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2015 (7) TMI 353 - AT - Income TaxOn-money payment for purchase of immovable property - CIT(A) deleted surcharge levied u/s 113 on assessee - Held that:- During the course of search, a document was found and seized in which are recorded the transactions of the assessee with Smt.Venkatamma and Smt.Venkatnarasamma for purchase of immovable properties. In this document, the dates of agreement of sale, sale consideration as per the agreement, date of execution of sale deed, amounts paid and the amounts due to be paid are all recorded. The assessee neither appeared before the AO during the remand proceedings nor did he file any evidence in support of his contention that on-money, as recorded in the seized document, was never paid. Even before the CIT(A), the assessee had undertaken to produce one of the sellers as the other seller was already dead but failed to produce said person or her affidavit. The only affidavit filed before the CIT(A) is that of one Jayaram, whose statement was recorded by the AO u/s 131 during the assessment proceedings. During the recording of statement u/s 131, Jayaram had stated that there was on-money involved in the transaction. However, in the affidavit filed before the CIT(A), Jayaram has controverted the statement. However, we find that the CIT(A) has not admitted the additional evidence filed by the assessee on the ground that the signature of the deponent did not match. Thus observing, the CIT(A) has rejected the additional evidence. Though as rightly pointed out by the learned Departmental Representative, the assessee failed to discharge its onus by producing both the parties before the AO for examination and to establish that on-money was not paid, reliance by the AO as well as the CIT(A) on the statement of Jayaram for making the addition is also not sustainable because he was only an attesting witness to the document. The attesting witness to a document is a witness only to the execution of the document, but not to the contents of the document. Therefore, his statement or the subsequent affidavit have no relevance as regards the consideration by the assessee to his vendors. But the assessee has not produced his vendors, nor has he filed confirmations from them to rebut the findings of the AO that on-money has been paid by the assessee, even in the remand proceedings. Therefore, we see no reason to interfere with the order of the CIT(A).- Decided against assessee.
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