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2013 (11) TMI 56 - AT - Income TaxUndisclosed income (investment) – Invocation of section 69 of the Income tax act - Observation of the AO was that as per the seized material marked as Annexure 'A-1' there was a diary and on page 01 of the said diary there was a payment of Rs.10.10 lacs with regard to land situated near Anjali Cinema. It was found that the payment was made to Sri Govind Bhai Patel - According to AO even before ADI in a statement the assessee had once again reiterated his disclosure of the said investment in the land. The assessee had objected the addition on the ground that although the payment was recorded but the said deal was cancelled in respect of the said land. Since the deal was not materialized, therefore, according to assessee the entire amount was refunded back by Mr. Patel – Held that:- As per the diary found at the time of search it was mentioned that a payment of Rs.10.10 lac was made in respect of the land, therefore, it was required to be assessed in the hands of the assessee. According to AO, there was no recording of receiving the money back from the said party. The AO has further distinguish that in respect of other parties whenever the amount was received back then an entry to that effect was recorded in the diary. The assessee had informed that the money was paid near October / November 1994, which was received back around March /April, 1995. But according to AO, till the date of search i.e. on 21.9.1995, there was no entry of receiving the money back recorded in the seized diary. In the absence of proper proof, the AO had taxed the said sum as undisclosed income in the hands of the assessee. Assessee has not furnished any evidence which can fully substantiate that in fact assessee had received the amount back from the said party. This submission being not supported by any cogent evidence, therefore, not inclined to interfere with the findings of the lower authority - In view of Section 132(4) the presumption in that whatever recorded in the seized books is truly recorded. Validity of affidavits in the taxation matters - Assessee had furnished affidavits of both those persons before the AO. In the said affidavit they have only confirmed that in total a friendly loan of Rs.8,000/- was taken for a short period from the assessee – Held that:- Affidavits were nothing but self serving document hence cannot be relied upon in tax proceedings specially when there is no independent corroborative evidence – Decided against the Assessee. Adjustment regarding the amount declared u/s 158 BC – Held that:- Regarding adjustment of Rs.5,60,000/- being the amount declared u/s 158 BC is concerned, already the claim of the assessee is that he had already declared Rs.5,60,000/- As "undisclosed income" in the return; stated to be representing investment in shares - Nature of disclosure in the said return is required to be ascertained first and if it is found correct, then the AO is free to allow the adjustment. Appropriation out of cash seized u/s 132 of the Income Tax Act – Held that:- On this issue grievance should not have been made because it pertains to administrative decision of the Revenue Authorities as prescribed u/s. 132B(1)(i) of the Act. This section prescribed that the assets seized u/s. 132 may be dealt with in the manner laid down i.e. in the event of any existing liability or the amount of liability determined on completion of assessment under Chapter XIV- B for the Block-period, then the said liability may be recovered out of such assets - AO is otherwise empowered by the Act itself to grant such adjustment against the cash seized – This ground allowed – Decided in favor of Assessee.
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