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2016 (1) TMI 981 - ITAT PUNE

2016 (1) TMI 981 - ITAT PUNE - TMI - Addition u/s 69B as unexplained investment - validity of assessment u/s 158BC(c) - arguments on behalf of the Assessee is that the document found in the course of search namely ‘Sanchakar Patrika’ is unsigned by the Assessee and thus just a mundane and extraneous piece of paper not intended to be acted upon - as per assessee the statement recorded under S. 132(4) during the course of search has been retracted. Notwithstanding, the evidentiary value of the sta .....

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ssee has not signed the impugned document. But this fact can not be seen to be overriding. The overwhelming fact is that document itself has been found in the custody of the Assessee at the time of search. Thus, the Assessee is deemed to be a party to such deal on stipulated terms unless shown otherwise. There is another aspect of the matter. The same plot which is subject matter of impugned agreement was finally sold to the Assessee albeit in the name of minor son purportedly through a regular .....

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the block assessment was taken up. No evidence has been placed before us to demonstrate that statement under section 132(4) given during the course of search has been successfully withdrawn. We do not find any material on record to show that there was any kind of duress or intimidation or coercion which forced the assessee to give any untrue declaration of such kind.

The provision of S. 132(4) is plain and simple. The authorized Income Tax official is entitled to examine any person o .....

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ll come into play only when the valuation of a given asset is not discernible or determinable from the underlying documents. When the plot was agreed to have been purchased at a given rate, it is for nobody else to estimate a different rate dehors the mutually consented document. It is common knowledge that there is rampant deployment of unaccounted money in land transactions. Coupled with this, there is no whisper about the occasion as to why the parties prepared such allegedly weird document a .....

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plicability of S. 142A with retrospective effect or otherwise is only academic in the present case.

We have also weighed the fact that the sellers in its Statement in survey proceedings under S. 133A of the Act have endorsed the version of the Assessee. The statement of seller is not before us. Nevertheless, we do not find any substance in such purported statement which is contrary to written document signed by them. Also, the statement recorded under S. 133A does not have the same le .....

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e equities and would be a fair estimate.

Addition towards sale proceeds received on sale of silver articles and estimated 5% commission thereon treated as unexplained receipt and thus undisclosed income - Held that:- It is admitted position that no incriminating document showing any unaccounted sale or investment has been found. The entries already recorded in the books cannot be source of addition / disallowance in block assessment. Some flippant or sweeping statement covering such l .....

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ov. 1993 to March 1994. Since, there is no incriminating documents are available on record in respect of balance period, no liability arises to the Assessee for estimation in respect of the rest of the period. Therefore, AO is directed to restrict the disallowance amount in conformity with seized material only.

Addition on treating M/s D.R. Textiles, a partnership firm as benami firm of the Assessee - Held that:- It is admitted position that wife of the Assessee has contributed initia .....

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iated. - ITA No.964/PN/2002, ITA No.965/PN/2002, ITA No.09/PN/2005, ITA No.10/PN/2005, ITA No.478/PN/2003 - Dated:- 30-10-2015 - MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Appellant : Shri M. K. Kulkarni For The Respondent : Shri Achal Sharma ORDER PER PRADIP KUMAR KEDIA, AM : These are bunch of five inter connected appeals arising against separate orders of Commissioner of Income Tax( appeals) Pune arising from the respective assessment orders passed by the Assessing officer .....

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02 relating to block assessment period 1989-90 to 1998-99 passed under section 158BC(c) of the Income-tax Act, 1961 (in short the Act ). 3. In this appeal, the assessee has raised the following Concise Grounds of Appeal :- 1) On the facts and in the circumstances of the case the Ld. CIT(A) erred in making addition of ₹ 7,44,000/- u/s 69B as unexplained investment in respect of the plot No.194/8 at Waliwade treating it as undisclosed income of the Appellant. 2) On the facts and in the circu .....

