Case Law Details
Devaram C. Bhavani Vs. ITO (ITAT Mumbai)
We have given a thoughtful consideration to the notings in the impounded document, viz. Annexure A-2– Page 37 & Page 105 and are unable to persuade ourselves to be in agreement with the view taken by the lower authorities. We find that as against the working of the amount of Rs. 67,20,000/- (forming part of Rs. 72,50,000/-) mentioned in the impounded document, a figure of “1120” is mentioned. We are of the considered view that the figure of “1120” referred to an area of a property. We find that the area of the Flat No. 2002, Kent Garden, Borivali (W), Mumbai, as stands gathered from a perusal of the ‘Agreement to sell’ (Page 18 of ‘APB’) is 68 Sq. mtrs (i.e 732 Sq. ft), therefore, the said fact in itself safely distances the property under consideration from the workings mentioned against the amount of Rs. 72,50,000/- in the impounded document. We are unable to comprehend that now when there was no basis for concluding that the impugned notings mentioned as against the figure of Rs. 72,50,000/- in the impounded document were in context of Flat No. 2002, Kent Garden, Borivali (W), Mumbai, then how could adverse inferences as regards payment of “on money” by the assessee for the purchase of the said property could have be drawn by the A.O. We are rather of the considered view that as the details mentioned against the amount of Rs. 67,20,000/-(supra) are clearly at variance as against that of the property under consideration, therefore, there was no occasion for the A.O to have acted upon the said impugned notings in context of the purchase of the property under consideration. We have further perused the notings marked as “Commission” at Page 105 of the impounded document, and though find that as against the term “Commission” certain amounts are found mentioned, but are unable to comprehend as to how such dumb notings have been related to the purchase of the property under consideration, viz. Flat No. 2002, Kent Garden, Borivali (W), Mumbai by the assessee. We further find that the judgment of the of the Hon’ble High Court of Bombay in the case of Surendra M. Khandhar Vs. Assistant Commissioner of Income-tax & Ors (2010) 321 ITR 254 (Bom) relied upon by the ld. D.R is distinguishable on facts. We find that in the case before the High Court a zerox copy of a document signed by two parties, revealing payment of a loan of Rs. 20 lac by the assessee to them and the manner as per which the amount was to be received back was seized from the premises of the assessee during the course of Search & seizure proceedings. The assessee in the said case neither at the first available opportunity, nor at any subsequent stage of appeal or before the High Court denied the document, but had only claimed that the transaction mentioned therein was not given effect to. We find that it was in the backdrop of the aforesaid facts that the High Court held that once a document was seized in the premises under control of the assessee, the presumption under s. 292C as also that under s. 132(4A) followed, and it was for the assessee to rebut that presumption. The High Court observed that as in the case before it, neither the presumption created by the document was rebutted nor had the assessee denied the loan amount, thus no infirmity could be found with the reasoning adopted by the Tribunal for upholding the correctness of the contents of the documents. We find that the facts of the case before us are clearly distinguishable as against the facts involved in the case before the Hon‟ble High Court on multiple grounds, viz.
(i). that as the presumption under Sec. 292C and under Sec. 132(4A) invoked in the case before the High Court is applicable only in a respect of documents seized during the course of search proceedings, therefore, the same would not be applicable to the case of the present assessee where survey proceedings were conducted;
(ii). that unlike as in the case before the High Court, the impounded document in the case of the assessee was an unsigned document;
(iii). that unlike as in the case before the High Court, the assessee in the present case had never admitted the contents of the seized document, viz. Annexure A-2– Page 37 & Page 105 as relating to the purchase of the property under consideration; and
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