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TMI Blog2016 (11) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,05,62,500/- on account of unexplained sales. 2.On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) was not justif ied in not accepting the fact that there was an unaccounted sale pertaining to A.Y. 2008-09 which was established during the assessment proceedings. 3.On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) was not justif ied in not accepting the fact that the assessee's submissions also shows that there was sales in A.Y. 2008-09 which was establ ished during the assessment proceedings." 3. The Solitary issue raised in this appeal by the revenue is that Ld. CIT(A) had wrongly deleted the additions amounting to Rs. 1,05,62,500/- made by the assessee on account of unexplained sales made by the assessee on account of sale of shops on account of cash receipts which was not disclosed in the books of accounts. 3.1. Brief facts and background of this case as culled out from the order of the lower authorities are that on 10.01.2007 survey action was done by the department on the assessee firm and search action was done on its partners including Mr. Haresh Patel group. During the year, the assessee was engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d aggregate amount of cash component ('on money') for Rs. 1,05,62,500/- and brought to tax the same as undisclosed income of the assessee. 3.4. Being aggrieved, the assessee filed an appeal before the Ld. CIT(A) wherein Ld. CIT(A) relying upon his order for earlier years held that there was no evidence of receipt of 'on money' and therefore, addition could not have been made in the impugned year and therefore he deleted the same. 3.5. Being aggrieved the revenue filed an appeal before the Tribunal. 3.6. During the course of hearing, it was submitted by the Ld. DR that all the shops belong to the same cluster, and these are located at the same place having identical location etc. The construction of the shop has also been done on the similar pattern. Under these circumstances, if a shop has been sold in A.Y. 2007-08 at an amount of Rs. 27,62,500/- wherein the cheque was shown at Rs. 6,50,000/-, then in the next year, the assessee will not sell it for the total consideration of Rs. 6,50,000/- only. It was further submitted by him that the Revenue cannot close its eyes from truth which is writ large on the face of it. The AO had made an attempt during the course of assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars with regard to the same as under: Shop No. Name of the Party Date of booking Date of agreement Agreement value S-10 Ambavi R. Patel 20.12.07 27.12.07 6,50,000 S-11 Gopal A Patel 31.03.08 N.A.(shop cancelled) 7,00,000 S-14 Parasmal Mehta 19.12.07 22.12.07 7,00,000 S-19 Sunanda S. Raut 9.4.07 09.04.07 6,50,000 S-20 Shashikant H Raut 09.04.07 09.04.07 6,50,000 2.9. The perusal of the above details shows that the agreement value of these shops at Rs. 6,50,000/- per shop is exactly same as has been mentioned in the impounded documents. As per section 292C of the Income Tax Act 1961, where any books of accounts or other documents etc. are found during the course of search u/s 132 or survey u/s 133A, then it may be presumed that such books of accounts and other documents etc. belong to the person upon whom search/survey has been done and that contents of such books of accounts and other documents are true. Though, it has been held in many judgments that this presumption is rebuttable, and this is an admitted position of law and there is no denial to it, but main point involved here is that burden to rebut this presumption as per law is upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of document impounded from him, then it was for the assessee to rebut the same that too with the help of adequate evidences admissible in the eyes of law. 2.10. We find that nothing has been brought during the course of assessment proceedings in this regard by the assessee. We also find that the AO also failed in bringing any further information or evidence on record in this regard. Thus, we find that both the parties failed in their respective duties to take this case at a stage which is beyond apparent doubts. Under these circumstances, in the interest of justice and fair play to be done with both the parties, we find it appropriate to send this issue back to the file of the AO to give the assessee an opportunity to bring requisite evidences to show that market value of these shops were equivalent to the amount on which transactions has been done. The assessee is free to bring further material or evidences on record to establish that sale transactions of these shops have been done only at the amount for which cheques were received by the assessee. If we confirm the addition at this stage without giving this opportunity to the assessee, then it may not be fully justified keep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this year, the facts are that the assessee had sold 4 shops namely S-01, S-23, S-31 & S-32. It is brought to our notice by the Ld. Counsel that as accepted by the Ld. CIT(A) in his order that shop nos. S-31 & S-32 were sold in earlier year and addition with regard to the same as already been made A.Y. 2008-09 and therefore making an addition for the same in this year again has led to a double addition. It is noted by us that Ld. CIT(A) had deleted this addition on this ground itself. Ld. DR is not able to controvert the facts recorded by the Ld. CIT(A) and reiterated before us by Ld. Counsel of the assessee. In our opinion double addition is not permitted under the law and therefore Ld. CIT(A) rightly deleted the addition in his order, and his order to this extent is confirmed. 3.2. With regard to shop no S-1 & S-23, we find that facts are identical to A.Y. 2008-09 and therefore the issues with regard to these two shops are sent back to the file of the AO, in accordance with our directions as given in our order for A.Y. 2008-09. The AO is directed to follow our order for A.Y. 2008- 09. 4. Thus, with these directions, both appeals of the revenue are partly allowed for statistical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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