JAIRAM G. CHAWLA, MUMBAI V. ITO WD 10(1)(2), MUMBAI

ITA 1268/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4444 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 02-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2012
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Sale consideration of property below Jantri Value; Search and seizure; Document seized; Opportunity of cross examination; Third party statement; Documents seized
• Section: 143(3); 131

Judgement Text

, , J, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO. 1268/MUM/2012 ASSESSMENT YEARS: 2008-09 JAIRAM G. CHAWLA, GR FLOOR, SONI HOUSE, 25 NEHRU RD, SANTACRUZ (E), MUMBAI -400055 / VS. ITO WD 10(1)(2) AAYAKAR BHAVAN MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AADPC2376C ITA NO.1266/MUM/2012 ASSESSMENT YEARS: 2008-09 DEEPA J. CHAWLA, GR FLOOR, SONI HOUSE, 25 NEHRU RD, SANTACRUZ (E), MUMBAI -400055 / VS. ITO WD 10(1)(2) AAYAKAR BHAVAN MUMBAI (REVENUE) (RESPONDENT) P.A. NO. AADOC2375B APPELLANT BY SHRI M. SUBRAMANIAN ( A R) REVENUE BY SHRI ALOK JOHRI (CIT - D R) / DATE OF HEARING : 09/12/2015 / DATE OF ORDER: 06/01/2016 JAIRAM & DEEPA CHAWLA 2 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THESE APPEALS HAVE BEEN FILED BY THE AFORESAID ASSE SSEES AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, MUMBAI {(IN SHORT CIT(A)}, DATED 07 .12.2011 FOR THE ASSESSMENT YEARS 2008-09, PASSED AGAINST THE AS SESSMENT ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT AO ) U/S 143(3) R.W.S. 153C OF THE ACT. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI M. SUBRAMANIAN, AUTHORISED REPRESENTATIVE (AR) ON B EHALF OF THE ASSESSEE AND BY SHRI ALOK JOHRI, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. FIRST WE TAKE UP APPEAL OF SH. JAIRAM G. CHAWLA IN ITA NO.1268/MUM/2012 FOR A.Y. 2008-09: 3. IN THIS CASE, THE EFFECTIVE ISSUE RAISED BY THE AS SESSEE IN VARIOUS GROUNDS RAISED BY THE ASSESSEE IS FOR CHALL ENGING THE ACTION OF LD. CIT(A) IN SUSTAINING THE ADDITION OF RS.64,00,000/- U/S 69B ON ACCOUNT OF CASH PAID FOR PURCHASE OF THE SHOP FROM UNDISCLOSED SOURCES. 3.1. THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS A DIRECTOR OF COMPANY NAMELY M/S. JAIMAJIKI DEVELOPME NT LTD. ALONG WITH HIS WIFE SMT. DEEPA JAIRAM CHAWLA A ND JAIRAM & DEEPA CHAWLA 3 TWO SONS. THE ASSESSEE FILED RETURN OF INCOME ON 07.10.2008 DECLARING INCOME OF RS.33,920/-. THEREAF TER A SEARCH WAS CONDUCTED ON 19.02.2009 IN THE CASE OF O NE SIDDHI GROUP OF CONCERNS. DURING THE COURSE OF THAT SEARCH IT WAS ALLEGEDLY FOUND THAT THE ASSESSEE ALONG WITH HIS WIFE HAD BOOKED SHOP NO.106 ON IST FLOOR AT