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les and thereby treating ₹ 2,86,656/- as undisclosed income of the block period. 4) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the addition of ₹ 1,76,000/- u/s 69B as unexplained investment in respect of the plot No.194/9 at Waliwade purchased by the Appellant s son and treating it as undisclosed income of the Appellant. 5) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the addition of ₹ 1,09,764/- .....

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ce given to Kathade Collections being ₹ 50,000/- as undisclosed investment and thereby, treating it as undisclosed income. 8) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the action of the A.O. in treating the sales of ₹ 3,40,654/- as unaccounted sales and estimating the initial investment of ₹ 85,163/- and G.P. of ₹ 22,994/- as undisclosed investment and income for the block period, without considering the facts and the explanation .....

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a Partnership firm as Benami firm of the Appellant and his brother and making addition in respect of ₹ 1,70,066/- (Rs.1,63,428/- + ₹ 6,638/-). 11) On the facts and in the circumstances of the case the Ld. CIT(A) erred in treating Banti Garments as Benami of the Appellant and making addition in respect of ₹ 14,145/-. 12) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the addition of ₹ 12,09,000/- u/s 68, treating the amounts received .....

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below:- 4.2 The assessee is engaged in wholesale cloth business at Gandhinagar under the name and style of M/s Amrutlal & Company . The assessee was subjected to search and seizure action under section 132 of the Act and accordingly block assessment for the period beginning from assessment year 1989-99 upto 1998-99 were carried out under section 158BC(c) of the Act by the Assessing Officer vide its order dated 27.09.2000. The search was conducted on the business and residential premises of t .....

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and Shri Ghansham Jasumal Khubchandani (ITA No.10/PN/2005) as sellers on the other hand. As per this agreement, the assessee and his brother agreed to purchase R.S. No.194/8 admeasuring 30492 sft. at Valiwade @ ₹ 65/ per sft. An advance of ₹ 2,00,000/- in cash was also given. 4.4 It was found that subsequently this plot was purchased in the names of their minor sons by the assessee and his brother vide a sale deed dated 22/12/93 by making payment of ₹ 1,24,000/- only for 28000 .....

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ale, ₹ 2,00,000/- was advanced on 07/07/93, the balance was to be given by December, 1993 and the purchase transactions was finalized. A sum of ₹ 2,00,000/- and also the balance amount were given out of books and the entire amount of ₹ 18,57,980/- was unaccounted money. 4.5 On the basis of the seized documents, the admission made by the assessee, the Assessing Officer proceeded to arrive at the undisclosed investment of the assessee in respect of plot no.194/8 in the following .....

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- under section 69B of the Incometax Act and added the same to be undisclosed income of the block period. 4.7 The Assessee assailed the order the AO on many grounds before the CIT(A). The Assessee contended that no addition can be made only on the basis of some statement made during the course of search unless some concrete evidence is found. The following decisions have been relied upon by them : • ACIT vs. Govindan (63 TTJ 271) (Bang); • Nagindas Dahyabhai Patel vs. ACIT (104 Taxman .....

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were only middlemen. The plot of land of 28000 sft. was actually purchased for ₹ 1,24,000/-, which comes to 4.42 per sft. . During the block period, a further sum of ₹ 2,08,000/- has been offered on the basis of approved valuer s report thus, making the total investment in the cost of plot to ₹ 3,32,000/- (@11.85 per sft.). It has further been submitted that immediately after the search, survey action was also taken on Khubchandanis and they have also stated that the plot was .....

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that at the material time, the lands were sold at much cheaper rate in Kolhapur and the adjoining areas : Regn. No. R.S. No. Date Area trasnf Amount (Rs.) Rate per sq.ft. (Rs.) 6665 194/8 12.5.93 28R 84,000 3.00 8010 194/8 17.5.96 10,000 sq.ft. 42,000 4.20 6664 194/8 12.12.93 28R 1,24,000 4.42 (Assessee s transaction) 4.10 It was further contended on behalf of the Assessee before the CIT(A) that once the Assessing Officer has referred the matter to Valuation Officer for determining the cost pri .....

