9911796707
TMI Blog2011 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... evious year, the assessee purchased 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. In support, he relied in the case of Amarkumari Surana 226 ITR 344 (Raj.) wherein it is held that in the absence of any explanation for lower consideration, sale instances of comparable cases should be considered for ascertaining unexplained investment. In view of all these, the AO made addition of Rs.25,00,000/- as unexplained investment for the purchase of th4e shop/office u/s 69B of the IT Act. 3. It was pleaded by the assessee that the assessee made total payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under. 8. We have considered the rival submission and materials available on record. During the course of hearing of the appeal, assessee was directed to file copies of the sale deeds in question which have been filed on record which show the date of documents 10-042008 and the total sale consideration paid for purchase of property by the assessee is mentioned at Rs.60,40,297/-. Similarly, the learned D R was directed to intimate about proceedings against the person in whose c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 money" in cash. The above facts noted in the assessment order in the case of the firm M/s. Dev Enterprises prove that the authorities below were not justified in making the huge addition against the assessee. As per the seized papers the amount of sale consideration through cheques paid is Rs.51 lacs, but according to the MOU and sale deeds filed on record the total consideration of Rs.60,40,297/- have been settled and paid by the assessee company and not by Trident (India) whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries 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 that even in the comparable cases no statement is recorded against the interest of the assessee. The surrender made in 4 comparable cases has not been confronted to the assessee. Learned Counsel for the assessee filed copy of the note attached with the return of income in the case of Shri T. K. Tekwani in which it was mentioned that he has surrendered the amount to buy peace to avoid litigation. Such a statement cannot be said to be incriminating in nature against the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made any statement against the assessee, therefore, the entries or notings contained in the loose papers found from the possession of the builders are not sufficient to make the addition against the assessee. There is no other corroborative material or independent evidence available on record against the assessee. The submissions of the learned D R are based upon assumption only that since 4 parties made payment of "on money" to the builder, therefore, there is a presumption aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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