SATRA PROPERTY DEVELOPERS P. LTD, MUMBAI V. ACIT CEN CIR -33, MUMBAI

ITA 6377/MUM/2009

• Counselvise Citation: 637719914 RSA 2009
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 01-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Search and seizure
• Section: 132

Judgement Text

1 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI H HH H BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI J SUDHAKAR REDDY, AM J SUDHAKAR REDDY, AM J SUDHAKAR REDDY, AM J SUDHAKAR REDDY, AM & SHRI & SHRI & SHRI & SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ITA NO. ITA NO. ITA NO. ITA NO. 6377/MUM/2009 6377/MUM/2009 6377/MUM/2009 6377/MUM/2009 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2006 2006 2006 2006- -- -07 0707 07) )) ) SATRA PROPERTY DEVELOPERS P LTD DEV PLAZA 2 ND FLOOR OPP ANDHERI FIRE STN S V ROAD, ANDHERI (W) MUMBAI 56 VS THE ASST COMMR OF IN COME TAX CEN.CIR 33, MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AAACH 9763L AAACH 9763L AAACH 9763L AAACH 9763L A SSESSEE BY SHRI VIJAY MEHTA REVENUE BY SHRI GOLI SRINIWAS RAO P PP PER ER ER ER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 24.9.2009 OF THE CIT(A) -41, MUMBAI RELATING TO ASS ESSMENT YEAR 2006-07. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1) THE LD CIT(A) HAS ERRED IN LAW AND IN FACTS IN C ONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 2) THE LD CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADHOC DISALLOWANCE OF SUM OF RS. 2,19,129/- BEING 20% OF TRAVELLING EXPENSES AMOUNTING TO RS. 10,95,643/- 3) THE LD CIT(A) HAS ERRED IN LAW AND IN FACTS IN C ONFIRMING THE ADDITION ON ACCOUNT OF ALLEGED UNACCOUNTED SALES AMOUNTING TO R S. 16,01,300/- BASED ON NOTING MADE ON PAGE NO.34 OF ANEXUREA-3(1-30) SE IZED FROM THE OFFICE PREMISES AT VASUNDHARA, VILE PARLE (WEST) MUMBAI 4) THE LD CIT(A) ERRED IN LAW AND IN FACTS IN CONFI RMING THE ADDITION ON ACCOUNT OF ESTIMATED ALLEGED UNACCOUNTED SALES AMOU NTING TO RS. 9 LACS BASED ON NOTHINGS MADE ON PAGE NO.5 OF ANNEXURE A2( 1-7) SEIZED FROM THE OFFICE PREMISE AT HIRA KUNJ, MUMBAI 5) THE APPELLANT CRAVES OF YOUR HONOURS TO ADD, ALT ER, MODIFY AMEND AND/OR DELETE ALL OR ANY OF THE ABOVE GROUNDS OF AP PEAL. 2 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) 3 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE HA S STATED THAT THE ASSESSEE DOES NOT PRESS GROUND NOS 1 & 5 BEING GEN ERAL IN NATURE AND THE SAME MAY BE DISMISSED. THE LD DR HAS NO OBJECTION, IF THE GROUND NOS. 1 & 5 ARE DISMISSED AS PRAYED BY THE LD AR OF THE ASSESSEE. ACCORDINGLY, WE DISMISS THE GROUND NOS 1 & 5 BEING NOT PRESSED BECAUSE THE SAME ARE GENERAL IN NATURE. FURTHER, GROUND NO.1 & 5 BEING GENERAL IN NATURE, N O SPECIFIC FINDINGS/ADJUDICATION IS REQUIRED. 4 GROUND NO. 2 IS REGARDING 20% DISALLOWANCE OF TRA VEL EXPENSES. 