TaxTMI 
TaxTMI 
2014 (4) TMI 937
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of search u/s 132 of the Act, the order passed u/s 153A of the Act is without jurisdiction. 4. The finding of the CIT (Appeals) that "the contentions of the appellant that the contents of the impugned diary could not be attributed to the appellant is not acceptable" is perverse, and is opposed to evidences on record. 5. It is contended that mere notings in a diary, a piece of paper etc., without corroborative evidences, cannot result in the finding that undisclosed investment has been made by the appellant. 6. The CIT (Appeals) has erred in confirming the addition of Rs.35,00,000/- as undisclosed investment. The same is based on surmises and conjectures, and is not based on evidences. 7. The assessment having been framed and confirmed by CIT (Appeals), having been based on the statements of third parties, is without jurisdiction and is contrary to the principles laid down in Kishinchand Chellaram vs. CIT 125 ITR 713. 8. The CIT (Appeals) has erred in holding that the appellant has failed to rebut the legal presumption available u/s 132(4) / 292C of the Act. Such findings are opposed to the legal mand....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as the facility of cross examining those person we are providing this explanation. It may be seen from the location and the spread to such farm house land that it comprising of various disjoined scattered plots of small lands and is also quite away from the approach road. It is thus small disjoined pieces of lands without proper connectivity Also some of the in between plot are reserved for Forest Department and also some of the plots comprised in such farm are in litigations in connection with the boundaries with the adjoining owners. Some of such plots have also title problems Accordingly, from the enclosed map and the detailed explanation provided herein above, you will appreciate that there is no question of any payment over and above what has been reflected in the books of account. To the best of our knowledge, the matter had come up for consideration by search parties who had made independent inquiries with the seller of land who to the best of knowledge has also denied having received any consideration over and above registered consideration." 3.2 The Assessing Officer did not accept the above contention. He mentioned that during the course of search statement of local p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the Ld. CIT(A) was that the impugned seized diary belonged to the brother of the assessee and was found from his office. Therefore, the content of the diary should have been confronted from the assessee brother Sh. Dinesh Panday and not the assessee. It was further contended that the seized diary neither belongs to the assessee nor was found from his position and no addition can be made on the basis of the said diary. However, CIT(A) was not convinced and he concluded as under:- "Therefore, even if the said diary was found from the office chamber of the appellant's brother, it cannot be treated as a thirdLparty document as the same was found during the search of a common premises of which both the appellant as well as his brother had control. Since the transaction of purchase of the impugned immovable property was undertaken in the name of the appellant, it was but natural that the relevant evidence was confronted to him and assessment was made accordingly. Therefore, the contention of the appellant that the contents of the impugned diary could not be attributed to the appellant is not acceptable and the second additional ground is also dismissed." 6. On merits....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l belonging to the assessee was found during the course of search. Hence, he contended that assumption of jurisdiction by the AO in this case is not proper. In this regard, he placed reliance upon the several case laws as follows:- - CIT vs. SM Aggarwal, 293 ITR 43 (DHC) - TS Venkatesan vs. ACIT 74 ITD 298 (ITAT, Kolkata) - Surendra M. Khandhar vs. ACIT & Ors. 321 ITR 254 (Bombay H.C.) - CIT vs. Indeo Airways Pvt. Ltd. 349 ITR 85 (DHC) - CIT vs. Vishal Rubber Products, 264 ITR 542 (P&H HC) - CIT vs. ITAT & Ors. 246 CTR 554 (Chattisgarh HC) - Ashwani Kumar vs. ITO 39 ITD 183 (ITAT, Delhi.) 9. Furthermore, on merits of the case Ld. Counsel of the assessee contended that addition was made based on that diary seized from the brother of the assessee. The same belonged to the brother of the assessee Sh. Dinesh Panday. He submitted that the contents of the seized material was not confronted to the assessee's brother. There is no mention of the assessee's name in the seized material. Hence, he submitted that the above is not based on any cogent material. He submitted that when....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nama of the same was in respect of the search and seizure in the case of Saamang Group at the premises B-67, Sarita Vihar, New Delhi also indicates the office premises was also covered during the search operation conducted u/s. 132 of the I.T. Act. Therefore, Ld. CIT(A) held that, he did not find any infirmity in the order of the Assessing Officer assuming the jurisdiction u/s. 153A of the Act. 13. Now we find that as per the ratio emanating from the case laws submitted by the Ld. Counsel of the assessee, where assessment has abated assessment u/s. 153A can be made only on the basis of incriminating material recovered during the search. Hence, Ld. CIT(A)'s view that in such cases assessment u/s. 153A can be made without finding any seized material is not sustainable. 14. However, we find that it is not denied that it was a valid search and material was found from the premises which also houses of the group companies in which the assessee is also a Director. In this view of the matter, it cannot be said that Assessing Officer has assumed jurisdiction without any material found during search. Whether addition on the basis of the said material is sustainable or not is a matter w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... than what has been disclosed. There is no case that any part of the jottings in the diary has been corroborated from any other findings. Hence, in the background, we find that presumption u/s. 132(4A)/292C of the Act cannot be taken against the assessee. Thus, from the facts and circumstances of the case, we find that addition of on money transaction in this case is not sustainable. 18. In this regard we place reliance of the Hon'ble Apex Court decision in the case of K.P. Vargheser vs. ITO and Ernakula and Another 131 ITR 587 (SC), wherein it has been held that the burden of proving is that of Revenue when there is allegation of understatement on concealment in the consideration shown. Here we find that revenue has failed to discharge the burden cast on it. 19. We also place reliance from the Hon'ble Apex Court decision in the case of CIT vs. Kalyansundaram in (2007) 294 ITR 49 (SC) in which allegations of on money transaction on the basis of nonconvincing loose sheets found during the course of search and conflicting statement of the seller, was deleted by the Tribunal and the same was affirmed by the Hon'ble High Court and Hon'ble Apex Court. 20. We further find that a....