TaxTMI 
TaxTMI 
2024 (12) TMI 1659
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....ome Tax (Appeals) is erroneous on facts of the case and in law. 2. The Ld. CIT(A) erred in deleting the addition of Rs. 2,60,00,000/- made by the assessing officer as unexplained investment u/s. 69 towards the difference between the value as per registered sale deed and the purchase consideration as mentioned in the loose sheet extracted from assessee's mobile phone during the course of search. 2.1 The Ld. CIT(A) erred in holding that the loose sheet (extract of image from mobile phone) relied upon by the assessee is only secondary evidence and cannot be relied upon. The Ld. CIT(A) failed to appreciate that the materials seized during the course of search presumed to be belonged to the assessee and its contents are true as per the provisions of Sec. 132(4A) and 292C of the Act. The statement given by the assessee during the search corroborates the contents of seized materials. 2.2 The Ld. CIT(A) ought to have appreciated that the assessee in his sworn statement dated 06/02/2020 stated that noting contained the details of extant of land and investment amount. But subsequently, on realization that the amount mentioned in the registered sale deed is less....
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....arious details from the assessee. 2.2 The incriminating material include loose sheets extracted from the assessee's Apple iPhone-X seized vide page-4 of ANN/BV/CJV/LS/S and the same is stated to be containing details of certain properties. This said material was nothing but image captured by the assessee in his apple iPhone on 18-11-2017 from another Samsung phone. This sheet was stated to be non-editable one. The assessee, when confronted to the same in Question Nos. 20 & 21, replied as under: - Q.20 During the course of search proceedings on 05.02.2020 at your residence Villa 105, 3rd avenue, Seashore town, Panaiyur, Chennai, on verification of your mobile phone (Apple IPhoneX) and lPAD Pro ML2M2HN/A serial no. DLXTM01SGMW7 which are having same apple ID [email protected] a notings seized vide page 4 of ANN/BV/CJV/LS/S, titled "Lands" ... "please identify. A20 Yes. I confirm that this print out is taken from my mobile/Ipad. It contains the land details in which I have invested. Q.21 During the course of search proceedings on 05.02.2020 at your residence Villa 105, 3'd avenue, seashore town, Panaiyur, Chennai, on verification of your mobile phon....
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.... 7,00,00,000 4 Land at Old No.145 New No.115, Neelangarai village Sholinganallur. 06-06-2013 2,40,00,000 5,00,00,000 2,60,00,000 Total 33,51,00,000 50,00,00,000 16,49,00,000 On the basis of the same, Ld. AO held that the value noted in the mobile notes was much more than the purchase consideration shown in the sale deeds and accordingly, Ld. AO proceeded to add the differential of the two values to the income of the assessee as unexplained investment. 2.5 During the course of search, another statement was also recorded from the assessee at the time of PO lifting on 12-03-2020 wherein the assessee was confronted with above tabulation and the assessee replied to Question No. 99 & 100 as under: - Ans. The price mentioned in the mobile phone is offer price. After negotiations, the price has been finalized as per sale deed. It is usual practice for me, whenever I, intended to buy a property I enquire through my broker. Later broker or owner of the property come with fancy price. Then I send my staffs to negotiate with the owner to bring down the price and convincing the owner that the payment will be made in a single tr....
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....CJV/LS/S. The price noted in the loose sheet matched with the price quoted in the purchase deed of those two properties. When confronted how come he had noted down the exact price as in purchase deed against the newly purchase property at Palavakkam and Adyar and not any offer price, assessee replied vide question No.103 recorded on 12-03-2020 that he would have noted down the offer price initially and updated the negotiated price. It is very unlikely that he had updated the price for only those two properties and forgot to update the price for other properties. 2.7 Finally, the stand of the assessee for not updating the price of four properties was that the details of the four properties were actually noted in his old Samsung mobile which he took photograph in his new Apple lphone and stored the same in Notes App which was not editable. The same was not acceptable since the assessee was having the habit of noting down the details of the properties owned by him in his mobile phone which was very much evident from his sworn statement. Under such circumstances, there are only two possibilities that he would have followed while creating the notes in his old Samsung mobile. Either a....
