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TMI Blog2010 (3) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded on 25th July, 2007. The assessee and her husband admitted to have voluntarily surrendered the said amount under the head of 'Undisclosed Income'. However, while filing the return of income, the Assessee did not include such amount in its working of total income. The assessee was asked vide order sheet dated 14th October, 2008 to give the justification regarding the said amount of Rs. 15,10,000 not included in the assessee's income as income from undisclosed sources as per the statement recorded under section 133A on 25th July, 2007. The AO recorded the statement of the assessee on 27th November, 2008 under section 131 of the IT Act. It was submitted that annexure as referred to in the statement at the time of survey mentions of Rs. 15 lakhs - Bani Park It does not show that on money was paid by the assessee for the purchase of the house under reference. Neither the seller has been confronted nor there is any document, which may corroborate that the amount of Rs. 15 lakhs was paid as on money. There could be several reasons for any person to write word 'Bank Park as the Bani park is a most popular commercial/residential locality of Jaipur. The AO was not impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband regarding undisclosed investment in her name in the property of Bani Park. However, no statement u/s 131 of I.T. Act was recorded and during the course of assessment proceedings when a show cause was given she has clearly denied to have made such investment in the said property at Bani Park. Further, the AO has also recorded her statement during the course of assessment proceedings in which in reply to Question Nos. 3 4 she has clearly denied to have made such payment of Rs. 15,10,000/- in connection with her Plot No. D-55. Bani Park over and above documented consideration. I agree with Sh. Agarwal that no presumption u/s 132(4A) is available to the assessing authority in connection with the paper found during the course of survey having mention of Rs. 15 lakh cash payment. Further, no corroborative evidence has been collected by Assessing Officer and no enquiries were also made from the party who has sold the said plot to the appellant. On this issue ITAT Jaipur Bench decision in the case of Ashwani Kumar Bhardwaj v. DCIT, 21 TW 358 also supports the view taken by Sh. Agarwal that if the paper do not indicate materialization of any financial transactions they have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney has been paid by the assessee. It has been held in following cases that the revenue is required to take the cases of co-owner on similar ground and the revenue could not have added addition only in the hands of the assessee. For this proposition we are placing reliance on the following decisions :- Jaswant Rai v. CWT [1977] 107 ITR 477 (Punj. Har.) CWT v. Smt. S. Sushil Goela [1987] 168 ITR 277 (Del.) Gulabrai Hanumanbux v. CWT [1992] 198 ITR 131 (Gau.) CIT v. Jagdish Kalani [2007] 163 Taxman 267 (MP). 5. We have an occasion to go through the statement of affair of the assessee as well as of Gyatri Devi Agarwal both of them have shown the value of the property at Rs. 46,19,000. This shows that the assessees are having the equal share in the property. 6. The AO in his order has mentioned that the assessee has received a gift of Rs. 1,01,00,000 from Shri Rajesh Nekiwala, husband of assessee's husband's sister Smt. Neeta Nekiwala. During the course of survey the assessee denied having received any gift. However, during the course of assessment proceedings the assessee-filed necessary evidences in support of the gift. The gift so received has been accepted by the AO. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant para from the decision of Third Member as under :- 11. I have carefully considered the rival contentions and gone through the impugned orders. The Hon'ble Supreme Court in the case of Pullangode Rubber Produce Co. Ltd. (supra) has clearly held that an admission by the assessee is not conclusive evidence and it is always open to the assessee who made the submission to show that is incorrect. The assessee. in this case, has explained that noting on the piece of paper has nothing to do with the unexplained investment made by the assessee. It has also been held in the case of CIT v. Mrs. Doris S. Luiz [1974] 96 ITR 646 (Ker.) that even when there is admission, it is incumbent upon the department to establish by relevant material that the amount in question was income in the hands of the assessee. Here, the department is relying upon the surrender of the amount in the course of survey and the piece of papers found in the course of survey as basis for making the addition. The admission made by one of the partners has already been retracted within five days from the date of search. The CIT(A) in fact has referred those letters to the Assessing Officer in the remand procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, it cannot be said that the investment shown in the return was wrong. In case the revenue was of the view that the assessee has paid on money then the revenue could have taken action under section 148 of the IT Act. 12. We have already noticed that the assessee was having the age of 22 years as mentioned in the Sale Deed and it cannot be said that the assessee was having sources to earn the undisclosed income. Section 69B of the IT Act authorizes the AO to treat the amount exceeding the investment shown in the books of account as deemed income. The Hon'ble Apex Court in the case of CIT v. Smt. P.K. Noorjahan [1999] 237 ITR 570/ 103 Taxman 382 had an occasion to consider the meaning of the word may as mentioned in section 69 of the IT Act. In the case before the Hon'ble Apex Court, the Tribunal held that even though the explanation about the nature and source of the purchase money was not satisfactory but in the facts and circumstances of the case it was not possible for the assessee to earn the amount invested in the property and that by no stretch of imagination could the assessee be treated with having earned this income in the course of assessment year. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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