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2.4 It was submitted by the Ld. A.R. of Mr. Satbirsingh H Bhusari that this issue was decided by Ld. CIT(A) as per para 5.5 of his order from pages 63-74 of his order. He also submitted that much reliance has been placed on loose pages No.97-99 of Annexure A-1 and loose pages No.20-23 of Annexure A-10. It is also submitted that as per the noting on page 97 of Annexure A-1, it was noted that total amount payable to Mr. Harshadbhai was Rs.125 lacs but payment made was of Rs.30 lacs only and there is proposed schedule of payment of the balance amount of Rs.95 lacs. He further submitted that similarly on page 98, it is shown that an amount of Rs.195 lacs was payable to Ashishbhai out of which Rs.85 lacs was paid and there is a schedule of proposed payment of the balance amount of Rs.110 lacs as proposed by Mr. Somani and also as proposed by Ashishbhai and hence, as per these two pages, the actual payment was made of R.115 lacs only and not more than this. He also submitted that on page 99 of Annexure A-1, is the combined proposed schedule of payment to Mr. Ashishbhai of Rs.110 lacs and Harshadbhai of Rs.95 lacs. He further submitted that on page 79 of disputed paper book is the copy of unsigned MOU but this is a dumb document because it is not signed by any of the parties and hence, no reliance can be placed on this MOU. He also submitted that the original balance sheet of M/s. Bhagwati Banquets Pvt. Ltd. as on 31.03.2000 is available on page 88 of the paper book filed by Shri N G Somani of Bhagwati Banquets Pvt. Ltd. and as per the same, the paid up capital of the company was Rs.2000 only as on 31.03.2000 i.e. much after the date of search as on 15.02.2000. He also submitted that on page 81 of the paper book is the relevant page of Memorandum of Articles and Association of this company i.e. Bhagwati Banquets Pvt. Ltd. and as per the same, 100 shares were taken by Shri N G Somani and balance 100 shares were taken by this assessee i.e. Shri Satbirsingh H Bhusari, who were the directors of this company at the relevant point of time. It was also submitted that on pages 172-178 of the paper book submitted by Shri N G Somani is the copy of the arbitration agreement dated 03.09.2002 between the company M/s. Bhagwati Banquets Pvt. Ltd. and this assessee Shri Satbirsingh H. Bhusari and as per this agreement, it was agreed that an amount of Rs.140 lacs was to be paid by the company of Mr. Somani to this assessee i.e. Mr. Satbirsingh H. Bhusari on account of resigning from the directorship of the company as well as for transfer of shares held by Mr. Satbirsingh H Bhusari to Mr. Somani and his family members. It was also submitted that this money was given on account of Bungalow of this assessee which was mortgaged to Gujarat State Financial Corporation towards security for a loan of Rs.490 lacs sanctioned by it to the company M/s. Bhagwati Banquets and Hotels Ltd. The Bench asked the Ld. A.R. to furnish the details and evidences regarding the date and amount received by Mr. Bhusari as per this arbitration agreement and how the same was accounted for by Mr. Bhusari and if the assessee can show that no payment was in fact made by Mr. Bhusari then, the same is required to be declared as income on receipt but in spite of a long wait by the bench, no such detail or evidence was furnished by the Ld. A.R. and it has only furnished a letter dated 20.09.2001 of Gujarat State Financial Corporation written to the chairman/Secretary, Satyagrah Chhavni Cooperative Society intimating about this fact to the society that Shri Satbirsingh H Bhusari has mortgaged his bungalow in Lane No.21 Plot 47 of the society against the loan of Rs.490 lacs sanctioned by them to M/s. Bhagwati Banquets and Hotels Ltd. Reliance was placed on the judgement of Hon'ble Gujarat High Court rendered in the case of Legal Heirs of Late Laxmanbhai S Patel Vs CIT as reported in 12 DTR 108 (Guj.).

2.5 In reply, it was submited by the Ld. D.R. that the figure of Rs.239 lacs is correct and it is the actual payment and not schedule of payment. Regarding 50:50 ratio as per MOU, it was submitted that the same ratio is as per Memorandum & Articles of the Company and till the date of search, shareholding of Mr. Bhusari and Mr. Somani was equal and the payment noted in the seized documents are after company's incorporation and hence, there is no reason to suggest that 50% payment was not made by Mr. Bhusari. At this stage, the Ld. A.R. of Mr. N G Somani also intervened and he submitted that although the MOU was unsigned but the same was found at the residence of Mr. Bhusari and, therefore, he was to explain this unsigned MOU. He also submitted that MOU is dated 18.10.1999 and the Memorandum of Association of the company is of a subsequent date i.e. 22.10.1999. He also submitted that his own residential bungalow was mortgaged by Mr. Bhusari to GSFC in respect of loan of Rs.490 lacs sanctioned by GSFC to the company M/s. Bhagwati Banquets and Hotels Ltd. and this also goes to show that Mr. Bhusari was having 50% interest in the company as per the MOU and MOA because if a person is not having any interest in the affairs of the company, why he will mortgage his own residential house to bank or financial institution. In reply, it was submitted by the Ld. A.R. of Mr. Bhusari that this unsigned MOU is a dumb document because it is unsigned and it is also submitted that in block assessment proceedings, no other evidence except the seized paper is relevant. He also submitted that on page 176 of the paper book filed by Mr. Bhusari is arbitration award as per which Shri N G Somani has to release Mr. Bhusari's all bank guarantee in six months from the date of this agreement dated 03.09.2002. He also submitted that there is no mention of 50% share in the statement of Mr. Somani.

