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TMI Blog2021 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... see was dismissed and consequently the addition to the extent of Rs. 2 crores to his income made by the Assessing Officer has been upheld. 4. The brief factual matrix giving rise to the present appeal is that a search operation was conducted by the Central Bureau of Investigation [hereinafter referred to as 'CBI'] at the premises of the Appellant, during which cash of Rs. 2 crores was seized. Subsequently, based on the information provided by the CBI, the Director of Income Tax (Investigation) conducted another search under Section 132 of the Act on the very same day. In this search proceeding, the statement on oath of the Appellant was recorded under Section 132(4) of the Act, wherein he sought to contend that the amount of Rs. 2 crores was received by him as advance for sale of agricultural land at Faridabad. Total area of the land was stated to be 50 acres and agreed price for the sale was disclosed as Rs. 6 crores. He further stated that the amount was received from one Mr. Sharma and receipt against the advance of Rs. 2 crores was issued by the Assessee, although at the time of the search, the Appellant did not possess a copy of the same. 5. Subsequently, in the assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case, the Tribunal erred in law in upholding the addition of Rs. 2 crores made by the Assessing Officer in the hands of the appellant representing cash found and seized during the course of search? (ii) Whether on the facts and in the circumstances of the case, the order passed by the Tribunal is perverse inasmuch as it relies upon various irrelevant facts and fails to consider the relevant/ material facts?' 6. Mr. Ajay Vohra, learned Senior Counsel appearing for the Appellant, submits that the CIT(A) and the Tribunal, while upholding the addition, have been completely silent as to under which provision of the Act, the aforesaid addition was sustainable. He presses that even if assuming the exercise of the Assessing Officer to be in terms of the scheme of the Act, the only provision which provides for bringing to tax the purported "unexplained money" in the hands of an assessee is Section 69A of the Act. He submits that in order to qualify for addition under said provision, the conditions specified therein are required to be fulfilled, which evidently is not in the present case. He puts forth that the appellant had duly and fully explained the "n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold under the purported MOU. The Appellant also did not produce the original MOU and further the manner in which the suit filed by the purchaser was compromised indicates that the entire version put forth by him to explain the cash found in his possession was concocted and contrived to escape taxation. 8. We have given our thoughtful consideration to the rival contentions of the parties. The findings of the tax authorities and in particular the Assessing Officer, are based on the testimonies and evidence gathered during the course of the assessment. When the cash was found during the search conducted at the premises of the Appellant and his statement was recorded under section 132(4) of the Act, he did not disclaim ownership over the same. On the contrary, he sought to explain the 'nature, purpose and source' of the said amount by contending that the amount was received by the Appellant as an "advance for sale of agricultural land at Faridabad". In the course of the ensuing assessment proceedings, the Appellant submitted that the amount of Rs. 2 crores was received in the form of cash advance from Mr. Rahul Ahuja, through a broker. Appellant made full efforts to support this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimed to have agreed to sale 50 Acres of land for a consideration of Rs. 6 crores, but, the MOU allegedly signed by Shri Rahul Ahuja and assessee clearly mentioned the land under sale to be 30 Acres and was sold for a consideration of Rs. 4 crores only. The Ld. CIT(A) on examination of the documents on record has given a specific finding that share of the assessee comes to 30/130 share i.e., approximately 4 Acres of land. Learned Counsel for the Assessee during the course of arguments did not explain any of the discrepancy found in the statement of these persons and the calculation made by the Ld. CIT(A) regarding area of the land to be approximately 4 Acres. There are contradictions in the statements of assessee and others with regard to month of the first meeting, place of meeting, area of land to be sold and sale consideration which is not explained by the assessee through any reliable and cogent evidence. The figure of the sale consideration is also differed as assessee has stated it to be Rs. 2 crores received as advance, but, other 02 persons stated it to be Rs. 2.01 crores. Shri Rahul Ahuja while explaining the source has stated in his statement that he has withdrawn the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nothing