TMI Blog2021 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment made by the assessee at the time of agreement, the assessee is not supposed to produce any evidence of non existing transaction. As per terms of the agreement the assessee was to pay ₹ 25,00,000/- for discharge of loan amount against the property and once this payment is not made by the assessee to discharge the property in question from the mortgage charge of the bank which is matter of record then it cannot be presumed that the assessee has made the said payment. AO instead of discharging his duty to bring any material on record to show that the assessee has made unaccounted payment during the year under consideration the addition made purely on the basis of presumption it is not justified and the same is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant craves to alter, amend and modify any ground of appeal. 3. Necessary cost be awarded to the assessee. 2. Due to prevailing COVId-19 pandemic condition the hearing of the appeal is concluded through video conference. 3. There was a search action U/s 132 of the IT Act on 10.12.2015 in case of the assessee. The dispute in the present appeal is regarding addition made by the AO while framing assessment U/s 143(3) r.w.s 153B(1)(b) of the Income Tax Act on account of unexplained investment for purchase of land vide agreement dated 30.04.2008 found during the course of search and seizure action. The Assessing Officer has noted that as per said agreement the assessee agreed to purchase the property situated at village Jam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51,000/- pertains to the assessment year 2009-10 and the same cannot be added for the year under consideration. He has further submitted that the Assessing Officer has recorded this fact that the time period of payment of balance amount of ₹ 54,50,000/- is not known but the same is held to be unaccounted expenditure made by the assessee for the purpose of investment in the property during the current year. Therefore, the addition is made by the AO only on the basis of assumption and presumption of payment made by the assessee during the year without any incriminating material. There was no material or basis to presume that against the agreement dated 30.04.2008 the assessee paid the alleged amount of ₹ 54,50,000/- during the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee explained these facts that due to the dispute between family members of the seller transaction could not materialis and no payment other than paid at the time of agreement was made by the assessee. 6. On the other hand, the ld. DR has submitted that so far as the order of the Ld. Additional and District Sessions Judge is concerned it is not clear whether this property was part of the dispute in the case before the court. Even otherwise this is an additional evidence which was not produced before the authorities below. He has further submitted that the AO as well as ld. CIT(A) has recorded that the assessee surrendered income of ₹ 24,00,000/- being the amount paid by the assessee at the time of execution of the agreement and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered sale deed. So far as the payment of ₹ 24,00,000/- in cash and ₹ 1,51,000/- by cheque is concerned there is no dispute regarding the said payment as it is paid at the time of agreement dated 30.04.2008 and the assessee has accepted the same. The Assessing Officer has also recorded this fact that the said amount of ₹ 24,00,000/- paid at the time of agreement and ₹ 5,50,000/- was to be paid in the next month of the agreement pertains to the assessment year 2009-10. The relevant part of the order at page 3 of the assessment order reads as under:- It is observed that as per the agreement, the assessee made the payment of ₹ 31.01 lakhs in thy AY 2009-10 against the transaction, while the period of balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged payment. In support of his presumption the AO has not referred any evidence or material. Once there was no material available with the AO to show that the assessee has made the payment of the balance purchase consideration of ₹ 54,50,000/- the addition cannot be made on the basis of presumption. The Assessing Officer instead of conducting any enquiry to find out the correct facts about the alleged payment has proceeded only on the basis of assumption and presumption regarding the alleged payment of ₹ 54,50,000/-. Further, he has also assumed that the payment has been made during the year under consideration. In the absence of any material or other facts to indicate that the alleged payment was made by the assessee and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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