TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 962
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....ent of the joint seller which was taken on oath and absence of tangible evidence, whereas the AO had clearly established the acceptance of the on money from the assessee company. 3. The Ld. CIT(A) was not justified in not appreciating the statement recorded from seller during investigation where the seller categorically admitted regarding the cash transaction and subsequent cash receipt from the assessee. 4. The Ld. CIT(A) was not justified in not relying on the information & report received by the AO which was based on detailed inquiry & investigation mage by the Investigation Wing. The Revenue has raised following grounds of appeal in ITANo.352/Ind/2020: 1. The Ld. CIT(A) was not justified in not appreciating the findings and establishment of the AO. 2. The ld. CIT(A) was not justified in deleting the addition of Rs. 2,43,12,100/- on account of non-enquiry by the AO, non-establishment of greater market value, non-appreciation of statement of the joint seller which was taken on oath and absence of tangible evidence, whereas the AO had clearly established the acceptance of the on money from the assessee company. 3. The Ld. CIT(A) was not justified in not appreciating the....
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....Shri Manohar Patel (Co-seller) where he admitted the acceptance of "Cash/On- money" at Rs. 2,43,12,000/- for the abovesaid sale which was over and above consideration mentioned in registered sale deed of Rs. 2,69,90,000/-. 5. Being aggrieved, the assessees filed the appeals before the ld. CIT(A) and ld. CIT(A) deleted the addition observing that merely on the basis of admission of joint seller Shri Manohar Patel, it cannot be concluded that the assessees had paid the "cash/on-money". There should be some evidence in respect of 'on-money' paid by the assessee and in absence of any tangible evidence, the addition made by AO is not justified in view of the various judicial precedents which suggest that in cases of allegation of "on-money", burden to prove such allegations lies on the Assessing Officer and in the instant case, there are no evidence on record except admission by joint seller to prove the same. Further, the ld. CIT(A) also noted that the AO had not given proper opportunity of cross-examination with joint seller Shri Manohar Patel despite specific request being made which is in contravention with the ratio laid down in the case of Andaman Timber Industries Vs CCE, 281 CT....
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....nk statements highlighting the payment through banking channel. 5.2 I have observed that no inquiry whatsoever was conducted by assessing officer u/s 131 or 133(6) and reliance was merely placed on information supplied by DDIT (Inv,) - II, Indore, Also, there is.-!19 evidence on record to establish the fact that market value of land is greater than considered mentioned in the registered deed, Therefore, merely on the basis of admission of joint seller shri Manohar Patel, it cannot be concluded that appellant had paid the cash/on money without evidence, There should be some evidence in respect of on-money paid by 'the appellant, In the a~ of any tangible evidence the addition made by AO is not justified. 5.3 I am of the view based on various judicial precedents that in cases of allegation of on - money, burden to prove such allegations lies on the assessing officer and in the instant case there are no evidence on record except admission by joint seller to prove the same, I place my reliance on the judgement of Commissioner of Income-tax v. P. V. Kalyanasundaram [20061 282 ITR 259 (Mad.HC)~fir1ned by Supreme Court in Civil appeal No. 4262 of ,2007 294 ITR 0049 (SC) which....
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....ence is excluded from being used either as a substitute for such ins instruments or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parole evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strike on Evidence p. 648" (Emphasis applied). We therefore on the basis of the facts and documentary evidences placed before us are inclined to hold that the sale consideration for sale of land in question was only Rs. 95, 00, 000/and revenue authorities failed to bring any credible material on record to prove that the sale consideration was Rs. 2,70,00,000/and not Rs. 95,00,000/-. [Para 26]" 5.5 The appellant has also taken the plea that the AO had not given proper opportunity of cross examination with joint seller Shri Manohar Pa el despite specific request being made. In support of his view, the appellant has relied on the case of Andaman Timber Industries Vs CCE 281 CTR 241 (SC), which has h....
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...., conjectures and surmises. Therefore, we are of the view that mere admission of seller of acceptance of "cash/on-money" cannot be considered as tangible material in the absence of any other corroborative material. Our view is supported by the ratio laid down in the judgment in case of Shree Parshwanath Construction Vs. ITO (2014) 24 ITJ 409 (ITAT Indore Bench). It is a settled law that documentary evidence has precedence over the oral evidence. The same ratio was laid down in the case of Roop Kumar V/s Mohan Thedeni (Arising out of S.L.P. (C) No. 5835/2001) DATE OF JUDGMENT: 02/04/2003 (SC). We find that Hon'ble Madras High Court in the case of Commissioner of Income-tax v. P. V. Kalyanasundaram [2006] 282 ITR 259 (Mad) and Hon'ble Supreme Court in Civil appeal No. 4262 of ,2007 294 ITR 0049 (SC) have laid down the ratio that: - "The burden of proving actual consideration in such transaction is that of the revenue. The Tribunal had given factual finding and inter alia held that the Apex Court in K.P. Varghese v. ITO (1981) 131 ITR 597 (SC) held that the burden of proving actual consideration in such transaction is that of the revenue. The revenue, in the instant case, had failed....
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....ose collateral evidence. (See Strike on Evidence p. 648" (Emphasis applied). We therefore on the basis of the facts and documentary evidences placed before us are inclined to hold that the sale consideration for sale of land in question was only Rs. 95, 00, 000/and revenue authorities failed to bring any credible material on record to prove that the sale consideration was Rs. 2,70,00,000/and not Rs. 95,00,000/-." 10. Further, in relation to relevance of tangible evidence in respect of allegation of "on-money", our view is fortified with the following judicial pronouncements: I. Pr. CIT Vs. Vivek Prahalad Bhai Patel (2016) 237 Taxmann 331 (Guj. HC) II. Assistant Commissioner of Income-tax -Central Circle-1, Baroda v. Govindbhai N. Patel [2013] 33 taxmann.com 237 (Gujarat HC) 11. On going through record and rival submissions, we also find that during the course of assessment proceedings, the assessee had requested the Ld. AO for opportunity of cross-examination with the sellers on whose statement's reliance was placed but the same was ignored by the Ld. AO leading to violations of principles of Natural Justice which is, in our view, unjustified in view of the judgment of Hon'bl....