The Dy. Commissioner of Income Tax, Jalandhar V. Smt. Supreet Kaur, Mohali

ITA 117/ASR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7779 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Search and seizure; Document seized; Question of law; Fair market value; Block assessment; Onus to prove; Documents seized; Reassessment proceedings
• Section: 50C; 148; 132; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A NO.116/(ASR)/2017 ASSESSMENT YEAR: 2009-10 PAN: AACCR2645H THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. VS. M/S RIAR BUILDERS PVT. LTD. 182-R, MODEL TOWN, JALANDHAR. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO. 16/(ASR)/2017 ARISING OUT OF ITA NO.116/(ASR)/2017 ASSESSMENT Y EAR: 2009-10 M/S RIAR BUILDERS PVT. LTD. 182-R, MODEL TOWN, JALANDHAR. VS. THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. (CROSS OBJECTORS) (RESPONDENT) I.T.A NO.117/(ASR)/2017 ASSESSMENT YEAR: 2009-10 PAN: APJPK7597J THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. VS. SMT. SUPREET KAUR, 762-PHASE, 3B1, MOHALI. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO. 17/(ASR)/2017 ARISING OUT OF ITA NO.117/(ASR)/2017 ASSESSMENT YEAR: 2009-10 SMT. SUPREET KAUR, 762-PHASE, 3B1, MOHALI. VS. THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. (CROSS OBJECTORS) (RESPONDENT) ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 2 I.T.A NO.118/(ASR)/2017 ASSESSMENT YEAR: 2009-10 PAN: AFMPJ6881M THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. VS. SMT. UPDESH JASPAL, 762-PHASE, 3B1, MOHALI. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO. 18/(ASR)/2017 ARISING OUT OF ITA NO.118/(ASR)/2017 ASSESSMENT YEAR: 2009-10 SMT. UPDESH JASPAL, 762-PHASE, 3B1, MOHALI. VS. THE DY. C. I. T., CENTRAL CIRCLE-1, JALANDHAR. (CROSS OBJECTORS) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN ( D.R.) RESPONDENT BY: SH. ASHRAY SARNA (C.A. ) DATE OF HEARING: 07.08.2017 DATE OF PRONOUNCEMENT: 26.09.201 7 ORDER PER BENCH: THESE ARE THREE APPEALS FILED BY REVENUE AGAINST TH E ORDERS OF LD. CIT(A), ALL DATED 21.12.2016 FOR ASST. YEAR 2009-10 , RELATING TO THREE DIFFERENT ASSESSEES. COMMON ISSUES ARE INVOLVED IN THESE APPEALS AND THESE WERE HEARD TOGETHER AND THEREFORE FOR THE SAK E OF CONVENIENCE, A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. THE COMMON GROUND TAKEN BY REVENUE IN THESE APPEALS IS THE ACTION OF LD. CIT(A), BY WHICH HE HAS DELETED THE ADDITIONS MADE BY ASSESSING OFFICER U/S 69B OF THE ACT. ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 3 2. THE ASSESSEES HAS ALSO FILED CROSS OBJECTIONS TO THE APPEALS FILED BY REVENUE AND HAS TAKEN SIMILAR GROUNDS OF APPEAL WHE RE BY THE ASSESSEES HAS CHALLENGED THE REOPENING OF THE CASES U/S 148 O F THE ACT. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT HE WILL NOT BE PRESSING CROSS OBJECTIONS THEREFORE THE SAME MAY BE TREATED AS WITHDRAWN. 4. THE LD. DR HAD NO OBJECTION TO WITHDRAWAL OF CRO SS OBJECTIONS AND THEREFORE THE CROSS OBJECTIONS FILED BY ASSESSEE AR E DISMISSED AS WITHDRAWN. AS REGARDS THE ISSUE UNDER APPEALS, THE LD. AR SUB MITTED THAT THE ISSUE UNDER APPEALS IS DULY COVERED IN FAVOUR OF AS SESSEES BY THE ORDER OF TRIBUNAL IN THE CASE OF SH. KULWINDER SINGH AND M/S HARMAN BUILDERS PVT. LTD. VIDE ITS ORDER DATED 01.08.2016 IN ITA NO . 659 & 660/ASR/2014. THE LD. AR SUBMITTED THAT THE LD. CIT (A) HAS FOLLOWED THE ORDER OF HON'BLE ITAT AND HAD DELETED THE ADDIT IONS. 5. THE LD. DR FAIRLY CONCEDED THAT THE ISSUE UNDER APPEALS WAS DULY COVERED IN FAVOUR OF ASSESSEES. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THOUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSMENTS IN T HE CASE OF ASSESSEES WERE REOPENED U/S 148 OF THE ACT, FOR THE REASON TH AT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEES HAD MADE INVESTM ENT IN PURCHASE OF LAND SOLD BY M/S PUNJAB IRON & STEEL CO. LTD. DURI NG THE COURSE OF ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 4 SEARCH PROCEEDINGS IN THE GROUP COMPANIES OF PISCO A VITAL DOCUMENT WAS FOUND WHICH WAS A COPY OF AGREEMENT ENTERED INT O BY M.D. OF PISCO WITH SH. MOHINDER SINGH BAJWA AND JOGINDER SINGH FO R THE SALE OF LAND MEASURING 24 KANAL SITUATED AT VILL. BIRRING, G.T. ROAD, JALANDHAR. THE ASSESSING OFFICER OBSERVED FROM THE COPY OF AGREEME NT THAT THE RATE OF LAND WAS FIXED AT RS.11,05,00,000/- PER ACRE. THE A SSESSING OFFICER ALSO OBSERVED THAT THE KHASRA NOS. OF LAND MENTIONED IN THE AGREEMENT WERE ULTIMATELY PURCHASED BY MOHINDER SINGH BAJWA, M/S H ARMAN BUILDERS PVT. LTD., SH. KULWINDER SINGH, M/S LAKHAN PAL DESI GNS PVT. LTD., SH. RIPANDEEP TAKHAR, M/S RIAR BUILDERS PVT. LTD., SMT. SUPREET KAUR AND SMT. UPDESH JASPAL ETC. IN VARIOUS FINANCIAL YEARS. OUT OF THESE PERSONS IN WHOSE NAME A PART OF LAND WAS TRANSFERRED BY SAL E DEEDS, THE THREE PERSONS ARE INVOLVED IN THESE APPEALS AND THEREFORE THE CASES OF THESE THREE PERSONS WERE REOPENED. THE ASSESSING OFFICER DURING REASSESSMENT PROCEEDINGS OBSERVED THAT ASSESSEE M/S RIAR BUILDER S PVT. LTD. HAD PURCHASED LAND MEASURING 4 KANAL AND 8 MARLAS FOR A TOTAL CONSIDERATION OF RS.1,92,50,000/- WHEREAS AS PER TH E RATE OF RS. 11,05,00,000/- PER ACRE, THE VALUE OF LAND WAS RS.6 ,07,75,000/- AND THEREFORE HE MADE ADDITIONS OF RS.4,15,25,000/- AS UNACCOUNTED AND UNDISCLOSED INVESTMENT U/S 69B OF THE ACT. SIMILARL Y THE ASSESSING OFFICER OBSERVED THAT SMT. UPDESH JASPAL HAD PURCHA SED LAND MEASURING 3 KANAL 2 MARLAS FOR A TOTAL CONSIDERATION OF RS.62 ,00,000/- AND WHEREAS THE VALUE OF SUCH LAND AT THE RATE OF RS.11.05 CROR ES PER ACRE COMES OUT ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 5 TO BE RS.4,28,18750/- AND THEREFORE ASSESSING OFFIC ER MADE AN ADDITION OF RS.183,09375 AS UNACCOUNTED AND UNDISCLOSED INVE STMENT U/S 69B OF THE ACT, SIMILAR WAS THE POSITION IN THE CASE OF SM T SUPREET KAUR WHERE ASSESSING OFFICER ON THE SAME BASIS MADE AN ADDITIO N OF RS.18,30,9375/-. 