TMI Blog2012 (8) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee also and, therefore, the document found in the course of search is definitely belonging to the assessee - Decided against assessee. Unaccounted receipt in the hands of the assessee - Held that:- A clear finding is given by Ld. CIT(A) that even in remand proceedings, no further corroborative evidence have been gathered by the A.O. to justify the addition made by him. We have already noted that even as per the statement of Shri V.A. Shah, the amount received by the assessee was on account of refund of cancellation of deal and not on account of dalali/brokerage. Considering all these facts, we do not find any reason to interfere in the order of Ld. CIT(A) for the assessment years 2003-04 and 2004-05. In assessment year 2005-06 no interference is called for in the order of Ld. CIT(A) in respect of the addition made by the A.O. of ₹ 91.50 lacs on account of alleged on money payment by the assessee or in respect of addition of ₹ 44.80 lacs ultimately not made by the A.O. in respect of receipt of dalali/brokerage by the assessee from Shri Vikas A Shah. Hence, in this year also, we decline to interfere in the order of Ld. CIT(A). - I.T.A. No.174, 175 & 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present assessee being the other part. This agreement was in relation to sale of land owned by party of one part to the parties of other part for a consideration of ₹ 1,65,73,410/-. The agreement is duly signed by the assessee and other two persons and it was duly notarized also. Considering these facts, we are of the considered opinion that it cannot be said that this document is not belonging to the assessee and, therefore, this objection of the assessee is not valid. Regarding the reliance placed by the Ld. A.R. on the judgement of Hon ble Gujarat High Court in the case of Vijaybhai N. Chandrani (supra), we find that this is noted by Hon ble Gujarat High Court in that case that 3 loose papers recovered during search proceedings do not belong to the petitioner. It is further noted that it may be that there is a reference to the petitioner having his name reflected in the lists under the heading Samutkars members and the details are given under different column against the name of the petitioners along with other members but it is nobody s case that the said document belongs to the petitioner. In the present case, not only the name of the assessee is appearing in the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-04. 7. Brief facts till the assessment stage are noted by Ld. CIT(A) in para 4 of his order for the assessment year 2003-04, which is reproduced below for the sake of ready reference: 4. So far as the grounds of appeal related to additions of ₹ 15 lakh are concerned, the basis of the addition as per the A.O's notice u/s.142(1) dated 19-12-2006 was narrated as under: 1) Please refer to page No. 39 of A-195, backside of page 8 of A-171 and 39 of A-62 on which amount of ₹ 3,000/-, ₹ 15,50,000/- and ₹ 7,000/- respectively are shown to be received by you. Please also refer to Ans. No. 38, 64 and 73 of Vikas A. Shah recorded u/s. 131(1 A) of the Act before ADIT, Mehsana. In this regard, you are required to show cause that why the same should not be added in your total income as unaccounted receipt (A.Y.03-04) The conclusion reached by the A.O. in assessment order are as under: (a) The assessee has disowned the transaction noted on page no. 8 backside of A-62, seized from the custody of Shri Vikas A. Shah. He further claimed that the amount .is stated to have been paid back and therefore, it amounts to duplication of entries being posti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are genuine. (c) As the assessee has not disclosed said receipt to the department, the same is required to be added to the total income of the assessee as unaccounted receipt. 8. Being aggrieved, the assessee carried the matter in appeal before ld. CIT(A). Ld. CIT(A) has deleted the addition and now, the revenue is in appeal before us. 9. Ld. D.R. supported the assessment order. He drew our attention to page 6 of the assessment order where it is noted by the A.O. that Shri Vikas A. Shah has categorically stated in his statement made u/s 131(1A) of the Act that Shri Amit Jadeja ₹ 15.50 lacs is a details of cash paid back towards cancellation of the deal in respect of survey No.183 of village Ganpatpura. He also placed reliance on the tribunal decision rendered in the case of Rozar Enterprise Pvt. Ltd. Vs DCIT as reported in 88 ITD 95, wherein it was held that any statement of a person who is one of the parties to the transaction has evidentiary value and, therefore,cannot be ignored. He has also given a finding that the assessee had received this amount of ₹ 15.50 lacs from Vikas A Shah as dalali/brokerage. 10. As against this, Ld. A.R. supported the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only stated that pages 31 to 43 is summary of certain payments and that he will reconcile the same in the final accounts. No such reconciliation has been brought on record by the Assessing Officer. In my view, there is no basis whatsoever for the Assessing Officer's assumption that a sum of ₹ 15,50,000 was paid to the appellant by way of dalali or brokerage. 7. In so far as the second aspect is concerned, I have considered the submissions made on behalf of the appellant. It is an accepted fact that there was no search in the case of the appellant and no document was seized. The seizure was in the case of Vikas Shah. In the circumstances, the decision of the jurisdictional ITAT in the case of Prarthana Construction and Prabhat Oil Mills referred to above are squarely applicable to the facts of the present case. Further, the decision of Hon'ble Supreme Court in the case of V.C. Shuka, supra, is relevant wherein it is held as under: From a plain reading of s. 34, It is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f argument, it is assumed that this amount ofRs.15.50 lacs represents payment on account of cancellation of deal, such amount cannot be considered as assessee s income chargeable to tax. Ld. D.R. could not controvert these findings of Ld. CIT(A) and it is also seen in the assessment order also, the A.O. has also noted on page 6 of the assessment order that as per the statement of Shri Vikas A Shah, he has categorically stated that the amount of ₹ 15.50 lacs against the name of Amit Jadeja is a detail of cash paid back towards cancellation of the deal in respect of survey 183 of village Ganpatpura and, thereafter, the A.O. has jumped to the conclusion that this receipt in the hands of the assesses is on account of dalali/brokerage without indicating any basis for holding so. Regarding the Tribunal decision rendered in the case of Rozer Enterprises, we find that in this Tribunal decision, it was held that any statement of a person who is one of the parties of the transaction, has evidentiary value and, therefore, cannot be ignored. We find that Ld. CIT(A) has not ignored the statement of Shri Vikas A Shah but as per Ld. CIT(A), even as per the statement of Shri Vikas A Shah, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further noted by Ld. CIT(A) that Shri Vikas A Shah stated that he is yet to receive ₹ 32 lacs form the assessee, which appears to be improbable because no prudent man could leave such a huge amount outstanding when the sale transaction is registered. He further noted that the land was purchased by the assessee and Kantibhai jointly and as per the documents for purchase which is registered with the sub-registrar at a value of ₹ 9 lacs and this valuation has not been challenged by the Stamp Duty Authority and, therefore, there is no reason for presumption that the assessee has made any payment in excess of the said purchase price of ₹ 9 lacs. Finally, Ld. CIT(A) has deleted this addition by stating that in the absence of any other corroborative evidence and in view of the fact that in the remand proceeding also, no further corroborative evidence have been gathered to justify the addition, the addition cannot be made on the basis of presumption and on the basis of the statement of any third party and particularly when seized document was recovered form third party s premises. Considering all these facts, we are of the considered opinion, no interference is called ..... X X X X Extracts X X X X X X X X Extracts X X X X
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