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TMI Blog2020 (7) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... account of unexplained foreign expenditure u/s 69C as discussed by the learned DCIT in Para No.11.4 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 3. That the addition of Rs. 40,00,000/- on account of voluntary disclosure u/s 132(4) against the cash received from Bansal Group for sale of shares of Ayushman Medical Diagnostic Pvt. Ltd. as discussed by the learned DCIT in Para No.20.9 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 4. That the addition of Rs. 4,50,000/- on account of undisclosed cash investment u/s 69B as discussed by the learned DCIT in Para No.14.4 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 5. That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 6. The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. IT(SS) No.161/Ind/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 9. The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. (b) Dr. Neeraj Gupta IT(SS) No.66/Ind/2017 Assessment Year 2006-07 1. That the assessment made u/s 153A r.w.s. 143(3) of the Income-Tax Act be held to be bad in law and on facts and be quashed. 2. That the addition of Rs. 13,00,000/- maintained and confirmed by CIT(A) made on the basis of Page No.122 of LPS-3 found from the office premises of Ayushman College be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 3.That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 4.The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. IT(SS) No.67/Ind/2017 Assessment Year 2011-12 1.That the assessment made u/s 153A r.w.s.143(3) of the Income-Tax Act be held to be bad in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 8. The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. 3. Since most of the issues raised and facts and circumstances raised are common, these appeals were heard together and are being disposed off by this common order for sake of convenience and brevity. 4. First we will take up IT(SS) No.64/Ind/2017 relating to the assessee namely Shri Ashok Gupta for Assessment Year 2011-12 and 2012-13. 5. Brief facts of the case as culled out from the records are that 3 Doctors namely Dr. Ashok Gupta, Dr. Neeraj Kumar Gupta and Dr. Gopal Batni were running hospital in the name of M/s. Ayushman Medical Diagnostic Pvt. Ltd (herein after called Ayushman). This hospital was sold to Bansal Group through its key person namely Shri Sunil Bansal. Search u/s 132 of the Act was conducted at the business and residential premises of Bansal Group on 02.06.2011. Since the appellant(s) were having business connection with the Bansal Group they were also subjected to search. Search action was carried out at the residential premises of all the 3 Doctors. During the course of search various documents and loose papers were seized. Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the addition of Rs. 75,000/- on account of unexplained foreign expenditure u/s 69C of the Act. Various incriminating material were found during the course of search showing that the assessee has carried out foreign travelling. After considering the submissions of the assessee, Ld. A.O made addition for unexplained expenditure at Rs. 75,000/- u/s 69C of the Act for the foreign travel to Thailand for two persons which took place on 30.11.2010 to 04.12.2010 observing as follows:- II. Vide reply dated 21.02.2014 assessee has stated that the above expenditure was neither recorded in his books of accounts nor in the books accounts of his family members. III. The assessee is also not having any confirmation regarding the claim of assessee that the above foreign trip was sponsored by other companies for attending medical conferences. IV. The assessee has not offered the above expenditure for taxation, during the filing of return u/s 139(1) of the IT Act, nor in response to notice u/s 153A. V. However, the assessee in his submission has admitted these amounts to be added as his undisclosed income. 11.4 In view of the above facts and circumstances of the case, it is est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in appeal vide IT(SS) No.59 to 63/Ind/2017 and in the order dated 24.10.2019 we have decided this issue observing as follows:- 15. We have heard rival contentions and perused the records placed before us. The common issue raised for 2007-08, 2008-09, 2009-10 and 2010-11 relates to addition of foreign tours expenditure of following amounts; Assessment Year Amount 2007-08 Rs. 68,763/- 2008-09 Rs. 1,12,500/- 2009-10 Rs. 1,50,000/- 2010-11 Rs. 72,737/- 16. The enquiry about the foreign tour expenses was initiated against the assessee during the course of search as foreign currency in US dollar and Thailand currency was found at the assessee's premises. Therefore this contention of the assessee that no incriminating material was found relating to this addition is uncalled for because possession of foreign currency itself shows that the assessee or his family members has undertaken some foreign tours and thus the nature and account of foreign tours needs to be explained by the assessee in case the same is not mentioned in the regular returns of income. Therefore the legal ground of the assessee does not stand and we proceed to deal with the merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 15. After perusing the above finding we find that for Assessment Year 2011-12 assessee has not requested for any relief in the written submission filed before Ld. CIT(A). The relief claimed for other years was only regard to wrong application of package rates for preceding years. Since for Assessment Year 2011-12 no relief has been requested by the assessee himself as there is no difference in the expenditure incurred at the time of visit and the package rates. We thus find no merit in Ground No.2 raised by the assessee and the same deserves to be dismissed. We accordingly dismiss Ground No.2 raised by the assessee in IT(SS) No.64/Ind/2017 relating to Assessment Year 2011-12. 