4.1 THE ASSESSEE DEBITED RS. 10,95,643/- UNDER THE HEAD TRAVELLING EXPENSES. THE ASSESSING OFFICER DISALLOWED 20% OF THE EXPENSES AMOUNT TO RS. 2,19,129/- ON THE GROUND THAT THE ASSESSEE, THO UGH FURNISHED SOME EVIDENCES; BUT HAS NOT EXPLAINED/FURNISHED THE DET AILS REGARDING THE PURPOSE OF TRAVEL AND PERSONS, WHO HAVE UNDERTAKEN THE TRAVEL. 4.2 ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF T HE ASSESSING OFFICER AND POINTED OUT THAT THE DETAILS FILED BY THE ASSESSEE DOES NOT SHOW THE NAMES OF THE PERSONS VISITED TO CHINA ON 27.6.2005. 5 BEFORE US, THE LD AR OF THE ASSESSEE HAS REFERRED THE PAPER BOOK PAGE NO.1 AS WELL AS PAGE NO.3 AND SUBMITTED THAT ON 27. 6.2005 THE FIRST ENTRY IS REGARDING THE PURCHASE OF FOREIGN CURRENCY BUT THE TRAVEL WAS UNDERTAKEN ON 6.7.2005 BY MR P SATRA, MR KOTHARI, V BHOLE, K GAL A. HE HAS THEN POINTED OUT THAT AS PER THE DETAILS OF TRAVEL UNDERTAKEN BY THE ASSESSEES PERSONS AT PAGE NO.1 OF THE PAPER BOOK, THE NAME, PLACE AND PURPOSE OF VISIT HAS BEEN DULY EXPLAINED AND MENTIONED BY THE ASSESSEE. 3 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) 5.1 THE LD DR, ON THE OTHER HAND, HAS POINTED OUT T HAT FROM THE DETAILS AT PAGE NO.3, CERTAIN INFORMATION ARE MISSING; THEREFO RE, THE ASSESSEE DID NOT FURNISH THE COMPLETE DETAILS IN SUPPORT OF THE CLAI M. 6 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERUS ED THE RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER DISALLOW ED 20% OF THE TRAVEL EXPENSES ON THE GROUND THAT THE ASSESSEE DID NOT FURNISH THE DETAILS REGARDING THE PURPOSE OF THE VISIT AND THE NAME OF THE PERSONS. THE CIT( A) HAS ALSO POINTED OUT THAT AS REGARDS THE TRAVEL UNDERTAKEN ON 27.6.2005, THE NA ME OF THE PERSONS HAS NOT BEEN MENTIONED. IT IS EVIDENT FROM THE DETAILS AT PAGE NO.1 AND 3 OF THE PAPER BOOK THAT ON 27.6.2005 THE FIRST ENTRY IS REGARDING THE PURCHASE OF FOREIGN CURRENCY FOR CHINA VISIT; WHEREAS THE ACTUAL DATE O F TRAVEL IS 6.7.2005. THE PLACE AND THE PURPOSE OF VISIT WERE ALSO EXPLAINED BY THE ASSESSEE AS THE DIRECTORS VISIT ALONG WITH AN ARCHITECTURE AND INTERIOR DECOR ATOR FOR NEW DESIGN AND TECHNOLOGY FOR MALLS. THE ANOTHER ENTRY ON 15.9.20 05 ALSO NOT SHOWING THE NAME OF THE PERSONS AS PER THE DETAILS AT PAGE 3 OF THE PAPER BOOK; WHEREAS WE FIND THAT FROM THE DETAILS THAT THE VISIT ON 15.9 .2005 AND 16.9.2005 IS UNDERTAKEN FROM MUMBAI TO BANGALORE AND RETURN V ISIT FROM BANGALORE TO MUMBAI. THEREFORE, IT WAS A RETURN TICKET ENTRY AND THE COMBINED DETAILS ARE GIVEN AGAINST THE ENTRIES OF 16.9.2005. THIS IS M ORE CLEARLY EXPLAINED IN THE DETAILS GIVEN AT PAGE NO.1 OF THE PAPER BOOK AS UND ER: DATE NAME OF THE PARTY AMOUNT STATION FROM TO PASSENGER NAME PURPOSE 9/15/200 5 9/16/2005 T RAVEL WAVE INC TRAVEL WAVE INC 5,466.00 5,466.00 MUMBAI BANGALORRE- MUMBAI PRAFUL N SATRA. MR M SOMMIYA MEETING WITH BRANDS FOR LEASING PURPOSE 4 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) FROM THE ABOVE DETAILS, IT SHOW THAT THE VISIT IS BY RETURN TICKET MUMBAI BANGALORE - MUMBAI BY MR PRAFUL N SATRA AND MR M SOMIYA AND THE PURPOSE OF THE VISIT HAS BEEN SHOWN AS MEETING WITH BRANDS FOR LEASING PURPOSE. THUS, IT IS CLEARLY MANIFEST FROM THE DETAILS THAT THE VISITS W ERE UNDERTAKEN FOR THE PURPOSE OF BUSINESS AND THE NAMES OF THE PERSONS WERE ALSO GIVEN IN THE DETAIL. IN VIEW OF THE FACT THAT ALL THE DETAILS WERE AVAILABLE BEF ORE THE LOWER AUTHORITIES, WE ARE OF THE OPINION THAT THE DISALLOWANCE OF 20% IS NOT JUSTIFIED AND THE SAME IS DELETED. 