DCIT, CC-XIII, Kolkata, Kolkata V. Smt. Sudha Devi Saboo, Kolkata

ITA 1827/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54596 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L KOCHAR
• Assessee Lawyers: P S DUTTA
• Keywords: Document seized; Cost of acquisition; Documents seized
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . !' . ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] # # # # / I.T.A NO. 1827/KOL/2010 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR : 2007-08 DEPUTY COMMISSIONER OF INCOME-TAX, VS. SMT. SUDHA DEVI SABOO CENTRAL CIRCLE-XIII, KOLKATA. (PAN AJAPS 4936 J) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 14.10.2011 DATE OF PRONOUNCEMENT: 21.10.2011 FOR THE ASSESSEE: SHRI P. S. DUTTA, SR. DR. FOR THE REVENUE: SHRI S. L. KOCHAR - / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), CENTRAL - II, KOLKATA IN APPEAL NO 239/CC-XIII/CIT(A)-C-II/KOL/08-09 DATED 23.06.20 10. ASSESSMENT WAS FRAMED BY DCIT, CC-XIII, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE DATED 31.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF SE IZED DOCUMENT PAGE NOS. 1 TO 8 OF ID MARK AKS-6 WITHOUT APPRECIATING THE EVIDENTIARY VALUE OF MOU DATED 20.6.2006. ACCORDING TO REVENUE, THE PAYMENT SCHEDULE OF WHICH ASSESSEE REC EIVED RS.50,10,000/- ON DIFFERENT DATES ARE CLEARLY MENTIONED IN THE MOU AND CIT(A) WITHOUT CON SIDERING DELETED THE ADDITION. FOR THIS, REVENUE HAS RAISED FOLLOWING THREE EFFECTIVE GROUND S: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.50,10,000/- MA DE ON THE BASIS OF SEIZED DOCUMENT PAGES NO. 1 TO 8 OF ID MARK AKS-6 WITHOUT APPRECIAT ING THE EVIDENTIARY VALUE OF THE MOU DATED 20.02.2006 ACCORDING TO THE PAYMENT SCHEDULE OF WHICH THE ASSESSEE RECEIVED 50,10,000/- ON DIFFERENT DATES AS MENTIONED IN THE MOU. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE CONTEMPLATED RECEIPT WAS NEVER RECEIVED BY THE ASSESSEE AND QUESTION OF TAXABILITY DOES NOT ARISE WITHOUT APPR ECIATING THE PAYMENT SCHEDULE OF THE MOU DATED 20.02.2006 THAT THE ASSESSEE RECEIVED RS .50,10,000/- ON DIFFERENT DATES AS MENTIONED IN THE MOU WITHOUT APPRECIATING THE FACTS EVALUATED IN THE ASSESSMENT ORDER. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT THERE IS NO EVIDENCE OF DIVIS ION OF THIS PROPERTY IN MUMBAI WHEREAS THE PAYMENT SCHEDULE OF THE MOU DATED 20.02.2006 T HAT THE ASSESSEE RECEIVED 2 ITA 1827/K/2010 SMT. SUDHA DEVI SABOO., A.Y.2007-08 RS.50,10,000/- ON DIFFERENT DATES IN THE F.Y. RELEV ANT TO THE A.Y 2007-08 AS MENTIONED IN THE MOU. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE BRIEF FACTS ARE THAT ASSESSING OFFICER DURING T HE COURSE OF ASSESSMENT PROCEEDINGS MADE ADDITION OF RS.50,10,000/- AS UNEXPLAINED RECEIPT O N ACCOUNT OF SALE OF VIJAYA APARTMENT, MUMBAI UNDER MOU DATED 31.01.2001. THE ASSESSING O FFICER NOTED IN THE ASSESSMENT ORDER THAT SEIZED DOCUMENT AKS-6 FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENCE OF SHRI ASHOK KUMAR SABOO CLEARLY REVEALS AT PAGE NOS. 1 TO 8 OF MOU THAT THE ASSESSEE HAS SOLD 82, VIJAY APARTMENT, MUMBAI. AS PER CLAUSE 6 OF MOU B ETWEEN SM SUDHA DEVI SABOO AND SHRI SUBODH KUMAR SABOO DATED 20.06.2006 THE BALANCE OF RS.61.35 LACS MINUS RS.10 LACS WAS TO BE GIVEN TO SMT. SUDHA DEVI SABOO. THE ASSESSING OF FICER HAS NOTED THE PAYMENT SCHEDULE IN VIEW OF THE MOU IN HIS ASSESSMENT ORDER AS UNDER: DATE OF PAYMENT AMOUNT RECEIVED BY ALREADY PAID UPTO 20.02.2006 RS.13,65 LACS SHRI SANJEEV SABOO 05.03.2006 RS. 5.00 LACS SMT. SUDHA DEVI SABOO A.Y . 2006-07 RS.18.85 LACS 30.06.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 31.07.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 30.08.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 30.09.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 31.10.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 30.11.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 31.12.2006 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 31.01.2007 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 28.02.2007 RS. 3.50 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 31.03.2007 RS. 3.25 LACS SMT. SUDHA DEVI SABOO A.Y . 2007-08 RS.50.10 LACS ACCORDINGLY, ASSESSING OFFICER ADDED A SUM OF RS.50 .10 LACS IN THE HANDS OF THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO RELYING ON ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07 IN APPEAL NO.240/CC-XIII/CI T(A)-C-II/KOL/08-09 DELETED THE ADDITION BY GIVING FOLLOWING FINDING IN PARA 6 OF H IS APPELLATE ORDER: 1 HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMISS IONS OF APPELLANT AND ASSESSING OFFICER. THE FACTS OF THE CASE SHOW THAT AFTER THE DEATH OF SHRI BASANT KUMAR SABOO IN NOVEMBER 2005, HIS 1/3 RD SHARE IN THE FLAT IN MUMBAI INHERITED BY HIM AND H IS TWO OTHER BROTHERS FROM THEIR FATHER, WAS FURTHER INHERITED B Y HIS WIFE, THE APPELLANT, HIS SON SHRI SANJEEV SABOO AND HIS THREE DAUGHTERS. THE 1/3 RD SHARE IN THE FLAT IN MUMBAI, INHERITED BY THE LEGAL HEIRS OF SHRI BASANT KUMAR SABOO, INCL UDING THE APPELLANT WAS TO BE SOLD BY THE APPELLANT TO THE SON OF THE BROTHER OF HER HUSB AND SHRI SUBODH KUMAR SABOO FOR A PRICE OF RS.75 LAKH. THE LATE BASANT KUMAR SABOO A LONG WITH HIS WIFE, APPELLANT AND SON SANJEEV KUMAR SABOO WERE REGULARLY RECEIVING PA YMENTS FROM THE BROTHER AND THE SON OF