7. AGGRIEVED WITH THE ADDITIONS, THE ASSESSEES FIL ED APPEALS BEFORE LD. CIT(A) AND LD. CIT(A) VIDE SEPARATE ORDERS DELE TED THE ADDITIONS MADE BY ASSESSING OFFICER BY FOLLOWING THE JUDGMENTS OF THE HON'BLE AMRITSAR BENCH OF TRIBUNAL IN THE CASE OF SH. KULWINDER SING H AND M/S HARMAN BUILDERS PVT. LTD. AND WHERE ON SIMILAR FACTS AND C IRCUMSTANCES, THE APPEAL OF THE REVENUE WAS DISMISSED. THE HON'BLE TRIBUNAL IN THE CASE OF SH. KULWINDER S INGH AND M/S HARMAN BUILDERS PVT. LTD. HAS REPRODUCED THE ORDERS OF LD. CIT(A) AND AFTER REPRODUCING THE SAME HAS DISMISSED THE APPEAL S FILED BY REVENUE BY HOLDING AS UNDER: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE VERY DETAILED AND ORDER OF THE LD. CIT(A), WHO HAS DISCUSSED EACH AND EVERY ASPECT OF THE MATTER AND HAS FOUND THAT THE FINDINGS GIVEN BY T HE LD. CIT(A) BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHICH DO NOT REQUIRE ANY INTERFERENCE ON OUR PART. THE RELEVANT FINDINGS GIV EN BY THE LD. CIT(A) IN HIS ORDER IN PARAS 9 TO 24 OF THE ORDER ARE AS FOLLOWS: 9. I HAVE CONSIDERED THE FACTS OF THE CASE, THE BA SIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGU MENTS OF THE AR DURING ASSESSMENT PROCEEDINGS AS WELL AS APPELLA TE PROCEEDINGS. IT IS QUITE APPARENT THAT THE CASE OF THE ASSESSING OFFICER IS ENTIRELY DEPENDENT UPON THE DOCUMENTS FO UND AND SEIZED NOT IN THE CASE OF THE APPELLANT BUT FROM UNRELATED PARTY BEING AN ACCOUNTANT OF THE COMPANY WHICH HAPPENS TO BE SELLE R OF THE LAND ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 6 IN QUESTION. IT IS ALSO FACT THAT IMPUGNED UNREGIST ERED AGREEMENT TO SELL ALLEGEDLY ENTERED INTO BY M/S PISCO LTD. AND T WO OTHER PERSONS IS A PHOTO COPY OF THE AGREEMENT TO SELL IN RESPECT OF LAND IN THE SAME VILLAGE BIRRING AT THE RATE OF RS. 11.05 CRORE PER ACRE. THE SAID DOCUMENTS FURTHER RECORD AS TO HOW VARIOUS PAYMENTS IN CHEQUE AS WELL AS IN CASH HAVE BEEN MADE BY THE IMPUGNED BUYE R TO M/S PISCO LTD. AND SAID PAYMENTS IN CHEQUE, AS OBSERVED BY THE ASSESSING OFFICER STAND RECORDED IN THE BOOKS OF AC COUNT OF BUYER. THIS CRUCIAL FACT LENDS CREDIBILITY TO IMPUGNED AGR EEMENT TO SELL. THE ACTION ON THE BASIS OF SUCH AN AGREEMENT TO SELL, E VEN THOUGH BEING A PHOTOCOPY IS WARRANTED IN THE CASE OF PARTIES TO AGREEMENT AS THE EVIDENCE IN THE CASE OF INCOME TAX PROCEEDINGS DOES NOT HAVE TO BE IN THE NATURE OF EVIDENCE UNDER SECTION 65 OF THE E VIDENCE ACT, 1872. 10. HOWEVER THE SAME TEST REGARDING ADMISSIBILITY O F EVIDENCE COULD NOT BE EXTENDED IN THE CASE OF EVERY OTHER BUYER OF LAND IN THE SAME VILLAGE OR SIMILARLY LOCATED LAND. THE PRESUMPTION U/S 132 (4A) IS TO BE INVOKED IN THE CASE OF M/S PISCO LTD. FROM WHOM THE DOCUMENT OR VALUABLES ARE FOUND AND SEIZED AND EVEN IN THE S AID CASE SUCH A PRESUMPTION IS REBUTTABLE. HOWEVER, IT IS CLEAR THA T NO EVIDENCE WHATSOEVER HAS BEEN FOUND FROM THE APPELLANT DURING THE COURSE OF SEARCH OPERATION WHICH COULD EVEN SUGGEST THAT THER E HAS BEEN UNACCOUNTED INVESTMENT IN THE PURCHASE OF LAND TO T HE TUNE OF RS.2.27 CRORE. THE PRESUMPTION MADE BY THE ASSESSIN G OFFICER ON THE BASIS OF THE SEIZED DOCUMENTS IN THE CASE OF M/ S PISCO LTD. IN RESPECT OF THE IMPUGNED DEAL RECORDED IN THE SAID D OCUMENT COULD DEFINITELY BE MADE BUT SAME PRESUMPTION CAN NOT BE EXTENDED TO IN THE CASE OF EVERY OTHER CONSEQUENTIAL SALE OF LAND BY 'M/S PISCO LTD. THE ASSESSING OFFICER HAS CLEARLY OBSERVED IN THE ASSESSMENT YEAR THAT THE SALE CONSIDERATION AS RECORDED IN THE SEIZED COPY OF AGREEMENT OF SALE HAS BEEN TAKEN FOR THE PURPOSES O F COMPARATIVE RATE AT VILLAGE BIRRING ONLY AND THE LAND PURCHASED BY THE APPELLANT WAS DIFFERENT THAN THE ONE MENTIONED IN THE IMPUGNE D SEIZED DOCUMENTS. THIS ISSUE HAS BEEN CLARIFIED BY THE ASS ESSING OFFICER AT PARA 4.6 IN THE ASSESSMENT ORDER. THIS FURTHER UNDE RLINES THE BASIS OF ASSESSING OFFICER'S PRESUMPTION HERE IT IS IMPOR TANT TO CONSIDER THE FACTS OF THE CASE IN THE LIGHT OF JUDICIAL PRON OUNCEMENTS IN SIMILAR CASES WHEREIN THE DOCUMENTS RELIED UPON BY THE ASSESSING OFFICER HAD BEEN SEIZED IN THE CASE OF THIRD ARTIES . THE DOCUMENTS TO BE RELIED UPON HAVE TO BE EXTREMELY CLEARLY SPECIFI C AND DESCRIPTIVE ENOUGH TO ESTABLISH THE FACTUM OF PASSING ON IF UNA CCOUNTED SALE CONSIDERATION FOR TRANSFER OF PROPERTY IN QUESTION. THE DOCUMENTS SEIZED IN THE CASE OF M/S PISCO LTD ONLY CREATE A D OUBT OR SUSPICION WHICH CANNOT TAKE THE PLACE OF THE EVIDEN CE AS HAS BEEN HELD IN THE CATENA OF JUDGMENTS, SOME OF WHICH ARE AS UNDER:- DCIT VS. D.N. KAMANI (HUF) 70 ITD (PATNA- TRIB) 77 COMMISSIONER OF INCOME TAX VS. RAM NARAIN 224 ITR 1 80 (P&H) ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 7 ELITE DEVELOPERS VS. DY. COMMISSIONER OF INCOME TAX 73 ITD (NAGPUR- TRIB) 379 MONGA METALS PVT. LTD. VS. ACIT 67 TTJ (ALL) 247 JCIT VS. GRAMOPHONE COMPANY OF INDIA LTD. 265 ITR (KOL-TRIB) 46 (AT) 11. THE CASE OF AMARJIT SINGH BAKSHI (HUF) VS ACIT IS ON SIMILAR FACTS AS IS CLEAR FROM THE FOLLOWING HEAD NOTE:- SEARCH AND SEIZURE-BLOCK ASSESSMENT-COMPUTATION OF UNDISCLOSED INCOME -ADDITION UNDER SECTION 69B-A LO OSE SHEET, PURPORTING TO BE AN AGREEMENT, PARTLY WRITTE N IN PENCIL AND PARTLY IN PEN, FOUND DURING SEARCH OF THE PREMI SES OF 'N'- SAID DOCUMENT REVEALED THAT AGRICULTURAL 'WAS SOLD BY 'N' TO ASSESSEE (ASB) AT A CONSIDERATION MUCH HIGHER THAN THAT DECLARED BY ASB-AO, IN REGULAR ASSESSMENT OF ASSESS EE ASB(HUF) ON PROTECTIVE BASIS, MADE ADDITION OF THE DIFFERENCE AND IN BLOCK ASSESSMENT OF ASB' (INDIVID UAL), MADE AN ADDITION OF RS. 6.8 CRORES AS UNDISCLOSED INVESTMENT-ADDITION NOT JUSTIFIED-SUCH A DOCUMENT C OULD NOT BE SAID TO BE AN 'AGREEMENT' NOR A 'DUMB DOCUMENT'- 'N' HAVING CHANGED HIS STAND AND RETRACTED HIS STATEMEN T AT VARIOUS LEVELS, HIS TESTIMONY COULD NOT BE SAID TO BE RELIABLE- FURTHER, THE DOCUMENT IN QUESTION WAS NOT RECOVERED FROM THE POSSESSION OF ASSESSEE AND ASSESSEE WAS NOT GIV EN ANY OPPORTUNITY TO CROSS-EXAMINE 'N'-IN THE ABSENCE OF ANY RELIABLE EVIDENCE, NO ADDITION COULD BE MADE.' 12. FURTHER THE DECISION OF FLONBLE JURISDICTIONAL BENCH OF ITAT IN THE CASE OF NEENA SYAL VS ASSISTANT COMMISSIONER OF INCOME TAX 69 (CHD-TRIB) 516 IS ALSO ON SIMILAR ISSUE AS IS CLEAR FROM FOLLOWING HEAD NOTE: - 'SEARCH AND SEIZURE-BLOCK ASSESSMENT-COMPUTATION OF UNDISCLOSED INCOME-ADDITION OF PREMIUM ALLEGEDLY PA ID OVER AND ABOVE THE COST OF PLOT MENTIONED IN THE REGISTE RED DEED- SEIZED DOCUMENTS ON THE BASIS OF WHICH THE IMPUGNED ADDITION WERE MADE NOT FOUND AT THE RESIDENCE OF TH E ASSESSEE BUT AT THE RESIDENCE OF A THIRD PARTY- SAM E HAVE NOT BEEN SPECIFICALLY CONFRONTED TO THE ASSESSEE BE FORE MAKING THE ADDITION-EXPLANATION GIVEN BY ASSESSEE N OT CONTROVERTED BY AO-AO HAS NOT GIVEN ANY REASON FOR EITHER NOT ACCEPTING THE EXPLANATION OF THE ASSESSEE OR FO R FINDING THE EXPLANATION AS UNSATISFACTORY-THUS, AO DID NOT COMPLY WITH THE CONDITIONS