7 NEXT ISSUE RELATES TO ADDITION ON ACCOUNT OF UNAC COUNTED SALES OF RS.16,01,300/-. 7.1 THERE WAS A SEARCH AND SEIZURE OPERATION U/S 13 2 OF THE ACT CONDUCTED ON 20.4.2006 AT THE RESIDENTIAL PREMISES OF THE DIRE CTOR OF THE ASSESSEE AND AT THE OFFICE PREMISES OF THE ASSESSEE GROUP CONCERN. DUR ING THE SEARCH, A LOOSE PAPER MARKED AS PAGE 34 OF ANNEXURE A3 WAS SEIZED WHICH RELATES TO SHOP L-267 AND IT CONTAINS THE BREAKUP OF CASH COMPONENT AND CHEQU E COMPONENT, AS UNDER: CASH RS. 16,01,300/- CHEQUE RS. 13,02,000/- 7.2 DURING THE COURSE OF INVESTIGATION, THE STATEME NT OF MR VELJI D GADA WAS RECORDED ON 16.6.2006. IN ANSWER TO QUESTION NO.9, MR VELJI HAS STATED THAT THE ABOVE MENTIONED JOTTINGS REFERS TO THE CHEQUE PA YMENT OF RS.13,02,000/- TOWARDS SALES PROCEEDS/BOOKING AMOUNT IN RESPECT OF SHOP NO.L-267 ALLOTTED IN FAVOUR OF SHRI DEEPAK VORA BY SATRA PROPERTY DEVELO PER PVT LTD ., THE ASSESSEE. AS REGARDS THE CASH OF RS. 16,01,300/-, IT WAS STAT ED THAT SHRI PRAFUL SATRA WHILE ON HIS WAY TO FURTHER REMOTE CENTRAL SUBURBS HAD L EFT THE CASH AMOUNT BELONGING TO SATRA PROPERTY DEVELOPER PVT LTD WITH INSTRUCTIO N TO BE SENT TO HO WHICH WAS 5 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) DULY COMPILED BY ME . THE ASSESSING OFFICER, AFTER CONSIDERING THE EXP LANATION AND THE STATEMENT RECORDED DURING THE INTERROGATION AND AFFIDAVIT OF SHRI DEEPAK VORA PURCHASER OF THE SHOP - FILED BY THE ASSESSE E HELD THAT CONSIDERATION FOR SALE OF SHOP- L 267 WAS RECEIVED PARTLY IN CASH AND PARTLY IN CHEQUE AND THE ASSESSEE HAS NOT RECORDED CASH COMPONENT; THEREFORE , CASH INVOLVED OF RS. 16,01,300/- WAS TREATED AS UNACCOUNTED SALE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 7.3 ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION MA DE BY THE ASSESSING OFFICER. 8 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT IN THE STATEMENT OF SHRI VELJI, HE HAS EXPLAINED THAT THE CASH WAS H ANDED OVER BY MR PRAFUL SATRA TO BE SENT THE SAME TO THE HEAD OFFICE AND THE CHEQ UE AMOUNT OF RS. 13,02,000/- WAS SALE CONSIDERATION FOR BOOKING IN RESPECT OF SHOP NO.L-267 ALLOTTED TO SHRI DEEPAK VORA. HE HAS FURTHER SUBMI TTED THAT THE AFFIDAVIT OF SHRI DEEPAK VORA WAS FILED BEFORE THE ASSESSING OFFICER WHEREIN HE HAS SOLEMNLY AFFIRMED THAT HE HAS PAID A SUM OF RS. 13,23,000/- AGAINST THE TOTAL SALE CONSIDERATION OF RS. 16,73,000/- FOR THE PURCHASE O F THE SAID SHOP. HE HAS CATEGORICALLY STATED THAT HE HAS NOT PAID ANYTHING OVER AND ABOVE THE SAID CONSIDERATION OF RS. 16,73,000/-. 