16. Now we will take Ground No.4 of IT(SS) No.64/Ind/2017 for Assessment Year 2011-12 which reads as follows; That the addition of Rs. 4,50,000/- on account of undisclosed cash investment u/s 69B as discussed by the learned DCIT in Para No.14.4 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 17. Brief facts relating to this ground are that during the course of search carried out at the residential premises of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions recorded in this loose paper pertain to the assessee and the content of these transactions is true. 19. Aggrieved assessee preferred appeal before Ld. CIT(A) but could not succeed since the addition made by the Ld. A.O was confirmed by Ld. CIT(A) observing as follows:- I have perused the submissions of the learned AR, the various decision cited, and the assessment order. The claim of the assessee cannot be accepted because no material evidence to substantiate it has been filed either before the A.O or at the appellate stage. The two cheques of Rs. 2,00,000/- and Rs. 2,50,000/- signed by Shri Shardendu Kumar Mishra (Prop M/s Universal Agro farms) and drawn on Standard Chartered Bank, MP Nagar, Bhopal. Both the cheques do not bear any date or name of the person in whose favour the cheques have been drawn. The appellant stated that his wife Smt Alka Gupta had purchawed a plot situated at Gram Borda, Kolar road, Bhopal from Shri Shardendu Mishra on 07.06.2010 and as the mutation of this plot was not done, these cheques were kept as a security till the legal formalities were completed. The plea of the appellant cannot be accepted because even if the cheques were ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Shardendu Kumar Mishra. On the other hand the submissions made by the assessee has more strength since it is supported by documentary evidence. Two plots were purchased by the assessee's wife and his father in law by registered deed dated 13.6.2010. The mutation was pending for these two plots and the two cheques were kept as security from Universal Agro Farm. Apparently revenue authorities have failed to prove any live connection between the assessee and Universal Agro Farm relating to the two cheques found during the course of search. Whereas the documentary evidence filed by the assessee clarifies the transactions. No other efforts were made by the revenue authorities to confront Shri Shardendu Kumar Mishra. 24. In the given facts and circumstances of the case, we find no justification in the action of the Ld. A.O making the addition of unexplained cash investment of Rs. 4,50,000/- since the addition made by the Ld. A.O seems to be made merely on the suspicion and surmises. We accordingly set aside the finding of Ld. CIT(A) and delete the addition of Rs. 4,50,000/- made u/s 69B of the Act and allow Ground No.4 of the assessee's appeal IT(SS) No. 64/Ind/2017 for Assessment Yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of. Dr: Akhil Kumar was also recorded by the authorised Officer was on 04-07--2011. Copy of this statement is with you. 1n his statement Dr. Akhil Kumar has admitted and has explained the circumstances under which the aforesaid dollars were kept at the residence of the assessee. Dr. Akhil K'umar has also explained his Sources of income and the fact that he is employed in Saudi Arabia. He has also referred to AI-Raj hi Bank of Saudi Arabia from which he had withdrawn the dollars. Copy of Bank a/c of Dr. Akhil Kumar is enclosed. You may kindly appreciate the fact that at the time of search on 02-06-2011 the assessee was away in USA. If the dollars 'would have belonged to the assessee he would have taken the same along with him to USA. b. The Cash Rs. 2 Lacs found and seized from Locker No.S-2/23 at State Bank 0f India, Arera Colony, Bhopal belongs to the assessee and was received by him from the Bansal Group. The cash-flow statement for F.Y. 2011-12 covers this cash found and seized. c. The Cash Rs. 9 Lacs found and seized from Locker No. 143 at Kotak Mahindra Bank MP. Nagar, Bhopal belongs to the assessee and was received by him from the Bansal Group. The ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey vas held to be unexplained money u/s 69A of the Act. Similarly the Kerala High Court in the case of CIT vs B Rajashekharan !lair (329 ITR 123) wherein the Hon'ble Court rejected the explanation on the source of cash and therefore held it to be unexplained money u/s 69A of the Act. 31. Aggrieved assessee preferred appeal before Ld. CIT(A) and partly succeeded getting relief of Rs. 133/- and the remaining addition of Rs. 16,26,897/- was confirmed observing as follows:- I have perused the submissions of the learned AR, and the assessment order. The appellant assessee has not been able to explain source of cash and foreign currency found during the search. The cash of Rs. 16,27,030/- could not be tallied with the books. The cash amounting to Rs. 2,00,000/- and Rs. 9,00,000/- has been found from the two lockers. Cash kept in locker points to the fact that it is unaccounted and not recorded in the books. For safety reasons the cash can be deposited in bank account from where it can be utilized as and when needed. The plea taken by the assessee that cash of Rs. 2,00,000/- & Rs. 9,OO,OOO/- for F Y 2011-12 was received from Bansal Group but has not been recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount from Saudi. The copy of the certificate from the bank was also filed. The son-in-law is settled in USA and the amount of $5000 was kept to be paid to the daughter for taking the same to USA. The Thailand Baht were worth Rs. 133/- and were kept as a souvenir. 34. Ld. Counsel for the assessee also submitted that the Ld.AO did not accept the explanation of the assessee and has made the addition and even did not mention in the order that the statement of Dr. Akhil Kumar was taken in which he has clearly given all the facts (Page 44 to 49 of PB A-4). The additions made are unwarranted for and hence deserve to be deleted. 35. Per contra Ld. Departmental Representative vehemently argued supported the orders of both the lower authorities. 36. We have heard rival contentions and perused the records placed before us and gone through the submission made by the assessee. 37. Through this Ground No.2 assessee has challenged the finding of Ld. CIT(A) confirming the addition for unexplained cash and foreign currency at Rs. 16,26,897/-. This addition made u/s 69A constitutes two amounts one is cash seized by the Income Tax Department at Rs. 13,65,030/- and the remaining amount is the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained and in the cash flow statement also the amount seized by the Income Tax Department has been considered. Since the revenue authorities have failed to challenge the correctness of the cash flow statement and were merely questioning that why the cash was kept in locker and not deposited in bank are not good ground to make addition for unexplained cash in the hands of the assessee. 39. We therefore in the given facts and circumstances of the case are of considered view that since assessee has successfully explained the source of cash found during the course of search, addition for unexplained income u/s 69A at Rs. 13,65,030/- of the Act deserves to be deleted. We accordingly set aside the findings of Ld. CIT(A) and delete the addition of Rs. 16,26,827/- and allow Ground No.2 raised by the assessee in IT(SS) No.161/Ind/2017 for Assessment Year 2012-13. 40. Now we take up Ground No.3 for Assessment Year 2012-13 which reads as follows:- 3.That the addition of Rs. 1 ,40,914/- on account of voluntary disclosure u/s 132(4) as discussed by the learned DCIT in Para No.19.6 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial evidences as to why only-Rs. 33,39,086/- has been offered as additional income in returns filed u/s 153A where as he had voluntarily admitted Rs. 35,00,000/- as undisclosed income. No evidence was filed either at assessment stage or at the appellate stage. In view of the above discussion and lack of material evidences I do not find any reason to interfere with the A.Os order and addition of Rs. 1,40,914/- u/s 132(4) for A.Y 2012-13 is confirmed. 