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TMI Blog2019 (5) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case the CIT(A) was correct in relying on the decision in the case of Addl. CIT Vs. Lata Mangeshkar (97 ITR 696) and in the case DCIT, New Delhi Vs. Sri Jaswant Singh Chawala (ITR Nos. 3285, 3286/Del/2013 dated 20.03.2015 when facts of the two cases are distinguished for the instant case?" 2. The ld. AR for the assessee has also submitted that the assessee has filed a CO bearing no. 19/Bang/2019 for the following grounds. Grounds of Appeal Tax effect relating to each Ground of cross-objection 1. That, the Ld. CIT(A)-11, Bangalore erred in not appreciating that a proceeding u/s.153A of the Act on an assessee is not maintainable if there is no incriminating material found pursuant to search u/s.132 of the Act conducted on such assessee. No Tax Effect asaddition ofRs. 4,90,30,000/- has been deleted u/s.292C and not u/s.153A. 2. That, the Ld. CIT(A) erred in not appreciating that it is now a settled principle of law that in order ton exercise jurisdiction u/s.153A of the Act for a particular assessment year, such incriminating material found pursuant to search shall have to pertain to such relevant assessment year. -do- 3. That, the Ld. CIT(A) erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 12,03,35,000/- before DDIT (Inv.). It was the case of the ld. DR that the seized material on the basis of which the disclosure was made, were not denied by the assessee. It was further submission of ld. DR that the assessing officer has made addition of Rs. 3,08,35,000/- in Para 7 which was based on the seized material found in the premises of Smt. Adlene Kagoo which was not challenged by the assessee before ld. CIT(A) and lastly, it was submitted that the conduct of ld. CIT(A) for making the deletion of the amount of Rs. 4.50 Crores based on the seized material namely AK/PDP/12-Pg-125 was without any basis and was on account of some conjectures and surmises. 6. Our attention was drawn by ld. DR to Para 5.8 of the order of CIT (A) and on the basis of such Para, the ld. DR has submitted that the conclusion drawn by the ld. CIT(A) is not emanating from the record .It was submitted that the assessee cannot be allowed to admit ,same seized material on the basis of which disclosure were made and additions admitted by the assessee, and deny same the seized material when used for making the addition of of Rs. 4.50 Crores, under the circumstance when seized material was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial recovered from the premises of the Smt. Adlene Kagoo was a document which cannot be used for the purpose of making addition and for that purpose, he has drawn our attention to the statement recorded u/s. 132(4) at page 59 in response to question 11 to the following effect. "Q.No.11. I am showing files containing loose sheets marked AK/PDP/8 to 20. The sheets contain number of payment & receipts from and to different persons in respect of property transactions of Sri Dayanand pai. Please go through the papers in each file and give details of the transactions. Also please state the reason as to why these papers relating to the transactions are kept at your residence? Ans: As informed already to Q No. 10 above I do not have any knowledge of the transactions undertaken by Shri Dayanand Pai recorded in the papers, These papers were handed over to me by Sri Dayanand Pai for keeping in safe custody. Hence they are available at my residence." 10. On the basis of this answer, it was submitted that the document AK/PDP/12- Pg-125 was not recovered from the person who is authorized person to keep it . Smt. Adlene Kagoo has not stated that the said document was written in her handwri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese two lands from whom the lands were purchased were not examined or called by the revenue authority to confirm the receipt of the amount of Rs. 4.50 Crores. Lastly the ld. AR relies upon the three decisions namely 1) Addl. CIT vs. Lata Mangeshkar, (1974) 97 ITR 696 Bom 2) DCIT vs. Jaswant Singh Chawla in ITA Nos. 3285 & 3286/Del/2013 dated 20.03.2015 3) Pr. CIT vs. Meeta Gutgutia, [2018] 96 taxmann.com 468 (SC) 13. In rebuttal ld. DR had submitted that the decision relied upon by the assessee are distinguishable facts and therefore submitted that the appeal of the revenue is required to be allowed. We have heard the rival contentions of the parties and perused the record. 14. We have heard the rival contentions and perused the record. The basis of the addition made by the assessing officer is mentioned in paragraphs 8.2.5, 8.2.6 and 8.2.8 were to the following effect. "8.2.5It is here that the single entry of payment made in cash on 13/10/2006 amounting to Rs. 4.5 crores is found. The assessee was given an opportunity in the form of show cause notice dt. 21.01.2014 to explain the nature and content of the statement marked as AK/PDP/12-Pg-125 and show cause why the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to tax as unexplained income for A.Y 2007-08." 