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SURESHKUMAR H. CHUGH Versus ASST. COMMISSIONER OF INCOME- TAX

2016 (6) TMI 960 - GUJARAT HIGH COURT

Unaccounted moneys paid to the builder for the purchase of a shop - Held that:- The Department has failed to discharge its obligation to prove the income or any payment is made on behalf of the appellant. In view of the well settled law, no additions can be made on the basis of probabilities and therefore the appeals are required to be allowed in favour of assessee - TAX APPEAL NO. 1173 of 2006 TO TAX APPEAL NO. 1175 of 2006 With TAX APPEAL NO. 1842 of 2006 TO TAX APPEAL NO. 1843 of 2006 WITH TA .....

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005; 1997/Ahd/2005; 1998/Ahd/2005; 07/Ahd/2006; 08/Ahd/2006; 09/Ahd/2006 and 2346/Ahd/2005 whereby the appeals of the assessee were dismissed. 3. The short facts of the case are that the appellant-assessee had purchased a shop in the basement of Ashoka Tower, Ring Road, Surat built up by M/s. A. T. Corporation. During the course of raid, from the residence of the partner of builder, Shri Loknath Gambhir, a diary was seized wherein floor wise receipts of various shops were recorded. The A.O. divi .....

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Tribunal and during the pendency of appeal, crossexamination of Loknath Gambhir was made on behalf of one of the family members of the assessee, who had also purchased the shop alongwith the assessee and certain questions were put to him. 3.1 Thereafter, when the appeal came up for hearing before the Tribunal, it was pointed out that by virtue of the above crossexamination done on 08/09/2005, any order passed by the Tribunal against any basement shop owner prior to such crossexamination will not .....

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y committed an error in not considering the crossexamination which was done on 08/09/2005 where specific questions were put. 5. While admitting the present appeal, the Court has framed the following questions of law: [i] Whether on the facts and in the circumstances of the case was there any evidence before the Tribunal to hold that the assessee had paid any unaccounted moneys to the builder for the purchase of a shop ? [ii] Whether the finding of fact is perverse? 6. Learned Counsel for the app .....

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l question of law does arise in the appeal. The appeal is dismissed at the admission stage. 6.1 Learned Counsel for the appellant has also relied upon the decision rendered by this Court in Tax Appeal No.428 of 2000 and cognate matters dated 03/02/2015, as also the decision rendered in case of Principal Commissioner of Income-tax, Central Ahmedabad v. Ajay Surendrabhai Patel, [2016] 69 taxmann.com 309 (Gujarat) and has relied upon paragraph No.12, 13 and 14 of the said decision which reads as un .....

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laced on behalf of the appellant to contend that it establishes a link between the assessee and Vivek Patel, shows that the same has been executed by one of the sellers in favour of Vivek Patel in relation to one of the plots purchased by the assessee, but, significantly, such power-of-attorney has been found to be from the possession of the seller and not from Vivek Patel. Therefore, there is no material on record that prior to the search, Vivek Patel acted upon such power of attorney so as to .....

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l, who have both asserted that they did not know each other prior to the search. Under the circumstances, on the evidence which has come on record, the revenue has failed to establish that any higher consideration has been paid by the respondent assessee in connection with the sale deeds executed in his favour by the sellers in respect of the plots of land in question. 13. In the opinion of this court, having regard to the evidence which has come on record, which reveals that there is an agreeme .....

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