TMI Blog2016 (5) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed for AY 2008-09 u/s. 153A of the Act is not valid. For AY 2009-10 it is an admitted fact that the revenue has not seized any other valuables, cash or investments corroborating the figure of ₹ 15.00 crores. Further the notings made in panchanama shows that the search commenced in the residence of Shri Harshad Doshi at 1.30 a.m. (almost midnight) on 17.10.2008 and continued upto 1.00 am (again mid night) on 18.10.2008. We have noticed earlier that Shri Dilesh Shah was called upon to the residence of Shri Harshad Doshi. Even though there is no proper explanation as to why the affidavit prepared within two days of the search, was filed after expiry of two years, yet the surrounding circumstances show that the assessee was under the belief that the admission has been wrongly made. Further, we have also, for the reasons discussed supra, noticed that the statement taken from Shri Dilesh Shah may not be a statement taken as per the provisions of sec. 132(4) of the Act. In view of the foregoing discussions, we are of the view that the tax authorities are not justified in placing reliance on the page no.90 of the Annexure I and the sworn statement taken from Shri Dilesh Shah. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 At the time of search conducted at the residence of Shri Harshad Doshi, he was not available and hence other member of AOP Shri Dilesh Shah was called and he was examined after taking power of attorney from Shri Harshad Doshi. The statement of Shri Dilesh Shah was recorded on 18.10.2008 at the residence of Shri Harshad Doshi u/s 132(4) of the Act and a specific question was put to him about the contents of the above said document. He admitted in the sworn statement that the contents therein represent amounts received by way of cash and they have not been accounted for in the books of accounts. He also agreed to offer ₹ 3.20 crores as income of the assessee in AY 2008-09 and ₹ 11.50 crores as income in AY 2009-10. Further he also agreed to offer additional amount of ₹ 30.00 lakhs in AY 2009-10 to cover up any commission or omission. However, the assessee AOP did not offer the above said amount in the returns of income filed by it. 5. It is pertinent to note that the return of income for AY 2008-09 was filed in response to the notice issued u/s 153A of the Act and the assessment was also completed u/s 153A r.w.s 143(3) of the Act, since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure manual. They do not affect the validity of the search or assessment order u/s 153A. Accordingly he dismissed the legal claim of the assessee. 7. We have heard the parties on this legal issue. The contention of the assessee is that though the search warrant was prepared in the name of the assessee jointly with others, no search has been initiated or conducted in pursuance of that warrant either in its business premises or in any other place. The Ld A.R also submitted that the Page no.98 of Annexure I, on the basis of which the impugned addition was made, was found at the residence of Shri Harshad Doshi when the search was conducted at his residence pursuant to the search warrant issued in his name. The said search was not in pursuance to the warrant issued in the name of the assessee. In this regard, he drew support from the Panchanama placed at page 66 to 71 of the paper book. A perusal of the same shows that the Warrant was issued in the case of Harshad P. Doshi . Against the question the warrant to search , the address of the residence of Shri Harshad P Doshi is stated, i.e., A-103/104, Ray Shree Apartment, Royal Complex, Eksar Road, Borivali(W), Mumbai. The Annexure-I o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mind. The expression search initiated had to be interpreted to mean the Commencement and conducting of the initial search , i.e., the first search in the case. The search in these cases was initiated on January 3, 1997 and January 8, 1997, because it was on these dates that the initial search in the premises of the respective assessees was commenced. Therefore, assigning the meaning search commenced or making beginning of the search to the expression search initiated , the search was initiated respectively on January 3, 1997 and January 8, 1997, but not either on December 30, 1996 on which date the authorisations were signed by the concerned authorities or on any date prior to January 3, 1997 . In the above said case, the date of authorisation of search was December 30, 1996 and the same was not taken as the date of initiation of search. The Hon ble High Court has held that the date of commencement of search is the date of initiation of search, meaning thereby, the search should have actually commenced after 31-05-2003 in order to invoke the provisions of sec. 153A of the Act. 10. As noticed earlier, in the instant case, though the warrant of authorisation was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the admission made by Shri Dilesh Shah, which is being contested by the assessee in this appeal. Hence the decision taken on this issue would automatically cover the validity of addition of ₹ 3.20 crores made in AY 2008-09. 