15. From the perusal of the above said paragraphs, it is clear that the basis of making addition of Rs. 4.50 Crores was the document seized from the premises of Smt. Adlene Kagoo (AK/PDP/12-Pg-125). First of all, we have to examine whether this document which was found in possession of Smt. Adlene Kagoo can form basis for making addition in the hands of the present assessee. For the purposes of making any document to be incriminating material, it is necessary that the document should be found from the lawful custody of a person who is lawfully and naturally responsible for possessing it. In the present case, as is clear from the answer given by Smt. Adlene Kagoo, it is clear that the document was neither written by her nor she is aware of the content, nor she is aware who had written the document and it is also not the case of the revenue that the assessee had taken and kept said document in the custody of Smt. Adlene Kagoo. On the other hand, the sole case of the revenue is this that the said document was allegedly kept by Shri Dayananda Pai. To prove the live link by the revenue , the statement of Shri Dayananda Pai should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, still, the statement made therein shall not along be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. 18. 'Book' ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound together so as to form a material whole. Loose sheets or scraps of paper cannot be termed as 'book' for they can be easily detached and replaced. In dealing with the work 'book' appearing in Section 34 in Mukundram vs. Dayaram [AIR 1914 Nagpur 44], a decision on which both sides have placed reliance, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adlene Kagoo has admitted this document nor the assessee admitted this document during the course of recording of statement reproduced herein above. Therefore onus of proving the document belonging to the assessee lies on the revenue to prove that the document belonged to the assessee and is correct hence it can be relied upon in accordance with law. In our view, the revenue has failed to discharge its onus. 17. We may mention that the best case of the revenue that amount of Rs. 4.50 Crores was paid as an on money for purchase of Jakkur land, admittedly this was allegedly paid on 13.10.2006 whereas the sale deed were executed on 30.03.2007 and also on 06.08.2009. This amount of Rs. 4.50 Crores can be said to be on money given by the assessee for the purchase of the said land, if the said money is paid subsequent or at the time of registration of sale deeds. Further we may bring on record that the details of cheques given in the sale deed dated 30.03.2007, as per para 2 of sale deed on page no. 96 of paper book, cheque of Rs. 2.60 Crores bearing no. 719275 drawn on ICICI Bank is dated 30.03.2007 and in respect of second property the cheque of Rs. 60 Lakhs was paid for which a sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri. Ranjan Pai to M/s. Legacy Dimora on 30.03.2007. M/s. Legacy Dimora is partnership firm in which Sri. Sanjay Shenoy, a nominee of Sri. Dayanand Pai is a partner. There are transactions between M/s. Indiland Developers Bangalore Private Limited and Sri. Dayanand Pai Group which is established by the ledger extract of M/s. Indiland Developers Bangalore Private Limited. As the cheque payments are against other property accounts, the entries found in the statement are not works of imagination or fiction. Since it is proved that part of transactions, carried out in cheque, which are reflected in the books of accounts are true, the seized evidence gains strength and is considered to be true and correct. The cheque payments which are true, though pertaining to other properties, establish the veracity of the document. Accordingly, other part of transaction carried out in cash shall also be held as true. Hence the payment made in cash of Rs. 4,50,00,000/- in lieu of purchase of immovable property at Jakkur is held as true and accordingly brought to tax as unexplained income for A.Y 2007-08." 21. From the above Para of the assessment order, it comes out that this is the whole case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge of the transactions undertaken by Shri Dayanand Pai recorded in these papers. She also stated that the papers were handed over to her by Shri Dayanand Pai for keeping in safe custody and in this manner, these papers are available at her residence. In spite of this, neither Mr. Dayanand Pai was examined by the AO nor the search Party nor the vendor was examined. The lady Smt. Adeline Kago was also not examined by the AO and conclusions were drawn by the AO and addition was made on this basis that the cheque payments shown on this page i.e. page 125 of AK/PDP/12 are true and therefore, it has to be accepted that the cash payment shown in the same page is also true and it is for Jakkur property. We have seen above that all the cheque payments noted on this page are about payment by the company M/s Indiland Developers. Hence there is no basis to hold that the cash payment is by the present assessee and not by that company particularly in view of this fact that name of the company is mentioned against cheque payments but no name is mentioned against entry of cash payment. No concerned person i.e. Shri Dayanand Pai, the lady Smt. Adeline Kago or the vendor were examined by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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