8.1 THE LD AR HAS FURTHER CONTENDED THAT THE ASSESS ING OFFICER HAS NOT EXAMINED SHRI DEEPAK VORA; THEREFORE, THE AFFIDAVIT OF SHRI DEEPAK VORA HAS NOT BEEN CONTROVERTED AS THE ASSESSING OFFICER NEITHER SUMMONED NOR EXAMINED MR DEEPAK VORA. HE HAS FURTHER SUBMITTED THAT THE SEI ZED DOCUMENT IS ONLY THE DETAIL OF THE AMOUNT TO BE SENT TO THE HEAD OFFICE AND IT DOES NOT SHOW ANYTHING TO CONCLUDE THAT THE AMOUNT WAS WRITTEN AS SALE CON SIDERATION IN RESPECT OF SHOP L 267. THE LD AR OF THE ASSESSEE FURTHER SUB MITTED THAT IN THE ABSENCE OF 6 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) ANY CORROBORATIVE EVIDENT TO PROVE THAT THE ASSESSE E RECEIVED ON-MONEY, THE ADDITION MADE ON THIS ACCOUNT IS NOT JUSTIFIED. TH E LD AR HAS EMPHASISED THAT WHEN THE ASSESSEE HAS FILED AFFIDAVIT OF THE PURCHA SER, WHICH IS NOT CONTROVERTED BY THE ASSESSING OFFICER, THEN, THE AFFIDAVIT IS A SUFFICIENT EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE AND THE REVENUE HAS FAILE D TO PROVE THAT THE NOTING IN THE LOOSE PAPER SEIZED IS TOWARDS ON-MONEY RECEIVED AS PART OF SALE CONSIDERATION OF SHOP L 267. THE MAIN CONTENTION OF THE LD AR OF THE ASSESSEE THAT THE CASH AMOUNTING TO RS. 16,01,300/- WAS THE ASSESSES OWN MONEY AND HANDED OVER TO MR VELJI BY SHRI MR PRAFUL SATRA TO BE SENT TO HO. 8.2 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE SEIZED DOCUMENT IS NOT A DUMP PAPER BUT CONTAINS ALL THE DETAILS REGA RDING THE SHOP L-267 AND DULY SIGNED BY MR VELJI. HE HAS FURTHER SUBMITTED THAT T HE SEIZED DOCUMENT NOT ONLY CONTAIN THE DETAILS OF CONSIDERATION IN TWO PARTS ONE IS CASH AND ANOTHER IS CHEQUE BUT ALSO CONTAINS IN THE WRITING OF MR VELJI ABOUT GIVING ALLOTMENT TO THE PARTY ON GETTING THE SIGNATURE OF SHRI PAPPUSIR A FTER RECEIVING THE PAYMENTS WRITTEN ABOVE. THUS, IT IS CLEAR THAT THE AMOUNT WRITTEN IN THE SIZED DOCUMENT NO.34 IS NOTHING BUT TOWARDS THE SALE CONSIDERATION AND IT WAS CLEARLY INSTRUCTED IN WRITING WITH SIGNATURE THAT AFTER RECEIVING THE SAID AMOUNT, ALLOTMENT TO THE PARTY BE GIVEN. HE RELIED ON THE ORDERS OF THE AUTH ORITIES BELOW. 9 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERUS ED THE RELEVANT MATERIAL ON RECORD. THE QUESTION NO.9 AND THE ANSWE R REGARDING THE SEIZED DOCUMENT HAS BEEN REPRODUCED AT PAGES 19 & 20 OF TH E PAPER BOOK, WHICH READ AS UNDER: Q NO.9 I AM SHOWING YOU A LOOSE PAPER FILE CON TAINING 130 PAGES MARKED AND SEIZED DURING THE COURSE OF SEARCH ON 22 .4.2006 AT THE OFFICE PREMISES OF M/S PRIME DEVELOPERS AT 2 ND & 3 RD FLOOR, VASUNDHARA APARTMENT, OPPOSITE SONY MONY, S V ROAD, VILE PARLE (W) MUMBAI. YOUR 7 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) ATTENTION IS DRAW TO PAGE NUMBER 34 THEREOF WHICH I S SIGNED BY YOU AND CONTAINING THE FOLLOWING ENTRIES AND NOTINGS: SHOP L 267 A 478 SFT 16,01300 CASH (RECEIVED) 1302000 CHEQUE WRITTEN IN GUJARATI GIVE THE ALLOTMENT TO THE PAR TY ON GETTING THE SIGNATURE OF SHRI