SHRI DINESH KUMAR SHARMA, Jaipur V. ITO, Jaipur

ITA 1106/JPR/2011

• Counselvise Citation: 110623114 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 16-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Unexplained investment
• Section: 147; 131; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 1106/JP/2011 ASSESSMENT YEAR : 2003-04 PAN : ACAPS 0582 P SHRI DINESH KUMAR SHARMA VS. THE ITO WARD- 12, NAYA BAZAR WARD- 7 (3) CHOMU, DISTT. JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MUKESH KHANDELWAL DEPARTMENT BY: SHRI D.C. SHARMA DATE OF HEARING: 12-08-2014 DATE OF PRONOUNCEMENT: 28-08-2014 ORDER PER T.R. MEENA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT (A)-III, JAIPUR DATED 10-10-2011 FOR THE ASSESSM ENT YEAR 2003-04 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS U NDER:- 1. THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN LAW AND ON THE FACTS IN DECLINING TO HOLD THE ORDER PASSED BY THE LD. AO AS BAD, IGNORING THE EVIDENCES PRODUCED EVIDENCING PASSING OF THE ORDER BEYOND PERIOD STIPULATED U/S PROVISION TO SEC TION 153(2) OF THE I.T. ACT , 1961. 2. THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN LAW A ND ON THE FACTS IN NOT HOLDING THE NOTICE ISSUED U/S 148 OF T HE I.T. ACT , 1961 AS ILLEGAL AS THE SAME WAS ISSUED WITHOUT RECO RDING PROPER REASONS FOR SUCH REOPENING. 2 3. THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN LAW A ND ON THE FACTS IN HOLDING THE ORDER PASSED BY LD. AO AS LEGA L WITHOUT APPRECIATING THAT THE LD. AO DID NOT DEAL WITH THE OBJECTIONS OF THE APPELLANT BY A SPEAKING ORDER BEFORE PROCEEDING FOR ASSESSING THE CASE, IGNORING THE JUDGEMENT OF THE H ON'BLE SC IN THE CASE OF GKN DRIVE SHAFTS (INDIA) LTD. VS. ITO A ND OTHERS (259 ITR 19 SC). 4. THAT THE LD. CIT(A) HAS ERRED SERIOUSLY ON THE F ACTS IN SUSTAINING THE ADDITION OF RS. 31.33 LACS AS UNACCO UNTED INVESTMENT OF THE APPELLANT. 5. THAT THE LD. CIT(A) HAS ERRED SERIOUSLY ON THE F ACTS IN SUSTAINING THE ADDITION OF RS. 45,000/- ON ACCOUNT OF ALLEGED SUPPRESSION IN SHOWING THE VALUE OF 1/3 RD SHARE IN THE PROPERTY AT CHOMU. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER AND DELETE ANY OF THE GROUNDS OF APPEAL BEFORE THE HEAR ING. 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NOS. 1, 2 AND 3. THUS THE SAME A RE DISMISSED BEING NOT PRESSED. 3.1 THE GROUND NO. 6 OF THE ASSESSEE IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 4.1 THE GROUND NO. 4 OF THE ASSESSEE IS AGAINST SUS TENANCE OF ADDITION OF RS. 31.33 LACS AS UNDISCLOSED INVESTMENT OF THE AS SESSEE. 4.2 THE AO OBSERVED THAT THERE WAS TEP RECEIVED BY THE INVESTIGATION WING, JAIPUR MADE BY ONE SHRI LAL CHAND ALIAS LALLU LAL JANGID R/O CHOMU VIDE HIS COMPLAINT DATED 23-10-208. THE INVESTIGATI ON WING CONDUCTED AN 3 ENQUIRY AND DETAILED REPORT WAS SENT TO THE AO ALON GWITH COPY OF THE STATEMENT RECORDED U/S 131 OF THE ACT OF THE ASSESS EE INCLUDING OTHER PERSONS ALONWITH MATERIALS/ DOCUMENTS COLLECTED DURING THE COURSE OF ENQUIRY. THERE WAS AN ANCESTRAL PROPERTY MEASURING PROPERTY MEASUR ING 91.51 SQ. MTR SITUATED AT CHOMU BELONGED TO ONE SHRI SHAUKAT ALI, HIS BROTHER LIYAKAT ALI AND HIS UNCLE SHIR JAMALUDDIN, ON WHICH FOUR SHOPS