LITTLE WORL D MALL, PLOT NO.2 1, SECTOR 2, KHARGAR, NAVI MUMBAI, IN THEIR JO INT NAMES FOR A STATED CONSIDERATION OF RS.2.57 CRORES, WHEREAS THE IMPUGNED AGREEMENT VALUE WAS RS. 1.29 C RORES ONLY. IT WAS ALSO OBSERVED DURING SEARCH THAT THE B ALANCE SUM OF RS. 1.28 CRORES WAS PAID IN CASH. DURING SEARCH, NECESSARY STATEMENTS WERE RECORDED ON THE BASIS OF PAPERS FOUND DURING SEARCH. PURSUANT TO SEARCH ACTI ON, THE A.O. RECEIVED INTIMATION FROM THE ADIT (INV.) T HANE ON THE BASIS OF WHICH ASSESSEE'S RETURN OF INCOME WAS SELE CTED FOR REGULAR SCRUTINY. 3.2. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED A COPY OF PURCHASE AGREEMENT IN RESPECT O F PURCHASE OF ABOVE SHOP. AS REGARD THE PAYMENT OF RS .1.28 CRORES PAID IN CASH FOR PURCHASE OF SHOP, THE ASSES SEE SUBMITTED LETTER DT. 20.07.2010, AND STATED THAT NO SUCH PAYMENT WAS MADE BY THEM (ASSESSEE AND HIS WIFE) IN CASH. THE ASSESSEE REITERATED HIS ARGUMENT THAT THE AGREEMENT VALUE WAS THE ONLY VALUE PAID BY THEM FOR THE PURCHASE OF SAID SHOP. THE ASSESSEE'S AUTHORIZED REPRESENTATIVE ARGUED BEFORE A.O. THAT KEEPING IN V IEW FACTS OF THE CASE AND TAKING INTO ACCOUNT THE CASE LAWS JAIRAM & DEEPA CHAWLA 4 MENTIONED IN SUBMISSIONS, THE CASH PAYMENT OF RS.1. 28 CRORES FOR PURCHASE OF SHOP COULD NOT BE ADDED TO T HE TOTAL INCOME OF THE ASSESSEE. 3.3. THE AO CONSIDERED THE SUBMISSIONS MADE BY THE ASSE SSEE BUT HE DID NOT AGREE WITH SAME ON THE GROUND THAT M R. MAYUR PATEL OF SIDDHI GROUP OF COMPANIES HAD STATED IN TH E STATEMENT RECORDED U/S 131 ON 2 ND APRIL 2009 BEFORE THE SEARCH TEAM THAT THERE WAS PRACTICE OF RECEIPT OF CASH ON ACCOU NT OF OWN MONEY FROM THE VARIOUS PURCHASERS AND ACCORDINGLY, AN OFFER FOR TAXING UNDISCLOSED INCOME WAS MADE IN THE HANDS OF M/S. GAYATRI HOMES. IT WAS FURTHER HELD BY THE AO THAT A LTHOUGH THE ASSESSEE DENIED THE STATEMENT OF MR. MAYUR PATE L BUT HE COULD NOT DISCHARGE THE BURDEN TO REBUT THE CONFESS ION STATEMENT MADE BY THE DEVELOPER OF THE MALL WHERE S HOP PURCHASED BY THE ASSESSEE WAS LOCATED. IT WAS HELD BY THE AO THAT TOTAL CONSIDERATION FOR THE SHOP WAS RS. 2.57 CRORES WHEREAS ONLY RS.1.29 CRORES WAS PAID BY CHEQUE, AND THEREFORE BALANCE AMOUNT OF RS.1.28 CRORES WAS PAID AS ON MONEY. THE ASSESSEE AND HIS WIFE WERE CO-OWNERS IN THE SHOP OF 50% EACH. ACCORDINGLY, A SUM OF RS. 64 LAKHS EAC H (I.E. 50% OF RS.1.28 CRORES) WAS CONSIDERED AS VALUE OF UNEXP LAINED INVESTMENT IN THE HANDS OF ASSESSEE AND HIS WIFE MS . DEEPA CHAWLA. 