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M/s. HM Constructions Versus Asst. Commissioner of Income-tax

2015 (7) TMI 353 - ITAT BANGALORE

On-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 recorde .....

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uring 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 point .....

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. 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. - IT(SS)A No.9/Bang/2014, IT(SS)A No.10/Bang/2014 - Dated:- 23-3-2015 - .....

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mises of the assessee as well as the partners of the assessee on 29/5/2001 u/s 132 of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short]. During the search proceedings, certain incriminating documents were found and seized. During the assessment proceedings u/s 143(3) r.w.s.158BC of the Act, the Assessing Officer (AO) made certain additions on account of on-money paid by the assessee for purchase of immovable property. The issue travelled up to the Tribunal and the .....

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e assessment order passed earlier. 4. Aggrieved, the assessee preferred an appeal before the CIT(A) along with an application to admit the affidavit of one Jayaram as additional evidence in terms of rule 46A. The CIT(A) after considering that the assessee was given ample opportunities by the AO and that the assessee was not cooperating or assisting the AO to complete the assessment and on further examination of the affidavit given by Jayaram, held that the signatures of Jayaram were not tallying .....

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prospective in nature and cannot be applied in the assessee s case where search was conducted on 29/5/2001. Against the relief given by the CIT(A) against levy of surcharge, the revenue is in appeal before us while against confirmation of the addition on account of on-money allegedly paid by the assessee, the assessee is in appeal before us. 5. As regards the revenue s appeal, the learned counsel for the assessee has drawn our attention to the judgment of the Hon ble Supreme Court in the case o .....

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l is concerned, the learned counsel for the assessee has drawn our attention to the document found and seized during the course of search which is at page 70 of the paper book and submitted that the assessee had purchased two properties from two different vendors i.e. Smt.Venkatamma and Smt.Venkatanarasamma who had also executed the registered sale deeds in favour of the assessee. He submitted that the assessee had paid sale consideration as recorded in the registered sale deeds and there was no .....

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submitted that the assessee had filed additional evidence before the CIT(A) in the form an affidavit of Jayaram who is a signatory to the registered sale deed as attesting witness and had stated that there was no on-money paid by the assessee. He submitted that the CIT(A) has erroneously rejected the additional evidence on the premise that the signature of Jayaram did not match with his signature during the course of recording of statement u/s 131 of the Act. He submitted that the assessee ough .....

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yaram was, in no way concerned with the transaction and his statement cannot be relied upon. He submitted that the assessee had himself filed the affidavit of Jayaram before the CIT(A) stating that he was aware of the transaction and that there was no on-money paid for the transaction. He submitted that these averments of Jayaram were contrary to the earlier stand of the assessee. Therefore, according to him, the CIT(A) has rightly rejected the contentions of the assessee as well as additional e .....

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probable that the registered sale deed would have been executed without payment of on-money. Therefore, according to him, the order of the CIT(A) was well reasoned and needs no interference. 8. The learned counsel for the assessee, on the other hand tried to rebut the findings of the CIT(A) and has also placed reliance upon the judgment of the Hon ble Kerala High Court in the case of CIT vs. Smt. K.C.Agnes(262 ITR 354) and the judgment of the Hon ble Supreme Court in the case of CIT vs. P.V.Kal .....

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o the rival contentions and the material on record, we find 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. It is also not in dispute that the sale deed was reg .....

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money and therefore it was set aside to the file of the AO for the assessee to establish that on-money was not paid. The AO was directed to examine the issue on the basis of preponderance of probabilities after examining the parties to the transaction. 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 underta .....

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