have been explained in this regard with regard to allegations made against the assessee and others in the charge-sheet submitted by the CBI and reproduced by the Assessing Officer in the assessment order. Considering the totality of the facts and circumstances of the case and that there was substantial gap between withdrawal of cash by Shri Rahul Ahuja and alleged payment to the assessee. Therefore, assessee has failed to explain source of the cash of Rs. 2 crores found from his possession during the course of search by the CBI. The entire case set-up by the assessee is clearly an afterthought. The MOU and receipt are sham documents and fabricated by the assessee and others later on which fact is further strengthened by the fact that no original of MOU and receipt have been produced before the authorities below. Otherwise, the same could have been subjected to verification by CFSL. Copy of the MOU was produced, but, it was not having the back side which could have throw light on the fact as to when the said stamp paper were purchased and whether stamp papers were genuine or not. All these facts and circumstances clearly prove that assessee has no explanation whatsoever of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, particularly when we see no perversity in the findings of the ITAT. As regards the contention of Mr. Vohra, that the finding recorded by the Assessing Officer that the amount of Rs. 2 crores was for an illegal gratification, contradicts the conclusion drawn by him, we would say that firstly, we perceive no such contradiction. Secondly, on a pointed query raised by the Court, Mr. Vohra refutes that the amount in question was illegal gratification. Thus, the plea of being a conduit is a pretext to evade tax. Thirdly, to our mind, the observations of the tax authorities are on independent examination of the case and not entirely resting on the case which has been set up by the CBI. As far as the Income Tax proceedings are concerned, since the explanation offered by the Appellant has not been found to be satisfactory, the addition is in accordance of law. In view of the consistent findings of the fact, no questions of law, much less any substantial question of law, arises for our consideration. 11. In view of the above, the present appeal is dismissed. RAJIV SAHAI ENDLAW, J. 12. I have perused the order aforesaid dictated by Sanjeev Narula, J. and though concur in entirety with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments of the Revenue before the ITAT as under: "In this matter, the CBI received a source information, on the basis of which, enquiry was conducted during which, mobile phones were intercepted. The team was deployed at the residence of the assessee who was coming to deliver the bribe amount of Rs. 2 crores. The CBI apprehended Dr. Kamaljeet Singh while coming out of the residence of the assessee on 22.04.2010 at about 12:50 hours. On his disclosure, Rs. 2 crores was recovered from the office located at the ground floor of the residential premises of the assessee at Vasant Vihar, New Delhi. All these facts are mentioned in the bail order of the assessee...... the transcript of the conversations between Dr. Ketan Desai, Sukhwinder Singh and assessee, Sh. Kamaljeet Singh, Sh. K.A. Paul and Sh. N.S. Bhango reveal that conversations were corelatable to the dates on which the event took place. The conversation clearly reveals that it was a bribe amount to be paid.... " AND to the findings of the ITAT itself, as under: "Therefore, there is no reason to disbelieve the case set up by the CBI and the Income Tax Department against the assessee. The Assessing Officer has reproduced ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBI was the same, the explanation offered by the assessee was satisfactory. On the contrary, the assessee offered some other explanation and with which he failed to satisfy the Assessing Officer. We have rather, during the hearing also enquired from the senior counsel for the appellant / assessee, whether the appellant / assessee is even now willing to change the explanation offered by him and to bring it in consonance with the case of the CBI. The answer of the senior counsel for the appellant / assessee, on instructions, is expectedly in the negative. 19. In this context, we may also notice that Section 69A empowers the Assessing Officer to only adjudicate whether the explanation offered by the assessee is satisfactory or not. The Assessing Officer is not empowered to return a finding, of the sum of Rs. 2 crores found in possession / custody of the appellant being with the appellant in transit, for onward payment as bribe. The Assessing Officer as well as the ITAT referred to the same, only in the context of the charge-sheet of the CBI and to observe that the explanation offered by the assessee was an afterthought. The assessee thus cannot argue that there is any finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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