3.4. BEING AGGRIEVED, THE ASSESSEE CONTESTED THE MATTER BEFORE THE LD. CIT(A), WHEREIN IT WAS SUBMITTED THAT SALE DEED WAS DULY REGISTERED AT RS.1.29 CRORES AND THE SAME WAS ACCEPTED JAIRAM & DEEPA CHAWLA 5 BY THE STAMP VALUATION OFFICER, AND THEREFORE, THIS VALUE WAS TO BE ADOPTED AS THE AMOUNT OF SALES CONSIDERATION PAI D BY THE ASSESSEE, IN VIEW OF SECTION 50C. IT WAS FURTHER SU BMITTED THAT MERELY RELYING UPON THE THIRD PARTY STATEMENT WHICH WAS RECORDED AT BACK OF THE ASSESSEE AND THAT TOO WITHO UT GRANTING ANY OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSE E, IMPUGNED ADDITION COULD NOT HAVE BEEN MADE. IN VIEW OF THE SUBMISSIONS OF THE ASSESSEE, LD. CIT(A) GRANTED OPP ORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SAID BUILDER/ DEV ELOPER FROM WHOM THE SHOP WAS PURCHASED. IN THE STATEMENT RECOR DED DURING CROSS EXAMINATION, SHRI PATEL CLARIFIED THAT NO CASH WAS RECEIVED FROM THE ASSESSEE OR HIS WIFE. BUT LD. CIT (A) DID NOT AGREE WITH THE SUBMISSIONS/STATEMENTS OF THE ASSESS EE AND HELD THAT ADDITION WAS RIGHTLY MADE BY THE AO ON TH E BASIS OF SEIZED DOCUMENTS, AND ALSO HELD THAT THE FIGURE OF RS.12,800/- APPEARING IN THE SAID DOCUMENTS WAS RIGHTLY DECODED BY THE AO AS RS.1,28,00,000/-. HE DID NOT FIND ANY CREDIBI LITY IN THE SECOND STATEMENT GIVEN BY THE BUILDER SHRI KANTIBAI PATEL DURING HIS CROSS EXAMINATION BY THE ASSESSEE WHEREI N HE DENIED RECEIPT OF ANY CASH PAYMENT FROM THE ASSESSE E OR HIS WIFE. THEREFORE, ADDITION MADE BY THE AO WAS SUSTAI NED. 3.5. BEING AGGRIEVED, THE ASSESSEE HAS FILED APPEAL BEF ORE THE TRIBUNAL. 3.6. DURING THE COURSE OF HEARING BEFORE US, IT HAS BEE N ARGUED BY LD. COUNSEL THAT ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS CONTRARY TO THE FACT S AS WELL AS JAIRAM & DEEPA CHAWLA 6 LAW. IT HAS BEEN SUBMITTED THAT ADDITION HAS BEEN M ADE BY BLINDLY RELYING UPON A PREVIOUS UNCORROBORATED STAT EMENT WHICH WAS RECORDED AT THE BACK OF THE ASSESSEE AND DISREGARDING THE STATEMENT WHICH WAS RECORDED IN TH E PRESENCE OF THE ASSESSEE DURING THE PROCESS OF CROS S EXAMINATION. IT WAS SUBMITTED THAT LOWER AUTHORITIE S FOLLOWED A BIASED APPROACH. THE LOWER AUTHORITIES HAVE DONE A SORT OF CHERRY PICKING EXERCISE BY CHOOSING ONE STATEMENT A ND DISREGARDING OTHER WHICH DID NOT SUIT THEM. HE DREW OUR ATTENTION TOWARDS THE SEIZED DOCUMENTS ON THE BASIS OF WHICH ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE AND CONTENDED THAT IT WAS A TYPED DOCUMENT AND NOTHING WAS CLEAR THAT WHO PREPARED IT AND FOR WHAT PURPOSES. IT WAS ALSO SHOWN THAT AREA MENTIONED IN THE SAID PAPER AGAINST THE N AME OF THE ASSESSEE WAS 3122 SQ.FT., WHEREAS THE SHOP PURCHASE D BY THE ASSESSEE IS HAVING AREA OF 1560 SQ. FEET, AND THUS WHEN EVEN THE AREA DOES NOT TALLY, NO CREDIBILITY COULD BE GI VEN TO THIS