TMI Blog2011 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... ased an office admeasuring 1271 Sq. Ft. bearing No.2, on 4th floor in a building known as Dev-Shops Offices situated at C. G. Road, Ahmedabad from M/s. Dev Enterprise. Meanwhile, on 09-02-2005, search and seizure action u/s 132 of the IT Act was carried out at the residence of Shri Dipak Thakkar on 09-02-2005. During the course of search two loose papers files marked as Annexures A-10 and A-11 were seized. The AO on the basis of entries on Page NO.26 of Annexure A-10 and Page No.28 of Annexure A-11 held that the assessee made cash payment of Rs.25,00,000/- towards purchase of above stated office and added the same as unexplained investment as per provisions of section 69B of the IT Act. The AO contended that the seized papers reveal that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v Complex. The AO relied on the case of Rohini Ramnath Lele 117 CTR 208 (Mum/TM) wherein it is held that prevailing practice of paying on money should be considered even if the purchaser denies. He also relied in the case of Green Valley Builders 149 Taxman 671 (Ker.) wherein it is held that if higher price was paid for purchase of land, addition can be made. He also quoted the case of Sumati Dayal 214 ITR 801 (SC) wherein it is held that test of human probabilities and preponderance of probabilities should be applied to decide the issue in the absence of direct evidence. The AO has held that the assessee failed to explain as to how the total consideration paid for purchase of the property was lower than that paid by the other purchasers. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case the assessee M/s. Trident Creation Pvt. Ltd. purchased shops/offices at first floor of the same Dev Complex. The learned Counsel for the assessee, therefore, submitted that the issue is covered in favour of the assessee and the addition may be deleted. 5. The learned DR relied upon the orders of the authorities below. 6. On consideration of the facts of the case in the light of the submission of the parties, we are of the view the issue is squarely covered by the order of the ITAT Ahmedabad Bench in the case of M/s. Trident Creation (supra) in this on identical facts similar addition u/s 69 B of the IT Act has been deleted on the same seized papers. The findings of the Tribunal in Para 8 of the order are reproduced as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions of the parties, we may note that the A O in the assessment order in the case of firm M/s. Dev Enterprises in which Shri Deepak Thakkar and Shri Sanjay Thakkar are partners have considered seized paper A-10 and A-11 regarding payment of on money but finally made the addition of Rs.5,51,000/- only after satisfying from the reconciliation statement. No similar addition has been made as has been made in the case of the assessee. It may also be noted that in the case of the firm despite recovery of the loose papers, they have denied their hand-writing in the seized papers and have not accepted receipt of any on money from the assessee. It, therefore, follows that recipient and payee both have denied receipt and payment of alleged on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The findings of the A O would show that A O has assumed certain facts which are not on record of the A O or that the same are not supported by any material on record. A O has not brought sufficient and cogent material/evidence against the assessee to prove that assessee made payment of on money in cash over and above the consideration shown in the MOU and sale deeds. No statement of any person has been recorded in whose case loose papers were recovered to explain the entries contained therein. Learned D R admitted that A O has not relied upon any statement of the builder against the assessee and that no such copy has been received by him. Similarly, no statement in the comparable cases has been produced before us. It would prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted payment of on money in cash in his statement. Since, assessee is a purchaser, therefore, section 50 C of the IT Act would also not apply in its case as is held in the case of ITO Vs Venu Proteins Industries reported in 4 ITR (Tribunal) 602 (Ahmedabad). It may also be noted here that in the seized papers the names of Shri Jatin Parikh/ Trident (India) is mentioned but the name of the assessee is M/s. Trident Creations Pvt. Ltd., which is not mentioned in the seized papers would prove that the seized papers do not belong to the assessee. There is also no mention in the loose papers if any cash payment is made by the assessee company to the builders. The builders/sellers from whose possession seized papers have been recovered have not m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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