TMI Blog2022 (11) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... is passed without prejudice to the assessment proceedings of assessee herein, the orders are passed u/s143(3) which is a substantive assessment. Even if said orders are duly considered as 'without prejudice to the assessment proceedings' in respect of the assessee herein, we have noted that, there was no incriminating material seized, which could suggest that assessee had paid any 'on-money'. In substance AO has relied upon only two circumstances, firstly, the seized documents, which do not bear any signature, secondly, on the statement of the original owners, wherein the original owners have confirmed on oath the actual value of the land. One of the purchasers has stated on oath that a Police complaint was given against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and consequently passed a perverse order? 2. Whether the Tribunal was justified in law in holding that the appellant is the real owner of 103 acres 23.5 guntas of land contrary to materials available on record and gave a perverse finding on the facts and circumstances of the case? 3. Whether the Tribunal was justified in law in confirming the penalty under section 158BFA (2) of the Act a sum of Rs.2,00,22,704/- on the facts and circumstances of the case? 3. Briefly stated the facts of the case are, appellant is an individual. A search was conducted in Jansons Group and also assessee on January 24, 2001. A notice under Section 158BC of the Income Tax Act, 1961 ('Act' for short), was issued to the assessee. Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Mr.Syed Khaleelulla, (iii) Mr.Syed Amanulla, (iv) Mr.D.Y.Fiyaz Khan and (v) Mr.D.Y.Nawaz Khan, who, in all purchased 103 acres of land in Sonnenahalli village of Devanahalli Taluk, Bangalore Rural District; Assessee was the GPA holder of the five individuals, who purchased the land; he was in no way connected with these five persons; During search, some typed unsigned papers were found in the assessee's premises. Thus, the assessment order and the orders impugned in this appeal are perverse and not sustainable in law. 5. In substance, Sri.Shankar's argument is, Assessing Officer's opinion that some undisclosed income in the hands of assessee alleging that he had paid as 'on-money' to the original la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic premise on which the Assessing Officer has held that assessee had an undisclosed income of Rs.2,85,22,372/- are the documents which are mentioned in the tabular column in para-6 of the assessment order. In the tabular column of the seized material, page Nos.8 to 21 have been considered by the Assessing Officer. The same are produced in the appeal memorandum at page Nos.114 to 136. We have perused the said documents. Assessee's signature is found in the agreement dated February 27, 1996 which is at page Nos.124-136. In the said document, assessee has represented the five individuals, who have purchased the agricultural property and by the said agreement, a perpetual right to use an existing passage has been given by M/s.Pennar Hot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly be done on the basis of evidence found as a result of search or requisition of books of account or documents and such other materials or information as are available with the Assessing officer. 12. In the instant case, Assessing Officer has relied upon documents referred to above. None of these documents bear any signature. In para-6(vi) of the assessment order, the Assessing Officer has placed reliance on another seized material marked as A/JG-2/7, which were seized from M/s.Jansons Group's Head Office and the statement of the agriculturists to support its case. The Assessing Officer has recorded in para-6(v) of the assessment order that the enquiries were made with the original owners of the land; that some of them were approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that assessee had paid 'on-money' is not supported by any legally tenable evidence. 14. Further we may record that five purchasers have filed their respective returns and offered the income to capital gains tax. 15. Sri.Shankar has also produced assessment orders in respect of Syed Khaleelulla, Syed Amanulla and Syed Shafiulla, the purchasers of the lands in question. All assessment orders are dated December 24, 2009 passed under Section 143(3) of the Act. The said assessment orders show that purchasers had offered the income for capital gains. 16. Sri.Sanmathi pointed out that said assessment orders have been passed without prejudice to the assessment proceedings pending in the case of assessee herein. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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