TMI Blog2017 (3) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... ulate the profits shown by the assessee in cases of “specified domestic transactions”, where the aggregate of such transactions entered into in the relevant accounting year exceeds a sum of ₹ 5 crores. Except in these three situations, the Act does not permit the enhancement of the profits of the business shown by the assessee. The loose sheet of papers are wholly irrelevant as evidence being not admissible u/s. 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. See CENTRAL BUREAU OF INVESTIGATION CBI Versus VC. SHUKLA & ORS. [1998 (3) TMI 675 - SUPREME COURT ] Moreover, the Assessing Office did not make any inquiry from buyers of flat in respect of actual prices paid by them. He also did not make any other inquiry in order to corroborate his conclusion. There is no incriminating evidence to show that the assessee has sold the flats at a higher rate. In our understanding of the facts, the impounded loose sheet can at the most be termed as “dumb document” which did not contain full details about the dates, and its contents were not corroborated by any material and could not relied upon and made the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infrastructure Pvt. Ltd. and to allow the assessee a reasonable opportunity to show as to how the observations made in Sambhav Infrastructure Pvt. Ltd would apply to the facts of the assessee. 5. The assessee assailed the order of the Tribunal before the Hon ble High Court of Gujarat. It was strongly contended that the case before the Tribunal was that the ld. CIT(A) could not have confirmed the order of the assessment with the aid of any material on record in case of another assessment proceedings. The Hon ble High Court observed as under:- To make it clear, the assessee concedes before us that there is no requirement of placing additional materials or seeking cross-examination in connection with the assessment proceedings and the materials of such assessment in case of M/s. Sambhav Infrastructure Pvt. Ltd. and that the assessee would be satisfied, if the Tribunal were to decide all legal contentions of the assessee including that the assessment in case of M/s. Sambhav Infrastructure Pvt. Ltd. and collected materials would not establish the fact of on money receipt in case of the assessee. 8. We notice that the Tribunal had not considered other aspects of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on this page clearly indicate that the notings pertain to Ratnakar II! project as the area of the 3 Bedroom flats and 4 Bedroom flats mentioned on the page are as per the actual area of the said flats in Ratnakar-lll. In the fifth line of this page, rate is mentioned at ₹ 43007- per square ft. The notings on the following lines are 35% on booking and 65% (21 installments) . It is seen that when these notings are read in conjunction with another sheet of paper impounded from the same premises and inventorised as Page 129 of Annexure - BF17 (copy enclosed), the notings can be clearly understood. Page 129 of BF-17 (As enclosed) refers to the details of transactions in respect of Flat No. C/1 104 of Ratnakar -III project. The sheet carries the names, PAN and addresses of buyers, area of the flat, total consideration and cheque payments. Area of the flat is 2610 sq. ft. The rate mentioned on page no. 130 is ₹ 4300 per sq.ft. The price of the said flat obtained by multiplying its area with the rate comes to ₹ 1,12,23,0007-. Fiat C/1104 of Ratnakar-l/f project has been sold to one Mrs. Indrani Roy. This fact is also seen from the details of flat-wise sates submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny on money. It was brought to the notice of the A.O. that no name has been stated on top of the alleged loose sheet found at the time of survey. Therefore, it cannot be said to be pertaining to Ratnakar III scheme. The assessee also denied that the loose sheet belongs to it. 9. The detailed submissions of the assessee along with documentary evidences did not find any favour with the A.O. The A.O. was of the firm belief that the housing projects of the assessee are located in some of the most promising and established Satellite and Anandnagar areas of Ahmedabad. The A.O. observed that the assessee has sold all its flats in Ratnakar III at rates ranging from ₹ 958 sq. ft. to ₹ 2000 per sq. ft. and in Ratnakar IV, the rates range between 1400 to ₹ 2600 per sq. ft. Since the rate mentioned on the impounded loose sheet was at ₹ 4300 per sq. ft., the A.O. came to the conclusion that the assessee has received on money over and above the sale consideration shown in the sale deeds. 10. In support of his strong belief, the A.O. took a snap shot of the advertisement of a flat in Ratnakar III from the website 99acres.com wherein the advertisement clearly shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mainteance 2 Car Parking ACC (Auda Charges) Stamp Duty 16. It can be seen from the above that there is no mention of any scheme of the assessee, be it Ratnakar III or Ratnakar IV. In the loose sheet, there is a reference to Pent House but there is no Pent House in Ratnakar III scheme. Further in the loose sheet, there is a reference to 4-bedroom flats but there is no 4-bedroom flat in Ratnakar IV scheme. Further, the area of Pent House mentioned in the loose sheet is 5450 sq. ft. whereas the area of Pent House in Ratnakar IV schemes is only on 2520 sq. ft. The assessee may conceal the consideration but by any stretch of imagination, the assessee cannot conceal the carpet area of the flats. 17. A comparison of the loose sheet with the actual size of flats in Ratnakar III and Ratnakar IV schemes would show that this loose sheet has no relevance with the actual project of the assessee. 18. We find that the assessee has given complete details of the purchasers along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not made taxable. These two judgments were approvingly noticed and applied by the Supreme Court in CIT vs. Calcutta discount Co. Ltd.: (1973) 91 ITR 8. These judgments apply to the present case in favour of the assessee. 22. In our considered opinion, the assessing authority has no power to disturb the sale price shown except in three cases. The first is under Section 145 of the Act. Where the sale of properties is part of the business of the assessee, the Assessing Officer, if he is of the opinion that the accounts are not correct and complete, may proceed to reject the books of accounts and thereafter make a best judgment assessment of the income in the manner prescribed by Section 144. The second is the case where Section 50C of the Act is invoked on the basis of the prices fixed by the Stamp Valuation Authorities of the State Government. That section, it is pointed out, however, applies only in the computation of capital gains and cannot BE availed by the Revenue where the profits of the business are to be computed. 23. The third is the case of section 92BA inserted by the Finance Act, 2012 w. e. f. 01.04.2013. This section gives power to the Assessing Officer to recal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfill the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. 27. With respect to evidentiary value of regular account book, the Hon ble Supreme Court in the case of V.C. Shukla 1998 (3) SCC 410 has laid down :- 37. In Beni v. Bisan Dayal it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha the High Court, while ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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