PAPPUSIR AFTER RECEIVING THE PAYM ENTS WRITTEN ABOVE AND SIGNED BY SHRI VELJI, YOUR EMPLOYEE AT YOUR BHANDUP SITE.. SD/ YOU MAY GO THROUGH THE SAME AND GIVE YOUR ANSWER ? ANS: THE ABOVE MENTIONED JOTTING REFERS TO CHEQUE P AYMENT OF RS. 13,02,000/- TOWARDS SALE PROCEEDS/BOOKING AMOUNT I N RESPECT OF SHOP NO.L267 ALLOTTED IN FAVOUR OF SHRI DEEAK VORA BY SA TRA PROPERTY DEVELOPER PRIVATE LTD. WITH REFERENCE TO JOTTING MENTIONED AS 16,01,300/- CASH SHRI PRAFULBHAI SATRA WHILE ON HIS WAY TO FURTHER REMOTE CENTRAL SUBURBS HE HAD LEFT THE CASH AMOUNT BELONGING TO STARA PROPERTY DE VELOPERS PVT LTD WITH INSTRUCTION TO BE SEND TO HEAD OFFICE, WHICH WAS DU LY COMPLIED BY ME. 9.1 IT IS CLEAR FROM THE SEIZED DOCUMENT, WHICH IS PLACED AT PAGE 15 OF THE PAPER BOOK, REPRODUCED IN QUESTION NO.9 ABOVE THA T CLEAR CUT INSTRUCTION HAS BEEN GIVEN BY MR VELJI AND INSTRUCTED IN GUJARATI, WHICH IS TRANSLATED IN ENGLISH THAT AFTER RECEIVING THE SAID PAYMENT AND GETTING T HE SIGNATURE OF PAPPUSIR, THE ALLOTMENT BE GIVEN TO THE PERSON. 9.2 WE FURTHER NOTE THAT THE SEIZED DOCUMENT ALSO C ONTAINS NOTE AGAINST THE AMOUNT WRITTEN AS RECEIVED. WHEN THE FIGURE IS WR ITTEN, WHICH IS AFTER WRITING THE DETAILS OF SHOP L 267 ADMEASURING 478 SQ.FT THEN IT HAS BEEN CLEARLY ESTABLISHED THAT THE SAID AMOUNT RELATES TO THE SAL E CONSIDERATION OF THE SAID SHOP. THE NOTING IN THE FORM OF INSTRUCTION HAS FUR THER ESTABLISHED THAT AFTER RECEIVING THE SAID AMOUNT, ALLOTMENT MAY BE GIVEN. THEREFORE, IT IS APPARENT THAT THE EXPLANATION PUT FORTH BY THE ASSESSEE IS T OTALLY CONTRARY TO THE SEIZED DOCUMENT, WHICH IS SELF EXPLANATORY AND UNAMBIGUOUS . 8 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) 9.3 THE ASSESSEES EXPLANATION REGARDING THE CASH A MOUNT OF RS. 16,01,300/- HANDED OVER BY SHRI PRFFULA SATRA IS NOT ACCEPTABLE AND CONTRARY TO ALL THE PROBABILITIES/INFERENCES THAT CAN BE DRAWN FROM TH E CONTENTS OF THE SEIZED DOCUMENT. WHEN IT IS CLEARLY MENTIONED THAT AFTER RECEIVING THE AMOUNT AS WRITTEN ABOVE, ALLOTMENT BE GIVEN THEN HOW THE FIGU RES WRITTEN IN THE SEIZED DOCUMENT CAN BE THE AMOUNT HANDED OVER BY MR PRAFLA SATRA AND THEREFORE, CLAIM OF THE ASSESSEE THAT THE SAME IS ASESSEES O WN MONEY, CANNOT BE ACCEPTED. IT IS TO BE NOTED THAT THERE IS A DIRECT MEANINGFUL INTER CONNECTION OF SHOP L 267, THE AMOUNT WRITTEN AND NOTING IN THE SE IZED DOCUMENT. ALL THIS CLEARLY INDICATES AND GOES TO PROVE THAT THE ENTIRE SEIZED DOCUMENT IS ONLY WITH RESPECT TO THE SALE CONSIDERATION OF SHOP L267 ADME ASURING 478 SQF.T. THEREFORE, WE DO NOT FIND ANY MERIT IN THE ARGUMENT S AND EXPLANATION OF THE ASSESSEE FOR THIS ISSUE. ACCORDINGLY, WE CONFIRM TH E ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE. 10 NEXT ISSUE RELATES TO ADDITION OF RS 9 LACS ON A CCOUNT OF SALE AS PER THE SEIZED DOCUMENT NO.5. OF ANNEXURE A2. 