RAJINDER KUMAR HAK vs.INCOME TAX OFFICER
A.D. JAIN, JM.
ITA No. 507(Asr)/2014
Feb 26, 2016
(2016) 46 cch 0174 AsrTrib
Legislation Referred to
Case pertains to
Asst. Year 2005-06
Decision in favour of:
Addition—Addition on account of unexplained investment—Assessment was made u/s 143(3) on basis of information received from ADIT Jammu that assessee had purchased certain flat from ’C’ for Rs 17.50 lacs—As per statement seized during course of search operation of ’C’, Assessee had made payments of Rs 8.50 lakhs by cheque and Rs 9 lakhs in cash—AO asked assessee to explain source of investments of Rs 17.50 lakhs made in cash and by cheque—Assessee however, could not explain source of Rs 50,000 paid to society and Rs 1,00,000 deposited in bank as margin money—AO assessed investment at Rs 18.50 lacs by making addition of Rs 10.50 lakhs as unexplained investment—CIT(A) confirmed addition made by AO—Held,assessment order did not find any mention that said information regarding other allottees was ever put to assessee—Details of said receipts of other allottees were also missing in short assessment order—No nexus between case of assessee and those of alleged other allottees was established by AO—CIT(A) admitted that papers/list of alleged allottees had not been recovered from assessee in search operations—It had been stated by CIT(A) that veracity of paper could not be questioned—Firstly, as noted, impugned paper was not computer generated document, but, undisputedly had merely been typed on computer, rendering it as of no evidentiary value against assessee so far as regards alleged understatement of purchase price—Then, as also earlier observed, said paper was ridden with numerous discrepancies which CIT(A) had not even attempted to meet—That said paper was not in hand-writing of assessee and it did not belong to assessee—Impugned paper did not contain date on which alleged cash payment had been made by assessee—CIT(A) merely observed that date of agreement and due date of payment mentioned in seized document fell in year under consideration and therefore, there was no reason to consider plea of assessee that payment could have been made in subsequent year—Observation of CIT(A) was wholly against facts as discussed, which had not been rebutted by CIT(A)—There was no rebuttal to assessee’s contention that only token amounts of Rs.20,000 and Rs.30,000 were paid which fell in F.Y. 2004-05—Payment of Rs.8,00,000 was made vide demand draft issued by UCO Bank which fell in F.Y. 2005-06—Receipts issued by Society qua three payments were placed on record by assessee—However, payment of Rs. 8,00,000 had still been taken by CIT(A) to have been made in F.Y. 2004-05, quite against record and without any basis—It is required to mention here that this amount of Rs. 8,00,000 was paid at time of registration of sale deed with Registering Authority—Sale deed executed on 18.05.2005 specified in no uncertain terms, the purchase consideration to be at Rs.8,50,000—Sale deed was admittedly registered one—As against this document, there was nothing on record, other than assumptions and presumptions of AO and CIT(A), which was also contradictory inter-se—There was no material on record to suggest any understatement of purchase price of flat by Assessee—Purchase value stood accepted as such by Registering Authority too, besides, provisions of s 50C also did not stand invoked—Impugned Order was passed on merely assumptions and presumptions, without any corroborative evidence to support observations made by CIT(A)—Addition made by AO was thus deleted—Assessee’s Appeal allowed
CIT(A) admitted that the papers/list of alleged allottees had not been recovered from the assessee in the search operations. However, in the same breath, it has been stated by the ld. CIT(A) that the veracity of the paper could not be questioned. Firstly, as noted, this paper was not a computer generated document, but, undisputedly had merely been typed on a computer, rendering it as of no evidentiary value against the assessee so far as regards the alleged understatement of purchase price. Then, as also earlier observed, the said paper is ridden with numerous discrepancies which the ld. CIT(A) has not even attempted to meet. It goes without saying that the said paper was not in the hand-writing of the assessee and it did not belong to the assessee. It did not contain the date on which the alleged cash payment had been made by the assessee.
CIT(A) merely observed that the date of agreement and due date of payment mentioned in the seized document fell in the year under consideration and therefore, there was no reason to consider the plea of the assessee that the payment could have been made in the subsequent year. This observation of the ld. CIT(A) is wholly against the facts as discussed, which facts have not been rebutted by the ld. CIT(A).
There is no rebuttal to the assessee’s contention that only token amounts of Rs.20,000/- and Rs.30,000/- were paid on 17.09.2004 & 21.12.2004 respectively, which fell in the F.Y. 2004-05. The payment of Rs.8,00,000/- was made vide demand draft issued by UCO Bank on 19.05.2005, which fell in the F.Y. 2005-06. The receipts issued by the Society qua the three payments were placed on record by the assessee. However, the payment of Rs. 8,00,000/- has still been taken by the ld. CIT(A) to have been made in F.Y. 2004-05, quite against the record and without any basis. It requires mention here that this amount of Rs. 8,00,000/- was paid at the time of registration of the sale deed with the Registering Authority.
As against the above, the sale deed executed on 18.05.2005 specifies in no uncertain terms, the purchase consideration to be at Rs.8,50,000/-. This sale deed is admittedly a registered one. The contents thereof are duly sworn before the Magistrate. As against this document, there is nothing on record, other than the above discussed assumptions and presumptions of the AO and the ld. CIT(A), which also are contradictory inter-se. There is no material on record to suggest any understatement of the purchase price of the flat by the assessee. The purchase value stands accepted as such by the Registering Authority too. Besides, the provisions of section 50C of the Act also do not stand invoked.
Thus, looked at from any angle, the order under appeal is unsustainable in law. It has been passed on merely assumptions and presumptions, without any corroborative evidence to support the observations made. The same, is accordingly, reversed. The addition of Rs.10,50,000/- is, accordingly, deleted.
Where paper on basis of which addition was made, was not computer generated document but merely typed on computer, rendering it as of no evidentiary value against Assessee and addition was made on merely assumptions and presumptions, without any corroborative evidence, same were justified to be set aside.
In favour of