DOCUMENT TO THE EXTENT THAT ADDITION OF SUCH A LARG E AMOUNT COULD BE MADE SOLELY RELYING UPON THIS DUMB DOCUMEN T. 3.7. IT WAS FURTHER SUBMITTED THAT IN VIEW OF THESE FAC TS, THE SECOND STATEMENT OF THE BUILDER WHEREIN FACTS WERE CLARIFIED PROPERLY COULD NOT HAVE BEEN BRUSHED ASIDE BY THE L D. CIT(A) IN SUCH AN UNFAIR MANNER. LASTLY, HE PLACED THE REL IANCE ON THE JUDGMENT OF THE TRIBUNAL IN THE CASE OF ITO VS. SYNTHETIC HYDROCARBON (ITA NO.5188/MUM/2011 DATED 12.09.2012 WHEREIN SIMILAR ISSUE WAS INVOLVED AND PROPERTY WAS PURCHASED BY THE SAID FIRM FROM THE SAME BUILDER I. E. M/S GAYATRI HOMES, AND AO HAD MADE ADDITION ON THE BASI S OF JAIRAM & DEEPA CHAWLA 7 SAME SEIZED DOCUMENT AS RESULT OF SEARCH AND SEIZUR E ACTION CONDUCTED IN THE CASE OF SIDDHI GROUP OF COMPANIES. IN THE SAID CASE, HOBLE BENCH RELYING UPON THE STATEMENT OF SHRI KANTIBAI PATEL OF GAYATRI HOMES AND FINDING OUT VAR IATION IN THE AREA MENTIONED IN THE AGREEMENT AND SEIZED DOCU MENT, DELETED THE ADDITION. IT WAS SUBMITTED THAT CASE OF THE ASSESSEE WAS COVERED WITH THE JUDGMENT OF COORDINAT E BENCH HAVING SAME FACTS AND THEREFORE, ASSESSEES APPEAL WAS TO BE ALLOWED. 3.8. ON THE OTHER HAND, LD. DR HAS SUPPORTED THE ORDER O F THE LOWER AUTHORITIES. IN RESPONSE TO OUR QUERY, HE WAS NOT ABLE TO DISTINGUISH THE JUDGMENT OF THE TRIBUNAL IN THE CAS E OF SYNTHETIC HYDROCARBON (SUPRA). 3.9. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. IT IS NOTED BY US THAT COMPLETE FACTS HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORI TIES WHILE ADJUDICATING THE ISSUE AGAINST THE ASSESSEE. FROM T HE DISCUSSION MADE ABOVE IN OUR ORDER, IT WOULD BE CLE AR THAT IN THE STATEMENT RECORDED DURING THE PROCESS OF CROSS EXAMINATION FACTS WERE CLARIFIED BY SHRI KANTILAL M . PATEL. WE FIND THAT SIMILAR ISSUE HAD REACHED BEFORE THE TRIB UNAL IN THE CASE OF SYNTHETIC HYDROCARBON (SUPRA), AND RELEVANT PARA OF THE SAID JUDGMENT IS REPRODUCED BELOW: REVENUE IS BEFORE US AGAINST THE FINDING OF LD. CI T(A). THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE JAIRAM & DEEPA CHAWLA 8 FINDINGS OF THE AO AND SUBMITTED THAT ANY INCRIMINA TING PAPER FOUND ON A COMPUTER HARD DISC OF WHICH PRINT IS TAKEN, THERE CANNOT BE ANY QUESTION OF HAVING SIGNA TURE ON IT. THE LD. DR FURTHER SUBMITTED THAT THE BUILDER S HRI KANTILAL M. PATEL HAS CONFIRMED IN HIS STATEMENT TH AT HE HAS RECEIVED CASH OVER AND ABOVE THE REGISTERED VAL UE OF THE SHOP PURCHASED BY THE ASSESSEE. THE SAME CANNOT BE BRUSHED ASIDE LIGHTLY. REBUTTING THE ARGUMENTS AND SUBMISSIONS OF THE LD. DR, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ENTIRE ADDITION HAS BEE N MADE SOLELY ON THE BASIS OF SOME DOCUMENTS FOUND AT THE PREMISES OF THE BUILDER. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE CROSS EXAMINATION OF THE BUILDER AND SUBMITTED THAT DURING THE CROSS EXAMINA TION, SAID BUILDER SPECIFICALLY STATED THAT AS PER HIS BO OKS HE HAS RECEIVED ONLY RS. 43,60,000/- FROM THE ASSESSEE AND THE SAME PAYMENT WAS RECEIVED IN CHEQUE. IN SUPPORT OF WHICH HE HAS SUBMITTED LEDGER COPIES OF HIS BOOKS. THE LD. COUNSEL CONCLUDED THAT ENTRIES IN TH E SEIZED DOCUMENT , , FOUND FROM THE PREMISES OF THE BUILDER CANNOT BE RELIED UPON IN THE LIGHT OF THE RATIO LAI D DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CBI VS V.C . SHUKLA & ORS (SUPRA). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE ORDERS OF LOWER AUTHORITIES. THE WHOLE DISPUTE REVOLVES AROUND THE ENTRIES IN THE DO CUMENT FOUND DURING SEARCH AND SEIZURE OPERATION CARRIED O N AT THE PREMISES OF THE BUILDER M/S. GAYATRI HOMES. THE ENTIRE JAIRAM & DEEPA CHAWLA 9 ASSESSMENT HAS BEEN MADE ONLY ON THE BASIS OF ALL T HE ENTRIES FOUND IN THE SEIZED DOCUMENT AND THE STATEM ENT OF SHRI KANTILAL M. PATEL OF GAYATRI HOMES. IT WOUL D BE PERTINENT TO NOTE THAT IN THE SEIZED DOCUMENT, THE TOTAL AREA OF SHOP MENTIONED AS 909 SQ. FT., HOWEVER, THE ACTUAL AREA PURCHASED BY THE ASSESSEE IS 454.50 SQ. FT ONLY. THIS FACT IS ALSO NOT DISPUTED BY THE ASSESSI NG OFFICER. IT APPEARS THAT THE AO HAS ACCEPTED PARTLY THE GENUINENESS OF THE SEIZED DOCUMENT IN SO FAR AS IT RELATES TO THE CASH PAYMENT IS CONCERNED I.E. RS. 52,26,000 /- AND IGNORED THE AREA OF SHOP AS NOTED IN THE SEIZED MATERIAL AS 909 SQ. FT. ON GOING THROUGH THE CROSS EXAMINATION, STATEMENT OF SHRI KANTILAL M. PATEL RECORDED ON 20.12.2010 AND EXHIBITED AT PAGES 17 TO 19 OF THE PAPER BOOK FILED BY THE ASSESSEE, WE FIND TH AT THE SAID SHRI KANTILAL M. PATEL HAS NOT GIVEN ANY SPECI FIC ANSWER WHICH COULD POINT OUT THAT THE ASSESSEE HAS ACTUALLY PAID RS. 52,26,000/- OVER AND ABOVE THE PURCHASE CONSIDERATION PAID BY CHEQUE. ON THE CONTR ARY, WE FIND THAT SHRI KANTILAL M. PATEL HAS STATED THAT THE SEIZED DOCUMENT IS A COMPUTER GENERATED PAPER AND H E IS NOT AWARE OF WHO HAS PREPARED IT. HE HAS OFFERED TH E CASH RECEIPT AMOUNT AS HIS ADDITIONAL INCOME TO PURCHASE PEACE OF MIND AND TO AVOID LITIGATION. 10. BE THAT AS IT MAY, WE DO NOT FIND ANY MATERIAL BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE HIS CLAIM THAT ASSESSEE HAS ACTUALLY PAID RS.52,26,000/- OVER AND ABOVE THE CHEQUE AMOUNT FOR THE PURCHASE OF SHOP NO . 