TMI Blog2017 (12) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... g consideration of ₹ 21.96 crore has been found during the course of search. The DVO after having the knowledge of the seized document showing value of ₹ 21.96 Crore valued the property at ₹ 7.11 Crore with supporting evidence. Strangely, the AO after carrying out this exercise of valuation during the assessment proceedings did not refer the same in assessment order while making the addition of ₹ 698 lakhs. Also gone through the document like DVO report, sale deed of adjacent property, HSIIDC rate of allotment document and other documents and find that the land prices of the property, excluding construction were in the vicinity of the amount paid by the appellant to Bluebird Software Private Limited and its shareholders. It is also a matter of fact and record the sale price on the basis of signed documents is accepted by the department in the hands of sellers of the property or shareholders of Blue Bird Software Private Limited. Those assessment orders are also passed after search in their cases by the central circle. The assessee has also placed on record the assessment order of Blue Bird Software Pvt Ltd who has purchased this property for 6.80 cr ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper, duly executed and signed by all the parties and duly accounted for in the books of accounts of the appellant, showing consideration of ₹ 8,00,00,000/- in respect of above referred industrial property, which was also found and seized by the revenue in search action u/s 132 of the Act i.e. bearing page no. 94-99 of Annexure-A-6, Party G-2, dated 6-11-2008, and; (ii) the another agreement dated June, 2007 which is executed and signed plain paper and also showing consideration of ₹ 8,00,00,000/- in respect of the above referred industrial property, and found and seized in search action u/s 132 of the Act i.e. bearing page no. 13-17 of Annexure-A-6, Party G-2, dated 6-11-2008. 2. The appellant craves leave to add to, alter, vary, modify or otherwise amend the grounds of appeal before the appeal is finally disposed of. 3. Briefly stated, the facts of the case as emanating from the order of the Assessing Officer are that during the course of search at the assessee group on 26.11.2008, at the registered office of the companies of the Nimitaya Group i.e. 2A, Avenue Cassia, Westend Greens, Rajokari, New Delhi, an unsigned Agreement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited alongwith industrial land baring plot no. 391, Udyog Vihar, Phase-III, Gurgaon to Shri Sanjeev Mahajan and M/s Nimitaya Promoters Pvt. Ltd. (Buyers) for a total consideration of ₹ 21,96,00,000/-. In fact out of the total share holding of 2,10,000, Shri B. M. Mahajan has purchased 1,05,000 shares and Shri Sanjeev Mahajan has purchased 105000 shares i.e. 50% each. Accordingly on money payment of ₹ 13.96 Crores is received in to two part which comes to ₹ 6.98 Crore in each hand. In view of the above fact, you are hereby request to explain as to why an amount of ₹ 6.98 Crores should not be treated as unaccounted investment for the year under consideration. 4. The assessee vide its reply dated 27.12.2010 to the above show cause notice stated that the agreement of ₹ 21.96 Crore is an unsigned document and it was not confronted by the search team at the time of search in the office premises. So, the assessee is not aware about such document and reiterated that the parties have acted on the basis of signed agreement. The assessee also stated that the valuation of this property was referred to the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to the returned income, the assessee preferred the appeal before the CIT(A) who upheld the order of the AO. 7, The ld. AR argued that the AO and CIT)A) has ignored the documentary evidences and other relative corroborative evidences produced during the assessment and the appellate proceedings and has erroneously held in order that the appellant has not brought any evidence on record to substantiate its claim. The CIT(A) has misled himself with the proposition that the company has secured a loan of ₹ 30 Crore from OBC, Industrial Finance Branch. The learned counsel of the appellant has drawn our attention to the paper book and documents filed before the Ld. CIT(A) as evidence against the impugned addition of ₹ 6,98,00,000/-, and stated that three different documents were found during search and all these three documents mention the sale consideration of 8 Cr and all the three documents are duly signed, which also include MOU signed much before the date. In respect of unsigned document he submitted that the case of assessee has been all along that it did not belong to the assessee and is not aware how it came in the hands of Income tax authorities. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 20, 56, 00,000/- was agreed to be paid on or before 07-06-2007. Bothe these cheques have been issued by M/s Nimitaya Promoters Pvt Ltd to M/s Bluebird Software Pvt Ltd and have been duly debited to the bank account. 9. The ld. AR further contended that the DVO report obtained by the AO from its own resources clearly demolished the consideration contained in the unsigned agreement which is the basis of impugned addition. It is further contended that the AO has not mentioned any reason that why he is not considering the DVO report or why he is rejecting the same. It was further contended that while disposing of the appeal, even the CIT(A) failed to give any cogent reason that why he is upholding the order of the AO ignoring this DVO report. The ld. AR further contended and drew our attention to the page no. 61-63A of the paper books which are the assessment orders of the sellers and it was shown that no addition with reference to this alleged unaccounted investment. The capital gain on the basis of signed documents is duly declared by the sellers and accepted by the AO. The assessment made in the hands of the sellers is also search assessment made in the cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also accepted u/s 153A assessment proceedings in the hands of Blue bird software which was also subject to search. Hence the value could not have jumped to 21.96 crs on 7.3.2007 which is date of alleged unsigned document. This also supports the contention of the assessee that sale consideration of 8 cr is correct. 12. In support of his arguments that presumption u/s 132 (4A) is rebuttable presumption he relied on the following case law a. ITO vs Ved Prakash Choudhary 305 ITR 245 (Delhi) b. M.M.Financers (P) ltd vs DCIT 17 SOT 5 (Chennai) ITAT c. ACIT vs S. Preetha ITA Nos 1313 to 1319/mds/2012 d. ACIT vs Radheshyam Poddar 41 ITD 449 (Cal ) ITAT 13. On the basis of above arguments the case of the assessee is that the AO has made the addition only on the basis of unsigned document without testing the veracity of the same even with the DVO report which was obtained by him after making the DVO aware that an unsigned agreement of value of ₹ 21.96 Crore is found during the course of search. It was contended that even the DVO itself has disprove the contention of the AO and the unsigned document as evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents and find that the land prices of the property, excluding construction were in the vicinity of the amount paid by the appellant to Bluebird Software Private Limited and its shareholders. It is also a matter of fact and record the sale price on the basis of signed documents is accepted by the department in the hands of sellers of the property or shareholders of Blue Bird Software Private Limited. Those assessment orders are also passed after search in their cases by the central circle. 16. The assessee has also placed on record the assessment order of Blue Bird Software Pvt Ltd who has purchased this property for 6.80 cr just few months before the date of unsigned document. This value is also accepted by the Income tax authorities. The assessee has been able to produce enough evidence on record to rebut the presumption. In the case of M.M. Financers (P) Ltd vs DCIT 17 SOT 5 (Chennai) ITAT it is held that the expression used in section 132(4A) is may be presumed and it does not mean that other factors are not to be taken into consideration. The mandate does not mean that it has to be presumed irrespective of all other factors. The decision of Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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