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2015 (9) TMI 62 - ITAT AHMEDABAD

2015 (9) TMI 62 - ITAT AHMEDABAD - TMI - Addition of unaccounted payment of ₹ 20 lacs added u/s. 158BC - CIT(A) deleted the addition - Held that:- Revenue's sole endeavor is to get restored the impugned addition of ₹ 20 lacs by way of unaccounted investment unearthed in the course of search. It has come on record that balance sum of ₹ 45 lacs already stood declared in the return. The Assessing Officer himself observes that this remaining sum of ₹ 20 lacs was yet to be pai .....

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:- This Revenue s appeal for block period from 01.04.1986 to 27.02.1997, arises from order of the CIT(A)-II, Surat dated 09-05-2011 in appeal no. CAS-II/395/10-11, in proceedings under section 158BC r.w.s. 254 of the Income Tax Act, 1961; in short the Act . 2. The Revenue s sole substantive ground challenges the CIT(A) s order deleting addition of unaccounted payment of ₹ 20 lacs added u/s. 158BC of the Act. The case file reveals that the original assessee has expired. Case called twice. T .....

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troduced in the family business and an amount of ₹ 45 lacs paid/received by the family. The CIT(A) deleted the same in his order dated 27-04-2000. The Revenue came in appeal. A co-ordinate bench restored the same back to the Assessing Officer in its order dated 26-06-2009 as under:- "We find from the arguments of the LD. DR as well as the grounds raised before us by the Revenue, it is gathered, that the CIT(A) has not considered the loose papers seized during the course of search for .....

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rbhai Lakhani that ₹ 25 lakh was paid by cash about one year prior to search in five installments of ₹ 5 lakhs each. It was also stated that ten shops in beljium Tower, Silver Plaza, Near Linear Bus stand, Ring Road,. Surat valued at ₹ 20 lakhs was also handed over to Shri Kishorbhai Ratilal Naik. We find that CIT(A) was not considered these facts, while allowing the relief to the assessee. Accordingly, we are of the view that this issue needs re-examination at the level of the .....

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sponse. The Assessing Authority would refer to earlier assessment order, assessee s statement recorded during search and observed on the issue of total unaccounted investment of ₹ 65 lacs that a sum of ₹ 25 lacs stood paid about a year before search in installment of ₹ 5 lacs each, 10 shops of ₹ 2 lacs each had been given for ₹ 20 lacs and the balance sum of ₹ 20 lacs was yet to be paid. He quoted assessee s conduct in offering only a sum of ₹ 45 lacs fo .....

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accepted his corresponding grounds as under:- 8.2.1 The second ground of appeal is against the merits of the addition. The appellant's submission, on this ground of appeal, reproduced above, is also on merits. The Assessing Officer has assessed the income of the appellant at ₹ 26,21,710/-, as under: (i) As admitted by Shri Anwarbhai Lakhani during the course of search on 27-02-1997 total consideration amount for acquiring of 67% share in the business of petrol pump in the name of M/s. .....

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20,00,000/- i.e. the difference between ₹ 65,00,000 (-) ₹ 45,00,000 (Rs. 25,00,000 + shops valued at ₹ 20,00,000) claimed to be payable on the date of search, has been added on the ground that, Annexure B-3, of the Panchnama was found and seized during the course of search from the premises of the deceased appellant on 27-02-1997 and page nos. 6 to 8 of the same show that amount of ₹ 31,53,217/- has been introduced in cash by Lakhani Group in M/s. R.H. Patel & Co. and .....

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has thus held that the proof of payment of ₹ 20,00,000/ - was in the form of evidence of payment of ₹ 6,53,217/- found on pages 6 to 8 of the seized document Annexure-B 3. (iii) The Assessing Officer has also added ₹ 6,21,710/- as undisclosed income which is represented by unexplained investment in furniture & fixtures (Rs. 40,800/-), cash seized (Rs. 5,71,170) and FD in Sardar Sarovar Nigam Ltd. (Rs. 10,000/-), which has been disclosed by the legal heir of the deceased app .....

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mp; Co. and was also not able to give any explanation regarding certain books found as per Annexure-B, at the premises searched, and stated that he would submit the same in the office of the authorized officer / ADIT. (iii) Shri Anwarbhai Lakhani during his examination on oath on 23-03- 1999, stated that ₹ 45,00,000/- was paid by way of cash payment of ₹ 25,00,000/- and value of shops at ₹ 20,00,000/-, and no other amount remained to be paid. In reply to a question as to whethe .....

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ed 27-02-1997, said that he did not have any such personal knowledge. 8.2.3. Shri Kishor Naik in his statement recorded on 23-03-1997, in reply to a question that remaining amount of ₹ 20,00,000/-, as decided between the two parties had to be paid in December 1997 stated that he has not sold the petrol pump,, but only land surrounding the petrol pumps and has also executed documents for the same and, for reducing his share in the petrol pump to 33%, he received ₹ 45,00,000/- and not .....

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i Naik. 8.2.5. In the case of R.H. Patel &' Co. and Shri Kishorbhai Naik addition of ₹ 20,000,000/- made on the said account has been deleted. 8.3.1 Upon 'consideration the above facts, I find that during the course of search on 27-02-1999, although it was admitted that the deal made by the appellant for taking over 67% share in the firm M/s. R H. Patel & Co. was for ₹ 65,00,000/-, out of which, ₹ 20,00,000/- was stated to be payable by December 1997, however, t .....

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e Assessing Officer, therefore, on the basis of the said document further held that the entire amount of 20,00,000/- which was stated to be payable, had actually been paid in cash before the date of search, and added the same as unaccounted income of the appellant. 8.3.2. I, therefore, find that even if the finding of the Assessing Officer that out of the balance amount of ₹ 20,00,000/- stated to be payable, evidence of payment of ₹ 6,53,217/- has been found in the form of entries in .....

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77; 31,53,217/- in pages 6 to 8 of seized document Annexure-B3, as payment made by the appellant towards taking over 67% share in the firm M/s.. R H Patel & Co, whereas, the Hon'ble Tribunal has in the order, recorded that Annexure-B3 contained the heading R H Patel & Co. and various other concerns and further that some of the entries in the above pages was by way of cheques and were found to be reflected in the accounts of M/s. R H Patel & Co. therefore, if out of the entries of .....

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