WERE CONSTRUCTED. OUT OF THE ABOVE, 1/3 RD SHARE WAS SOLD TO SHRI DINESH KUMAR JANGID FOR RS. 3.45 LACS AS ADMITTED BY SHRI JANGID IN HIS STATEMENT DA TED 06-03-2009. HOWEVER, THE SALE CONSIDERATION OF RS. 3.00 LACS HAS BEEN SH OWN IN THE SALE DEED. SHRI SHOKAT ALI AND HIS BROTHER SOLD THE REMAINING 2/3 RD SHARE TO SHRI ARUN CHOUDHARY THROUGH POWER OF ATTORNEY FOR RS. 24.00 L ACS WHICH IS EVIDENT FROM THE STATEMENT OF SHRI SHOKAT ALI DATED 02-04-2 009. THUS THE PRIMA FACIE APPEARS THAT THE SAID PROPERTY WAS SOLD TO SH RI ARUN CHOUDHARY. HOWEVER, ON THE OTHER HAND, IN THE AGREEMENT-CUM-EN DORSEMENT LETTER DATED 08-01-2003, NOTORISED BY SHRI GOVIND RAM, ADVOCATE, CHOMU, THE SAID PROPERTY WAS STATED TO HAVE BEEN SOLD TO SHRI DINES H JANGID FOR CONSIDERATION OF RS. 31.33 LACS ALSO AS THE PAYMENT AGAINST HIS SALE WAS RECEIVED BY SHRI SHOKAT ALI FROM SHRI DINSESH JANGI D. THUS, ON THIS BASIS, THE AO RECORDED THE REASONS U/S 147 OF THE ACT AND ISSUED NOTICE U/S 148 OF THE ACT WHICH HAS NOT BEEN CHALLENGED BEFORE US BY THE ASSESSEE. THE TEP HAD ENCLOSED THE COPY OF PAGE NO. 16 DATED 8-01-203 OF NOTARY REGISTER 4 MAINTAINED BY NOTARY OFFICER SHRI GOPAL LAL SAINI W ITH THE COMPLAINT. THE COPY IS ALSO ATTESTED BY NOTARY OFFICER ONE SHRI G OVIND RAM, ADVOCATE. THE CONTENTS WRITTEN ON THE PAGE NO. 16 DATED 08-01 -2003 IS REPRODUCED AS UNDER:- 16& 8-1-03& BDJKJUKEK CKCR~ CSPKU T;IQJ JKSM IJ ,D CUNKSCLR EDKU UKE MRRJ NF{K.K- 49 QKHV 10&IWOZ IFPE- 39 QHV & DQY {KS=QY 220-9 OXZ XT HKSALS. 2@3 FGLLK 91-51 OXZ EHVJ&VIUK 2@3 FGLLK DK CSPKU BDRRHL YK[K RSRHL GTKJ ESA LEIW;.KZ IZKIR FD;KA 'KKSDR VYH] FY;KDR VYH IQ= JH VGEN VYH MEZ EK% 36 O 30 OIZ TKFR YHYXJ EQLYEKU] FUOKLH U;K CKTKJ] PKSEW T;IQJ& CGD F NUSK DQEKJ TKXHM+ MEZ & IQ= JH JKEXKSIKY TKFXM+] TKFR&[KKYH] F UOKLH& U;K CKTKJ] PKSEWA THE AO CONCLUDED THAT ON THE BASIS OF THESE EVIDENC ES AND ENQUIRY REPORT THE 2/3 SHARE OF PROPERTY MEASURING 91.51 SQ. MTR W AS MADE AND GOT NOTORISED WITH SHRI GOPAL LAL SAINI (ADOVCATE) AT P AGE NO. 16 DATED 08-01- 2003. AS PER THE DETAILS MENTIONED THERE, AN AGREEM ENT WAS MADE TO SELL THE PROPERTY TO ASSESSEE I.E. SHRI DINESH JANGID AND IT WAS GOT NOTORISED AND THUS PAID THE AMOUNT OF RS. 31.33 LACS WHICH WAS RECEIVE D BY THE SELLER FROM THE ASSESSEE. ON THIS DOCUMENT, SIGNATURES OF THE ASSES SEE WERE ALSO APPEARING ALONGWITH SIGNATURE OF SELLER I.E. SHRI SHOKAT ALI AND LIYAKAT ALI ALONGWITH TWO WITNESSES. THE INVESTIGATION WING ALSO RECORDED THE STATEMENT OF SHRI DINESH KUMAR JANGID ON 6-03-2009 BUT THE ASSESSEE HAD DENIED TO MAKE TRANSACTION. THE STATEMENT U/S 131 OF THE ACT WAS A LSO RECORDED OF SHRI SHOKAT ALI, ONE OF THE SELLERS ON 02-04-2009 AND WH ILE ANSWERING QUESTION 5 NO. 3 IT WAS CLEARLY ADMITTED THAT SALE CONSIDERATI ON OF ENTIRE PROPERTY WAS RECEIVED FROM THE ASSESSEE. ALTHOUGH, IT WAS STATED THAT 1/3 RD SHARE OF THE PROPERTY WAS SOLD TO SHRI DINESH KUMAR AND FOR 2/3 RD REMAINING PROPERTY, THE POWER OF ATTORNEY WAS GIVEN TO ONE SHRI ARUN CH OUDHARY KNOWN BY THE ASSESSEE ONLY. IT WAS FURTHER STATED THAT TOTAL SAL E CONSIDERATION WAS AROUND 26-27 LACS WHICH WAS RECEIVED FROM THE ASSESSEE ONL Y. THE AO GAVE COPY OF ALL THE EVIDENCES COLLECTED BY THE