STIPULATED IN S. 69-ADDITION DE LETED- REMAND OF THE CASE NOT CALLED FOR-POWER OF REMAND U NDER S. 254 IS REQUIRED TO BE EXERCISED IN A DISCIPLINED AN D RESPONSIBLE MANNER-SAME CANNOT BE INVOKED IN A CASE WHERE ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 8 AO HAS NOT CARED TO FOLLOW THE BASIC PROVISIONS OF S. 69/69B.' 13. THE DECISION OF THE JURISDICTIONAL ITAT AMRITSAR IN THE CASE OF ITO VS. SH. SURINDER SINGH IS DIRECTLY ON THE SIMIL AR FACTS AS CERTAIN DOCUMENTS SEIZED FROM THE THIRD PARTY M/S DREAMLAND CO-OPERATIVE WHICH WAS SELLER IN SAID CASE AND THE DOCUMENTS IN QUESTION HAD RECORDED CERTAIN AMOUNTS RECEIVED BY M/S DREAMLAND CO- OPERATIVE SOCIETY FROM THE ASSESSEE ON ACCOUNT OF SALE OF FLA T. IT IS FURTHER TO BE NOTED THAT SH. RAKESH KUMAR C/O DREAMLAND COOPER ATIVE SOCIETY HAD GIVEN STATEMENT TO THE EFFECT THAT AMOU NT HAD BEEN RECEIVED FROM THE ASSESSEE. HOWEVER A MERE PRESUMPT ION THAT SALE DEED WAS REGISTERED IN THE IMPUGNED ASSESSMENT YEAR WOULD NOT MEAN THAT CASH PAYMENT WAS ALSO IN THE SAME YEAR. T HE PRESUMPTION AVAILABLE U/S 132(4A) WAS NOT AVAILABLE IN THE CASE OF THE ASSESSEE AS NO DOCUMENTS HAD BEEN SEIZED FROM H IS POSSESSION. THE HONBLE COURT HELD AS UNDER: 'THE ONLY PIECE OF PAPER WHICH IS COMPUTERIZED 04.0 7.2007 SEIZED FROM A THIRD PARTY I.E. M/S DREAMLAND CO-OPE RATIVE SOCIETY ON 19.07.2007 IS THE ONLY DOCUMENT ON THE B ASIS OF WHICH THE ASSESSING OFFICER HAD MADE THE ADDITION. WE CONCUR WITH THE VIEW OF THE LD. CIT(A) THAT EXCEPT FOR THE ONLY DOCUMENT I.E. PAGE NO. 66 OF ANNEXURE 50 SEIZED FRO M M/S DREAMLAND CO-OPERATIVE SOCIETY, A THIRD PARTY THERE IS NOTHING ELSE TO SUGGEST THAT ASSESSEE HAD IN FACT P AID AN AMOUNT OF RS. 11,50,000/- IN CASH TO THE SOCIETY. I T IS UNDISPUTED THAT THE DOCUMENT IS NOT SEIZED FROM ASS ESSEE. IT IS ALSO UNDISPUTED THAT THE DOCUMENT I NOT SEIZED F ROM THE ASSESSEE. IT IS ALSO UNDISPUTED THAT DOCUMENT IS NO T IN HANDWRITING OF THE ASSESSEE AND DID NOT BELONG TO A SSESSEE. IT IS ALSO NOT DISPUTED THAT THERE IS NO DATE ON AL LEGED PAYMENT MENTIONED IN THIS LOOSE DOCUMENT. IT IS A F ACT THAT AS PER SALE DEED DATED 11.01.2007 THE FLAT WAS SOLD BY THE SOCIETY TO THE ASSESSEE FOR A FULL AND FINAL CONSID ERATION OF RS. 7 LANES PAID THROUGH CHEQUE NO. 346637 DATED 08.01.2007 AND THIS VALUE HAS DULY BEEN ACCEPTED BY THE REGISTRATION AUTHORITY. THE ASSESSING OFFICER HAS B ASED HIS ENTIRE CASE ON THIS DOCUMENT AND THE STATEMENT GIVE N BY SH. RAKESH KUMAR M/S DREAMLAND CO-OPERATIVE SOCIETY. MOREOVER, DURING THE ASSESSMENT OF THE SOCIETY A VA LUATION REPORT OF THE PROPERTY WAS FILED WHEREIN AMOUNT OF RS. 50 LACS HAD BEEN SURRENDERED BY THE SAID SOCIETY. IN T HE PRESENT CASE, WHEN DOCUMENT SEIZED IS NOT BEARING A NY DATE AS REGARD THE PAYMENT MADE IN CASH, THE SAME CANNOT BE LINKED TO THE ASSESSEE CONCLUSIVELY IN THE IMPUGNED ASSESSMENT YEAR. A MERE 'PRESUMPTION THAT SALE DEED IS REGISTERED IN THE IMPUGNED ASSESSMENT YEAR AND THER EFORE, CASH PAYMENT IS ALSO MADE IN THE SAME YEAR IS NOT E NOUGH IN THE ABSENCE OF ANY LINK IN THE LIST OF PAYMENT. WE CONCUR ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 9 WITH THE VIEW OF THE LD. CIT(A) AND THE CASES RELIE D UPON BY HIM THAT PRESUMPTION IS AVAILABLE AGAINST THE PERSO N FROM WHOSE POSSESSION A SEIZURE IS MADE BUT THE SAME CAN NOT BE EXTENDED TO OTHERS. ACCORDINGLY, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND WE FIND NO INFIRMITY IN HIS ORDER. THUS ALL THE GROUND S OF THE REVENUE ARE DISMISSED.' 14. THE ISSUE OF ALLEGED UNDERSTATEMENT OF SALE CON SIDERATION IN THE REGISTRATION DEED HAS TO BE PROVED BY THE RE VENUE AND THE SAME CAN BE DONE BY LEADING POSITIVE EVIDENCE EITHE R IN THE FORM OF SOME DOCUMENTS FOUND DURING THE COURSE OF SEARCH OR OTHERWISE WHICH COULD PROVE THAT CONSIDERATION OVER AND ABOVE THE REGISTRATION DEED HAD BEEN PASSED ON FROM BUYER TO SELLER. THE EVIDENCE RELIED UPON BY THE ASSESSING OFFICER IN TH E INSTANT CASE REPRESENTS A PHOTOCOPY OF AN AGREEMENT TO SELL WITH REGARD TO A DEED BETWEEN TWO OTHER PERSONS IN RESPECT OF DIFFER ENT PIECE OF LAND AND ON A DIFFERENT DATE. THE ASSESSING OFFICER ON T HE BASIS OF THE SAID SEIZED DOCUMENTS, WHICH HAS BEEN DENIED BY ALL THE CONSTITUENTS MENTIONED THEREIN, COULD DEFINITELY MA KE A PRESUMPTION ON SALE PRICE BEING HIGHER THAN WHAT WA S STATED IN THE REGISTRATION DEED BY THE APPELLANT. HOWEVER, THE SA ID PRESUMPTION HAS TO BE BACKED UP BY THE SOME EVIDENCE OF TRANSFE R OF SUCH CONSIDERATION FROM THE BUYER TO SELLER. THE APPELLA NT ALONGWITH SELLER HAD BEEN SUBJECTED TO SEARCH OPERATION WITHI N THE MEANING OF SECTION 132 OF THE I.T. ACT 1961 BUT NO SUCH EVIDEN CE COULD BE FOUND TO BE EXISTING. THIS MEANS THAT THE PRESUMPTION OF THE ASSESSING OFFICER EVENTUALLY REMAINS A PRESUMPTION AND THEREF ORE CAN NOT SUBSTITUTED IN PLACE OF EVIDENCE I.E. ESSENTIAL REQ UIREMENT TO UNSETTLE THE SALE CONSIDERATION AS RECORDED IN THE REGISTERE D DOCUMENTS. IT IS ALSO IMPORTANT TO APPRECIATE THAT THE SAID REGISTRA TION BETWEEN THE APPELLANT AND SELLER HAS BEEN AT A PRICE WHICH IS A T LEAST AS PER CIRCLE - RATE APPROVED BY THE REVENUE AUTHORITIES AND HENCE CAN NOT BE SAID TO BE BELOW FAIR MARKET PRICE. THE HON'BLE APEX COURT IN THE CASE OF K.P. VARGHESE VS. ITO 131 ITR 597 (SC) HAD GIVEN JUDGMENT IN THE CONTEXT OF APPLICABILITY OF SECTION 52(2) O F INCOME TAX ACT 1961 WHICH DEALT WITH THE POSSIBLE UNDER STATEMENT OF SALE CONSIDERATION. THE SAID SECTION HAS BEEN OMITTED BY FINANCE ACT 1987 W.E.F. 1.4.88 AND THE ONLY PRESUMPTION AS OF NOW IS IN TERMS OF APPLICABILITY OF SECTION 50C IN THE CASE OF COMPUTATION OF CAPITAL GAIN IN THE CASE OF THE SELLER. THE UNDER STATEMENT THAT COULD BE PRESUMED IN SUCH EVEN TUALITY IN THE HANDS OF THE BUYER CANNOT LEAD TO AN ADDITION U/S 6 9 WHICH CLEARLY SHOWS THAT IT IS THE EVIDENCE OF PASSING ON OF UNAC COUNTED SALE CONSIDERATION THAT HAS TO BE BROUGHT ON RECORD. THE HON'BLE APEX COURT CLEAR HELD AS UNDER:- 'IT IS A WELL SETTLED RULE OF LAW THAT THE ONUS OF ESTABLISHING THAT THE CONDITIONS OF TAXABILITY ARE FULFILLED IS ALWAYS ON THE REVENUE AND THE BURDEN LIES ON THE REVENUE TO SHOW THAT ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 10 THERE IS AN UNDERSTATEMENT OF THE CONSIDERATION. MO REOVER, TO THROW THE BURDEN OF SHOWING THAT THERE IS NO UNDERS TATEMENT OF THE CONSIDERATION ON THE ASSESSEE WOULD BE TO AL MOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH A NEGATIVE, NAMELY, THAT HE DID NOT RECEIVE ANY CONSIDERATION BEYOND TH AT DECLARED BY HIM. ONCE IT IS ESTABLISHING BY THE REVENUE THAT THE CON SIDERATION FOR THE TRANSFER HAS BEEN UNDERSTATED OR, TO PUT IT DIFFERENTLY THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE IS MORE THAN WHAT IS DECLARED OR DISCLOSED BY HIM, SECTION 52(2) IS IMMEDIATELY ATTRACTED, SUBJECT OF COURSE TO THE FUL FILLMENT OF THE CONDITION OF 15% OR MORE DIFFERENCE, AND THE RE VENUE IS THEN NOT REQUIRED TO SHOW WHAT IS THE PRECISE EXTEN T OF THE UNDERSTATEMENT OR IN OTHER WORDS, WHAT IS THE CONSI DERATION ACTUALLY RECEIVED BY THE ASSESSEE. THAT WOULD IN MO ST CASES BE DIFFICULT, IF NOT IMPOSSIBLE, TO SHOW AND HENCE SUB-SECTION (2) RELIEVES THE REVENUE OF ALL BURDEN OF PROOF REG ARDING THE EXTENT OF UNDERSTATEMENT OR CONCEALMENT AND PROVIDE S A STATUTORY MEASURE OF THE CONSIDERATION RECEIVED IN RESPECT OF THE TRANSFER. IT DOES NOT CREATE ANY FICTIONAL RECE IPT. IT DOES NOT DEEM AS RECEIPT SOMETHING WHICH IS NOT IN FACT RECEIVED. IT MERELY PROVIDES A STATUTORY BEST JUDGMENT ASSESS MENT OF THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE AND BRINGS TO TAX CAPITAL GAINS ON THE FOOTING THAT THE FAIR MARKET VALUE OF THE CAPITAL ASSET REPRESENTS THE ACTUAL CO NSIDERATION RECEIVED BY THE ASSESSEE AS AGAINST THE CONSIDERATI ON UNTRULY DECLARED OR DISCLOSED BY HIM. 15. THE SAID JUDGMENT OF HON'BLE APEX COURT HAS BEE N CONSISTENTLY FOLLOWED VARIOUS HIGH COURT AND TRIBUN ALS ON THE ISSUE OF UNDERSTATEMENT OF SALE CONSIDERATION IN RESPECT OF CASES FOLLOWING UNDER THE INCOME TAX ACT, 1961. FOR INSTANT THE HON 'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SMT. SURAJ DEVI 328 IT R 604 HELD AS UNDER:- 'IT IS SETTLED LAW THAT THE PRIMARY BURDEN OF PROOF TO PROVE UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE R EVENUE AND IT IS ONLY WHEN SUCH BURDEN IS DISCHARGED THAT IT WOULD BE PERMISSIBLE TO / UPON THE VALUATION GIVEN BY THE DVO. IN ANY EVENT, THE OPINION OF A DVO, PER SE IS NOT AN I NFORMATION AND CANNOT BE RELIED UPON WITHOUT THE BOOKS OF ACCO UNT BEING REJECTED WHICH HAS NOT BEEN DONE I THE PRESENT CASE . MOREOVER, IN THE PRESENT CASE, NO EVIDENCE MUCH ASS INCRIMINATING EVIDENCE WAS FOUND AS A RESULT OF THE SEARCH TO SUGGEST THAT THE ASSESSEE HAD MADE ANY PAYMENT OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE REGISTERED PURCHASE DEED. A READING OF THE ASSESSING OFFICER'S ORDER DOES NOT DISCLOSE THAT THE ASSESSEE HAD MADE ANY ADMISSION IN HER ALLEGED STATEMENT UNDER SECTION 13 2(4). IN ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 11 FACT, NO SUCH STATEMENT HAS BEEN PRODUCED. IT IS AL SO PERTINENT TO MENTION THAT NO ADJUSTMENT ON ACCOUNT OF SALES CONSIDERATION HAS BEEN MADE BY THE REVENUE IN THE C ASE OF THE SELLER. CONSEQUENTLY, NO SUBSTANTIAL QUESTION O F LAW ARISES IN THE PRESENT APPEAL WHICH, BEING BEREFT OF MERIT, IS DISMISSED.- K.P. VARGHESE VS. ITO (1981) 24 CTR (SC ) 358 : (1981) 131 ITR 597 (SC), CIT VS. SMT. SHAKUNTALA DE VI (2009) 224 CTR (DEL) 79: (2009) 316 ITR 46 (DEL), S ARGAM CINEMA VS. CIT (2011) 241 CTR (SC) 179 AND ASSTT. C IT VS. DHARIYA CONSTRUCTION CO. (2010) 236 CTR (SC) 226: ( 2010) 47 DTR (SC) 288 FOLLOWED.' 16. THE ABOVE JUDGMENT OF THE HON'BLE DELHI HIGH CO URT, WHICH IS IN THE CONTEXT OF VALIDITY OF REPORT OF DVO WITH REGAR D TO FAIR MARKET PRICE OF THE PROPERTY BUT IT CLEARLY UNDERLINES THA T NO EVIDENCE MUCH LESS INCRIMINATING EVIDENCE HAD BEEN FOUND AS A RES ULT OF THE SEARCH TO SUGGEST THAT THE ASSESSEE HAD MADE ANY PAYMENT O VER AND ABOVE THE CONSIDERATION MENTIONED IN THE REGISTERED PURCHASE DEED. 17. THE HON'BLE JURISDICTIONAL HIGH COURT OF PUNJA B & HARYANA IN THE CASE OF PARAMJIT SINGH VS. ITO HAS CLEARLY U PHELD THE FAR REACHING IMPORTANCE OF THE AMOUNTS SHOWN IN THE SAL E DEED. THE SAID JUDGMENT HAS BEEN GIVEN IN THE CONTEXT OF ADMI SSION OF ORAL EVIDENCE AS AGAINST THE TERMS AND CONDITION RECORDE D IN THE REGISTERED SALE DEED. THE HON'BLE COURT HELD AS UND ER:- 'THERE IS WELL-KNOWN PRINCIPLE THAT NO ORAL EVIDENC E IS ADMISSIBLE ONCE THE DOCUMENT CONTAINS ALL THE TERMS AND CONDITIONS. SECS. 91 AND 92 OF THE INDIAN EVIDENCE ACT, 1872 (FOR BREVITY 'THE 1872 ACT') INCORPORATE THE AFORES AID PRINCIPLE. ACCORDING TO SECTION 91 WHEN TERMS OF A CONTRACT, G RANTS OR OTHER DISPOSITION OF PROPERTY HAVE BEEN REDUCED TO THE FORM OF A DOCUMENT THEN NO EVIDENCE IS PERMISSIBLE TO BE GI VEN IN PROOF OF ANY SUCH TERMS OF SUCH GRANT OR DISPOSITIO N OF THE PROPERTY EXCEPT THE DOCUMENT ITSELF OR THE SECONDAR Y EVIDENCE THEREOF. ACCORDING TO SECTION 92 OF THE 18 72 ACT ONCE THE DOCUMENT IS TENDERED IN EVIDENCE AND PROVE D AS PER THE REQUIREMENTS OF SECTION 91 THEN NO EVIDENCE OF ANY ORAL AGREEMENT OR STATEMENT WOULD BE ADMISSIBLE AS BETWE EN THE PARTIES TO ANY SUCH INSTRUMENT FOR THE PURPOSES OF CONTRADICTING, VARYING, ADDING TO OR SUBTRACTING FR OM ITS TERMS. ACCORDING TO ILLUSTRATION 'B' TO SECTION 92 IF THERE IS AN ABSOLUTE AGREEMENT IN WRITING BETWEEN THE PARTIES W HERE ONCE HAS TO PAY THE OTHER A PRINCIPAL SUM BY SPECIF IED DATE THEN THE ORAL AGREEMENT THAT THE MONEY WAS NOT TO B E PAID TILL THE SPECIFIED DATE CANNOT BE PROVED. THEREFORE , IT FOLLOWS THAT NO ORAL AGREEMENT CONTRADICTING/VARYING THE TE RMS OF A DOCUMENT COULD BE OFFERED. ONCE THE AFORESAID PRINC IPLE IS CLEAR THEN OSTENSIBLE SALE CONSIDERATION DISCLOSED IN THE SALE DEED DATED 24 TH SEPT., 2002 HAS TO BE ACCEPTED AND IT CANNOT ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 12 BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THER EFORE, THE ORDER OF THE TRIBUNAL DOES NOT SUFFER FROM ANY LEGAL INFIRMITY IN REACHING TO THE CONCLUSION THAT THE AM OUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY THE VEN DORS AND DESERVES TO BE ADDED TO THE GROSS INCOME OF THE ASS ESSEE.' 18. 