TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1365
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....) The Learned CIT (Appeals) has grossly erred in law and on the facts of the case in appreciating that there is no corroborating evidence of the figure of Rs. 15 lacs mentioned on the loose paper vis a vis other documents. 3) The Ld CIT (Appeals) has grossly erred in law and on the facts of the case in applying Sec. 292C of the Income Tax Act merely because some papers were found from the premises of the assessee while ignoring vital facts and contentions and even when assessee has successfully rebutted the presumption. 4) The appellant craves leave to add, alter, demand, supplement or raise fresh grounds of appeal, if considered expedient and advisable at the time of hearing of appeal. It is prayed that the appellant appeal be allowed. 3. The grounds raised in Assessee's ITA No. 378/Del/2012 (AY 2009-10) read as under:- 1) The Learned CIT ( Appeals) has grossly erred in law and on the facts of the case in confirming the addition of Rs. 82 lacs in the hands of the assessee as Unaccounted income from or receipt during the year under consideration on sale of property ES 095 Nirvana Country South City-II, Gurgaon. 2) The Learned CIT (Appeals) has grossly erred in law and on the f....
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....g the addition of Rs. 15 lacs in the hands of the assessee of the assessee as Unaccounted income or receipt during the year under consideration on sale of property ES 095 Nirvana Country South City-II, Gurgaon. He further stated that there is no corroborating evidence of the figure of Rs. 15 lacs mentioned on the loose paper vis a vis other documents. He further stated that Ld. CIT (Appeals) has also erred in applying Sec. 292C of the Income Tax Act, 1961 merely because some papers were found from the premises of the assessee while ignoring vital facts and contentions and even when assessee has successfully rebutted the presumption. In support of his above said contentions, he stated that the case of the assessee is squarely covered by the various decisions of the Hon'ble High Court of Delhi and the Coordinate Benches of the ITAT and accordingly he relied upon the following decisions:- - Vatika Landbase Pvt. Ltd. - 383 IT 320 (ITA No. 670/2014 dated 26.2.2016)- Delhi High Court. - M/s Delco India Pvt. Ltd. (ITA No. 116/2016) dated 10.2.2016 - Delhi High Court. - P. Koteshwara Rao order dated 12.8.2016 of the ITAT, Visakhapatnam (ITA No. 251 & 252Vizag/2012 (Ayrs. 2007-08 & 2008-....
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....ccounted sources can be attached to the assessee with respect to above transaction. Therefore, the presumption u/s. 292C of the Act is a rebuttal presumption. The presumption as envisaged in section 292C is limited to the correctness of the documents found at the time of search or survey, but that presumption has not been extended by the statute to be presumed to be the income of the assessee. In view of the aforesaid discussions, we find considerable cogency in the assessee's counsel submissions that the issue in dispute is squarely covered by the following decisions:- 8.1 In the case of Vatika Landbase Pvt. Ltd. - 383 IT 320 (ITA No. 670/2014 dated 26.2.2016)- Delhi High Court has adjudicated as under:- In the present appeal, the Revenue urged the following questions: "1. Whether on the facts a d circumstances of the case, the Income Tax Appellate Tribunal was correct in Law in deleting the addition of Rs. 25,40,36,454 out of the total addition of Rs. 31,01,09,834 made by the AO on account of undisclosed receipt (from sale of space flats in Vatika Triangle? 2. Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in law in deleting ....
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.... definitely a plausible view to take. 41. Considering that the document was recovered from the computer of Mr. Sunil Awasthi, he ought to have been summoned to explain the rates of sale shown therein for the flats on different floors. In fact, the Assessee did make a request for his cross-examination. The other possibility was to examine the purchasers of the flats as they would have confirmed the price paid by them and how much of it was in cheque and what extent in cash. However, that too was not done. ........ 43. The Revenue has not been able to counter the submission of the Assessee that there are anomalies in the figures mentioned in Sheet Nos. 3 and 4 of the said document. ...... 45. As pointed out in Commissioner o{Income Tax v. S.M Aggarwal (supra) the said document can at best be termed as a 'dumb' document which in the absence o{independent corroboration could not possibly have been relied upon as a substantive piece of evidence to determine the actual rates at which the flats were sold. Further as pointed out in Commissioner of Income Tax v. D.K. Gupta (supra) merely because there are notings of figures on slips of paper, it did not mean that those transact....