THE BROTHER OF SHRI BASANT KUMAR SABOO SINCE MAY 2001. THE DETAILS OF SUCH PAYMENTS HAVE BEEN NARRATED IN THE APPELLATE ORDER OF LATE BASANT KUINAR SABOO IN ASSESSMENT YEAR 2002-03 IN APPEAL NO 231/CC-XIII/CI T(A)-C-II/KOL/08-09 AND THE FACTS SHOW THAT ABOUT RS.61 LAKH WAS PAID ON VARIOU S ACCOUNTS BY THE OILIER GROUP OF 3 ITA 1827/K/2010 SMT. SUDHA DEVI SABOO., A.Y.2007-08 SABOO FAMILY TO BASANT KUMAR SABOO AND HIS FAMILY B ETWEEN MAY 2001 TILL DECEMBER, 2005. A SUM OF RS.13.65 LAKH OUT OF SUCH PAYMENT B Y THE OTHER GROUP OF SABOO FAMILY TO BASANT KUMAR SABOO AND HIS FAMILY WAS LATER CONSIDE RED IN THE MOU DATED 20.02.2006 AS ADVANCE TOWARDS THE CONTEMPLATED SALE OF 1/3 RD SHARE OF THE LEGAL HEIRS OF SHRI BASANT KUMAR SABOO IN THE FLAT IN MUMBAI AFTER HIS DEATH IN NOVEMBER 2005. THESE FACTS ARE FLOWING FROM THE ORDER OF HNBLE ,SETTLEM ENT COMMISSION DATED 28.08.2009 IN CASE OF THE OTHER GROUP OF SABOO FAMILY WHERE THIS GROUP. IN THEIR SUBMISSION, IN NOTES ON MOU BEFORE HBLE SETTLEMENT COMMISSION, HAD SUB MITTED THAT SEIZED DOCUMENT AKS/11 PAGE 11 READ WITH SUBSEQUENT MOU DATED 08.01 .2006 WITH WIFE SUDHA SABOO AND SON SANJEEV SABOO OF DECEASED ASSESSEE SHOWS PA YMENT OF RS. 13.65 LACS TO THEM AND THE SAME HAS ALSO BEEN CONSIDERED AS INCLUDED I N THE PAYMENT OF ABOUT RS 61 LAKH FROM MAY 2001 TO DECEMBER 2005 TO BASANT KUMAR SABO O AND THIS SUBMISSION WAS ACCEPTED BY HBLE SETTLEMENT COMMISSION. HOWEVER, A S FAR AS THE BALANCE AMOUNT OF PAYMENT IN RESPECT OF PURCHASE OF 1/3RD SHARE IN FL AT IN MUMBAI FROM THE LEGAL HEIRS OF BASANT KUMAR SABOO IS CONCERNED, NO FURTHER PAYMENT IS APPEARING IN THE CASH FLOW STATEMENT OF THE OTHER GROUP OF SABOO FAMILY IN THE ACCOUNT OF LATE BASANT KUMAR SABOO OR HIS FAMILY THOUGH THE CASH FLOW STATEMENT HAS BE EN DRAWN TILL 31-07-2007 AND SUBMITTED BEFORE HBLE SETTLEMENT COMMISSION AND IS AVAILABLE WITH THE ASSESSING OFFICER. THIS CASH FLOW STATEMENT IS PREPARED FROM THE SEIZED DOCUMENTS AVAILABLE WITH THE ASSESSING OFFICER IN RESPECT OF THE OTHER GROUP OF SABOO FAMILY. THEREFORE, THE ASSESSING OFFICER HAS ENOUGH EVIDENCE AVAILABLE WIT H HIM TO INFER THAT NO SUBSEQUENT PAYMENTS WERE MADE BY THE OTHER GROUP OF SABOO FAMI LY AFTER DECEMBER 2005 TO THE APPELLANT OR HER SON SANJEEV KUTNAR SABOO AS CONTEM PLATED IN THE MOU DATED 20.02.2006. THERE IS NO EVIDENCE OF DIVISION OF THI S PROPERTY IN MUMBAI AND THIS FACT HAS BEEN ACKNOWLEDGED BY HBLE SETTLEMENT COMMISSION IN THEIR ORDER DATED 28.08.2009 IN CASE OF THE OTHER GROUP OF SABOO FAMILY. HBLE SET TLEMENT COMMISSION HAVE HELD IN THE SAID ORDER THAT THE UN-EXECUTED MOUS HAVE NO BEARIN G ON THE UNDISCLOSED INCOME OF THE APPLICANTS. AS