INVESTIGATION WI NG TO THE ASSESSEE BEFORE TAKING ANY DECISION ON IT WHICH WAS AVAILED BY THE ASSESSEE VIDE HIS LETTER DATED 29-11-2010. THE ASSESSEE AGAIN DENIED HAVING PURCHASED 2.3 RD SHARE OF THE PROPERTY BEFORE THE AO AND ONLY ADMITTED FOR 1/ 3 RD SHARE OF THE PROPERTY PURCHASED BY THE ASSESSEE ON 21-12-2002 FOR RS. 3.0 0 LACS. FOR REST 2/3 RD SHARE OF PROPERTY, THE SELLER HAD EXECUTED THE REGI STERED POWER OF ATTORNEY IN FAVOUR OF SHRI ARUN KUMAR ON 19-12-2002. IT WAS FUR THER SUBMITTED BEFORE THE AO THAT THE ASSESSEE NEVER EXECUTED ANY DOCUMEN T BEFORE THE NOTARY PUBLIC. THEREFORE, NO RELIANCE CAN BE GIVEN ON THIS PIECE OF PAPER AND NO VALID OPINION CAN BE FORMED ABOUT ANY ESCAPEMENT. A FTER CONSIDERING THE ASSESSEE'S REPLY, THE AO CONCLUDED AS UNDER:- (I) SHRI SHOKAT ALI HAS CLEARLY ADMITTED IN HIS STA TEMENT RECORDED BY INVESTIGATION WING ON 02-04-2009 IN ANS WER TO QUESTION NO. 3 THAT THEY DID NOT KNOW TO SHRI ARUN CHOUDHARY, THEY KNOWN THE ASSESSEE ONLY. IT WAS FURTHER CLEARL Y STATED THAT THE AMOUNT OF FULL CONSIDERATION AGAINST SALE OF TH E ENTIRE PROPERTY, WAS RECEIVED BY THEM FROM THE ASSESSEE HI MSELF, NOT FROM SHRI ARUN CHOUDHARY AS CLAIMED BY THE ASSESSEE . ALTHOUGH, RECEIPT OF FULL SALE CONSIDERATION OF THE ENTIRE 6 PROPERTY WAS ADMITTED AROUND 26-27 LACS, BUT IT WAS CLEARLY ADMITTED BY HIM THAT THE ENTIRE AMOUNT WAS RECEIVED FROM THE ASSESSEE ONLY. (II) SHRI SHOKAT ALI HAS ALSO ADMITTED THE ABOVE FA CTS BEFORE THE ADDL. DISTT. JUDGE (FAST TRACK) NO.2, JAIPUR. I N HIS STATEMENT, IT WAS CLEARLY ADMITTED THAT NO AMOUNT W AS TAKEN BY THEM FROM SHRI ARUN LAL CHOUDHARY, ENTIRE AMOUNT WA S RECEIVED BY THEM FROM THE ASSESSEE ONLY. THUS THE AO MADE AN ADDITION OF RS. 31.33 LACS AS U NDISCLOSED INCOME OF THE ASSESSEE. 4.3 BEING AGGRIEVED BY THE ORDER OF THE AO, THE ASS ESSEE CARRIED THE MATER BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF T HE ASSESSEE BY OBSERVING AS UNDER:- 5.3. I HAVE CAREFULLY EXAMINED THE RIVAL STANDS O F THE AO AND THE LD. AR ISSUE UNDER CONSIDERATION. THE AO HAS MADE T HE ADDITION OF RS. 31.33 LACS TOWARDS INVESTMENT IN 2/3 SHARES OF PROP ERTY AT CHOMU BELONGING TO ONE SH. SHOKAT ALI, LIYAKAT ALI AND JA MALUDDIN. THE 1/3 SHARE OF THE PROPERTY WAS ALREADY PURCHASED BY THE APPELLANT THROUGH REGISTERED DEED AND REFLECTED IN ACCOUNTS, WHEREAS THE BALANCE 2/3 PORTION OF SUCH PROPERTY WAS FOUND BOUGHT THROUGH T HE AGREEMENT FOR SALE AS FOUND NOTED IN THE NOTARY REGISTER, MAINTAI NED BY THE NOTARY OFFICER. THE INFORMATION OF THE ABOVE EFFECTS AND T HE COPY OF RELEVANT PART OF SUCH REGISTER WERE SUBMITTED WITH A TEP, FILED A GAINST THE APPELLANT. THE LD. AR, AT THE ASSESSMENT AND APPELLANT STAGE, SIMPLY DENIED THE GENUINENESS OF SUCH NOTING ITSELF AND CONTENDED THA T NO SUCH INVESTMENT WAS MADE BY THE APPELLANT, I.R.O., 2/3 OF PROPERTY UNDER CONSIDERATION. 