Shri Jawaharbhai Atmaram Hathiwala, Surat V. The Income tax Officer, Ward-9(2), Surat

ITA 2695/AHD/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0349 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-10-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 07-12-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU JHA
• Assessee Lawyers: J P SHAH
• Keywords: Search and seizure; Document seized; Question of law; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 9.10.09 DRAFTED ON: 9.10.2009 ITA NO.2695/AHD/2006 ASSESSMENT YEAR : 1999-2000 JAWAHARBHAI ATMARAM HATHIWALA I-302, CHANDAN PARK SOCIETY, CITY LIGHT ROAD, SURAT, 365007 VS. THE INCOME TAX OFFICER, WARD-9(2), SURAT. ROOM NO.416, AAYAKAR BHAVAN, OPP.NEW CIVIL HOSPITAL, MAJURA GATE, SURAT- 395 001. PAN/GIR NO. : ABJPH 8858 B (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI J.P.SHAH RESPONDENT BY: SHRI SUDHANSHU JHA SR. D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF THE LD.CIT(APPEALS)-V, SURAT, DATED 14.09.2006. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT T HE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIR MING ADDITION OF RS.3,81,414/- ON ACCOUNT OF ALLEGED ON MONEY BEIN G PAID BY THE ASSESSEE FOR INVESTMENT IN FLAT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E PURCHASED A FLAT AT HOUSING SCHEME CHANDAN PARK WHICH WAS DEVELOPED B Y M/S. OHM DEVELOPERS. A SEARCH ACTION WAS CARRIED OUT AT THE BUSINESS PREMISES OF M/S. OHM DEVELOPERS AND CERTAIN PAPERS WERE SEIZED. IN ONE SUCH PAPER, ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 2 - ON PAGE 78 OF BOOK NO.B-2/26, IT WAS FOUND THAT ASS ESSEE HAD MADE TOTAL PAYMENT OF RS.6,69,725/- OUT OF WHICH RS.4,83,101/- RELATES TO THE YEAR UNDER CONSIDERATION. ON PERUSAL OF THE ASSESSEES R ECORDS, LEARNED ASSESSING OFFICER FOUND THAT DURING THE YEAR ASSESS EE HAS SHOWN PAYMENT OF RS.1,01,687/- TO M/S. OHM DEVELOPERS AND THUS, T HE DIFFERENCE PAYMENT OF RS.3,81,414/- (RS.483101/- RS.1,01,687/ -) WAS NOT SHOWN IN THE BOOKS OF ACCOUNT. THE LEARNED ASSESSING OFFICE R ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE PROPOSING TO ADD THIS AMOUNT OF RS.3,81,414/- BEING UNEXPLAINED PAYMENT MADE BY THE ASSESSEE TO T HE DEVELOPER. IN RESPONSE TO THE SAID NOTICE, ASSESSEE ASKED FOR A C OPY OF STATEMENT OF SHRI KETAN O.DER, PARTNER OF M/S. OHM DEVELOPER, WHEREIN HE HAD CONFIRMED TO HAVE RECEIVED ON MONEY ON BOOKING/SALE OF THE FLAT AT CHANDANPARK TO THE ASSESSEE AND THE SAME WAS GIVEN TO THE ASSES SEE. ON RECEIPT OF COPY OF THE STATEMENT, THE ASSESSEE REQUESTED FOR O PPORTUNITY TO CROSS EXAMINED SHRI KETAN O.DER WHICH WAS ALLOWED AND DUR ING THE COURSE OF CROSS EXAMINATION ALSO, IT WAS ADMITTED BY SHRI KET AN O.DER TO HAD RECEIVED ON