TMI Blog2015 (7) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case are that the assessee is a partnership firm which is engaged in the business of real estate. There was a search in the premises 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 Tribunal remanded the issue to the file of the AO to establish that the assessee has paid onmoney and that such paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 of CIT vs Vatika Township Pvt. Ltd., dated 15/9/2014 reported in (2014) 109 DTR(SC) 33 wherein it was held that the provisions of sec.113 are only prospective in nature and are not applicable to searches conducted prior to 1/6/2002. Copy of the said judgment is filed before us. Having heard both the parties and respectfully following the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 ought to have been given an opportunity to cross-examine the party before relying on his statement to make the addition. 7. The learned Departmental Representative, on the other hand, supported the orders of the authorities below and submitted that the assessee did not co-operate with the AO in the remand proceedings and did not produce relevant parties for examination by the AO. He submitted that Shri Jayaram had been examined by the AO u/s 131 and it was the stand of the assessee all along that Jayaram was, in no way concerned with the transaction and his statement cannot be relied upon. He sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry, the AO was not justified in making the addition in the block assessment towards purchase consideration of land merely on the basis of the statement of seller who gave conflicting statements. Thus, according to him, the addition made by the AO on the basis of statement of Jayaram and also the non-speaking document found and seized during the course of search is not sustainable. 9. Having regard to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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