the addition made by the AO was un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the addition per se was untenable in law as this document was not found during the course of the search carried out in the premises of the assessee as was evident from the assessment order wherein the Assessing Officer, on page 2 of the assessment order itself has stated that this document was found from the premises 697, Udyog Vihar, Phase-V, Gurgaon, Haryana. The Ld. AR submitted that the search on the assessee as per the Panchnamas (placed in paper book 4) was at B-1/118, IInd Floor, Pashim Vihar, New Delhi, (paper book page 9), at locker no.286 at Dena Bank, Pashcim Vihar, (paper book page 13), at locker no.297, Dena Bank, Paschim Vihar (paper book page 17) and at Locker no.20, ING Vaysya Bank, Punjabi Bagh, New Delhi. It was submitted that, thus, the Ld. CIT (A) was not correct in rejecting the contention of the assessee that in absence of any incriminating material being found during the course of the search on the assessee, the AO had no jurisdiction to make such addition. 4.1 Further, on merits, it was contended by the Ld. AR that the addition has been rightly deleted by the Ld. CIT (A) as the Assessing Officer, instead of conducting any investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in case the Assessing Officer was to draw an adverse inference, he should have looked at the sale deed which is in two names, namely Mrs. Aroma Jain and Mr. Vikas Jain. It was submitted that in view of these facts the entire addition could not have been made in the hands of the assessee. It was also submitted by the Ld. AR that the AO had failed to bring on record any cogent material to establish that the payment had been made by the assessee. It was submitted that no statements were recorded either in the case of the assessee or in the case of Mrs. Aroma Jain which could substantiate the view of the AO. The Ld. AR submitted that, therefore, in absence of any corroborative material, it was incorrect on the part of the AO to assume that the entire payment had been made by the assessee. 5.0 We have heard the rival submissions and have also perused the record. On going through the same, we note that the AO has drawn an adverse inference on a document found and seized from the premises 697, Udyog Vihar, Phase-V, Gurgaon. The AO has held that the document seized is relatable to a property purchased by the assessee along with Mrs. Aroma Jain. The AO, on the basis of the seized d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor any action apparently has been taken against the seller. We are also in agreement with alternative contention of the Ld. AR that this property has been purchased in joint-names and, therefore,e the entire addition cannot be made in the hands of the assessee unless the AO is able to bring on record any material to substatntiate that the entire money was paid by the assessee. All these issues were required to be examined by the lower authorities which both the AO and the Ld. CIT (A) has failed to consider. At the same time, we also note that the contention of the Ld. AR that the presumption under section 132(4A) read with section 292C is available only against the person from whose possession or control such document is found is also correct. From the facts stated hereinabove, apparently, it appears that the seized document was found at a place other than the place where the search on the assessee has been carried out. Thus, in these circumstances, it cannot be said that this document was found in possession or control of the assessee. If that be so, then the presumption under section 132(4A) will not be available. Further, in case such document was not found in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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