'THE HONBLE HIGH COURT OF RAJASTHAN IN THE CAS E OF COMMLSSIONER OF INCOME TAX VS. BHANWARLALMURWATIYA , REPORTED IN (2008) 215 CTR (RAJ) 489, HELD:- THE QUESTION AS TO WHAT WAS THE PRICE OF THE LAND AT THE RELEVANT TIME IS A PURE QUESTION OF FACT. APART FRO M THE FACT, THAT EVEN IF IT WERE TO BE ASSUMED, THAT THE PRICE OF THE LAND WAS DIFFERENT THAN THE ONE, RECITED IN THE SALE DEE D, UNLESS IT IS ESTABLISHED ON RECORD BY THE DEPARTMENT, THAT AS A MATTER OF FACT, THE CONSIDERATION, AS ALLEGED BY THE DEPAR TMENT, DID PASS TO THE SELLER FROM THE PURCHASER, IT CANNOT BE SAID, THAT THE DEPARTMENT HAD ANY RIGHT TO MAKE ANY ADDITIONS. IT IS A DIFFERENT STORY AS TO, TO WHAT EXTENT AND HOW, THE STATEMENT OF 5, AS GIVEN BEFORE DIFFERENT AUTHORITIES, AT DIF FERENT TIMES, CAN BE USED AGAINST THE ASSESSEE. MORE SO, WHEN NON E OF THE WITNESSES WAS EXAMINED BEFORE THE AO, AND THE ASSES SEE DID NOT HAVE ANY OPPORTUNITY TO CROSS EXAMINE THEM. IN ANY CASE, THE QUESTION AS TO WHETHER THE CONSIDERATION OF RS. 61 LACS, OR ANY OTHER HIGHER CONSIDERATION THAN THE ON E, MENTIONED IN THE SALE DEED, DID PASS FROM THE ASSES SEE TO THE SELLER OR NOT, DOES NOT THE LESS REMAIN A QUEST ION OF FACT, AND IT IS NOT SHOWN BY THE DEPARTMENT, THAT ANY REL EVANT MATERIAL HAS BEEN IGNORED, OR MISREAD BY THE CIT(A) , OR THE TRIBUNAL. IN THAT VIEW OF THE MATTER, THE QUESTIONS , AS FRAMED, CANNOT BE EVEN SAID TO BE ARISING, AND IN A NY CASE, ARE REQUIRED TO BE ANSWERED AGAINST THE REVENUE, AN D IN FAVOUR OF THE ASSESSEE.' 19. THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, CHAN DIGARH BENCH 'B', CHANDIGARH IN THE CASE OF I.T.O. VS. SHRI MOHI NDER SINGH REPORTED IN (2008)ITR 118 (ITAT, CHD), HELD:- 'ADDITION MADE UNDER CAPITAL GAIN ON THE GROUND THA T INCOME BY WAY OF SALE RECEIVED BY THE ASSESSEE WAS MORE TH AN WHAT IT WAS SHOWN IN THE DEED OF REGISTRATION ON TH E BASIS OF REPORT OF INVESTIGATION WING OF THE DEPARTMENT BASE D ON A PHOTOCOPY OF AN AGREEMENT DISOWNED BY THE ASSESSEE. NO EVIDENCE ON RECORD TO SHOW THAT ASSESSEE HAD RECEIV ED MORE THAN WHAT WAS DISCLOSED ON THE REGISTERED INSTRUMEN T, THE BURDEN FOR WHICH IS ON REVENUE. NO ADDITION CAN BE MADE ON THE BASIS OF THE PHOTOCOPY OF A DOCUMENT WHEN THE TRANSACTION IS SEPARATELY EVIDENCED BY A REGISTERED SALE DEED.' ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 13 20. THE HONBLE INCOME TAX APPELLATE TRIBUNAL, CHA NDIGARH BENCH, CHANDIGARH IN THE CASE OF I.T.O. V. SHRI MANJIT SIN GH REPORTED IN (2010) 128 TTJ (CHD)(UO) 82, HELD:- 'IN THE ABSENCE OF ANY EVIDENCE TO SHOW THAT THE AS SESSEE HAD RECEIVED ANY CONSIDERATION OVER AND ABOVE WHAT IS S TATED IN THE SALE DEED, ADDITION COULD NOT BE MADE BY DISREGARDI NG THE 'FULL VALUE OF THE CONSIDERATION' DECLARED BY THE ASSESSE E SIMPLY BECAUSE ANOTHER PORTION OF LAND HAS BEEN SOLD BY THE ASSESS EE ALONG WITH HIS BROTHER AT A HIGHER RATE,' 21. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SI VAKAMI CO. PVT. V. CIT (1973) 88 ITR 311 (MAD) HAS HELD THAT T HE BURDEN OF PROVING THAT CERTAIN SALES WERE EFFECTED WITH THE O BJECT OF AVOIDANCE OR REDUCTION OF TAX ON CAPITAL GAINS IS ON REVENUE AND IT IS NOT ENOUGH IN 3 EXPLANATION OFFERED BY THE ASSESSEE WAS NOT ACCEPTABLE AND THERE E STRONG SUSPICION AS TO THE REAL MOTIVE, WHICH PROMPTED THE SSESSEE TO SELL THE ASSETS. THERE MUST BE SOMET HING POSITIVE TO SUGGEST THAT THE SALES WERE EFFECTED WITH THE OBJEC T OF AVOIDANCE OR REDUCTION OF TAX LIABILITY FOR CAPITAL GAINS AND TH IS WAS AFFIRMED BY HON'BLE APEX COURT IN (1986) 159 ITR 71 (SC). WE AR E OF THE VIEW THAT UNLESS THERE IS EVIDENCE THAT MORE THAN WHAT I S STATED IN THE DOCUMENTS OR WAS RECEIVED, NO HIGHER PRICE CAN BE T AKEN TO BE THE BASIS FOR COMPUTATION OF TAX EITHER IN BUSINESS TRA NSACTION OR CAPITAL GAIN TRANSACTIONS. THE ENTIRE ONUS IS ON REVENUE AN D THE INFERENCES MIGHT BE DRAWN IN CERTAIN CASES BUT COME TO A CONCL USION THAT A PARTICULAR HIGHER AMOUNT WAS, IN FACT RECEIVED MUST BE BASED ON SUCH MATERIAL FROM WHICH SUCH AN IRRESISTIBLE CONCL USION FOLLOWS. IN OUR CONSIDERED VIEW, IN THE PRESENT CASE, THE REVEN UE COULD NOT PRIMARY FACTS, FROM WHICH INFERENCE CAN BE DRAWN TH AT THE CONSIDERATIONS RECORDED BY ASSESSEE-FIRM IN ITS ACC OUNT AND THE S DEEDS IS NOT THE FULL CONSIDERATION OR THE ACTUAL P RICE RECEIVED BY ASSESSEE FOR THE TRANSFER OF SHOPS WAS THE UNDER-ST ATED PRICE. 22. THE HON'BLE APEX COURT IN THE CASE OF CIT VS. G EORGE HANDERSON & COMPANY LIMITED 66 ITR 622 HAS OBSERVE D THAT FULL VALUE OF CONSIDERATION FOR WHICH THE SALE, EXCHANGE OR TRANSFER OF THE CAPITAL ASSET IS MADE APPEARING IN SECTION 12B OF INDIAN INCOME TAX ACT,1922 (CORRESPONDING TO THE PRESENT SECTION 48 OF THE INCOME TAX ACT,1961), DOES NOT MEAN THE MARKET VALUE OF T HE ASSET TRANSFERRED BUT THE PRICE BARGAINED FOR BY THE PAR TIES TO THE SALE, ETC. THE CONSIDERATION FOR THE TRANSFER OF CAPITAL ASSET IS WHAT THE TRANSFEROR RECEIVES IN LIEU OF THE ASSET HE PARTS W ITH, VIZ., MONEY OR MONEY'S WORTH. THE EXPRESSION 'FULL CONSIDERATION' IN THE MAIN PART OF SECTION 12B(2) CANNOT BE CONSTRUED AS HAVING A R EFERENCE TO THE MARKET VALUE OF THE ASSET TRANSFERRED. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. P. SURYANARAINA 88 ITR 321 HELD THAT THE FULL VALUE OF CONSIDERATION IN THE SAID SECTION MEANT ONLY THE ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 14 ACTUAL VALUE RECEIVED BY THE ASSESSEE. HOWEVER THE MARKET VALUE MAY ALSO BE TAKEN IN PLACE OF FULL VALUE OF THE CON SIDERATION ONLY IN THE EVENT OF THE CONSIDERATION AS PER REGISTERED DO CUMENT BEING LESS THAN THE VALUE FIXED BY REVENUE AUTHORITIES FOR PUR POSE OF COLLECTION OF STAMP DUTY. IT MEANS THAT THE FULL VALUE OF CONS IDERATION AS EVIDENCED BY THE REGISTERED DOCUMENT CAN BE CONSTIT UTED FOR THE VALUE MEANT FOR THE PURPOSES OF STAMP DUTY AS PER S ECTION 50C. THIS SECTION HAS BEEN INTRODUCED BY FINANCE ACT 2002 , W .E.F. 1.4.2003 AND HAS BEEN TITLED 'SPECIAL PROVISION FOR FULL VAL UE OF CONSIDERATION IN CERTAIN CASES' WHICH MEANS THAT THE FULL VALUE O F CONSIDERATION CAN BE SUBSTITUTED ONLY IF THE CONDITIONS AS STIPUL ATED IN THE PROVISIONS OF SECTION 50C ARE FULFILLED. APART FROM THE PROVISIONS OF SECTION 50C, THE SALE CONSIDERATION AS REFLECTED IN THE REGISTERED DOCUMENT CAN BE SUBSTITUTED BY A HIGHER FIGURE IF T HERE IS EVIDENCE ON RECORD TO SUGGEST THAT AMOUNT OVER AND ABOVE THE ONE RECORDED IN THE REGISTERED DOCUMENTS HAD PASSED ON FROM THE BUYER TO THE SELLER.' 23. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF COMMISSIONER OF INCOME TAX VS. DINESH JAIN HUF REPORTED IN 254 CTR (DEL) 534, HELD:- 'SECTION 69B IN TERMS REQUIRES THAT THE ASSESSING O FFICER HAS TO FIRST 'FIND' THAT THE ASSESSEE HAS 'EXPENDED' AN AMOUNT W HICH HE HAS NOT FULLY RECORDED IN HIS BOOKS OF ACCOUNT. IT IS O NLY THEN THAT THE BURDEN SHIFTS TO THE ASSESSEE TO FURNISH A SATISFAC TORY EXPLANATION. TILL THE INITIAL BURDEN IS DISCHARGED BY THE ASSESS ING OFFICER, THE SECTION REMAINS DORMANT. A 'FINDING' OBVIOUSLY SHOULD REST ON EVIDENCE. IN T HE PRESENT CASE, IT IS COMMON GROUND THAT NO INCRIMINATING MATERIAL WAS SEIZED DURING THE SEARCH WHICH REVEALED ANY UNDERSTATEMENT OF THE PURCHASE E. THAT IS PRECISELY THE REASON WHY THE ASSESSING OFFI CER HAD TO SORT TO RULE 3 OF SCHEDULE III TO THE WEALTH TAX ACT. THIS RULE DOES NOT EVEN CLAIM TO ESTIMATE THE 'FAIR MARKET VALUE' OF AN ASS ET; IT MERELY LAYS DOWN A PROCEDURE FOR COMPUTING THE VALUE OF AN ASSE T FOR THE PURPOSES OF THE WEALTH TAX ACT. THE SCHEDULE DERIVE S ITS AUTHORITY FROM SECTION 7(1) OF THE WEALTH TAX ACT. THE SECTIO N, AS IT NOW STANDS, HAS DROPPED ALL PRETENSIONS TO ASCERTAINING THE FAIR MARKET VALUE OF AN ASSET FOR THE PURPOSES OF THE WEALTH TA X ACT. PRIOR TO THE AMENDMENT MADE W.E.F. 1-4-1989 THE SECTION PROVIDED FOR THE ESTIMATION OF THE FAIR MARKET VALUE OF AN ASSET ON THE PRINCIPLE OF WHAT IT WOULD FETCH IF SOLD IN THE OPEN MARKET. THI S INVOLVED AN ASSUMPTION OF AN OPEN MARKET, BE IT FICTIONAL, A WI LLING SELLER AND A WILLING BUYER, ALL FICTIONAL. THIS FICTION FACILITA TED A REALISTIC ESTIMATION OF THE FAIR MARKET VALUE OF THE PROPERTY , AND IT MOVED WITH THE UPS AND DOWNS OF THE MARKET. NOT ANYMORE. FROM 1-4- 1989, THE VALUE WAS FROZEN. FOR ALL TIMES TO COME, AN IMMOVABLE PROPERTY THAT FETCHES RENT SHALL BE VALUED AT 12.5 TIMES THE NET MAINTAINABLE RENT. ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 15 THERE IS A FUNDAMENTAL FALLACY IN INVOKING THE PROV ISIONS OF THE WEALTH TAX ACT TO THE APPLICATION OF SECTION 69B OF THE INCOME TAX ACT, NOTWITHSTANDING THAT BOTH THE ACTS ARE COGNATE AND HAVE EVEN BEEN SAID TO CONSTITUTE AND INTEGRATED SCHEME OF TA XATION. UNDER THE INCOME TAX ACT, WE ARE TO FIND WHAT WAS THE REA L AND ACTUAL CONSIDERATION PAID BY THE ASSESSEE AND WHETHER THE FULL CONSIDERATION HAS BEEN RECORDED IN THE BOOKS. UNDER SECTION 7(1) OF THE WEALTH TAX ACT AS IT STOOD BEFORE 1-4-1989, WE ARE TO ESTIMATE THE FAIR MARKET VALUE OF THE ASSET; AFTER THIS DATE , IT IS NOT EVEN ESTIMATION OF THE FAIR MARKET VALUE, BUT COMPUTATIO N OF THE VALUE OF THE ASSET ON THE BASIS OF CERTAIN RULES PRESCRIBED BY THE STATUTE. SEC. 69B DOES NOT PERMIT AN INFERENCE TO BE DRAWN F ROM THE CIRCUMSTANCES SURROUNDING THE TRANSACTION THAT THE PURCHASER OF THE PROPERTY MUST HAVE PAID MORE THAN WHAT WAS ACTUALLY RECORDED IN HIS BOOKS OF ACCOUNT FOR THE SIMPLE REASON THAT SUC H AN INFERENCE COULD BE VERY SUBJECTIVE AND COULD INVOLVE THE DANG EROUS CONSEQUENCE OF A AL OR FICTIONAL INCOME BEING BROUG HT TO TAX CONTRARY TO THE STRICT VISIONS OF ARTICLE 265 OF THE CONSTIT UTION OF INDIA AND ENTRY 82 IN LIST 1 OF THE SEVENTH SCHEDULE THERETO WHICH DEALS WITH 'TAXES ON INCOME OTHER THAN AGRICULTURAL INCOME.' FOR THE PURPOSES OF SECTION 69B IT IS THE BURDEN OF THE ASSESSING OFFICER TO FIRST PROVE THAT THERE WAS UNDERSTATEMEN T OF THE CONSIDERATION (INVESTMENT) IN THE BOOKS OF ACCOUNT. ONCE THAT UNDERVALUATION IS ESTABLISHED AS A MATTER OF FACT, THE ASSESSING OFFICER, IN THE ABSENCE OF ANY SATISFACTORY EXPLANA TION FROM THE ASSESSEE AS TO THE SOURCE OF THE UNDISCLOSED PORTIO N OF THE INVESTMENT, CAN PROCEED TO ADOPT SOME DEPENDABLE OR RELIABLE YARDSTICK WITH WHICH TO MEASURE THE EXTENT OF UNDER STATEMENT OF THE INVESTMENT. ONE SUCH YARDSTICK CAN BE THE FAIR MARKET VALUE OF THE PROPERTY DETERMINED IN ACCORDANCE WITH THE WEAL TH TAX ACT. THE ERROR COMMITTED BY THE INCOME TAX AUTHORITIES I N THE PRESENT CASE IS TO JUMP THE FIRST STEP IN THE PROCESS OF AP PLYING SECTION 69B- THAT OF PROVING UNDERSTATEMENT OF THE INVESTMENT- A ND REPLY THE MEASURE OF UNDERSTATEMENT. IF ANYTHING, THE LANGUAG E EMPLOYED IN SECTION 69B IS IN STRICTER TERMS THAN THE ERSTWHILE SECTION 52(2). IT DOES NOT EVEN AUTHORIZE THE ADOPTION OF ANY YARDSTI CK TO MEASURE THE PRECISE EXTENT OF UNDERSTATEMENT. THERE CAN THE REFORE BE NO COMPROMISE IN THE APPLICATION OF THE SECTION. IT WO ULD SEEM TO REQUIRE THE ASSESSING OFFICER EVEN TO SHOW THE EXAC T EXTENT OF UNDERSTATEMENT OF THE INVESTMENT; IT DOES NOT EVEN GIVE THE ASSESSING OFFICER THE OPTION OF APPLYING ANY REASON ABLE YARDSTICK TO MEASURE THE PRECISE EXTENT OF UNDERSTATEMENT OF THE INVESTMENT ONCE THE FACT OF UNDERSTATEMENT IS PROVED. IT APPEA RS THAT THE ASSESSING OFFICER IS NOT ONLY REQUIRED TO PROVE UND ERSTATEMENT OF THE PURCHASE PRICE, BUT ALSO TO SHOW THE PRECISE EX TENT OF THE UNDERSTATEMENT. THERE IS NO AUTHORITY GIVEN BY THE SECTION TO ADOPT SOME REASONABLE YARDSTICK TO MEASURE THE EXTENT OF ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 16 UNDERSTATEMENT. BUT SINCE IT MAY NOT BE POSSIBLE IN ALL CASES TO PROVE THE PRECISE OR EXACT AMOUNT UNDISCLOSED INVES TMENT, IT IS PERHAPS REASONABLE TO PERMIT THE ASSESSING OFFICER TO RELY ON SOME ACCEPTABLE BASIS OF ASCERTAINING THE MARKET VALUE O F THE PROPERTY TO ASSESS THE UNDISCLOSED INVESTMENT. WHETHER THE BASI S ADOPTED BY THE ASSESSING OFFICER IS AN ACCEPTABLE OR NOT MAY D EPEND ON THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. THA T QUESTION MAY HOWEVER ARISE ONLY WHEN ACTUAL UNDERSTATEMENT IS FI RST PROVED BY THE ASSESSING OFFICER. IT IS ONLY TO THIS EXTENT TH AT THE RIGOUR OF THE BURDEN PLACED ON THE ASSESSING OFFICER MAY BE RELAX ED IN CASES WHERE THERE IS EVIDENCE TO SHOW UNDERSTATEMENT OF T HE INVESTMENT, BUT EVIDENCE TO SHOW THE PRECISE EXTENT THEREOF IS LACKING. SINCE THE ENTIRE CASE HAS PROCEEDED ON THE ASSUMPTI ON THAT THERE WAS UNDERSTATEMENT OF THE INVESTMENT, WITHOUT A FIN DING THAT THE ASSESSEE INVESTED MORE THAN WHAT WAS RECORDED IN TH E BOOKS OF ACCOUNT, THE DECISION OF THE INCOME TAX AUTHORITIES CANNOT BE APPROVED. SECTION 69B WAS WRONGLY INVOKED. THE ORDE R OF THE TRIBUNAL IS APPROVED; THE SUBSTANTIAL QUESTION OF L AW IS ANSWERED IN THE NEGATIVE, IN FAVOUR OF THE ASSESSEE AND AGAINST THE CIT. CONCLUSION :- SECTION 69B CANNOT BE INVOKED ON THE ASSUMPTION THA T THERE WAS UNDERSTATEMENT OF THE INVESTMENT, WITHOUT A FINDING THAT THE ASSESSEE INVESTED MORE THAN WHAT WAS RECORDED IN TH E BOOKS OF ACCOUNT.' VII) THE HON'BLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HARPAL SINGH REPORTE D IN (2008) 3 DTR 254, HELD:- 'TRIBUNAL HAS RECORDED A PURE FINDING OF FACT AFTER TAKING INTO CONSIDERATION THE EVIDENCE/MATERIAL AVAILABLE ON TH E RECORD TO THE EFFECT THAT BEFORE THE ASSESSING OFFICER THERE WAS NO MATERIAL OR EVIDENCE TO CONCLUDE THAT THE ASSESSEE HAD PAID A C ONSIDERATION AND ABOVE THE AMOUNT MENTIONED IN THE REGISTERED SA LE DEED, I.E. @ RS.2.30 LACS PER ACRE AND THE ADDITION MADE BY HIM WAS WITHOUT ANY BASIS. THE ONLY EVIDENCE/MATERIAL AVAILABLE BEF ORE THE ASSESSING OFFICER WAS THE SO CALLED STATEMENT OF 'S ', WHICH WAS RECORDED BY THE ASSTT. DIRECTOR OF IT (INV.), ON 18 TH SEPT., 2001 IN WHICH HE HAD DEPOSED THAT HE HAD SOLD THE LAND IN Q UESTION @ RS. 4 LACS PER ACRE, AND APART FROM THE AMOUNT MENTIONED IN THE REGISTERED SALE DEED, HE HAD RECEIVED RS. 72 LACS C ASH FROM THE ASSESSEE IN FIVE INSTALLMENTS. UNDISPUTEDLY, SAID ' S' SUBSEQUENTLY RETRACTED FROM HIS STATEMENT THE ASSTT. DIRECTOR OF IT (INV.) ITSELF WHEREBY HE HAD CONFIRMED THAT HE HAD NOT RECEIVED A NY AMOUNT OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED. FURTHER, IT IS ALSO UNDISPUTED POSITION THAT BEFORE THE ASSESSI NG OFFICER SAID 'S' DID NOT APPEAR AND MADE ANY STATEMENT NOR AN OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO CONFRONT THE SALE DEED ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 17 AND CROSS- EXAMINE 'S' ON THE STATEMENT WHICH HE HA D MADE BEFORE THE ASSTT. DIRECTOR OF IT (INV.). IN SPITE OF ALLTH IS EVIDENCE, THE ASSESSING OFFICER MADE THE ADDITION UNDER SECTION 6 9B ONLY ON THE BASIS OF CONJECTURES WHILE OBSERVING THAT IT IS A W ELL KNOWN PRACTICE THAT THE SALE DEEDS OF IMMOVABLE PROPERTIES ARE BEI NG REGISTERED AT THE MUCH LOWER RATES THAN THE PREVAILING IN THE MAR KETS. IT IS ALSO DISPUTED FACT THAT AFTER SELLING OF THE LAND, 'S' W AS ASSESSED UNDER THE ACT AND AT THAT TIME THE SALE VALUE OF THE SAID LAND WAS TAKEN AS INDICATED IN THE REGISTERED SALE DEED AND THAT A SSESSMENT HAD BECOME FINAL. THE TRIBUNAL HAS DULY APPRECIATED THE EVIDENCE/MATERIAL AVAILABLE ON THE RECORD AND VARIO US CONTENTIONS RAISED BY THE PARTIES, AND THEN CAME TO THE AFORESA ID CONCLUSION, WHICH IS A PURE FINDING OF FACT WHICH DOES NOT REQU IRE ANY INTERFERENCE BY THE COURT. THEREFORE, IN THESE APPE ALS NO SUBSTANTIAL QUESTION OF LAW IS ARISING FROM THE IMPUGNED ORDER FOR CONSIDERATION OF THE COURT.' 24. THE HON'BLE APEX COURT IN THE CASE OF COMMISSIO NER OF INCOME TAX VS. P.V. KALYANASUNDARAM REPORTED IN (2007) 212 CTR (SC) 97, HELD:- 'THE RESPONDENT ASSESSEE VIDE A REGISTERED SALE DEE D DT. 26TH OCT., 1998 PURCHASED CERTAIN LAND AT BRINDAVAN ROAD, FAIR LANDS, SALEM FOR A SUM OF RS. 4.10 LAKHS. DURING A SEARCH OF THE OFFICE AND RESIDENTIAL PREMISES OF POLIMER NET WORK, CERTAIN N OTES ON LOOSE SHEETS ALLEGEDLY IN THE HANDS OF THE RESPONDENT WER E FOUND AND SEIZED BY THE DEPARTMENT. IN HIS STATEMENT RECORDED ON 8TH DEC., 1998, THE ASSESSEE SUBMITTED THAT HE COULD NOT REME MBER AS TO WHY THE NOTINGS HAD BEEN MADE. THE STATEMENT WAS FU RTHER CONFIRMED BY ANOTHER STATEMENT ON 11TH DEC., 1998. THE DEPARTMENT ALSO RECORDED THE STATEMENT OF THE VENDO R RAJARATHINAM ON 8TH DEC., 1998 WHICH TOO WAS CONFIRMED ON 11TH D EC., 1998 IN WHICH HE ADMITTED THAT HE HAD IN RECEIVED A TOTAL C ONSIDERATION OF RS. 34.35 LAKHS AND THAT THE SUM 4.10 LAKHS REFLECT ED IN THE SALE DEED HAD BEEN RECEIVED BY HIM WAY OF A DEMAND DRAFT AND THE BALANCE IN CASH. RAJARATHINAM HOWEVER RETRACTED FRO M HIS STATEMENT ON 8TH JAN., 1999 AND FILED AN AFFIDAVIT DEPOSING THAT THE SALE PRICE WAS RS. 4.10 LAKHS ONLY AND THAT HIS STA TEMENTS EARLIER GIVEN TO THE AUTHORITIES WERE INCORRECT. IN A SUBSE QUENT STATEMENT RECORDED ON 20TH NOV., 2000 RAJARATHINAM AGAIN REVE RTED TO HIS EARLIER PORTION AND DEPOSED THAT THE SALE PRICE WAS RS. 34.85 LAKHS. THE AO CONCLUDED THAT THE SALE CONSIDERATION WAS AC TUALLY RS. 34.85 LAKHS AND NOT RS. 4.10 LAKHS AS HAD BEEN RECI TED IN THE SALE DEED. HE ACCORDINGLY ADOPTED THE AFORESAID ENHANCED FIGURE FOR THE PURPOSE OF ASSESSMENT AND MADE AN ADDITION OF RS. 3 ,75,005 AS UNDISCLOSED INCOME FOR THE BROKEN PERIOD IST APRIL, 1998 TO 8 TH DEC., 1998. THE MATTER WAS THEREAFTER TAKEN TO THE CIT(A) , WHO AFTER EXAMINING THE ENTIRE MATTER, OBSERVED THAT THE STAT EMENTS GIVEN BY RAJARATHINAM COULD NOT BE RELIED UPON MORE PARTICUL ARLY AS THE FLOOR PRICE FIXED BY THE AUTHORITIES FOR SUCH PROPERTY WA S MUCH LOWER ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 18 THAN THE VALUE WHICH WOULD RESULT IF THE SALE DEED HAD BEEN REGISTERED AT RS. 34.85 LAKHS. THE CIT ACCORDINGLY DELETED THE ADDITION MADE. AN APPEAL WAS THEREAFTER PREFERRED B Y THE REVENUE AGAINST THE ORDER OF THE CIT BEFORE THE TRIBUNAL. T HE TRIBUNAL IN ITS ORDER DT. 6TH JULY, 2005 HELD THAT THE NOTINGS ON T HE LOOSE PIECES OF PAPER ON THE BASIS OF WHICH THE INITIAL SUSPICION W ITH REGARD TO THE UNDERVALUATION HAD BEEN RAISED WERE VAGUE AND COULD NOT BE RELIED UPON AS IT APPEARED THAT THE TOTAL AREA WITH RESPEC T TO THE SALE DEEDS AND THAT REFLECTED IN THE LOOSE SHEET WAS DIS CREPANT. IT WAS ALSO OBSERVED THAT AS PER THE GUIDELINES FOR REGIST RATION THE FAIR VALUE FOR REGISTRATION ON THE RELEVANT DATE WAS RS. 244 TO RS. 400 PER SQ. FT. AND THE SALE CONSIDERATION FOR RS. 850 PER SQ.FT. CLAIMED BY THE REVENUE WAS UNREALISTIC AND IGNORED THE GROU ND SITUATION. IT WAS FURTHER HELD THAT THE TAX OF APPROXIMATELY RS. 1,84,000 DETERMINED ON THE BASIS OF THE ADDITION WOULD NOT S HOW THAT THE ASSESSEE HAD ACQUIESCED IN THE ADDITION MADE BY THE DEPARTMENT OR THAT IT WAS CONCLUSIVE EVIDENCE OF THE SALE PRIC E AS THE DEPOSIT HAD BEEN MADE IN AN OBVIOUS EFFORT TO SAVE HIMSELF FROM FURTHER SUBSTANTIAL QUESTIONS OF LAW WERE RAISED: A. WHETHER OR NOT WHEN THE RETURNS AND THE STATEMEN TS OF THE SELLER ADMIT HIGHER SALE CONSIDERATION ACTUALLY REC EIVED, THE REVENUE IS JUSTIFIED IN FIXING THE SALE CONSIDERATI ON AT THE HIGHER AMOUNT THAN WHAT HAS BEEN DECLARED? B. WHEN THE ASSESSEE DID NOT GIVE ANY EXPLANATION T O THE NOTINGS FOUND AND AT THE SAME TIME THE REVENUE IS A BLE TO CORROBORATE THE SAME WITH THE STATEMENT OF THE SELL ER FOR THE PURPOSE OF DETERMINATION OF ACTUAL SALE VALUE, WOUL D THE LOWER AUTHORITY BE JUSTIFIED IN INTERFERING WITH THE SAME ? C. WHEN CONSISTENT SWORN (STATEMENTS) WERE TAKEN IN TO CONSIDERATION ALONG WITH EVIDENCES FOUND AT THE TIM E OF SEARCH, WOULD (THEY) ALL BE LIABLE TO BE REJECTED ON THE BA SIS OF ONE STATEMENT IN BETWEEN CONTRADICTING THE EARLIER ONES WHICH WAS ALSO EXPLAINED AWAY AS A RESULT OF INTIMIDATION? THE HIGH COURT RELYING HEAVILY ON THE ORDER OF THE CIT AND THE TRIBUNAL HELD THAT NO SUBSTANTIAL QUESTIONS OF LAW HAD BEEN RAISED AND ACCORDINGLY DISMISSED THE APPEAL. IT IS THIS SI TUATION THAT THE PRESENT MATTER IS HERE BEFORE US. MR. G.N. VAHANVATI, THE LEARNED SOLICITOR GENERAL H AS AT THE VERY OUTSET RAISED SERIOUS OBJECTION TO THE ORDER OF THE HIGH COURT POINTING OUT THAT DIVISION BENCH HAD MERELY PLAGIAR IZED SUBSTANTIAL PORTIONS FROM THE ORDER OF THE CIT AND TRIBUNAL IN ARRIVING AT ITS CONCLUSION AND NO INDEPENDENT ASSESSMENT ON THE QUE STIONS OF LAW THAT AROSE FOR CONSIDERATION, HAD BEEN MADE. HE ALS O POINTED OUT THAT SEVERAL QUESTIONS OF LAW PERTAINING TO THE IMP LICATIONS OF THE STATEMENTS AND THE COUNTER STATEMENTS MADE BY RAJAR ATHINAM DID ARISE IN THE CASE AND THE MATTER HAD NOT BEEN DEALT WITH BY THE ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 19 HIGH COURT IN THAT PERSPECTIVE AND IT WAS THEREFORE APPROPRIATE THAT THE MATTER BE REMITTED FOR FRESH DECISION. THE LE ARNED COUNSEL REPRESENTING THE ASSESSEE RESPONDENT HAS HOWEVER PO INTED OUT THAT THE CIT IN PARTICULAR, HAD AFTER A VERY ELABORATE DISCUSSION OF THE MATTER, CONCLUDED ON A FINDING OF FACT WITH REGARD TO THE NATURE OF THE TRANSACTION AND THIS VIEW HAD BEEN ACCEPTED BY THE TRIBUNAL AS WELL, HAS ACCORDINGLY SUBMITTED THAT NO SUBSTANTIAL QUESTIONS OF LAW HAVE BEEN RAISED IN THIS MATTER AND THE ISSUES RAISED WERE PURELY QUESTIONS OF FACT. WE HAVE HEARD THE LEARNED COUNSEL FOR THE PARTIES A ND HAVE GONE THROUGH THE RECORD. IT IS TRUE THAT THE DIVISION BE NCH OF THE HIGH COURT HAS BORROWED EXTENSIVELY FROM THE ORDERS OF T HE TRIBUNAL AND THE CIT AND PASSED THEM OFF AS IF THEY WERE THEMSEL VES THE AUTHORS. WE FEEL THAT QUOTING FROM AN ORDER OF SOME AUTHORITY PARTICULARLY SPECIALIZED ONE CANNOT PER SE BE FAULT ED AS THIS PROCEDURE CAN OFTEN HELP IN MAKING FOR BREVITY AND PRECISION, BUT WE AGREE WITH MR. VAHANAVATI TO THE EXTENT THAT ANY 'B ORROWED WORDS' USED IN A JUDGMENT MUST BE ACKNOWLEDGED AS SUCH IN ANY APPROPRIATE MANNER AS A COURTESY TO THE TRUE AUTHOR (S). BE THAT AS IT MAY, WE ARE OF THE OPINION THAT THE THREE QUESTIONS REPRODUCED ABOVE CAN, IN NO WAY, BE CALLED SUBSTANTIAL QUESTIO NS OF LAW. THE FACT AS TO THE ACTUAL SALE PRICE OF THE PROPERTY, T HE IMPLICATION OF THE CONTRADICTORY STATEMENTS MADE BY RAJARATHINAM OR WH ETHER RELIANCE COULD BE PLACED ON THE LOOSE SHEETS RECOVE RED IN THE COURSE OF THE RAID IS ALL QUESTIONS OF FACT. WE THEREFORE FIND NO INFIRMITY IN THE ORDER OF THE HIGH COURT. ACCORDINGLY, WE DISMIS S THE APPEAL.' IN VIEW OF THE ABOVE DETAILED ANALYSIS OF FACTS AND CIRCUMSTANCES OF THE CASE AND ANALYSIS OF JURISDICTIONAL PRONOUNCEME NT ON THE ISSUE, THE ADDITION MADE BY THE ASSESSING OFFICER BY PRESU MING THE SALE CONSIDERATION AT RS. 11.05 CRORE PER ACRE IS DIRECT ED TO BE DELETED. 8. FROM THE RIVAL CONTENTIONS AND THE MATERIAL ON R ECORD, THE FOLLOWING FACTS EMERGE: (I) THE AGREEMENT SEIZED WAS ONLY A PHOTOCOPY OF T HE ORIGINAL. (II) IT WAS SEIZED NOT FROM THE ASSESSEE, BUT FROM THE THIRD PARTY. (III) THE SELLER REFUSED TO IDENTITY THE AGREEMENT . (IV) THE BUYER REFUSED TO IDENTIFY THE AGREEMENT. (V) THE WITNESSES TO THE AGREEMENT REFUSED TO IDEN TIFY IT. (VI) THE AO DID NOT MAKE TOTAL ADDITION ON ACCOUNT OF TOTAL VALUE OF THE TRANSACTIONS IN THE CASES OF THE OTHER BUYER S OR SELLERS, AS MENTIONED IN THE AGREEMENT. VII) THE ASSESSEE WAS NOT A PARTY TO THE AGREEMENT. ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 20 (VIII) THE ASSESSEE WAS NOT WITNESS TO THE AGREEMEN T. (IX) THE ASSESSEE WAS NOT RELATED TO EITHER ANY PAR TY OR ANY WITNESS TO THE AGREEMENT. (X) THE ASSESSEE PURCHASED HIS LAND DIRECTLY FROM P ISCO. XI) THE ASSESSEE PURCHASED THE LAND AT THE PREVALENT CI RCULAR RATE. XII) THE ASSESSEE PAID DUE STAMP DUTY ON THE TRANSA CTION XIII) THE PURCHASE DEED OF THE ASSESSEE WAS REGISTE RED WITH THE REGISTRAR AT JALANDHAR. XIV) IN THE ASSESSEES PURCHASE DEED, THE RATE MENTIONED WAS OF RS. 4 CRORE PER ACRE = 2.50 LAKHS PER MARLA, AS AGA INST THAT OF RS.11.05 CRORE PER ACRE, AS MENTIONED IN THE AGR EEMENT SEIZED. XV) ACTION ON THE BASIS OF THE AGREEMENT SEIZED WAS WARRANTED IN THE CASES OF THE PARTIES THERETO, DUE TO THE PRE SUMPTION U/S 132(4A) OF THE ACT, WHICH PRESUMPTION, NOTICEAB LY, IS REBUTTABLE. XVI) NO SUCH ACTION CAN BE TAKEN IN THE CASE OF A P ARTY WHOSE TRANSACTION WAS WITH REGARD TO LAND CONTIGUOUS OR S IMILARLY SITUATED TO THE LAND MENTIONED IN THE AGREEMENT SEI ZED. XVII) NO ACTION IS CALLED FOR IN A CASE OF TRANSACT ION CONSEQUENTIAL TO THE TRANSACTION MENTIONED IN THE AGREEMENT SEIZE D. XVIII) THERE IS NO EVIDENCE OF UNACCOUNTED INVESTME NT BY THE ASSESSEE. XIX) THE AO HIMSELF CLARIFIED TO THE ASSESSEE THAT THE SALE CONSIDERATION IN THE AGREEMENT SEIZED WAS TAKEN FOR THE PURPOSE OF COMPARATIVE RATE ONLY. XX) THE LAND PURCHASED BY THE ASSESSEE WAS DIFFEREN T FROM THAT MENTIONED IN THE AGREEMENT SEIZED. XXI) IT IS THE BURDEN OF THE DEPARTMENT TO PROVE UN DER-STATEMENT OF SALE CONSIDERATION. XXII) THIS BURDEN HAS NOT BEEN DISCHARGED. XXIII) THERE IS NO POSITIVE EVIDENCE AGAINST THE AS SESSEE. XXIV) THUS, THE AOS PRESUMPTION DID NOT MATERIALIZE INTO CONCLUSIVE EVIDENCE AGAINST THE ASSESSEE. ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 21 XXV) SUCH A PRESUMPTION CANNOT BE ACCORDED THE STATUS OF FOOL- PROOF EVIDENCE AGAINST THE ASSESSEE. XXVI) SUCH A PRESUMPTION CANNOT LEAD TO A CONCLUSION OF U NDER INVESTMENT BY THE ASSESSEE, LIABLE FOR ADDITION. 9. THE LD. CIT(A) HAS DULY CONSIDERED ALL THE ABOV E SAID FACTS AS WELL AS THE RELEVANT CASE LAWS. THERE HAS BEEN NO EFFECT IVE REBUTTAL TO THE WELL REASONED ELABORATE FINDINGS RECORDED BY THE LD. CIT (A). 10. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT(A) HAS PASSED A DETAILED, WELL REASONE D AND WELL VERSED ORDER, WHICH DOES NOT REQUIRE ANY INTERFERENCE AND ACCORDI NGLY, THE SAME IS UPHELD. GROUND NO.1 IS, THUS, REJECTED. WE FIND THAT THE ISSUES INVOLVED IN THESE APPEALS IS PARI MATERIA WITH THE ISSUE DECIDED BY HON'BLE TRIBUNAL IN THE A BOVE NOTED CASES AND THEREFORE RESPECTFULLY FOLLOWING THE SAME APPEALS F ILED BY REVENUE ARE DISMISSED. 8. IN NUTSHELL, THE APPEALS FILED BY REVENUE AS WEL L AS CROSS-OBJECTIONS FILED BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.09.2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26.09.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., ITA NOS. 116, 117 &118(ASR)/2017 C.O NO S.16,17&18(ASR)/2016 ASSESSMENT YEAR: 2009-10 22 TRUE COPY BY ORDER