9911796707
TMI Blog2019 (1) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... in concluding that Learned AO has correctly assumed jurisdiction to assess the assessee u/s 153A/143(3) of the Act, the whole action is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed. 2. On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming addition of Rs. 83,50,000/- on presumption basis that the assessee has received this amount of Rs. 83,50,000/- in cash not declared in Registered Sale Deed on account of sale of first floor and barsati of property no. 31, Block J, South Extension Part 1, New Delhi. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed. 3. On the facts and in the circumstances of the case and in law, the authorities below have erred in confirming the addition of Rs. 83,50,000/- objected in ground no. 2 above on the basis of search and seizure conducted and alleged evidences found in premises of third party without following the proper procedure in the law before relying on those evidences therefore action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was completed on 30/03/2016 under section 153A read with section 143(3) of the Act and total additions of Rs. 1,67,00,000/- for unexplained sale consideration received on sale of two properties at the rate of Rs. 83,50,000/- each was made to the income returned by the assessee. Before the Ld. CIT(A), i.e., the first appellate authority, the assessee challenged validity of the assessment proceeding as well as merit of the addition. The Ld. CIT(A) in the impugned order upheld both the validity and merit of the addition. Aggrieved with the finding of the Ld. CIT(A), the assessee is in appeal before the Tribunal, raising the grounds as reproduced above. 4. In ground No. 1, the assessee has challenged validity of the assessment completed under section 153A of the Act. According to the assessee, in absence of any incriminating material found from the premises of the assessee, the action of the Assessing Officer in making the assessment under section 153A of the Act is against the law laid down by the Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawala, (2016) 380 ITR 573 (Delhi). 4.1 The facts qua the issue in dispute are that along with a search proceeding carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in 153A proceedings. 4.5 Before us, the Ld. counsel of the assessee referred to the decision of Hon'ble Delhi High Court in the case of Kabul Chawala (supra) and submitted that no addition could be made under section 153A proceedings in case of completed assessments without any incriminating material found during the course of the search from the premises of the assessee. The Ld. counsel submitted that firstly, the alleged incriminating document in the form of agreement to sale has been found and seized from the premises of the third party and not from the assessee and thus condition of no incriminating material is satisfied. Secondly, the total income of the assessee for the year under consideration was below taxable limit and therefore the assessee was not required to file return of income as per provisions of section 139 of the Act and no proceeding could have been initiated under section 143(1)/143(2) or 143(3) of the Act and, therefore, in this case assessment should be treated as unabated or completed, and the second condition was also satisfied. According to the Ld. counsel, both the conditions for not making additions under section 153A proceeding as laid down in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, assessment proceedings were pending in the case of the assessee, which got abated. Hence, the contention of the assessee that no assessment proceedings were pending in the case of the assessee, is rejected. As the one of the condition required for holding addition made under section 153 proceedings as valid in terms of decision of Kabul Chawala (supra) has not been satisfied, we do not find any infirmity in the finding of the Ld. CIT(A) on this issue and accordingly we uphold the same. The ground No. 1 of the appeal of the assessee is dismissed. 4.8 The Ld. counsel of the assessee made one more proposition to challenge the validity of proceedings under section 153A of the Act. According to him, the material found during the course of the search at the premise of Sri Naresh Gupta, belonged to the assessee and as per the procedure laid down in the provisions of the Act, the assessment was to be completed under section 153C of the Act. In our opinion, the material found from the premise of the Sh Naresh Gupta is digital record of the draft deed maintained in the computer of Sh. Naresh Gupta, Advocate (deed writer), which belonged to him. As the information contained in said agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such cutting/pasting, data of some other file is also copied by mistake, which shows various discrepancies/variance as per the actual figures/ amounts/terms. Relying on said letter, it was submitted that the document found was only cut paste over the documents and same does not reflect any kind of nature of contract or transaction and has no relevance. The assessee also submitted an affidavit, wherein he stated that no cash was received over and above the sale consideration recorded in the registered sale deed. The Ld. CIT(A) forwarded the additional evidences in the form of the affidavit of the assessee etc to the Assessing Officer for his comment. The Assessing Officer submitted that the affidavit filed by the assessee was a self declaration. The Assessing Officer submitted that provisions of section 292C of the Act are applicable in the instant case and according to which contents of any books of accounts or the documents or asset, which have been delivered to the Requisitioning Officer in accordance with the provisions of section 132A of the Act, has to be taken as correct. In the rejoinder filed, the assessee submitted that the document is unsigned by either party; the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the co-owner received the difference of the two amounts, i.e. Rs. 1.67 crore in cash from Sh. Rajiv Goel, the buyer. Since the share of the appellant in the property was 50%, half of the sale consideration over and above the registered price, i.e. Rs. 83,50,000/- [50% of Rs. 1,67,00,000/- (Rs. 2,02,00,000/- less Rs. 34,00,000/-) was added in the hands of the appellant. 7.1 In the given facts and circumstances, the probability of preponderance weigh more in favour of revenue. The appellant has not denied that the said deed writer was not the one who prepared the final deed for him or the former never had any contact with the latter. In view of the above, the affidavits filed by the appellant are nothing more than after thoughts and self serving documents. In the case of CIT versus Nova Promoters and Finlease (P) Ltd. (342 ITR 169), Hon'ble Jurisdictional High Court has held as under: "25. In the light of the above facts, the evidentiary value of the affidavits is open to serious doubts. The Indore Bench of the Madhya Pradesh High Court in the case of Smt. Gunwati Bai Rati Lai vs. CIT(MP) 146 ITR 140 explained the judgment of the Supreme Court in the case of Mehta Parikh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PCIT Vs. Vinita Chaurasia, 82 taxmann.com 153 (Delhi) wherein it is held that presumption under section 292C attract only qua the person from whom the document has been seized and not against the other person. Thirdly, the Ld. counsel argued that the draft agreement to sale printed from the hard disk of computer owned by Sh. Naresh Gupta is an unsigned copy and thus cannot be admitted as an evidence against the assessee. According to him, Sh. Naresh Gupta himself has admitted that it was prepared as cut and paste from other documents, which resulted in mentioning of cash payment and he denied of having any knowledge of monetary transaction between the buyer and seller. The Ld. counsel also submitted that the assessee has affirmed on the affidavit that no cash component was received from the seller. The Ld. counsel also submitted that no enquiry has been carried out by the Assessing Officer from the buyer of the property and statements recorded, if any, of the buyer of the property had not been provided to the assessee. In support of the contention that the addition made on the basis of single document, without any further investigation or enquiry from the broker etc is bound to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot of land measuring 267 Sq. Yds., to the Vendee, on the terms and conditions herein contained provided that nothing herein stated shall confer or deemed to have conferred upon the Vendee exclusively any right or title to the common staircase, overhead water tanks, sewers, water meters and other common facilities to the exclusion of the Vendors and or the Vendee or owners or occupants of the other units of the said building. That the actual physical vacant possession of the said portion of the said property will be delivered by the Vendors to the Vendee, on receiving the balance sale consideration. That on or before.............,the Vendors(on receiving the balance sale consideration) will execute and get the sale deed of the said portion of the said property registered, in favour of the Vendee or his nominee/s." 5.4 A copy of a registered sale deed in respect of the above property has been placed on pages 4 to 26 of the paper book. According to the registered sale deed, the property has been sold for total consideration of Rs. 34 lakh. The detail of the payment received of Rs. 34 lakh is mentioned on page 21 of the paper book. For ready reference, said detail is reproduced as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption if one part of the document is true, the other part of the document will also be true. The Ld. CIT(A) has concluded that the said draft deed was prepared only on the direction of the assessee and the portion mentioning cash was subsequently deleted at the time of the preparation of the final register deed. 5.6 The issue before us is that whether in view of the above document, can it be presumed that the assessee received payment in cash of Rs. 83,50,000/-in addition to the amounts recorded in registered sale deed . 5.7 The first argument of the Ld. counsel is that no incriminating material was found from the premises of the assessee. According to him, the said draft agreement to sell has been found from the premises of the 3rd party and therefore no addition could have been made in terms of section 153A of the Act following the decision of the Hon'ble Delhi High Court in the case of Kabul Chawala(supra). We are not convinced with this argument of the Ld. counsel. We have already observed in earlier paras of this order that in this case the reassessment proceedings were initiated under section 147 of the Act, which were abated due to the action under section 153A of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is statement is reproduced as under: "Q.12 I am showing you printouts taken from the hard disk seized from your office premises R- 36 GK Part -I, New Delhi, in which contain various agreement to sell and sale deeds. In view of the fact and circumstances (a) Why these document should not be treated as belong to you u/s 132(4A) of the I T Act, 1961. (b) Why those should not be treated as true? Ans. The printouts of the documents shown to me taken from the hard disk from my office is pertaining to my various clients, it does not pertain to me in many manner whatsoever. These documents are drafted under the instruction of my various clients in discharge of my professional duty/obligation. Any other information/actual details of money transaction is not my knowledge. Any other details pertaining to the same is protected under the privileged communication under the Indian evidence Act." 5.11 Subsequently, the assessee filed a letter from Sh. Naresh Gupta, wherein he has submitted that said draft deed was as a result of preparation of document by way of cut-and-paste of paragraphs from other documents. A copy of the said letter is available on page 3 of the paper book. Content of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, no addition can be made in the hands of the assessee merely on the basis of unsigned draft agreement to sale. The finding of the Ld. CIT(A) that part of the document is found to be true and thus the balance should also be treated as true is not correct and instant case the entire document found is a draft prepared by the deed writer, which is not signed by any of the party mentioned in the said draft. Such an unsigned document cannot be made basis of presumption that the assessee received cash on sale of the property. The assessee has been subjected to search but no other documentary evidence of receipt of cash by the assessee has been found in the course of the search. We also note that no attempt has been made by the Assessing Officer to make an enquiry from the buyer or to ascertain the prevalent market value of the property sold by the assessee. 5.14 In view of the aforesaid discussion, we are of the opinion that no addition can be sustained only on the basis of the unsigned draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. Accordingly, we set aside the order of the Ld. CIT(A) and the Assessing Officer on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of the land liable for long-term capital gain and made addition of Rs. 65,08,020/-. 9.1 In first appellate proceeding, the Ld. CIT(A) called for remand report from the Assessing Officer. The Ld. Assessing Officer called for report from the relevant land revenue authority and found that the entire Village Ghata was made part of Gurgaon Municipality by way of notification issued by the State government. Accordingly, the Ld. CIT(A) sustained the addition observing as under: "7.2 The matter was therefore, remanded to the Learned AO who vide remand report dated 27.02.2017 forwarded report of Patwari, village Ghata, who was authorized by the Tehsildar, sohna, to appear before the former and to personally produce necessary evidences and other documents. As per the said report dated 22.02.2017, the Patwari, Ghata quoting the khasra number owned by the appellant has stated that the same falls within the limits of Municipality of Gurgaon as per the notification number 18/95/2008- 3C dated 2010. As per the rejoinder, the appellant stated that he could not traced out as to how his khasra number is covered by the aforesaid notification. On this, the said notification was downloaded from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