MONEY. AFTER THIS, THE ASSESSEE MADE A FINAL SUBMISSION WHEREIN HE DENIED OUT RIGHTLY TO HAVE MADE ANY PAYM ENT OF ON MONEY FOR PURCHASE OF FLAT IN CHANDANPARK SOCIETY DEVELOP ED BY M/S. OHM DEVELOPERS. THE LEARNED ASSESSING OFFICER DID NOT A CCEPT THE SUBMISSION OF THE ASSESSEE AND CONCLUDED THAT IN VIEW OF CLINC HING EVIDENCES IN THE FORM OF SEIZED LOSE PAPER AND ALSO IN THE LIGHT OF THE STATEMENT MADE BY SHRI KETAN O.DER, THERE WAS NO DOUBT ABOUT THE PAYM ENT OF ON MONEY MADE BY THE ASSESSEE AND ADDED THE SAID AMOUNT TO T HE TOTAL INCOME TREATING THE SAME AS PAYMENT MADE OUT OF UNDISCLOSE D INCOME. ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 3 - 4. IN APPEAL BEFORE THE LEARNED COMMISSIONER OF INC OME TAX(APPEALS), THE ASSESSEE SUBMITTED THAT DURING TH E COURSE OF CROSS EXAMINATION OF SHRI KETAN O. DER HAD CATEGORICALLY ADMITTED THAT IN THE LOSE PAPER SEIZED DURING SEARCH, THE ASSESSEE NOR A NY OF THE PERSONS FROM THE SITE OF THE ASSESSEE HAD WRITTEN AS ANY THING O FFERED THERE AND ACCORDINGLY, THE SAID PAGE WAS PREPARED BY THE CONC ERNED EMPLOYEE OF THE FIRM M/S. OHM DEVELOPERS AT THE INSTANCE OF ITS PARTNER MR. KETAN O. DER AND ASSESSEE HAD NOTHING TO DO WITH THAT. IT W AS FURTHER SUBMITTED THAT EXCEPT THE NOTING MADE ON THE SEIZED PAPER THE PARTNER OF M/S. OHM DEVELOPERS DID NOT HAVE ANY OTHER EVIDENCE FOR PAYM ENT OF ON MONEY. IT WAS FURTHER SUBMITTED THAT NEITHER ANY DEED, COP IES OF REPLIES NOR ANY OTHER DOCUMENTARY EVIDENCE WERE GIVEN TO THE ASSESS EE AGAINST THE PAYMENT RECEIVED FROM ASSESSEE AND THIS PROVES THAT THE STORY OF PAYMENT ON MONEY TO M/S. OHM DEVELOPERS BY THE AS SESSEE WAS A COCKED UP STORY AND HENCE, THE SAME MAY BE DELETED. IT WAS FURTHER STATED THAT IF AT ALL ON THE BASIS OF THE SAID PAPE R, THE ADDITION WAS TO BE MADE, THE SAME SHOULD HAVE BEEN RESTRICTED TO RS.3, 81,414/- ON BEING THE ALLEGED DIFFERENCE OF PAYMENT. 5. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING THE ABOVE SUBMISSION OF THE ASSESSEE HE LD THAT THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER WITH REGARD T O THE PAYMENT OF ON MONEY BY THE ASSESSEE OUT OF UNDISCLOSED SOURCES O F INCOME OF RS.3,81,414/- (RS.4,83,101/- RS.1,01,687/-) WAS J USTIFIED ON THE GROUND THAT SHRI KETAN O. DER DURING THE COURSE OF CROSS E XAMINATION BY THE ASSESSEE HAS STATED THAT ON MONEY WAS PAID BY THE ASSESSEE AND THAT NOW A DAYS, IN PROPERTY TRANSACTIONS PART PAYMENT I N CASH IS A CUSTOM. ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 4 - 6. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE DURING THE COURSE OF THE HEARING, SUBMITTED THAT BESIDES THE S TATEMENT OF SHRI KETAN O.DER PARTNER OF OHM DEVELOPERS, THERE WAS NO OTHER EVIDENCE TO SHOW THAT ASSESSEE HAD IN FACT PAID ANY ON MONEY FOR P URCHASE OF FLAT. HE RELIED UPON THE DECISION HON'BLE BOMBAY HIGH COURT IN THE CASE OF ADDITIONAL COMMISSIONER OF INCOME TAX VS. MISS MANG ESHKAR (1974) 97 ITR 696 (BOM), WHEREIN IT WAS HELD AS UNDER: 3. IN OUR VIEW, THE QUESTION HAS BEEN FRAMED BY TH E DEPARTMENT SO AS TO GIVE IT A COLOUR OF A QUESTION OF LAW, FOR, IN OUR VIEW, HAVING REGARD TO THE MANNER IN WHICH THE TRIBUNAL HAS DEALT WITH THE SAI D ENTRIES, IT CANNOT BE SAID THAT THE TRIBUNAL HAS IGNORED THE ENTRIES IN T HE LEDGER OF VASU FILMS RELATING TO THE SO-CALLED PAYMENTS MADE BY THE FIRM TO THE ASSESSEE. IN FACT, THE TRIBUNAL HAS DISCUSSED THESE ENTRIES APPE ARING IN THE LEDGER OF VASU FILMS AND HAS GIVEN SUBSTANTIAL REASONS AS TO WHY IT WAS NOT INCLINED TO ACCEPT THE ENTRIES AS RELIABLE ENTRIES FOR ACCEPTING THE CASE OF THE DEPARTMENT. INTER ALIA, IT POINTED OUT THAT THE LEDGER CONTAINING THE SAID ENTRIES HAD NOT BEEN PRODUCED BEFORE IT, THAT NO CORRESPONDING ENTRIES WERE THERE IN THE DAY-BOOK OF THE RELEVANT PERIOD AND THAT VASU FILMS DID NOT RELY ON THIS LEDGER IN THE COURSE OF ITS OWN ASSESSMENT PROCEEDINGS BUT FOR ITS OWN ASSESSMENT PROCEEDINGS DIFFERENT SET OF BOOKS HAD BEEN RELIED UPON AS GENUINE SET OF BOOKS. AS REGARDS THE EVIDENCE OF THE TWO WITNESSES ON WHICH RELIANCE WAS PLACED BY THE DEPARTMENT, THE TRIBUNAL HAS POINTED OUT THAT SO FA R AS N. VASUDEV MENON WAS CONCERNED, HE HAD NO PERSONAL KNOWLEDGE O F THE ACTUAL PAYMENTS MADE TO THE ASSESSEE AND, THEREFORE, HIS E VIDENCE COULD NOT CARRY THE CASE OF THE DEPARTMENT ANY FURTHER AND SO FAR AS THE BOMBAY MANAGER, C. S. KUMAR, WAS CONCERNED IT CAME TO THE CONCLUSION THAT THOUGH HE PURPORTED TO SAY THAT HE HAD MADE THE PAY MENTS IN 'BLACK' TO THE ASSESSEEPAYMENTS CORRESPONDING TO THE ENTRIES TO BE FOUND IN THE ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 5 - LEDGERHIS EVIDENCE SUFFERED FROM SERIOUS INFIRMITI ES, WHICH HAVE BEEN POINTED OUT BY THE TRIBUNAL IN ITS REASONS. IT POIN TED OUT THAT AS THE BOMBAY MANAGER HE USED TO RECEIVE AMOUNTS FROM MADR AS FROM OUT OF WHICH HE USED TO MAKE DISBURSEMENTS IN BOMBAY BUT H E MAINTAINED NO ACCOUNT IN RESPECT OF THE SAME WHICH MADE IT DIFFIC ULT TO RELY ON HIS EVIDENCE. THE OTHER SERIOUS INFIRMITIES IN HIS EVID ENCE ARE TO BE FOUND IN PARAGRAPH 7 OF THE TRIBUNAL'S ORDER. MR. JOSHI FOR THE DEPARTMENT HAD ALSO MAINLY RELIED UPON THIS EVIDENCE AND DID NOT P RESS THE OTHER EVIDENCE WHICH WAS OF A GENERAL CHARACTER. HOWEVER, HAVING REGARD TO THE REASONS WHICH HAVE BEEN GIVEN BY THE TRIBUNAL F OR DISBELIEVING THE TWO WITNESSES AND FOR REJECTING THE ENTRIES THAT WE RE FOUND IN THE LEDGER OF VASU FILMS, WE FEEL THAT THE CONCLUSION REACHED BY THE TRIBUNAL PURELY RESTS ON THE APPRECIATION OF EVIDENCE AND NO QUESTI ONS OF LAW ARISE. 