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(Gau) 4.11 The CIT(A) on consideration of entirety of factual matrix confirmed the action of the AO. The operative part of the order of the CIT(A) is self explanatory and is reproduced below for ready reference :- 21. I have gone through the order of the Assessing Officer as well as the detailed submission made on appellant s behalf. It is not disputed that the Sanchakar Patra i.e. the agreement to sale was recovered from the premises of the appellant and, therefore, the relevance of the docume .....

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wn till the assessment of the appellant for the block period was taken up. The first such retraction took place in assessee s submission before the Assessing Officer on 11/08/2000. Therefore, the Assessing Officer was justified in relying on the seized document, and the statement of the appellant made under section 132(4), which were retracted much later i.e. about two years from the date of recording, which can only be considered as an afterthought. In the present circumstances of the case, eve .....

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ce of evidence but it cannot be said that it is conclusive. It is open to the assessee who made the admission to show that it is incorrect. Nagubai Armal vs. B Sharma Rao AIR 1956 SC 100 - An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weigh to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue. Sarwan Singh Rattan Singh vs. State of Punjab (1957) SC 637 - In la .....

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SC 100 - An admission is the best evidence that an opposite can rely upon and though not conclusive could be decisive of the matter, unless successfully withdrawn or proved erroneous. Avadh Kishore Dass vs. Ram Gopal AIR 1979 SC 861 - Admission Evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppels and shift the burden of proof on to the person making them or his representativein- interest. Unless shown or .....

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t to say that addition has been made only on the basis of admission. 25. Further, argument made on behalf of the appellant that the report of Valuation is binding on the Assessing Officer is also not correct because only when the matter is referred by the Assessing Officer to the Valuation Officer under section 55A of the Income-tax Act for capital gain purposes only then the advise of the Valuation Officer is binding on the Assessing Officer. In the present case, the addition has been made by t .....

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t if the purchasers and the sellers of the property mutually agree with the transaction at a rate higher or much higher than market rate. In the circumstances of the case, it is held that the Assessing Officer was justified in relying on the seized document and admission of the appellant that the plot of 28000 sft. was purchased by the appellant @ ₹ 65/- per sft. The consideration was given out of unaccounted fund of the appellant and his share of unexplained investment has properly been w .....

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intended to be acted upon and hence cannot be relied upon. The statement given under S. 132(4) has been retracted and thus cannot be relied upon. The so called sellers i.e. Khubchandanis have also stated that the plot was sold for ₹ 3,32,000/- in the survey action on them. The approved valuers report gives the value of plot at ₹ 3,32,000/- @ 11.85 per sq. ft. and accordingly differential price 2,08,000/- has been offered for taxation by the Assessee. The ld. AR thus contended that th .....

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of S. 142A in the light of retrospective amendment. S. 142A vests power with the AO to make reference to the valuation for determining the investment referred to under S. 69 of the Act and the said section 142A is deemed to be in force w.r.e.f. 15-11-1972 as per amendment brought out by Finance (No. 2) Act 2004. The learned AR submitted that an appeal is only continuation of the assessment proceedings and therefore the ITAT can take cognizance of the amendment with retrospective effect. Subsequ .....

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nk of the arguments on behalf of the Assessee is that the document found in the course of search namely Sanchakar Patrika is unsigned by the Assessee and thus just a mundane and extraneous piece of paper not intended to be acted upon. It does not thus yield any evidentiary value. The next limb of argument is that the statement recorded under S. 132(4) during the course of search has been retracted. Notwithstanding, the evidentiary value of the statement stands rebutted by the valuation report of .....

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seen to be overriding. The overwhelming fact is that document itself has been found in the custody of the Assessee at the time of search. Thus, the Assessee is deemed to be a party to such deal on stipulated terms unless shown otherwise. There is another aspect of the matter. The same plot which is subject matter of impugned agreement was finally sold to the Assessee albeit in the name of minor son purportedly through a regular agreement. Thus, the deal understandably entered into by this MOU fi .....

