9911796707
TMI Blog2020 (1) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... hat matter, the Assessing Officer did not make any enquiry from the employee or from buyers of flats in respect of actual price paid by them. In that circumstances of the case the impugned addition made merely on the basis of unsigned and undated seized document has been held to be unsustainable in the eye of law. Thus, the proposition made by the revenue towards making addition on the basis of the figures mentioned on the said loose dumb document, thus, cannot be considered to be valid evidence in the absence of any enquiry made by the authorities which ought to have done in the manner as already dealt with us hereinabove. No authority acting judicially would have acted on the basis of a loose paper having no evidentiary value had there been minimum application of mind. Information contained in the seized documents are just the information without any support and therefore no credentials can be given to such information until and unless it is based on some materials. As such, seized loose documents found during the search should be read in association with the other materials before reaching to the conclusion that such seized material represent the income of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2013-14, though the conditions precedents were not fulfilled. 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the validity of proceedings as well as notice u/s.153A dated 19.11.2013 for A.Y.2013-14. 3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the addition as alleged suppressed purchase price of ₹ 2,02,56,330/- in respect of lands at village: Makarba. 3.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the addition u/s.69C as alleged suppressed purchase price of ₹ 2,02,56,330- . 3.3 The Ld.CIT(A) has grievously erred in law and on facts in upholding the addition of ₹ 10 Lakhs u/s.69A. It is therefore, prayed that the addition of ₹ 2,02,56,330/- and ₹ 10 Lakhs and validity u/s.153A(1) upheld by the CIT(A) may kindly be deleted. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and for the relevant assessment year or years : 3.3 As per the above clause the period of 6 years will be counted from immediately preceding the assessment year relevant to the previous year in which such search was conducted. 3.4 For example: if a search is conducted during the A.Y. 2010-11 then the A.Y. 2004-05 to 2009-10 will be subject to the proceedings under section 153A of the Act. In view of the above stated discussion, we note that the assessment year under consideration does not fall within the period as specified in clause (b) to section 153A(1) of the Act. 3.5 In addition to the above, it is also pertinent to note that the assessment for the year under consideration was completed under section 143(3) of the Act. As such, there were no proceedings initiated under section 153A of the Act for the year under consideration. Accordingly, we hold that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized documents. b. Submission of the assessee regarding the seized cash i. The assessee explained that the cash found during search represents cash on hand of the business which was kept at the residential premises. In this regard a detailed explanation has already been offered by his brother Shri Ramesh J. Desai who is managing the financial affairs of the entire group. ii. However, the AO disagreed with the submission of the assessee by observing that the documents were seized at the premises of the assessee. Hence, under the provision of section 292C of the Act, he would be considered as the owner of such documents. Therefore, the assessee is liable to explain the documents found during the course of search based on cogent materials/reasons. iii. Similarly, the AO also disagreed with the submission of the assessee regarding the cash found during the search proceedings by observing that the onus lies on the assessee to explain the source of money not fully disclosed in the books of accounts as per the provisions of section 69A of the Act. In view of the above the AO treated the sum of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cash lying atr mehsana Hotel, at construction site and at Surat office ₹ 2565560/- ₹ 5394800/- ₹ 1449363/- Less Expenses incurred during the period up to which cash book written and up to date of search ₹ 1449363/- Difference Nil 6.3 The assessee also submitted that he has contended in the statement recorded under section 132(4) of the Act, the impugned cash of ₹ 10 lakhs belongs to him and his family members. As such the cash withdrawn from the office was kept at residential premises. Accordingly, the assessee claimed that the addition should not have been made by the AO without pointing out any defect in the reconciliation statement furnished during the assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition. 7.1 The learned AR also claimed that the addition has been made under section 69C of the Act where the onus lies on the revenue to justify that the assessee has incurred expenditure outside the books of accounts. 7.2 The learned AR also claimed that the source of cash found during the search proceedings was furnished during the assessment proceedings and the same was not doubted by the authorities below. 8. On the other hand, the learned DR submitted that it is presumed under section 292C of the Act that the documents found during the search from the premise of the assessee belong to him. Therefore, the assessee is answerable for the documents found during the search proceedings. 9. The learned AR in his rejoinder submitted that the presumptions mention under section 292C of the Act, is a rebuttable presumption. As such the assessee has submitted that these documents are rough noting and the same does not represent any unexplained expenditure. 10. We have heard the rival contentions of both the parties and perused the materials available on record. The 1st issue in the present case relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penditures as reproduced on pages 74 to 87 of the paper book, there were mentioned several survey numbers of the land but no enquiry was conducted by the authorities below. In this respect, we would like to discuss the judgment passed by the Hon ble Delhi High Court in the matter of CIT, C-1-vs-Vatika Landbase Pvt. Ltd. In that matter, the Assessing Officer did not make any enquiry from the employee or from buyers of flats in respect of actual price paid by them. In that circumstances of the case the impugned addition made merely on the basis of unsigned and undated seized document has been held to be unsustainable in the eye of law. Thus, the proposition made by the revenue towards making addition on the basis of the figures mentioned on the said loose dumb document, thus, cannot be considered to be valid evidence in the absence of any enquiry made by the authorities which ought to have done in the manner as already dealt with us hereinabove. No authority acting judicially would have acted on the basis of a loose paper having no evidentiary value had there been minimum application of mind. 10.5 We also note that the information contained in the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vendor, the A.O. adopted said enhanced figure admitted by vendor as actual sale consideration for purpose of assessment and made addition of difference as assessee's undisclosed income. The CIT (Appeals) deleted addition on ground that vendor's contradictory statements could not be relied upon. The Tribunal affirmed the decision of the CIT (Appeals) and the High Court dismissed revenue's appeal in limine on premise that no substantial questions of law were raised by revenue. 10.8 On appeal by the Department before the Supreme Court, it was held, that the fact as to actual sale price of property, implication of contradictory statements made by the vendor or whether reliance could be placed on the loose sheets recovered in the course of the raid, were all questions of fact, and there was no infirmity in the order of High Court. 10.9 We also note that the lose paper found during the course of search did hold evidentiary value unless the same is supported by cogent material in regard we find guidance and support from order of the Hon ble Supreme Court in the case of Common Cause (A Registered Society) Vs union of India reported in 394 ITR 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