42. Now the assessee is in appeal before the Tribunal against the finding of Ld. CIT(A) confirming the addition of Rs. 1,40,914/-. 43. Ld. Counsel for the assessee referred to the following written submission :- Ground No. 3: Addition of Rs. 1,40,914/- being the difference between the declared income of Rs. 35,00,000/- u/s 132(4) and the actual declaration - The Ld. AO has made this addition at Page 28, Para 19.5 on the ground that the assessee has offered the income of Rs. 35,00,000/- U/S 132(4). However, he has declared only Rs. 33,39,086/- during the various years and as such this income is taxed on the basis of the declaration. It is humbly submitted that the total declaration out of the professional receipts and other sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 14-15 of paper book PB A-4. There is no evidence placed on record to show that unaccounted professional receipts which assessee failed to offer in the previous years has been offered to tax as surrendered amount so as to cover up the undisclosed gold and diamond jewellery and paid income from other source which the assessee failed to offer in the earlier years. In this situation the statement given under oath u/s 132(4) of the Act is a perfect documentary evidence because the amount surrendered is not linked to any material evidence found during the course of search on the basis of which the income could have been computed and the assessee has himself honoured the surrender made during search. We are thus of the considered view that the assessee was required to honour the surrendered income and offered it to tax in the Income Tax return. Though the difference is of Rs. 1,69,014/- but since the addition in challenge is only Rs. 1,40,914/- we confirm the same and dismiss assessee's Ground No.3. The finding of Ld. CIT(A) stands confirmed and Ground No.3 of the assessee is dismissed. 48. Now we take up Ground No.6 of IT(SS) No.161/Ind/2017 for Assessment Year 2012-13 which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31,51,100/- vide sale deed dated 22-12-2010. Out of the aforesaid sale consideration received by them they kept Rs. 13 lacs with Mrs. Allza Gupta to buy some suitable property for them in Bhopal. The amount of Rs. 13 lacs was utilized in the purchase of following properties for Smt. Sudha Jain and Shri Bharat Jain:- . a. Duplex house Situated at Surva Dharma Colony, Bhopal from Mr. Sanjay Jain for total cost of Rs. 10,19,300/- vide registered deed dated 31-12-2009. b. Plot at Gram Borda, Kolar Read, Bhopal from Mr. Shrdendu Kumar Mishra for total cost of Rs. 5,20,4251- vide registered deed dated 15-07- 2010. Copy of aforesaid all purchase and sale deeds are enclosed. 51. The submission of the assessee were considered by the Ld. A.O but not acceptable to him and made addition of Rs. 13,00,000/- as undisclosed income. 52. Against the addition of Rs. 13,00,000/- assessee preferred appeal before Ld. CIT (A) but failed to succeed. Action of the Ld. A.O was confirmed by Ld. CIT(A) observing as follows:- "The plea taken by the assessee that the sum Rs. 13,00,000/- belongs to Smt. Sudha Jain and Shri Bharat Jain being sale consideration of different properties sold by them and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions and perused the records placed before us. Through Ground No.6 assessee has challenged the finding of Ld. CIT(A) confirming the action of Ld. A.O on making addition of Rs. 13,00,000/- towards undisclosed income arising out of the loose paper bearing No. 9 & 10 of the seized diary as per Annexure A-I/1. We observe that in he seized loose paper No. 9 & 10 Annexure A-I/1 and page 151 of the paper book A-4 various types of figures are mentioned. Some are striked off and some are in the shape of account and it has some details of expenses. On the sheet figure of Rs. 13,00,000/- which is appearing which the basis of the addition made by the Ld. A.O treating it as undisclosed income. Ld. Counsel for the assessee has submitted that this loose paper is not signed by anyone and not containing the name of the assessee. The transaction appearing in the loose paper are claimed to be some details of expenditure/investment made by assessee's wife Mrs. Alka Gupta on behalf of her parents i.e. Shri Bharat Jain and Smt. Sudha Jain. After going through the paper book and various documents including the affidavit of Smt. Sudha Jain placed at page 88-89 and copy of sale deed of agriculture l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie no addition is called for in the hands of the assessee. Even otherwise sufficient material have been placed on record to explain the rough jottings in the loose sheet which are basically the cash amount advanced to assessee's wife from her parents to be spend for purchase/maintenance of duplex/house at Bhopal and Smt. Alka Gupta maintained the details on behalf of her parents. In this given facts and circumstances of the case no addition was called for by the Ld.A.O in the hands of the assessee for undisclosed income of Rs. 13,00,000/- based on the loose paper appearing in page no.9 & 10 Annexure A-I/1 seized during the course of search. Thus we set aside the findings of Ld. CIT(A) and delete the addition of Rs. 13,00,000/- and allow Ground No.6 raised in appeal No. IT(SS) 161/Ind/2017 for Assessment Year 2012-13. 58. Now we take up Ground No.7 of appeal No. IT(SS) 161/Ind/2017 for Assessment Year 2012-13 which reads as under:- 7.That the addition of Rs. 1,86,478/- maintained and confirmed by CIT(A) on account of short-term capital gain u/s 50C by adopting cost of acquisition at Rs. 59,76,625/- in place of Rs. 61,23,103/- as discussed by the learned DCIT in Para No.17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion at Rs. 61,23,103/- whereas the A.O has taken cost of acquisition at Rs. 59,76,625/-. The cost of acquisition as taken by A.O at Rs. 59,76,625/-is confirmed. The ground of appeal is partly allowed. 60. Now the assessee is in appeal before the Tribunal. 