THE ABOVE REFERRED CONTEMPLATED PAYM ENTS OF RS. 55.10 LAKH BY THE OTHER GROUP OF SABOO FAMILY TO THE APPELLANT WERE CONSIDE RED AS NOT BEEN GIVEN EFFECT TO AND WERE NOT INCLUDED IN THE CASH FLOW STATEMENT OF THE OTHER GROUP OF SABOO FAMILY SUBMITTED BEFORE THE HBLE SETTLEMENT COMMISSION AN D ACCEPTED BY HBLE SETTLEMENT COMMISSION, THE SAME CANNOT BE INCLUDED AS CONTEMPL ATED RECEIPTS IN THE HANDS OF APPELLANT. I THEREFORE DIRECT THE ASSESSING OFFICER TO REDUCE THE PART O/ CONTEMPLATED RECEIPT OF RS 5,00,000/-FROM THE TOTAL INCOME OF TH E APPELLANT WHICH WAS CONSIDERED BY HIM AS UNDISCLOSED INCOME OF THE APPELLANT. I MUST ADD THAT IN THE ASSESSMENT ORDER OF THE SON OF APPELLANT, SHRI SANJEEV SABOO FOR ASSESS MENT YEAR 2005-06, ASSESSING OFFICER HAS NARRATED AS HOW SUCH ADVANCE OF RS. 13. 65 LAKH HAS BEEN RECEIVED IN THE BOOKS OF LATE BASANT KUMAR SABOO AND SANJEEV KUMAR SABOO. HOWEVER, THIS ADVANCE OF RS. 13.65 LAKH WILL BE DEDUCTIBLE FROM THE COST OF ACQUISITION OF THE 1/3 RD SHARE OF THE LEGAL HEIRS OF SHRI BASANT KUMAR SABOO U/S 51 OF TH E I. T ACT, WHENEVER SUCH SHARE IS ACTUALLV SOLD BY THEM AND THE CAPITAL GAIN WOULD BE REQUIRED TO BE CALCULATED ACCORDINGLY. I, THEREFORE, DIRECT THE ASSESSING OFFICER TO REDUC E THE PART OF CONTEMPLATED RECEIPT OF RS 50,10,000/- FROM THE TOTAL INCOME OF THE APPELLANT WHICH WAS CONSIDERED BY HIM AS UNDISCLOSED INCOME OF THE APPELLANT. AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED CO PY OF LETTER OF ADMINISTRATION ISSUED BY HONBLE HIGH COURT OF JUDICATURE AT BOMBAY DATED 5 TH SEPTEMBER, 2009 WHEREBY HONBLE HIGH COURT HAS ISSUED LETTER OF ADMINISTRATION THAT IMMO VABLE PROPERTY BEING FLAT NO. 82, 8 TH FLOOR, VIJAYALAKSHMI COOPERATIVE HOUSING SOCIETY, 16, CARM ICAL ROAD, MALABAR HILL, MUMBAI-400 4 ITA 1827/K/2010 SMT. SUDHA DEVI SABOO., A.Y.2007-08 026 ADMEASURING ABOUT 1350 SQ. FT. STANDING IN THE NAME OF THE DECEASED BASANT KUMAR SABOO AND THE RELEVANT ORDER IN PETITION NO. 861 OF 2008 READS AS UNDER: BE IT KNOWN THAT THIS DAY BEING THE FIFTH DAY OF S EPTEMBER, TWO THOUSAND NINE, LETTERS OF ADMINISTRATION TO THE PROPERTY AND CREDI TS OF MR. BASANT KUMAR SABOO, HINDU INHABITANT OF KOLKATA, OCCUPATION: BUSINESS, WHO DI ED AT KOLKATA AS INTESTATE ON OR ABOUT THE TWENTY FIRST DAY OF NOVEMBER, TWO THOUSAND FIVE IS HEREBY GRANTED TO MR. SANJEEV KUMAR SABOO BEING THE SON OF THE DECEASED ABOVENAME D TO HAVE EFFECT THROUGH THE STATE OF MAHARASHTRA, HE HAVING UNDERTAKEN TO ADMINISTER THE SAME AND TO MAKE A FULL AND TRUE INVENTORY OF THE SAID PROPERTY AND CREDITS AND EXHI BIT THE SAME IN THIS COURT WITHIN SIX MONTHS FROM THE DATE OF THIS GRANT, OR WITHIN SUCH FURTHER