4. MR. JOSHI TRIED TO URGE BEFORE US THAT IN PARAGR APH 5 OF ITS ORDER THE TRIBUNAL HAS FOUND FAULT WITH THE ENTRIES APPEARING IN THE LEDGER ON THE GROUND THAT THERE WERE NO CORRESPONDING ENTRIES IN THE DAY-BOOK OF THE FIRM COVERING THE SAME PERIOD AND THE TRIBUNAL FURT HER OBSERVED THAT NO ATTEMPT WAS MADE TO EXPLAIN THE ABSENCE OF RELEVANT ENTRIES IN THE DAY- BOOK AND FOR THAT REASON THE TRIBUNAL REJECTED THE ENTRIES IN THE LEDGER ON WHICH RELIANCE WAS PLACED. MR. JOSHI TRIED TO UR GE THAT, AFTER ALL, THE ENTRIES IN THE LEDGER WERE THE ENTRIES IN A BOOK WH ICH WAS NOT MEANT FOR BEING DISCLOSED TO THE IT AUTHORITIES BECAUSE IT CO NTAINED THE ENTRIES PERTAINING TO THE PAYMENT IN 'BLACK' AND THE DAY- B OOK FOR THE RELEVANT PERIOD THAT WAS AVAILABLE WAS A DAY-BOOK MEANT FOR BEING PRODUCED BEFORE THE TAXING AUTHORITIES AS IT CONTAINED ENTRI ES PERTAINING TO ALL LEGAL AND WHITE PAYMENTS AND NATURALLY IN SUCH DAY-BOOK N O CORRESPONDING ENTRIES WOULD BE FOUND. SO NO IMPORTANCE SHOULD HAV E BEEN ATTACHED BY THE TRIBUNAL TO THE ABSENCE OF A DAY-BOOK CONTAININ G THE CORRESPONDING ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 6 - ENTRIES. IN THE FIRST PLACE IT MUST BE POINTED OUT THAT THIS IS NOT THE ONLY REASON FOR REJECTING THE ENTRIES BUT THE TRIBUNAL H AS GIVEN OTHER SUFFICIENT REASONS FOR REJECTING THE SAME. BUT EVEN WITH REGAR D TO THIS REASON WHICH HAS BEEN GIVEN BY THE TRIBUNAL, THOUGH IT MAY BE CO NTENDED THAT SINCE THE ENTRIES IN THE LEDGER PERTAINED TO THE PAYMENTS IN 'BLACK' NO CORRESPONDING ENTRIES COULD BE FOUND IN THE DAY-BOO K WHICH WAS MEANT TO BE PRODUCED BEFORE THE IT AUTHORITIES, STILL THE FACT REMAINED THAT THE DAY-BOOK FROM OUT OF THE OTHER SET OF BOOKS (NOT IN TENDED TO BE PRODUCED) WHICH MUST HAVE CONTAINED THE CORRESPONDI NG ENTRIES WAS NOT AVAILABLE AND, IN THE ABSENCE OF THAT, MERE PRODUCT ION OF LEDGER ENTRIES WOULD BE OF NO AVAIL, AS THERE WOULD BE NO GUARANTE E ABOUT THE TRUTHFULNESS OR GENUINENESS OF THE ENTRIES IN THE L EDGER. MOREOVER, ENTRIES IN BOOKS OF ACCOUNT WHETHER IN DAY-BOOK OR IN THE LEDGERARE MERELY CORROBORATIVE EVIDENCE AND IN THE ABSENCE OF PROPER CORROBORATIVE EVIDENCE THE PRIMARY DIRECT EVIDENCE WOULD ALONE BE REQUIRED TO BE SCRUTINIZED AND THAT EVIDENCE IN THI S CASE CONSISTED OF THE TESTIMONY OF C. S. KUMAR AND THE EVIDENCE OF THAT W ITNESS WAS FOUND TO BE THOROUGHLY UNRELIABLE BY THE TRIBUNAL. AFTER ALL , THE ENTRIES IN THE DAY- BOOK OR THE LEDGER WOULD BE A CORROBORATIVE PIECE O F EVIDENCE AND ONCE THE DIRECT EVIDENCE OF THE PERSON WHO IS SAID TO HA VE MADE PAYMENTS IN 'BLACK' TO THE ASSESSEE IS DISBELIEVED, WE DO NOT T HINK THAT ANY VALUE COULD BE ATTACHED TO THE ENTRIES IN THE LEDGER OR T O THE ENTRIES IN THE DAY- BOOK EVEN IF ONE HAD BEEN PRODUCED. IN THE CIRCUMST ANCES, WE FEEL THAT THE QUESTIONS WHICH ARE SOUGHT TO BE REFERRED ARISE OUT OF A FINDING OF FACT RECORDED BY THE TRIBUNAL ON PURE APPRECIATION OF EVIDENCE. 