TMI Blog2014 (9) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... elonged to the assessee although it was requisitioned from the possession of an another person, hence, the action u/s. 153C was rightly initiated against the assessee – Decided against assessee. The document is written in gujarati which was duly signed by the concerned two parties in the presence of the witnesses - the document has been signed in the name of God as also in the presence of the witnesses - it is difficult to hold that the said document was merely a dumb document or an irrelevant document - the amount of the construction, as well as the details of the plot have clearly been noted - The assessee was given sufficient opportunity to rebut the said document but he has preferred not to attend properly the proceedings before the AO - in a situation when any books of account or documents, etc. have been delivered to the requisitioning officer having jurisdiction over "such other person" i.e., other than the person who has been searched; then those documents, etc., delivered or requisitioned shall be dealt with as if they have been found in the possession or control of "such other person" against whom the proceedings have been initiated u/s.153C of IT Act - Such books of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e document in question, i.e., MOU; was not found from the possession of the assessee. The said document was recovered from one Sri Vikash A. Shah who was searched u/s.132(2) on 9th of February, 2005. The impugned MOU was seized from his vehicle. That vehicle was owned by Sri Vikash A. Shah and not by the assessee. Because the said document was found in possession of Sri Vikash A. Shah, therefore, in the light of the provisions of Section 132(4A), the same belonged to Sri Vikash A. Shah and not to the assessee. Learned AR has referred Sec.132 (4A) for the legal proposition that the statute prescribes that a document or a valuable article belongs to a person in whose possession it was found. He has further advanced his argument that the proceedings against this assessee were initiated by invoking the provisions of Section 153C of IT Act wherein the statute has prescribed that where the AO is satisfied that any money, jewellery, books of account, documents etc, seized or requisitioned belong to a person other than the person referred in Section 153A then the books of account shall be handed over to the AO having jurisdiction over search other person. He has argued that the admitted fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase law cited in the light of the facts of the case. A search was conducted on Sri Vikash A. Shah u/s.132 of IT Act on 9th of February, 2005 and thereupon certain documents were recovered / seized from a vehicle stated to be owned by Sri Vikash A. Shah. There was a document in the nature of Memorandum of Understanding . A photocopy of the said document is placed before us at pages (15) and (16) of the paper book. Admittedly, one of the signatory is assessee in question. On the basis of the said document, the AO had initiated the proceedings u/s.153C of IT Act. 6.1 Now the legal question before us is that whether under these facts the AO was legally justified in invoking the proceedings u/s.153C of IT Act. The appellant's argument is that in a situation when the impugned document was not found in the possession of the assessee then it did not belong to the assessee. Consequently, the proceedings u/s. 153C were illegally initiated against the assessee. 6.2 We have perused Section 132(4A) of IT Act which is a deeming sub section and states that where any books of account, or other documents etc, is found in possession or control of any person in a course of a search the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the provisions of IT Act and sub section (1) of this Section prescribes that where any books of account, other document, money, etc., is found in the possession or control of any person in the course of a search u/s. 132, it may be presumed that such books of account, etc., belongs to such person. Upto this extent the language tallies with the language of Section 132(4). However, sub section (2) of Section 292C has clarified the controversy in respect of the terminology belong to could have arise while challenging u/s. 153C of the IT Act for ready reference, Section 292C (2) is reproduced below: Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of Section 132A, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub section (1) of Section 132A, had been found in the possession or control of that person in the course of a search under section 132. This sub Section prescribes how to treat the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any value. For this purpose, the Respected Bench has also cited Central Bureau of Investigation v. V.C. Shukla [1998] 3 SCC 410. Rather, the decision of Gujarat High Court in the case of Kamleshbhai Darmeshbhai Patel (supra) as cited by learned DR is relevant to follow, firstly because of the reason that the decision cited by learned AR of Vijaybhai N. Chandrani (supra) has duly been considered by the Hon'ble Gujarat High Court and that decision was also distinguished. The Hon'ble Court has discussed the provisions of Section 153C of IT Act and thereupon it was held that, quote Likewise, the documents of sale also can be stated to belong to the petitioners. It is not in dispute that the petitioners were the sellers of the lands. They do not either doubt or dispute the documents of sale, or their respective signatures thereon. Term belong is not defined and does not have legally technical connotation and therefore, we once again fall back on the dictionary meaning of the same. We need to ascertain if such document can be stated to have relation or reference to to the petitioners. As noted, the petitioners were as sellers of the land, parties to the documents. They had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side of A-178, which is the MOU between assessee and Vikas A. Shah duly signed, clearly establish that the assessee has entered into various transactions with Vikas A. Shah and Mansi Builders and assessee is closely associated with Vikas A. Shah and Mansi Builders Ltd. It is also established from the above discussion that the seized paper belong to assessee and transactions noted on said papers are genuine. In the case of Roger Enterprises (P.) Ltd. v. Deputy Commissioner of Income Tax Hon'ble ITAT, Delhi (88 ITD 95 ITAT Delhi B Bench) has held that nay statement of a person who is one of the party of the transaction/transactions has evidentiary value and therefore cannot be ignored. Here in the instant case both the assessee and Shri Vikas A. Shah has signed the MOU dated 16.5.2001 in which an amount of ₹ 12,24,000/- was shown to be paid by the assessee to Vikas A. Shah against allotment of a plot admeasuring 3675 sq. yds. in Chitvan Scheme developed by Shri Vikas Shah and Mansi Builders. Moreover, seized documents also clearly establish business transactions relating to land between assessee and Shri Vikas A. Shah. Since, the assessee has not disclosed said inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which plots admeasuring 3675 sq.yd. in Chitvan Scheme @ ₹ 353/- per sq. yard amounting to ₹ 12,24,400/-is agreed to be allotted to the appellant in any name which he wishes. This MOU clearly states that the appellant had to receive ₹ 12,24,000/- from Shri Vikas Shah and in lieu of that a plot at Chitvan was to be allotted either in the name of the appellant or in any other name he wishes. It is not necessary that the plot was allotted in the name of the appellant as per MOU. Once the appellant is one of the signatory of the MOU, he becomes party to it. In that case (the documents seized from) Vikas Shah does not become third party but second party. The case of the appellant is different from the case laws cited by the appellant because in those cases some entries were appearing in the documents of seized party. Here the document does not represent any entry but it is an agreement duly signed by the appellant in the presence of five witnesses. Prima facie this MOU would be presumed to be correct, unless the appellant proves otherwise. The onus to prove that the transactions as per MOU are not correct, lies on the appellant and not on the department, as alleged by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; hence, no interference was called for. 10. We have heard both the sides, the seized material and the connected case laws have been considered. The document in question is written in gujarati which was duly signed by the concerned two parties in the presence of the witnesses. On the top of the document dated 16.05.2001, as customary, name of the Lord Ganesha is also noted. Undisputedly, the document in question has been signed in the name of God as also in the presence of the witnesses. Considering the nature as well as the text of the document it is difficult to hold that the said document was merely a dumb document or an irrelevant document. In this document, the amount of the construction, i.e., ₹ 12,24,000/- as well as the details of the plot have clearly been noted. Therefore, we are not convinced with the argument of the learned AR that the undisclosed investment did not belong to the assessee. The assessee was given sufficient opportunity to rebut the said document but he has preferred not to attend properly the proceedings before the AO. 11. As far as the decisions relied upon by the assessee are concerned those are distinctly distinguishable on facts as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