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o demonstrate that statement under section 132(4) given during the course of search has been successfully withdrawn. We do not find any material on record to show that there was any kind of duress or intimidation or coercion which forced the assessee to give any untrue declaration of such kind. The onus in any case is on the assessee to establish the fact of coercion or duress at time of original statement which has not been discharged. As noted earlier, the confessional statement is not bare bu .....

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and bald retraction is not capable of casting any aspersion on the original statement. While giving the statement, the deponent Assessee having special knowledge of the facts and privy to impugned document made assertions to this effect. In the absence of any proved allegation of coercion etc. or any other material circumstances adequate to impeach the true and voluntary character of the statement, the contents of the statement which endorses the hand written document seized is to be necessarily .....

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or control of such documents etc. and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Act. We do not find anything to show that the Assessee had successfully withdrawn the original statement and in view of the seized document noted above there is no merit in the stand of the assessee. 7.4 The Ld. AR on behalf of the Assessee sought to canvass that the rate i.e. ₹ 65 per sq. ft. towards purchase of impugned plot is hi .....

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ase. Handwritten tangible document duly signed by other side (seller) was discovered from the premise of the Assessee. The acquisition of plot did take place from the same party. The Assessee itself vouched the purchase price in the self damming confession under S. 132(4) in tune with the impugned document. The overt evidence found in the course of search expressing mutually agreed rate cannot be shunned and brushed aside on the face of these facts. The question of adoption of rate estimated by .....

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s prepared such allegedly weird document at the allegedly exorbitant and non prevalent rate. Once, the confessional statement under S. 132(4) itself has been found to be admissible on facts and raised estoppel against the assessee and consequent burden not found to have been discharged by the Assessee, the subsequent valuation indicating plausible and rational price is of no relevance. There is no scope for assumption and presumption when speaking evidence for a given price has been found in sea .....

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r S. 133A does not have the same legal sanctity qua the statement recorded under S. 132(4). 7.6 In the totality of facts and circumstances, We concur with the findings of the CIT(A) and hence not inclined to interfere. 7.7 In the result, Ground No. 1 of the appeal of the Assessee is dismissed. 8. At the time of hearing, Ground No.2 is not pressed and accordingly the same is dismissed as Not Pressed . 9. Ground No. 3 of the appeal pertains to addition of ₹ 2,07,764/- towards estimated 25% i .....

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addition of ₹ 2,07,764/-. The Assessee agreed for ₹ 68,559/- @ 8.33% of the unrecorded sales. The CIT(A) in appeal, however, confirmed the addition of ₹ 2,07,764/- @ 25% of sales as initial investments on the ground that such estimations @ 25% are reasonable. 9.2 During the course of hearing the Ld. AR relied upon the decision of coordinate bench in Mohanlal Kakreja & ors. ITA Nos.818/PN/2001 to 823 /PN/2001 order dated 26th May 2006 (copy placed in file) wherein the ITAT .....

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of the view that estimation @ 10% as pleaded by the Assessee would balance equities and would be a fair estimate. 9.4 In the result, the Assessee gets part relief. Ground No.3 is partly allowed. 10. The next Ground No. 4 of the appeal is towards addition on account of unexplained investment in Plot No.194/9 at Waliwade, Kolhapur for a sum of ₹ 1,76,000/-. The aforesaid adjoining plot was purchased adjacent to Plot No. 194/8 [32670 sq. ft. less 28000 sq. feet = 4670 sq.ft ] which is subjec .....

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chandani, ITA No.10/PN/2005. 10.1. The relevant facts relating to the issue as noticed by the Ld. CIT(A) and his conclusion thereon is reproduced below for ready reference :- 36. The appellant had purchased a plot of 4670 sft. of R.S. No.194/9 at Valiwade, Kolhapur on 05/07/94 from Shri Ashok T Khubchandani and Shri Ghanshyam T. Khubchandani. The sale deed was executed in the names of assessee s minor son Master Amrutlal M Wadhwa and his brother s minor son Master Anilkumar R Wadhwa for total co .....