2.6 Now, the question is, as to whether the entire such cash payment was made by Mr. Somani or he had made only 50% payment and 50% payment was made by Mr. Bhusari. The contention of the Ld. A.R. of the assessee Mr. Bhusari is this that no payment was made by his client Mr. Bhusari and the entire payment was made, even if made, by Mr. Somani only. Regarding the unsigned MOU, it is the submissions of the Ld. A.R. of Mr. Bhusari that since the MOU is unsigned, it is a dumb document. Even if we accept this contention, we find that this fact is not supported by this MOU only that both these persons; Mr. Bhusari and Mr. Somani were having 50% shares of the company M/s. Bhagwati Banquets and Hotels Ltd. because as per the MOA of this company, these two persons are the only directors of this company and they were holding equal shares in this company at the time of formation of the company and even on 31.03.2000, the paid up capital was only Rs.2000 i.e. 200 shares of Rs.10 each which were subscribed by Mr. Bhusari and Mr. Somani equally being 100 shares each. As per the copy of Annual Return dated 28.09.2000 filed with Registrar of Companies on27.12.2000, copy available on pages 102 to 114 of the paper book, even on 28.09.2000, these two persons were equally holding 100 shares each of the company Bhagwati banquets Private Limited. Hence, it is clear that even on the date of the search Mr. Bhusari was holding 50% shares of the company. Hence, even if the MOU was unsigned, it was found from the residence of Mr. Bhusari and moreover, subsequent event and evidence establish that even this unsigned MOU was accepted upon by forming the company in which these two persons were only directors and they were holding 50% shares each of this company and even on the date of search, the position remained same. Other evidences also support this view because this is an admitted position of fact that Mr. Bhusari has mortgaged his residential house in Satyagrah Chhavni Cooperative Housing Society in Lane NO.21, Plot nO.87 to GSFC against a loan of Rs.490 lacs sanctioned by GSFC to the company M/s. Bhagwati Banquet & Hotels Ltd. If Mr. Bhusari was not having 50% interest in the company, it doe not stand to logic that he will mortgage his own residential house to GSFC against the loan for the company. Hence, when we consider these facts which could not be controverted or disputed by the Ld. A.R. of Mr. Bhusari, it comes out that Mr. Bhusari was having 50% share in the company M/s. Bhagwati Banquets and Hotels Ltd. till the date of search and this is also logical that if some unaccounted cash payment is made for a company, the same is to be accepted as have been made by various persons in the ratio of their shareholdings in that company. Since in the present case, the ratio of shareholding in the company M/s. Bhagwati Banquets and Hotels Ltd. by Mr. Bhjusari and Mr. Somani was equal till the date of search from the date of incorporation, it has to be accepted that both have made these cash payments in equal proportion because no evidence has been brought out on record by the Ld. A.R. of M. Bhusari to support his argument that no investment was made by his client Mr. Bhusari. We, therefore, do not find any merit in these contentions of the Ld. A.R. of Mr. Bhusari that actual cash payment was only of Rs.115 lacs and no investment was made by Mr. Bhusari in respect of cash payment on this account. Hence, grounds No.1-5 of this appeal of the assessee are rejected. 2.7 Regarding ground No.6, i.e. regarding enhancement made by Ld. CIT(A) of Rs.10 lacs in the hands of Mr. Bhusari, we find that this enhancement was made by him on his basis that total payment was of Rs.239.165 lacs and 50% of the same comes out to Rs.1,19,58,250/- and addition made by the A.O. was only Rs.1,09,58,250/- and therefore, he made enhancement of Rs.10 lacs. We do not find any infirmity in this enhancement made by Ld. CIT(A) because admittedly, out of total payment of Rs.239.165 lacs, payment of Rs.20 lacs was made by way of cheque by Mr. Somany and hence, the share of Mr. Bhusari and Mr. Somany has to be worked out on the basis of total payment and then from the 50% share of Mr. Somany, Rs. 20 Lacs is to be reduced being payment made by him by cheque to work out his cash payment and the cash payment by Mr. Bhusari is the 50 % amount in full because no cheque payment is made by Mr. Bhusari. Such 50% of total payment works out to Rs.1,19,58,250/-. Since the A.O. had made addition of only Rs. 109,58,250/- in the hands of Mr. Bhusari, this enhancement of Rs.10 lacs made by Ld. CIT(A) is also justified and the same is confirmed. Ground No.6 is also rejected.