61. Ld. Counsel for the assessee referred to the following written submissions:- Ground No. 7 (Page 90 to 125 of PB A-4}: Addition of Rs.l,86,478/- on account of Short Term Capital Gains _ The Ld. AO has made this addition of Rs. 12,17,773 at Page 22, Para 17 on the ground that the assessee has gained this income on account of sale of plot at Manipuram Colony, Bhopal. Complete details were filed before him. The Ld. AO did not consider the registration expenses and brokerage incurred by the assessee on purchase and sale of this plot. The Ld. CIT(A) has deleted the addition of Rs.l0,31 ,295/- at Page 71 of the order. However, the Ld. CIT(A) did not consider the transfer charges of Rs.l,08,073/- paid to the society and MC charges of Rs. 11,030/- paid to the bank for drafts prepared and Rs. 23,000/- paid to the advocates. The details have been given at Page 70 of the Ld. CIT(A)'s order. It is humbly submitted that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Year 2012-13 difference of Rs. 4,46,086/- was treated as unexplained investment and addition made u/s 69B of the Act. Against the addition made by the Ld. A.O at Rs. 4,46,086/- u/s 69B of the Act, the appeal preferred by the assessee before Ld. CIT(A) did not brought any relief and addition was confirmed by the Ld. CIT(A) observing as follows:- "1 have considered the facts of the case, submissions of the learned A.R., the assessment order and perused the case record. The submission of me appellant assessee that the investment in the renovation of clinic is only of Rs.l,75,500/J as against Rs. 6,21,586/J estimated by the DVO has no merit. The plea taken that the clinic portion existed at the time of purchase of property from shri Devdendra kumar Singh who was a practicing surgeon and residing in the same house does not show that the investment as estimated by the D.V.O is incorrect. The copy of the map of the house med by the appellant only shows that the clinic portion existed at the time of purchase of the house, it does not give any detail as to the quality of construction and renovation done. The renovation was done later and the estimate made by the D.V.O is in order. No evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (In short 'DVO') wrongly valued the renovated portion of the whole building of 191 Sq. Meter as on the date of inspection and enhanced the valuation. It was further claimed on behalf of the assessee that the DVO should have valued the renovated portion of the building for false ceiling and change of flooring. On the other hand Ld. CIT(A) has given in his finding that in the copy of map of the house only clinic portion existed at the time of purchase and assessee did not give any details of quality of construction and renovation. 70. We however on perusal of the purchase deed of the said house placed at Page 153 to 186 find that at the time of purchase of the property on 30.04.2003 there stood constructed house with ground floor measuring 204.46 sq.m, first floor 46.67 sq.m and second floor 49.72 sq.m. Page No.3 of the deed further reads that seller built the house on the said plot of land after taking permission from Bhopal Municipal Corporation on 13.7.88. So the finding of Ld. CIT(A) only clinic was constructed and there was no other construction at the time of purchase of the house do not have any merit. The DVO has estimated the total valuation of the renovation of the house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agnostic Pvt. Ltd found during the course of search and the cash sum received from the buyers and admitted during the course of search is being dealt here and the finding shall be applied while adjudicating the grounds raised on this common issue in the case of Dr. Neeraj Kumar in the Appeals No. IT(SS) No.67/Ind/2017 and IT(SS) No.162/Ind/2017 to be dealt in the subsequent paras. 73. Brief facts relating to Ground No.3 for Assessment Year 2011- 12, Ground No. 4 & 5 for Assessment Year 2012-13 are that during the course of search loose papers and documents were found and seized from the office premises at HIG-3, Lake View Apartment, Shahpura, Bhopal referred as Page No.30 of LPS-6 conducted on 2.6.2011. The said paper is the Memorandum of Understanding (In short MOU) entered into between the Directors of Ayushman Diagnostics Pvt. Ltd (AMDPL) and the representative of Bansal Group regarding transfer of 100% equity shares of the said company. This MOU was executed on 24.10.10 and referes to the gross consideration of Rs. 26.75 crores from which the liabilities of the company were to be adjusted. In consequence of this MOU the share purchase agreements were later executed on 13.8.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has not offered any satisfactory explanation why the amount of Rs. 1,85,00,000/- was not shown in the books of accounts. Similar type of addition were also made in the case of Dr. Neeraj Kumar at Rs. 90 lakhs and Rs. 55 lakhs for cash received during Assessment Year 2011-12 and 2012-13 and also addition of Rs. 2,80,00,000/- in Assessment Year 2012-13 for the amount receivable after the date of search i.e. 02.06.2011. Against the additions made in the hands of Dr. Ashok Gupta for Assessment Year 2011-12 and 2012-13 with regard to the amount received on account of MOU, assessee preferred appeal before Ld. CIT(A) but did not find any favour. Before Ld. CIT(A) it was submitted by the Ld. Counsel for the assessee that there is no dispute with regard to the consideration received in cash and cheque but since due to certain disputes with M/s Wockhard Hospital Ltd due to which the deal with Bansal Group came to a halt and finally after the arbitration award when the matter was settled, equity shares were transferred. In the submission before Ld. CIT(A) it was made clear that total consideration received in cash and cheque has been shown as sale consideration of the equity shares sold by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings Dr. Gopal Batni & Dr. Neeraj Kumar accepted as under: S.No. Name of the Director A.Ys & period Amount 1 Dr. Gopal Batni A.Y. 2011-12 (25/10/2010 to 31/12/2010) A.Y. 2012-13 (April &May 2011) Rs. 90,00,000/- Rs. 50,00,000/- 2 Dr. Neeraj Kumar A.Y. 2011-12 (25/10/2010 to 31/12/2010) A.Y. 2012-13 (April &May 2011) Rs. 90,00,000/- Rs. 55,00,000/- The above details show that Dr. Gopal batni and Dr. Neeraj Kumar have accepted to have received an amount totaling to Rs. I.8 crores for A.Y. 2011-12 and RsJ 1.05 crores for A.Y 2012 -13 respectively. Therefore, balance amount of RsJ 40,00,000/- for AY 2011-12 and Rs. 1.75 crores for AY 2012-13 have been received by Dr. Ashok Gupta. 'Ihe above version has also been corroborated by the statement recorded u/s 132(4) during search. The said amount totaling to Rs. 2.15 crores was also voluntarily disclosed u/s 132(4). l1owever, no tax have been paid on the said amount. 8.2 In view of the above, the submission of the appellant that the entire amount of RsJ 2.15 crores has been received in AY 2012-13 is not acceptable. The addition of Rs. 40,00,000/- for AY 2011-12 and RsJ 1.75 crores fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous doctor. While making a statement, it was not expected of a person highly educated and highly placed in the society to make a statement without realising its implications. It was also found that there was no allegation of coercion or pressure for making a statement by him at the time of search and this allegation had also not been made before the Assessing Officer". The appellant assessee is 'highly educated' and 'highly placed in society'. Once the appellant assessee has accepted receipt of money at the time of search and the retraction is not based upon sound reasoning and corroborative evidence, mere denial is not enough. In retraction of surrender burden of proof is on the person retracting and hence, the onus is on him and not on the department. In view of the above, the submission of the appellant that the entire amount of Rs. 2.15 crores having been received in A.Y. 2012-13 is not acceptable and the stand taken by A.O to hold the disclosure made by the appellant assessee as bona fide and addition of Rs. 40,00,000/- in A.Y. 2011-12 and Rs. 1,75,00,000/- & Rs. 1,85,00,000/- in A.Y 2012-13 are confirmed. 