TaxTMI 
TaxTMI 
2021 (10) TMI 396
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.... course of search a 'Note Pad' was seized at Annexure A-21, and it is observed that as per Page No.24 a payment of Rs. 1.5 crores as per your books of accounts, failing which, it will be treated as your unaccounted investment and added back to your income without any further reference to you. I propose an addition of Rs. 1.5 crores. Proposed addition Rs. 1.5 crores." 3. In compliance thereof, the assessee submitted that the entire seized annexure pertains to his son, Mr. Akash Sharma's business who was as a real estate agent. The diary which is the part of the seized annexure belongs to Mr. Akash Sharma who is maintaining and recording all the details of the prospective buyers/sellers in and around Noida along with their expectation. The said reply for the sake of ready reference is reproduced hereunder: "19. As far as the Details of Rs. 1.5 Crore written in page no. 24 of seized document, Annexure - A-21, is concerned, this entire Annexure pertains to his son Mr. Akash Sharma's business who was running his business as a Real Estate agent. It is merely a diary that Mr. Akash sharma maintained till 2006-07 and recorded all details of prospective buyers / sellers of various immova....
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....lowing manner: "The above seized document is clear in terms of cash of Rs. 1.5 crores, which is as follows: Rs. 72,00,000/- cash Rs. 10,50,000/- cash Rs. 5,00,000/- cheque (not explained by assessee) Rs. 50,00,000/- cash Rs. 6,50,000/- cash Rs. 6,00,000/- cash Total Rs. 1,50,00,000/- Therefore, as per this seized document undisclosed investment of Rs. 1.5 Crores made in cash for purchase of H. No. D-135, Sector - 40 Noida in August, 2010 by the assessee and his wife Smt. Sabita Sharma. Since, assessee has riot explained this document, I am left with not alternative but to apply the provisions of section 292C of IT Act and add back the unexplained investment bf Rs. 1.5 Crores u/s. 69 of IT Act in the income of the assessee. Addition Rs. 1,50,00,000/-" 5. Before the Ld. CIT (A), the assessee had filed a very detailed submission which has been incorporated in the impugned appellate order, on which Ld. CIT (A) called for the remand report also. One very important fact which is emerging from the remand report is that, assessee's son, Shri Akash Sharma was also examined and his statement was recorded u/s.131, wherein he has admitted that diary belongs to him and the t....
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....dduced either at the time of assessment to establish the fact that the assessee has been engaged in the business of real estate as broker." 6. Ld. CIT(A) has confirmed the said addition on the following reasons. "5.1..................... I do not agree with the contention of the appellant because of following reasons' 1. The seized documents were seized from premises of appellant during search and seizure action. Therefore, there is basic presumption that it belongs to appellant. 2. From seized Paper, it is amply clear on the jotting on the seized paper that it is about different stages of payment of Rs. 1.5 Crore in cash as well as through cheques. 3. In the submission of appellant, he has stated that it is business diary and it records only the noting about prospective buyers till year 2006-07. Now, the question arises, if it records noting only up to 2006-07, how it can be related to M/s. Denz Enterprises, in whose case, transfer deed of lease hold rights, has been documented only on 18.08.2011. Moreover, this transfer deed of lease hold rights is entered only on stamp of Rs. 100/- The plea of the appellant it belongs to Shri Akash Sharma is only an afterthought a....
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.... which this document pertained. However the AO and CIT (A), without appreciating that provision of section 292C are equally applicable in the case of son also sustained the addition without any reason in the hands of the assessee. 8. Ld. Counsel further submitted that it is a settled position of law that loose sheets found during the course of search are not books of accounts of the assessee and hence no reliance can be placed on these sheets unless they are corroborated with independent material. It is submitted that here the case of the revenue. He further submitted that section 132(4A) empowers an officer to presume that contents of books of such books of account and other documents are true. In this regard, it is submitted that it is now well settled law by the Hon'ble Apex Court in the case of CIT Vs P.R. Metrani reported in 287 ITR 0209 (SC) that presumption under sections 132(4A) is a rebuttable presumption and the same is not available for the purpose of framing assessment. It is submitted that perusal of the seized documents would show that these are no books of accounts or not fall under the definition of other documents also. These are dump documents only. He also relie....