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TMI Blog2020 (3) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... ized by the assessee. This, in our considered opinion, it is totally unsustainable in law. Accordingly, in the background of the afore-said discussion and precedent, we set aside the order of the ld. CIT(A) and restore that of the A.O. Addition on the basis of material found during search - Addition u/s 69 - Documents incriminating in nature were found in the search. From the materials referred by the assessing officer here-in-above it was clear that a sum of ₹ 1.81 crores has been paid which has not been accounted for. CIT-A has deleted the addition by making conjectures that assessee might have made further negotiations with the payees and settled the matter for an amount less than ₹ 1.81 crores - onus was upon the assessee to prove this in view of the materials found during search and the presumptions arising out of provisions of section 132(4A). Instead the learned CIT-A has put the onus on assessing officer to prove that the impugned sum was paid by other means by the assessee. In our considered opinion, the action of the learned CIT-A is clearly contrary to the mandate of provisions of section 132(4A) and the incriminating documents found. Hence, we set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT in the garb of rectification of mistake apparent from record. The learned DR submitted that the ITAT has passed an elaborate order and has reversed the order of learned CIT(A). He submitted that the ITAT order contains all the reasoning. He submitted that a review of the order of the ITAT is not permissible in an order under section 254(2) of the IT Act. 5. Upon careful consideration we find ourselves in agreement with the submission of the learned departmental representative. In this regard we may gainfully referred to the finding of the ITAT in this regard as under :- 19. We have heard both the counsel and perused the records. First of all we note that this addition has been made pursuant to a search action. The assessment has been framed u/s. 143(3) r/w s. 153A of the Act. There was a search and seizure action u/s. 132(4) on the assessee group on 09.07.2008. The assessee had filed the return of income u/s. 153A on 20.10.2010. In the course of search conducted on 09.07.2008, the department has seized from the assessee s business premises, pages containing profit and loss account and balance sheet for the period ending March, 2008 and Schedule thereto. Page n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act. 21. Further, the documents found during search have evidentiary value. This is duly reflected in the provision of section 132(4A) of the Act which reads as under: Search and seizure. 132. (4A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person ; (ii) that the contents of such books of account and other documents are true ; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores being twice of that of actual income was stated in the accounts and the director was not aware when he signed the account, is also not acceptable. These are clearly an afterthought of the assessee. The assessee has tried to make an explanation that unsold items have been accounted for sales without proper evidence. The ld. CIT(A) has devoted his entire order in referring to the assessee s evidence as to how these plots have remained unsold. In our considered opinion, these are clearly an afterthought of the assessee with no iota of evidence. The view that the assessee has only made an afterthought to reduce the profit is evident by the fact that it is not a case of wrongly accounting for certain sales. Fully aware that such reversal of sale will result in abnormal comparable profits, in the subsequent account the cost of sales has also reduced by ₹ 89,20,48,427/- from ₹ 1,62,79,86,886/- to ₹ 73,59,38,459/-. Admittedly, this can only be result of unexplained other accounting ingenuity. No detail explanation for this is on record. Hence, it is evident that the accounts have been revised after search to reduce the incidence of tax and half baked facts have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unexplained. No additional evidences or material have been submitted or furnished in this regard and the stand taken by the Assessee Company's CMD that this was proposed project and payments indicated in the banking documents are correct, cannot be accepted on the face value and hence the difference of ₹ 1.81 crores is added to the income of the Assessee Company as unexplained investment under the provisions of section 69 of the Act. Upon the assessee's appeal, the ld. CIT-A deleted the addition holding that the assessee might have further negotiated with the payees and settled for a lesser amount than that which was apparent from the seized material. He further observed that the assessing officer should have brought further material that assessee has paid the impugned sums from other sources. 27. Against the above order, the Revenue is in appeal before us. 28. We have heard both the counsel and perused the records. We find that documents incriminating in nature were found in the search. From the materials referred by the assessing officer here-in-above it was clear that a sum of ₹ 1.81 crores has been paid which has not been accounted for. The ld.CIT- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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