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TMI Blog2009 (10) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... 83,101/- relates to the year under consideration. On perusal of the assessee s records, Learned Assessing Officer found that during the year assessee has shown payment of Rs. 1,01,687/- to M/s. Ohm Developers and thus, the difference payment of Rs. 3,81,414/- (Rs. 483101/- Rs. 1,01,687/-) was not shown in the books of account. The Learned Assessing Officer issued show cause notice to the assessee proposing to add this amount of Rs. 3,81,414/- being unexplained payment made by the assessee to the developer. In response to the said notice, assessee asked for a copy of statement of Shri Ketan O.Der, partner of M/s. Ohm Developer, wherein he had confirmed to have received on money on booking/sale of the flat at Chandanpark to the assessee and the same was given to the assessee. on receipt of copy of the statement, the assessee requested for opportunity to cross examined Shri Ketan O.Der which was allowed and during the course of cross examination also, it was admitted by Shri Ketan O.Der to had received on money. After this, the assessee made a final submission wherein he denied out rightly to have made any payment of on money for purchase of flat in Chandanpark society developed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that assessee had in fact paid any on money for purchase of flat. He relied upon the decision Hon'ble Bombay High Court in the case of Additional Commissioner Of Income Tax vs. Miss Mangeshkar (1974) 97 ITR 696 (BOM), wherein it was held as under: 3. In our view, the question has been framed by the Department so as to give it a colour of a question of law, for, in our view, having regard to the manner in which the Tribunal has dealt with the said entries, it cannot be said that the Tribunal has ignored the entries in the ledger of Vasu Films relating to the so-called payments made by the firm to the assessee. In fact, the Tribunal has discussed these entries appearing in the ledger of Vasu Films and has given substantial reasons as to why it was not inclined to accept the entries as reliable entries for accepting the case of the Department. Inter alia, it pointed out that the ledger containing the said entries had not been produced before it, that no corresponding entries were there in the day-book of the relevant period and that Vasu Films did not rely on this ledger in the course of its own assessment proceedings but for its own assessment proceedings different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll legal and white payments and naturally in such day-book no corresponding entries would be found. So no importance should have been attached by the Tribunal to the absence of a day-book containing the corresponding entries. In the first place it must be pointed out that this is not the only reason for rejecting the entries but the Tribunal has given other sufficient reasons for rejecting the same. But even with regard to this reason which has been given by the Tribunal, though it may be contended that since the entries in the ledger pertained to the payments in black no corresponding entries could be found in the day-book which was meant to be produced before the IT authorities, still the fact remained that the day-book from out of the other set of books (not intended to be produced) which must have contained the corresponding entries was not available and, in the absence of that, mere production of ledger entries would be of no avail, as there would be no guarantee about the truthfulness or genuineness of the entries in the ledger. Moreover, entries in books of account whether in day-book or in the ledger are merely corroborative evidence and in the absence of proper corrobor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shri Ketan O. Der partner of M/s. Ohm Developers, no addition on account of on money can be made in the hands of the assessee. 9. Learned Departmental Representative on the other hand vehemently argued in support of the order of the Learned Commissioner of Income Tax(Appeals). 10. We have heard the rival submissions and perused the orders of the lower authorities and the materials available on record. In the instant case, a search and seizer operation was carried out at the business premises of M/s. Ohm Developers during the course of which the partner of the firm Shri Ketan O. Der admitted that he had received Rs. 4,83,101/- up to 31.03.1999 from the assessee for purchase of flat as recorded in the seized document Annexure-B-2/26. The Learned Assessing Officer has further observed that during the course of cross examination, by the assessee Shri Ketan O.Der has stated that he had received the sum of Rs. 4,83,101/- from the assessee. The Learned Assessing Officer treated the said sum of Rs. 4,83,101/- as on money paid for purchase of flat and added the same to the income of the assessee as unexplained investment. In appeal, the Learned Commissioner of Income Tax(Appeals) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld as under: The average yield in the case of P was 13.33% in case of cotton seed oil and 78.31% in the case of cotton seed oil cake. Whereas in the case of the assessee P the average yield is 13.37% in case of cotton seed oil and in the case of cotton seed oil cake 80.61% which is higher than that reflected by P. As regards the addition on the basis of certain notings in the seized diary, it is noted that except relying on the entries in the said seized book the Assessing Officer has not brought any corroborative material on record to prove that such sales were made to H outside the books of account. When the assessee categorically denied of having made any sales to H except those recorded in its books of accounts, the onus was on the Assessing Officer to prove with corroborative evidence that the entries in the said seized book actually represented the sales made by the assessee-firm to H. Mere entries in the accounts of a third party was not sufficient to prove that the assessee had indulged in such transactions as there was no guarantee that the entries were genuine.- Decision of the Tribunal in the case of Patel Oil Mills Ginning Factory (ITA No. 803/Ahd/99) followed; A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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