TMI Blog2017 (8) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of belief by the Assessing Officer and not the certainty of his observations. Nevertheless, when the belief is founded on no material whatsoever the same would be open to interference. If the material at the command of the Assessing Officer was so inadequate as no prudent person would form a belief that income chargeable to tax had escaped assessment, the court certainly even at this stage would interject. - Special Civil Application No. 21230 of 2016 - - - Dated:- 16-8-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Petitioner : Mr Sn Divatia, Advocate For The Respondent : Mr Nitin K Mehta, AdvocatE ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that cash of ₹ 3,32,50,000/- was received by him from Shri Milan H Mehta towards the sale of 100 bighas of land at the rate of ₹ 11,11,111/- per bigha. However, in the statement recorded subsequent to search during the assessment proceedings, Shri Ashokbhai I Prajapati replied to the question no.7,8 9 has confirmed that he has received ₹ 3,35,00,000/- from Shri Rajubhai (Rajesh Shantilal Shah) on behalf of Shri Milan H Mehta. However, in the statement recorded subsequent to search Shri Milan H Mehta admitted having paid cash of ₹ 1,07,50,000/- only as against the figure of ₹ 3,32,50,000/-. 2.2 Thereafter, the assessment order of both the case i.e. Shri Ashokbhai I Prajapati and Shri Milan H Mehta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening has been issued beyond a period of four years from the end of the relevant assessment year in a case where the original assessment was framed after scrutiny. A cursory perusal of the reasons recorded would show that the Assessing Officer wanted to tax in the hands of the assessee, a sum of ₹ 1.58 crores allegedly paid by him to one Ashok Prajapati towards a land deal. The basis of formation of this belief of the Assessing Officer was certain observations made by the Commissioner (Appeals) in the appellate proceedings in the case of one Shri Milan Mehta, the purchaser of the land in question. 4. In context of these facts, learned counsel for the petitioner submitted that the Assessing Officer had no reason to believe that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted receipt of such cash from Shri Milan Mehta towards sale of ₹ 100 bighas of land. In the statement of Shri Milan Mehta he admitted only having paid a sum of ₹ 1.07 crores. Assessments in cases of Shri Ashok Prajapati and Shri Milan Mehta were carried out. In case of Shri Milan Mehta for the assessment year 2009-10, the Assessing Officer had made a protective addition of ₹ 1.58 crores. Shri Milan Mehta challenged such order before the Commissioner (Appeals). According to the Assessing Officer in the reasons recorded in such appellate proceedings the Commissioner remarked that it is not Milan Mehta but the petitioner who would be liable to explain the source of such cash. This is the foundation of the reasons recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the purchase of land. In other words, even if the contents of the seized papers are presumed to be correct, then also Shri Rajubhai and not the appellant is liable to explain the source of entries of cash as appearing on page number 52 of Annexure A/2. In the absence of any evidence, no addition can be made in the hands of the appellant even on protective basis. 8. Thus, as recorded earlier, the Appellate Commissioner did not even by way of a prima facie impression convey that the differential amount was paid by Raju Shah. His conclusions were that Milan Mehta paid a total cash amount of ₹ 1.07 crores. The observations noted above are merely in the nature of passing remarks. Even the case of the department all along has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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