5.3.1 . FROM THE CONTENTS OF IMPUGNED ORDER AND THE SUBMISS IONS OF THE LD. AR, FOLLOWING UNDISPUTED AND ADMITTED FACTS ARE GATHERED:- A. THE APPELLANT HAS PURCHASES 1/3 UN DIVIDED SHARE OF THE CONSTRUCTED PROPERTY ON 21-12-2002, THROUGH REGISTE RED DEAL FOR THE 7 CONSIDERATION OF RS. 3 LACS. THE SOURCES OF RS. 3 L ACS PAID TOWARDS THE 1/3 SHARE OF THE PROPERTY PURCHASES WAS A LOAN RECEIVED FROM ONE MR. ARUN CHOUDHARY. B. THE PROPERTY WAS BELONGING TO SH. SHOKAT ALI, LIYAKAT ALI AND MR. JAMALUDDIN. THE AGREEMENT DATED 21-12-2002 WAS SALI ENT ON THE STATUS OF THE BALANCE UNDIVIDED 2/3 PORTION OF THE ABOVE PROPERTY. C. THE NOTING WITH THE NOTARY OFFICER, DATE D 08-01-2003, ESTABLISHED AN EXISTENCE OF ANOTHER 'AGREEMENT TO SALE' OF BA LANCE 2/3 PORTION OF PROPERTY TO THE APPELLANT ONLY ON 08-01-2003, FO R RS. 31.33 LACS PAID IN CASH. THE NOTARY RECORDS AND THE AGREE MENT DEED CARRY THE SIGNATURES OF ASSESSEE AND THE SELLERS AS WELL. D. ON BEING CONFRONTED, ONE OF THE SELLERS MR. SHOKAT ALI ADMITTED THE FACT THAT THE ABOVE BALANCE PORTION OF THE PROP ERTY HAS BEEN SOLD THROUGH SH. ARUN CHOUDHARY, ON THE BASIS OF PO WER OF ATTORNEY ISSUED IN HIS FAVOUR, FOR RS. 26-27 LACS TO SOME UNKNOWN PERSONS. HOWEVER, THE ABOVE SALE CONSIDERAT ION WAS RECEIVED THROUGH THE APPELLANT ONLY. STRANGELY, MR. SHOKAT ALI ALSO ADMITTED THE FACT THAT HE DID NOT KNOW SH. ARUN KUM AR CHOUDHARY AS SUCH. E. THE APPELLANT DENIED OF BUYING THE BALANCE 2/3 PORTION OF THE PROPERTY AND ALSO RAISED THE ISSUE OF GENUINENESS T HE NOTING MADE IN THE NOTARY REGISTER AS SUCH, BUT DID NOT FURNISH ANYTHI NG CONTRARY TO THE FACTS MENTIONED THEREIN. 5.3.2. IN THE LIGHT OF THE ABOVE FACT, IT IS FELT T HAT THE DEFENSE PUT- FOURTH BY THE LD. AR IN THEIR SUPPORT, IS FOUND LAC KING MERITS AND FORCE FOR THE FOLLOWING REASONS :- I. THE INITIAL BUYING OF 1/3 'UNDIVIDED' SHARE IN T HE IMPUGNED PROPERTY BY THE APPELLANT, ITSELF, IS PERCEIVED AS UNUSUAL T RANSACTION, AS THE BUYING OF PARTIAL UNDIVIDED AND UNSPECIFIED SHARE I N A IMMOVABLE PROPERTY HAS NO VALUE/SENSE, AS THE SAME ALONE CAN NOT BE SOLD, UNLESS, THE BALANCE PORTION IS ALSO SOLD TOGETHER. THUS WITH THIS BACKGROUND, THOUGHT NOT ADMITTED, BUT THE NOTING IN NOTARY-REGISTER ABOUT PURCHASE OF BALANCE 2/3 PORTION OF THE PROPER TY BY THE APPELLANT, SEEMS TO BE A LOGICAL FOLLOW UP ACTION ON HIS PART, UNDER THE GIVEN CIRCUMSTANCES. II. LEGALLY AND TECHNICALLY ANY NOTING OF TRANSACT ION IN THE NOTARY REGISTER IS CONSIDERED AUTHENTIC AND GENUINE AS THE SAME IS DONE AFTER 8 DUE VERIFICATION OF DOCUMENTS, IDENTITY OF THE PART IES INVOLVED ETC.. ACCORDINGLY THE GENUINENESS OF THE PURCHASE TRANSAC TION OF THE BALANCE PART OF THE IMPUGNED PROPERTY IS PRIMA-FACI E FOUND ESTABLISHED, AS THE NOTARY REGISTER ALSO CONTENTS T HE SIGNATURES OF THE APPELLANT AND THE BUYERS AND SELLERS ALSO. III. THE MOST UNUSUAL ASPECT OF THE EXPLANATION/SU BMISSION PROVIDED BY THE APPELLANT IS THAT THOUGH HE HAS CLAIMED THAT TH E ENTRY/NOTING IN THE NOTARY REGISTER, I.R.O., SALE DEED OF 2/3 SHARE OF THE PROPERTY, IS A CASE OF FABRICATION OR FORGERY, HOWEVER, NEITHER HE HAS FIL ED ANY FIR/COMPLAINED AGAINST SUCH DECEIT/CHEATING, NOR HE HAS HIMSELF TRIED TO REBUT THE CONTENTS OF THE COPY OF THE NOTARY REGIST ER, BY BRINGING ;S'7 ANY POSITIVE EVIDENCES. IN THIS REGARD, TO ESTABLISHED THAT THE EITHER THE ZEROX COPY OF THE NOTARY REGISTER IS FORGED OR CONTENTS THEREIN ARE OF UNTRUE NATURE. THUS SIMPLY MAKING VERBAL CLAIM B Y THE APPELLANT, IN THIS REGARD, WITHOUT SUBSTANTIATING THE SAME WIT H EVIDENCES, HAS NO