TaxTMI 
TaxTMI 
2012 (8) TMI 929
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.... A.R. that date of agreement is 21.10.2002 and the agreement is available on page 110 of the paper book. Date of search is 09.02.2005 and the document is not belonging to the assessee and, therefore, the invoking of provisions of section 153C is not justified. He placed reliance on the judgement of Hon'ble Gujarat high Court rendered in the case of Vijaybhai N. Chandrani Vs ACIT as reported in 333 ITR 436. As against this, it was submitted by the Ld. D.R. that the agreement was duly signed by the assessee and hence, belonging to him. Regarding the reliance placed by the Ld. A.R. on the judgement of Hon'ble Gujarat High Court in the case of Vijaybhai N Chandrani (supra), it was submitted by him that the facts are different and therefore, this judgment is not applicable in the present case. 4. We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below. First of all, we examine the factual aspect as to whether the documents seized in the course of search were belonging to the assessee or not. The document in question was the agreement dated 21.10.2002, copy of which is available on pages 110-117 of the paper book. Th....
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.... the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent." I.T.A.No. 175/Ahd/2009 (assessment year 2004-05): "1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 42.40 lacs without appreciating the fact that the aforesaid sum was unaccounted receipt in the hands of the assessee. 2. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 3. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent." I.T.A.No. 176/Ahd/2009 9ay 2005-06): "1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 91.50 lacs without appreciating the fact that the aforesaid sum was unaccounted receipt in the hands of the assessee. 2. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 3. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent." 6. It was agreed by both the sides that in all the three years, facts are similar and hence, appeal for all the three years ca....
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....genuineness of transaction noted on said paper, it can be said that the transactions noted in the seized papers were duly confirmed by Shri Vikas A. Shah in his answer No. 64 of the statement recorded u/s. 131(1 A) of the Act. Further, from the MOU dtd. 21.10.2002 duly signed by the assessee and Shri Vikas A. Shah and Amrut D. Desai and other seized papers, it is clearly established that the assessee has been entered into various transactions with Shri Vikas A. Shah and he has been closely associated with Shri Vikas A. Shah and Mansi Builders and also seized papers as referred are belong to the assessee. In the case of Roger Enterprises (P.) Ltd. vs. Deputy Commissioner of Income-tax, Honourable IT AT, Delhi (88 ITD 95 Delhi B Bench) has held that any statement of a person who is one of the party of the transaction/transactions has evidentiary value and therefore can not be ignored. Here in the instant case one of the parties of transaction Shri Vikas A. Shah has categorically stated that he has paid an amount of Rs. 15,50,000/- to Amit Jadeja, towards cancellation of deal in respect of land at survey No. 183 of Village Ganpathpura. Therefore, it can be safely concluded that seize....
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....hese paragraphs form the order of Ld. CIT(A) are reproduced below for the sake of ready reference: "6. I have given a careful consideration to the facts, the reasoning given by the Assessing Officer and the submissions made by the appellant. With regard to the notings on page 39 ofA-195, Shri Vikas Arvindbhai Shah himself stated that this is in the nature of cash reports of Mansi Builders and Vikas A. Shah which is only a proposed working. This answer given by Shri Vikas Arvindbhai Shah cannot be interpreted to assume that sum of Rs. 3,000 was paid to the assessee. With regard to the notings on pages ofA-171, Shri Vikas Arvindbhai Shah stated that this represents cash paid back towards cancellation of deal. It is nowhere stated that the said amount was paid to the appellant either as dalali or brokerage. There is no other material to show that the appellant ever entered into any deal in respect of survey No.183. Even if for the sake of argument, it is assumed that the amount of Rs. 15,50,000 represents payment on account of cancellation of deal, such amount cannot be considered as appellant's income chargeable to tax. With regard to page No.39 of A-62, no convincing reply was ....
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....ird party, does not conclusively prove that the amounts mentioned in the documents, in the absence of other corroborative evidence, pertains to the appellant. As mentioned in the instant appellate order, in the remand proceedings too, no further corroborative evidences have been gathered so as to justify the additions. Such additions could not be made on the basis of presumptions and on the basis of mere statements of third party, particularly when the seized documents were discovered from third party's premises. Accordingly, I agree with the appellant's submission that no addition could be made in the hands of the appellant based on loose' papers found from Vikas Shah. The addition of Rs. 15.00 lakhs is deleted." 12. From the above paragraphs of the order of Ld. CIT(A), we find that he has deleted this addition on this basis that Shri Vikas A Shah stated that this represents cash paid back towards cancellation of the deal and it is nowhere stated that the said amount was paid to the assessee either as dalali or brokerage. This finding is also given by him that there is no other material to show that the assessee has entered into any deal in respect of survey NO.183 an....
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....oceedings, no further corroborative evidence have been gathered by the A.O. to justify the addition made by him. We have already noted that even as per the statement of Shri V.A. Shah, the amount received by the assessee was on account of refund of cancellation of deal and not on account of dalali/brokerage. Considering all these facts, we do not find any reason to interfere in the order of Ld. CIT(A) for the assessment years 2003-04 and 2004-05. 13. In assessment year 2005-06, the facts are slightly different. In this year, the addition of Rs. 91.50 lacs was made on account of alleged payment of on money. In this year also, the A.O. was of the opinion that addition of Rs. 44.80 lacs is required to be made in respect of payment by Shri Vikas A Shah as dalali/brokerage but since addition Rs. 91.50 lacs was made on account of on money, a separate addition of Rs. 44.80 lacs was not made in this year. The addition of Rs. 91.50 lass in this year was deleted by Ld. CIT(A) on this basis that except the noting on the reference paper and the statement of Shri Vikas A Shah, there is no other corroborative material/evidence to suggest that the assessee paid on money of Rs. 92 lacs. It is fur....