9911796707
TMI Blog2022 (1) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... se deed and no payment whatsoever beyond this sum was given. We find that the onus of proof was also discharged by the assessee by submission of various details and documentary evidences during the assessment proceedings substantiating the said fact. AO merely placed reliance on the Statements of Shri Manohar Patel but failed to appreciate the fact that there was no tangible evidence brought on record to substantiate the allegations made and no independent inquiries were conducted by the Ld. AO either u/s 131 or 133(6) to bring out correct facts on record rather sole reliance was made on the information given by DDIT (Inv.)-II, Indore. - there are no evidences on record to establish the market value of land being more than actual sale consideration. Thus, the alleged additions made by the ld. Assessing Officer are purely based on suspicion, conjectures and surmises. We are of the view that mere admission of seller of acceptance of cash/on-money cannot be considered as tangible material in the absence of any other corroborative material. See SHREE PARSHWANATH CONSTRUCTION VERSUS ITO-2 (1) , UJJAIN [ 2014 (7) TMI 1290 - ITAT INDORE] We also find that during the course of assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Investigation Wing. The Revenue has raised following grounds of appeal in ITANo.352/Ind/2020: 1. The Ld. CIT(A) was not justified in not appreciating the findings and establishment of the AO. 2. The ld. CIT(A) was not justified in deleting the addition of ₹ 2,43,12,100/- on account of non-enquiry by the AO, non-establishment of greater market value, non-appreciation of statement of the joint seller which was taken on oath and absence of tangible evidence, whereas the AO had clearly established the acceptance of the on money from the assessee company. 3. The Ld. CIT(A) was not justified in not appreciating the statement recorded from seller during investigation where the seller categorically admitted regarding the cash transaction and subsequent cash receipt from the assessee. 4. The Ld. CIT(A) was not justified in not relying on the information & report received by the AO which was based on detailed inquiry & investigation mage by the Investigation Wing. 2. As the issues raised in these appeals are common and relate to different assessees, at the request of all the parties, both the appeals were heard together and are being disposed of by this common order for sake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee and in absence of any tangible evidence, the addition made by AO is not justified in view of the various judicial precedents which suggest that in cases of allegation of "on-money", burden to prove such allegations lies on the Assessing Officer and in the instant case, there are no evidence on record except admission by joint seller to prove the same. Further, the ld. CIT(A) also noted that the AO had not given proper opportunity of cross-examination with joint seller Shri Manohar Patel despite specific request being made which is in contravention with the ratio laid down in the case of Andaman Timber Industries Vs CCE, 281 CTR 241 (SC). 6. Being aggrieved, the Revenue is in appeals before this Tribunal. Before us, the ld. CIT-DR relied on the orders of the Assessing Officer whereas the learned Counsel for the assessee relied upon the orders of the ld. CIT(A). 7. We have considered the rival submissions of both the parties and gone through the material available on the file. We find that ld. CIT-DR except placing reliance upon the orders of the Assessing Officer could not bring any contrary material on record to controvert the finding of the ld. CIT(A). We find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /on money without evidence, There should be some evidence in respect of on-money paid by 'the appellant, In the a~ of any tangible evidence the addition made by AO is not justified. 5.3 I am of the view based on various judicial precedents that in cases of allegation of on - money, burden to prove such allegations lies on the assessing officer and in the instant case there are no evidence on record except admission by joint seller to prove the same, I place my reliance on the judgement of Commissioner of Income-tax v. P. V. Kalyanasundaram [20061 282 ITR 259 (Mad.HC)~fir1ned by Supreme Court in Civil appeal No. 4262 of ,2007 294 ITR 0049 (SC) which has held as under: "The burden of proving actual consideration in such transaction is that of the revenue. The Tribunal had given factual finding and. inter alia. held that the Apex Court in K,P, Varghese v. ITO [1991] 131 lTR 597/ 7 Taxman 13 held that the burden of proving actual consideration in such transaction is that of the revenue. The revenue, m the instant case, had failed to discharge its duties {Fora 5} The Assessing Officer did not conduct any independent enquiry relating to the value of the property purchased. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 648" (Emphasis applied). We therefore on the basis of the facts and documentary evidences placed before us are inclined to hold that the sale consideration for sale of land in question was only ₹ 95, 00, 000/and revenue authorities failed to bring any credible material on record to prove that the sale consideration was ₹ 2,70,00,000/and not ₹ 95,00,000/-. [Para 26]" 5.5 The appellant has also taken the plea that the AO had not given proper opportunity of cross examination with joint seller Shri Manohar Pa el despite specific request being made. In support of his view, the appellant has relied on the case of Andaman Timber Industries Vs CCE 281 CTR 241 (SC), which has held as under:- Not allowing assessee to cross-Examine witness by Adjudication Authority through state men soft house witness were made abases impugned order amounted in serious flaw which making impugned order nullity a sit amounted to violation of principles of natural justice. 5.6 Therefore, in view of the above facts and judicial decision so .discussed above, the addition so made on substantive basis by the AO amounting to ₹ 2,43,12,000/- is Deleted." 8. On consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Roop Kumar V/s Mohan Thedeni (Arising out of S.L.P. (C) No. 5835/2001) DATE OF JUDGMENT: 02/04/2003 (SC). We find that Hon'ble Madras High Court in the case of Commissioner of Income-tax v. P. V. Kalyanasundaram [2006] 282 ITR 259 (Mad) and Hon'ble Supreme Court in Civil appeal No. 4262 of ,2007 294 ITR 0049 (SC) have laid down the ratio that: - "The burden of proving actual consideration in such transaction is that of the revenue. The Tribunal had given factual finding and inter alia held that the Apex Court in K.P. Varghese v. ITO (1981) 131 ITR 597 (SC) held that the burden of proving actual consideration in such transaction is that of the revenue. The revenue, in the instant case, had failed to discharge its duties and the Assessing Officer did not conduct any independent enquiry relating to the value of the property purchased. He merely relied upon the statement given by the seller. If he would have taken independent enquiry by referring the matter to the valuation officer, the controversy could have been avoided. Failing to refer the matter was a fatal one. In view of the above, there was no error in the order of the Tribunal and required no interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, in relation to relevance of tangible evidence in respect of allegation of "on-money", our view is fortified with the following judicial pronouncements: I. Pr. CIT Vs. Vivek Prahalad Bhai Patel (2016) 237 Taxmann 331 (Guj. HC) II. Assistant Commissioner of Income-tax -Central Circle-1, Baroda v. Govindbhai N. Patel [2013] 33 taxmann.com 237 (Gujarat HC) 11. On going through record and rival submissions, we also find that during the course of assessment proceedings, the assessee had requested the Ld. AO for opportunity of cross-examination with the sellers on whose statement's reliance was placed but the same was ignored by the Ld. AO leading to violations of principles of Natural Justice which is, in our view, unjustified in view of the judgment of Hon'ble Supreme Court laid down in the case of Andaman Timber Industries vs CCE 62 taxmann.com 3/52 GST 355 (SC) wherein the addition was made against the assessee (Andaman Timber Industries) by the AO by relying on the statement of two witnesses namely Sri Sreeram Tekriwal and Sri Laxmidas Panchmati. Even though the assessee pleaded for cross-examination of these two witnesses, the AO did not give opportunity to the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