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The Assessing Officer was of the view that the Sanchakar Patra discovered at the time of search covered the two transactions i.e. the sale of 28000 sft. in December, 1993 and subsequent sale of 4670 sft. on 05/07/94 and, therefore, she rightly has treated the appellant s investment in the plot @ ₹ 65/- per sft. Moreover, the seized documents also revealed cash payment of ₹ 1,76,000/- over the price on which the sale deed was executed by the appellant. From the examination of the con .....

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the appellant s unexplained investment was ₹ 1,76,000/-, ₹ 1,76,000/- is the share of his brother and ₹ 60,000/- is the price shown in the sale deed. 39. On behalf of the appellant, Shri Vora and Shri Nadgouda, have objected to the order of the Assessing Officer on the same ground on which they have objected to her estimating unexplained investment of the appellant in plot no.194/8 and for the same reason discussed in relation to that ground it is held that the Assessing Offic .....

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eds received on sale of silver articles and estimated 5% commission thereon treated as unexplained receipt and thus undisclosed income. 11.1 For the AY 1996-97, the Assessee credited ₹ 1,04,538/- in its capital account which represented sale proceeds of silver articles. It was the case of the Assessee that part of the silver articles sold were acquired by his father and by him after his marriage and therefore the same were acquired before 1/4/1981 and sold to Deepak Refineries. Before the .....

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necessary evidence for taking up the transaction as undisclosed income of the Assessee. 11.2 We are unable to agree with the findings of the CIT(A). It is admitted position that no incriminating document showing any unaccounted sale or investment has been found. The entries already recorded in the books cannot be source of addition / disallowance in block assessment. Some flippant or sweeping statement covering such larger block period by other members of the family without anything more cannot, .....

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s of the Assessee showing unrecorded sales. From the impugned diary, unrecorded sales of ₹ 3,40,654/- for the period of 19/04/98 to 06/09/98 were noticed. The AO worked out initial investment @ 25% towards purchases which worked out to ₹ 85,163/-. The Gross profit of ₹ 22,994/- on suppressed sale was also estimated. Total addition is therefore ₹ 1,08,157/-, which is subject-matter of dispute. It was the case of the Assessee that the sale is out of unaccounted stock detect .....

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ses as proper and justified. Besides, the addition towards GP ₹ 22,994 is confirmed. 13.3 In the result, Ground no. 8 is partly allowed. 14. Ground No. 9 pertains to addition towards unaccounted household expenses for the entire F.Y. 1993-94 when the notings were found only for Nov. 1993 to March 1994 and there were no other evidence found during the search. The CIT(A) gave partial relief and restricted the addition towards unexplained withdrawal @ 7000 pm only for the FY. 1993-94 as again .....

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with seized material only. 14.2 In the result, Ground no. 9 is partly allowed. 15. In terms of Ground No. 10, the Assessee has objected to treating M/s D.R. Textiles, a partnership firm as benami firm of the Assessee and his brother and thus making addition of ₹ 1,70,066/-. 15.1 The CIT(A) confirmed the action of the AO holding M/s D.R. Textiles to be a benami concern of the Assessee in which wife of the Assessee is a benami partner on behalf of the Assessee. The premise for holding so is .....

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d position that wife of the Assessee has contributed initial capital and the firm is backed by partnership deed in writing. The return of income of the partnership firm has been filed and has been assessed. Mere absence of personal knowledge of the business in which a person is a partner cannot make him or her a benami of the person doing the business for the firm. There is nothing to prevent a person to contribute capital and carry on business with the help of others. In our view, the finding o .....

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y incorrect. When an assessment order has been framed, it is appealable under S. 246A of the Act before the CIT(A). As such, the CIT(A) is directed to examine the issue afresh qua the substantive assessment and arrive at a finding on facts. We accordingly set aside the issue to the file of the CIT(A) with a direction to decide the issue in accordance with law after giving opportunity to the Assessee to make representations. 18. In the result, Ground no. 12 is allowed for statistical purposes. IT .....

