PR COMMISSIONER OF INCOME TAX JAIPUR-II vs. MS COMPUCOM TECHNOLOGIES PVT LTD

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 85/2018 Pr. Commissioner Of Income Tax, Jaipur-Ii, Jaipur Raj ----Appellant Versus M/s Compucom Technologies Pvt. Ltd., 5-A, Tilak Bhawan, Tilak Marg, C-Scheme Jaipur Raj ----Respondent For Appellant(s) : Mr. Prateek Kedawat for Mr. R.B. Mathur HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 13/03/2018 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has allowed the appeal of the assessee for statistical purposes and remitted the matter back to the AO. 2. Counsel for the appellant has framed following substantial questions of law:- “(i) Whether in the facts and circumstances of the case the ITAT was justified in law in restoring back to the Assessing Officer, the issue of undisclosed income of Rs.97.30 lacs being payment in cash to Shri Hanuman Sahai (Seller) on account of purchase of land. (ii) Whether in the facts and circumstances of the case the ITAT has not acted perversely that statement of the Director during survey

(2 of 4) [ITA-85/2018] admitting to out of books payment in cash of Rs.97.30 lacs and the documents recovered during the survey containing hand written receipt of amount in cash by the seller Shri Hanuman Sahai in the presence of witness is not sufficient avidence of the payment of undisclosed cash of Rs.97.30 lacs. (iii) Whether onus was on the department to prove the correctness of the contents of the documents and thereby provide opportunity to the assessee to examine Hanuman Sahai, the seller or in the circumstances of the case the failure was on the part of the assessee to disprove the correctness of the document during assessment proceeding. (iv) Whether in the facts and circumstances of the case the ITAT was justified in law in restoring the matter back to the Assessing Officer despite entire material and evidence was on record. 3. The facts of the case are that a survey was conducted on 14.9.2009 at the business premises of the company. During the survey, an agreement to sell dt. 8.2.2007 signed between the seller (Sh. Hanuman Sahai Yadav) and the purchaser (the assessee company) through its Director (Sh. Surender Kumar Surana). As per agreement sale consideration of the agricultural land was fixed at Rs.157.50 lacs, out of which Rs.97.30 lacs was paid in cash to the seller by the Director of the assessee company on behalf of assessee company. Sh. Surender Kumar Surana, Director had admitted in the statement recorded during the survey that cash of Rs.97.30 lacs was paid from undisclosed

(3 of 4) [ITA-85/2018] sources/outside of the books of accounts of the assessee company for purchase of land. The Assessing Officer after discussing in details that the Surrender was genuine during survey and subsequent retraction only an after thought, added Rs.97.30 lacs to the income of the assessee company. 4. Counsel for the appellant has taken us to the order of AO and contended that AO after taking into consideration has added income of Rs.97,30,000/- in view of total sale consideration of Rs.157.50 lacs which was confirmed by the CIT(A). However, the tribunal has committed serious error in allowing the appeal of the assessee for statistical purposes. 5. While considering the case, the tribunal has observed as under:- “2.4 In this case, it is mainly noted that the ld. CIT(A) has confirmed the addition of Rs.97.30 lacs on the basis of receipt in hand given by the seller on the agreement to sell signed by the seller Sh. Hanuman Sahai Yadav and Sh. Surendra Kumar Surana. The facts of the case shows that the statement of Sh. Surendra Kumar Surana was recorded during the survey operation which was retracted by him within three months from the date of the survey. The assessee was not provided the opportunity to examine/cross examine Sh. Hanuman Sahai Yadav with regard to payment as written in the agreement which has been made Annexure-2 to the order of the AO. In our considered view and in the interest of equity and justice, we found it appropriate to restore the issue to the file of the AO to be decided denovo after providing adequate opportunity to cross examine Sh. Hanuman Sahai Yadav. Thus the appeal of the assesee is allowed for statistical purposes.”

(4 of 4) [ITA-85/2018] 5.1 Counsel for the appellant has relied on the Ikrarnama and Statement recorded which has been reproduced by the AO which we are not reproducing for the sake of convenience. 6. In our considered opinion, the matter is remitted back with a view to enable assessee to cross examine Hanuman Sahai Yadav to prove his case. 7. Therefore, no substantial question of law arises. The appeal stands dismissed. (VIJAY KUMAR VYAS),J (K.S.JHAVERI),J Brijesh 83.