TMI Blog2019 (5) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... rimary evidence or secondary evidence. In the present case, none has been done by the revenue to prove seizure of document and contents thereof, so as to enable revenue to build up its case for the purpose of treating the document to be incriminating document. The document relied upon by the revenue has not been proved by the revenue that it belong to the assessee nor it was proved that it contain incriminating material on the basis of which addition can be made. Further we would like to put on record that neither Smt. Adlene Kagoo has admitted this document nor the assessee admitted this document during the course of recording of statement reproduced herein above. Therefore onus of proving the document belonging to the assessee lies on the revenue to prove that the document belonged to the assessee and is correct hence it can be relied upon in accordance with law. In our view, the revenue has failed to discharge its onus. The best case of the revenue that amount of ₹ 4.50 Crores was paid as an on money for purchase of Jakkur land, admittedly this was allegedly paid on 13.10.2006 whereas the sale deed were executed on 30.03.2007 and also on 06.08.2009. This amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized in premises of third parties. 3. Whether on facts circumstances of the case the CIT(A) was correct in accepting one cash transaction while not accepting the other cash transaction made by the assessee where seized material is available in this regard. 4. Whether on facts circumstances of the case the CIT(A) was correct in relying on the decision in the case of Addl. CIT Vs. Lata Mangeshkar (97 ITR 696) and in the case DCIT, New Delhi Vs. Sri Jaswant Singh Chawala (ITR Nos. 3285, 3286/Del/2013 dated 20.03.2015 when facts of the two cases are distinguished for the instant case? 2. The ld. AR for the assessee has also submitted that the assessee has filed a CO bearing no. 19/Bang/2019 for the following grounds. Grounds of Appeal Tax effect relating to each Ground of cross-objection 1. That, the Ld. CIT(A)-11, Bangalore erred in not appreciating that a proceeding u/s.153A of the Act on an assessee is not maintainable if there is no incriminating material found pursuant to search u/s.132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al were in respect of delay in condonation of delay in filing of appeal and were not for delay in filing of CO. Moreover the decision of Hon ble Supreme Court in the matter of Collector, Land Acquisition Vs. Mst. Katiji Others as reported in (1987) 167 ITR 471(SC) was not considered by tribunal in any of these orders. . 5. The ld. DR in support of the revenue appeal has made the following submissions that Simultaneous search u/s. 132 was conducted on 12.04.2011 by the revenue at the residence of the assessee also done at the premises of Smt. Adlene Kagoo and Shri V. Rangrajan where some incriminating material was also found. Beside that some incriminating material were also found during the course of search at the premises of assessee . The ld. DR had submitted that based on the incriminating material found at the premises of Smt. Adlene Kagoo and Shri V. Rangrajan, the assessee had made the disclosure for an amount of ₹ 12,03,35,000/- before DDIT (Inv.). It was the case of the ld. DR that the seized material on the basis of which the disclosure was made, were not denied by the assessee. It was further submission of ld. DR that the assessing officer has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page no. 44 of Annexure A/VR/Res/01 seized during the course of search at the residence of Shri V. Rangarajan on 12.4.2011 and I am also showing you page 125 Annexure AKP/PDP/12 seized during the search at the residence of Smt. Adlene Kagoo on 12.4.2011. Kindly go through the same and state whether the transactions reflected in these documents are recorded in your books of accounts? Ans. The details as recorded in page no. 125 and 44 referred above are as below. Entries for ₹ 9.2 crores, ₹ 4.42 crores and ₹ 8.82 crores were payments made by Indiland Developers Bangalore Pvt. Ltd., under various agreements entered into with Shri P. Dayananda Pai by Indiland Developers Bangalore Pvt. Ltd., These payments are not related to above land purchase. With respect to entries for ₹ 10.98 crores, ₹ 9.9 crores, ₹ 4.5 crores and ₹ 2.15 crores I am unable to identify these transactions and these payments/receipts does not pertain to me. ( emphasis supplied by us ) 9. The ld. A R had also submitted that the seized material recovered from the premises of the Smt. Adlene Kagoo was a document which cannot be used for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53(A) dated March 6, 2014 Dr. Rajan Pai Jakkur Lands-Six Acres 5A 29.6 guntas, i. e., 249925 square feet 2,49,925 x 2,000 49 98 crores Less : charaka adjustments 10 98 39 - Less : Jakkuar property taken each 45,000 square feet x 2,200 9 90 29 10 Less : Received C (L) on October 13, 2006 4 50 24 60 Less : Received on July 12, 2006 (Sr. Ch. BK) Indiland Developers 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition made by the assessing officer is mentioned in paragraphs 8.2.5, 8.2.6 and 8.2.8 were to the following effect. 8.2.5It is here that the single entry of payment made in cash on 13/10/2006 amounting to ₹ 4.5 crores is found. The assessee was given an opportunity in the form of show cause notice dt. 21.01.2014 to explain the nature and content of the statement marked as AK/PDP/12-Pg-125 and show cause why the amount of ₹ 4,.50,00,000/- paid in cash along with the cheque payments made by M/s. Indiland Developers Bangalore Private Limited on his behalf should not be considered as unexplained income. 