74. Aggrieved assessee is now in appeal before the Tribunal. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any further investments because of their financial constraints and marketability. During this period Wockhardt sold nearly ten hospitals which were run by them. M/s Ayushman requested Wockhardt and tried to persuade them to takeover the management and further invest the money but M/s Wockhardt continuously avoided for making any investments. Since M/s Ayushman had obtained a huge loan, it was very difficult to manage the hospital with the interest burden thereon and the responsibility of repaying the loan. Up to 31 st of March 2011 the liability for paying interest rose up to 246 lacs and other expenses capitalized were up to 100 lacs. Because of financial stringency the hospital was practically closed in the beginning of the year 2010. M/s Wockhardt wanted to modify the original agreement and enter into a fresh agreement but the parties could not come to the consensus on any of the terms. On account of distress condition, M/s Ayushman decided to transfer the management and accordingly entered into an MOU with Bansal Group of Business. The MOU dated 24.10.2010 clearly provided that the payment to the erstwhile directors (Sellers) would be of Rs. 13.50 crores against the sale of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under 2006-07 2007-08 2008-09 2009-10 2010-11 Profit 16.3Olakhs Pg.124 22.491akhs Pg.138 26.531akhs Pg.153 30.821akhs Pg.174 5.741akhs loss Pg.190 Interest Capitalized - 10.891akhs Pg.143 76.731akhs Pg. 158 1591akhs Pg.178 2461akhs Pg. 195 v. 24/10/2010 - Memorandum of understanding with Bansal group regarding transfer of shares for a total consideration of Rs. 13.5 crores. Total amount of takeover including liabilities is Rs. 26.75 crores. (Pg. 1 of PB) vi. 01/12/2010 - The working of the hospital was practically stopped because of financial constrain, renovation of building and for changing the management. (Pg. 190 & 2010 of PB) vii. 03/01/2011 - The Wockhardt filed petition for possession of property and injunction before the District Judge. viii 14/02/2011 - The petition of Wockhardt was dismissed by the District Judge. (Pg. 76 of PB). ix. 07/03/2011 - Wockhardt filed the appeal before the Hon'ble High Court for arbitration. (Pg. 86 of PB). x. 28/06/2011 - The Hon'ble High Court appointed arbitrator (Pg. 1 04 of PB) and subsequently changed the arbitrator (Pg.109 0f PB). xi. 08/02/2012 - The consent arbitration award (Pg. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal grounds and on pure surmises are totally illegal and bad in law. The MOU clearly demonstrates that an amount of Rs. 13.5 crores would be paid as a consideration against the sale of shares. The said amount has been offered as a capital gain in the respective hands of the directors when the shares were actually transferred III the name of the Bansal Group. In the statements recorded u/ s 13 2( 4), all the directors have clearly stated that the amounts have been received in advance as a sale consideration. Under no circumstances the advance received can be taxed. The said amount is already offered and has been taxed for AY 2013-14 when the shares were actually transferred. It is a fact that during the course of the statement the assessee clearly stated that it is an advance received against the sale of shares, and they are declaring it as undisclosed income. The word 'undisclosed' was not correct. The directors meant that it is an 'undeclared' income and would be disclosed as income and accordingly after the transfer of shares the consideration has been shown as capital gains and has also been taxed treating the amount as a consideration received against the sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at HIG-3, Lake View Apartment, Shahpura, Bhopal. This MOU was compiled by the Department as Pg. No. 30 of LPS-6 and copy of which is available on Pg, No, 29 of the assessment order. It was submitted by the assessee before the AO that this paper is MOU reached between the Directors of AMDPL and the representatives of Bansal Group regarding transfer of 100 equity shares of AMDPL. This MOU refers to the Gross Consideration of Rs. 26.75 crores from which the liabilities of the said company were to be adjusted. In consequence of this MOU, the share purchase agreement was later executed on 13-08- 2012 and the equity shares were finally transferred to the Bansal Group on 14-08-2012. Copy of share purchase agreement dated 13-08- 2012 was placed by the assessee on record of the learned AD. This share purchase agreement refers to the MOU dated 24-10-2010 and accordingly the shareholders of AMOPL received following amounts against the transfer of their shares to the Bansal Group: Name of Shareholder No. Of shares held Amount received Dr. Ashok Gupta 71135 4,05,46,950 Mrs. Alka Gupta (w/o Dr. Ashok Gupta) 700 3,99,000 Dr. Gopal Batni 71835 4,09,45,950 Dr. Niraj Kumar 70640 4,02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,00,000 During the course of search Dr. Ashok Gupta, Dr. Gopal Batni and Dr. Niraj Kumar all accepted having received the aforesaid amounts in Cash from the Bansal Group as Advance against the sale of their respective shareholding in AMDPL. The Department also accepts this fact and there is no dispute that the cash was received as Advance against the transaction for transfer of equity shares in AMDPL to the Bansal Group members. The learned AO also does not disputes the fact that out of total Rs. 5 crores received by the aforesaid 3 persons, the cash amount received by the assessee was Rs. 2,15,00,000/-. The learned AO has presumed that out of the total amount of Rs. 2,15,00,000/- Dr. Ashok Gupta received Rs. 40,00,000/- in FY 2010-11 and Rs.-1,75,00,000/- in FY 2011-12. The learned AO has based his presumption on Pg. No. 3 & 4 of LPS-4/2 seized from the Business Premises of Bansal Group located at 3rd Floor, Tava Complex, Bittan Market, Bhopal. Copy of these seized documents were not provided to the assessee and no query regarding the same was put to the assessee for explanation. Scanned image of these seized papers are available on Pg. No. 32 of the assessment order. