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2017 (10) TMI 1339 - KERALA HIGH COURTAddition to the profit on sale of the Pent House - block assessment under Section 158BB - Held that:- Although in the initial part, it is stated that during the course of search, certain loose papers numbered as 1 to 27 inventorised as ORF 67 were found and that, page 16 of the set of loose papers is page No.2 of an agreement entered into by Shri Jamaluddin for purchase of 1711 sq. ft. of City Centre space @ ₹ 5,000/- per Sq. Ft. in the latter part of the same paragraph, it is stated that the incriminating documents found during the course of survey and the statement of Shri V. Muneer constituted any other material in possession of the AO. In order to reconcile the apparent contradictions in what is stated in the assessment order, the learned Senior Counsel for the Revenue wanted us to read the words “survey” as “search”. This plea is raised for the first time and, therefore, cannot be accepted. Even if it is assumed that it was during the search that ORF 67 was recovered and that the page 2 of an agreement is part thereof, according to us, that case of the Revenue raised for the first time is not substantiated in any manner. Annexure-B is the Panchanama prepared at the time of search on 29.01.2003. ORF 67 is concerned, in the Panchanama, it is stated that ORF 67 consists of “loose sheets containing statement of accounts, Serial Nos.1 to 23”. Therefore, the Mahazar prepared at the time of search does not record that ORF 67 included page 2 of an agreement as stated in the Assessment Order or as contended before this Court. Now we shall refer to Annexure-A, which is the letter dated 03.12.2004 sent by the Assessing Officer to the assessee. In this letter, it is stated that among the undisclosed income allegedly earned by the assessee, one of the items is the undisclosed sale price of City Centre space in the case of Shri Jamaluddin and Shri V. Muneer and that one of the items is “undisclosed sale price of City Centre Space in the case of Shri Jamaluddin and Shri V. Muneer ₹ 51 lakhs during the financial year 2002-03”. Thereafter, it is again stated that “the above are evidenced from seized documents ORF-6, 8, 10, 14, 15, 27, 28, 40, 159 and impounded documents from the premises of Shri Abdul Salam and Shri Jamaludeen.” Therefore, if what the Assessing Officer stated in Annexure-A is read, the incriminating documents leading to the undisclosed income in question were recovered at the time of survey and the list of aforesaid seized documents does not include ORF 67 and if Annexure-B is read, the incriminating material was not revealed from ORF 67. Therefore, Annexures-A and B are contradictory to each other.
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