Appeal details
Counselvise Citation
107220114 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-10-2012
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
F
Next Hearing Date
18-07-2012
Assessment Year
2008-2009
Appeal Filed On
28-02-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 1072/DEL/2011 ASSESSMENT YEAR: 2008-09 M/S PIYUSH INFRASTRUCTURE INDIA PVT. LTD. ACIT, 2 & 3 1 ST FLOOR, V S CENTRAL CIRCLE 1, PLAZA, SECTOR-27, VS. FARIDABAD. NOIDA (U.P.) PAN: AADCP9044P (ASSESSEE) (REVENUE) ASSESSEE BY: SH. SUDHIR SEHGAL, ADV. REVENUE BY: SH. SUDESH GARG CIT DR. HEARING ON : 26/07/2012 ORDER PRONOUNCED ON THE DATE: 25/10/2012 ORDER PER I.C.SUDHIR, JM: THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. (A) THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THAT THE LD.ASSESSING OFFICER (AO) HAS RIGHTLY ASSUMED THE JURISDICTION TO FRAME THE IMPUGNED ASSESSMENT U/S 1 53C OF THE INCOME TAX ACT AND THE ASSESSMENT FRAMED U/S 15 3C BY THE AO WAS IN ORDER. (B) THAT THE LD. CIT(A) HAS ERRED IN GIVING HI S FINDINGS THAT SATISFACTION WAS RECORDED BY THE AO AND ALL LE GAL REQUIREMENTS TO ASSUMED THE JURISDICTION U/S 153C W ERE CARRIED OUT AND AS SUCH, INITIATION OF PROCEEDINGS U/S 153C WERE QUITE IN ORDER. 3. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING ADDIT ION OF RS.12.50 CRORES MADE BY THE AO ON ACCOUNT OF ALL EGED INVESTMENT IN PROPERTY AT VILLAGE MEWLA MAHARAJPUR, FARIDABAD OUT OF SO CALLED UNDISCLOSED INCOME OF TH E ASSESSEE. 4(A). THAT THE LD. CIT(A) HAS NOT CONSIDERED THE F ACT THAT PHOTOCOPY OF AGREEMENT TO SELL DATED 151212007 ( IN WHICH PIECE OF LAND WAS AGREED TO BE SOLD FOR RS. 18 CROR ES) RECEIVED FROM ANONYMOUS SOURCES THROUGH FAX DOES NO T CONSTITUTE A VALID EVIDENCE IN THE ABSENCE OF ORIGI NAL AGREEMENT ON RECORD. 4(B) THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW, IN NOT APPRECIATING THAT THE AFORESAID AGREEMENT WAS N OT RELIABLE, MORE SO SINCE EXECUTION OF THE SAME WAS D ENIED BY THE APPELLANT AND THE SELLER AND WAS CONTRARY TO TH E ACTUAL SALE DEED IN RESPECT OF THE SAME PROPERTY EXECUTED BETWEEN THE PARTIES AND REGISTERED WITH APPROPRIATE AUTHORITY OF STATE GOVERNMENT. 5. THAT THE LD. CIT(A) HAS NOT CONSIDERED THE FACT THAT STATEMENTS OF SH. HARSH SINGLA &. SH. AMIT GOEL REC ORDED U/S 132(4) IN WHICH HE HAS DENIED HAVING MADE ANY P AYMENT OVER AND ABOVE RS. 5.50 CRORES TO THE SELL OF THE L AND IS OF PRIME IMPORTANCE AND CANNOT BE BRUSHED ASIDE. 6. THAT THE LD. CIT(A) HAS NOT CONSIDERED THE FACT THAT THE SO-CALLED SUBSEQUENT STATEMENT OF SH. HARSH SIN GLA, THE EX-DIRECTOR OF THE COMPANY CONFIRMING THAT THE PIEC E OF LAND WAS SOLD FOR RS. 18 CRORES HAD NEVER BEEN CONF RONTED TO THE APPELLANT AND NOR ANY COPY OF THE SAME HAD B EEN PROVIDED TO THE APPELLANT. 7. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LA W IN NOT VACATING THE INCORRECT FINDINGS/OBSERVATIONS MA DE BY THE AO ON PURE CONJECTURES AND SURMISES THAT THE CLOSIN G BALANCE OF RS.80,45,830/ - RECEIVABLE FROM SMT PARM INDER CHADHA, MR. TEJPAL SINGH AND MS. KAVITA CHADHA INDIVIDUALLY AGAINST SALE OF PROPERTY HAS BEEN ADJU STED OUT OF THE ALLEGED CASH PAYABLE TO THEM ON ACCOUNT OF A LLEGED PURCHASE OF PROPERTY FOR RS. 18 CRORES. 8. THAT THE LD. C1T(A) HAS ERRED IN NOT CONSIDERING TH AT NO PROPER OPPORTUNITY WAS AFFORDED TO ADDUCE T HE EVIDENCE TO HEAR THE CASE AND TO AFFORD OPPORTUNIT Y TO CROSS EXAMINE THE PARTIES IN QUESTION. 9. THAT ADDITION OF RS. 12.50 CRORES HAS BEEN CON FIRMED BY THE LD. CIT(A) AGAINST THE FACTS AND CIRCUMST ANCES OF THE CASE AND OUR DETAILED SUBMISSIONS HAVE NOT B EEN CONSIDERED PROPERLY. GROUND NOS. 1(A) AND 1(B) IN THESE GROUNDS THE ISSUE RAISED IS AS TO WHETHER THE AO HAD RESUMED JURISDICTION VALIDLY TO FRAME THE ASSESSMENT U/S 15 3 C OF THE ACT? 2. THE RELEVANT FACTS ARE THAT THERE WAS SEARCHED ON C ERTAIN ENTITIES OF THE PIYUSH GROUP AND SOME OF DIRECTORS OF THE GROUP ON 16.1.2008 AND VARIOUS DOCUMENTS WERE FOUND AND SEIZED. A NOTICE U/S 142 ( 1) DATED 28.8.2009 WAS ISSUED AND SERVED UPON THE ASSESSEE, ASKING THE ASS ESSEE TO FILE ITS RETURN OF INCOME FOR THE A.Y. 2008-09 AS SEARCH WAS CONDUCTED DURING THE PREVIOUS YEAR RELEVANT TO THIS ASSESSMENT YEAR. IN RESPONSE THER ETO ASSESSEE FILED ITS RETURN DECLARING TOTAL INCOME OF RS.4,77,500/- ON 12.10.20 09. THE ASSESSMENT HOWEVER, HAS BEEN FRAMED DETERMINING TOTAL INCOME A T RS.12,45,77,500/- BY MAKING ADDITION OF RS.12.50 CRORES ALLEGED TO HAVE BEEN MADE IN CASH OVER AND ABOVE THE SALE PRICE OF RS.5.50 CRORE SHOWN IN THE SALE DEED AGAINST THE PROPERTY AT VILLAGE MEWLA MAHARAJPUR, FARIDABAD. BEFORE THE LD. CIT (A) THE ASSESSEE QUESTIONED THE VERY JURISDICTION FOR ISSUING NOTICE U/S 153 C OF THE ACT ON THE GROUND THAT NO SATISFACTION WAS RECORDED BY THE AO AND NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WAS FORWARDED TO THE AO WHICH ARE MANDATORY REQUIREMENTS FOR ASSUMING JURISDICTION U/S 153 C OF THE ACT. THE LD. CIT (A) DID NOT AGREE WITH THESE CONTENTIONS OF THE ASSESSE E AND UPHELD THE VALIDITY OF THE ASSESSMENT. 2.1 BEFORE THE TRIBUNAL IN SUPPORT OF THE GROUND RAISED IN THIS REGARD, THE LD. AR SUBMITTED THAT THERE WAS NO SEARCH OR SURVEY CON DUCTED ON THE ASSESSEE. THE SEARCH WAS CONDUCTED ON PIYUSH COLONIZER LTD., PIYUSH DEVELOPERS, PIYUSH BUILDWELL LTD. AND SOME OF THE DIRECTORS OF THE PIY USH GROUP ON 16.1.2008. HE SUBMITTED THAT ASSESSMENT IN THE PRESENT CASE HAS B EEN FRAMED BY THE ASSESSING OFFICER U/S 143(3) READ WITH SECTION 153 C OF THE A CT AS PER COLUMN 10 OF THE FIRST PAGE OF THE ASSESSMENT ORDER. HE SUBMITTED TH AT BARE PERUSAL OF THE ASSESSMENT ORDER SUGGESTS THAT NO SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER BEFORE ASSUMPTION OF JURISDICTION U/S 153 C OF THE ACT AGAINST THE ASSESSEE. THE LD. AR SUBMITTED THAT BEFORE PROCEEDI NG U/S 153 C A SATISFACTION IS REQUIRED TO BE RECORDED BY THE ASSESSING OFFICER (IN SHORT AO) IN THE CASE OF A PERSON OTHER THAN THE PERSON SUBJECTED TO SEARCH AND IN WHOSE CASE PROCEEDINGS U/S 153 A HAVE BEEN INITIATED. NO SUCH SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER. HE REFERRED PAGE NO. 63 OF THE PAPER BOOK II, WHEREIN A COPY OF ORDER DATED 28.8.2009 RECEIVED BY THE ASSESSEE ON 22.11.2011 HAS BEEN MADE AVAILABLE. THE LD. AR SUBM ITTED THAT IN HIS ORDER AT PAGE NO. 6 THE LD. CIT (A) HAS CLAIMED THAT A SATIS FACTION NOTE WAS RECORDED ON 28.8.2009 BY THE AO FOR ISSUING OF NOTICE UNDER THE ACT BUT CONSEQUENT TO WHICH THE AO HAS ISSUED NOTICE U/S 142 (1) ON 28.9. 2009 TO THE ASSESSEE. HE SUBMITTED THAT THE LD. CIT (A) HAS STATED THAT THE SATISFACTION HAS BEEN RECORDED FOR WHICH HE HAS REFERRED TO A FAX COPY. THESE FIND INGS OF LD. CIT (A) IS NOT CORRECT BECAUSE THE ASSESSEE HAS PLACED AT PAGE NO. 63 OF THE PAPER BOOK II, THE ALLEGED SATISFACTION NOTE WHICH IS ONLY AN ORDER SH EET ENTRY DATED 28.8.2009, WHICH ACCORDING THE LD. CIT (A) IS SATISFACTION FOR THE PURPOSE OF ASSUMPTION OF JURISDICTION U/S 153 C. IT ONLY MENTIONS THE FACT O F SEARCH AND TRANSFER OF CASE FROM GHAZIABAD TO FARIDABAD. THERE IS NO MENTION OF THE SEIZED DOCUMENTS OR MATERIAL IN THE ALLEGED SATISFACTION NOTE REFERRED TO ABOVE. SECTION 153 C LAYS DOWN THE CONDITIONS FOR INITIATION OF PROCEEDINGS. AS PER THESE CONDITIONS SATISFACTION AND THE BOOKS OF ACCOUNT/VALUABLE SHOU LD BE BELONGING TO SUCH OTHER PERSON. BOTH THE CONDITIONS HAVE NOT BEEN SAT ISFIED IN THE PRESENT CASE, CLAIMED THE LD. AR. HE CONTENDED THAT NOTE OF SATIS FACTION MUST CONTAIN POSITIVE FINDING BY THE AO FOR MAKING ASSESSMENT U/S 153 A I NDICATING THEREIN THAT SEIZED MATERIAL AND THE PERSON TO WHOM SEIZED MATER IAL OR PART THEREOF BELONGS. HE SUBMITTED THAT THE ORDER-SHEET ENTRY DATED 28.8. 2009 SUPPLIED TO THE ASSESSEE MERELY REFERS TO ISSUE OF NOTICE U/S 142 (1) FOR TH E ASSESSMENT YEAR 2008-09, AFTER THE CASE HAS BEEN TRANSFERRED TO THE PRESENT AO. IF NO SATISFACTION HAS BEEN RECORDED, THEN THE VERY FOUNDATION OF COMPLETION OF ASSESSMENT U/S 153 A OR 153 C IS BAD IN LAW, SINCE IT HAS BEEN PROVIDED IN SECTION 153 C THAT AFTER THE ISSUE OF NOTICE U/S 153 C, THE ASSESSMENT SHALL BE FRAMED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153 A. 2.2 THE LD. AR SUBMITTED FURTHER THAT SECTIONS 158 BD A ND 153 C, ARE PARA MATERIAL. IT HAS BEEN LAID DOWN THAT INCRIMINATING MATERIAL RELATING TO THE ASSESSEE, OTHER THAN SEARCHED HAVE BEEN FOUND WITHI N SATISFACTION HAS TO BE RECORDED THAT UNDISCLOSED INCOME BELONGS TO ANY OTH ER PERSON, OTHER THAN THE SEARCHED. HE SUBMITTED THAT IN THE CASE OF PRESENT ASSESSEE NEITHER ANY DOCUMENTS RELATING TO THE ASSESSEE HAS BEEN FOUND N OR ANY SATISFACTION HAS BEEN RECORDED AND THUS THE QUESTION OF HANDING OVER OF T HE DOCUMENTS DO NOT ARISE AND IN THE ORDER THERE IS A REFERENCE TO CERTAIN DO CUMENTS BUT NONE OF THE DOCUMENTS IS LINKED TO THE ASSESSEE NOR THE AO HAS SAID ANYTHING ABOUT THE SAME. HE PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI 289 ITR 341 (SC). 2.3 THE LD. AR SUBMITTED FURTHER THAT AT PAGE NO. 7 OF THE FIRST APPELLATE ORDER THE LD. CIT (A) HAS STATED THAT THE ASSESSMENT HAD BEEN COMPLETED U/S 143(3) ON THE BASIS OF THE NOTICE ISSUED U/S 142 (1) AND MENT IONING OF SECTION 153 C DOES NOT VITIATE THE ASSESSMENT. THE LD. AR POINTED OUT THAT THOUGH THE LD. CIT (A) HAS HELD AS ABOVE, BUT STILL IT IS SUBMITTED THAT T HE LD. CIT (A) CANNOT CHANGE THE NATURE OF ASSESSMENT TO SECTION 153 C AND THEREFORE , THE FACT THAT PROCEEDINGS HAVE BEEN INITIATED U/S 153 C, SINCE NOTICES U/S 15 3 C FOR EARLIER ASSESSMENT YEARS HAVE BEEN ISSUED AND ASSESSMENT HAVE BEEN FRA MED THEREIN AFTER HAVING ASSUMING THE JURISDICTION U/S 153 C AND REOPENING T HE ASSESSMENTS FOR EARLIER YEARS AND THUS FINDINGS OF LD. CIT (A) IS NOT CORRE CT. HE SUBMITTED THAT LD. CIT (A) CANNOT CHANGE THE ASSESSMENT FRAMED UNDER SPECI FIC PROVISIONS RELATED TO SEARCH CASE TO THE PROCEDURE ADOPTED IN NORMAL CASE . THUS THE ASSESSMENT FRAMED U/S 143 (3) READ WITH SECTION 153 C IS VOID AB INITIO AND DESERVES TO BE CANCELLED. HE POINTED OUT WITH THE ASSISTANCE OF CH ART MADE AT PAGE NO. 1 OF THE SEQUENCE OF EVENTS FILED ON BEHALF OF THE ASSESSEE THAT IN THE ASSESSMENT YEARS 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 AND 200 7-08 ASSESSMENTS HAVE BEEN FRAMED U/S 143 (3) READ WITH SECTION 153 C OF THE ACT. ON THE BASIS OF THE NOTICE ISSUED U/S 153 C ON 28.8.2009, WHEREAS IN TH E ASSESSMENT YEAR 2008-09, THE NOTICE HAS BEEN SHOWN ISSUED U/S 142 (1) ON 18. 9.2009 INSTEAD OF THE PROVISIONS U/S 153 C OF THE ACT. THE ASSESSEE HAD F ILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 29.9.2008 AND THE DATE O F SEARCH REMAINED 16.1.2008 ONLY. HE SUBMITTED THAT NO NOTICE U/S 143 (2) WAS ISSUED BEFORE 30.9.2009 I.E. WITHIN ONE YEAR FROM THE MANDATORY T IME OF FILING THE RETURN ON 29.9.2008 AND THUS THE ASSESSMENT PROCEEDINGS BECAM E BARRED BY TIME. HE POINTED OUT THAT FRESH RETURN WAS FILED IN RESPONSE TO NOTICE ISSUED U/S 142 (1) AS A CONSEQUENCE OF ORDER SHEET ENTRY DATED 28.7.2009 UNDER THE PROVISIONS TO SECTION 153 C, WHICH IS VERY MUCH CLEAR FROM THE OR DER-SHEET ENTRY DATED 28.8.2009. THUS ASSESSMENT WAS COMPLETED U/S 153 A / 153 C WHICH IS COMPLETE CODE FOR ASSESSMENT IN SEARCH CASES ON THE BASIS OF NOTICE U/S 142 (1) ISSUED VIDE ORDER- SHEET ENTRY ON 28.8.2009. THE LD . AR CONTENDED THAT SINCE ASSESSMENT HAS BEEN FRAMED U/S 143 (3) READ WITH SE CTION 153 C ONLY AND ON THAT BASIS EARLIER YEARS NOTICES U/S 153 C WERE ALS O ISSUED, FINDING OF LD. CIT (A) ON ONE HAND THAT SATISFACTION WAS RECORDED IS ABSOL UTELY INCORRECT AND ALSO A CONTRADICTORY FINDINGS AND ON THE OTHER HAND THAT C URRENT ASSESSMENT U/S 153 C WAS NOT LIABLE TO BE MADE IS AGAIN WRONG BECAUSE TH E AO HAD ISSUED NOTICE U/S 153 C FOR THE PRECEDING 6 YEARS AND AS SUCH THE ASS ESSMENT HAS BEEN FRAMED U/S 143 (3) READ WITH SECTION 153 C AS MENTIONED IN THE ASSESSMENT ORDER ITSELF AND, THUS, FINDING OF LD. CIT (A) DESERVES TO BE QUASHED SINCE THERE IS A BINDING JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF MA NISH MAHESHWARI (SUPRA). LD. AR ALSO PLACED RELIANCE ON THE FOLLOWI NG DECISIONS: 1. CIT VS. RAMESH KUMAR 338 ITR 126 (P & H) 2. ITO VS. GINTER FORGINGS PVT. LTD. ITA NO. 508 TO 514/CHD/2008. 3. MANOJ AGRAWAL VS. DCIT 113 ITD 377 (SB) (DEL) 2.4 THE LD. AR SUBMITTED FURTHER THAT THE FAX MESSAGE W HICH WAS RECEIVED BY THE DEPARTMENT FROM ANONYMOUS SOURCES IS NOT THE DO CUMENT, SINCE IT IS NOT AN INFORCIBLE DOCUMENT, EITHER LEGALLY OR CONTRACTUALL Y AND IT CAN AT BEST BE STATED AS A PIECE OF UNRELIABLE INFORMATION, SINCE ORIGINA L DOCUMENT HAS NEVER BEEN CONFRONTED TO THE ASSESSEE. HE CONTENDED FURTHER TH AT THE FAX MESSAGE CANNOT BE SAID TO BE A DOCUMENT WITHIN PROVISIONS OF SECTION 132 BECAUSE IT HAS NO AUTHENTICITY IN THE EYES OF LAW. THUS ON THIS GROUN D ALONE THE ASSESSMENT IS BAD IN LAW. 2.5 THE LD. DR ON THE OTHER HAND TRIED TO JUSTIFY THE F IRST APPELLATE ORDER ON THE ISSUE. HE REFERRED THE CONTENTS OF THE PROVISIO NS LAID DOWN UNDER SECTIONS 153A AND 153C OF THE ACT. HE ALSO POINTED OUT THAT THE ASSESSMENT YEAR 2008- 2009 IN QUESTION IS RELATED TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED AND THUS AS PER THE PROVISIONS OF THESE SECTIONS AS SESSMENT FOR THE A.Y. 2008- 09 WAS TO BE MADE UNDER THE REGULAR PROVISIONS OF S ECTION 143 (3) AND NOT UNDER SECTION 153 C READ WITH SECTION 153A OF THE A CT. THE LD. DR POINTED OUT THAT SUCH ISSUE OF NON-RECORDING OF SATISFACTION WA S NOT RAISED BEFORE THE AO AND THE ASSESSEE PARTICIPATED IN THE PROCEEDING OF THE ASSESSMENT. 2.6 AFTER CONSIDERING THE ABOVE SUBMISSIONS AND HAVING GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AS WELL AS THE DECISIO NS RELIED UPON WE DO NOT FIND SUBSTANCE IN THE OBJECTION RAISED BY THE LD. AR AGA INST THE VALIDITY OF ASSESSMENT FRAMED U/S 153 C OF THE ACT. ADMITTEDLY SAME A.O. WAS HOLDING JURISDICTION OVER ALL THE CASES OF PIYUSH GROUP INC LUDING THE ASSESSEE COMPANY AND THEREFORE, WE ARE OF THE VIEW THAT THERE WAS NO REQUIREMENT FOR SENDING THE MATERIAL TO ANY OTHER AO. BESIDES, AS PER PROVISION S U/SECTIONS 153A/153 C OF THE ACT ASSESSMENT IN THE SEARCH CASES IS REQUIRED TO BE MADE FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE. IN THE PRESENT CASE BEFORE US SEARCH WAS CONDUCTED ON 16.1.2008 IN THE PREMISES OF PIYUSH GROUP AND RESIDENTIAL PREMISES OF THE DIRECTORS OF PIYUSH GROUP WERE ALSO SEARCHED WHEREIN VARIOUS DOCUMENTS AS NOTED IN THE ASSESSMEN T ORDER WERE FOUND AND SEIZED. THE DATE 16.1.2008 FALLS IN THE PREVIOUS YE AR RELEVANT TO THE ASSESSMENT YEAR 2008-09, THE YEAR UNDER CONSIDERATION AND THER EFORE, THE LD. CIT (A) HAS RIGHTLY HELD THAT THE ASSESSING OFFICER WAS JUSTIFI ED IN FRAMING THE ASSESSMENT U/S 143 (3) THOUGH READ WITH SECTION 153 C OF THE A CT FOR A.Y. 2008-09. WE CONCUR WITH HIS VIEW THAT MERE MENTIONING OF SECTIO N 153 C IN THE COLUMN NO. 10 OF THE MEMO OF THE ASSESSMENT ORDER DOES NOT VIT IATE THE ASSESSMENT. SO FAR AS CONTENTION OF THE LD. AR THAT SATISFACTION WAS N OT RECORDED BEFORE ISSUING NOTICE FOR THE ASSESSMENT YEAR 2008-09 TO THE ASSES SEE IS CONCERNED WE FIND THAT THE AO HAS RECORDED HIS SATISFACTION FOR PROCEEDING S U/S 153 C READ WITH SECTION 153 A OF THE ACT, ON 28.8.2009 BEFORE ISSUI NG NOTICES U/S 142 (1) FOR THE ASSESSMENT YEAR 2008-09 AND NOTICES ISSUED U/S 153 A READ WITH SECTION 153 C OF THE ACT IN THE REMAINING EARLIER ASSESSMENT YE ARS. THUS THERE IS NO SUBSTANCE IN THE CONTENTION OF THE LD. AR THAT SATI SFACTION OF THE AO WAS NOT RECORDED BEFORE INITIATING PROCEEDINGS U/S 153 C RE AD WITH SECTION 153A OF THE ACT AGAINST THE ASSESSEE. THE FIRST APPELLATE ORDER IN THIS REGARD IS THUS UPHELD. IN RESULT GROUND NOS. 1(A) AND 1(B) ARE REJECTED. GROUND NOS. 3 TO 9 3. THE RELEVANT FACTS ARE THAT DURING THE COURSE OF SEARCH ACTION ON 16.1.2008 IN THE PREMISES OF PIYUSH GROUP OF CASES CERTAIN DOCUMENTS WERE FOUND ON THE BASIS OF WHICH AND SOME DOCUMENTS RECE IVED THROUGH FAX BY THE DEPARTMENT, PROCEEDINGS U/S 153 C OF THE ACT INITIA TED AGAINST THE ASSESSEE. THE ASSESSMENT YEAR 2008-09 UNDER CONSIDERATION IS IRRE LEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS TAKEN PLACE. THE AO ISSUED NOTI CE U/S 142 (1) TO THE ASSESSEE. IN RESPONSE THERETO ASSESSEE FILED RETURN DECLARING AN INCOME OF RS.4,97,500/-. THE ASSESSMENT HAS BEEN FRAMED DETER MINING TOTAL INCOME AT RS.12,54,77,500/- BY MAKING ADDITION OF RS.12.5 CRO RES ON ACCOUNT OF CASH PAID OVER AND ABOVE SALE CONSIDERATION OF RS.5.50 CRORES FOR PURCHASE OF LAND AT VILLAGE MEWLA, MAHRAJPUR, FARIDABAD. THE LD. CIT (A ) HAS UPHELD THE SAME AGAINST WHICH ASSESSEE IS IN APPEAL BEFORE US. 3.1 THE LD. AR SUBMITTED THAT NO DOCUMENT OR ANY AGREEM ENT OR RECEIPT WAS FOUND DURING THE COURSE OF SEARCH FROM THE POSSESSI ON OF THE ASSESSEE AND THE ADDITION HAVE BEEN MADE ON THE BASIS OF CERTAIN INF ORMATION SENT TO THE DEPARTMENT THROUGH FAX MESSAGE BY SOME ANONYMOUS SO URCES. IT WAS CONTENDED THAT RELIANCE CANNOT BE PLACED ON SUCH UNCONFIRMED AND UNRELIABLE FAX MESSAGE WHICH HAS NOT BEEN EVEN CONFRONTED TO THE ASSESSEE, SUCH COPIES SHALL NOT CONSTITUTE A VALID EVIDENCE AND THEY CAN THE ADMITT ED AS A PIECE OF EVIDENCE ONLY WHEN ITS ORIGINAL COPY IS MADE AVAILABLE ON RE CORD. HE SUBMITTED THAT THE ASSESSEE COMPANY HAD PURCHASED LAND AT VILLAGE MEWL A MAHRAJPUR, FARIDABAD FROM SMT. PARMINDER CHADHA, MS. KAVITA CHADHA AND S H. TEJPAL SINGH, RESIDENTS OF 10, JANGPURA B NEW DELHI WHOSE PREMI SES WERE ALSO SEARCHED ON 16.1.2008. A SALE DEED WAS FOUND FROM THE PREMISES OF AFORESAID PERSONS WHICH PERTAIN TO THE SAID PROPERTY LOCATED AT VILLAGE MEW LA, MAHRAJPUR, AS PER WHICH THE ASSESSEE COMPANY HAD PURCHASED AFORESAID PROPER TY FROM THESE 3 PERSONS FOR A SUM OF RS.5.50 CRORES ON 5.6.2007. DURING THE COURSE OF SEARCH ON AGREEMENT TO SALE DATED 15.2.2007 OF THE PROPERTY W AS RECEIVED BY THE DEPARTMENT FROM ANONYMOUS SOURCES THROUGH FAX, ACCO RDING TO WHICH THE LAND IN QUESTION WAS AGREED TO BE SOLD AT RS.18 CRORES. A COPY OF RECEIPT DATED 15.2.2007 WAS ALSO RECEIVED ON FAX BY THE DEPARTMEN T AS PER WHICH SMT. PARMINDER CHADHA AND OTHERS HAD ACKNOWLEDGED THE RE CEIPT OF RS.2 CRORES (1 CRORE IN CASH AND 1 CRORE IN CHEQUE, DATED 15.2.200 7) AGAINST TOTAL AGREED AMOUNT OF RS.18 CRORES. THE AO ACCORDINGLY HELD THA T THE AFORESAID PROPERTY WAS ACTUALLY SOLD FOR RS.18 CRORES AS AGAINST RS.5 .50 CRORES SHOWN IN THE SALE DEED. IN THIS REGARD THE ASSESSING OFFICER ALSO PLA CED RELIANCE ON THE SATEMENTS OF SH. HARISH SINGLA RECORDED AGAIN DURING THE COUR SE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER ALSO OBSERVED TH AT THE SELLERS OF THE PROPERTY I.E. SMT. PARMINDER CHADHA, SH. TEJPAL SIN GH AND MS. KAVITA CHADHA HAD BOOKED COMMERCIAL SPACE IN ASSESSEES BUSINESS PARK-II FOR RS.1,42,50,000/- EACH. HOWEVER, THEY HAD PAID ONLY RS.62,04170/- INDIVIDUALLY THROUGH CHEQUE. THE BALANCE AMOUNT OF RS.80,45,830/ - PER INDIVIDUAL WAS SHOWN AS CLOSING BALANCE. THE ASSESSING OFFICER OBS ERVED THAT THOUGH SUBSTANTIAL AMOUNT IS DUE TO BE PAID BY THE AFORESA ID 3 SELLERS TO THE ASSESSEE COMPANY FOR BOOKING OF THE AFORESAID COMMERCIAL SPA CE, THEY ARE RECEIVING ASSURED INTEREST ON ABOVE PAYMENT WHICH CLEARLY SHO WS THAT CLOSING BALANCE SHOWN HAS BEEN ADJUSTED OUT OF THE CASH PAYABLE TO THE SELLERS. THE ASSESSING OFFICER HAS NOTED FURTHER THAT ADVANCE OF RS.1 CROR E GIVEN BY CHEQUE AS MENTIONED IN THE AGREEMENT DATED 15.2.2007 HAS BEEN ADJUSTED AGAINST TOTAL PURCHASED AMOUNT OF RS.5.50 CRORES MENTIONED IN THE SALE DEED. 3.2 THE LD. AR CONTENDED THAT THE AUTHORITIES BELOW HAV E RELIED UPON ANONYMOUS FAX MESSAGE IN SHAPE OF ONE AGREEMENT TO SELL DATED 15.2.2007 IN RESPECT OF THE ABOVE PROPERTY WITHOUT IDENTIFYING T HE PERSON WHO HAD FAXED IT. HE SUBMITTED THAT ON EVERY FAX MESSAGE THERE IS TEL EPHONE NO./NAME BUT IT HAS NOT BEEN INVESTIGATED DESPITE SPECIFIC REQUEST MADE IN THIS REGARD BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEE DINGS. THE ASSESSEE HAD ALSO RAISED THIS ISSUE IN ITS REPLY DATED 19.11.2009 WHI CH HAS BEEN REPRODUCED BY THE AO AT PAGE NOS. 7 TO 9 OF THE ASSESSMENT ORDER. HE SUBMITTED THAT THE ORIGINAL COPY OF THE FAXED DOCUMENT WAS NEVER MADE AVAILABLE FOR CONFRONTATION OF THE ASSESSEE, HENCE IN ABSENCE OF CORROBORATION BY THE PERSON WHO HAD SENT THE FAX IT CANNOT BE RELIED UPON. IN SUPPORT HE PLACED RELI ANCE ON THE FOLLOWING DECISIONS: * DAULAT RAM RAWATMAL 87 ITR 349 SUPREME COURT * K. P. VARGHESE VS. ITO 131 ITR 597 (SC) * MOTOR AND GENERAL STORE (P) LTD. (1967) 66 ITR 69 2 (SC) * CIT VS. RAJPAL SINGH RAM AVTAR (2005) 149 TAXMAN 32 (ALLD) * CIT VS. CHANDAN BUCHER (2010) 323 ITR 510 (P & H) * CIT VS. P.R. METRANI (2002) 120 TAXMAN 612 (KAR) * 1994 AIR SC 591 GOVT. OF A.P. VS. KARM C.V. REDDY & ORS. * P.V. JEWELLERY VS. ITO (1993) 45 TTJ (JP) 514 * RAM SWAROOP SAINI (HUF) VS. ACIT (2007) 15 SOT 470 (DEL) * 1993 AIR 2633 DISTRICT MAGISTRATES VS. R. KUMARAV EL DATED 04/08/1993 (SC). 3.3 THE LD. AR SUBMITTED FURTHER THAT STATEMENTS OF SH. HARISH SINGLA RECORDED U/S 132 (4) DURING THE COURSE OF SEARCH ON 16.1.2008 HAS GOT EVIDENTIARY VALUE HENCE IT CANNOT BE IGNORED. HE RE FERRED PAGE NOS. 14 TO 25 OF THE PAPER BOOK WHEREIN RELEVANT PAGES OF HIS STATEM ENTS HAVE BEEN MADE AVAILABLE. THE LD. AR SUBMITTED THAT IN HIS STATEME NTS RECORDED ON OATH U/S 132 (4) OF THE ACT, SH. HARISH SINGLA HAS STATED ABOUT THE PURCHASE CONSIDERATION OF THE PROPERTY AT RS.5.5 CRORE ONLY AND HE HAS CONFIR MED IN HIS STATEMENT THAT NO CASH PAYMENT WAS MADE. THE ASSESSING OFFICER HAS IG NORED THIS STATEMENT RECORDED U/S 132 (4) OF THE ACT AND HAS COMPLETELY RELIED UPON THE LATER STATEMENTS OF SH. HARISH SINGLA, RECORDED SUBSEQUEN TLY WHEREIN HE HAS CONTRADICTED HIS EARLIER STATEMENTS (RECORDED U/S 1 32 (4) OF THE ACT) BY SAYING THAT THE PROPERTY WAS ACTUALLY SOLD FOR RS.18 CRORE BUT IN THE SALE DEED THE CONSIDERATION WAS MENTIONED AT RS.5.5 CRORE ONLY AN D THE REMAINING AMOUNT WAS PAID IN CASH. THE LATER STATEMENT OF SH. HARISH SINGLA WAS RECORDED AT THE BACK OF THE ASSESSEE DURING THE COURSE OF ASSESSMEN T PROCEEDINGS WITHOUT AFFORDING OPPORTUNITY OF CROSS-EXAMINATION OF SH. S INGLA TO THE ASSESSEE. HE SUBMITTED THAT EVEN COPY OF HIS SAID STATEMENT WAS NOT SUPPLIED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE RE IS ONLY A REFERENCE TO THAT STATEMENT BY THE AO IN THE ASSESSMENT ORDER. THE LD . AR POINTED OUT THAT SH. HARISH SINGLA HAD RETRACTED FROM HIS EARLIER STATEM ENTS RECORDED U/S 132 (4) OF THE ACT THAT TOO AFTER MANY MONTHS AS HE WAS REMOVE D FROM THE DIRECTORSHIP OF THE COMPANY AND AN FIR WAS ALSO LODGED AGAINST HIM ON 12.1.2009. SH. HARISH SINGLA WAS REMOVED FROM THE DIRECTORSHIP OF THE COM PANY ON 9.1.2009. THUS THERE IS COMPLETE NEXUS OF THE SUBSEQUENT EVENT AND THE LATER STATEMENT OF SH. HARISH SINGLA, WHICH WAS DESIGNED TO HARM THE ASSES SEE AND THE STATEMENTS HAVE BEEN GIVEN BY HIM WITH MALICE AND THUS IT HAS NO EVIDENTIARY VALUE. HE CONTENDED THAT FOR ANY RETRACTION TO BE SUCCESSFUL IN THE EYES OF LAW, THE MAKER HAS TO SHOW AS TO HOW EARLIER RECORDED STATEMENTS D O NOT STATE THE TRUE FACTS OR THAT THERE WAS COERCION, INDUCEMENT OR THREAT WHILE RECORDING HIS EARLIER STATEMENTS U/S 132 (4). IN THIS REGARD HE PLACED RE LIANCE ON THE FOLLOWING DECISIONS: - T. S. KUMARA SWAMY VS. ACIT (1998) 65 ITD 188 (MAD) - SURJIT SINGH CHHABRA VS. UOI (1997) 1 SCC 508 - BACHITTAR SINGH VS. CIT (2010) 328 ITR 400 (P & H ) - ACIT VS. HUKUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISHGARH) - KANTI LAL VS. ACIT (2011) 14 TAXMAN 108 AHMEDABAD 3.4 THE LD. AR SUBMITTED FURTHER THAT THE STATEMENT S OF THE SELLERS OF THE PROPERTY RECORDED DURING THE COURSE OF SEARCH U/S 1 32 (4) OF THE ACT UNDER THE OATH AFFIRMING THE CONSIDERATION OF RS.5.50 CRORES FOR THE PROPERTY CANNOT BE BRUSHED ASIDE. REGARDING CERTAIN RECEIPTS FOUND FRO M THE PREMISES OF SMT. PARMINDER CHADHA, COPIES WHEREOF HAVE BEEN MADE AVA ILABLE AT PAGE NOS. 76 AND 77 OF THE PAPER BOOK VOLUME-II, THE LD. AR SUBM ITTED THAT THESE RECEIPTS ARE INCOMPLETE AS THERE ARE NO SIGNATURE OF ALL THE CO- OWNERS AND WITNESSES. HE SUBMITTED THAT THESE ARE NOT EVEN COPIES OF THE ORI GINAL RECEIPTS. THE RECEIPT AT PAGE NO. 75 IS A FAX COPY AND CANNOT BE RELIED UPON . SMT. PARMINDER CHADHA IN HER STATEMENTS RECORDED AGAIN ON 24.11.2009, A COPY WHEREOF HAS BEEN MADE AVAILABLE AT PAGE NOS. 60 TO 63 OF THE PAPER BOOK V OLUME 1 HAD DENIED TO HAVE RECEIVED ANY SUM OVER AND ABOVE RS.5.50 CRORES AND HAS ALSO NARRATED THE CIRCUMSTANCES UNDER WHICH THE RECEIPTS WERE FOUND F ROM HER PREMISES. EVEN DURING THE COURSE OF SEARCH IN HER STATEMENT RECORD ED U/S 132 (4) OF THE ACT. SMT. CHADHA HAD STATED THAT THE SALE CONSIDERATION OF THE PROPERTY WAS RS.5.50 CRORES ONLY. THE LD. AR ALSO REFERRED PAGE NO. 26 T O 30 OF THE PB VOLUME 1 I.E. COPY OF THE AGREEMENT RECEIVED BY THE DEPARTMENT ON FAX. 3.5 THE LD. DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THERE WAS SUFF ICIENT EVIDENCE WITH THE AO TO DRAW AN INFERENCE THAT UNACCOUNTED MONEY WAS INV OLVED IN THE TRANSACTION OF THE PURCHASE OF THE PROPERTY AT FARIDABAD. HE SUBMI TTED THAT TOTALITY OF THE FACTS IN THE PRESENT CASE IS REQUIRED TO BE TAKEN IN ACCO UNT TO DRAW A PROPER INFERENCE. THE LD. DR REFERRED PAGE NO. 26 TO 30 OF THE PAPER BOOK FILED BY THE ASSESSEE I.E. COPY OF THE ALLEGED AGREEMENT DATED 15.2.2007 RELIED UPON BY THE DEPARTMENT. HE SUBMITTED THAT THIS AGREEMENT HAS BE EN SIGNED BY ALL THE PARTIES AND WITNESSES. HE ALSO REFERRED PAGE NO. 75 OF THE PB VOLUME 2 FILED BY THE ASSESSEE WHICH IS THE COPY OF THE RECEIPT DATED 15. 2.2007 SHOWING THAT THE SELLERS HAD RECEIVED AN AMOUNT OF RS.2 CRORE OUT OF WHICH RS.1 CRORE WAS PAID IN CASH AND RS.1 CRORE VIDE CHEQUE BY THE ASSESSEE TOWARDS THE SALE CONSIDERATION FOR THE PROPERTY IN QUESTION. HE SUBM ITTED THAT THESE ARE THE FIRST SET OF EVIDENCE WHICH ITSELF ARE SUFFICIENT TO ESTA BLISH THAT THE SALE CONSIDERATION WAS ACTUALLY RS.18 CRORE AND NOT RS.5.5 CRORE ONLY SHOWN IN THE REGISTERED SALE DEED. HE SUBMITTED THAT THE SALE CONSIDERATION SHOW N IN THE REGISTERED SALE DEED WAS THE AMOUNT PAID THROUGH CHEQUE AND THE REMAININ G AMOUNT OF RS.12.50 CRORE HAS BEEN PAID IN CASH AS PER THE AGREEMENT TO SELL DATED 15.2.2007. 3.6 THE LD. DR SUBMITTED THAT THE SECOND SET OF EVI DENCE ARE RECEIPT DATED 11.4.2007 MADE AVAILABLE AT PAGE NO. 91 OF THE PAPE R BOOK FILED ON BEHALF OF THE DEPARTMENT AND RECEIPT DATED 14.5.2007 HAS BEEN MAD E AVAILABLE AT PAGE NO. 92 OF THE SAME PB. HE SUBMITTED THAT IN THE RECEIPT DA TED 11.4.2007 THE SELLER SMT. PARMINDER CHADHA HAS ACKNOWLEDGED THE RECEIPT OF SU M OF RS.1 CRORE IN LIEU OF A PART PAYMENT TOWARDS AGREEMENT OF SALE OF THE PRO PERTY AND RECEIPT DATED 14.5.2007 IS AGAIN ACKNOWLEDGMENT OF PAYMENT OF RS. 2 ,70,000,00/- FROM THE SELLER SMT. PARMINDER CHADHA TOWARDS THE PART PAYME NT OF THE SALE CONSIDERATION FOR THE PROPERTY. HE SUBMITTED THAT T HIS RECEIPT HAS ALSO BEEN ACKNOWLEDGED BY THE CO-OWNER MS. KAVITA. THUS BY TH ESE RECEIPTS TOTAL PAYMENT OF RS.3,70,000,00/- TOWARD THE SALE CONSIDE RATION HAS BEEN MADE BY THE ASSESSEE. THE LD. DR SUBMITTED THAT THE THIRD S ET OF EVIDENCE IS THE ACKNOWLEDGEMENT OF PAYMENT OF RS.2 CRORES TO SMT. P ARMINDER CHADHA ACKNOWLEDGED BY THE ASSESSEE VIDE ITS LETTER DATED 4.12.2009 MADE AVAILABLE AT PAGE NO. 41 OF THE PB FILED BY THE DEPARTMENT ( IN SHORT PB (D)). THE LD. DR ALSO REFERRED PAGE NO. 42 OF PB (D) SUPPORTING THE PAYME NT OF RS.2 CRORES IN THE LEDGER ACCOUNT OF SMT. PARMINDER CHADHA WITH THE AS SESSEE DURING THE F.Y. 2007-08. HE SUBMITTED THAT PERIOD OF THIS TRANSACTI ON SHOWN ON PAGE NO. 41 AND 42 OF THE PB (D) IS THE SAME AND THERE IS NO EVIDEN CE OF OTHER DEAL. 3.7 THE LD. DR SUBMITTED FURTHER THAT PAGE NO. 43 T O 64 ARE OF PB (D) ARE THE 4 TH SET OF EVIDENCE AGAINST THE ASSESSEE. THESE ARE CO PIES OF 3 AGREEMENTS DATED 14.5.2007 BETWEEN THE ASSESSEE ON ONE HAND AND SMT. PARMINDER CHADHA, MS. KAVITA CHADHA AND SH. TEJ PAL SINGH ON THE OTHER HA ND. THESE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF SMT. PARMINDER CHADHA AND HAVE BEEN MARKED AS ANNEXURE A-2. HE SUBMITTED THAT ASSESSEE IS A WELL ESTABLISHED REPUTED BUILDER. HE POINTED OUT THAT IN THESE AGREEMENTS ALL THE 3 C O-OWNERS OF THE PROPERTY AT FARIDABAD HAVE ENTERED INTO AN AGREEMENT ON 14.5.20 07 TO PURCHASE OFFICE PREMISES IN M/S PIYUSH BUSINESS PARK SITUATED AT MA IN MATHURA ROAD NH-2 (SECTOR 27), FARIDABAD OWNED BY THE ASSESSEE COMPAN Y. THE LD. DR POINTED OUT THAT IN THIS AGREEMENT TOTAL CONSIDERATION HAS NOT BEEN SHOWN BUT THE OFFICE PREMISES WAS SOLD AT THE RATE LESS THAN RS.3,000/- PER SQ. FT.. THESE DOCUMENTS SUGGEST THAT THE TRANSACTION WAS INTENDED TO ADJUST SQUARELY AGAINST THE SALE CONSIDERATION OF THE PROPERTY IN QUESTION WHICH WAS PURCHASED BY THE ASSESSEE FROM THE SAID 3 PERSONS / SELLERS. THE LD. DR SUBMI TTED FURTHER THAT THE 5 TH SETS OF EVIDENCE ARE THE STATEMENTS OF SH. HARISH SINGLA WH O WAS DIRECTOR OF THE ASSESSEE COMPANY DURING THE PERIOD WHEN TRANSACTION IN QUESTION TOOK PLACE. HE REMAINED SIGNATORY TO THE SALE DEED. HE REFERRED THOSE STATEMENTS OF SH. HARISH SINGLA RECORDED ON 20.10.2009 SUPPLIED BY TH E ASSESSEE. HE SUBMITTED THAT UNDER THE PROVISIONS OF SECTION 278 B OF THE C OMPANIES ACT, THE DIRECTOR OF THE COMPANY IS LIABLE FOR AN OFFENCE AND DESPITE HA VING KNOWN THIS FACT THE DIRECTOR SH. HARISH SINGLA HAS DARED TO STATE IN HI S STATEMENTS THAT THE PROPERTY IN QUESTION WAS AGREED TO BE SOLD AT RS.18 CRORES A ND OUT OF THE SAID AMOUNT RS.5.50 CRORE WAS PAID VIDE CHEQUE, WHICH WAS SHOWN IN THE REGISTERED SALE DEED AND THE REMAINING AMOUNT WAS PAID IN CASH. THE LD. DR WHILE CONCLUDING HIS ARGUMENT SUBMITTED THAT PROVISIONS OF EVIDENCE ACT, ARE NOT STRICTLY APPLICABLE IN THE MATTERS OF INCOME TAX ACT AND THE ABOVE 5 SETS OF EVIDENCE WERE SUFFICIENT TO DRAW AN INFERENCE BEYOND DOUBT T HAT THE PROPERTY IN QUESTION WAS ACTUALLY SOLD FOR RS.18 CRORES. HE SUBMITTED TH AT PREPONDERANCE OF PROBABILITY IS TO BE SEEN IN THE PRESENT CASE AND I T IS IN GENERAL PRACTICE THAT IN REAL ESTATE TRANSACTION ONLY CHEQUE AMOUNT IS SHOWN IN THE SALE DEED AND CASH PAYMENT IS ALWAYS INVOLVED IN SUCH DEALINGS. HE PLA CED RELIANCE ON THE FOLLOWING DECISIONS: - HOMI JEHANGIR GHEESTA VS. CIT (1961) 41 ITR 135 (SC ) - DHAKESWARI COTTON MILLS LTD. VS. CIT (1954) 26 I TR 775 (SC) - C VASANT LAL & CO. VS. CIT (1962) 45 ITR 206 (SC ) - SUMATI DAYAL VS. CIT (1995) 80 TAXMAN 89 (SC) - CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) - ACIT VS. JAY ENGINEERING WORKS LTD. (1978) 113 IT R 389 (DEL) - CIT VS. KRISHNA VENI AMMAL (1986) 158 ITR 826 (M AD) 3.8 THE LD. DR SUBMITTED FURTHER THAT THE DECISIONS RELIED UPON BY THE LD. AR HAVING DISTINGUISHABLE FACTS ARE NOT HELPFUL TO THE ASSESSEE. 3.9 THE LD. AR REJOINED WITH THE SUBMISSION THAT FI RST SET OF EVIDENCE ARE THE COPIES OF FAX MESSAGE RECEIVED BY THE DEPARTMENT FR OM UNKNOWN SOURCEDURING THE COURSE OF SEARCH. IT IS NEITHER THE PHOTO COPY OF THE ORIGINAL DOCUMENT NOR THE SOURCE FROM WHERE IT WAS RECEIVED IS IDENTIFIED . HE SUBMITTED THAT ORIGINAL OF THESE DOCUMENTS WERE NEVER FURNISHED BY THE DEPA RTMENT FOR VERIFICATION TO THE ASSESSEE HENCE, THESE FAX MESSAGES IN THE SHAPE OF AGREEMENT TO SELL AND RECEIPT CANNOT BE RELIED UPON NOR THESE CAN BE USED ADVERSELY AGAINST THE ASSESSEE. HE SUBMITTED FURTHER THAT NO DOCUMENT/EVI DENCE WAS FOUND DURING THE COURSE OF SEARCH FROM THE POSSESSION OF THE ASSESSE E. HE SUBMITTED FURTHER THAT THE SECOND SET OF EVIDENCE I.E. RECEIPTS MADE AVAIL ABLE AT PAGE NO. 76 AND 77 OF THE PB II (A) HAVE NOT BEEN SIGNED BY ALL THE CO- OWNERS OF THE PROPERTY. THE RECEIPT PLACED AT PAGE NO. 76 OF THE PB HAS BEEN SI GNED BY ONLY SMT. PARMINDER CHADHA. THE COPIES OF THESE RECEIPTS HAVE ALSO BEEN MADE APPLICABLE AT PAGE NOS. 91 AND 92 OF THE PB (D). THE LD. AR SUBMITTED THAT THESE RECEIPTS WERE FOUND AT THE PREMISES OF SMT. PARMINDER CHADHA WERE NEVER ACTED UPON. THAT WAS THE REASON THAT THESE RECEIPTS WERE LYING WITH THE SELLER OF THE PROPERTY SMT. PARMINDER CHADHA THOUGH THESE SHOULD HAVE BEEN FOUN D LYING WITH THE PURCHASER OF THE PROPERTY IN QUESTION IN CASE THESE WOULD HAVE BEEN ACTED UPON. REGARDING THIRD SET OF EVIDENCE I.E. LETTER DATED 4 .12.2009 AND ACCOUNT OF SMT. PARMINDER CHADHA IN THE BOOKS OF THE ASSESSEE SHOWI NG PAYMENT OF RS.2 CRORE, THE LD. AR SUBMITTED THAT IT WAS RELATING TO THE SO ME OTHER TRANSACTION. HE SUBMITTED THAT AN AMOUNT OF RS.2 CRORES WAS PAID SE PARATELY TO SMT. PARMINDER CHADHA FOR PURCHASE OF OTHER PROPERTY FROM HER AND THIS PAYMENT WAS ALTOGETHER A SEPARATE TRANSACTION WHICH WAS BEING S HOWN AS ADVANCED PAID IN THE FINANCIAL STATEMENT OF THE ASSESSEE. OUT OF THE SAID AMOUNT AN AMOUNT OF RS.1 CRORE WAS RECEIVED BACK SINCE THE TRANSACTION WAS NOT MATERIALIZED DUE TO NON-CLEARANCE OF THE TITLE OF THE PROPERTY. NO QUES TION WAS ASKED DURING SEARCH ABOUT THIS PAYMENT OF RS.2 CRORE. BESIDES THESE PAY MENT WERE ADMITTEDLY MADE THROUGH CHEQUES. REGARDING 4 TH SET OF EVIDENCE THE LD. AR SUBMITTED THAT IT WAS REGARDING SALE OF OFFICE PREMISES TO SMT. PARMINDER CHADHA, MS. KAVITA AND MR. TEJ PAL SINGH. HE SUBMITTED THAT THEY HAD BOOKE D OFFICE PREMISES IN A COMMERCIAL COMPLEX UNDER DEVELOPMENT OF THE ASSESSE E BUT THE COMMERCIAL COMPLEX COULD NOT BE DEVELOPED BY THE ASSESSEE DUE TO NON-CLEARANCE OF ADVERSE POSSESSION BY A THIRD PARTY ON THE PLOT ON WHICH THE PROJECT WAS TO BE DEVELOPED. THE AMOUNTS TAKEN IN ADVANCE FROM THE SA ID 3 PERSONS WERE ULTIMATELY RETURNED TO THEM. REGARDING THE 5 TH SET OF EVIDENCE THE LD. AR SUBMITTED THAT THESE ARE THE STATEMENTS OF SH. HARI SH SINGLA RECORDED SUBSEQUENT TO HIS STATEMENTS RECORDED U/S 132 (4) O F THE ACT DURING THE COURSE OF SEARCH. DURING THE COURSE OF SEARCH SH. SINGLA A S SUBMITTED EARLIER, HAD STATED UNDER OATH THAT THE PROPERTY WAS SOLD FOR RS .5.50 CRORE ONLY, WHEREAS IN HIS STATEMENTS RECORDED ON 20.10.2009 HE HAS CONTRA DICTED HIS OWN EARLIER STATEMENTS RECORDED U/S 132 (4) OF THE ACT BY SAYIN G THAT THE PROPERTY WAS ACTUALLY AGREED TO BE SOLD FOR RS.18 CRORES. HE HAS NOT BEEN CONFRONTED WITH HIS EARLIER STATEMENTS RECORDED U/S 132 (4) WHICH HAS G OT EVIDENTIARY VALUE NOR ANY REASON HAS BEEN SHOWN FOR MAKING A DIFFERENT STATEM ENTS ON 20.10.2009. IT IS ALSO NOT THE CASE OF SH. SINGLA THAT HE HAD MADE EA RLIER STATEMENTS U/S 132 (4) OF THE ACT UNDER DURESS, INFLUENCE COERCION, THREAT ET C. THE ASSESSEE WAS ALSO NOT AFFORDED WITH OPPORTUNITY TO CROSS-EXAMINATION SH. SINGLA, HENCE HIS STATEMENT RECORDED ON 20.10.2009 CANNOT BE RELIED UPON. BESID ES SH. SINGLA OF DIRECTOR OF THE COMPANY DURING THE TRANSACTION OF THE PROPERTY WAS LATER ON REMOVED FROM THE DIRECTORSHIP OF THE COMPANY AND AN FIR WAS ALSO LODGED BY THE ASSESSEE AGAINST HIM HENCE, HE WAS ADAMANT TO RUIN THE ASSES SEE. IN FURTHERANCE TO ACHIEVE THIS MOTIVE SH. SINGLA HAD MADE CONTRARY ST ATEMENTS. IT IS ALSO AN ESTABLISHED PROPOSITION OF LAW THAT A STATEMENT CAN NOT BE USED ADVERSELY TO A PERSON WITHOUT AFFORDING HIM AN OPPORTUNITY TO CROS S-EXAMINE THAT PERSON. HE SUBMITTED FURTHER THAT THOUGH IT IS NOT ADMITTED BUT EVEN IF THE AMOUNT ALLEGED TO HAVE BEEN PAID TOWARDS THE UNDISCLOSED S ALE CONSIDERATION AS PER THE RECEIPTS FOUND AND ADJUSTED BALANCE AMOUNT TO BE PA ID BY SMT. CHADHA AND OTHERS TO THE ASSESSEE AGAINST THE SALE PRICE IS AG GREGATED, IT DOES NOT MATCH WITH RS.12.50 CRORES ALLEGED TO HAVE BEEN PAID IN CASH O VER AND ABOVE RS.5.50 CRORE SHOWN IN THE SALE DEED. 3.10 WE HAVE CONSIDERED THE ARGUMENTS ADVANCE BY TH E PARTIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, MATERI AL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. UNDISPUTEDLY ONUS LIES UPON THE CLAIMANT TO ESTABLISH THE GENUINENESS OF ITS CLAIM. WE HAVE TO DECIDE IN THE PRESENT CASE AS TO WHETHER THE EVIDENCE FURNISHED BY THE AO WAS SUFFICIENT TO ESTABLISH HIS ALLEGATION THAT THE AMOUNT IN CONSIDERATION FOR THE PURCHASE OF PRO PERTY IN QUESTION WAS RS.18 CRORE. AS DISCUSSED ABOVE THE LD. DR HAS REFERRED 5 SETS OF EVIDENCES TO ESTABLISH THE ALLEGATION OF THE AO. FIRST SET OF EV IDENCE IS COPIES OF THE ALLEGED AGREEMENT TO SELL ALONG WITH OTHER PAPERS RECEIVED BY THE DEPARTMENT FROM ANONYMOUS SOURCES. COPIES OF THESE DOCUMENTS HAVE B EEN MADE AVAILABLE AT PAGE NOS. 26 TO 30 OF THE PB FILED BY THE ASSESSEE. IT IS AGREEMENT TO SELL DATED 5 TH FEB. 2007. THE COPY OF OTHER DOCUMENT HAS BEEN PLA CED AT PAGE NO. 75 OF THE PB-II. IT IS COPY OF A RECEIPT RECEIVED ON FAX BY T HE DEPARTMENT. IN THE SAID AGREEMENT DATED 15.2.2007 BETWEEN THE SMT. PARMINDE R CHADHA, SH. TEJ PAL SINGH AND MS. KAVITA AS FIRST PARTY AND THE ASSESSE E AS SECOND PARTY, THE CONSIDERATION AMOUNT FOR THE SALE OF THE PROPERTY A T MEWLA, MAHARAJPUR, FARIDABAD HAS BEEN SHOWN AT RS.18. CRORE. THE SUBMI SSION OF THE LD. DR REMAINED THAT THE AGREEMENT DATED 15.2.2007 HAS BEE N SIGNED BY BOTH THE PARTIES CONCERN. SIMILARLY THE SAID RECEIPT DATED 1 5.2.2007 SHOWING THE RECEIPT OF RS.1 CRORE IN CASH AND A CHEQUE OF RS.1 CRORE DA TED 15.2.2007 DRAWN ON PUNJAB NATIONAL BANK HAS BEEN SIGNED BY BOTH THE PA RTIES. THE LD. DR SUBMITTED FURTHER THAT THE OTHER EVIDENCE DISCUSSED IN THE REMAINING SETS OF EVIDENCE CORROBORATE THE PAYMENT OF RS.18 CRORE AGR EED UPON BETWEEN THE PARTIES AS THE TOTAL CONSIDERATION FOR THE PURCHASE OF THE PROPERTY BY THE ASSESSEE HOWEVER, IN THE SALE DEED REGISTERED, THE AMOUNT PA ID THROUGH CHEQUE FOR RS.5.50 CRORE ONLY HAS BEEN SHOWN AS THE SALE CONSI DERATION. AS PER HIM THE REMAINING AMOUNT OUT OF RS.18 CRORE HAS BEEN PAID I N CASH. SO FAR OTHER SETS OF EVIDENCE ARE CONCERN WE WILL DISCUSS ITS RELIABILIT Y IN THE SUCCEEDING PARAGRAPHS. THE CONTENTION OF THE LD. AR AGAINST TH E RELIABILITY OF THE FIRST SET OF EVIDENCE REMAINED THAT BOTH THE ALLEGED AGREEMENT D ATED 15.2.2007 AND RECEIPT DATED 15.2.2007 HAVE BEEN SENT TO THE DEPARTMENT ON FAX FROM THE UNKNOWN PERSON AND HENCE IN ABSENCE OF IDENTITY OF THE SOUR CE AND ORIGINAL COPIES OF THESE DOCUMENTS, THE SAME CANNOT BE RELIED UPON. HE CONTENDED FURTHER THAT EVEN THE TELEPHONE NO./ NAME APPEARING ON FAX MESSA GE WAS NOT INVESTIGATED DESPITE SPECIFIC REQUEST OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN SUPPORT HE REFERRED PAGE NOS. 31 TO 33 OF THE PAPER BOOK AND ALSO THE REPLY DATED 19.11.2009 IN THIS REGARD REPR ODUCED AT PAGE NO. 7 OF THE ASSESSMENT ORDER. THE LD. AR CONTENDED FURTHER THAT SINCE THE FAX MESSAGE HAS NOT BEEN FOUND FROM THE PREMISES OF THE ASSESSEE, T HE ONUS TO ESTABLISH ITS GENUINENESS DOES NOT LIE UPON THE ASSESSEE. HE HAS PLACED RELIANCE ON SEVERAL DECISIONS IN SUPPORT. HAVING GONE THROUGH THESE DEC ISIONS WE FIND THAT IN THE CASE OF DISTRICT MAGISTRATE VS. R. KUMARAVEL (SUPRA ) THE HONBLE SUPREME COURT HAS BEEN PLEASED TO HOLD THAT A TELEGRAMME BY ITSELF IS NOT AN AUTHENTIC DOCUMENT, IT IS LIKE AND UNSIGNED AND ANONYMOUS COM MUNICATION, UNLESS A TELEPHONE IS CONFIRMED BY A SUBSEQUENT SIGNED APPLI CATION, REPRESENTATION OR AN AFFIDAVIT; THE CONTENTS OF THE TELEPHONE HAVE NO AU THENTICITY AT ALL AND THE SAME CANNOT BE TAKEN INTO CONSIDERATION FOR ASSESSING TH E VALUE OF THE OTHER AUTHENTIC DOCUMENTS ON THE RECORD. IN THAT CASE BEFORE HONBL E SUPREME COURT THE DETENTION ORDER WAS PASSED BY THE DISTRICT MAGISTRA TE ON THE BASIS OF THE MATERIAL PLACED BEFORE HIM BY THE POLICE AUTHORITIE S. THE HONBLE HIGH COURT WAS PLEASED TO HOLD THAT ANY MATERIAL RECEIVED BY T HE DISTRICT MAGISTRATE IN THE SHAPE OF TELEGRAM COULD NOT BE TAKEN INTO CONSIDERA TION BY HIM IN THE ABSENCE OF ANY SUBSEQUENT COMMUNICATION CONFIRMING THE SAME . THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF RAM SWAROOP SAINI (HUF) VS. ACIT (SUPRA) HAS HELD THAT A MERE PHOTO COPY OF A DOCUMENT CANNOT BE CONS IDERED TO BE RELIABLE UNLESS THE ORIGINAL DOCUMENT IS BROUGHT ON RECORD. IN THAT CASE THE AO WAS IN POSSESSION OF COPIES OF THE ALLEGED AGREEMENT TO SE LL WHICH SHOWED HIGHER PRICE THAN THAT RECORDED IN THE SALE DEED AND THE AO DID NOT POSSESS THE ORIGINAL NOR HE INFORMED AS TO HOW THE COPIES OF THE SAID AGREEM ENT TO SELL CAME INTO HIS POSSESSION. SIMILAR ARE THE FACT IN THE PRESENT CAS E THE AO WAS NOT HAVING THE ORIGINAL COPIES OF THE AGREEMENT TO SELL AND RECEIP T BOTH DATED 15.2.2007 NOR HAD HE DISCLOSED THE IDENTITY OF THE PERSON WHO HAD SENT THESE DOCUMENTS TO THE DEPARTMENT THROUGH FAX. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS RELIED UPON BY THE LD. AR WE HOLD THAT THESE DOCUMENTS WERE NOT HAVING ANY EVIDENTIARY VALUE IN THE EYES OF LAW HENCE, THESE ARE NOT RELIA BLE. IN OTHER WORDS ON THE BASIS OF THESE DOCUMENTS ALONE IT CANNOT BE SAID BE YOND DOUBT THAT THE SALE CONSIDERATION INVOLVED IN THE TRANSACTION OF THE PR OPERTY IN QUESTION WAS RS.18 CRORE INSTEAD OF RS.5.50 CRORE SHOWN IN THE REGISTE RED SALE DEED. 3.11 SO FAR AS SECOND SET OF EVIDENCE RELIED UPON B Y THE LD. DR IS CONCERNED, THESE ARE THE COPIES OF TWO RECEIPTS MADE AVAILABLE AT PAGE NOS. 91 TO 92 OF THE PB (D). THE COPY OF CASH RECEIPT OF RS.1 CRORE DATE D 11.4.2007 HAS BEEN PLACED AT PAGE NO. 91 OF THE PB (D) AND RECEIPT OF RS.2.70 CRORE DATED 14.5.2007 HAS BEEN PLACED AT PAGE NO.92 OF THE PB (D). IN THE COP Y OF RECEIPT DATED 11.4.2007 AMOUNT OF RS.1 CRORE IN CASH SHOWN TO HAVE BEEN REC EIVED IN LIEU OF A PART PAYMENT TOWARDS AGREEMENT OF SALE DATED NIL FROM TH E ASSESSEE. IN THE RECEIPT DATED 14.5.2007 AN AMOUNT OF RS.2.70 CRORE SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE AS IN LIEU OF A PART PAYMENT TOWARDS AGREE MENT OF SALE DATED NIL. THUS RS.3.70 CRORE HAS BEEN SHOWN PAID IN CASH AS A PART PAYMENT TOWARDS AGREEMENT TO SELL BY THE ASSESSEE TO THE OWNERS OF THE PROPER TY. THE LD. DR SUBMITTED THAT THE AMOUNT SHOWN IN THESE RECEIPTS PAID IN A CASH C ORROBORATES THIS FACT THAT THESE PAYMENTS WERE MADE ABOVE THE AMOUNT SHOWN IN THE SALE DEED AT RS.5.50 CRORE THROUGH CHEQUE. THE CONTENTION OF THE LD. AR REMAINED THAT THESE RECEIPTS HAVE NOT BEEN SHOWN SIGNED BY THE REMAINING CO-OWNE RS OF THE PROPERTY I.E. SH. TEJ PAL SINGH AND MS. KAVITA NOR THESE RECEIPTS HAVE BEEN SIGNED BY THE ASSESSEE. HIS FURTHER CONTENTION REMAINED THAT THES E RECEIPTS SHOULD HAVE BEEN FOUND FROM THE POSSESSION OF THE ASSESSEE SINCE ASS ESSEE WAS THE PURCHASER OF THE PROPERTY FROM SMT. PARMINDER CHADHA, SH. TEJ PA L SINGH AND MS. KAVITA HOWEVER, THESE HAVE BEEN RECOVERED FROM THE POSSESS ION OF SMT. PARMINDER CHADHA. HE SUBMITTED FURTHER THAT SMT. PARMINDER CH ADHA IN HER STATEMENT RECORDED ON 24.11.2009 HAS STATED THAT THE COPIES O F THE SAID RECEIPTS FOUND FROM HER POSSESSION DURING THE COURSE OF SEARCH ARE DRAFT COPIES OF THE RECEIPTS WHICH WERE TO BE ISSUED WHEN THE AMOUNT WAS TO BE R ECEIVED. SHE SUBMITTED THAT THERE WAS AN AGREEMENT TO SELL THE PROPERTY IN QUESTION FOR RS.8 CRORE WHICH COULD NOT BE MATERIALIZED HENCE CONSIDERATION MENTI ONED THEREIN NEVER PASSED HANDS. THUS THESE RECEIPTS WERE NEVER ISSUED TO THE ASSESSEE. ON PERUSAL OF THESE RECEIPTS WE OBSERVE THAT THESE ARE NOT SIGNED BY ALL THE OWNERS OF THE PROPERTY BUT SIGNATURE OF SMT. PARMINDER CHADHA ONL Y HAS BEEN SHOWN. THERE IS ALSO SUBSTANCE IN THE SUBMISSION OF THE LD AR THAT IF THESE RECEIPTS WOULD HAVE BEEN ACTED UPON, THESE SHOULD HAVE BEEN FOUND FROM THE POSSESSION OF THE PURCHASER I.E. ASSESSEE WHO HAS BEEN SHOWN MADE THI S PAYMENT TO THE OWNERS OF THE PROPERTY. UNDER THESE CIRCUMSTANCES WE ARE OF T HE VIEW THAT ON THE BASIS OF THESE DOCUMENTS ALONE AN INFERENCE BEYOND DOUBT CAN NOT BE DRAWN THAT THESE AMOUNT OF RS.3.70 CRORES WERE PAID BY THE ASSESSEE TO THE OWNERS OF THE PROPERTY. 3.12 THE THIRD SET OF EVIDENCE RELIED UPON BY THE D EPARTMENT ARE COPY OF A LETTER DATED 4.12.2009 ALONG WITH COPY OF ACCOUNT O F SMT. PARMINDER CHADHA IN THE BOOKS OF THE ASSESSEE, MADE AVAILABLE AT PAGE N OS. 41 AND 42 OF THE PB (D). THE LD. DR SUBMITTED THAT THESE DOCUMENTS HAVE BEEN PROCURED FROM THE ASSESSMENT RECORD OF SMT. PARMINDER CHADHA AND COPI ES OF THESE DOCUMENTS HAVE BEEN MADE AVAILABLE AT PAGE NO. 41 AND 42 OF T HE PB (D). IN THE LETTER DATED 4.12.2009 OF THE ASSESSEE ADDRESSED TO THE AO IT HA S BEEN SUBMITTED THAT RS.2 CRORE WAS PAID SEPARATELY TO SMT. PARMINDER CHADHA FOR PURCHASE OF OTHER PROPERTY FROM HER AND THIS PAYMENT IS ALTOGETHER A SEPARATE TRANSACTION WHICH IS BEING SHOWN AS ADVANCE PAID IN THE FINANCIAL STATEM ENT OF THE ASSESSEE. IT HAS BEEN SUBMITTED FURTHER THAT OUT OF THE ABOVE AMOUNT , AMOUNT OF RS.1 CRORE WAS RECEIVED BACK. THE TRANSACTION WAS NOT YET MATERIAL IZED SINCE THE TITLE OF THE PROPERTY WAS NOT CLEARED. IN SUPPORT LEDGER ACCOUNT OF SMT. PARMINDER CHADHA WITH THE ASSESSEE WAS ATTACHED, A COPY WHEREOF HAS BEEN MADE AVAILABLE AT PAGE NO. 42 OF THE PB (D). THE LD. DR SUBMITTED THAT THE TRANSACTION PERIOD OF THE CLAIMED SEPARATE DEAL IS THE SAME AND THERE IS NO E VIDENCE OF OTHER DEAL ON RECORD CLAIMED AS BY THE ASSESSEE IN HIS LETTER DAT ED 4.12.2009. THE LD. AR ON THE OTHER HAND CONTENDED THAT EVEN IF THE EXPLANATI ON OF THE ASSESSEE REGARDING PAYMENT OF THIS AMOUNT SHOWN IN THE DOCUMENTS IS DE NIED, NO INFERENCE CAN BE DRAWN THAT PAYMENT WAS MADE TOWARDS THE SALE CONSID ERATION OF THE PRESENT PROPERTY IN QUESTION. 3.13 THE LD. AR SUBMITTED THAT THERE WAS NO QUESTIO N OF TAKING EXTRA PAYMENT THROUGH CHEQUE AND DURING THE SEARCH PROCEEDINGS NO SPECIFIC QUESTION WAS ASKED TO THE ASSESSEE REGARDING THE PAYMENT OF RS.2 CRORE SHOWN IN THE LEDGER ACCOUNT OF SMT. PARMINDER CHADHA WITH THE ASSESSEE, MADE AVAILABLE AT PAGE NO. 42 OF THE PB (D). WE ARE NOT FULLY CONVINCED WI TH THE CONTENTION OF THE LD. AR IN THIS REGARD, BUT AT THE SAME TIME ON THE BASI S OF THE STATED PAYMENT OF RS.2 CRORES THROUGH CHEQUE AN INFERENCE BEYOND DOUB T CANNOT BE DRAWN THAT THE AMOUNT WAS PAID TOWARDS THE SALE CONSIDERATION OF T HE PROPERTY IN QUESTION. 3.14 THE 4 TH SET OF EVIDENCE RELIED UPON BY THE LD. DR ARE COPI ES OF THE DOCUMENTS MADE AVAILABLE AT PAGE NOS. 43 TO 90 OF T HE PB (D). THESE ARE COPIES OF THE 3 AGREEMENTS DATED 14.5.2007 BETWEEN THE ASS ESSEE AT ONE HAND AND SMT. PARMINDER CHADHA, MS. KAVITA CHADHA AND SH. TEJ PAL SINGH ON THE OTHER HAND. THESE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF S MT. PARMINDER CHADHA. REFERRING THESE DOCUMENTS, THE LD. DR SUBMITTED THA T TOTAL CONSIDERATION HAS NOT BEEN SHOWN IN THE AGREEMENT. THESE AGREEMENTS WERE ENTERED INTO BETWEEN THE ASSESSEE AND THE ABOVE NAMED 3 PERSONS FOR PURCHASE OF AN OFFICE SPACE MEASURING 2000/- SQ. FT. SUPER AREA IN THE FIRST FL OOR OF THE BUSINESS PARK NAMED AS M/S PIYUSH BUSINESS PARK, SITUATED AT MAIN MATHU RA ROAD, NH-2 (SECTOR 27), FARIDABAD UNDER THE DEVELOPMENT OF THE ASSESSEE. EA CH OF THE SAID 3 PERSONS I.E. SECOND PARTY SHOWN TO HAVE AGREED ON THE SALE CONSI DERATION AND THEY HAVE PAID TO THE FIRST PARTY PRIOR TO THE EXECUTION OF THE AG REEMENT AN AMOUNT OF RS.62,04,170/- EACH AS THE BOOKING AMOUNT THROUGH C HEQUE AND BALANCE AMOUNT OF RS.7.50 LAC EACH WAS AGREED UPON TO BE PAID AT T HE TIME OF HANDING OVER OF THE POSSESSION. THE LD. DR SUBMITTED THAT THEY HAVE PAID ONLY RS.62,04,170/- INDIVIDUALLY THROUGH CHEQUE AND THE BALANCE AMOUNT OF RS.80,45,830/- INDIVIDUALLY HAS BEEN SHOWN AS CLOSING BALANCE. THO UGH SUBSTANTIAL AMOUNT IS DUE TO BE PAID BY THE AFORESAID 3 SELLERS TO THE AS SESSEE COMPANY FOR BOOKING OF THE AFORESAID COMMERCIAL SPACE, BUT THEY ARE RECEIV ING ASSURED INTEREST ON THE ABOVE PAYMENT WHICH CLEARLY INDICATE THAT THE BALAN CE SHOWN HAS BEEN ADJUSTED OUT OF THE CASH PAYMENT TO THE SELLERS THE PROPERTY IN QUESTION. THE LD. DR POINTED OUT FURTHER THAT AN ADVANCE OF RS.1 CRORE G IVEN BY CHEQUE AS MENTIONED IN THE AGREEMENT DATED 15.2.2007 HAS BEEN ADJUSTED AGAINST TOTAL PURCHASE AMOUNT OF RS.5.50 CRORES MENTIONED IN THE SALE DEED . HE SUBMITTED THAT THESE FACTS CLEARLY LEAD TO A CONCLUSION THAT THE PROPERT Y IN QUESTION HAS BEEN PURCHASED BY THE ASSESSEE FOR RS.18 CRORES AS AGAIN ST RS.5.50 CRORES SHOWN IN THE SALE DEED AND BALANCE AMOUNT OF RS.12.50 CRORES HAS BEEN PAID IN CASH. 3.15 THE LD. AR CONTENDED THAT THE OFFICE PREMISES BOOKED IN THE NAME OF THE ABOVE 3 PERSONS IN THE BUSINESS COMPLEX TO BE DEVEL OPED BY THE ASSESSEE CONCERN DOES NOT IN ANY WAY SUPPORT THE ALLEGATION OF THE A.O. THAT THE TOTAL SALE CONSIDERATION IN THE CASE OF PROPERTY IN QUESTION P URCHASED BY THE ASSESSEE WAS RS.18 CRORES. HE POINTED OUT THAT THE SAID BUSINESS COMPLEX COULD NOT BE DEVELOPED BY THE ASSESSEE AND THE LAND ON WHICH THE SAID BUSINESS COMPLEX, WAS TO BE DEVELOPED IS STILL IN DISPUTE AND NO CUST ODIAN HAS BEEN RAISED SO FAR. IT IS ONLY AN IMAGINATION OF THE ASSESSING OFFICER THA T ANY ADJUSTMENT OF SALE CONSIDERATION OF THE PROPERTY IN QUESTION HAS BEEN MADE AGAINST BOOKING OF THE SPACE BY THE ABOVE 3 PERSONS. HE SUBMITTED THAT THE SALE CONSIDERATION OF THE PROPERTY AT RS.5.50 CRORES AS PER REGISTERED DEED O F THE PROPERTY HAS ALREADY BEEN PAID BY THE ASSESSEE. CONSIDERING THESE SUBMIS SIONS WE ARE OF THE VIEW THAT THERE IS NO EVIDENCE BEYOND DOUBT TO ESTABLISH THE ALLEGATION OF THE DEPARTMENT THAT THE AMOUNT PAYABLE BY THE ABOVE 3 P ERSONS TOWARDS THEIR BOOKING OF THE SPACE IN THE BUSINESS PREMISES TO BE DEVELOPED BY THE ASSESSEE, WAS ACTUALLY PAID TO THE ASSESSEE BY WAY OF ADJUSTM ENT OF THE SALE CONSIDERATION TOWARDS THE PROPERTY IN QUESTION ABOVE THE AMOUNT S HOWN IN THE SALE DEED OR TOWARDS RS.18 CRORES SHOWN IN THE ALLEGED AGREEMENT TO SELL DATED 15.2.2007 RECEIVED BY THE DEPARTMENT ON FAX. 3.16 THE 5 TH SET OF EVIDENCE RELIED UPON BY THE AO AND LD. DR A RE THE SET OF STATEMENTS OF SH. HARISH SINGLA RECORDED BY THE AO ON 20.10.2010, WHEREIN HE HAS SPECIFICALLY STATED THAT THE PROPERTY IN QUESTI ON WAS PURCHASED FOR RS.18 CRORES HOWEVER, IN THE SALE DEED AMOUNT OF RS.5.50 CRORES PAID THROUGH CHEQUE ONLY WAS SHOWN. THE LD. DR SUBMITTED THAT SH. SINGL A DURING THE PERIOD WHEN THE TRANSACTION WAS ENTERED INTO WAS DIRECTOR OF TH E ASSESSEE COMPANY AND HE ALSO REMAINED SIGNATORY OF THE AGREEMENT AS WELL AS SALE DEED ON BEHALF OF THE ASSESSEE COMPANY. HIS STATEMENT HAS THUS GOT EVIDE NTIARY VALUE AND HAS BEEN RIGHTLY RELIED UPON BY THE AO. 3.17 THE CONTENTION OF THE LD. AR IN THIS REGARD RE MAINED THAT THE SAID STATEMENTS OF SH. HARISH SINGLA SUBSEQUENTLY RECORD ED BY THE AO WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAM INE HIM CANNOT BE USED ADVERSELY AGAINST THE ASSESSEE. HIS FURTHER CONTENT ION REMAINED THAT SH. SINGLA HAS NOT BEEN CONFRONTED BY THE AO WITH HIS CONTRARY STATEMENTS MADE BY HIM DURING THE COURSE OF SEARCH PROCEEDINGS U/S 132 (4) OF THE ACT ON 16.1.2008, WHEREIN HE HAD STATED ON OATH THAT SALE CONSIDERATI ON OF THE PROPERTY WAS RS.5.50 CRORE AS DECLARED IN THE SALE DEED. HIS CON TENTION ALSO REMAINED THAT STATEMENTS RECORDED U/S 132 (4) OF THE ACT ON OATH CARRIES MORE WEIGHT AND RELIABILITY AND UNLESS THERE IS STRONG REASON FOR, ONE CANNOT DEVIATE FROM HIS SUCH STATEMENTS SUBSEQUENTLY. NO SUCH REASON HAS BE EN ASSIGNED BY SH. SINGLA IN THE PRESENT CASE FOR DEVIATING FROM HIS EARLIER STATEMENT RECORDED U/S 132 (4) OF THE ACT. RELIANCE HAS BEEN PLACED ON SEVERAL DEC ISIONS. IT WAS ALSO SUBMITTED THAT LATER ON SOME ENEMITY WAS DEVELOPED BETWEEN SH . HARISH SINGLA AND THE ASSESSEE WHICH ALSO LED IN FILING OF AN FIR AGAINST HIM ON 21.11.2009 AND HE WAS ALSO TERMINATED FROM THE DIRECTORSHIP OF THE CO MPANY. UNDER THIS BACKGROUND SH. HARISH SINGLA HAD DEVIATED FROM HIS STATEMENTS MADE DURING THE COURSE OF SEARCH PROCEEDINGS. WE FIND SUBSTANCE IN THE ABOVE CONTENTION OF THE LD. AR SO FAR AS CREDIBILITY AND RELIABILITY OF THE STATEMENTS SUBSEQUENTLY MADE BY SH. HARISH SINGLA IN CONCERN. IT IS AN ESTA BLISH PROPOSITION OF LAW THAT STATEMENTS MADE U/S 132 (4) ON OATH DURING THE COUR SE OF SEARCH HAS GOT EVIDENTIARY VALUE AND FOR RETRACTING FROM SUCH STAT EMENTS THERE MUST BE SUFFICIENT REASON LIKE UNDUE INFLUENCE, FREIGHT, DU RESS TO BE ESTABLISHED BY SUCH PERSON AND THAT SUCH RETRACTION SHOULD BE WITHIN RE ASONABLE TIME. NO SUCH FACT HAS BEEN BROUGHT ON RECORD IN THE PRESENT CASE BY S H. HARISH SINGLA TO DEVIATE FROM HIS EARLIER STATEMENTS RECORDED U/S 132 (4) OF THE ACT. THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF BACHITTAR SIN GH VS. CIT (SUPRA) RELIED UPON BY THE LD. AR, HAS BEEN PLEASED TO HOLD THAT T HE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT RETRACTION MADE AFTER 2 MONTHS WAS NOT PERMISSIBLE AND VOLUNTARY STATEMENTS RECORDED IN THE PRESENCE OF FAMILY MEMBE RS WAS AN IMPORTANT MATERIAL WHICH COULD BE ACTED UPON. IN THAT CASE TH E AO MADE ADDITION ON THE BASIS OF STATEMENTS RECORDED DURING THE COURSE OF S URVEY. THE ADDITION WAS IN RESPECT OF INVESTMENT NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE ASSESSEE LATER ON RETRACTED FROM HIS EARLIER STATEMENTS BY TAKING STAND THAT HE HAD AGRICULTURE INCOME TO THAT EFFECT INVESTMENT WAS FROM THAT SOUR CE. IN THE CASE OF ACIT VS. HUKUM CHAND JAIN (SUPRA) BEFORE THE HONBLE HIGH CO URT OF CHHATTISGARH RELIED UPON BY THE LD. AR, THE ASSESSEE COULD NOT E XPLAIN RECOVERY OF CASH AND JEWELLERY DURING THE COURSE OF SEARCH PROCEEDINGS A ND IN HIS STATEMENT RECORDED U/S 132 (4) HE HAD SURRENDERED CERTAIN AMOUNT AS HI S UNDISCLOSED INCOME FOR BLOCK PERIOD AND HAD ALSO EXPRESSED HIS WILLINGNESS TO PAY TAXES WORKED OUT ON THE SURRENDERED INCOME. HOWEVER, IN HIS RETURN OF I NCOME FILED IN RESPONSE TO THE NOTICE ISSUED U/S 158 BC, HE DECLARED LOWER RET URN CONTENDING THAT STATEMENT U/S 132 (4) WAS OBTAINED UNDER DURESS. TH E AO MADE ASSESSMENT ON THE BASIS OF SURRENDERED INCOME. THE MATTER TRAVELE D BEFORE THE HIGH COURT AND THE HONBLE HIGH COURT WAS PLEASED TO HOLD THAT WHE N ASSESSEE DID NOT RETRACT HIS STATEMENTS IMMEDIATELY AFTER SEARCH AND SEIZURE WAS OVER AND IN RETURN ALSO NO EXPLANATION WAS OFFERED FOR SURRENDER OF UNDISCL OSED INCOME AT THE TIME OF SEARCH AND SEIZURE OPERATIONS U/S 132 (4), IT COULD BE SAID THAT THE ASSESSEE HAD FAILED TO THE DISCHARGE ONUS OF PROVING THAT CONFES SION MADE BY HIM U/S 132 (4) WAS AS A RESULT OF INTIMIDATION, DURESS AND COERCIO N OR THAT SAME WAS MADE AS A RESULT OF MISTAKEN BELIEF OF LAW OR FACTS. IT WAS H ELD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN ASSESSING INCOME OF THE ASSESSEE O N THE BASIS OF SURRENDER OF UNDISCLOSED INCOME MADE BY THE ASSESSEE U/S 132 (4) OF THE ACT. LIKEWISE IN THE CASE OF KANTI LAL C. SHAH VS. ACIT (SUPRA) BEFORE T HE AHMEDABAD BENCH OF THE TRIBUNAL IT WAS HELD THAT STATEMENTS RECORDED U /S 132 (4) IS AN EVIDENCE BY ITSELF AND ANY RETRACTION CONTRARY TO THAT SHOULD B E SUPPORTED BY STRONG EVIDENCE FOR DEMONSTRATING THAT EARLIER EVIDENCE RECORDED WA S UNDER COERCION. IN VIEW OF THESE DECISIONS WE ARE OF THE VIEW THAT THERE WAS N O REASON WITH SH. HARISH SINGLA TO ESTABLISH THAT HIS STATEMENTS U/S 132 (4) OF THE ACT WAS MADE UNDER COERCION, COMPULSION, DURESS OR THREAT. IN ABSENCE OF SUCH EVIDENCE THE STATEMENT MADE U/S 132 (4) OF THE ACT CANNOT BE IGN ORED MERELY BECAUSE A DIFFERENT STATEMENT WAS MADE SUBSEQUENTLY. WE THUS CONCLUDE THAT ON THE BASIS OF SUBSEQUENT STATEMENTS OF SH. HARISH SINGLA IT CA NNOT BE HELD ESTABLISHED THAT THE PROPERTY IN QUESTION WAS ACTUALLY PURCHASED FOR RS.18 CRORE AND NOT FOR RS.5.50 CRORE AS DECLARED IN THE SALE DEED AND CONF IRMED BY SH. SINGLA IN HIS STATEMENTS RECORDED U/S 132 (4) OF THE ACT ON OATH ON EARLIER OCCASION. THE 5 TH SET OF EVIDENCE IS THUS OF NO HELP TO THE REVENUE. 3.18 WHEN WE LOOK TO ALL THE FACTS RELATING TO THE ADDITION OF RS.12.50 CRORES IN QUESTION IN TOTALITY, WE COME TO THE CONCLUSION THAT THE AGREEMENT OF SALE DATED 15.2.2007 SENT BY AN UNKNOWN SOURCE TO THE DE PARTMENT AS WELL AS RECEIPT DATED 15.2.2007 ALSO SENT TO THE DEPARTMENT ON FAX BY UNKNOWN SOURCE OR THE CONTRARY STATEMENTS OF SH. HARISH SINGLA RECORDED S UBSEQUENTLY ON 20.10.2010 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS DISC USSED ABOVE ARE NOT SUFFICIENT IN ANY WAY TO ESTABLISH BEYOND DOUBT THA T THE PROPERTY IN QUESTION WAS ACTUALLY SOLD FOR RS.18 CRORES OUT OF WHICH THE AMOUNT OF RS.5.50 CRORES PAID THROUGH CHEQUE ONLY WAS SHOWN IN THE SALE DEED AND THE REMAINING AMOUNT PAID IN CASH WAS ON MONEY. SO FAR OTHER CLAIMED EVI DENCES ARE CONCERNED THESE ARE ALSO NOT SUFFICIENT TO ESTABLISH THE ABOVE ALLE GATION OF INVOLVEMENT OF ON MONEY. IT IS ONLY AN INFERENCE WHICH HAS BEEN PRESU MED BY THE DEPARTMENT THAT THE ADVANCE OF RS.2 CRORE (RS.1 CRORE IN CASH AND R S.1 CRORE BY CHEQUE) WAS GIVEN OUT OF WHICH THE AMOUNT OF RS.1 CRORE PAID BY CHEQUE DATED 15.2.2007 HAS BEEN ADJUSTED AGAINST THE PAYMENTS SHOWN AS PER SALE DEED; RS.1 CRORE VIDE CHEQUE DATED 23.4.2007 AND ANOTHER RS.1 CRORE VIDE CHEQUE DATED 8.5.2007 WERE RECEIVED BY THE ASSESSEE APART FROM PAYMENT SH OWN IN THE SALE DEED OF RS.5.50 CRORES; RS.1 CRORE SHOWN IN THE RECEIPT DAT ED 11.4.2007 AND RS.2.70 CRORE SHOWN IN THE RECEIPT DATED 14.5.2007 WERE APA RT FROM THE PAYMENT SHOWN IN THE SALE DEED AND THAT SMT. PARMINDER CHADHA, SH . TEJ PAL SINGH AND MS. KAVITA CHADHA HAD BOOKED THE OFFICE PREMISES IN THE COMMERCIAL COMPLEX OF THE ASSESSEE AND THE DUE AMOUNT SHOWN AS CLOSING BA LANCE IN THEIR ACCOUNTS WITH THE ASSESSEE HAD ALREADY BEEN ADJUSTED OUT OF THE CASH PAYABLE TO SMT. PARMINDER CHADHA SH. TEJ PAL SINGH AND MS. KAVITA A GAINST SALE CONSIDERATION OF THE PROPERTY IN QUESTION AT MEWLA MAHARAJPUR, MA THURA ROAD, FARIDABAD. ON THE CONTRARY IN THE SALE DEED OF THE PROPERTY DULY REGISTERED THE PARTIES HAVE SHOWN THE CONSIDERATION OF RS.5.50 CRORE. IN THEIR STATEMENTS RECORDED U/S 132 (4) DURING THE COURSE OF SEARCH PROCEEDING ALL THE PARTIES TO THE SALE DEED HAVE STATED THAT THE SALE CONSIDERATION OF THE PROPERTY REMAINED RS.5.50 CRORES ONLY. THE AMOUNT OF RS.6.70 CRORES WHICH THE REVENUE CLAI MS AS PER THE RECEIPTS RECOVERED WAS PAID OVER AND ABOVE RS.5.50 CRORE CON SISTS OF AN UNDISPUTED AMOUNT OF RS.3 CRORE SHOWN TO HAVE BEEN PAID THROUG H CHEQUES. AND EVEN IF THE CLAIM OF THE DEPARTMENT IS ACCEPTED FOR A MOMENT TH AT AN AMOUNT OF RS.2,41,37490/- (RS.80,45,830/- X 3) WHICH REMAINED BALANCE TO BE PAID BY SMT. PARMINDER CHADHA, SH. TEJ PAL SINGH AND MS. KA VITA TO THE ASSESSEE AGAINST THE SALE PRICE OF THE OFFICE PREMISES TO BE DEVELOPED BY THE ASSESSEE WAS ADJUSTED AGAINST RS.12.50 CRORE THE AMOUNT OVER AND ABOVE THE SALE PRICE OF THE PROPERTY SHOWN IN THE SALE DEED AT RS.5.50 CRORE, T HE AGGREGATE AMOUNT COMES TO RS.9,11,37,490/-(RS.6,70,00000/- + RS.2,41,37,49 0/-) ONLY WHICH IS STILL NOT NEAR TO THE ALLEGED CASH PAYMENT OF RS.12.50 CRORES . THE DECISIONS RELIED UPON BY THE LD. DR HAVING DIST INGUISHABLE FACTS ARE NOT HELPFUL TO THE ASSESSEE. THERE IS NO QUESTION OF ANY DEBATE ON THE RATIO LAI D DOWN IN THESE DECISIONS BUT WE WILL HAVE TO SEE ITS APPLICATION U NDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. IN THE CASE OF H OMI JEHANGIR GHEESTA VS. CIT (SUPRA) THE ISSUE WAS AS TO WHETHER WHERE C IRCUMSTANCES OF REJECTION OF EXPLANATION OF ASSESSEE ARE SUCH THAT ONLY PROPER INFERENCE IS THAT RECEIPT MUST BE TREATED AS INCOME IN THE HANDS OF THE ASSESSEE, THERE IS NO REASON WHY ASSESSING AUTHORITY SHOULD NOT DRA W SUCH AN INFERENCE, IT BEING AN INFERENCE OF FACT AND NOT OF LAW. THE Q UESTION HAS BEEN ANSWERED IN AFFIRMATIVE. IN THE PRESENT CASE BEFORE US WE HAVE ALSO CONCENTRATED ON THE FACTS AND CIRCUMSTANCES OF THE CASE TO SEE AS TO WHETHER IT LEADS TO JUSTIFYING THE ADDITION MADE AT RS.12.50 CRORES. LIKE WISE IN THE CASE OF DHAKESHWARI COTTON MILLS LTD. V S. CIT (SUPRA) IT HAS BEEN HELD THAT THOUGH ITO IS NOT FETTERED BY TECHNI CAL RULES OF EVIDENCE AND PLEADINGS AND HE IS ENTITLED TO ACT ON MATERIAL WHICH MAY NOT BE ACCEPTED AS EVIDENCE ON ACCOUNT OF LAW BUT IN MAKIN G ASSESSMENT U/S 23 (3) OF 1922 ACT HE IS NOT ENTITLED TO MAKE A PURE G UESS AND MAKE AN ASSESSMENT WITHOUT REFERENCE TO ANY EVIDENCE OR ANY MATERIAL AT ALL. IN THE PRESENT CASE BEFORE US THE ISSUE RAISED WAS AS TO W HETHER THERE WERE ON SUFFICIENT MATERIAL WITH THE ASSESSING OFFICER TO J USTIFY THE ADDITION MADE AT RS.12.50 CRORES WITH THIS FINDING THAT THE PROPE RTY WAS SOLD FOR RS.18 CRORES BUT IN THE SALE DEED IT WAS SHOWN AT RS.5.50 CRORES AND REMAINING AMOUNT WAS PAID IN CASH. IN THE CASE OF C. VASANTI LAL & CO. VS. CIT (SUPRA) IT WAS HELD THAT ITO IS NOT BOUND BY ANY TE CHNICAL LAW OF EVIDENCE AND IT IS OPEN TO HIM TO COLLECT MATERIALS TO FACILITATE ASSESSMENT EVEN BY PROVIDING INQUIRY. IN THE CASE OF ACIT VS. JAY ENGINEERING WORKS LTD. (SUPRA) THE HONBLE DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT ITO NOT BEING A COURT CAN RELY UPON MATER IAL WHICH MAY NOT BE STRICTLY EVIDENCE ADMISSIBLE UNDER INDIAN EVIDENCE ACT FOR PURPOSE OF MAKING AN ORDER OF ASSESSMENT. IN THAT CASE BEFORE THE HONBLE DELHI HIGH COURT THE RELEVANT BOOKS OF ACCOUNTS OF ASSESS EE WERE DESTROYED IN FIRE AND THE TRIBUNAL WHILE ALLOWING DEDUCTIONS CLA IMED BY ASSESSEE HAD TAKEN INTO ACCOUNT AS PROOF OF MATERIAL AUDITORS R EPORT FROM WHICH IT COULD BE INFERRED THAT DEDUCTIONS WERE PROPERLY SUP PORTED BY RELEVANT ENTRIES IN ACCOUNT BOOKS, THE HONBLE HIGH COURT HE LD THAT IT COULD NOT BE SAID THAT DECISION OF TRIBUNAL WAS NOT BASED ON ANY EVIDENCE. DIFFERENT ARE THE FACTS IN THE PRESENT CASE BEFORE US. IN THE PRESENT CASE BEFORE US THE AO TRIED TO ESTABLISH THAT THERE WAS CORROBORAT ION OF FACT THAT AN AMOUNT OVER AND ABOVE THE AMOUNT SHOWN IN THE SALE DEED WAS PAID IN CASH WITH THE ASSISTANCE OF CLAIMED DIFFERENT EVIDE NCES, DISCUSSED HEREINABOVE, EITHER OF WHICH DOES NOT HAVE ITS CRED IBILITY AND RELIABILITY. SIMILARITY OF CERTAIN FIGURE ALLEGED TO HAVE BEEN P AID IN CASH TOWARDS UNDISCLOSED SALE CONSIDERATION IN THE STATEMENTS OF A PERSON WHO IS ADVERSELY INTERESTED AGAINST THE ASSESSEE AND SO AL LEGED BY DEVIATING WITHOUT REASON FROM HIS EARLIER STATEMENTS RECORDED UNDER SECTION 132 (4) OF THE ACT, WITH THE FIGURE APPEARING IN SOME DOCUM ENTS RECEIVED ON FAX BY THE DEPARTMENT UNANIMOUSLY FROM THE UNKNOWN SOUR CE, IN OUR VIEW CANNOT BE GIVEN THE STATUS OF CORROBORATION OF FAC T IN ABSENCE OF SOME RELIABLE EVIDENCE AND CIRCUMSTANCES IN SUPPORT. REA SON BEING THE ONUS LIES HEAVILY ON THE PERSON WHO WISHES TO TURN AN AD MISSIBLE EVIDENCE AS FALSE AND UNRELIABLE. IN THIS REGARD WE ALSO FIND S TRENGTH FROM THE DECISION IN THE CASE OF CIT VS. KRISHNA VENI AMMAL (SUPRA) RELIED UPON BY THE LD. DR HOLDING THAT WHEN EVEN ACCORDING TO ASSESSEE THERE IS OTHER DOCUMENTARY EVIDENCE OF CORROBORATIVE VALUE AND SAM E IS WITHIN REACH OF ASSESSEE, JUDICIAL BODY CANNOT ACT ON SUCH INTEREST ED TESTIMONY OF ASSESSEE ALONE. THE HONBLE HIGH COURT HAS HELD FUR THER THAT IF BASED EVIDENCE IS NOT PLACED BEFORE THE COURT, AN ADVERSE INFERENCE CAN BE DRAWN AS AGAINST PERSON WHO OUGHT TO HAVE PRODUCED IT. UNDER THESE CIRCUMSTANCES WE COME TO THE CONCLUSION THAT THE ASSESSING OFFICER IN THE PRESENT CASE HAS FAILED TO ESTABLISH BEYOND DOUBT THAT THE PROPERTY IN QUESTION WAS ACTUALLY PURCHASED FOR RS.18 CRORE OUT OF WHICH THE AMOUNT OF RS.5.50 CRORE PAID THROUGH CHEQUE ONLY HAS BEEN SHO WN AS CONSIDERATION IN THE SALE DEED AND THE REMAINING AMOUNT HAS BEEN PAID IN CASH FROM UNKNOWN SOURCES TO JUSTIFY THE ADDITION OF RS.12.50 CRORE M ADE BY HIM AND SUSTAINED BY THE LD. CIT (A). WE THUS WHILE SETTING ASIDE THE OR DERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE AO TO DELETE THE ADDITION OF RS.12.50 CRORE QUESTIONED BY THE ASSESSEE. THE GROUND NOS. 3 TO 9 ARE THUS AL LOWED. 4. IN RESULT APPEAL IS PARTLY ALLOWED. 5. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAY OF 25/10/2012. SD/- SD/- ( T.S. KAPOOR ) (I.C.SU DHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25/10/2012 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR
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