119 JAIRAM & DEEPA CHAWLA 10 AT LITTLE WORLD. THE ENTIRE ASSESSMENT HAS BEEN MAD E ONLY ON THE BASIS OF SURMISE, ASSUMPTIONS AND CONJECTURES. IN OUR HUMBLE OPINION, SUCH ADDITIONS CANNOT BE SUSTAINED, MORE SO IN THE LIGHT OF THE RA TIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CB I VS V.C. SHUKLA & ORS (SUPRA). WE DO NOT FIND ANY REASO N TO TINKER WITH THE FINDINGS OF LD. CIT(A) WHICH WE CON FIRM. 11. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. 3.10. IT IS NOTED THAT THE FACTS OF THE CASE BEFORE US A RE IDENTICAL TO THE FACTS OF THE ABOVE SAID CASE. IN T HE CASE BEFORE ALSO THERE IS DIFFERENCE IN THE AREA. THE SEIZED DO CUMENT REFLECTS THE AREA AS 3122 SQ.FT., WHEREAS AGREEMENT ENTERED WITH BUILDER SHOWS AREA AS 1560 SQ.FT. FURTHER, MR. KANTIBAI PATEL HAD CLARIFIED FULL FACTS DURING THE COURSE OF HIS CROSS EXAMINATION BEFORE THE AO. NOTHING WAS BROUGHT ON R ECORD BY THE REVENUE, THEREAFTER, TO NEGATE THE CLAIM OF THE ASSESSEE. THE ADDITION WAS MADE BY THE AO AND SUSTAINED BY TH E LD. CIT(A) SOLELY RELYING UPON SEIZED DOCUMENT AND STAT EMENT OF DEVELOPER WHICH WAS SUBSEQUENTLY, RETRACTED/MODIFIE D DURING THE CROSS EXAMINATION. 3.11. IT IS FURTHER NOTED THAT IN THE APPEAL BEFORE LD. CIT(A), IT WAS SUBMITTED THAT SALE DEED WAS DULY REGISTERED AT RS.1.29 CRORES AND THE SAME WAS ACCEPTED BY THE STAMP VALUA TION OFFICER, AND THEREFORE, THIS VALUE WAS TO BE ADOPTE D AS THE AMOUNT OF SALES CONSIDERATION PAID BY THE ASSESSEE, IN VIEW OF SECTION 50C. IT WAS FURTHER SUBMITTED THAT MERELY R ELYING UPON JAIRAM & DEEPA CHAWLA 11 THE THIRD PARTY STATEMENT WHICH WAS RECORDED AT BAC K OF THE ASSESSEE AND THAT TOO WITHOUT GRANTING ANY OPPORTUN ITY OF CROSS EXAMINATION TO THE ASSESSEE, IMPUGNED ADDITIO N COULD NOT HAVE BEEN MADE. IN VIEW OF THE SUBMISSIONS OF T HE ASSESSEE, LD. CIT(A) GRANTED OPPORTUNITY TO THE ASS ESSEE TO CROSS EXAMINE THE SAID BUILDER/ DEVELOPER FROM WHOM THE SHOP WAS PURCHASED. ACCORDINGLY, AO RECORDED THE ST ATEMENT OF SHRI KANTIBAI PATEL OF M/S. GAYATRI HOMES OF SID DHI GROUP OF COMPANIES. IN THE STATEMENT RECORDED, THE BUILDE R SHRI KANTIBAI PATEL STATED THAT HE HAD AGREED BEFORE THE SEARCH PARTY FOR OFFERING THE INCOME OF RS.12.05 CRORES TO BUY PEACE OF MIND AND TO BURY THE LITIGATION, AND NO WHERE HE HA D MENTIONED THAT HE HAD RECEIVED A SUM OF RS.1.28 CRO RES FROM SHRI JAI RAM CHAWLA OR SMT. DEEPA CHAWLA. THE AO CONFRONTED HIM EARLIER STATEMENT IN WHICH HE HAD AL LEGEDLY STATED THAT HE HAD RECEIVED CASH OVER AND ABOVE THE CURRENT VALUE WHICH WAS NOT ACCOUNTED FOR IN THE BOOKS OF A CCOUNTS AND WHICH WAS OFFERED AS UNDISCLOSED INCOME AMOUNTI NG TO RS.12.05 CRORES. BUT SHRI KANTIBAI PATEL REMAINED F IRM IN HIS STATEMENT THAT HE HAD NOT MENTIONED THAT ANY