TMI Blog2014 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... of account - It is on that footing that a benefit of doubt is given to the assessee - the addition is deleted, merely because the addition is to the extent of Rs.5,61,34,260/-, that by itself and without anything more, will not raise a substantial question of law – the contention of Shri Gupta cannot be accepted that the addition should not have been deleted because the TDR remained in actual possession and control of the assessee - the disposed of as per the directions of the assessee is an attempt to re-appreciate and re-appraise the factual materials - Once the Tribunal has taken the date of the transaction of TDR and arrived at a factual conclusion that the Power of Attorney in favour of the assessee may be irrevocable but it is subsequent in point of time that the Appeal does not raise any substantial question of law for consideration – Decided against Revenue. - Income Tax Appeal No. 902 of 2011, Income Tax Appeal No. 912 of 2011, Income Tax Appeal No. 1049 of 2011 - - - Dated:- 9-4-2014 - S. C. Dharmadhikari And G. S. Kulkarni,JJ. For the Appellants : Mr. Vimal Gupta, Sr. Adv. With Mr. Vipul Arun Bajpayee For the Respondents : Mr. J. D. Mistry, Sr. Adv. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Raut, Deo and Jain who is the partner of the assessee covering various issues and particularly the transaction of sale of TDRs. The Revenue also referred to various understandings between Raut and assessee. It is submitted that loose sheets were found and Mr.Sandeep Deo acknowledged the handwriting on page 82. His statement has been recorded. It is in this factual backdrop that the Tribunal arrived at a conclusion that the transaction is effected during the period April 2000. Mr.Mistry has taken us through the order of the Tribunal which deals with several issues but, insofar as the Appeal No.912/11 is concerned, Mr.Mistry submits that the same projects only the addition on account of the suppressed sale proceeds recorded on page 82 of the seized material. The Tribunal deviated from the approach of the Assessing Officer who interpolated the seized material for the entire year in view of the fact that instances of suppressed receipts were found in the sale of TDRs to a number of persons over a period of time. The Tribunal has accordingly rendered finding of facts from paragraph 42 to 44 of the paper book and which do not raise any substantial question of law. Equally, reliance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 82. That is stated to be evidencing sale of TDRs. There is also a document which is styled as unsigned agreement and which according to the Revenue confirms the contents at page 82. Deo is stated to be a business consultant and particularly in matters relating to TDRs. He assisted the Raut group and that is in relation to sale of TDRs. The requisite procedural aspects were completed by the Revenue and a notice was issued in terms of the legal provisions on the assessee's firm. The sale of TDR is then referred to and agreements in that behalf. The statement of the parties recorded are referred to. Thereafter, the Tribunal refers to the assessment proceedings and notes the area of dispute namely, the jurisdiction of the Assessing Officer in issuing notice under section 153C, quantification of profit in respect of sale of TDR and the proper/prior sale rate per sq.ft of TDR. The reference is then made to the proceedings of Commissioner of Income Tax (Appeals), and the Tribunal then refers to the grounds on which the Appeals involving Assessment Year 2001-02, 2004-05. Insofar as the validity of the proceedings under section 153C is concerned, we are of the opinion that the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 225/-per sq.ft has to be considered for estimations based on the extracts. Then, the seized pages are referred to and the unit rate of 215/-sq. ft. 9. In paragraph nos.42 and 43, the Tribunal holds as under: 42. Now we undertake to discuss what is the proper rate per sq feet of TDR and whether such rate should be applied to the entire TDR transacted by the assessee or limit to only that TDRs mentioned page 82. As far as the AO is concerned, he has estimated the total sale proceeds on sale of 65388 sq meters applying the rate of Rs.225/-per TDR on the strength of again the above seized papers. In our considered opinion, such global estimations is not proper in search assessments where the undisclosed income is determined only based on the seized material and other relevant and corroborative evidences. Therefore, we proceed to restrict the estimations to only to those sale transaction of TDR reflected in the seized paper 82 only, which itself is a corroborative evidence as page 82 is discovered from the third party i.e. Mr.Deo, who gave a statement on oath that these are sale transactions of TDR transacted by the assssee. Further, we disapprove the estimation in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culiar in this case. We do not find that from such an exercise any substantial question of law arises for determination and consideration in these Appeals. The Tribunal held that apart from the loose sheet page 82 and page 42 containing an unsigned copy of the Agreement indirectly confirming the contents of page 82, there are no other materials. Therefore, there is no material to estimate the sale of other TDR's. The above documents at best would enable estimation of those TDR's mentioned at page 82. The page 42 is also not conclusive evidence. Hence, the Tribunal adopted the course above noted by us. 11. The Tribunal in relying upon the judgments of the Hon'ble Supreme Court has not decided any wider controversy. Insofar as that issue is concerned, the Tribunal has noted the arguments. It has segregated the issues. In dealing with the additions, made in the order of the Assessing officer that the Tribunal has made a limited reference to the judgment of the Hon'ble Supreme Court. Beyond that, we do not find that there is any issue of law and which could be said to be arising from the exercise undertaken by the Tribunal. The question no.5(II) therefore, also canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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