TIME AS THE COURT MAY FROM TIME TO TIME APPOINT, AND ALSO TO RENDER TO THIS COURT A TRUE ACCOUNT OF THE SAID PROPERTY AND CREDITS WITHIN ONE YEAR FROM THE SAME DATE, ON WITH IN SUCH FURTHER TIME AS THE COURT MAY FROM TIME TO TIME APPOINT. THIS BEING THE POSITION THAT NO PROPERTY WAS TRANSF ERRED TILL 5 TH SEPTEMBER, 2009 AND AS PER LETTER OF ADMINISTRATION OF THE PROPERTY ISSUED BY HONBLE BOMBAY HIGH COURT THE PROPERTY CANNOT BE TREATED AS SOLD IN FY 2006-07 RELEVANT TO ASSESSMENT YEAR 2007-08. EVEN OTHERWISE, THIS MOU WAS NOT ACTED UPON BY ASSESSEE S IN VIEW OF DECISION OF SETTLEMENT COMMISSION, WE HAVE ALREADY DECIDED THIS ISSUE IN G ROUP CASES OF SABOO GROUP, AND PARTICULARLY IN THE CASE OF SANJEEV SABOO IN I.T.A NO. 1662/KOL/2010, WHEREIN IT IS HELD AS UNDER: 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSES SEE REFERRED TO THE ORDER OF INCOME-TAX SETTLEMENT COMMISSION DATED 28.08.2009 IN THE CASE OF HANUMAN PRASAD SABOO GROUP OF CASES WHEREIN MOUS IN DISPUTE HAVE BEEN CONSIDERED BY SETTLEMENT COMMISSION AND FOUND THAT THESE MOUS WERE ACTUALLY NOT ACTED UPON. INCOME TAX SETTLEMENT COMMISSION, ADDITIONAL BENCH OF KOLKATA PASSED ORDER U/S. 245D( 4) OF THE ACT VIDE ORDER DATED 28.08.2009 IN THE SABOO GROUP OF CASES IN ENDORSEME NT NO. WB/KC-II/2007-08/30/IT/310- 16. HE REFERRED TO RELEVANT FINDING OF SETTLEMENT COMMISSION AT PAGES 10 TO 12 OF THE ORDER, WHICH READS AS UNDER: (C) MEMORANDA OF UNDERSTANDING (MOUS): IN THE SEARCH, 12 MEMORANDA OF UNDERSTANDING (MOUS ) (AS PER PAGE 3387 OF THE PAPER BOOK) WERE SEIZED. THESE RELATE TO (A) SEPARATION B ETWEEN HANUMAN PRASAD SABOO AND BASANT KUMAR SABOO; AND (B) SEPARATION BETWEEN SONS OF HANUMAN PRASAD SABOO & ASHOK KUMAR SABOO AND KISHORE KUMAR SABOO & SUBODH KUMAR SABOO. C1T, IN HIS RULE 9 REPORT, HAS REFERRED TO THESE MOUS IN THE CASES O F FOLLOWING APPLICANTS: A) ASHOK KUMAR SABOO B) KISHORE KUMAR SABOO C) HIGH RISE ROLLER FLOUR MILLS PVT. LTD. D) SUBODH KUMAR SABOO, HUF E) HANUMAN PRASAD SABOO, HUF F) HANUMAN PRASAD SABOO IN THE PAPER BOOKS SUBMITTED BY THE APPLICANTS, DE TAILS OF ALL THE MOUS HAVE BEEN GIVEN. IT IS SEEN THAT THESE ARE IN THE NATURE OF FAMILY SETT LEMENTS ARRIVED AT DIFFERENT TIMES BY SOME OF THE FAMILY MEMBERS. ON THE STRENGTH OF SOME OF T HE MOUS, LIKE (KKS-6), THE CIT HAS MENTIONED ABOUT THE CURRENT VALUATION OF A HOUSE AT HASTINGS IN KOLKATA AND OF AN APART 5 ITA 1827/K/2010 SMT. SUDHA DEVI SABOO., A.Y.2007-08 MENT IN MUMBAI AT RS 69,60,000 AND RS 2,25,00,000 R ESPECTIVELY. HE HAS, HOWEVER, NOT DRAWN ANY CONCLUSION THEREFROM. THE CIT HAS ALSO REFERRED TO THE SEIZED DOCUMENTS AKS-11, AKS-16, AKS-30, AKS-35 AND AKS-39 TO