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the addition of ₹ 7,44,000/- u/s 69B as unexplained investment in respect of the plot No.194/8 at Waliwade treating it as undisclosed income of the Appellant. 2) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the addition of ₹ 1,76,000/- u/s 69B as unexplained investment in respect of the plot No.194/9 at Waliwade purchased by the Appellant s son and treating it as undisclosed income of the Appellant. 3) On the facts and in the circumstances of t .....

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antive addition is made in the case of Murlidhar Wadhwa. 5) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming addition of value of 135 gms. of gold out of the total 546 gms. owned by the family, as undisclosed investment, and thereby, treating it as undisclosed income of ₹ 57,645/-. 6) On the facts and in the circumstances of the case the Ld. CIT(A) erred in confirming the action of the A.O. in treating D.R. Textiles a partnership firm as Benami firm of t .....

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see in ITA No.964/PN/2002 will apply mutatis-mutandis to this assessee. Ground No. 1 & Ground No. 2 are identical with Ground Nos. 1 & 4 in ITA No.964/PN/2002 and accordingly dismissed. Ground No. 3 is similar to Ground no. 5 thereof and accordingly allowed for the parity of reasonings. Ground No. 4 is similar to Ground No. 12 in ITA No.964/PN/2002 and accordingly set-aside. Ground No. 5 and 7 are not pressed by the AR and thus dismissed. Ground No. 6 is similar to Ground no. 10 of the A .....

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raised the following Grounds of Appeal :- On the facts and in the circumstances of the case, the Learned Commissioner of Income Tax (Appeals), Kolhapur and filed with CIT(A), Pune-1. Reg. : Transaction of Plot No.194/8 :- A. Erred in making addition of ₹ 7,44,000/- as unaccounted income from sale proceeds of plot at R.S. No.194/8. 1. Erred in not accepting the income arising out of the sale proceeds of plot as income from short term capital gains. 2. Erred in adopting sale price at ₹ .....

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i Nagar, Kolhapur which were much lower than the price mentioned in the Agreement to sell. 5. Without prejudice to the above, should have appreciated that in any case no addition could have been made on the basis of the Sanchkar-Patra which was found in the premises of Shri Murlidhar R. Wadhawa and hence no adverse inference could have been drawn in the Appellant s case. Reg. : Transaction of Plot No.194/9 :- B. Erred in confirming the addition of ₹ 1,76,000/- as unaccounted income for sal .....

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here is no specific mention as having spent these amount on plot No.194/9. The Wadhawa brothers had purchased another plot at R.S. No.194/8 on 12/12/1993, therefore, this amount might have been in respect of development of Plot No.194/8 and not towards purchase price of Plot No.194/9. 3. Erred in farfetched conclusion that ₹ 1,76,000/- is towards sale proceeds of Plot No.194/9. 4. Erred in not accepting the departmental Valuation Report for calculation of capital gains as was accepted by h .....

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rious grounds are similar to the facts in Murlidhar Radhomal Wadhawa, ITA No.964/PN/2002 (supra). Hence, for the reasonings noted in the case of other Assessee in ITA No.964/PN/2002 will apply mutatis-mutandis to this assessee. In this case, the Assessee has raised a point that in respect of Plot No.194/9, there is no incriminating document found and therefore, the price for plot no.194/8 should not be adopted. We have upheld the sale price of plot no.194/8 based on tangible evidence unearthed d .....

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/2005 which is directed against the order of Commissioner of Income Tax (Appeals), Kolhapur dated 28.10.2004 relating to block period 1989-90 to 1999-2000 passed under section 158BD r.w.s. 158BC(c) of the Act. 28. In this appeal, the assessee has raised the following Grounds of Appeal :- On the facts and in the circumstances of the case, the Learned Commissioner of Income Tax (Appeals), Kolhapur and filed with CIT(A), Pune-1. Reg. : Transaction of Plot No.194/8 :- A. Erred in making addition of .....

