TaxTMI 
TaxTMI 
2011 (6) TMI 981
X X X X Extracts X X X X
X X X X Extracts X X X X
....27,611/-forA.Y.2003-04)(₹ 2,14,952/- for A.Y. 2004-05)}* being erroneous in facts and in law is prayed to be directed to be deleted."[*figures of other years added to consolidate] 2.1. Facts in brief as emerged from the corresponding assessment orders passed u/s.153A(b) r.w.s. 143(3) of the Act all dated 31/12/2007 were that the assessee is in transport business. A search u/s.132 of the Act was carried out on 24/11/2005. Consequence there-upon notice u/s.153A was issued and in compliance returns were filed disclosing income as follows:- Sr.No(s) Asst.Year(s) Original Return u/s.139((1) Income declared after search 1. 2002-03 4,54,950/- 6,87,750/- 2. 2003-04 10,59,910/- 18,22,610/- 3. 2004-05 16,16,030/- 19,60,070/- 2.2. The admitted factual position is that a house was constructed at Millan Park Society. To determine the cost of construction, the matter was referred to Valuation Cell and the Valuation Officer has assessed the cost of construction as per the following chart: S.No. Period of Construction Expenditure as Stated by the Assessee (Rs.) Assessed cost of Construction (Rs.) Difference Rs.) 01 2001-2002 1307,549/- 18,45,755/- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Mr.Mukund Bakshi appeared and contested that the difference between the two valuations, one as disclosed by the assessee, and the other as estimated by the DVO, was very nominal in percentage therefore such a nominal difference has to be ignored. In support reliance is placed on the following case laws:- Sl.No(s) Decision in the case of … Reported in… 1. CIT vs. Abeeson Hotels Pvt.Ltd. (2004) 191 CTR (MP) 263 2. ACIT vs. Smt. Ramkali Shivharey (2004) 4 SOT 338 (Agra) 3. CIT vs. Smt. Aparajitha Shantilal Mahajan (2005) 272 ITR 470 (MP) 4. Smt. Prem Kumari Mudria vs. ACIT (2008) 303 ITR 128 (Raj) 5. Amt Estate Organisers vs. ITO 113 ITD 255 (Ahd.) (TM) 5. From the side of the Revenue, ld.DR Mr.S.K. Gupta, appeared and placed reliance on the orders of the AO and CIT(A). He has contested that this is the case where a search was conducted and an unexplained investment was detected after the search, therefore whatever amount was assessed by the DVO should be held as undisclosed income of the assessee. 6. Before us a chart is furnished to demonstrate that the difference between the two valuations was very nominal as follows:- Financial....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has not pointed out any fallacy in the records maintained by the assessee. This is also not the case of the Revenue that either the bills were incorrect, bogus or not recorded properly. As against that, Revenue Department has applied certain rates of construction and there upon estimated the value at ₹ 39,90,300/-. This amount appears to be an estimated cost of construction because the DVO has adopted an estimated rate of construction of each item of construction. In such a situation, if the estimated rates as adopted by the DVO are pitted against the exact rate of construction, then naturally one has to compute the total value on the basis of the exact cost of construction being duly supported by relevant bills. 7.2. The second reason for accepting the plea of the assessee is that the DVO has reduced only 5% self supervision rebate, but generally in such type of cases the self supervision rebate is allowed upto 8%. If that concession is granted, then there would be no difference in both the valuations. It is also not fair on the part of the DVO to add an adhoc percentage of architecture fee specially when the assessee has furnished the exact amount of payment. 7.3. Third....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... when the Revenue has not challenged the said finding of ld.CIT(A). These grounds for all the years are therefore, dismissed. 11. For AY 2004-05, Ground No.1 is in respect of foreign travel expenses reproduced below:- "1. The Ld. Commissioner of Income-tax (Appeals)-IV, Ahmedabad has erred in facts and in law in confirming the action of the ld. A.O. in making an addition of ₹ 1,50,000/- in respect of foreign travel expenses on the alleged ground that the said expenses are incurred out of unaccounted income of the appellant. The addition of ₹ 1,50,000/- being erroneous in facts and in law is prayed to be directed to be deleted." 11.1. This ground is not pressed, hence dismissed. 12. For AY 2005-06, Ground No.2 is reproduced below:- "2. The Ld. Commissioner of Income-tax (Appeals)-IV, Ahmedabad has erred in facts and in law in confirming the addition of ₹ 50,000/- made by the ld. A.O. on account of alleged payment made in cash treating the same as unexplained expenditure u/s.69C. The addition of ₹ 50,000/- being erroneous in facts and in law is prayed to be directed to be deleted." 12.1. During the course of search from the residence, a loosepape....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of the assessee was that the said document did not belong to him. The AO has discussed in general that if a document recovered from the assessee during the course of search, then in view of section 132(4A) of the Act the presumption is that the document belonged to the assessee in whose possession it was recovered. The other presumption is that the contents of were true and belonged to the assessee. By applying the general principle, ld.DR has held that the explanation furnished by the assessee was not satisfactory and, therefore, made an addition of ₹ 26,39,987/-. In addition to the said paper, there was an another paper, which was impounded, and that had revealed that a sum of ₹ 3.88 lakhs was due from one Mr.Lala. The said amount was thus taxed in the hands of the assessee. Against the total addition of ₹ 30,27,987/- the assessee has preferred an appeal before the CIT(A). 16. By simply discussing the provisions of section 132(4A), the ld.CIT(A) has held that the document being found in possession of the assessee, therefore, the income noted therein was the undisclosed income of the assessee. The action of the AO was confirmed. 17. We have heard both t....