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumably receivable by the assessee from Bansal Group against the sale of 71135 nos. equity shares held by the assessee in AMDPL. As already submitted by the assessee in Ground No. - 3 above the total sale consideration of 71135 nos. equity shares was Rs. 4,05,46,950/- out of which only Rs. 215 lakhs had been received by the assessee in cash. The remaining amount was received through cheques. No amount over and above the said amount of Rs. 4,05,46,950/- was either received or was receivable. No evidence to support the presumption made by the learned AO was found during the course of search. The learned Aa has presumed that since the amount of Rs. 5 crores had been received by the assessee, Dr. Gopal Batni and Dr. Niraj Kumar in cash therefore the remaining amount of Rs. 7.50 crores was also receivable by the said persons in cash out of which the share of the appellant was Rs. 185 lakhs. On the basis of said presumption the learned AO has made the addition ofRs. 185 lakhs in the income of the appellant for AY 2012-13. The cheque payments received against the sale of equity shares have totally been ignored. This addition being entirely based on presumptions and surmises and being d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Diagnostic Pvt. Ltd in the year 1995. Dr. Neeraj Kumar further joined the company and three were running the company under the above name. During Financial Year 2006-07 AMDPL entered into an agreement with Wockhardt Hospital Ltd, Mumbai (In short 'WHL'), on 10.07.2006. As per the agreement against the consideration to be received from WHL, M/s AMDPL took up the work of civil construction of various parts of hospital. AMDPL invested the amount during the Financial Year 2007-08 and 2008- 09 for construction of building and acquisition of equipments. M/s WHL initially invested Rs. 4 crores subsequently backed out for any further investment. As stated by Ld. Counsel for the assessee M/s AMDPL after securing loans from Madhya Pradesh Financial Corporation invested approximately about 8.17 crores during Financial Year 2007-08 and 2008-09. When M/s AMDPL tried to persuade WHL to take up the management and further invest the money, some disputes arises between the two. Because of these financial stringencies the hospital was broadly closed in the beginning of Financial Year 2009-10. M/s WHL wanted to modify the agreement and enter into a fresh agreement but the parties could not came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the unaccounted investment is claimed to have been offered to tax by the Bansal Group. During the course of assessment proceedings and subsequent to search carried out u/s 153A r.w.s. 143(3) of the Act (which was completed on 14.3.2014) when the Ld. A.O confronted the assessee with the MOU, complete details were filed by the assessee regarding the amount received from Bansal Group in cash as well as cheque which totalled to Rs. 12,28,37,850/- received by the share holders against the number of shares held in the following manner :- Name of Shareholder No. Of shares held Amount received Dr. Ashok Gupta 71135 4,05,46,950 Mrs. Alka Gupta (w/o Dr. Ashok Gupta) 700 3,99,000 Dr. Gopal Batni 71835 4,09,45,950 Dr. Niraj Kumar 70640 4,02,64,800 Mrs. Charu Kumar (w/o Dr. Niraj Kumar) 1195 6,81,150 Total 215505 12.28,37,850 82. The above sum of Rs. 12,28,37,850/- includes the cash sum of Rs. 5 crores received by the three Directors discussed above. The Ld. A.O was of the view that the amount should have been offered to tax as and when they have been received. In other words in the case of the assessee Rs. 40 lakhs and Rs. 1.85 crores should have been offered to tax dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here remains no dispute about the cash and cheque amount received by the assessee on account of the MOU entered into between M/s AMDPL and Bansal Group. However it seems that both the lower authorities have only taken note of the amount of cash or cheque received by the assessee as per MOU but they have not dealt the amounts received as part of the transaction of sale of equity shares. As per the audited Balance Sheet of Financial Year 2006-07 placed at Page 122 to 133 of M/s. AMDPL paid up capital was Rs. 26,54,800/- against 126548 equity shares allotted. As on 31.03.2009 as per the audited Balance Sheet of M/s. AMDPL 213448 equity shares were issued for paid up capital of Rs. 2,13,44,800/- against the authorised share capital of Rs. 2,25,00,000/-for 22500000 of equity shares of Rs. 100/- each. When the deal was struck between M/s. AMDPL and Bansal Group 215505 equity shares were held by the Directors and their family members for which total consideration of Rs. 12,28,37,850/- was received. Ld. A.O has only dealt with the amount of cash/cheque but has not dealt with the complete transaction with the sale of shares. The assessee is entitled to deduction of indexed cost of acquisiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into between M/s. AMDPL and Bansal Group. Therefore all the amounts received by all the Directors or share holders were merely in the shape of an advance and in case of contrary outcome between M/s AMDPL and M/s WHL the sale of shares could not be completed. In the instant case transaction of sale of equity shares of M/s AMDPL held by assessee falls in the category of transfer provided in Section 45(1) of the Act which reads as follows:- Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections 54, 54B, 54D, 54E, 54F, 54G and 54H, be chargeable to income- tax under the head" Capital gains", and shall be deemed to be the income of the previous year in which the transfer took place. The Exceptions provided in Sub Section 2 to (6) of Section 45 do not apply to the issued involved in case of assessee. Therefore since the transfer of equity shares was effected during Financial Year 2012-13 i.e. on 14.08.2012, the Long Term Capital Gain for sale of equity shares of M/s. AMDPL held by shareholder is taxable in Assessment Year 2013-14 only. 87. In our considered view all the amount received by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 12,28,37,850/- towards sale of equity shares held in AMDPL by the three Directors including the assessee have been offered to tax and have been assessed u/s 143(3) of the Act. 91. One more fact brought to our notice that the alleged cash of Rs. 5 crores paid by Bansal Group to the 3 Directors have also been offered to tax during Assessment Years 2011-12 and 2012-13 by the Bansal family. Ld. Counsel for the assessee as Officer in Court has given this information in writing along with the certificate issued by Shri Anil Bansal wherein information about the name of the assessee, PAN Number, Assessment Year and the amount surrendered and offered to tax has been mentioned. It specifically shows that tax and surrendered income of Rs. 5 crores has been paid and the issue is not contested in appeal before CIT(A) and ITAT. 92. Therefore in the given facts and circumstances of the case we come to the conclusion that the amounts received for sale of equity shares by the share holders as per the MOU dated 24.10.2010 which was seized during the search appearing in page 30 of LPS-6 has been offered to tax by respective share holders in their regular Income Tax Return for Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal for Assessment Year 2006-07 wherein four grounds of appeal have been raised which reads as follows:- 1.That the assessment made u/s 153A r.w.s. 143(3) of the Income-Tax Act be held to be bad in law and on facts and be quashed. 