IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 498 OF 2017 Pr. Commissioner of Income Tax Central (1). Appellant. Versus Hassan Ali Khan. Respondent. Mr. Suresh Kumar, advocate for appellant. CORAM : AKIL KURESHI & S.J. KATHAWALLA, JJ. DATE : 29TH JULY, 2019. P.C.: 1 Heard learned Counsel for parties. 2 appeal is filed by Revenue to challenge Judgment of Income Tax Appellate Tribunal. Following question is presented for our consideration : Whether on facts and circumstances of this case and in law, ITAT was correct in deleting addition of Rs. 739.04 lacs stating that payment by assessee of amount of Rs. 739.04 lacs had not been established from seized material and therefore no addition could be made on this account ignoring fact that assessee never provided details of transaction either during course of assessment proceedings or thereafter and assessee was in exclusive knowledge ? Talwalkar 2 23.itxa498.17.doc 3 issue was examined by Tribunal in following manner : 103. Ground 23 is for Rs. 739.04 lacs. Seized material from assessee's residence revealed signed document, in original, of account details fax message, addressed to HAK, received from PA, on 21.9.2006, bearing fax number 00442074917476 for USD 1,600,000. Also found along with, was bill for USD 1,600,000, raised by PA on HAK (assessee) as well as fax confirmation report dated 21.9.2006 (pages 2,3 and 4 of Bundle # 7 of Annexure dated 05.1.2007 to Panchanama dated 06.1.2007). same was added on account of payment being undisclosed, with material found in search having established close business relationship between assessee and PA. 104. We have heard party before us, and perused material on record. We firstly observe that invoice for USD 1,600,000 (page 4 of Bundle 7/Ann. supra), which is toward services rendered to HAK by PA from 04/01 to 08/06 (as well as accompanying documents), stands also discussed at paras 20 22 of this order in relation to Gd. 4 for A.Y. 2002 03, qua addition for sum of USD 500,000, forming part of impugned sum of USD 1,600,000. assessee's case is that TI is not conclusive proof of payment, i.e., does not by itself evidence payment and, accordingly, no addition on its basis Talwalkar ::: Uploaded on - 02/08/2019 ::: Downloaded on - 02/08/2019 16:01:09 ::: 3 23.itxa498.17.doc could be made (refer para E of WS 7). question, to our mind, is not whether payment in pursuance to TI was in fact made or not, but whether TI is actually issued or not. This is as issue of TI itself signifies balance in account at least to that extent. Reference in this context may also be made inter alia to paras 11 12 of this order, delineating our reasons for considering issue of TI as valid ground for confirming addition. At same time, however, no TI has been issued for USD 16 lac. We have, vide para 22(b) of this order, found that no payment for USD 16 lac can be said to have been made; rather, facts borne out by record indicating to contrary. mention of beneficiary account details and reason/s for expenditure/investment/s notwithstanding, we find nothing on record to justify either inference of TI being issued or payment for USD 16 lac, or of balance to that extent; thesame representing only claim on assessee. addition, consistent with our findings at para to 22(b) supra, is deleted, being in fact made doubly to extend of USD 5 lac. We decide accordingly. 4 Perusal of said portion of Judgment of Tribunal would show that as matter of fact, Tribunal has formed opinion that there was no payment of USD 16 Lacs which was added by Assessment Officer to income of assessee. Tribunal held that said amount may be demanded by assessee but there was no evidence of same having been paid. entire issue is thus Talwalkar ::: Uploaded on - 02/08/2019 ::: Downloaded on - 02/08/2019 16:01:09 ::: 4 23.itxa498.17.doc based on appreciation of evidence on record. No question of law arises. In that view of matter, Income Tax Appeal is dismissed. ( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J.) Talwalkar Pr. Commissioner of Income -tax, Central (1) v. Hassan Ali Khan