TMI Blog2004 (8) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 14,31,900 as undisclosed income under s. 69 of the Act for the asst. yr. 1993-94. 5. That, on the facts and in the circumstances of the case, the Hon ble CIT(A) has erred in confirming the addition of Rs. 1,19,948, i.e., Rs. 44,648 for the asst. yr. 1992-93 and Rs. 75,300 for the asst. yr. 1993-94 as undisclosed income in the absence of any evidence for filing IT returns for these years. 6. That, on the facts and in the circumstances of the case, the Hon ble CIT(A) has erred in confirming the addition of Rs. 2,37,643 as undisclosed income for the following assessment years being difference in income-tax returns of block period and regular returns. Asst. yr. Disclosed income as shown in block period returns Rs. Disclosed income as shown in regular returns Rs. Difference Rs. 1991-92 47,441 40,880 6,561 1994-95 86,700 54,183 32,517 1995-96 1,86,250 57,945 1,28,305 1996-97 3,43,510 2,73,250 70,260 2,37,643 7. That, on the facts and in the circumstances of the case, the Hon ble CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the drilling open of the locker on 15th Sept., 1999 as the last authorisation stood executed on 28th Aug., 1999. The assessment so made, therefore, is vitiated and needs to be quashed. 4. We have heard the parties with reference to material on record. Sec. 158BE of the Act mandates limitation for completion of block assessment within two years from the end of the month in which the last authorisation for search under s. 132 was executed. In the case of the assessee a Panchnama has been drawn on 15th Sept., 1999 with reference to pending proceedings dt.28th Aug., 1999. The sealing of the locker No. 85/5 held with United Bank ofIndia, Swaminagar,New Delhi, in the name of Puppy and Kamal was a consequence of authorisation for search under s. 132 on the assessee. It is in continuance of these proceedings the locker has been drilled open on15th Sept., 1999where the warrant is stated to be in the case of Puppy and Kamal and Shri N.K. Malhan. Under such circumstances, we are not inclined to agree with the assessee that there was no warrant in the case of the assessee on15th Sept., 1999when the locker came to be operated by the authorised officer. Under such circumstances the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards interest, from mere jottings or calculations it cannot be said that there was any liability incurred by the assessee as he is also not found to have paid the amount from his resources nor utilised the amount for his individual benefits. The Revenue did not examine these parties though the complete identity and particulars thereof were available before them. Proof of payment has also not been found. In case the calculations were made for interest, they were merely the cost estimates but cannot be said as a payment in reality or a liability incurred by the assessee. In any event the burden was on the Revenue to show that the documents represented undisclosed income of the assessee. Without bringing any corroboratory evidence by the Revenue, this burden cannot be held to have been discharged. Under such peculiar circumstances and the facts as emerging from record, the entries of Rs. 1,65,000 could not have been treated as undisclosed income of the assessee for the block period. The addition so made is, therefore, directed to be deleted. 9. Next ground relates to the addition of Rs. 50,000 made on account of investment under FDR for Rs. 50,000 on27th May, 1989. 10. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the assessee has made any investments. Any particular day, month of year has not been mentioned on the paper. There is also no material on record to prove that the assessee is contributing the amounts in shares or in any chit fund company. There is also no material on record that assessee has received any amount on maturity of any chit contribution as alleged to be belonging to the assessee. It is, therefore, stated that adverse inferences from such documents could not be drawn as they do not speak of any reality of the transaction. Reliance was made to the decision of Jagdamba Rice Mills vs. Asstt. CIT (2000) 67 TTJ (Chd) 838. 14. We have perused the aforesaid explanation and the seized document placed at assessee s paper book-I pp. 48 and 50. The document does not state of any date or the year against the entries written therein. It does not show whether the assessee has made or received any payment. It also cannot be deciphered from the said documents that the entries therein pertain to the block period. The AO also did not bring on record any material to show that any investment has been made by the assessee in any chit fund company or otherwise. The document found an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest under s. 158BFA(1) of the Act without making any specific order thereof. 19. We have heard the parties with reference to material on record. The AO did not pass any specific order for charge of interest under s. 158BFA of the Act. Perusal of the order reveals that only the penalty proceedings under s. 158BFA have been initiated. We have perused mandatory provisions in this respect contained in s. 158BFA(1) which deals with charging of interest on undisclosed income determined under cl. (c) of s. 158BC of the Act where the return is furnished after the expiry of period specified in the notice or is not furnished in compliance to the notice. Sub-s. (2) of s. 158BFA mandates levy of penalty on undisclosed income determined under cl. (c) of s. 158BC if it is more than the returned income. Since s. 158BFA deals with levy of interest and levy of penalty under two different sub-sections and the AO initiated only the penalty proceedings under s. 158BFA, it is therefore evident that no specific order for charge of interest as stated hereinabove has been made by the AO. Since no specific order has been made, no demand on account of interest could be raised on that count. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial to hold that the amount of gifts represented undisclosed income of the assessee. He, therefore, supported the decision taken by the learned CIT(A) who had co-terminus powers and held that the gifts were genuine. It was therefore contended that there is no merit in the ground raised by Revenue. 22. We have heard the parties with reference to material on record. This is an admitted fact that the gifts aggregating to Rs. 40,50,000 by assessee or his dependents stood duly disclosed prior to the date of search in the regular returns filed by them. As a result of search, no incriminating document was found to show that the amount of gift represented undisclosed income for the block period of the assessee. The identity and capacity of the donors had also been proved as the assessee has filed evidence and explanation by way of gift deeds from the donors who paid the amount of gifts by way of cheques and the amounts were actually received as gifts by these persons. Under such facts merely on the basis of suspicion, the amount could not have been treated as undisclosed income of the assessee. Furthermore, all the facts were available before the assessing authority. Even after carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as recorded the actual sale consideration of Rs. 36 lakhs for the portion of ground floor sold by it in the regular books of account. A copy of sale deed was placed at assessee s paper book at pp. 86-88 and was also available with the assessing authorities. Despite this, the buyer has not been examined to disprove the claim of assessee. The Revenue has not discharged their burden to prove that the actual sale consideration is Rs. 1.65 crores and not Rs. 36 lakhs as disclosed by the assessee. No contrary material has also been placed on record to prove that the CIT(A) s finding is perverse and is not based on material on record. In that view of the matter no error can be found in the decision arrived at by her. The addition so deleted by the learned CIT(A), therefore, calls for no interference at our end. We, therefore, confirm her decision and find no merit in ground raised by Revenue which stands rejected." 25. For the parity of reasons as taken in Shri D.D. Malhan s case we do not find any merit in the ground raised by Revenue. The same stands rejected. 26. In the result, assessee s appeal stands partly allowed and that of Revenue stands dismissed. - - TaxTMI - TMITax - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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