10.1 THE LOOSE PAPER MARKED AS PAGE 5 OF ANNEXURE A WAS SEIZED DURING THE SEARCH, WHICH IS A LETTER ADDRESSED TO THE ASSESSEE BY SMT RAMAVATI B GUPTA & SHRI BAHULAL GUPTA IN RESPECT OF THE PURCHASE OF SHOP F 163 AT DREAMS MALL AT BHANDUP . THE SAID LETTER STATES THAT THERE IS A CHEQUE PAYMENT AS WELL AS CASH PAYMENT INVOLVED IN THE TRANSACTION. SINCE NO FIGURE OF SALE/PURCHASE CONSIDERATION WAS WRITTEN IN THE SEIZED DOCUMENT, T HE ASSESSING OFFICER APPLIED RATIO AS PER THE SEIZED DOCUMENT MARKED 34 REGARDIN G SHOP NO. L267 AND 9 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) COMPUTED RS. 9 LACS AS CASH COMPONENTS IN THE SALE CONSIDERATION OF SHOP NO.F 163. THE ASSESSEE FILED AFFIDAVIT OF THE PURCHASE S HRI BABULAL GUPTA IN SUPPORT OF ITS CLAIM THAT NO CASH CONSIDERATION WAS RECEIVED I N RESPECT OF SHOP F 163. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE S AME AND ACCORDINGLY MADE THE ABOVE ADDITION OF RS. 9 LACS BEING UNACCOUNTED SALE CONSIDERATION. 11 ON APPEAL, THE CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON THIS ACCOUNT. 12 WE HAVE CONSIDERED THE RIVAL ARGUMENTS AND PERUS ED THE RELEVANT MATERIAL ON RECORD. THE SEIZED DOCUMENT MARKED 5, IS A LETTER WRITTEN BY THE PURCHASER TO THE ASSESSEE IN RESPECT OF SHOP F 163. IT WAS STATED THAT AS PER THE DEAL/TALK BETWEEN THE PARTIES, SOME CASH AND CHEQUE PAYMENT WAS REQUIRED TO BE MADE AND THE BALANCE PAYMENT HAS TO BE MADE BY T HE PURCHASER BY BANK LOAN. THEREFORE, IT WAS REQUESTED VIDE THE SAID LET TER FOR THE REGISTRATION IN THE NAME OF THE ASSESSEE AS THE PAYMENT HAS TO BE MADE BY OBTAINING LOAN FROM SBI. THOUGH, THERE WAS SOME MATERIALS TO SHOW THAT THE PARTIES AGREED FOR THE PAYMENTS BY CHEQUE AND SOME PAYMENT THROUGH CASH; B UT IT IS NOT CLEAR FROM THE SEIZED DOCUMENT THAT WHAT IS THE EXACT AMOUNT O F CASH INVOLVED IN THE SAID TRANSACTION. THEREFORE, THE ADDITION BY THE ASSESSI NG OFFICER IN QUANTIFYING THE CASH COMPONENT IS PURELY ON THE BASIS OF ESTIMATE A S PER THE SEIZED DOCUMENT IN RESPECT OF SHOP L 267. THOUGH, PRIMA FACIE THERE W AS AN EVIDENCE TO SUSPECT THAT SOME ON-MONEY WAS INVOLVED IN RESPECT OF SALE OF SHOP F 163 BUT UNTIL AND UNLESS THE ASSESSING OFFICER BRING SOME MATERIAL T O PROVE THAT WHAT AMOUNT OF CASH COMPONENT WAS INVOLVED IN THE SAID TRANSACTION , THE ADDITION CANNOT BE MADE PURELY ON ESTIMATION BASED ON SOME OTHER TRA NSACTION. THEREFORE, IN THE ABSENCE OF CORROBORATIVE EVIDENCE TO ESTABLISH THAT THE ASSESSEE RECEIVED 9 LACS 10 ITA NO. 6377/MUM/2009 (ASST YEAR 2006-07) AS CASH CONSIDERATION OUT OF BOOKING, THE ADDITION IS NOT JUSTIFIED. SINCE THE SEIZED DOCUMENT DOES NOT EXHIBIT ANY SUCH AMOUNT OF CASH CONSIDERATION. WE THEREFORE, DELETE THE ADDITION MADE BY THE ASSESSIN G OFFICER ON THIS ISSUE. 13 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THE 15 TH , DAY OF JUNE 2011. SD/- SD/- ( (( ( J SUDHAKAR REDDY J SUDHAKAR REDDY J SUDHAKAR REDDY J SUDHAKAR REDDY ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 15 TH , JUNE 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI