TMI Blog2019 (1) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of decision of Kabul Chawala [ 2015 (9) TMI 80 - DELHI HIGH COURT] 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. Whether material found during the course of the search at the premise of Sri Naresh Gupta, belonged to the assessee? - 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 agreement to sell was merely related to the assessee. The said document was prepared in ordinary course of his profession and thus he was rightful owner of the document, though the document contained related information to the assessee, it belongs to Sh. Naresh Gupta only. Therefore, the Assessing Officer correctly reopened the assessment under the provisions of section 147 of the Act. Since the said reassessment proceedings under section 147 of the Act were found to be pending as on the date of issue of notice u/s153A of the Act, the Assessing Officer is justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Corporation, the sale of the land is liable to provisions of the capital gain. In view of the above, we do not find any error in the order of the Ld. CIT(A) on the issue in dispute, accordingly we uphold the same. The ground No. 1 of the appeal is, accordingly, dismissed. - ITA Nos. 2001 & 3256/Del/2017 - - - Dated:- 25-1-2019 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For the Appellant : Shri Rajesh Malhotra, CA For the Respondent : Shri Sanjay Goel, CIT(DR) ORDER PER O.P. KANT, A.M.: These two appeals by the assessee are directed against two separate orders dated 20/01/2017 and 24/03/2017 passed by the Ld. Commissioner of Income-tax (Appeals)-31, New Delhi [in short the Ld. CIT(A) ] for assessment year 2008-09 and 2012-13 respectively. Both the appeals, being connected with one assessee, same were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of common facts and circumstances of the cases. ITA No.2001/Del/2017 for AY: 2008-09 2. First, we proceed to decide the appeal, bearing, ITA No.2001/Del/2017. The grounds raised by the assessee in ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it should be quashed. 6. On the facts and in the circumstances of the case and in law, the authorities below have erred in charging interest u/s 234A ₹ 5,03,601/-, interest u/s 234B ₹ 53,71,740/- and interest u/s 234C ₹ 2,07,035/-. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed. 7. The appellant craves the right to add, submit, alter or withdraw any or all or on the date of hearing. 3. Briefly stated facts of the case are that the assessee, an individual did not file original return of income under the provision of section 139 of the Income-tax Act, 1961 (in short the Act ) on the prescribed due date (i.e. 31/07/2008). In subsequent proceedings, the assessee explained that the return was not filed as the total income was below the taxable limit. A search and seizure action under section 132 of the Act was carried out at the premises of the assessee on 11/09/2013 alongwith the other cases of the AKN Group. Consequent to search action, notice under section 153A of the Act was issued on 30/06/2014 and served upon the assessee, asking to file the return of income for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 34,00,000/-. According to the Ld. Assessing Officer, on perusal of the contents of draft of sale of agreement found in the hard disk of computer as well as contents of the registered sale deed, he found that both are same except difference of amount of sale consideration. The Ld. Assessing Officer has reproduced the relevant content of the registered sale deed in the assessment order. 4.3 The documents found from the premises of Shri Naresh Gupta, were confronted to him and his statement was recorded on 08/11/2013, wherein he admitted the fact the document were taken from the hard disk of his computer, however, he denied of having any information/actual detail of money transaction involved in agreement to sale. The relevant part of his statement has been reproduced by the Assessing Officer in the assessment order. 4.4 The Assessing Officer has noted in the assessment order that on the basis of the documents found from the premises of Shri Naresh Gupta, the case of the assessee was reopened after obtaining prior approval of the Range Head, and notice under section 148 of the Act was issued to the assessee for the year under consideration. According to the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under section 148 of the Act were pending, which got abated due to notice u/s 153A of the Act, the assessment cannot be treated as completed and the condition of completed assessment for not making any addition under section 153A of the Act is not satisfied. Thus, the ratio of the decision in the case of the Kabul chawla (supra) cannot be imported in the facts of the instant case. Accordingly, the Ld. counsel justified the finding of the Ld. CIT(A) in upholding the validity of the proceedings under section 153A of the Act. 4.7 We have heard the rival submissions and perused the relevant material on record. In view of the decision of the jurisdictional High Court in the case of Kabul Chawala (supra) for making addition in proceedings under section 153A of the Act, two conditions of completed assessment and incriminating material found from the premises of the assessee have to be fulfilled simultaneously. In the instant case, the Assessing Officer has mentioned that assessment in the case of the assessee was reopened by way of issue notice under section 148 of the Act and those reassessment proceeding under section 148 were pending on the date of issue of notice u/s 153A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged the addition made on presumption basis as well as addition made without following the proper procedure in law before relying on the alleged evidences found from the premises of the third party. 5.1 According to the Assessing Officer, transaction mentioned in the agreement to sell was actually made by the concerned parties. The Assessing Officer also observed the detail mentioned in the registered sale deed related to mode of payments and those payment details tallied with the details mentioned in the agreement to sell except cash payments. On the basis of these observation, the learner Assessing Officer is of the view that the assessee alongwith his co-owner has received the difference of the above documents i.e. ₹ 1.67 crores in cash from the buyer i.e. Sh. Rajiv Goel and thus 50% of the this amount which works out to ₹ 83,50,000/-has been received by the assessee over and above the sale consideration declared in the registered sale deed. Before the Ld. CIT(A), the assessee challenged that the document was found in the search of the premises of third-party and therefore, neither presumption under section 132(4A) of the Act can be invoked against the assessee, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he position of the law. The Id. AO added undisclosed sale consideration in the form of cash received on the sale of a house property located in one of the posh colonies of the city. The basis of addition was a draft of 'agreement to sell' found on the computer of the appellant s deed writer. The appellant argued that the same was only a draft and no cash as mentioned therein was received. It is seen that the details mentioned in the registered sale deed like mode of payments and the amounts tallied with the same mentioned in the 'agreement to sell' except for the cash payments e.g. ₹ 5 lakhs and ₹ 10 lakhs have been mentioned as paid by cheque in both the documents. The appellant has also admitted the above. It is trite that every document has to be considered in its entirety. It is not possible to consider one part of document as true and other part as not. If the cheque component is verifiable and found to be true then the cash component is also bound to be true. In the case of Glass Line Equipments Co. Ltd. Vs. CIT (2002) 99 ITD 177, it has been held that as per presumption if one part of document is true, the other part of document will also be true. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h material on record to negate the claim of genuineness of the transactions and in the light of over-whelming material, the plea that the AO should not have rejected the affidavits without crossexamination, of the deponents has no force. The said exercise has resulted in complete miscarriage of justice. 7.2 Having carefully gone through the provisions of sec 292C of the Act, I agree with Id. AO that sub section (2) of the said section is applicable on the appellant in view of which the onus was on him to explain the contents of the 'agreement to sell' 5.2 Before us, the Ld. counsel of the assessee filed a paper book, combined for both the appeals for assessment year 2008-09 and 2012-13, containing pages 1 to 115. The Ld. the counsel argued, firstly that no incriminating material was found from the premises of the assessee and the completed assessment cannot be disturbed by the Assessing Officer in view of the decision of the Hon ble High Court in the case of Kabul Chawala (supra). Secondly, the Ld. counsel argued that the provisions of section 292C of the Act relied upon by the Ld. CIT(A) are not applicable in the case of the assessee as the document on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of a document found from the hard disk of computer of deed writer Sh. Naresh Gupta. This document is a draft of agreement to sell of the first floor of the property of the assessee, which was sold to buyer namely Sh. Rajeev Goel. Print out of this document was taken from the hard disk seized from the premise of Sh. Naresh Gupta. A copy of this unsigned agreement to sell found in the hard disk of the deed writer, has been filed at pages 95 to 106 of the paper book. The relevant para of the document on page 99 of the paper book reads as under: NOW THIS AGREEMNT TO SELL WITNESSETH AS UNDER: This in consideration of the sum of ₹ 2,01,00,000/- (Rs. Two Crores One Lac Only), out of which a sum of ₹ 70,00,000/- (Rs. Seventy Lacs Only), as advance money has been received by the Vendors from the Vendee, in the following manner: ₹ 55,00,000/- in cash ₹ 5,00,000/- vide Cheque No dated .. ₹ 10,00,000/- vide Cheque No dated .. both drawn on . the balance sum of ₹ 1,31,00,000/- (Rs. One Crore Thirty One Lacs Only), will be paid by the Vendee to the Vendors on or before .(time being the essence of this contract), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exclusion1 of the Vendors end 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 has been delivered by the Vendors to the Vendee on the spot. Now the Vendors have been left with no right, title, interest, claim on concern of any nature with the said portion of the said property and the Vendee has become the absolute owner of the said portion of the said property, with full right to use and enjoy the same as absolute owner without any objection/ hindrance by the Vendors or any other person claiming through or under the Vendors. 5.5 According to the Assessing Officer the entries of cheque payment of ₹ 5 lakh and 10 lakh mentioned in the draft agreement to sell found in the course of search at Shri Naresh Gupta, matches with the first two entries of payment received mentioned in the registered sale deed. The assessee has admitted of receipt of these two cheque payments. The Ld. CIT(A) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is nobody‟s case other than the Revenue that the document found in the premises of Mr. Lalit Modi belongs to the Assessee. Mr. Shivpuri referred to Section 292 C of the Act for the purposes of drawing two presumptions (i) the one contained in Section 292 C (1) (i) to the effect that the document found in possession of a person should be presumed to belong to such person. As far as this is concerned, clearly, since the document was found in possession of Mr. Modi, the presumption, if at all, is attracted only qua Mr. Lalit Modi and not the Assessee herein. 5.9 The finding of the Assessing Officer the document has been requisitioned under section 132A of the Act and, thus, provisions of section 292C(2) would apply in the case is also not correct, as no such record has been produced before us to show that the said document has been requisitioned by the Assessing Officer in terms of section 132A of the Act. Accordingly, we hold that the addition in dispute cannot be sustained on the ground that the assessee failed to rebut the presumption under section 132(4A) or presumption under section 292C of the Act. 5.10 Further, we find that the conclusion of the Ld. CIT(A) that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copied and sometimes during 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. Therefore simply picking up file from the hard disk of the Computer will not reflect true nature of the contract. True nature of the contract can only be gathered from the contracting parties only. Regards Sd/- NARESH GUPTA (ADVOCATE) 5.12 On perusal of the statement and letter of Sh. Naresh Gupta, we find that though he initially admitted that draft document was prepared on the direction of the assessee, however, he has denied of any knowledge of information/actual details of money transaction between the buyer and assessee. No other evidence corroborating the payment in cash by the buyer to the assessee has been either found in the course of the search or collected in the course of assessment proceedings by the Assessing Officer, which could substantiate receipt of alleged cash amount recorded in the draft agreement to sale. 5.13 It is undisputed that the draft agreement to sell is not signed either by the purchaser or the seller. The author of the draft has denied any knowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee are reproduced as under: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in confirming the addition of ₹ 65,08,020 on account of long term capital gain on sale of agriculture land. The action of the authorities below 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 charging interest u/s 234A ₹ 1,76,336/-, interest u/s 234B ₹ 7,05,347/- and interest u/s 234C ₹ 87,053/-. The action of the authorities below is wrong, illegal, misconceived, unjustified and bad at law therefore it should be quashed. 3. The appellant craves the right to add, submit, alter or withdraw any or all grounds of appeal before or on the date of hearing. 9. The facts qua the issue in dispute are that the assessee sold land at village Ghata, Tehsil Sohna, district Gurgaon, Haryana on which no capital gain was declared, claiming the land to be agricultural land. Before the Assessing Officer, the assessee filed a letter dated 17/03/2016 of Tehsildar, Sohna, District Gurgaon mentioning that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within Municipal limits of Gurgaon. The same also emerges from the notification dated 23.03.2010 issued by the Government of Haryana which specified that all the previously left over parts of Village Ghata and various other villages shall be covered under the Municipal limits of Gurgoan. This clearly means that earlier only a part of village Ghata was under the Municipal limits; whereas, subsequently vide notification 23.03.2010, the remaining parts were also brought under the Municipal limits. On the basis of the above, it can be said that without any doubt the land in question falls in the Municipal limits, and therefore, it is not an agricultural land and hence I hold that the capital gain on the sale of the above has rightly been taxed by Ld. AO. The action of the AO is, therefore, confirmed. 10. Before us also, the Ld. counsel of the assessee, though relied on the submission made before the Ld. CIT(A), he could not controvert the finding of the Ld. CIT(A) on the issue in dispute. 10.1 On the contrary, the Ld. DR relied on the order of the Ld. CIT(A). 10.3 We have heard the rival submissions of the parties and perused the all relevant material including the paper bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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