7. HE ALSO RELIED ON THE DECISION OF AHMEDABAD BENCH O F THE TRIBUNAL IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. PRABHAT OIL MILLS (1995) 52 TTJ (AHD) 533, WHEREIN IT WAS HELD AS UND ER: ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 7 - THE AVERAGE YIELD IN THE CASE OF P WAS 13.33% IN C ASE OF COTTON SEED OIL AND 78.31% IN THE CASE OF COTTON SEED OIL CAKE. WHE REAS IN THE CASE OF THE ASSESSEE P THE AVERAGE YIELD IS 13.37% IN CASE OF COTTON SEED OIL AND IN THE CASE OF COTTON SEED OIL CAKE 80.61% WHICH IS HIGHER THAN THAT REFLECTED BY P. AS REGARDS THE ADDITION ON THE BASI S OF CERTAIN NOTINGS IN THE SEIZED DIARY, IT IS NOTED THAT EXCEPT RELYING O N THE ENTRIES IN THE SAID SEIZED BOOK THE ASSESSING OFFICER HAS NOT BROUGHT A NY CORROBORATIVE MATERIAL ON RECORD TO PROVE THAT SUCH SALES WERE MA DE TO H OUTSIDE THE BOOKS OF ACCOUNT. WHEN THE ASSESSEE CATEGORICALLY D ENIED OF HAVING MADE ANY SALES TO H EXCEPT THOSE RECORDED IN ITS BO OKS OF ACCOUNTS, THE ONUS WAS ON THE ASSESSING OFFICER TO PROVE WITH COR ROBORATIVE EVIDENCE THAT THE ENTRIES IN THE SAID SEIZED BOOK ACTUALLY R EPRESENTED THE SALES MADE BY THE ASSESSEE-FIRM TO H. MERE ENTRIES IN THE ACCOUNTS OF A THIRD PARTY WAS NOT SUFFICIENT TO PROVE THAT THE ASSESSEE HAD INDULGED IN SUCH TRANSACTIONS AS THERE WAS NO GUARANTEE THAT THE ENT RIES WERE GENUINE.- DECISION OF THE TRIBUNAL IN THE CASE OF PATEL OIL M ILLS & GINNING FACTORY (ITA NO. 803/AHD/99) FOLLOWED; ADDL. CIT VS. LATA M ANGESKAR (1974) 97 ITR 696 (BOM) RELIED ON; DECISION OF THE TRIBUNAL I N THE CASE OF RAJDEEP SALES AGENCY (ITA NO. 1837/AHD/1990) DISTINGUISHED 8. HENCE, IT WAS SUBMITTED THAT ONLY ON THE BASIS O F THE STATEMENT OF SHRI KETAN O. DER PARTNER OF M/S. OHM DEVELOPERS, N O ADDITION ON ACCOUNT OF ON MONEY CAN BE MADE IN THE HANDS OF T HE ASSESSEE. 9. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND VEHEMENTLY ARGUED IN SUPPORT OF THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS). 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, A SEARCH AND SEIZER OPERATION WAS CARRIED OUT AT THE BUSINESS PREMISES OF M/S. OHM DEVELOPERS DURING THE COURSE O F WHICH THE PARTNER OF THE FIRM SHRI KETAN O. DER ADMITTED THAT HE HAD RECEIVED RS.4,83,101/- UP TO 31.03.1999 FROM THE ASSESSEE FOR PURCHASE OF FLAT AS RECORDED IN THE SEIZED DOCUMENT ANNEXURE-B-2/26. THE LEARNED ASSESS ING OFFICER HAS ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 8 - FURTHER OBSERVED THAT DURING THE COURSE OF CROSS EX AMINATION, BY THE ASSESSEE SHRI KETAN O.DER HAS STATED THAT HE HAD RE CEIVED THE SUM OF RS.4,83,101/- FROM THE ASSESSEE. THE LEARNED ASSESS ING OFFICER TREATED THE SAID SUM OF RS.4,83,101/- AS ON MONEY PAID FOR PURCHASE OF FLAT AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE AS UNE XPLAINED INVESTMENT. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT THE ASSESSEE HAS SHOWN PAYMENT OF RS. 1,01,687/- TO M/S. OHM DEVELOPERS AND THE DIFFERENCE AMOUNT OF RS.3,81 ,414/- WAS NOT SHOWN IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASS ESSEE. THEREFORE, HE RESTRICTED THE ADDITION ON ACCOUNT OF ON MONEY TO RS.3,81,414/-. THE CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE IS THAT THE SEIZED DOCUMENT AT THE PREMISES OF M/S. OH M DEVELOPERS IS NEITHER IN THE HAND WRITING OF THE ASSESSEE OR ANY OF ITS PERSONS. THE SAME IS WRITTEN BY THE ACCOUNTANT OF M/S. OHM DEVEL OPERS. FURTHER, BESIDES THE SEIZED DOCUMENTS, THERE WAS NO OTHER CO RROBORATIVE EVIDENCE WHICH SHOWS THAT ASSESSEE HAS MADE PAYMENT OF ON MO NEY OF RS.3,81,414/- TO M/S. OHM DEVELOPERS FOR PURCHASE O F FLAT. THEREFORE, THE ADDITION MADE CANNOT BE SUSTAINED IN LAW. WE FIND T HAT IN THE INSTANT CASE THE ASSESSEE HAS PURCHASED ONE FLAT FROM M/S OHM DE VELOPERS IN WHICH CASE A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 29.10.99. IN THE COURSE OF THE SEARCH A BOOK MARKED AS B-2/26 WAS FO UND AND ON PAGE NO.78 OF THIS BOOK NAME OF THE ASSESSEE WAS WRITTE N AND AGAINST HIS NAME IT WAS WRITTEN AMOUNT RECEIVED UPTO 31-3-99 RS .4,83,101/-. FURTHER PARTNER OF M/S. OHM DEVELOPERS HAS IN HIS STATEMENT ADMITTED TO HAVE RECEIVED THIS AMOUNT FROM ASSESSEE IN RESPECT OF SA LE OF FLAT. HOWEVER, THE ASSESSEE HAS CLAIMED TO HAVE MADE PAYMENT OF RS .1,01,687/- ONLY UPTO 31-3-99 AND HAS CONSISTENTLY TAKEN THE STAND T HAT IT HAS NOT PAID ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 9 - BALANCE AMOUNT OF RS.3,81,414/- AS STATED IN THE SE IZED DOCUMENT. WE FIND THAT NO EVIDENCE COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT IN FACT THE ASSESSEE ONLY HAD PAID THE AMOUNT OF RS.3,81,414/- TO OHM DEVELOPERS. NO DOCUMENT CONTAINING SIGNATURE OF THE ASSESSEE OR HANDWRITING OF THE ASSESSEE TO CORROBORATE THE ABOV E MAKING OF PAYMENT BY THE ASSESSEE WAS FOUND DURING THE COURSE OF THE SEARCH. WE FIND THAT THE HON'BLE SUPREME COURT IN THE CASE OF K.P.VARGHE SE V. ITO [1981] ITR 597 HAD HELD THAT MERE SEIZURE OF NOTE BOOKS OR DOC UMENTS AT THE PERSONAL RESIDENCE OF AN EMPLOYEE WOULD NOT CONCLUD E THE ISSUE AGAINST THE EMPLOYER COMPANY THAT ON MONEY HAS BEEN RECEIVE D BY THE EMPLOYER COMPANY. THE ONUS OF PROVING THE CHARGING OF ON MON EY LIES ON THE DEPARTMENT. FURTHER THE AHMEDABAD BENCH OF THE TRIB UNAL IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. PRABHAT OI L MILLS (1995) 52 TTJ (AHD) 533, HAS HELD AS UNDER: THE AVERAGE YIELD IN THE CASE OF P WAS 13.33% IN C ASE OF COTTON SEED OIL AND 78.31% IN THE CASE OF COTTON SEED OIL CAKE. WHE REAS IN THE CASE OF THE ASSESSEE P THE AVERAGE YIELD IS 13.37% IN CASE OF COTTON SEED OIL AND IN THE CASE OF COTTON SEED OIL CAKE 80.61% WHICH IS HIGHER THAN THAT REFLECTED BY P. AS REGARDS THE ADDITION ON THE BASI S OF CERTAIN NOTINGS IN THE SEIZED DIARY, IT IS NOTED THAT EXCEPT RELYING O N THE ENTRIES IN THE SAID SEIZED BOOK THE ASSESSING OFFICER HAS NOT BROUGHT A NY CORROBORATIVE MATERIAL ON RECORD TO PROVE THAT SUCH SALES WERE MA DE TO H OUTSIDE THE BOOKS OF ACCOUNT. WHEN THE ASSESSEE CATEGORICALLY D ENIED OF HAVING MADE ANY SALES TO H EXCEPT THOSE RECORDED IN ITS BO OKS OF ACCOUNTS, THE ONUS WAS ON THE ASSESSING OFFICER TO PROVE WITH COR ROBORATIVE EVIDENCE THAT THE ENTRIES IN THE SAID SEIZED BOOK ACTUALLY R EPRESENTED THE SALES MADE BY THE ASSESSEE-FIRM TO H. MERE ENTRIES IN THE ACCOUNTS OF A THIRD PARTY WAS NOT SUFFICIENT TO PROVE THAT THE ASSESSEE HAD INDULGED IN SUCH TRANSACTIONS AS THERE WAS NO GUARANTEE THAT THE ENT RIES WERE GENUINE.- DECISION OF THE TRIBUNAL IN THE CASE OF PATEL OIL M ILLS & GINNING FACTORY (ITA NO. 803/AHD/99) FOLLOWED; ADDL. CIT VS. LATA M ANGESKAR (1974) 97 ITR 696 (BOM) RELIED ON; DECISION OF THE TRIBUNAL I N THE CASE OF RAJDEEP SALES AGENCY (ITA NO. 1837/AHD/1990) DISTINGUISHED ITA NO.2695 /AHD /2006 M/S.JAWAHARBHAI ATMARAM HATHIWALA ASST.YEAR -1999-2000 - 10 - 11. WE FIND THAT EVEN AT TIME OF CROSS EXAMINATION BY THE ASSESSEE THE PARTNER OF M/S. OHM DEVELOPERS COULD NOT PRODUCE AN Y EVIDENCE THAT THE AMOUNT WRITTEN IN THE SEIZED DOCUMENT WAS IN FACT R ECEIVED FROM THE ASSESSEE. IN THE INSTANT CASE AS THE ASSESSEE HAS C ATEGORICALLY DENIED TO HAVE MADE ANY PAYMENT IN EXCESS OF RS.101,687/- UPT O 31-3-99 IN RESPECT OF PURCHASE OF FLAT IN OUR CONSIDERED VIEW THE SAID DENIAL CANNOT BE BRUSHED ASIDE WITHOUT BRINGING ANY POSITIVE MATERIA L ON RECORD. MERELY RECORDING MADE BY A THIRD PARTY OR STATEMENT OF A T HIRD PARTY CANNOT BE TREATED AS SO SACROSANCT SO AS TO READ AS A POSITIV E MATERIAL AGAINST THE ASSESSEE. IN VIEW OF THE ABOVE IN OUR CONSIDERED VI EW THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING ADDITION TO THE EXTENT OF R S.3,81,414/- IN THE HANDS OF THE ASSESSEE. WE THEREFORE DELETE THE ADDITION O F RS.3,81,414/- AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED AT THE CLOSE OF HEARING IN THE PRE SENCE OF PARTIES IN THE COURT ON 9/10/2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 09/10/2009 PARAS# COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VII, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD