TMI Blog2019 (9) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... to be construed that unexplained expenditure was incurred; on cancellation of the deal, even after the search, the assessee has got cash component in cash. He will not disclose it anywhere that circumstances would not absolve him from explaining position of availability of cash from explained sources also at the time of payment reflected in the schedule. It CIT(A) has made a detailed analysis of this schedule in the light of payment through DD and observed that probability of incurrence of expenditure according to the schedule is much more. Only circumstance highlighted by the assessee before us is that deal was cancelled, and therefore, there was no motive or objective to make unexplained investment. The fact that the deal was cancelled has not been brought on record. It is a declaration after the search, which is not relevant factor. Therefore, we do not have any hesitation in concurring with the Revenue authorities on this issue. - Decided against assessee. - IT(SS)A No.496 And 497/Ahd/2012 - - - Dated:- 10-7-2019 - SHRI RAJPAL YADAV, JUDICIAL MEMBER ANDSHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER Assessee by: Shri Tushar P. Hemani, AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions of the appellant. Though in the assessment order the AO has scanned the copy of the seized document in the second page of the assessment order, the same is not eligible. Therefore, the copy of the relevant seized paper is annexed as Annexure 1 to this order. 4.1 On the examination of the seized document, it is noticed that the entries mentioned in .the top half are definitely the proposal for the purchase .of office number 206, Ashirwad Paras. As per this, the total area of the property is 1625 ft. The rate is shown at ₹ 2400 per square feet. The total consideration is shown at ₹ 39 Lacs, out of which 60% is to be paid in cash and 40% by cheque. The possession is to be given after 18 months from the date of booking. The payment condition says that 30% is to be paid at the time of booking, 15% at the time of possession and 55% in eight instalments of ₹ 268,125/- each from Feb. 2008 to September 2008. Expenses like AEC, AMG and maintenance and car parking are to be paid extra. Similarly documentation charges and Labour charges are to be paid extra. Below this noting a line is drawn. Below this line the details of payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper leave no doubt regarding the payment of cash of ₹ 24.70 Lacs from 26/1/2008 to 8/12/2008. Even though the appellant did not accept that he had made any cash payment towards the purchase of the office, I am not inclined to accept the statement particularly when it is clearly mentioned in the seized paper that the payments are given.. First payment of cash of ₹ 10 lakh is shown as on 26/1/ After that the details of DD total amounting to ₹ 170,000/- dated 17/1/2008 is mentioned. The DDs are shown as taken by Aishwarya organisers Pvt Ltd on 1/2/08 only. This clearly proves that before the DD of ₹ 170,000/-, cash of ₹ 10 lakh was delivered towards the purchase of the property. Thus, at the time of booking the appellant has made total payment of 10+1.70 Lacs = ₹ 1.70.Lacs which is exactly 30% of the total consideration as per the proposal. As per the proposal, 30% payment is to be made at the time of booking, 15% at the time of possession and balance 55% in eight instalments from February 2008 to September 2008. There could have been some truth in the contention of the appellant had the cash payment of ₹ 10 lakh dated 26/1/8 written after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. It could not be assumed that the assessee has incurred unexplained expenditure, because there might be a corresponding asset with the assessee. In the absence of corresponding asset, incurrence of such expenditure could not be in the air. He further emphasised that the assessee has disclosed this fact in the statement given to the ADIT under section 131 on 3.5.2010. 5. On the other hand, the ld.CIT-DR contended that the assessee failed to give any documentary evidence about the fact that deal was not materialized. It is a just a bald statement in response to question asked by the ADIT. This statement was given much after the conclusion of search with due consultation with his consultant. In order to substantiate this statement the assessee should file details pointing out when the deal was cancelled, how he has received the refund. He should have produced the certificate from the vendor also that deal was cancelled, and how much money was refunded. 6. We have duly considered rival contentions and gone through the record carefully. Basically, the assessee is harping upon the reply to question no.2, which we take note of along with his repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate the case of the assessee had he produced refund of booking amount before the search, that is, if the assessee has demonstrated that payment of ₹ 1.70 lakhs paid through DD was received back by him before 11.2.2010. To some extent it could be appreciated that this paper was pertaining to negotiation of certain deal. It is also important to note that we have to evaluate the position of the payment on the time mentioned in the loose paper. In other words, if the assessee has paid money in cash in accordance with the schedule, then it is to be construed that unexplained expenditure was incurred; on cancellation of the deal, even after the search, the assessee has got cash component in cash. He will not disclose it anywhere that circumstances would not absolve him from explaining position of availability of cash from explained sources also at the time of payment reflected in the schedule. It is also pertinent to observe that the ld.CIT(A) has made a detailed analysis of this schedule in the light of payment through DD and observed that probability of incurrence of expenditure according to the schedule is much more. Only circumstance highlighted by the assessee before us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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