VALUE IN THE EYES OF THE LAW. IV. IT IS ALSO PERTINENT TO NOTE THAT THE SELLER MR . SHOKAT ALI HAS ADMITTED OF RECEIVING IN RS. 27 LACS FROM THE APPELLANT FOR THE SALE OF BALANCE 2/3 SHARE OF THE PROPERTY, ALBEIT TO AN UNKNOWN PERSON, BY IS SUING THE POWER OF ATTORNEY IN THE FAVOUR OF MR. ARUN CHOUDHARY, AN AD MITTED FRIEND OF THE APPELLANT. NEITHER THE SELLER, NOR THE APPELLANT CO ULD PROVIDE THE DETAILS OF THE SO-CALLED BUYER OF BALANCE PART OF THE PROPE RTY. HAD IT BEEN A REAL TRANSACTION, THEN THESES BASIC DETAILS/INFORMA TION COULD HAVE BEEN SUBMITTED TO THE AO TO REBUT THE CONTENTS OF THE NO TARY REGISTER. THUS CIRCUMSTANTIAL EVIDENCES DO INDICATE THE SO CALLED ABOVE SALE CONSIDERATION OF RS. 27 LACS WAS NOTHING BUT THE PA YMENT MADE BY THE APPELLANT TO THE SELLER FOR ACQUIRING THE BALANCE 2 /3 PORTION OF THE PROPERTY, THE ABOVE FACTUAL PROBABILITY IS ALSO COR ROBORATED WITH THE NOTHING IN THE NOTARY REGISTER. V. MOREOVER, IT IS ALSO DIFFICULT TO APPRECIATE TH E ABOVE MAKE-BELIEVE EXPLANATION FOR THE SIMPLE REASONS THAT MR. SHOKAT ALI WOULD NOT ISSUE A POWER OF ATTORNEY TO MR. ARUN CHOUDHARY, AN ADMITTE D UNKNOWN PERSON BUT FRIEND OF THE APPELLANT, TO SALE HIS PROPERTY A ND THE SALE CONSIDERATION WAS TO BE HANDED OVER TO THE APPELLANT FOR ONWARD D ELIVERY TO THE OWNER OF THE PROPERTY, LATER ON. PRIMA-FACIE THERE IS MAN Y GRAY-AREAS AND LOOP HOLES IN THE EXPLANATION FURNISHED BY THE APPELLANT / THE SELLER IN THIS REGARD. THUS THE SAME IS CONSIDERED AS AN AFTER THO UGHT AND UNDELIVERABLE AS SUCH. 9 (VI) IT IS ALSO AN ADMITTED PRINCIPLE THAT THE ON E WHO INTENDS TO CLAIMS THAT WHAT IS APPARENT IS NOT THE REAL STATE OF AF FAIRS; HE HAS TO ESTABLISH THE SAME WITH COGENT EVIDENCE. THE ABOVE VIEWS HAVE BEEN UPHELD BY VARIOUS COURTS INCLUDING, THE KERALA HIGH COURT, AS DECIDED IN THE CASE OF TEEKOY RUBBERS (INDIA) LTD. (117 CTR 284). AS FAR A S AO IS CONCERNED HE HAS DISCHARGED HIS ONUS TOWARDS THE IMPUGNED ADDITI ON, BY SUPPLYING THE STRONG EVIDENCE, IN THE FORM OF CONTENTS NOTED IN T HE NOTARY REGISTER, WHICH IS A LEGAL DOCUMENT AS SUCH. IF THE APPELLANTS WANT ED TO DISOWN THE ABOVE CONTENTS, THE ONUS WAS ON HIM TO PROVE THE SAME WIT H SATISFACTORY EVIDENCES. SINCE THE APPELLANT HAS NOT DONE ANYTHI NG IN THIS REGARD, THEREFORE, IT IS FELT THAT HE HAS FAILED TO SUBSTAN TIATE HIS VERSION/ DEFENSE IN ANY MANNER, UNDER THE GIVEN CIRCUMSTANCES. CONCLUSION : IN THE LIGHT OF THE ABOVE FACTUAL AND LEGAL POSITI ON, IT IS HELD THAT THE CONTENTS OF THE NOTARY REGISTER WAS CORREC T, GENUINE AND RELATED TO THE APPELLANT ONLY. THE EXPLANATIONS SUBMITTED BY T HE APPELLANT AND THE SELLER OF THE PROPERTY, IN THIS REGARD, WERE FOUND VAGUE, SUPERFICIAL AND LACKING MERITS AND CREDITABILITY AS SUCH, UNDER THE GIVEN SITUATION. THE CIRCUMSTANTIAL ASPECTS ALSO SUPPORTS THE CONCLUSION OF THE AO THAT THE BALANCE 2/3 PART WAS BROUGHT BY THE APPELLANT THROU GH UNACCOUNTED MEANS AS HE WAS ALREADY ACQUIRED 1/3 PART OF THE SUCH PRO PERTY IN THE PAST. ACCORDINGLY, THE ADDITION OF RS. 31.33 LACS MADE TO WARDS UNDISCLOSED INVESTMENT IN 2/3 PORTION OF THE IMPUGNED PROPERTY, IS HEREBY UPHELD. CONSEQUENTLY, THIS GROUND OF APPEAL IS REJECTED. 4.4 NOW THE ASSESSEE IS BEFORE US. THE LD. AR SUBMI TTED THAT THERE WAS A HOUSE PROPERTY AT CHOMUE WHEREIN ONE SHRI JAMALUDDI N HAD 1/3 RD SHARE AND REMAINING 2/3 RD SHARE WAS OWNED BY TWO BROTHERS NAMELY SHRI SHAUKA T ALI AND LIYAKAT ALI. THE ASSESSEE HAD PURCHASED 1/3 RD SHARE IN THE SAID PROPERTY FROM SHRI JAMALUDDIN THROUGH REGISTERED SALE DEED D ATED 21-12-2002 AND SHRI SHAUKAT ALI AND LIYAKAT ALI HAD EXECUTED A POW ER OF ATTORNEY IN FAVOUR OF ONE SHRI ARUM KUMAR REGARDING THEIR 2/3 RD SHARE. SOME PERSON HAD FILED A TEP AGAINST THE A TO THE INVESTIGATION WING AND ENC LOSED COPY OF PAPER 10 ALLEGED TO BE OUT OF NOTARY PUBLIC REGISTER CONTAIN ING A CERTIFICATION OF A DOCUMENT BY NOTARY PUBLIC ABOUT PURCHASE OF 2/3 RD SHARE IN THE ABOVE SAID LAND AND BUILDING SITUATED AT CHOMU FOR A SUM OF RS . 31.33 LACS. THE SELLERS AND ASSESSEE WERE SUMMONED BY THE INVESTIGATION WIN G AND THEIR STATEMENTS WERE RECORDED. IN THE STATEMENT OF THE SELLER IN RE SPONSE TO QUESTION NO. 10 REGARDING CONTENTS OF THIS PAPER THE SELLER REPLIED THAT THIS DOCUMENT CONTAINS WRONG FACTS AND IT LOOKED LIKE SOMEBODY HAD TEMPERE D WITH THE DOCUMENT AND HE NEVER SOLD ANY SUCH 23/RD PORTION TO THE ASS ESSEE. THE ASSESSEE ALSO DENIED ABOUT SUCH PURCHASE IN HIS STATEMENT DATED 6 -03-2009 IN QUESTION NO. 6. HOWEVER, THE AO TREATED THIS PROPERTY PURCHASED BY THE ASSESSEE ON A CONSIDERATION OF RS. 31.33 LACS WAS PAID BY HIM FRO M UNDISCLOSED SOURCES BUT WHATEVER EVIDENCES COLLECTED BY THE INVESTIGATI ON WING GOES AGAINST THE REALITY OF THE CASE WHEN THE POWER OF ATTORNEY WAS EXECUTED IN THE NAME OF SHRI ARUN KUMAR AND WHEREFROM THE ASSESSEE CAME IN PICTURE OF PURCHASING AND SELLING OF SAID PROPERTY. THE 1/3D SHARE OF PRO PERTY PURCHASED BY THE ASSESSEE WAS SHOWN IN THE BOOKS OF ACCOUNT OF THE A SSESSEE. SHRI ARUN KUMAR, POWER OF ATTORNEY HOLDER HAS SOLD THE PROPER TIES THROUGH REGISTERED SALE DEED TO FOLLOWING PERSONS. 1.SMT. ASHA DEVI ON 15-07-2003 2.SHRI BHAGIRATH SERAWAT ON 30-10-2003 3. SHRI SURAJMAL SERAWAT ON 30-10-2003 11 THE LD. AR CLAIMED THAT THE ASSESSEE HAD NOT PURCHA SED 2/3 RD SHARE IN THE HOUSE ON 8-01-2003 BEFORE ADDITION MADE BY THE AO A ND CONFIRMED BY THE LD. CIT(A) WITHOUT ANY BASIS. 4.5 AT THE OUTSET , THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A). 4.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS UNDISPUTED FACT THAT THE ASSESSEE PURCHASED 1/3 RD SHARE OF PROPERTY. ON THE BASIS OF TEP, THE AO HE LD THAT 2/3 RD PROPERTY WAS ACQUIRED BYTHE ASSESSEE THROUGH POWER OF ATTORNEY I N THE NAME OF SHRI ARUN KUMAR CHOUDHARY. THE AO HEAVILY RELIED ON THE REPOR T OF INVESTIGATION WING BUT THE FACTS HAD NOT BEEN VERIFIED BY SUMMONI NG THE NOTARY PUBLIC IT HAD NOT BEEN VERIFIED THE VERACITY OF THE ENTRIES M ADE IN THE REGISTER OF NOTARY PUBLIC. THE ASSESSEE HAVING BEEN DENIED THE PURCHASE OF 2/3 RD SHARE IN THIS PROPERTY IN HIS STATEMENT DATED 6-03-2009 I N QUESTION NO. 6. FURTHER THE SELLER ALSO ADMITTED THAT 2/3 RD SHARE OF THIS PROPERTY WAS EXECUTED THROUGH A POWER OF ATTORNEY IN THE NAME OF SHRI ARUN KUMAR CHOUDHARY. IN SUBSEQUENT YEAR, SHRI ARUN KUMAR CHOUDHARY HAD SOLD 2/3 RD SHARE OF THIS PROPERTY TO VARIOUS PERSONS. THE AO HAD NOT BROUGHT ON RECORD ANY MATERIAL TO SUBSTANTIATE HIS FINDING THAT 2/3 RD SHARE OF PROPERTY BELONGED TO THE ASSESSEE. THEREFORE, IN OUR CONSIDERED VIEW, THE AD DITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS NOT JUSTIFIED. A CCORDINGLY, WE DELETE THE ADDITION MADE BY THE AO. THUS GROUND NO. 4 OF THE A SSESSEE IS ALLOWED. 12 5.1 THE GROUND NO. 5 OF THE ASSESSEE IS PERTAINING TO SUSTAINING TO ADDITION OF RS. 45,000/- ON ACCOUNT OF SUPPRESSION OF VALUE OF 1/3 RD SHARE IN THE PROPERTY AT CHOMU. 5.2 THE FACTS IN BRIEF AS ENUMERATED BY THE AO IN H IS ASSESSMENT ORDER IS REPRODUCED AS UNDER:- 6. UNEXPLAINED INVESTMENTS IN PURCHASE OF 1/3 RD SHARE: THE ASSESSEE HAS PURCHASED A 1/3 RD UNDIVIDED SHARE OF CONSTRUCTED PROPERTY MEASURING TOTAL 91.51 SQR. MTR. (109.35 SQR. YARDS) ON 21-12-2002 THROUGH REGISTERED SALE DEED EXECUTED AT SUB-REGISTRAR, CHO MU. ALTHOUGH, AS PER REGISTERED DEED, THE PROPERTY WAS PURCHASED BY THE ASSESSEE FOR TOTAL CONSIDERATION OF RS. 3,00,0000/-, BUT IN STATEMENT OF ASSESSEE RECORDED U/S 131 OF THE I.T. ACT , 1961 ON 09-06-2009 BY THE INV ESTIGATION WING, THE ASSESSEE HIMSELF ADMITTED THAT PAYMENT OF RS. 3,45, 000/- WAS MADE FOR PURCHASE OF THE PROPERTY. ON VERIFICATION OF TRANSA CTION RECORDED IN BALANCE SHEET, THE ASSESSEE HAS SHOWN PAYMENT OF RS . 3,00,000/-ONLY AGAINST THE PURCHASE, WHICH WAS RECEIVED BY CHEQUE FROM ONE SH. ARUN LAL CHOUDHARY. THUS, THE ASSESSEE HAS MADE PAYMENT OF REMAINING PART RS. 45,000/- OUT OF HIS UNDISCLOSED INCOME. IT IS I MPORTANT TO MENTION HERE THAT THE REGISTRAR HAS ALSO ADOPTED VALUE OF T HE PROPERTY OF RS. 3,40,790/- AND CHARGED STAMP DUTY ACCORDINGLY. ON T HIS ISSUE, THE AR OF THE ASSESSEE VIDE HIS LETTER DATED 22.11.2010 STATE D ' THE ASSESSEE HAD PURCHASED THIS 1/3 RD SHARE AS UNDIVIDED SHARE AND EVEN WAS BEING OCCUPIED BY TENANTS AND IN SUCH CIRCUMSTANCES THE S AID CONSIDERATION OF RS. 3,00,000/- WAS FULLY JUSTIFIED. ON THIS SCORE A LSO THE REASONS RECORDED BY YOUR PREDECESSOR FAILS. 7. THE ABOVE SUBMISSION WAS CONSIDERED BUT NOT FOU ND SATISFACTORY. AS PER VALUE ADOPTED BY THE REGISTRAR , IT IS CLEAR THAT MARKET RATE OF THE PROPERTY WAS IN HIGHER SIDE IN C OMPARISON TO THE CONSIDERATION RECORDED IN DEED. EVEN THE ASSESSEE H IMSELF ADMITTED PAYMENT OF RS. 3,45,000/-AGAINST PURCHASE OF THE PR OPERTY. THEREFORE, IN VIEW OF THE ABOVE FACT, RS. 45,000/- IS TREATED AS UNEXPLAINED INVESTMENTS OF THE ASSESSEE AND IS ADDED TO THE TAX ABLE INCOME. THUS THE AO MADE AN ADDITION OF RS. 45,000/- 5.3 THE LD. CIT(A) HAS CONFIRMED THE ADDITION BY OBSERV ING AS UNDER:- 13 6.3 I HAVE CAREFULLY CONSIDERED THE RIVAL STANDS OF THE AO AND THE LD. AR IN RESPECT OF THE ISSUE UNDER CONS IDERATION. IN THIS REGARD, IT IS AN ADMITTED FACT THAT THE TOTAL INVES TMENTS TOWARDS 1/3 PART OF THE PROPERTY WAS MADE OF RS. 3,45,660/-. OUT OF WHICH RS. 3 LACS WAS PAID AS SALE CONSIDEATION AND RS. 45,660/- WAS PAID TOWARDS THE REGISTRATION PURPOSES. THE SOURCE OF THE ABOVE INVE STMENT WAS SHOWN AS LOAN OF RS. 3 LACS RECEIVED FROM ONE MR. ARUN CHOUD HARY. HOWEVER, FOR THE BALANCE PART OF THE INVESTMENT I.E. RS. 45.660/ -, NO SOURCE WAS OFFERED BY THE APPELLANT IN THIS REGARD. ADMITTEDLY , I FIND NO INFIRMITY IN THE AOS CONCLUSION THAT THE BALANCE INVESTMENT/ EX PENDITURE OF RS. 45,000/- WAS REMAINED UNEXPLAINED, UNDER THE GIVEN SITUATION. IN VIEW OF THE SAME, THE ADDITION OF RS. 45,000/- MADE ON T HIS ACCOUNT IS HEREBY CONFIRMED. CONSEQUENTLY THIS GROUND OF APPEAL IS RE JECTED. 5.4 THE LD. AR OF THE ASSESSEE SUBMITTED IN HIS WRI TTEN SUBMISSION AS UNDER:- THE APPELLANT HAD PURCHASED 1/3 RD SHARE IN THE HOUSE OF RS. 3.00 LACS THROUGH REGISTERED SALE DEED ON 21 -12-2002 (APB 21-30) AND HAD SPENT RS. 45,000/-FOR REGISTRAT ION ETC. AND ACCOUNTED FOR SUCH SUM OF RS. 3.45 LACS IN HIS BOOKS AND DECLARED THE SAME IN HIS BALANCE SHEET. DURING THE STATEMENTS RECORDED BY INVESTIGATION WING THE APPELLANT MENTIO NED ABOUT INVESTMENT IN THIS PROPERTY FOR RS. 3.45 LACS INCLUDING RS. 45,000/- SPENT ON REGISTRATION (APB 16). THE LD . AO MERELY ON THE BASIS OF STATEMENTS SO GIVEN OBSERVED THAT THE APPELLANT HAD MENTIONED ABOUT INVESTMENT OF RS. 3.4 5 LACS WHEREAS THE REGISTERED DOCUMENT (APB 21-30) EVIDENC ES PURCHASES FOR RS. 3.00 LACS AND THEREFORE, TREATED THIS ADDITIONAL AMOUNT OF RS. 45,000/- AS UNACCOUNTED IN VESTMENT OF THE APPELLANT. THE LD. CIT(A) ALSO SUSTAINED SUC H ADDITION WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HA D DECLARED RS. 3,45,660/- AS INVESTMENT FOR THIS PROPERTY IN H IS BALANCE SHEET (APB 61). 5.5 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 14 5.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE ASSE SSEE HAS SHOWN RS. 3,45,660/- IN THE BALANCE SHEET FOR THIS PROPERTY W HERE RS. 3,00,000/- HAD BEEN TAKEN FROM SHRI ARUN KUMAR AGARWAL AS MENTIONE D AT PAGE 61 OF PAPER BOOK. THE ASSESSEE HAS SHOWN THE AMOUNT OF RS . 6,97,035/- ON BOTH THE SIDES I.E. LIABILITIES AND ASSETS MEANING THERE BY THAT SOURCE OF ALL ASSETS SHOWN IN THE BALANCE SHEET STANDS PROVED. THE ASSES SEE DURING THE COURSE OF HIS STATEMENTS BEFORE THE INVESTIGATION WING SUB MITTED THAT HE HAD MADE INVESTMENT OF RS. 3,45,000/- FOR THIS PROPERTY AND ALSO STATED ABOUT TAKING A LOAN OF RS. 3.00 LACS FROM SHRI ARUN KUMAR AGARWAL. THE AO FOUND THAT IN THE STATEMENTS THE ASSESSEE SUBMITTED ABOUT INVESTMENT OF RS. 3,45,000/- IN THE PROPERTY WHEREAS REGISTERED S ALE DEED EVIDENCED ABOUT THE PAYMENT OF RS. 3.00 LACS ONLY AND THE AO CONSIDERED THE DIFFERENCE OF RS. 45,000/- AS UNDISCLOSED INVESTMEN T OF THE ASSESSEE. THE AO DID NOT CONSIDER THAT THE ASSESSEE HAD SPENT RS. 45,000/- TOWARDS REGISTRATION PURPOSES AND BECAUSE OF THIS REASON, T HE AO STATED ABOUT INVESTMENT OF RS. 3,45,000/- FOR THIS PROPERTY. IT APPEARS FROM THE RECORD THAT THE ASSESSEE HAS SPENT RS. 45,000/- FOR REGIST RATION PURPOSES AND RS. 3.00 LACS FOR PURCHASE OF 1/3 RD SHARE IN THE PROPERTY THUS THERE IS NO REASON TO SUSTAIN THE AMOUNT OF RS. 45,000/-. HENCE, THE G ROUND 5 OF THE ASSESSEE IS ALLOWED. 15 6.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THE ORDER PRONOUNCED IN OPEN COURT ON 28-08-201 4 SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED: 28 TH AUG, 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI DINESH KUMAR SHARMA, JAIPUR 2. THE ITO , WARD- 7 (3), JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR 5..THE LD. DR 6.THE GUARD FILE (IT NO. 1106/JP/2011) BY ORDER A.R. , ITAT JAIPUR 16