8.2.6 The assessee vide his reply dt. 24.02.2014 maintained his stand as taken before the office of DDIT I (3), Bangalore that no such payments were made by him. The cheque payments reflected in the statement pertains to land transactions of that company i.e., M/s. Indiland Developers Private Limited for purchase and development other lands which is reflected in the ledger account. It has no relation with Jakkur Lands. Since the entries pertains to Jakkur Lands which is not the related the statement was to be held as erroneous. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as is clear from the answer given by Smt. Adlene Kagoo, it is clear that the document was neither written by her nor she is aware of the content, nor she is aware who had written the document and it is also not the case of the revenue that the assessee had taken and kept said document in the custody of Smt. Adlene Kagoo. On the other hand, the sole case of the revenue is this that the said document was allegedly kept by Shri Dayananda Pai. To prove the live link by the revenue , the statement of Shri Dayananda Pai should have been recorded categorically mentioning that this document belonged to the present assessee. In fact, the assessee under statement u/s. 131 had denied of the execution of this document and also the content. In our view, the document is required to be proved in accordance with principle of Evidence Act as applicable in Income Tax proceedings, either by primary evidence or secondary evidence. In the present case, none has been done by the revenue to prove seizure of document and contents thereof, so as to enable revenue to build up its case for the purpose of treating the document to be incriminating document. The document relied upon by the revenue has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. 18. 'Book' ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound together so as to form a material whole. Loose sheets or scraps of paper cannot be termed as 'book' for they can be easily detached and replaced. In dealing with the work 'book' appearing in Section 34 in Mukundram vs. Dayaram [AIR 1914 Nagpur 44], a decision on which both sides have placed reliance, the Court observed:- In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to the moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book...............................................................I think the term book in S. 34 aforesaid may proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purchase of Jakkur land, admittedly this was allegedly paid on 13.10.2006 whereas the sale deed were executed on 30.03.2007 and also on 06.08.2009. This amount of ₹ 4.50 Crores can be said to be on money given by the assessee for the purchase of the said land, if the said money is paid subsequent or at the time of registration of sale deeds. Further we may bring on record that the details of cheques given in the sale deed dated 30.03.2007, as per para 2 of sale deed on page no. 96 of paper book, cheque of ₹ 2.60 Crores bearing no. 719275 drawn on ICICI Bank is dated 30.03.2007 and in respect of second property the cheque of ₹ 60 Lakhs was paid for which a separate receipt was executed. If we compare the two cheque amount, one is of ₹ 2.60 Crores and the other is of ₹ 60 Lakhs then it is clear that the annexure AK/PDP/12-pg 125 does not have either the figure of ₹ 2.60 Crores or the figure of ₹ 60 Lakhs. Moreover there was no date of 30.03.2007 mentioning the cheque no. 719275 in annexure AK/PDP/12-pg 125. In view of the above, the observation recorded by the assessing officer that the transactions carried out in cheque which were reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her property accounts, the entries found in the statement are not works of imagination or fiction. Since it is proved that part of transactions, carried out in cheque, which are reflected in the books of accounts are true, the seized evidence gains strength and is considered to be true and correct. The cheque payments which are true, though pertaining to other properties, establish the veracity of the document. Accordingly, other part of transaction carried out in cash shall also be held as true. Hence the payment made in cash of ₹ 4,50,00,000/- in lieu of purchase of immovable property at Jakkur is held as true and accordingly brought to tax as unexplained income for A.Y 2007-08. 21. From the above Para of the assessment order, it comes out that this is the whole case of the AO that the cheque transactions reflected on this page i.e. page 125 of Annexure AK/PDP/12 are recorded in the books of both parties i.e. Sri Ranjan Pai Group and Sri Dayanand Pai Group albeit as advance received against some other property account. The AO has come to the conclusion that the cash payment of ₹ 4.5 crores on 13.10.2006 is by the present assessee for Jakur Property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch Party nor the vendor was examined. The lady Smt. Adeline Kago was also not examined by the AO and conclusions were drawn by the AO and addition was made on this basis that the cheque payments shown on this page i.e. page 125 of AK/PDP/12 are true and therefore, it has to be accepted that the cash payment shown in the same page is also true and it is for Jakkur property. We have seen above that all the cheque payments noted on this page are about payment by the company M/s Indiland Developers. Hence there is no basis to hold that the cash payment is by the present assessee and not by that company particularly in view of this fact that name of the company is mentioned against cheque payments but no name is mentioned against entry of cash payment. No concerned person i.e. Shri Dayanand Pai, the lady Smt. Adeline Kago or the vendor were examined by the AO and the entries on this seized paper indicates that this cash payment may also be by the said company only because all cheque payments are admittedly by the company. 23. The discussion in this Para 22 also supports our view as noted in Para 18 above. 24. Since we had dismissed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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