Avon Tubetech Pvt. Ltd., New Delhi V. DCIT, New Delhi

CO 412/DEL/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7402 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-06-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 24-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V RAJ KUMAR
• Keywords: Reopening of assessment; Document seized; Corroborative evidences; Documents seized; Reassessment proceedings
• Section: 143(3); 147; 69; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI T.S. KAPOOR ITA NO. 3817/DEL/2010 A.YR. 2001-02 DCIT, CIR. 2(1), VS. AVON TUBETECH PVT. LTD., DELHI. E-10, ANAND NIKETAN, NEW DELHI. AND C.O. NO. 412/DEL/10 ( IN ITA NO. 3817/DEL/2010) A.YR. 2001-02 AVON TUBETECH PVT. LTD., VS. DCIT, CIR. 2(1), E-10, ANAND NIKETAN, NEW DELHI. DELHI. ( APPELLANT ) ( RESPONDENT ) DEPARTMENT BY : SH. SANJAY PANDEY SR. DR ASSESSEE BY : SHRI K. SAMPATH ADV. & SH. V. RAJ KUMAR ADV. O R D E R PER R.P. TOLANI, J.M: : THESE ARE REVENUES APPEAL AND ASSESSEES CROSS-OBJ ECTIONS AGAINST CIT(A)S ORDER DATED 6-5-2010 FOR A.YR. 2001-02, AS SAILING THEIR RESPECTIVE GRIEVANCES. THEY ARE HEARD TOGETHER AND BEING DISPO SED OF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. RESPECTIVE GROUN DS RAISED ARE AS UNDER: ITA NO. 3817/DEL/2010 ( REVENUES APPEAL) : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. CIT(A) IS WRONG, PERVERSE, ILLEGA L AND AGAINST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE SET ASI DE. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF RS. 1,30,38,610/- MADE ON ACCOUNT OF UN DISCLOSED INCOME DISREGARDING THE FACT THAT AS PER THE PROVIS IONS OF 2 SECTION 110 OF THE EVIDENCE ACT, 1872, THE ONUS OF DISPROVING THE AUTHORITY IN POSSESSION OF MATERIAL AGAINST THE ASSESSEE LIES SQUARELY ON THE ASSESSEE. C.O. NO. 412/DEL/10 (ASSESSEES CROSS-OBJECTION) : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN REJECTING THE GROUND REGARDING SECTION 148/147 ACTION. THE REJECTION BEING ERRONEOUS MUST BE QUASHED WITH DIRECTIONS FOR APPROPRIATE RELIEF. 2. BRIEF FACTS ARE: ASSESSEE MAINTAINS REGULAR BOOK S OF ACCOUNTS WHICH ARE AUDITED. FOR A.Y. 2001-02, ASSESSEES REGULAR A SSESSMENT WAS COMPLETED U/S 143(3) ON 30-12-2002 AT AN INCOME OF RS. 18,97, 560/-. SUBSEQUENTLY, A NOTICE U/S 148 OF THE I.T. ACT, 1961 WAS ISSUED ON THE ASSESSEE ON 15-3-2007 AFTER RECORDING THE REASONS U/S 147 OF THE ACT. 2.1. A SEARCH OPERATION WAS CONDUCTED ON ONE MANAV RACHNA GROUP (MRG) OF FARIDABAD ON 4-8-2005 AND ONE PROPERTY BRO KER SHRI NAVNEET JHAMB. DURING SEARCH, CERTAIN DOCUMENTS WERE RECOVE RED WHICH REVEALED THAT A PLOT NO. 42, SECTOR 6, FARIDABAD WAS PURCHA SED BY ASHWANI MAHAJAN, DIRECTOR OF THE ASSESSEE COMPANY. A SEIZED PAPER SU GGESTED THAT THE DEAL WAS AGREED AT RS. 1,68,38,610/- OUT OF WHICH RS. 30,00, 000/- WAS TO BE PAID IN CHEQUE AND REMAINING IN CASH. THIS INCRIMINATING D OCUMENT WHICH WAS SOLE BASIS OF REOPENING WAS PROVIDED TO THE ASSESSEE FOR EXPLANATION. THE ASSESSEE CONTENDED AS UNDER: (I) THE RETURN OF INCOME WAS FILED BY IT WHICH CONT AINED THE FACT OF PURCHASE OF THIS PLOT IN FIXED ASSETS. THUS ASSESSE E DISCLOSED PRIMARY MATERIAL FACTS IN THIS BEHALF. THIS BEING S O, 148 ACTION CANNOT BE TAKEN BEYOND 4 YEARS FROM THE END OF THE ASSESSMENT 3 YEAR I.E. 31-3-2006 AS PROVIDED BY SEC. 149. 148 NO TICE ISSUED ON 15-3-2007, WAS CLEARLY BEYOND THE PRESCRIBED TIME L IMIT OF 4 YEARS, THEREFORE, THE REASSESSMENT PROCEEDINGS ARE BAD IN LAW. THUS THE ASSESSEE HAD MADE PRIMARY DISCLOSURES OF THIS TRANS ACTION, INASMUCH AS THE INVESTMENT IN RESPECT OF THE IMPUGN ED PLOT WAS DISCLOSED IN THE BALANCE-SHEET AND FIXED ASSETS SCH EDULE OF THE ASSESSEE. (II) THIS ROUGH DOCUMENT, MAINTAINED BY PROPERTY BR OKER MR. JHAMB WAS NOT WRITTEN BY ASSESSEE. THE DOCUMENT IN QUEST ION WAS A DUMB DOCUMENT, WHICH DID NOT CONTAIN TRUE DETAILS A BOUT THE TRANSACTION. (III) ASSESSING OFFICER CONFRONTED THESE DOCUMENTS TO SAID SHRI ASHWANI MAHAJAN, WHOSE NAME WAS FOUND ON THE PAPER AS ASH MAHAJAN. HE DENIED ANY KNOWLEDGE ABOUT THE MOU DAT ED 24-12- 1997 WRITTEN BY MR. JHAMB. THE PROPERTY WAS PURCHAS ED IN MARCH 2000 AND JUNE 2000. 2.2. HE EXPRESSED HIS IGNORANCE ABOUT THE WRITING O F MR. JHAMB AS ASH AND MAHAJAN AND CHQE OF 38.00. ASSESSING OFFICER , HOWEVER, HELD THAT ASSESSEE IN FACT HAD PURCHASED PLOT NO. 42, SECTOR 6, FARIDABAD WHICH IS OWNED BY IT FOR A CONSIDERATION OF RS. 38 LACS IN T HE YEAR 2000 ON WHICH CASH OF RS. 1,38,810/- WAS PAID BY ASSESSEE. 2.3. ACCORDING TO ASSESSING OFFICER, THE WORDS ASH AND MAHAJAN MEANT ASHWANI MAHAJAN, WHO WAS DIRECTOR OF THE COMPANY IN ABBREVIATION FORM AND CHQE OF 38.00 REPRESENTED RS. 38 LACS PAID BY THE ASSESSEE. 2.4. THE PLOT WAS PURCHASED IN FACT FOR RS. 1,68,38 ,610/-, WHICH WAS ACTUAL CONSIDERATION AND NOT RS. 38 LACS. CONSEQUENTLY, BA LANCE OF RS. 1,30,38,610/- WAS ADDED AS UNDISCLOSED INCOME OF T HE ASSESSEE. 4 2.5. AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL, CH ALLENGING REOPENING OF ASSESSMENT AND MERITS OF THE ADDITION. ON REOPENING OF ASSESSMENT, RELIANCE WAS PLACED ON FOLLOWING JUDGMENTS: - UNITED ELECTRICAL CO. PVT. LTD. VS. CIT 258 ITR 3 17; - CIT VS. INDIAN OIL CORPORATION 159 ITR 956 - ITO VS. LAKHMANI MEWAL DAS 103 ITR 437. 2.6. LD. CIT(A) UPHELD THE REOPENING OF PROCEEDING S BY FOLLOWING OBSERVATIONS: I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE BY LD. AR AND HAVE GONE THROUGH THE ASSESSMENT ORDER A PERUS AL OF THE REASONS RECORDED BY ASSESSING OFFICER FOR REOPENIN G OF ASSESSMENT SHOWS THAT AO HAD SPECIFIC INFORMATION IN HIS POSSESSION. FOR THE PURPOSE OF REOPENING OF CASE, I T HAS ONLY TO BE SEEN WHETHER THERE WAS PRIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH DEPARTMENT COULD REOPEN THE CASE. TH E SUFFICIENCY OR CORRECTNESS OF THE MATERIAL IS NOT TO BE CONSIDERED AT THAT STAGE. ON THE BASIS OF INFORMATI ON AND DOCUMENTS SENT BY DCIT, CENTRAL, FARIDABAD, IT CAN BE CONCLUDED THAT THERE EXIST REASONS FOR HOLDING A BE LIEF OF ESCAPEMENT OF INCOME. THUS I FIND THAT THE ASSESSIN G OFFICER HAD REASONABLE MATERIAL AND GROUND FOR REOPENING OF THE CASE AND HIS ACTION IS THEREFORE UPHELD. 2.7. HOWEVER, THE ADDITIONS WERE DELETED ON MERITS BY FOLLOWING OBSERVATIONS: I HAVE PERUSED THE ASSESSMENT ORDER, COPY OF DOCUM ENTS SEIZED, PAPER BOOK SUBMITTED BY AR AND CONSIDERED T HE ARGUMENTS FORWARDED BY LD. AR. THE LD. AR HAS FILED VARIOUS DOCUMENTS TO SUPPORT THAT THIS PLOT HAS BEEN SUBJEC T MATTER OF DISPUTE AND LITIGATION SINCE ITS ALLOTMENT AND THE LITIGATION REGARDING OWNERSHIP OF PLOT IS STILL IN DISPUTE WIT H PUNJAB WAKF BOARD. I FIND THAT AO HAS MADE ADDITION ON THE BASI S OF DOCUMENTS SEIZED FROM THE PREMISES OF THIRD PARTY. NO INDEPENDENT ENQUIRY WAS MADE BY HIM NOR ANY EVIDENC E TO 5 SUPPORT HIS CONTENTION WAS BROUGHT ON RECORD BY ASS ESSING OFFICER . THE DOCUMENTS SEIZED HAD NO RELEVANCE IN ABSENCE OF ANY SUPPORTING EVIDENCE REGARDING PAYMENT MADE. NO AGREEMENT, RECEIPT ETC. WAS RECOVERED DURING THE CO URSE OF SEARCH. THE REVENUE HAS ALSO NOT MADE ANY ENQUIRIES FROM THE PROPERTY DEALERS, VENDORS, ETC. TO ESTABLISH THAT T HE ASSESSEE PAID ANY AMOUNT, OVER AND ABOVE THE APPARENT CONSIDERATI ON IN PURCHASE OF THE SAID PLOTS. I HAVE ALSO GONE THROUG H THE CONTENTS OF STATEMENT OF SH. NAVNEET JHAMB RECORDED DURING T HE COURSE OF SEARCH. I DO NOT FIND ANY REFERENCE OF THIS DEAL OR THIS SALE CONSIDERATION IN HIS STATEMENT. I HAVE ALSO GONE TH ROUGH THE DOCUMENTS SEIZED. ADMITTEDLY THIS MOU DATED 24.12.1 997 IS NOT RELATED TO THE PURCHASE OF THIS PROPERTY BY ASS ESSEE SINCE IT WAS PURCHASED BY HIM IN THE YEAR 2000-01. FURTHER, DOCUMENTS SEIZED VIDE PAGES 50-52 APPEARS TO BE SOME ROUGH WO RKING AND IN ABSENCE OF ANY INDEPENDENT DOCUMENTARY EVIDENCE, THE SAME HAS NO SANCTITY AND MAY BE DESCRIBED AS DUMB DOCUME NTS. I MAY MENTION THAT THE PROVISIONS OF THE INDIAN EVI DENCE ACT ARE NOT STRICTLY APPLICABLE TO THE PROCEEDINGS UNDER THE INCOME-TAX ACT, BUT THE BROAD PRINCIPLES OF LAW AND EVIDENCE DO APPLY TO SUCH PROCEEDINGS. FURTHER AN ENTRY IN T HE BOOKS OF ACCOUNT MAINTAINED IN THE REGULAR COURSE OF BUSINES S IS RELEVANT FOR PURPOSES OF CONSIDERING THE NATURE AND IMPACT OF A TRANSACTION, BUT NOTINGS ON SLIPS OF PAPER OR LOOSE SHEETS OF PAPER CANNOT FALL IN THIS CATEGORY. NOTINGS ON LOOS E SHEET OF PAPERS ARE REQUIRED TO BE SUPPORTED/ CORROBORATED B Y OTHER EVIDENCE AND WHICH MAY INCLUDE THE STATEMENT OF A P ERSON, WHO ADMITTEDLY IS A PARTY TO THE NOTINGS. IN THIS CASE, NO SUCH EVIDENCE WAS BROUGHT ON RECORD BY AO. IT CANNOT BE DISPUTED THAT THE BURDEN TO ESTABLISH THAT THE APPELLANT HAS MADE INVESTMENT OF A SUM IN EXCEEDS T O THE DECLARED CONSIDERATION, RESTS ON THE REVENUE. THE M ERE ROUGH WORKING SHEETS SEIZED FROM THE PREMISES OF THIRD PA RTY CANNOT BE ANY EVIDENCE TO ESTABLISH THAT HE ALLEGED CONSID ERATION WAS PAID BY APPELLANT. IN THIS CONNECTION THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF K.P. VERGHESE (1981) 1 31 ITR 597 IS RELIED. 6 D) AFTER CONSIDERING TOTALITY OF THE CASE AND DOCUM ENTS, I FIND THAT IN THE ABSENCE OF ANY SUCH EVIDENCE, AND THE INVESTMENT HAVING BEEN PROVED, NO ADDITION COULD BE MADE UNDER SECTION 69 OF THE INCOME-TAX ACT. THE AO IS N OT JUSTIFIED IN MAKING THE ADDITION OF RS. 1,30,38,610/- ON ACCO UNT OF UNDISCLOSED INVESTMENT BY WAY OF PAYMENT OF ON-MONE Y IN EXCESS OF MONEY MENTIONED IN SALE DEED OF THIS PROP ERTY. HENCE, I DIRECT HIM TO DELETE THIS ADDITION OF RS.1 ,30,38,610/-. 2.8. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST UPHOLDING THE VALIDITY OF R EOPENING OF ASSESSMENT AND GOES TO THE ROOT OF THE MATTER. 3. LEARNED COUNSEL FOR THE ASSESSEE REQUESTED TO F IRST HEAR THE CROSS- OBJECTION INASMUCH AS IT DEALS WITH THE VALIDITY O F REOPENING PROCEEDINGS. 3.1. IT IS VEHEMENTLY ARGUED THAT THE PROVISIONS OF SEC. 147 WERE AMENDED TO APPLY TIME LIMIT OF 4 YEARS STRICTLY IN CASES WH ERE PRIMARY FACTS ARE DISCLOSED BY THE ASSESSEE IN RESPECT OF A TRANSACTI ON. SCHEDULE E BEING SCHEDULE OF FIXED ASSETS AS ON 31-3-2001 IN WHICH A N ADDITION OF RS. 23,95,012/- HAS BEEN SHOWN AS AN EXISTING ASSET UN DER THE HEAD LAND BUILDING, WHICH REPRESENTS THIS TRANSACTION. THE AL LEGED PROPERTY TRANSACTION FOR PURCHASE OF A PLOT AT NOIDA WAS THUS DISTINCTLY SHOWN IN THE BALANCE- SHEET AND PRIMARY FACT WAS DISCLOSED IN ORIGINAL RE TURN.. 3.2. NOW OUR ATTENTION IS INVITED TO THE REASONS RE CORDED BY ASSESSING OFFICER FOR ISSUING NOTICE U/S 148, WHICH IS AS UN DER: INFORMATION HAS BEEN RECEIVED FROM THE DCIT, CENTR AL, FARIDABAD VIDE HIS LETTER NO. DCIT. CENTRAL.2006-07 /646 DATED 28-02-2007. A SEARCH ACTION WAS CONDUCTED ON 04-08- 2005 AT MANAV RACHNA GROUP AT FARIDABAD. IN THE COURSE OF THE SAID SEARCH, CERTAIN DOCUMENTS WERE FOUND RELATING TO SALE OF PLOT NO. 42, SECTOR-6, FA RIDABAD FOR A SALE CONSIDERATION OF RS. 1,68,38,610/-. THESE DOCU MENTS 7 REPORTEDLY SHOW THAT OUT OF THE TOTAL SALE CONSIDER ATION, RS. 38 LAKHS WAS TO BE PAID BY CHEQUES AND THE REMAINING A MOUNT BY CASH. THE SAID PLOT WAS PURCHASED BY SHRI ASHWANI M AHAJAN DURING THE FINANCIAL YEAR 2000-01 RELEVANT TO THE A SSESSMENT YEAR 2001-02 IN THE NAME OF A COMPANY, NAMELY M/S A VON TUBE TECH PVT. LTD. (PAN AACCA1235C), WHEREIN HE IS A DIRECTOR. PERUSAL OF SCHEDULE-E (FIXED ASSETS AS ON 31-03-200 1 TO THE BALANCE SHEET REVEALS THAT THOUGH THE ABOVE SAI D PLOT HAD BEEN PURCHASED BY THE ASSESSEE COMPANY, IT WAS NOT REFLECTED IN THE DETAILS OF FIXED ASSETS. THUS, IT IS EVIDE NT THAT THE ASSESSEE COMPANY HAS KEPT THE TRANSACTION OUTSIDE I TS BOOKS OF ACCOUNTS, WHICH DO NOT DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT FOR THAT ASSESSM ENT. 3.4. IT IS PLEADED THAT ASSESSING OFFICER ON REALI ZING THAT THE TIME LIMIT OF 4 YEARS HAS ALREADY EXPIRED, TWISTED THE FACTS SO A S TO APPLY 6 YEARS OF TIME LIMIT AND HAS RECORDED THAT THIS TRANSACTION IS NOT AT ALL SHOWN. REASONS RECORDED BY ASSESSING OFFICER ARE SELF CONTRADICTO RY AS ON ONE HAND IT SAYS THAT THE SCHEDULE E THOUGH REVEALS THAT THE ABOV E SAID PLOT HAS BEEN PURCHASED BY THE ASSESSEE, THIS WAS NOT REFLECTED I N THE DETAILS OF THE FIXED ASSETS. THIS CLEARLY IMPLIES THAT ASSESSING OFFICER THOUGH ACCEPTS THAT DETAILS ABOUT PURCHASE OF PROPERTY WERE GIVEN IN TH E ACCOUNTS ONLY BECAUSE BREAK UP OF FIXED ASSET WAS NOT GIVEN IT HAS BEEN P RESUMED THAT THE ASSESSEE HAS KEPT THE TRANSACTION OUTSIDE THE BOOKS OF ACCOU NTS. IT IS PLEADED THAT THE RECORDING OF REASONS IS MISCHIEVOUS AND UNTRUTHFUL AND DELIBERATELY RECORDED IN ORDER TO EXTEND THE TIME LIMIT FROM 4 TO 6 YEARS . ASSESSING OFFICER HAS THUS DELIBERATELY AND CONTRARY TO CASE RECORD NOTED THAT THE TRANSACTION OF PURCHASE OF PLOT WAS KEPT OUT OF BOOKS. WHEREAS THE FACT OF THE MATTER IS THE PURCHASE OF THE PLOT WAS VERY RECORDED IN THE BOOKS AND REFLECTED IN ACCOUNTS. THE ASSESSING OFFICER RECOURSED TO TWIST ING REASONS, IS PROVED 8 FROM THE FACT THAT ON ONE HAND THE ASSESSING OFFICE R HIMSELF SAYS THAT THE BALANCE-SHEET REVEALS THAT THE ABOVE SAID PLOT HAS BEEN PURCHASED BY THE ASSESSEE ON OTHER HAND CONTRADICTORY CONCLUSION IS GIVEN THAT TRANSACTION IS NOT ENTERED IN THE BOOKS. THE RECORD AND FACTS WHI CH CLEARLY INDICATE THAT PRIMARY FACTS ABOUT THE PLOT WERE VERY MUCH INCORPO RATED IN THE BOOKS OF A/C. THIS BEING SO, THE ASSESSEES CASE SQUARELY FA LLS UNDER THE TIME LIMIT OF 4 YEARS PRESCRIBING SEC. 147. NOTICE U/S 148 HAVING B EEN ISSUED AFTER THE EXPIRY OF 4 YEARS, WHICH IS NOT DISPUTED BY THE REV ENUE, THE NOTICE ISSUED U/S 147/148 IS BAD IN LAW AND THE PROCEEDINGS ARE AB IN ITIO VOID. 3.5. THE RECORDING OF REASONS, WITH THE LACK OF BON A FIDES CANNOT BE A VALID BASIS FOR REOPENING OF THE ASSESSMENT. ASSESSEE HAV ING MADE THE PRIMARY DISCLOSURE IN THE RETURN OF INCOME AND THE ASSESSME NT HAVING BEEN FRAMED THEREON U/S 143(3), A VALID REASSESSMENT, IF AT ALL , COULD HAVE BEEN INITIATED WITHIN A PERIOD OF 4 YEARS. RECORDING OF REASONS BE ING ADMITTEDLY BEYOND 4 YEARS, MAKE THE PROCEEDINGS AB INITIO VOID. 4. APROPOS MERITS, IT IS ARGUED THAT ON THE BASIS O F SEARCH CONDUCTED IN MRG VARIOUS OTHER CASES WERE REOPENED INCLUDING ONE M/S DUA AUTO COMPONENTS P. LTD. ON SIMILAR FACTS ADDITIONS WERE MADE IN THIS CASE WHICH WERE CARRIED IN APPEALS. ITAT VIDE ORDER DATED 16-7 -2010 IN APPEAL NO. 4802/DEL/2009 DELETED THE ADDITION BY FOLLOWING OBS ERVATIONS: 6.1 WE FIND THAT THAT THE ASSESSING OFFICER HAS NOT BROUGHT EVEN A SINGLE WORD REGARDING THE NATURE OF DOCUMENT AND HOW HE HAS CONCLUDED THAT THEY BELONG TO THE ASSESSEES AND THAT ON MONEY TRANSACTION HAS BEEN TAKEN PLACE. HE HAS SIM PLY RELIED UPON THE REASONS RECORDED WITHOUT SHOWING ANY APPL ICATION OF MIND ON HIS PART. 9 6.2 IN THIS REGARD WE NOTE THAT IT IS ALSO NOT THE CASE THAT THE SELLER HAS MADE ANY STATEMENT OR HAD ACCEPTED THE RECEIPT OF ON MONEY I.E. CONSIDERATION OVER AND ABOVE THAT DIS CLOSED. IT IS ALSO NOT THE CASE THAT THE SEIZED DOCUMENTS WERE IN THE HANDWRITING OF THE ASSESSEE OR THE SELLER OR WERE S EIZED FROM THE PREMISES OF SELLER AND PURCHASER. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS BROUGHT OUT VARIOUS DISCREPANCI ES IN THE SEIZED DOCUMENTS RELIED UPON BY THE REVENUE AND STR IKING FEATURE OF THESE ANOMALIES IS THAT IN THE SEIZED DO CUMENTS, IT HAS BEEN MENTIONED THAT THE IMPUGNED PLOT WAS NOT SOLD . THUS, THE WORKING AND THE FIGURES MENTIONED THEREIN CAN AT B EST BE SAID TO BE TENTATIVE OR EXPECTED AMOUNT. THIS BY NO ST RETCH OF IMAGINATION CAN BE TREATED AS CONCLUSIVE PROOFS OF ON MONEY TRANSACTIONS. MOREOVER, IT IS AN ADMITTED FACT TH AT THE DOCUMENTS BEING RELIED UPON SHOWED ACCOUNT AS ON 31.10.2001, WHILE AS PER THE REGISTERED SALE DEED T HE PLOT WAS SOLD ON 23.5.2002. UNDER THE CIRCUMSTANCES, THESE ADDITIONS HAVE BEEN MADE ON THE BASIS OF DOCUMENTS FOUND DU RING SEARCH AT THE PLACE OF A THIRD PARTY WHICH AT BEST ONLY SHOWED THE TENTATIVE /PROJECTED PURCHASE CONSIDERATION. I T IS NOT THE CASE THAT THE CIRCLE RATE OR THE VALUE AS PER STAMP REGISTRATION AUTHORITIES OF THE IMPUGNED PROPERTY IS MORE THAN W HAT HAS BEEN DISCLOSED. IT IS ALSO NOT THE CASE THAT UNA CCOUNTED CASH HAS BEEN FOUND TO BE PAID BY THE ASSESSEE OR RECEIV ED BY THE SELLER. THERE IS ALSO NO STATEMENT OF THE SELL ER ON RECORD THAT HE HAS OBTAINED ON MONEY. UNDER THE CIRCUMSTANCES , THE ADDITIONS MADE IN THIS REGARD IS NOT SUSTAINABLE. 6.3 IN THIS REGARD, WE PLACE RELIANCE UPON THE HON BLE APEX COURT IN THE CASE OF K.P. VARGHESE VS. INCOME TAX OFFICER, ERNAKULAM AND ANOTHER 131 ITR 597 (SC), WHEREIN IT HAS BEEN HELD THAT THE BURDEN OF PROVING IS THAT OF REVENUE WHEN THERE IS ALLEGATION OF UNDERSTATEMENT ON CONCEALMENT IN THE CONSIDERATION SHOWN. 6.4 WE ALSO PLACE RELIANCE UPON THE JUDGEMENT OF TH E HONBLE APEX COURT IN THE CASE OF C.I.T. VS. P.V. KALYANASUNDARAM IN (2007) 294 ITR 49 (SC) IN WHICH ALLEGATIONS OF ON MONEY TRANSACTION ON THE BASIS OF NON- CONVINCING LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH AND 10 CONFLICTING STATEMENT OF THE SELLER, WAS DELETED BY THE TRIBUNAL (TO WHICH, ONE OF US THE ACCOUNTANT MEMBER WAS THE PARTY) AND THE SAME WAS AFFIRMED BY THE HONBLE HIGH COURT AND HONBLE APEX COURT. 6.5 WE ALSO FIND THAT IN THE GROUNDS OF APPEAL TH E REVENUE HAS URGED THAT LD. COMMISSIONER OF INCOME TAX (APPE ALS) HAS ERRED IN DELETING THE ADDITION OF RS. 60,36,000/- P AID IN CASH AS THE SOURCE OF INVESTMENT WERE NOT PROVED BEFORE THE ASSESSING OFFICER IN SPITE OF SEVERAL OPPORTUNITIES AFFORDED TO THE ASSESSEE. IN OUR OPINION, THIS GROUND ITSELF IS M ISCONCEIVED, IN AS MUCH AS THE QUESTION OF PROVING THE SOURCE OF IN VESTMENT WILL ARISE ONLY WHEN THE INVESTMENT IS CONCLUSIVE LY PROVED. WE HAVE ALREADY FOUND ABOVE THAT THE CLAIM OF ON MO NEY TRANSACTIONS HAS NOT AT ALL PROVED IN THIS CAS E. AS HELD BY THE HONBLE SUPREME COURT DECISIONS ABOVE, THE ONUS IS THAT OF REVENUE TO PROVE THE SAME AND AS CLEARLY FOUND BY U S ABOVE THE REVENUE HAS FAILED TO DO SO THE SAME. 6.6 ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENTS, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. APROPOS THE ISSUE ABO UT VALIDITY OF REOPENING OF REASSESSMENT PROCEEDINGS, IT HAS NOT BEEN DISPUT ED THAT THE PROCEEDINGS IN QUESTION HAVE BEEN INITIATED AFTER THE EXPIRY OF 4 YEARS. FROM THE BALANCE- SHEET IN THE YEAR ENDING 31-3-2000 AND 31-3-2001 IT EMERGES THAT ASSESSEE HAS RECORDED THE TRANSACTION IN ITS BOOKS OF ACCOUN TS. IN OUR VIEW WHEN THE ASSESSEE HAS RECORDED A TRANSACTION IN ITS BOOKS OF ACCOUNTS AND THE ASSESSMENT IS COMPLETED U/S 143(3), THE ASSESSEE HA S DISCLOSED PRIMARY FACTS RELATING TO THE TRANSACTION. THE ASSESSEES ORIGINA L ASSESSMENT HAVING BEEN COMPLETED U/S 143(3), NO ACTION OF REASSESSMENT CAN BE TAKEN AFTER THE EXPIRY 11 OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ON THE PART OF THE FA ILURE OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESS ARY FOR THE ASSESSMENT. IN OUR VIEW, ASSESSING OFFICER HAS RECORDED THE REASO NS IN A MANNER TO ATTRACT TIME LIMIT OF 6 YEARS BY RECORDING AN ERRONEOUS REA SON THAT THIS TRANSACTION HAS BEEN KEPT OUTSIDE THE BOOKS OF ACCOUNTS BY THE ASSESSEE. IT IMPLIES THAT THE REASONS RECORDED LACK BONA FIDE IN TERMS OF REC ORDING THE CORRECT FACTS. THUS, WE FIND MERIT IN THE ARGUMENT OF LEARNED COUN SEL FOR THE ASSESSEE THAT THE RECORDING OF REASONS IS WITHOUT APPLICATION OF MIND AND HAS BEEN SELECTIVELY RECORDED SO AS TO INCREASE THE TIME LIM IT FROM 4 YEARS TO 6 YEARS. THUS, ASSESSING OFFICER HAS TRIED TO RECORD A WRON G FACT TO BRING THE REOPENING WITHIN TIME LIMIT OF 6 YEARS .IN OUR VIEW , SINCE THE REASONS HAVE BEEN RECORDED WITHOUT APPLICATION OF MIND AND PROPE R BONA FIDES, THEY ARE NOT TENABLE. THUS, THE REASSESSMENT PROCEEDINGS INI TIATED ON THE BASIS OF UNTENABLE REASONS, ARE AB INITIO VOID AND ARE QUASH ED ACCORDINGLY. 5.1. IN VIEW THEREOF WE SET ASIDE THE ORDER OF CIT (A) ON THE ISSUE OF VALIDITY OF PROCEEDINGS AND HOLD THAT THE REASSESSM ENT PROCEEDINGS ARE BAD IN LAW. 6. APROPOS REVENUES APPEAL ON MERIT, IT HAS NOT BE EN DISPUTED THAT ASSESSEE WAS NOT GIVEN OPPORTUNITY TO CROSS-EXAMINE MR. JHAMB OR MRG. SIMILARLY, NO REFERENCE IS MADE AS TO WHAT HAS BEEN HAPPENED IN THE CASE WHERE ALLEGED MONEY WAS RECEIVED. ITAT IN THE CASE OF M/S DUA AUTO COMPONENTS P. LTD. (SUPRA) HAS DELETED THE ADDITION S ON MERITS ALSO ON THESE INFIRMITIES. RESPECTFULLY FOLLOWING ITAT JUDGMENT I N THE CASE OF M/S DUA 12 AUTO COMPONENTS P. LTD. (SUPRA), ON MERIT ALSO REVE NUES APPEAL IS DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED AND ASSESSEES CROSS- OBJECTION IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 20-07-2012. SD/- SD/- ( T.S. KAPOOR ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20-07-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR