TMI Blog2016 (11) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made received against this property & out of which ₹ 15 lacs has been paid reed during the financial year 2007-08 is based on mere conjecture & surmises. That the chart does not reveal any such transaction dates/amount pertaining to any year. This is simply a dumb document. There is no other material on record other than this loose paper to corroborate the stand of the department. We find that since assessee has not received paid any amount in cash against the sale of the above property, no unexplained and unaccounted income from unaccounted sources can be attached to the assessee with respect to above transaction. Therefore, the presumption u/s. 292C of the Act is a rebuttal presumption. The presumption as envisaged in section 292C is limited to the correctness of the documents found at the time of search or survey, but that presumption has not been extended by the statute to be presumed to be the income of the assessee. - Decided in favour of assessee. - I.T.A. Nos. 377 & 378/DEL/2012 - - - Dated:- 29-11-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For The Assessee : Sh. Anil Kumar Gupta, CA For The Department : S h. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und from the premises of the assessee while ignoring vital facts and contentions and even when assessee has successfully rebutted the presumption. 4) The appellant craves leave to add, alter, demand, supplement or raise fresh grounds of appeal, if considered expedient and advisable at the time of hearing of appeal. It is prayed that the appellant appeal be allowed. ITA NO. 377/DEL/2012 (2008-09) HABITAT ROYALE PROJECTS PVT. LTD. 4. The brief facts of the case are that a search and seizure u/s. 132 of the Income Tax Act, 1961 (hereinafter called as Act) was carried out on 6.11.2008 in Nimitaya group of cases / companies in which there is sub group that is Khinda Group. A search warrant was issued and executed in the name of the assessee company also. In view of the same, notice u/s. 153A was issued on 8.7.2009 and in response thereto assessee filed its return on 16.11.2009 declaring total income of Rs. NIL. Notice issued under section 143(2) of the Act and u/s. 142(1) of the I.T. Act, 1961 alongwith detailed questionnaire issued on 12.8.2010 and the assessee s AR attended the proceedings and filed the submissions from time to time as called for. Thereafter, the AO ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. PV Kalyansundaram (294 ITR 49) - CIT vs. Girish Chaudhary (2008) 296 ITR 619 (Delhi) Delhi High Court. - ACIT vs. Sharad Chaudhary (2014) 165 TTJ 0145) (Delhi) - Sunita Dhadda vs. DCIT (2012) 71 DTR 0033 Jaipur 7.1 On the other hand, Ld. CIT(DR) relied upon the order of the Ld. CIT(A) and stated that Ld. CIT(A) has passed a well reasoned order which does not need any interference and the same may be upheld. 8. We have heard both the parties and perused the records, especially the Orders of the revenue authorities and the case laws cited by the Ld. Counsel of the assessee. We find that assessee has sold property no. ES95, Block R T Nirvana Country, South City -II, Gurgaon during FY 2008-09 for ₹ 60 lacs. It has not made any sales during the FY 2007-08 and that all the payment against sale of this property has been received through cheques and that no other amount has been received by the assessee in cash against the sales consideration of this property. The details mentioned on the right side of page 4 of Annexure A-I of party G- 3 are seem to be some rough working and it is not clear from the details whether these are for purchase /sale/investment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Whether on the (acts and circumstances of the case, the Income Tax Appellate Tribunal was correct in law in deleting the addition of ₹ 1,04,39,000 made by the AO on account of accommodation entries taken by the Assessee? 4. Whether on the facts and circumstances of the case, the order of the ITAT is not perverse as it has failed to consider that in this case, the AO made the addition on the basis of the relevant searched material gathered from the Assessee during the course of the search proceedings? 29. However, by an order dated 20th May 2015 the only question that was framed for consideration by the ITAT was as under: Did the ITAT fall into error in holding that the addition of ₹ 5,60,73,380 was unsustainable in law in the circumstances 0 the case? 30. Consequently, as the present appeal by the Revenue was concerned, its scope is confined to the question framed viz., the sustain ability of the deletion by the ITAT of the additions made by the AO as sustained by the CIT(A) of ₹ 5,60,73,380/- pertaining to the sale of flats on the second and third floor of VT. 40. Turning to the case on hand, the document recovered from the file in the computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no material to show as to on what basis the AO had reached a conclusion that the figure '48' occurring in one of them was to be read as ₹ 48 lakhs. 46. In the present case, there was again no material on the basis of which the AO could have applied a standard rate of ₹ 4,800 per sq ft for all the floors of VT. It was also not open to the AO to draw an inference on the basis of the projection in the document, particularly when the Assessee offered a plausible explanation for the document. The burden shifted to the Revenue to show, on the basis of some reliable and tangible material, how rate at which the flats on the second and third floors of VT was higher than that dictated in the sales register or the sale deeds themselves. 