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TMI Blog2017 (12) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007, showing consideration of Rs. 21,96,00,000/- which is found and seized during the course of search as page no. 64-70 of Annexure-AA-2, Party G-2 of dated 26-11-2008, and by not considering: (i) the agreement dated 15.6.2007 which is prepared on stamp paper, duly executed and signed by all the parties and duly accounted for in the books of accounts of the appellant, showing consideration of Rs. 8,00,00,000/- in respect of above referred industrial property, which was also found and seized by the revenue in search action u/s 132 of the Act i.e. bearing page no. 94-99 of Annexure-A-6, Party G-2, dated 6-11-2008, and; (ii) the another agreement dated June, 2007 which is executed and signed plain paper and also showing consideration of Rs. 8,00,00,000/- in respect of the above referred industrial property, and found and seized in search action u/s 132 of the Act i.e. bearing page no. 13-17 of Annexure-A-6, Party G-2, dated 6-11-2008. 2. The appellant craves leave to add to, alter, vary, modify or otherwise amend the grounds of appeal before the appeal is finally disposed of." 3. Briefly stated, the facts of the case as emanating from the order of the Assessing Officer are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Mittal, Shri Ravinder Kumar Mittal and M/s Bluebird Software Private Limited (Sellers) have agreed to sell the shareholding in M/s Blue Bird Software Private Limited alongwith industrial land baring plot no. 391, Udyog Vihar, Phase-III, Gurgaon to Shri Sanjeev Mahajan and M/s Nimitaya Promoters Pvt. Ltd. (Buyers) for a total consideration of Rs. 21,96,00,000/-. In fact out of the total share holding of 2,10,000, Shri B. M. Mahajan has purchased 1,05,000 shares and Shri Sanjeev Mahajan has purchased 105000 shares i.e. 50% each. Accordingly on money payment of Rs. 13.96 Crores is received in to two part which comes to Rs. 6.98 Crore in each hand." In view of the above fact, you are hereby request to explain as to why an amount of Rs. 6.98 Crores should not be treated as unaccounted investment for the year under consideration." 4. The assessee vide its reply dated 27.12.2010 to the above show cause notice stated that the agreement of Rs. 21.96 Crore is an unsigned document and it was not confronted by the search team at the time of search in the office premises. So, the assessee is not aware about such document and reiterated that the parties have acted on the basis of sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration. Being aggrieved with the addition of the said amount to the returned income, the assessee preferred the appeal before the CIT(A) who upheld the order of the AO. 7, The ld. AR argued that the AO and CIT)A) has ignored the documentary evidences and other relative corroborative evidences produced during the assessment and the appellate proceedings and has erroneously held in order that the appellant has not brought any evidence on record to substantiate its claim. The CIT(A) has misled himself with the proposition that the company has secured a loan of Rs. 30 Crore from OBC, Industrial Finance Branch. The learned counsel of the appellant has drawn our attention to the paper book and documents filed before the Ld. CIT(A) as evidence against the impugned addition of Rs. 6,98,00,000/-, and stated that three different documents were found during search and all these three documents mention the sale consideration of 8 Cr and all the three documents are duly signed, which also include MOU signed much before the date. In respect of unsigned document he submitted that the case of assessee has been all along that it did not belong to the assessee and is not aware how it came in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 56, 00,000/- was agreed to be paid on or before 07-06-2007. Bothe these cheques have been issued by M/s Nimitaya Promoters Pvt Ltd to M/s Bluebird Software Pvt Ltd and have been duly debited to the bank account." 9. The ld. AR further contended that the DVO report obtained by the AO from its own resources clearly demolished the consideration contained in the unsigned agreement which is the basis of impugned addition. It is further contended that the AO has not mentioned any reason that why he is not considering the DVO report or why he is rejecting the same. It was further contended that while disposing of the appeal, even the CIT(A) failed to give any cogent reason that why he is upholding the order of the AO ignoring this DVO report. The ld. AR further contended and drew our attention to the page no. 61-63A of the paper books which are the assessment orders of the sellers and it was shown that no addition with reference to this alleged unaccounted investment. The capital gain on the basis of signed documents is duly declared by the sellers and accepted by the AO. The assessment made in the hands of the sellers is also search assessment made in the central circle. It was conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tware which was also subject to search. Hence the value could not have jumped to 21.96 crs on 7.3.2007 which is date of alleged unsigned document. This also supports the contention of the assessee that sale consideration of 8 cr is correct. 12. In support of his arguments that presumption u/s 132 (4A) is rebuttable presumption he relied on the following case law a. ITO vs Ved Prakash Choudhary 305 ITR 245 (Delhi) b. M.M.Financers (P) ltd vs DCIT 17 SOT 5 (Chennai) ITAT c. ACIT vs S. Preetha ITA Nos 1313 to 1319/mds/2012 d. ACIT vs Radheshyam Poddar 41 ITD 449 (Cal ) ITAT 13. On the basis of above arguments the case of the assessee is that the AO has made the addition only on the basis of unsigned document without testing the veracity of the same even with the DVO report which was obtained by him after making the DVO aware that an unsigned agreement of value of Rs. 21.96 Crore is found during the course of search. It was contended that even the DVO itself has disprove the contention of the AO and the unsigned document as evident from record. This is the reason that AO deliberately did not refer the DVO report in the impugned assessment order and prayed for deletion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. It is also a matter of fact and record the sale price on the basis of signed documents is accepted by the department in the hands of sellers of the property or shareholders of Blue Bird Software Private Limited. Those assessment orders are also passed after search in their cases by the central circle. 16. The assessee has also placed on record the assessment order of Blue Bird Software Pvt Ltd who has purchased this property for 6.80 cr just few months before the date of unsigned document. This value is also accepted by the Income tax authorities. The assessee has been able to produce enough evidence on record to rebut the presumption. In the case of M.M. Financers (P) Ltd vs DCIT 17 SOT 5 (Chennai) ITAT it is held that the expression used in section 132(4A) is 'may be presumed' and it does not mean that other factors are not to be taken into consideration. The mandate does not mean that it has to be presumed irrespective of all other factors. The decision of Delhi High Court in the case of CIT vs Ved Prakash Choudhary 305 ITR 245 (Delhi) also support the case of the assessee. 17. All these circumstances suggest that the addition made by the AO is contrary to the DVO report o ..... 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