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....e negotiated prices of those properties. The same is clearly not acceptable since it was beyond doubt that the amount mentioned in mobile notes by him represented the actual values of the properties acquired which were more than the sale price mentioned in the documents. 2.9 Finally, the differential amounts were added in respective assessment years as unexplained investment u/s 69. The impugned addition for this year was Rs.260 Lacs. Similar additions were made in other years. Aggrieved, the assessee preferred further appeal before Ld. CIT(A). 3. Appellate Proceedings 3.1 During appellate proceedings, the assessee assailed impugned addition by way of elaborate written submissions which have already been extracted in the impugned order. The assessee submitted that seized material was nothing but an image captured in apple iPhone on 18-11-2017 from another Samsung Mobile phone. The assessee transferred the incomplete notings made in Samsung Phone to his new iPhone as part of routine data transfer to a new phone. The said image was not editable one. There were discrepancies in the entries which would show that extent of values captured therein were nothing but casual notings....
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....nst which some amount was mentioned. However, in addition to this, there was a mark as "..???". Therefore, this loose sheet did not convey anything that the amount mentioned therein were the real values. In such a case, the assessee should have mentioned the exact extent of the land and value in respect of all the properties. If the assessee was confident about the narration in the loose sheet, there is no necessity to put "..???" in the loose sheet. 3.4 It was further held by Ld. CIT(A) that the loose sheet did not indicate that the value of the property as mentioned therein was the actual sale consideration paid. There exists no information how the assessee had paid the extra consideration and what was the source for it. The narration in the loose sheet was not sufficient enough to form the opinion and to arrive at a conclusion that the assessee had actually paid the amount as narrated therein. The sheet being the secondary evidence, would require more corroborative evidences to arrive a conclusion that the value mentioned against each property was the actual consideration paid. Reference was made to the decision of Mumbai Tribunal in the case of Riveria Properties Pvt. Ltd. (....
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....which was subjected to remand proceedings. The Ld. AO submitted that the confirmation was filed after the passage of three years without adducing any reasons for such undue delay. The very authenticity of such confirmation was dubious. The Ld. CIT(A) noted that Ld. AO summarily rejected the evidences filed by the assessee without giving any opportunity of hearing. No efforts were made to examine the confirmation. Considering this fact, the onus was discharged by the assessee and the burden was on Ld. AO to disprove the same. It was finally held that loose sheets and statements recorded raised only a suspicion about extra consideration. However, the same were not conclusive and accordingly, the impugned additions as made by Ld. AO for all the years were deleted. Aggrieved, the revenue is in further appeal before us. Our findings and Adjudication 4. From the facts, it emerges that the assessee was subjected to search action on 05-02-2020 wherein certain images were captured from iPhone-X of the assessee which form the very basis of impugned additions. These images were downloaded, printed and seized as incriminating material. One such image is the image captured from another Sa....
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....h would establish that the assessee received any undisclosed receipts which were sourced to make the impugned additions. 6. The Ld. CIT(A), in our considered opinion, rightly appreciated the facts that the image revealed only a part of the transactions and not the entire transaction. The same would require more corroboration to sustain additions in the hands of the assessee. The sole document as relied upon by Ld. AO lacked essential element such as actual consideration paid and extra consideration paid by way of on-money. The nature of documents was such that it could not be relied upon to support the addition. Reference was made to the decision of Jabalpur Bench of Tribunal in the case of ACIT vs Satyapal Wassan [TS-5104-ITAT-2007 (Jabalpur)-O] to arrive at such a conclusion. It has further been held by Ld. CIT(A) that the loose sheet nowhere indicated that the value of the property as mentioned therein was the actual sale consideration paid by the assessee. There was no information/material as to how the assessee had paid the extra consideration and what was the source for it. Reference was made to the decision of Mumbai Tribunal in the case of Riveria Properties Pvt. Ltd. (I....