CONTRADICT THE CLAIM OF THE APPLICANTS IN THE SOF TO THE EFFECT THAT THE MOUS HAD NO IMPLICATION ON COMPUTATION OF UNDISCLOSED INCOME AND ALSO THAT THE MOUS MENTIONED IN THE SEIZED DOCUMENT AKS-11 HAD SUBSTITUTED ALL OTHE R MOUS. THE LD. AR HAS EXPLAINED THAT THE MOUS WERE PREPAR ED BY A FEW OF THE FAMILY MEMBERS SEVERAL TIMES WITH A RESULT THAT AN M0U, ONCE ARRIV ED AT, GOT SUBSTITUTED BY ANOTHER MOU. IT WAS EMPHASIZED THAT NONE OF THE MOUS FOUND DURING T HE SEARCH WERE ACTUALLY ACTED UPON. THE SABOO FAMILY WAS VERY BIG AND WERE LIVINQ TOGET HER. THERE WERE INNER DISPUTES. THIS LED TO DRAWING OF MOU FOR ONE FAMILY AND MEMBER, TH EN CANCELLING IT AND SUBSTITUTING IT WITH ANOTHER MOU. HENCE, CONTENTS OF THE SUBSTITUTE D OR CANCELLED MOUS DID NOT HAVE ANY SIGNIFICANCE. TO SUPPORT THIS ARGUMENT, HE HAS RELI ED UPON PAGE NO. 10 OF AKS-11 WHICH HAS BEEN SIGNED BY SANJEEV SABOO AND SUDHA SABOO ON 08-01-2006 AND WHICH NARRATES THAT THEY HAVE FORMED (DESTROYED) FAMILY SETTLEMEN T PAPERS SIGNED BY US. IT IS STATED THAT SUCH NARRATION ABOUT DESTROYING THE FAMILY SETTLEME NT PAPERS WOULD MEAN THAT MOU HAD NO IMPLICATION ON THE COMPUTATION OF UNDISCLOSED INCOM E. THE LD. AR HAS ALSO REFERRED TO OBSERVATION OF CIT IN RESPECT OF LAKS-35. THIS DOCU MENT SPEAKS ABOUT SOME ARRANGEMENTS MADE ON 31-01-2002. CIT OPINES THAT THIS DOCUMENT S HOWS PAYMENT OF RS. 30,00,000 TO BASANT KUMAR SABOO FOR HIS RESIGNATION FROM M/S. HI GH RISE ROLLER FLOUR MILLS PVT. LTD.; PAYMENT OF RS. 25,00,000 TO SANJEEV SABOO; PAYMENT OF RS. 20,00,000 TO LATE BASARNT KUMAR SABOO AND SANJEEV SABOO; PAYMENT OF RS. 20,00 0 PER MONTH FOR HOUSEHOLD EXPENSES FOR THREE YEARS (TOTALLING TO RS.7,20,000) BY HANUM AN SABOO. IN OTHER WORDS, CIT HAS STATED THAT THIS DOCUMENT CERTAINLY SHOWS PAYMENTS TO THE EXTENT OF RS. 82,20,000 TO DIFFERENT PERSONS. THE LD. AR HAS REPLIED THAT THI S MOU WAS ALSO NOT ACTED UPON. IN ANY CASE, ASSUMING THAT SUCH PAYMENTS HAD BEEN MADE, TH E PAYMENTS INDICATED FROM THE SEIZED DOCUMENT CAN BE ONLY OF RS. 7,20,000 BY HANUMAN PRA SAD SABOO, AS OTHER AMOUNTS WERE NEVER PAID TO ANY PERSON. THE PAYMENT OF RS. 7,20,0 00 IN THREE YEARS IS OTHERWISE EXPLAINABLE THROUGH THE DRAWINGS OF BASANT KUMAR SA BOOL. THE CIT HAS ALSO REFERRED TO A NUMBER OF PROPERTIES REFLECTED IN SUCH MOUS. THEY C ONSIST OF RESIDENCES, LAND, SHOPS, GODOWNS, IN ALL TOTALLING 11 IN NUMBER. THE A.R. HA S REFERRED TO PAGE 144 OF PAPER BOOK, VOL. 17 WHERE A DETAILED CHART HAS BEEN GIVEN SHOWI NG THE DATE-WISE ACQUISITION OF THOSE PROPERTIES, THE NAMES OF THE PURCHASERS, CONSIDERAT ION PAID WITH REFERENCE TO THE RESPECTIVE INCOME-TAX FILES. IT IS POINTED OUT THAT THESE PROP