2. That the addition of Rs. 13,OO,OOO/- maintained and confirmed by CIT(A) made on the basis of Page No.122 of LPS-3 found from the office premises of Ayushman College be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 3.That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 4.The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. 96. At the outset Ld. Counsel for the assessee requested for not pressing Ground No.1 challenging the validity of the assessment made u/s 153A r.w.s. 143(3) of the Act. Since Ground No.1 has not been pressed the same stands dismissed as not pressed. 97. Apropos Ground No.2 relating to the addition of Rs. 13,00,000/- made on the basis of Page No.122 of LPS-3 found from the office premises of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 122. The said paper is a calculation of investments made by the group directors in the case of the Company. It also indicates the dividends of Rs. 3,40,600/- being declared to the director. The Ld. AO has remarked in Para 13.3 that the assessee has not submitted any evidence to substantiate its claims about the share investments and also the dividends received. He further observed that the assessee has received cash and dividend of Rs. 16,40,600/- and would be added as the income of the assessee on account of undisclosed cash receipts for AY 2006-07. The Ld. CIT(A) has deleted the addition of Rs. 3,40,600/- after verification that the dividends have been declared and shown in the return for AY 2005-06. It is humbly submitted that all the payments are entered in the books of M/s Ayushman and as such it cannot be treated as undisclosed income of the assessee. It is further submitted that the additions have been made on the basis of loose papers LPS 3 Page 122. The paper will have to be read as a whole and conclusions should be drawn on the basis of the entries on the paper. The paper clearly states the amounts prior to 31.3.2005 and as such they cannot be taxed for AY 2006-07 as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and in the circumstances of the case and be quashed and deleted. 3. That the addition of Rs. 1,52,000/- made on the basis of Page No.61 of BS-1 found from the office premises of Ayushman College be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 4. That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 5.The appellant craves leave to add or amend any ground of appeal before or during the Course of hearing of the case. 107. At the outset Ld. Counsel for the assessee requested for not pressing Ground No.1 challenging the validity of the assessment made u/s 153A r.w.s. 143(3) of the Act. Since Ground No.1 has not been pressed the same stands dismissed as not pressed. 108. Apropos Ground No.2 is addition of Rs. 90,00,000/- on account of page-30 of LPS-6 relating to advance received from Bansal group as part of the deal mentioned in MOU dated 24.10.2010. This issue has already been decided by us in the preceding paras71-92 in the case of Dr. Ashok Gupta while deciding Ground No.3 for Assessment Year 2011-12 and G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the assessee. Therefore, in view of provisions of section 132 (4A) of the Income tax Act, 1961, it is presumed that the transactions recorded in this loose paper pertain to the assessee and the content of these transactions is true. v. The explanation offered by the assessee has not been supported with any documentary evidence. 14.4 In view of the above facts and circumstances of the case, it is established and held that the assessee has received cash of Rs. 1,52,000/- from Shri Bharat Patel, which was not recorded in the books of accounts. Therefore, the amount of Rs. 1,52,000/- is added to the total income of assessee on account of unexplained cash received for A.Y 2011-12. 110. Aggrieved assessee preferred appeal before Ld. CIT(A) but failed to succeed since the finding of Ld. A.O was confirmed observing as follows :- 1 have considered the submissions of the learned AR, the assessment order and also perused the case record. The submissions of the learned AR that Rs .1,50,000/- have been paid to Smt Bbarti Patel through cheque Cb.No.0374599 drawn on his SB A/e No.00621000007489 with HDFC Bank for acquiring 1000 Nos. equity shares of Ayushman Medical Diagnostics Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and as such no addition can be made on this account. It is therefore prayed that the additions may please be deleted. 112. Per contra Ld. Departmental Representative vehemently argued supported the order of both the lower authorities. 113. We have heard rival contentions and perused the records placed before us. The addition of Rs. 1,52,000/- is challenged before us made by the Ld. A.O on the basis of Page No.61 of diary BS-1. The copy of the sheet is placed by the assessee at PB/B-2 of paper book dated 14.06.2017. On perusal of the sheet the details of the transaction which reads that the cash received against Rs. 1,50,000/- paid to Smt. Bharati Patel for share of AMDPL following amount on various dates have been paid :- Date Amount 10.09.2010 Rs. 30,000/- 18.09.2010 Rs. 30,000/- 21.09.2010 Rs. 50,000/- 25.09.2010 Rs. 40,000/- Total Rs. 1,50,000/- 114. To explain the above entries assessee has made the submission that the actual transaction do not took place with Mr. Bharat Patel but it was with Smt. Bharati Patel which was in connection with purchase of 1000 equity shares of AMDPL. Payment were made through cheques. It was also added in the assessee's submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 7.That the addition of Rs. 21, 16,800/- made as per Para No.12.9 of the assessment order be held to be bad and unjustified on the facts and in the circumstances of the case and be quashed and deleted. 8. That in the alternative and without prejudice to the Grounds stated above the additions made be held to be highly unreasonable and excessive and be reduced. 9.The appellant craves leave to add or amend any ground of appeal before or during the course of hearing of the case. 118. At the outset Ld. Counsel for the assessee requested for not pressing Ground No.1 challenging the validity of the assessment made u/s 153A r.w.s. 143(3) of the Act. Since Ground No.1 has not been pressed the same stands dismissed as not pressed. 119. Apropos Ground No.2 for the addition of unexplained cash of Rs. 1,93,040/- which was found at the assessee's residential premises the explanation given by the assessee were not accepted by the Ld. A.O and addition u/s 69A of the Act was made. Assessee's appeal against the addition ofRs. 1,94,340/- was partly allowed since Ld. CIT(A) deleted the addition of Rs. 1300/- and confirmed the remaining addition observing as follows:- I have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he addition of Rs. 1,93,040/- is in dispute which relates to cash found at the residential premise and addition was made for not explaining the source of cash. We however in the instant case have discussed the facts in the preceding paras. The assessee had received cash of Rs. 90,00,000/- and Rs. 55,00,000/- from Bansal Group during Financial Year 2010-11 and during April and May2011 i.e. before the date of search. Thus the source of cash is duly explained with the facts emerging from records. We therefore are of the considered view that addition of Rs. 1,93,040/- needs to be deleted and we accordingly order so and set aside the finding of Ld. CIT(A) and allow Ground No.2 raised by the assessee in IT(SAS)No.162/Ind/2017. 