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....enquiries from M/s Smridhi Limited as well as M/s Galax Ex orts Pvt. Ltd. In our view no interference with the order of the ITAT is called for under Section 260A of the Act since the findings of the ITAT are essentially factual. Further, we find no infirmity with the findings returned by the ITAT and in any event the same cannot be held to be perverse by any stretch. 8.3 In the case of P. Koteshwara Rao order dated 12.8.2016 of the ITAT, Visakhapatnam (ITA No. 251 & 252Vizag/2012 (Ayrs. 2007-08 & 2008-09), the ITAT has observed as under:- 11. The only issue that came up for our consideration is whether on facts and circumstances of the case, the seized documents indicate exchange of on money between the parties. Admittedly, in the assessee's case there was no search. The seized document found during the course of search in the premises of M/s. M.V.V. Builders, is a loose sheet wherein certain financial transactions were recorded in the name of the assessee. Though, Sri M.V.V. Satyanarayana stated that he had paid a sum ofRs.50 lakhs and Rs. 25 lakhs in the financial year relevant to assessment year 2007-08 & 2008-09, to Sri P. Koteswara Rao towards land dispute settlement, no....
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....dence on record. 12. In the present case on hand. except loose sheet found in the premises of M/s. M V V Builders and admission made by the third party in their assessment proceedings. There is no other evidence on record to prove that on money is paid to the assessee towards purchase of site. We further noticed that Sri M V V Satyanarayana. while deposing before the investigating officer has stated that he has paid money to Sri P. Koteswara Rao towards settlement of land disputes. But nowhere stated that he had paid on money to the assessee towards purchase of Venkojipalem site. The AO without bringing on record an evidence to prove that on money is exchanged between the parties. 13 ........ merely harping upon loose sheet and third party statement, which cannot be considered as conclusive evidence against the assessee to bring on money to tax as undisclosed income. The A.O. is required to bring further evidence on record to show that actual money is exchanged between the parties, but literally failed to do so. The AO did not conduct any independent enquiry relating to value of the property, instead merely relied upon statement given by the purchase of the property which is not....
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....ord to show that there was any invoking of s. 50C while completing the assessment in the case of the seller. There is no evidence other than the seized material marked as 'A/CRK104' where relevant entries are made at Rs. 1,65,00,000. The seized material was not found at the premises of the assessee and there is no corroborative material to suggest that the assessee has actually paid Rs. 1.65 crores towards purchase consideration of the property, The assessee and her brother categorically denied the payment of any money over and above Rs. 65 lakhs. The AO placed reliance on the statement of 5, who is a third party, The evidence brought on record by the Department is not enough to fasten additional tax liability on the assessee. As seen from the above document this is just a handwritten loose document and the handwriting is also not of the assessee and the loose document was found at the premises of a third party. The burden on the Department to prove conclusively that the loose document belongs to the assessee. There is no presumption in law that the assessee has actually paid Rs. 1651akhs towards purchase of the property. The undisclosed income in this case is to be compute....
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.... person and not arbitrarily and capriciously. The assessment made should have enough material and it should stand on its own legs. The basis for addition cannot be only the loose sheet or a third party statement In the absence of the corroborative material and/or circumstantial evidence, the addition cannot be sustained Thus, no addition can be made on a dumb document and noting on loose sheet. It should be supported by the evidence on record and the evidence on record is not sufficient to support the Revenue's action. In a block assessment undisclosed income has to be determined or the .basis of the material and evidence detected in the course of the search action. The circumstances surrounding the case are not strong enough to justify the addition made by the Department. The burden of proving the actual consideration in the purchase of property is on the Revenue. Considering the entire facts of the case, the Revenue has failed to discharge its duty, instead made up a case on surmises and conjectures which cannot be allowed. Under these circumstances, there is no reason to confirm the addition of Rs. 100 lakhs towards on-money payment. Accordingly, the addition of Rs. 100 lakh....