47. In the circumstances, the Court is of the view that the ITAT was justified in coming to the conclusion that the addition of ₹ 5,60,73,380 made by the CIT (A) was not sustainable in law. 48. For the aforementioned reasons, the question framed by the Court is answered in the negative, i.e., in favour of the Assessee and against the Revenue. 8.2 In the case of M/s Delco India Pvt. Ltd. (ITA No. 116/2016) dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on money from M/s. M.V.V. Builders towards sale of site. Besides, loose sheets found in the premises of M/s. M.V.V. Builders, the A.O. does not have any other document to show that the assessee has received on money from the purchaser. The A.O. has not made out any attempt to find out some reliable cogent material evidence on record to support his findings or to corroborate the statement of the purchaser. The assessee denied having received any on money over and above what was stated in the sale deed. The assessee rightly claimed that the sale transaction has been completed on 7.6.2006. The sale transaction has been completed by way of registered sale agreement-cum-GPA. The assessee has received full consideration as on the date of registration of document and handed over the possession of the property to the buyers. The allegation of the A.O. is that the purchaser has paid on money to the assessee in the financial years relevant to assessment year 2007-08 and 2008-09 which is almost one year after sale is completed. We further noticed that total consideration has been paid through proper banking channel. It was not a case of A.O. that the value shown in the sale deed is not real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . is not correct in making additions towards on money without there being any evidence to show that the assessee has received anv money over and above what was stated in the sale deed. 17. Considering the facts and circumstances of this case and also applying the ratios of the judgements cited above, we are of the view that the A.O. is not correct in coming to the conclusion that on money exchanged between the parties based on a loose sheet found in the premises of a third party and also statement given by a third person. To sustain the addition, the A.O. should have taken an independent enquiry about the value of the property and ascertain whether any under valuation is done, if so what is the correct value of the property. Further, the A.O. failed to bring any evidence to support his findings that there is on-money payment over and above what is stated in the sale deed. In the absence of proper enquiry and sufficient evidences, we find no reasons to confirm the additions made by the A.O. The CIT(A) without appreciating facts, simply upheld additions made by the A.O. Hence, we set aside the order passed by the CIT(A) and direct the A.O. to delete the additions made towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the AO for making the addition of ₹ 1 crore is seized material marked a 'A/CRK104' and the statement of 5. This loose sheet found at the premises of CRK is not enough material to sustain this addition. The seized material found during the course of search and the statement recorded are some piece of evidence to make the addition. The AD has to establish the link between the seized material and other books of account to the assessee. The seized material and statement of CRK cannot be conclusive evidence to make this addition. The entire case herein is depending upon the rule of evidence. There is no conclusive presumption to say that actual consideration passed on between the parties is actually ₹ 165lakhs. The assessee as well as her brother stated in their respective statements that the consideration passed between the parties is only ₹ 65lakhs. In spite of this the AO proceeded to conclude that the seized material is conclusively reflecting the payment of consideration at ₹ 165lakhs. The Department herein is required to establish the nexus of the seized material to the assessee. As stated earlier there is no date and name of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 The Hon ble A.P. High Court in the case of K Lakshmi Savitri Devi (Supra) in ITA No. 563 of 2011 has upheld the order of the Tribunal. We are of the view that the Tribunal has rightly held that the registered document dt. 21.8.2006 under which the respondent purchased the above property showed that only ₹ 65. 00 lakhs was paid to the vendor by the respondent: that there was no evidence to show that the respondent had paid Rs.l. 00 crore in cash also to the vendor; that no presumption of such payment of ₹ 1.00 crore in cash can be drawn on the basis of an entry found in a diary loose sheet in the premises of C. Radha Krishna Kumar which is not in the respondents handwriting and which did not contain the name of the respondent or any date of payment or the name of the person who made the payment. It rightly held that the Revenue failed to establish the nexus of the seized material to the respondent and had drawn inferences based on suspicion, conjectures and surmises which cannot take the place of proof. We also agree with the Tribunal that the assessing officer did not conduct any independent enquiry relating to the value of the property purchased and the burden of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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