124. Apropos Ground No.3 & 4 for the addition of Rs. 55,00,000/- and Rs. 2,80,00,000/- we find that this issue was common in the case of Dr. Ashok Gupta also which has been adjudicated in the preceding paras wherein we have decided that addition made by the Ld. A.O for the advance sum received against sale of shares was to be taxed in the year when shares have been transferred i.e. in the Assessment Year 2013-14 and since total consideration received by the share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Ground No. 5 (Page 12 to 15 of PB B-3): Addition of Rs. 15,00,000/- being the unexplained cash payments - The Ld. AO has made this addition at Page 8, Para l0 on the basis of the loose paper Annexure BS- 3, Page 14 to 17 on the ground that the assessee has incurred the expenses for bribes, etc. It was submitted that these loose papers are probable estimates of the projects. This was a rough calculation in the shape of project reports. The Ld. AO concluded that the assessee has made the payments which are unexplained. He has relied on the judgment of the Calcutta High Court and The Madras High Court. Both the cases are in respect of the expenditure incurred by the assessee. In the instant case, no cash outflow is mentioned but they are the estimated projected amounts. The case laws are not applicable in the assessee's case. The Ld. CIT(A) has upheld these additions in Para 8.1, Page 35 on the ground that it is a clear cut detail of expenses for bribe and no evidence is produced before the AO or at the appellate stage. It is humbly submitted that on perusal of the said loose paper Page 14, it clearly indicates the rough calculations of the projects for starting up the nurs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs is only on Page 14 of BS-3 but there are other three pages also and list of figures are available on all the pages. Ld. A.O has choosen only two taking up two figures i.e. Rs. 5 lakhs and Rs. 10 lakhs mentioned against the assessee for making addition. No efforts were made to examine the other figures available on these four pages. The seized document do not reveal anything about these colleges being set up. 132. In these given facts and circumstances of the case where the alleged documents primarily seems to be projection for different type of colleges to be established in future and there is no iota of evidence to show that any such investment in colleges has been made, then in such situation no addition could be made for the proposed bribes mentioned in the document. Ld. CIT(A) erred in not taking note of these facts and was thus not justified in confirming the action of the Ld. A.O. We therefore set aside the finding of Ld. CIT(A) and delete the addition of Rs. 15,00,000/- made by the Ld. A.O on the basis of seized document of page 14 to 17 of BS-1 and allow Ground No.5 raised by the assessee for Assessment Year 2012-13. 133. Now we take up Ground No.6 related to addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in Para 11.4, Page 38 on the ground that the assessee has not substantiated the claim before the AO or during the course of the appellate proceeding. It is humbly submitted that this is a dumb document which does not contain any receipt or payment. No addition can be made on the basis of dumb document. 136. Per contra Ld. Departmental Representative vehemently argued supporting the orders of both the lower authorities. 137. We have heard rival contentions and perused the records placed before us. Assessee is aggrieved with the addition of Rs. 39,500/- made by Ld. A.O and confirmed by ld. CIT(A). This addition is on the basis of seized document No.123 of LPS-3 showing the payment of Rs. 39,500/- in total towards bill, stamp, notary and fees. The assessee has merely submitted that it is a dumb document. However looking to the seized document, we find that on this sheet there are other transactions also which have been striked off. There are figures mentioned relating to dividend which is also striked off. This document is certainly relating to the assessee. Since he has unable to give any explanation to it and the action of Ld. A.O needs to be confirmed. We thus find no reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O or during appellate proceedings to substantiate his claim that the loose papers (LPS- 3 page 125 to 128) relate only to the proposal for the purchase f hop at Great India Place mall, Kolar road, Bhopal . .The above loose papers clearly shows that the appellant assessee has made cash payment of Rs, 21,16,800/- and the balance of Rs. 31,75,200/- has been paid by cheque' and that the appellant assessee was required to make 40 of the payment in cash, out of the total cost of the property Rs. 52,92,000[-(40% works out to Rs. 21,16,800/-) . LPS-3 page 125 to 128 gives me date of possession' of the above property as on 31.12.2013 and shows details of payment schedule by cash and by .cheque. The plea taken by_ the appellant has no merit because by stating that the loose papers seized (LPS-3 page 125 to 128) is only rough calculations or proposal where as it is seen that actual payment as per schedule has been made. Payment schedule clearly mentions that 40% of total cost of the property Rs. 52,92,000/- which works out to Rs. 21,16,800/- has to be made in cash. Under what circumstances 40% of the total cost was made in cash, when the same could have been paid through che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f building, the rate of Rs. 9000 per sq.ft to 588 sq.ft the resultant figure comes as Rs. 52,95,000/-. Thereafter there is a bifurcation of Rs. 52,95,000/- in 60:40 ratio. 40% is referred to be cash. There are further calculation about the payments and deductions on this account. On Page 126 there is the calculation of construction, time and the theory of the 60:40 continues. Page 127 to 128 also seems to be the further calculations for the same immoveable property, G-48 which seems to be an expanded form of page 126. The search took place on 2.6.2011. But in page 128 of LPS-3 in the lower part it mentions 3 years period from 2011 to 2013. In 2011, 2012 & 2013 talks about the cheque. In the last it says about the possession to be given in the year 2013. After going through all these aspects we are of the considered view that these 4 pages are rough calculation made for purchasing the immoveable property. In the seized document no such piece of paper has been unearthed about any transaction relating to purchase or paying advance for purchase of immoveable property measuring 588 sq.ft. When the addition was proposed to be made for cash element of 40% of Rs. 21,16,800/- the Ld.A.O was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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