ERTIES ARE DULY REFLECTED IN THE REGULAR BOOKS. ALL BUT ONE PROPERTY WAS ACQUIRED IN YEARS E ARLIER TO THE PERIOD OF APPLICATION. THE ONE PROPERTY AT SUNNY PARK WAS PURCHASED IN F.Y. 20 03-04, IN THE NAME OF SMT. MAMTA SABOO AND IT IS ALSO REFLECTED IN HER REGULAR BALAN CE SHEET. HOWEVER, AGAINST THIS PROPERTY, AN ON-MONEY OF RS. 34,00,000 HAD BEEN PAID AND TH IS AMOUNT, IT IS STATED, HAS BEEN SHOWN IN THE COMPOSITE CASH- FLOW STATEMENT AS CASH OUT-F LOW. APART FROM THE ABOVE, CERTAIN OTHER REFERENCES ABO UT INVESTMENTS IN SHARES, UNACCOUNTED EXPENSES AND RECEIPTS AND WORKING CAPITAL HAVE BEEN MADE BY THE CIT. LD. A.R. HAS IN THIS REGARD REFERRED TO THE EVIDENCES FURNISHED IN THE P APER BOOK, VOL. 17. WE HAVE CONSIDERED CONTENTIONS OF BOTH THE SIDES A ND THE EXPLANATIONS PLACED ON BEHALF OF THE APPLICANTS. THERE IS NO MATERIAL TO SUBSTANTIAT E THE FACT THAT ALL OR ANY OF THE MOU WAS ACTUALLY ACTED UPON, AND ANY DIVISION OR DISTRIBUTI ON OF ASSETS ACTUALLY TOOK PLACE ON THAT BASIS. REGULAR BALANCE SHEETS OF DIFFERENT YEARS SH OW THAT THERE HAS BEEN NO SUCH DIVISION OR DISTRIBUTION. THERE ARE A FEW INSTANCES WHERE SO ME PAYMENTS COULD HAVE ACTUALLY BEEN MADE ON THE BASIS OF A MOU. SUCH PAYMENTS HAVE ALSO BEEN EXPLAINED THROUGH THE CASH- FLOW STATEMENT. WE ARE, THEREFORE, OF THE OPINION THAT THE UN-EXECUTED MOUS HAVE NO BEARING ON THE UNDISCLOSED INCOME OF THE APPLICANTS . 5. WE FIND FROM THE ABOVE ORDER OF SETTLEMENT COMMI SSION WHEREBY IT IS HELD THAT THERE IS NO MATERIAL TO SUBSTANTIATE THE FACT THAT ALL OR AN Y OF THE MOU WAS ACTUALLY ACTED UPON AND ANY 6 ITA 1827/K/2010 SMT. SUDHA DEVI SABOO., A.Y.2007-08 DIVISION OR DISTRIBUTION OF ASSET ACTUALLY TOOK PLA CE ON THAT BASIS. IT IS ALSO A FINDING BY SETTLEMENT COMMISSION THAT EVEN FROM REGULAR BALANC E SHEETS IT IS CLEAR THAT THERE IS NO SUCH DIVISION OR DISTRIBUTION. BUT THERE ARE FEW INSTAN CES WHERE SOME PAYMENTS COULD HAVE ACTUALLY BEEN MADE ON THE BASIS OF THESE MOUS BUT THE PAYMEN TS HAVE BEEN EXPLAINED THROUGH CASH FLOW STATEMENT. IN VIEW OF THE ABOVE, WE DISMISS THIS ISSUE OF REVENUES APPEAL 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 7. ORDER PRONOUNCED IN OPEN COURT ON 21.10.2011. SD/- SD/- . !' !'!' !' . , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ' ) )) ) DATED : 21ST OCTOBER, 2011 ./ $01 2 JD.(SR.P.S.) - 3 +4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT DCIT, C.C. XIII, KOLKATA. 2 +,)* / RESPONDENT, SMT. SUDHA DEVI SABOO, 40 STRAND ROAD , 4 TH FLOOR, KOLKATA-700 001. 3 . -$ ( )/ THE CIT(A), KOLKATA 4. -$ / CIT, KOLKATA 5 . => +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, -$?/ BY ORDER, 1 /ASSTT. REGISTRAR .