9911796707
TMI Blog2019 (1) TMI 2061X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Brief facts are, the assessee is an individual. For the assessment year under dispute, the assessee filed her return of income on 29th February 2008, declaring total income of Rs. 1,70,480. Initially, the return of income filed by the assessee was processed under section 143(1) of the Act. Subsequently, a search and seizure operation was conducted in case of Hiranandani Group of Builders and Developers on 11th March 2014. In course of such search and seizure operation, certain incriminating materials were seized which revealed that the assessee in the relevant previous year had paid on-money of Rs. 42 lakh in cash to M/s. Crescendo Associates, a group concern of Hiranandani Group, towards purchase of Flat No. 2404, at 'Torino'. In the course of such search and seizure operation, a statement under section 132(4) of the Act was also recorded from Shri Niranjan Hiranandani, a Director and Promoter of Hiranandani Group, wherein, he admitted receipt of on-money in cash over and above the registered value of the flat from the buyers. On the basis of such information / material found during the search and seizure operation, the Assessing Officer re-opened the assessment under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excel Sheet prepared by the Income Tax Officials on the basis of a pendrive found during the search and seizure operation. It was submitted that except the statement of Shri Niranjan Hiranandani and the Excel Sheet prepared on the basis of material found in the pendrive, there is no direct corroborative evidence to indicate that the assessee has paid on-money in cash. In support of such contention, the assessee relied upon various judicial precedents. On the basis of submissions made by the assessee, the learned Commissioner (Appeals) called for a remand report from the Assessing Officer. After taking note of the remand report, the learned Commissioner (Appeals) ultimately held that since the seized documents as well as statement recorded from Shri Niranjan Hiranandani under section 132(4) of the Act, clearly demonstrate that while selling flats / shops on-money was received over and above the declared sale consideration, such evidences have to be believed as they pass the test laid down in various judicial precedents as far as admissibility of documents as per section 34 of the Indian Evidence Act, 1872, is concerned. Thus, ultimately, he confirmed the addition of Rs. 42 lakh made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18th July 2016, issued by the learned Commissioner (Appeals) to the Assessing Officer. The learned Authorised Representative submitted, in spite of specific directions of the learned Commissioner (Appeals) on assessee's pleading that adverse material / statement were not provided to the assessee, the Assessing Officer did not comply to such direction nor has offered any comment on the pleadings of the assessee. In this context, he drew our attention to the observations of the Assessing Officer in the remand report dated 23rd June 2017, a copy of which is at Page-53 of the paper book. The learned Authorised Representative submitted, even the date on which the Assessing Officer re-opened the assessment, he did not had in his possession the information contained in pen drive on the basis of which the addition was made. The learned Authorised Representative submitted, merely on the basis of certain information found during the search conducted in case of a third party and the statement recorded from such third party, addition cannot be made at the hands of the assessee on account of payment of on-money in cash, that too, in the absence of any other corroborative evidence to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees of Hiranandani Group and a statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of the Group, wherein, the details of on-money paid by buyers / prospective buyers to Hiranandani Group concerns are mentioned and further, in the statement recorded under section 132(4) of the Act on 14th March 2014, Shri Niranjan Hiranandani, has admitted receipt of on-money in cash towards sale of flats / shops. Thus, it is clear that except these two pieces of evidences the Assessing Officer had no other evidence on record which demonstrates that the assessee had paid on-money in cash for purchase of the flat. It is further relevant to observe, from the assessment stage itself the assessee has requested the Assessing Officer to provide him with all adverse materials and full text of the statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani. The assessee had also requested the Assessing Officer for allowing her to cross-examine Shri Niranjan Hiranandani and other parties whose statements were relied upon. Apparently, this request of the assessee was not acceded to by the Assessing Officer. When the assessee too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion contained in the pen drive, it is the contention of the assessee that the said pen drive was not found from the possession of the assessee but in course of search and seizure operation conducted in case of a third party. Therefore, in absence of further corroborative evidence to establish that the contents of the pen drive are correct and authentic to the extent that the assessee paid on-money in cash, no addition can be made under section 69B of the Act. Further contention of the assessee is that in the statement recorded under section 132(4) of the Act, Shi Niranjan Hirandani has not made any reference to the assessee, therefore, in absence of any other corroborative evidence to establish that assessee has paid on-money in cash, no addition can be made. I find substantial merit in the aforesaid submissions of the assessee. In my view, neither the information contained in the pen drive nor the statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani are enough to conclusively establish the factum of payment of on-money by the assessee. At best, they can raise a doubt or suspicion against the conduct of the assessee triggering further enquiry / investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared the details, as a result whereof the adverse inferences as regards payment of "on money" by the assessee for purchase of the property under consideration remain uncorroborated. We further find that what was the source from where the information was received in the pen drive also remains a mystery till date. We find that Sh. Niranjan Hiranandani in the course of his cross-examination had clearly stated that neither he was aware of the person who had made the entry in the pen drive, nor had with him any evidence that the assessee had paid any cash towards purchase of flat. We have deliberated on the fact that Sh. Niranjan Hiranandani in his statement recorded on oath in the course of the Search & seizure proceedings had confirmed that the amounts aggregating to Rs. 475.60 crore recorded in the pen drive were the onmoney received on sale of flats, which was offered as additional income under Sec. 132(4) and thereafter offered as such for tax in the petition filed before the Settlement commission. We are of the considered view that there is substantial force in the contention of the ld. A.R that mere admission of the amounts recorded in the pen drive as the additional income b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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