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TMI Blog2012 (3) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... arried on 28.03.2008 at the business and residential premises of the assessee and their family members. Proceedings u/s. 153A were, accordingly initiated. The AO noted that the assessee alongwith his wife Smt. Poonam Gupta purchased a commercial plot of land situated at City Centre, Gwalior during the assessment year under appeal vide sale deed dated 20.09.2004 for a sale consideration of Rs. 25,08,000/-. On examination of the contents of the sale deed, it was noticed that the Registrar has charged the stamp duty on the basis of market value of the property determined at Rs. 54,50,000/-. The assessees were, therefore, asked to explain the reasons as to why the value of the property may not be taken at Rs. 54,50,000/- and Rs. 29,42,000/- may not be treated as payment made to the seller of the property from undisclosed sources. No satisfactory reply was filed, therefore, Rs. 14,71,000/- each was added to the income of the assessee and his wife Smt. Poonam Gupta as unexplained investment. 3.1 The addition was challenged before the ld. CIT(A) and it was submitted that the assessees have not made any investment over and above the consideration mentioned in the sale deed. It was submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad in case of Income Tax Officer vs. Venu Proteins in ITA No. 1087 vide order dated 11.06.2010 reported in (2010) 4 ITR (Trib.) 602 (Ahd.) Hon'ble ITAT, Mumbai has also held in case of Indralok Hotels (P) Ltd. vs. ITO (2009) 318 ITR 234 (Mumbai) (AT) that section 50C is applicable only for the purposes of determining the sale consideration for computation of capital gains in the hands of seller and it cannot be applied for determining income under other heads. Hon'ble Supreme Court in case of K.P. Varghese Vs. ITO (1981) 131 ITR 597 (SC) has also held similar view by stating that be putting the burden of showing that there is no understatement of the consideration on the appellant would tantamount to casting an impossible burden upon him to establish the negative i.e that he did not receive any consideration beyond that declared by him. Hon'ble Allahabad High Court in case of Dinesh Kumar Mittal vs. ITO and others (1992) 193 ITR 770 (All.) has further held as under. "We cannot recognise any rule of law to the effect that the value determined for the purpose of stamp duty is the actual consideration passing between the parties to a sale." Further, in search assessment, additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r five members of his family have made total withdrawals of Rs. 60,000/- in the year and the assessee made withdrawals of Rs. 12,000/-. The family of the assessee consists of five members and four children. The AO considering the size of the family and low withdrawals, estimated the household expenses at Rs. 4,30,000/- in total and in the case of assessee, it was estimated at Rs. 90,000/- and addition of Rs. 78,000/- was accordingly made. It was submitted before the ld. CIT(A) that no material is brought on record to make estimate of household expenses and that in earlier year also, the assessee and their family members have more or less shown similar household withdrawals. In the absence of any material against the assessee, the addition purely on estimation basis is unjustified. The ld. CIT(A) accepted the contention of the assessee and also noted that in earlier year, the AO took the similar withdrawals at Rs. 50,000/- and without giving any justification enhanced and estimated similar expenditures. In the absence of any evidence on record, the addition was found to be unjustified and was accordingly deleted. 7. The ld. DR relied upon the order of the AO. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged the stamp duty on the basis of market value of the property determined at Rs. 35,10,000/-. While examining page No. 182 of the seized material of BS-1, it was found that payments were made to the seller amounting to Rs. 1,30,00,000/-. The assessee was asked to explain the contents of the seized paper, but no satisfactory explanation was submitted. The assessee was asked to explain why the value of property should not be taken at Rs. 1,30,00,000/- and addition of Rs. 1,20,00,000/- should not be made being the payment made to the seller of the property from the undisclosed sources. The AO, accordingly, made the addition. It was submitted before the ld. CIT(A) that from the perusal of the seized paper, it may be seen that the paper is not capable of being assessed, in as much as, it did not mention either the amount paid or received, if paid, as presumed by the AO, on which date it was paid and against what consideration, the amount was paid ? The AO merely made addition considering the payment made over and above the amount mentioned in the sale deed. It was further submitted that it is a matter fact, which can be verified from the records of the Investigation Wing that immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rajoria constructions, who is the seller of the property to the appellant. As per appraisal report, statement of Shri Sanjay Rajoria has been recorded on 11.11.2008 by the Investigation Wing. As per its returns, M/s. Sanjay Rajoria Constructions has shown to have received Rs. 10,00,000/- as sale consideration of the land. A.O. has proceeded to make the addition under appeal solely on the presumption mentioned in the appraisal report (Pg. 32) that since he i.e. Shri Sanjay Rajoria has invested large amounts on the development of this property, no prudent person will sell the land at a loss in booming property market as the period of 2002 to 2007 has seen substantial increase in the property prices. Further, Shri Sanjay Rajoria must have received some consideration to vacate the said property. AO has not brought any material on record found during the course of search or post search enquiry or assessment proceedings to show that the appellant has indeed paid the amount of Rs. 1,30,00,000/- to the seller. It is again reiterated that in search related assessment there is no scope for presumptions and probabilities. The AO has simply relied solely on the seized document without making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the addition. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the authorities below. 12. We have considered the rival submissions. The ld. CIT(A) perused the seized document and also found that during the post search enquiry, the statement of seller of the property Shri Sanjay Rajoria was recorded by the Investigation Wing. The ld. CIT(A) found that seized document was unsigned and undated and appears to be rough jottings. It contained certain amounts in cash in the name of Shri Sanjay, RC and RRPS. The ld. CIT(A) also found that the documents of government auction of the property in the year 2006 fixing the price at Rs. 27,00,000/- was also found in search. The appraisal report contained statement of Shri Sanjay Rajoria recorded by the Investigation Wing who has shown to have received Rs. 10,00,000/- as sale consideration of the land. The ld. CIT(A), therefore, noted that the AO has not brought any material on record or found during the post search enquiries to show that the assessee has made payment of Rs. 1,30,00,000/- to the seller. The ld. CIT(A) further noted that addition cannot be made merely on presumption and probabilities in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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