TaxTMI 
TaxTMI 
2019 (12) TMI 354
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.... Rs. 4.50 crores to Rs. 3.00 crores, thereby allowing a relief of Rs. 1.50 crores to the assessee without appreciating the fact discussed in detail in the assessment order as well as reliance placed on the decision in the case of Sumati Dayal Vs. CIT 214 ITR 801 (SC) wherein Hon'ble Supreme Court has held that in these type of transaction direct evidence is not possible? 2. Whether on the facts, circumstances and in the law, the Ld. CIT(A) has erred in appreciating the fact that no coercion or threat was used while recording the statement and it was only an afterthought by the assessee to retract the statement recorded on oath u/s 131 of the I.T. Act, 1961?" 3. Briefly stated facts are that the assessee company engaged in manufacturing and marketing of plastic products. During the year under consideration, the assessee purchase land along with house at Hyderabad from (i) Mrs. N. Prabha Rao (ii) Miss ND Dhana Lakshmi (iii) Shri Narendra Kumar Sankla and (iv) Shri Premchand Sankla for a total consideration of Rs. 10.50 crores as per sale deed registered dated 10.06.2008. The AO received information from DIT (Inv.) Hyderabad, Andhra Pradesh, vide No. F. No. DIT(Inv.)/Hyd/2008-....
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....me is offered strictly to buy peace of mind and to avoid litigation in the mater. 8. Do you confirm the answer to Shri Sanjay Shah to Q.No.23? Ans. Yes, I confirm but subject to answer No.7 above. 4. Immediately thereafter on 09.09.2008 the previously mentioned director Shri Jadavji Lalji Shah furnished a sworn affidavit before the Department retracting the previously mentioned statement given by him on 08.09.2008 to the extent of excess declaration of Rs.1.5 crores obtained from him by wrong representation by the Department. The relevant part of the sworn affidavit may be extracted as under: - As I was not in town, interrogation of the person presents viz. Mr. Sanjay Damji Shah, my nephew, was done, after a prolonged survey of the premises. During the interrogation, the said Mr. Sanjay Damji Shah was informed that on the basis of formation received from Income tax Department, Hyderabad the sellers have shown sale value at Rs. 15 crores as against Rs.J0.5 crores shown by Balee Plastics Pvt. Ltd as per Deed for sale of the property situated at Road No. 36, Jubilee Hills, Hyderabad As ,44r. Sanjay Damji Shah was not aware of the details of the transaction for purchase of prope....
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....em unless it is detected. He also noted that retraction of the statement was not valid. He also noted that the case laws relied upon by the assessee were distinguishable on the facts and circumstances of the case. Hence, the AO made addition of this additional amount of Rs.1.50 crores, even though the learned Counsel for the assessee also argued that the assessee requested for copy of declaration/statement of Shri Narendra Kumar Sankla and Shri Premchand Sankla was not to be granted. Similarly, cross examination of Shri Narendra Kumar Sankla and Shri Premchond Sankla was not granted by the AO because the addition of Rs. 1.5 crore was made on the strength of the statement made by Shri Sanjay D Shah and Shri Jadavji Lalji Shah on 29.07.2008 and on 08.09.2008 respectively. The AO further noted that the transaction takes place in secret and direct evidence about such payment would be rarely available. He considered the theory of human probabilities propounded by Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT (1995) 214 ITR 801 (SC) and therefore added Rs. 1.50 crores in addition to Rs. 3 crores which was already declared by the assessee in the return of income and taxes pai....
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....bject to answer given to Q.No 7. The LAO has relied on the statement given by Shri Sanjay D Shah, who is not c director nor an office bearer and the statement of Shri Jadavji L Shah which was retracted on the next day i.e. on 9/9/2009. 5.2 There is an age old maxim known as "ALLEGANS CONTRARIA NON", which means a person alleging contradictory facts should not be heard; such retracted statements have lost their evidentiary values. Mr. Jadavji L Shah alleged contradictory things and hence not to be heard. It is a trite law that a man shall not be permitted to *blow hot and cold" with reference to the same transaction; or insist, at different times, on the truth of each of two conflicting allegations, according to the prompting of his private interest [Nagubai Ammal & Others vs. B Sharma Rao & Others - AIR 1956 SC 593 601]. 5.3 The LAR has strongly contended that the LAO has not rejected the books of accounts of the appellant and that the ADIT has told incorrect facts about receipt of Rs. 1.50 crores by Shri Narendra Kumar Sankla and Shri Prem Kumar Sankla from the appellant to Shri Sanjay D Shah and to Shri Jadavji Lalji Shah. Such incorrect facts were never received by him from ....
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....er sec.143(3) was passed on 26-12-2011 determining the total income at Rs. 62,04,080/-. Since the information with regard to the on-money received by the assessee in the transaction in which the income under the head "LTCG" is not in possession to this office, the sale consideration reflected by the assessee at Rs. 1,75,00,000/- has not been disturbed. However, the cost of acquisition, cost of improvement, commission paid & exemption claimed under sec.54 of the Act were found to be not genuine fully as claimed by the assessee, additions were made on all the four counts mentioned above. 4. On verification of records, it is observed that the assessee did not admit any cash received by him on account of sale of land in Question. As per the sale deed submitted by the assessee during the course of assessment proceedings. The total consideration received is only Rs. 10,5000,000/- out of which the share of the assessee (Mr. Narendra Kumar Sankla) is Rs. 1,75,00,000/-. The assessee has also computed capital gains taking the sale consideration as Rs. 1,75,00,000/- which was stated to be received by him as per the copy of the sale deed furnished. As stated above, the information with r....
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.... Sankla nor by Shri Prem Kumar Sankla nor assessed by the ITO/ ACIT at Hyderabad." ...................... 5.11. Having regard to the facts and circumstances of the case and in the light of the scrutiny assessment orders passed in the case of Shri Narendra Kumar Sankla and Shri Premchand Sankla it is established that the disputed transactions of Rs.1.50 crore has not been established, no material nor any evidences have been found nor impounded nor seized during the course of survey proceedings in Mumbai and Hyderabad. The LAO has failed in bringing any material evidence against the appellant to prove that the appellant has paid the disputed cash transaction of Rs.1.50 crore to Shri Narendra Kumar Sankla and Shri Premchand Sankla. Hon'ble Supreme Court in the case of KP Varghese V/s ITO 131 ITR 597 (SC) has categorically declared that in these circumstances no presumption of cash payment can be validly made by the assessing officer." Aggrieved, against the order of CIT(A) deleting the addition of Rs.1.50 crores, Revenue came in appeal before Tribunal. 7. We have heard the rival contentions and gone through the facts and circumstances of the case. We noted that Shri Sanjay D....