9911796707
TMI Blog2014 (4) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... ing order etc., 4. As the Revenue's appeal as well as the assessee's cross objections being related to the same assessee, for the sake of convenience, they were heard together and disposed of in this consolidated order. 5. Before venturing to analyse the issues raised by either of the party, it was observed that there was a delay of 21 days in preferring the Cross Objections by the assessee. The assessee, in its affidavit dated 16.7.2013, has submitted as under: "4. That initially rule 27 of the Appellate Tribunal Rules was thought to be adequate to support the order of the learned CIT (A) in respondent's favour based on various judicial precedents including the judgment of the Hon'ble Supreme Court in Hukumchand Mills Ltd. V. CIT (63 ITR 232); 5. that however, a subsequent judgment of Hon'ble Bombay H.C in B.R. Bamasi v. CIT (83 ITR 223) has taken a view which appears to limit the ambit of rule 27; 6. That consequently as a matter of abundant precaution the cross objections have been filed, on the advice of Sr. Advocate though with a delay of 21 days; 7. that in this manner, there is a delay of 21 days for which a letter of condonation has been filed along with Memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,22,177/- is added to the total taxable income of the assessee for the assessment year........." [Refer: Pages 4 & 5 of the asst. order] 6. Aggrieved, the assessee took up the issue, in an appeal, before the CIT (A). After having considered the contentions put-forth by the assessee as well as the remand report of the AO and the rejoinder of the assessee on the issue, the CIT (A) deleted the addition made by the AO for the following reasoning: "(On page 14).....................the details furnished by the assessee, the accounts that has been presented before me and the remand report has been given, the following situation emerge: 1. The AO has added Rs. 33922177/- based on a table prepared by ADIT (Investigation), Belgaum. The table was based on impounded excel sheets prepared one year after the purchase transaction. The excel sheets when read together establish that these were internal calculations of estimated sales and cost bases/estimates to facilitate an overall view of the finance and the viability of the project. In the calculations construction costs have also been taken into account. The cost bases of the land being the prevailing FAR cost are not relatable to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble ITAT, Bangalore jurisdictional ITAT - A case of on money should be supported by other details like mode of payment, particulars of on money and calculations (Ref Para 27); (ii) CIT v. P.V. Kalyanasundaram (282 ITR 259) Hon'ble Madras High Court - upheld by Hon'ble Supreme Court in 294 ITR 49 - Burden of proving actual consideration in such transactions was that of revenue. The assessing officer did not conduct any independent enquiry relating to value of the property purchased. He merely relied on the statement given by the seller. The deletion of the addition was justified. The assessing officer has not discharged his onus of proving the discrepancy of the accounts. Addition without independent enquiry relying on seller's statement is not sustainable. 5. The decision in Hersh W Chadha's case (43 SOT 5440) is inapplicable on facts of the present case and distinguishable. Chadha's case related to the taxability of commission received abroad in Bofors gun deal. AO in that case relied on substantive corroborative evidence like the enquiry report of Swedish National Audit Bureau, charge sheet filed by CBI, trail demonstrated by the AO, assessee's maintenance and operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value which was paid to the land owners for the purchase of the property by the assessee. This fact has not been disputed by the assessee with any material evidence. The learned DR, further, submitted that the AO, having considered all the relevant facts, came to a right conclusion that there was undeniably unaccounted transaction in the purchase of the subject properties to the extent of Rs. 3.39 crores. It was, therefore, urged that the addition requires to be sustained. 7.1. On the other hand, the learned AR submitted that as the Revenue has failed to put-forth any documentary evidence to find fault with the findings of the CIT (A), the stand of the CIT (A) in deleting the impugned addition deserves to be upheld. 8. We have carefully examined the rival submissions,perused the relevant materials on record and also the exhaustive reasoning of the CIT (A) in deleting the addition made by the AO in the assessee's hand. As already mentioned, it was a fact that there was a proceeding u/s 133A of the Act on the premises of Ashad Group of companies. Ashed Valmark, the assessee is an Association of Persons with two members, sharing profits equally - Ashed Properties and Investments ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed payment of Rs. 3.39 crores in the land deal; (f) No attempt was made whatsoever to examine the vendors on oath to bring out the factual facts; (g) Though the alleged transaction was between the assessee and the land owners, the AO had solely relied on the statement of Mr Aga who, admittedly, nowhere concerned with the said dealing; (h) No attempt was made by the AO to cross-examine the veracity and authenticity of the statement of Sri Aga by summoning the vendors to record their statements. 8.3. Since the issue which has been examined in detail by the CIT (A) has not been disputed by the Revenue with any documentary evidence even during the course of hearing before us, we are of the view that the CIT (A) was justified in deleting the addition made by the AO. It is ordered accordingly. 9. Before parting with, we would like to point out that incidentally, in an identical issue in the case of M/s. Valmark Builders, an addition of Rs. 2,50,70,500/- made by the AO based on the statement of Sri Aga before the ADIT (Inv) on oath was deleted by the CIT (A) for almost similar reasons recorded by her in the appellate order for the AY 2007-08. The stand of the CIT (A) has been uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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