14. The contention of the assessee is that the Page no.98 of Annexure-I is a dumb document and the same has been prepared by Shri Dilesh Shah at the insistence of the search officials. It was further contended that Shri Dilesh Shah was persuaded to offer, under duress, the amount shown in the document as Cash receipts as income of the assessee. On merits, it was contended that the addition on the basis of this document was not justified, since the same was not corroborated with any other material. It was also submitted that the admission made by Shri Dilesh Shah has been retracted through an affidavit prepared within two days of the search. The tax authorities have refused to take cognizance of the retraction statement, since the said affidavit was filed with them after expiry of two years from the date of search, even though the same has been claimed to have been prepared within two days from the date of search. Further, the tax authorities noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall now examine as to whether the revenue can place reliance on the page no.98 of Annexure I and the admission made in the sworn statement taken from Shri Dilesh Shah. We notice that the assessing officer has stated in his remand report that the admission given by Shri Dilesh Shah is corroborated by the Page no.98 of Annexure I. We are unable to agree with the said view of the AO. The admission has been made on the basis of page no.98 of Annexure I. Since the same was a loose sheet containing some noting, in our view, the same requires corroboration with some other material. In the assessment order, the assessing officer has tried to corroborate the notings so made therein as under:- (a) The affidavit, wherein retraction of the admission was made, was filed with the AO only after issuing notice u/s 142(1) of the Act, i.e., it was not filed at the earlier available opportunity. Hence it is an after thought. (b) The AO recorded a statement u/s 133A of the Act form a real estate broker named Shri Nirmal Kumar Malpani. He had given an advertisement in the internet site named 99 acres.com in respect of the project named Unique Height , being developed by one of the group concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor did he examine the books of accounts of the group concern to vindicate his stand. Further it is not also established that the accounting methodology followed by the group concern is same as that of the assessee. Thus, we notice that the AO has only drawn adverse inferences from the advertisement and statement given by Shri Malpani, a real estate broker, who is not connected with the assessee at all. 19. The AO has compared the selling rates of two different projects, i.e., the one developed by the assessee at ₹ 1,507/- per sq.ft. and another one being developed by the group concern at ₹ 2,080/- per sq.ft. The AO has taken the view that both the projects are located in the same geographical area (Village Meera) and hence the selling rate disclosed by the assessee is lower. According to the AO the group concern has developed the project in FY 2007-08 and the assessee has developed the project in FY 2009-10. Hence, by taking price escalation at 15% p.a., the AO has worked out the difference at ₹ 14.05 crores. Accordingly the AO has taken the view that this fact also vindicates the noting made in page no.98 of Annexure I. We notice that though both the projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Area of shops booked after 31.3.2008 700 138 The assessee has also pointed out the average rate of cash received per sq.ft. computed from the figures stated in the loose sheet show wide variation:- Total area (both flats shop) Cash received Rate per Sq.ft. Upto 31.3.2008 (82660 Sq.ft.) 3.20 crores Rs.387/- After 31.3.2008 (54610 Sq.ft.) 11.50 crores Rs.2,105/- 23. These discrepancies pointed out by the assessee have not been addressed by the tax authorities. Further, the contention of the assessee is that the page no.90 itself was prepared by Shri Dilesh Shah at the instruction of the search officials. Since the assessee has not taken any steps to make any complaint with higher officials or other appropriate authorities in this regard, we are not inclined to admit this contention at this stage. However the discrepancies pointed out by the assessee would show that the page no.90 cannot be considered to be a document that could be relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the sheet contained a column for recording the time. Hence there could be merit in the contentions of the assessee that the statement was recorded at the fag end of the search and Shri Dilesh Shah was exhausted and he was constrained to admit the additional income. Further, we have noticed that the noting found in the loose sheet did not tally with the entries made in the books of account. No other material was brought on record by the AO to corroborate the noting made in the loose sheet. None of the buyers of the flat was examined to ascertain the truth. Under these set of facts, we are of the view that the loose sheet referred above cannot be considered to be a document that could be relied upon. Further, the facts and circumstances show that Shri Dilesh Shah was under some compulsion to admit additional income. The very fact that the assessee did not offer the same in the return of income shows that the assessee was not in agreement with the admission so made, as according to it, the same did not reflect the truth. Even though there is no proper explanation as to why the affidavit prepared within two days of the search, was filed after expiry of two years, yet the surroundi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
