TaxTMI 
TaxTMI 
2009 (1) TMI 312
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....opment of our project namely "First India Place" at Gurgaon. We also understand that you have acquired 8 per cent of the present equity in Vatika Greenfield (P) Ltd. from Vatika Township (P) Ltd. and its associates. We confirm that the shares would be transferred in your favour on presentation at our next board meeting to be held on 29th March, 1999. We are proud of your association with us. Thanking you, Yours faithfully, For Vatika Greenfiled (P) Ltd. Sd/- Anil Bhalla, Managing director" 3. The contents of notice issued under s. 158BD as found placed at p. 8 of the paper book read as under: "Notice under s. 158BD of the IT Act, 1961 F.No./Dy. CIT CC-20/2001-2002/l70 Block period: 1-4-989 to 10-2-2000 IT Office: Dy. CIT-CC-20, New Delhi ....
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....as only a projected sum to be made available and does not represent actual payment or receipt of the amount. It was submitted that paper is a dumb document and does not represent recording of receipt of any sum of Rs. 2.15 crores as alleged by the Revenue. Reliance was placed on the statement of Shri Raja Singh Sethi which was recorded during the block assessment proceedings of M/s Vatika Township (P) Ltd. The AO did not accept the submissions and has held that the balance sum of Rs. 1 crore represents assessee's income. The AO also referred to the provisions of s. 132(4A) according to which it will be presumed that contents of seized papers are correct and, in this manner, AO added a sum of Rs. 1 crore under s. 69A of the Act and the reasons given by the AO for disbelieving the explanation of the assessee are as under: "1. The seized paper is duly signed by Shri Anil Bhalla, managing director of M/s Vatika Greenfield (P) Ltd. The assessee has not denied that the paper belongs to it. 2. In its reply, the assessee has submitted that Rs. 2.15 crores was only a projected sum to be made available and does not represent actual payment or receipt of amount. This submission of the a....
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....tted that even if it is admitted that assessee had received Rs. 2.15 crores as loan, then also there is no valid justification in treating the said amount as income as the very evidence on the basis of which addition is made showed the said amount as loan. In addition, it was submitted that various other documents seized at the time of search also led to the conclusion that sum mentioned in the above letter of Rs. 2.15 crores was a projected figure and was not a figure of reality. The learned CIT(A) has called for remand report also in which AO submitted that statement of Shri Raja Singh Sethi was a self-serving document and, therefore, no reliance could be placed on the said statement. It was submitted by the AO that the assessee was using the practice of receiving cash from various persons over and above the cheque amount received from them and this fact is proved that the assessee has received Rs. 4 lacs from one Shri Arun Kumar and Rs. 6 lacs from M/s Bhagwan Dass Time Industries (P) Ltd. over and above the amount received through cheque and the cash receipt was surrendered by the assessee as its undisclosed income in the block return. In the rejoinder, submissions made earlier....
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....s the entries made in the document are presumed to be true as per s. 292C. 10. On the other hand, learned Authorised Representative referring to ground of appeal filed by the Revenue, pleaded that ground of appeal raised by the Revenue is misconceived as while deleting the addition instead of ignoring the seized paper, learned CIT(A) has deleted the addition by considering the seized paper. He contended that the CIT(A) has rightly held that loan per se cannot be treated to be the income of the assessee and in the seized document itself the amount was stated to be loan and there is no iota of evidence placed on record by the Revenue to suggest that the said sum of Rs. 1 crore was having the character of income in the hands of the assessee. He contended that in the case of Vatika Farms (P) Ltd. it has clearly been held by the Tribunal that loan cannot be assessed in the hands of the assessee in block assessment proceedings as the same does not have the character of undisclosed income. In this manner the learned Authorised Representative pleaded that the addition deleted by CIT(A) in this respect should be upheld and the appeal of the Revenue should be dismissed. 11. In the alte....
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....eyond those incorporated in the memorandum of appeal though the party urging the said ground had neither appealed before it nor had filed a cross-objection in the appeal filed by the other party provided the relevant facts on which such ground is founded are available on record. (v) ITO vs. Smt. Gurinder Kaur (2006) 105 TTJ (Del) 198 : (2006) 102 ITD 189 (Del), wherein it has been held that even de hors r. 27, it is open to the respondent in an appeal before the Tribunal to raise a new ground in defence of the order appealed against. Therefore, whether it is the appellant or the respondent before the Tribunal, new points or contentions can be raised provided they do not involve investigation into facts (as contrasted with the record) and that an opportunity is given to the other side to meet the contentions. The assessee is permitted to raise the new points as a respondent. 12. Learned Authorised Representative submitted that it will be contrary to the provisions of law if Department treating the amount described as loan in the seized paper as income of the assessee as per decision of Hon'ble Delhi High Court in the case of Diwan Enterprises vs. CIT (2001) 167 CTR (Del) 324 :....
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....ased on any entry in the books of account or other document or transaction, which has not been or would not have been disclosed for the purpose of this Act and the definition does not deem capital receipt as undisclosed income of the assessee company. There should be income and only if such income is not disclosed in the books of account, then such income can be held to be undisclosed income of the assessee as per well-settled law described by Hon'ble Supreme Court in the case of Parimisetti Seetharamamma vs. CIT (1965) 57 ITR 532 (SC) that all receipts are not income liable for assessment and it is for the Revenue to prove that such a receipt is within taxing provisions and it was held that Revenue has grossly failed to discharge its burden. In this manner addition of Rs. 50 lacs added to the income of assessee was deleted. The Revenue has not persuaded us to take a different view by submitting any argument or details except relying on s. 292C which reads as under: "292C (1) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under s. 132 or....
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....in that situation the decision taken by Tribunal in the case of Vatika Farms (P) Ltd. has not been affected in any manner by insertion of s. 292C of the Act. Rather, that supports the conclusion arrived at by CIT(A) who has held that according to the said document, it has to be held that assessee has received a sum of Rs. 2.15 crores as unsecured interest-free loan by the assessee from Mr. Raja Singh Sethi. Therefore, the argument of learned Departmental Representative according to which reliance has been placed on s. 292C is of no help to the case of the Revenue. It may also be mentioned that as per well established law as explained by Hon'ble Supreme Court in the case of Smt. Tarulata Shyam & Ors. vs. CIT 1977 CTR (SC) 275 : (1977) 108 ITR 345 (SC), there is no scope for importing into the statute words which are not there. The intention of the legislature is primarily to be gathered from the words used in the statute. Once the assessee comes within the letter of law he must be taxed. Learned Departmental Representative has relied upon the provisions of s. 292C which raise a presumption/legal fiction. 17. In the case of L.P. Cardoza & Ors. vs. Agrl. ITO & Ors. (1998) 144 CTR (....