TaxTMI 
TaxTMI 
2010 (9) TMI 1112
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....uring the course of search at the residential premises of Sh. Navneet Jhanb at H.no. 1260, Sector-14, Faridabad, certain documents relating to sale of industrial plots at Village Jharsentli, Distt. Faridabad were found and seized. During the course of enquiries, it was gathered that there was a land at Village Jharsentli which belonged to one Kolkata based company M/s Indo American Electricals Ltd.. the company was referred to BIFR and it was decided by the Company Board that the land at Jharsentli may be sold for Rs. 1.5 crores from M/s Reliance Estate Agency (in which Sh. Navneet Jhanb happens to be a partner). The documents seized from residence of Shri Navneet Jhanb shows that the land was sub-divided into industrial plots and was sold at a cash premium over and above Rs. 1.5 crores. From the documents found and seized it came out that assessee had purchased plot B-1, measuring 6048 sqyds. Assessing Officer further opined that for the total consideration of Rs. 66,52,800/-, out of which a sum of Rs. 19,80,000/- has been paid by cheque and the remaining amount of Rs. 46,72,800/- has been paid by way of cash. Assessing Officer held that the amount paid in cheuqe tallies with the ....
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....icer in view of the decision of Hon'ble Delhi High court in the case of C.I.T. vs. Pradeep Gupta. But Assessing Officer failed to bring any material on record to corroborate his allegations about payment in cash by the assessee. 8. The document was a dumb document and no addition can be made on the basis of the document specially in the absence of any corroborate material in view of the judgement of Hon'ble High Court in the case of C.I.T,. vs. Girish Chaudhar, supra. It is not coming out who has given cash to whom; there is no mention of evidences. It is not coming out who has prepared the papers and these papers belong to whom. Therefore, in view of the recent judgement of Delhi High Court in the case of C.I.T. vs. Pradeep Gupta, 303 ITR 95, it is clear that the primary burden of proof is upon the Assessing Officer which he has not discharged with the help of cogent material. In this case, it is seen that the except these documents, which have been discussed above nothing else is brought on record. Nothing is coming out form these documents and nothing is clear what these documents are and even from the perusal of the contents of these documents nothing concrete can be m....
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....ed to Mr. Navneet Jhamb during recording of his statement, including pg. no. 55 of Annexure A- 1, he has clearly denied any payment by the assessee on account of loan or interest to Mr. Navneet Jhamb. Thus there was no basis with Assessing Officer to proceed with his imagination based upon his whims and fanices. 3. None of these documents was in the handwriting of assessee. 4. No link of these documents could be established by Assessing Officer in the entire proceedings with the assessee company. Thus keeping in view the totality of facts and circumstances of the case, I find that these two additions of Rs. 12,77,000/- and Rs. 10,00,000/- are without the support of any corroborative material and there is nothing in the hands of the Assessing Officer to make these two additions and therefore keeping in view the totality of facts and circumstances of the case and settled position of law as discussed above, I find that these two addition are not sustainable and Assessing Officer is directed to delete these additions." 4. Against the above order the revenue is in appeal before us. 5. We have heard both the counsel and perused the records. Both the counsels fairly agreed tha....
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....t the Circle Rate or the value as per stamp registration authorities of the impugned property is more than what has been disclosed. It is also not the case that unaccounted cash has been found to be paid by the assessee or received by the seller. There is also no statement of the seller on record that he has obtained on money. Under the circumstances, the additions made in this regard is not sustainable. 6.3 In this regard, we place reliance upon the Hon'ble Apex Court in the case of K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another 131 ITR 597 (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. 6.4 We also place reliance upon the judgement of the Hon'ble Apex Court in the case of C.I.T. vs. P.V. Kalyanasundaram 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 (to which, one of us the Accountant Member was the party) and the same was affirmed by the Hon'ble High Court and Hon'ble Apex Court. ....