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ains as was accepted by his predecessor in case of Shri Rameshlal R. Wadhawa and Shri Murlidhar R. Wadhawa, for ascertaining market price on the date of sale. 4. Erred in not considering the existing market rates of the surrounding plots in Gandhi Nagar, Kolhapur which were much lower than the price mentioned in the Agreement to sell. 5. Without prejudice to the above, should have appreciated that in any case no addition could have been made on the basis of the Sanchkar-Patra which was found in .....

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y maintained by the co-purchaser Shri Murlidhar R. Wadhawa. Rs. 26,000/- 26/01/1994. Rs. 1,50,000/- 22/03/1994. Rs. 1,76,000/- 2. In Shri Murlidhar R. Wadhawa s case, only these amounts are mentioned as amounts spent on Plot No.194. There is no specific mention as having spent these amount on plot No.194/9. The Wadhawa brothers had purchased another plot at R.S. No.194/8 on 12/12/1993, therefore, this amount might have been in respect of development of Plot No.194/8 and not towards purchase pric .....

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ITR 0696. The appellant craves to consider each of the above Grounds of Appeal without prejudice to each other and craves leave to Add, Alter, Delete or Modify all or any of the above Grounds of Appeal. 29. The facts concerning the various grounds are similar to the facts in Murlidhar Radhomal Wadhawa ITA No.964/PN/2002 (supra). Hence, for the reasonings noted in the case of other Assessee in ITA No.964/PN/2002 will apply mutatis-mutandis to this assessee. In this case, the Assessee has raised a .....

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case. Accordingly, the appeal of the Assessee is dismissed. 30. In the result, the appeal of the Assessee is dismissed. ITA No.478/PN/2003 : 31. Now, we take-up the appeal in the case of M/s D.R. Textiles in ITA No.478/PN/2003 which is directed against the order of Commissioner of Income Tax (Appeals)-I, Pune dated 18.02.2003 relating to block period 1989-90 to 1999-2000 passed under section 158BD r.w.s. 158BC(c) of the Act. 32. In this appeal, the assessee has raised the following Grounds of A .....

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ne erred in directing to treat the same on protective basis. c) Contrary to the observation made in the Asstt. Order of Shri Murlidhar R. Wadhawa and Shri Rameshlal R. Wadhawa the Appellant is no more BENAMI Entity as separate Assessment is framed u/s 158BD r.w.s. 158BC(c) and registration has been granted. Therefore, the Learned C.I.T.(A)-1, Pune should have taken independent view to consider the facts and should have directed to delete the addition of ₹ 1,61,671/-. 3. Erred in not allowi .....

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g Officer against purchases made from M/s K.C. Shah & Co. under section 158BD of the Act. The assessee states to have made certain credit purchases from M/s K.C. Shah & Co., Ahmedabad. As per the trade practice, the selling agent of M/s K.C. Shah & Co. is to visit and give the goods and credit to the assessee. If the goods are not found to the suitable then these goods are returned to these sales representatives. The details of purchases are as under :- Date Bill No. Amount 12.03.199 .....

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71/- above, it has neither made any payment against these purchases nor effected any sale out of these goods, nor the goods have been reflected in the closing stock. Therefore, the Assessing Officer has committed error in making addition of ₹ 1,61,671/- against purchases returns to M/s K.C. Shah & Co.. The purchases and purchase returns have been duly recorded in the books of accounts. These papers regarding purchases and sales only have been found in the course of search. Therefore, w .....

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in the hands of the assessee firm. During the course of hearing, the Ld. Authorized Representative on behalf of the assessee, inter-alia, raised legal ground by way of additional grounds and submitted that satisfaction under section 158BD has not been recorded as mandated by law and therefore the entire action is without jurisdiction and therefore void abinitio and is required to be cancelled. He, therefore, submitted on facts that the addition has been wrongly made towards goods return which ha .....

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