TMI Blog2010 (3) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... nex. A of Panchanama dt. 15th Feb., 2006 containing the details of the cost of other plots in the same scheme. 2. Briefly, the facts are that a search operation was carried out on 14th Feb., 2006 at the residential and business premises of the respondent assessee. Certain incriminating documents were recovered as a result of search. In pursuance to notice issued under s. 142(1). the assessee filed its return of income on 20th Nov., 2006 declaring total income of ₹ 1,33,032. Notice under s. 143(2) was also issued on 30th Aug., 2007, in response to which the requisite details and information were furnished by the assessee. During the course of search, certain documents reflecting the investment of ₹ 64 lacs alleged to have been made in purchase of two plots Nos. 185 and 186 in Ummaid Heritage. Jodhpur, were seized. Out of this investment of ₹ 64 lacs, ₹ 39,50,000 were paid by cheques and remaining ₹ 24,50,000 were alleged to have been paid in cash. The assessee in his statements recorded under s. 132(4) of the Act surrendered the amount of ₹ 24,50,000 on this count. He. however, did not disclose the surrendered amount in its return of income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. It was further stated that in the said scheme, plots have been sold to various other parties at the same rate, even the DLC rate is the same at which it has been sold to the assessee. It was also stated that even on the basis of the seized documents, the actual cost of land is the same as has been shown in the agreement. The jottings on p. 50 of Annex. A, Ext. 1 amounting to ₹ 24.51 is in relation to the cost of construction in the scheme of Ummaid Herritage. It was incumbent upon the purchaser to get the construction work done through developers only. Since the amount of construction was to be paid only when the construction commences, there was no investment of the amount so mentioned in relation to the construction. 5. The learned AO, however, did not consider the explanation of the assessee convincing. He observed that evidence of filing the affidavit was not submitted. He further observed that in the seized paper at Annex. A, Ext. 1 at p. 40 the cost of plot Nos. 185 and 186 has been taken at the rate of 6,500 per sq. yard, according to which the total cost comes to ₹ 55,90,000. At p. 50 of the same annexure, the cost has been worked out at ₹ 64 lacs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of photocopy of an affidavit to be factually correct. 8. Shri Amit Kothari learned Authorised Representative of the respondent-assessee, on the other hand, contends that the actual purchase cost including stamp duty and registration fee, club fees etc. of the two plots was ₹ 38.51 lacs, which was paid by cheques and is verifiable from the receipts issued by the developer, registered sale deed, rates prescribed by DLC for registration and various other plots sold to other parties in the same scheme. It has also been contended that even on the basis of seized documents, it is evident that no on-money has been paid towards purchase of these two plots. Separate construction agreement was executed on 26th Dec., 2005 and the assessee was liable to pay ₹ 24.53 lacs towards construction. The mention of such construction work to be done by the developer is evident from various clauses of the sale agreement as also from the seized documents. If the cost of such construction is excluded, the investment shown by the assessee is fully verifiable. In the preliminary statement recorded on 14th Feb., 2006, the assessee in reply to question No. 4 has unequivocally stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at midnight on the date of search carried at his premises. Despite our asking, the assessee did not lay any proof to show that any such affidavit has been filed or forwarded before any of the IT authorities nor did he show that any enquiry on the alleged affidavit has ever been carried out by the Chairman or any Member of the CBDT in that regard. Before the learned AO, the assessee merely placed photocopy of affidavit claimed to have been filed before the IT authorities, i.e., CBDT. The AO, however, placed no credence to such photocopy of the affidavit placed before him, as also the assessee did not prove the allegations. The learned CIT(A), however. reached a finding that the surrender is not found obtained in a voluntary manner, but obtained under pressure. This finding, however, is not supported by any relevant material on record. He appears to have acted on irrelevant considerations for reaching such a finding of fact. Photocopy of the affidavit placed on record of the AO or for that matter even before the learned CIT(A) had very little evidentiary value, as the assessee neither produced the original thereof nor placed on record of the authorities below any evidence of filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is voluntary. We, therefore, set aside the finding reached by the learned CIT(A) and do not attach any undue importance to the photocopy of affidavit relied upon by learned CIT(A). 10. On merits, however, we find that the seized documents placed at Annex. A1/40, 50 and 35A reveal three different figures, admittedly not in the handwriting of the assessee, but statedly to be in the hands of the representative of the promoters of the scheme show calculations for the payment schedule and price of structure etc. In Annex. Al/40, total price is quoted @ ₹ 6,500 per sq. yard. In Annex. A1/50 containing payment schedule, price of plot has been shown at ₹ 3,150 per sq. yard and in Annex. A1/35A, the rate of plot is shown at ₹ 4,500 per sq. yard. The AO has, however, acted on the basis of price @ ₹ 6,500 per sq. yard. The payment schedule, however, contained at Annex. A1/50 reveals that an amount of ₹ 24.50 lacs is on others account. As per scheme, the purchaser is also required to make payment for construction of ₹ 2,50,000 in advance. The letter dt. 30th July, 2000 from Ummaid Heritage found seized at Annex. A1/51 reveals that 10 per cent of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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