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2016 (12) TMI 556 - ITAT JAIPUR

2016 (12) TMI 556 - ITAT JAIPUR - TMI - Addition on the basis of the statement of Shri Hanuman Yadav - Assessment under section 143(3) read with section 153 - whether the addition can be sustained solely on the basis of the statement of Shri Hanuman Yadav, when there is no material placed on record that Shri Hanuman Yadav has made any claim against the assessee in any court of law seeking cancellation of sale deed or filing a recovery suit? - Held that:- As held in case of Shri Ghanshyam Das Aga .....

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re particularly when the maker of statement has not challenged the sale deed before any court of law. It is also not placed on record whether the sale deed was executed under coercion. Therefore, considering the totality of facts of the present case, we hereby direct the AO to delete the addition - Decided in favour of assessee. - ITA No. 467/JP/2011, ITA No. 519/JP/2011 - Dated:- 25-11-2016 - SHRI KUL BHARAT, JM AND SHRI VIKRAM SINGH YADAV, AM For The Assessee : Shri Ra .....

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peal :- 1. On the facts and in the circumstances of the appellant s case, the ld. CIT (A) should have deleted the addition of ₹ 30,92,000/- which was carried out merely on the basis of statement of Shri Hanuman Yadav without any iota of evidences suggesting payment of such on money to him. The ld. CIT (A) on the basis of cross examination should have held that the above deponent is unreliable and false and in the interest of natural justice it could not have considered his statement as rel .....

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considered as base for carrying out the impugned addition. 1.3. In law and on the facts and circumstances of the appellant s case, the ld. CIT (A) has erred in not appreciating the fact that the AO having provided an opportunity to the appellant for cross examination has failed to consider the facts and evidences arising there from & hence, the very opportunity of providing cross examination was not met. He should have thus deleted the very addition on this count. 1.4. In law and in the fac .....

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ase, the ld. CIT (A) has failed to appreciate the fact that no evidences were found during search indicating payment of such alleged on money and that the impugned addition is merely based on the statement of deponent who shown to be hostile in such cross examination. 2. Without prejudice to the above, the ld. CIT (A) has erred in appreciating the fact that the flag ship company of the group to whom the appellant belongs to had offered income by way of sources & that this flagship company wa .....

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.05.2007. The assessee was searched under section 153 of the Income Tax Act, 1961 (hereinafter referred to as the Act) on 19/11/2007 requiring him to furnish return of income within 35 days. The requisite return was filed. The assessment under section 143(3) read with section 153 of the Act was framed thereby the AO made addition of ₹ 42,27,000/- as undisclosed investment. The addition was made on the basis that one of the sellers Shri Hanuman Yadav who appeared before the AO and submitted .....

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he assessment order that Shri Nathawat stated that the statements were not read back to him nor was a copy given to him and that he had not said anything more than the price indicated in the sale deed. Thus two additions were made i.e. ₹ 30,92,000/- and ₹ 11,35,000/- totaling ₹ 42,27,000/- on account of difference between the sale consideration declared in the sale deed and in the statement given by Shri Hanuman Yadav. The assessee by this, preferred an appeal before ld. CIT (A .....

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dav. The ld. Counsel for the assessee submitted that ld. CIT (A) failed to appreciate the fact oral evidence cannot over ride the documentary evidence. In support of this contention, ld. Counsel placed reliance on the decision of the Coordinate Bench of the Tribunal rendered in the case of Shri Ghanshyam Das Agarwal vs. ITO in ITA No. 1161/JP/2010. The ld. Counsel submitted that the Tribunal while deciding the issue has followed the ratio laid down by Hon ble Supreme Court in the case of Union o .....

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is contention, the ld. Counsel submitted that a recorded voice was placed before the AO. 5.1. On the contrary, the ld. D/R supported the order of the AO. 5.2. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. The AO made the addition on the basis of the statement of the seller of the land, who in his statement before the DDIT (Inv.) has stated that the sale consideration was at ₹ 2,10,000/- per bigha and he had r .....

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tement of Shri Hanuman Yadav, when there is no material placed on record that Shri Hanuman Yadav has made any claim against the assessee in any court of law seeking cancellation of sale deed or filing a recovery suit. The Coordinate Bench of the Tribunal after following the ratio laid down by Hon ble Supreme Court under the similar circumstances has held in the case of Shri Ghanshyam Das Agarwal (supra) that in the absence of any conclusive evidence the document could not have been disbelieved. .....

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