TMI Blog2007 (7) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT 1. The following question has been proposed for admission of this appeal: "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income-tax (Appeals) deleting the addition made on account of 'on money' receipt?" 2. The short controversy raised in this question is whether there should be addition on the basis of an amount mentioned on loose papers along with rates per sq.ft. of different floors. The Tribunal has considered this aspect as under: "6. We have heard the rival contentions of both the parties. Looking to the facts and circumstances of the case, we find that it is the facts on record that in the seized diary the assessee has estimated and mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere may be perhaps development of Bardolpura. What is the meaning thereof? Answer 50. Because there has been sale of very less per cent out of total project cost. Most of the goods is to be sold. It might be figures for getting estimates thereof. Question 51. Bardolpura Madhukant Complex has been made by you. As per page No.2 thereof, 66 shops have been constructed, it is as per that? Answer 51. I have not made Madhukant Complex but has developed it. Whatever I am stating is being stated in the capacity of developer and about 66 shops and offices have been constructed. 3. The shops were constructed by Madhukant Construction Consultancy. The notings on page 2 in annexure A-9, a diary, was found and seized by the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchaser to whom the sales of shops were effected. Onus heavily lay on the Revenue to prove with corroborative evidence that the entries in the seized diary actually represent the sales made by the assessee. Such onus has not been discharged by the Revenue. We are of the considered view that mere entries in the seized material are not sufficient to prove that the assessee has indulged in such a transaction. It is well settled that if certain documents were found from the possession of the assessee during the course of search operation, burden lies on the assessee to explain the nature of transactions recorded in the said seized material. The assessee is duty bound to explain discrepancy, if found, on the basis seized materials vis-a-vis b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has received "on-money" i.e. the differential amount as shown in the seized diary and books of accounts, is merely based on suspicion and surmises and there is no material whatsoever to support the conclusion of the Assessing Officer that the assessee has in fact received any "on-money". The Assessing Officer has no evidence with him to support his conclusion. The also take juridical note of the fact that the assessee has worked out floor-wise rate of the shop on the seized paper but it is not possible that every shop can be sold at that price and while selling the shops many purchasers may pay advance money. Therefore, rates of all the shops at the time of actual sales can not be the same as estimated in the seized paper. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recital made in document either executed by him or executed in his favour than the door will be left wide open the evade tax. A little probing was sufficient in the present case to show that the apparent was not the real. The taxing authorities were not required to put on blinkers while looking at the documents produced before them. They were entitled to look in to the surrounding circumstances to find out the reality of the recitals made in those documents." 5. Considering the facts and circumstances of the case in its entirety, we are of the considered view that the addition as made by the Assessing Officer being based on mere presumptions and assumptions and without any corroborative evidence, cannot be sustained and the said addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
