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2016 (11) TMI 1367 - AT - Income TaxUnaccounted income from sale of property - CIT(A) deleted the addition holding that the seized document does not belong to the assessee - validity of assessment u/s 153C - Held that:- There is no absolute or limited ownership of the assessee over the seized documents apart from the fact that the transactions recorded therein pertain to properties owned by the assessee. Now the requirement under the law is not regarding the ownership of the properties mentioned in the seized document but it is regarding the ownership of the document itself. As there is no intimate connection between the contents of the seized documents and the assessee and neither there is any other corroborative evidence to the effect that the assessee had received the cash portion recorded in the seized document therefore the requirement under the law that the seized document should belongs to the assessee for initiation of proceeding u/s 153C of the IT Act are not fulfilled in the case of the assessee. Therefore, Ld. CIT(A) has rightly held that the addition made based on the papers seized from the computer at the residential premises of Sh. Sandeep Singh Khinda and Smt. Samta Khinda are not in accordance with law and was therefore rightly deleted by the Ld. CIT(A). Also reference to the name of person in the seized document cannot be the basis to come to the conclusion that the document belonged to the said person. Proceedings initiated on the basis of the such assumption u/s. 153C were held to be without jurisdiction. See Vijaybhai N. Chandrani Versus Assistant Commissioner of Income-tax [2010 (3) TMI 770 - Gujarat High Court] - Decided against revenue Addition unaccounted income or receipt during the year under consideration on sale of Property applying Sec 292C - non reference to DVO - Held that:- There is thorough lack of corroborative and confirming evidence and thorough lack of enquiry on the part of AO where all cases were with him only. No attempt is made to make reference to DVO by AO or CIT-A. There is no examination of any concerned witness/party to transaction. Only suspicion has weighed to make the colossal addition. There is no hidden bank a/c so as to transact the given money. There is no bayana agreement or any other adversarial document found during extensive search operation specific to charge made. The charge made against the assessee only resolves around a single piece of Paper which is not handwritten from any of the transacting parties. Even if the document is taken on face value than no gainful premium construction can be taken as neither the seller} nor the buyer is taken on board at the time when this subject paper was found. This paper is out of syllabus for Mr. Sandeep Khinda not being the owner of the property. Section 292C being rebuttable presumption cannot made assessee's burden to be infallable as the same can't be elevated to be proven to the hilt i.e as far as Sudhiksha is concerned, assumption of jurisdiction u/s 153C is concerned to make a document to be belonging to the assessee, presumption u/s 292C can't be resorted i.e belonging to criteria can't be satisfied on the basis of presumption & assumption. As per record Mrs. Sudhiksha Singh another assessee had disclosed this transaction voluntarily in normal course by paying due capital gain u/s 50C read with section 48 i.e there is no sanction & under the present law to tax a seller over & above the given transaction rate which is well considers the applicable rate otherwise sec 50c will become redundant. This can be a fiction in fiction i.e. 292 can't be infused a incorporated in section 50c. In our view, suspicion how grave & strong can't substitute the place of reliable cogent evidence to fasten a tax liability. Thus as in the present case, the detail of the property i.e D-17 Pushpanjali, against which it has been alleged by the Ld AO that" On Money" has been received against the sale of property was never owned by the assessee. However, there is no iota of evidence with the Department to suggest that loose sheet disclose receipts resulting in an undisclosed income on the part of the assessee. Therefore there is no question of assessing any income in the hands of the assessee .- Decided against revenue Protective addition of income - Held that:- CIT(A) has rightly observed that since the source of the investment in cash for ₹ 74 lacs is forming part of the cash of ₹ 3.50 crores which has been held as unaccounted income of Sh. Sandeep Singh Khinda in his appellate order for AY 2007-08, therefore, the amount of ₹ 74 lacs is a case of application of income already brought to tax on substantive basis in case of Sh. Sandeep Singh Khinda. Accordingly, he directed the AO to delete the protective addition of ₹ 74 lacs in the case of assessee i.e. M/s Habitat Royale Projects P Ltd. made by AO. However, as aforesaid, in the case of Sandeep Singh Khinda vide for the assessment years 2007- 08 and 2008-09, we have already deleted the addition of ₹ 3.50 crores and ₹ 17.50 crores respectively, therefore, the question of deletion of addition of ₹ 74 lacs does not arise as the investment in cash for ₹ 74 lacs was forming part of the cash of ₹ 3.50 crores - Decided against revenue
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