CASH W AS RECEIVED FROM CHAWLAS. THEREAFTER, AO SHOWED THE S EIZED PAPER TO SHRI KANTIBAI PATEL ON THE BASIS OF WHICH ADDITION WAS MADE BY THE LD. AO IN THE ASSESSMENT PROCEEDINGS, W HEREIN NAMES OF VARIOUS PURCHASERS WERE MENTIONED ALONG WI TH AMOUNTS TO BE RECEIVED AND RECEIVED FROM THESE PERS ONS. IN RESPONSE, SHRI KANTIBAI PATEL STATED THAT THESE WER E THE AMOUNTS AS WERE EXPECTED TO BE RECEIVED FROM PROS PECTIVE BUYERS, AND NOT THE AMOUNTS ACTUALLY RECEIVED. IN NUTSHELL, JAIRAM & DEEPA CHAWLA 12 SHRI PATEL CLARIFIED AND RECONFIRMED THAT NO CASH W AS RECEIVED FROM THE ASSESSEE OR HIS WIFE. THUS, FACTS NARRATED IN THE ORDERS OF THE LOWER AUTHORITIES CANNOT TAKE US TO T HE CONCLUSION THAT CASH WAS PAID BY THE ASSESSEE OR HI S WIFE, OVER AND ABOVE THE STATED CONSIDERATION. IT IS WELL SET TLED LAW THAT THE BURDEN IS ON THE REVENUE TO PROVE THAT CONSIDER ATION OF THE IMMOVABLE PROPERTY HAS BEEN UNDERSTATED, AND NO ADDITION CAN BE SUSTAINED WITHOUT MAKING PROPER INQ UIRIES AND BRINGING ON RECORD COGENT EVIDENCES. THE BARE S TATEMENT OF THE SELLER IS NOT SUFFICIENT TO ENABLE THE AO TO MAKE ADDITION IN THE HANDS OF THE ASSESSEE AS WAS HELD BY THE HON BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. DE KALYAN SUNDARAM 282 ITR 259 . THIS JUDGMENT WAS SUBSEQUENTLY AFFIRMED BY THE HONBLE SUPREME COURT IN THE JUDGMENT REPORTED AT 294 ITR 49 . IDENTICAL ISSUE HAS BEEN DECIDED BY HONBLE BOMBAY HIGH COURT ON THE SIMILAR LINES IN THE CASE OF CIT VS. SAFFIRE HOTELS PVT. LTD. 116 DTR 385 (BOM) (ORDER DATED 2 ND MARCH 2015), BY AFFIRMING THE VIEW TAKEN BY THE TRIBUNAL THAT ONUS WAS UPON THE AO TO CORROBORATE H IS ASSERTION THAT THERE WAS CASH COMPONENT IN TRANSACT ION OF SALE OF IMMOVABLE PROPERTY. 3.12. MOREOVER, HONBLE COORDINATE BENCH IN THE CASE OF SYNTHETIC HYDROCARBON (SUPRA) DID NOT FIND THIS SEI ZED MATERIAL SUFFICIENT TO SUSTAIN THE ADDITION MADE BY THE AO. THUS, TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THIS CASE AND RESPECTFULLY FOLLOWING THE AFORESAID DECIS ION OF JAIRAM & DEEPA CHAWLA 13 COORDINATE BENCH, WHEREIN FACTS INVOLVED ARE IDENTI CAL, THE ADDITION MADE BY THE AO IS DIRECTED TO BE DELETED. 3.13. SINCE WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON MERITS, WE ARE NOT INCLINED TO DECIDE O THER LEGAL ISSUES RAISED BY THE ASSESSEE BEFORE US. 4. IN THE RESULT, THIS APPEAL IS PARTLY ALLOWED. ITA NO. 1266/MUM/2012 APPEAL OF THE SMT. DEEPA J. CHAWLA 5. THIS APPEAL HAS BEEN FILED BY WIFE OF SHRI JAI RAM CHAWLA. THE ISSUES INVOLVED ARE IDENTICAL AND ARISE FROM TH E SAME TRANSACTIONS, THEREFORE, WE DIRECT THE AO TO FOLLOW OUR ORDER IN THE CASE OF SHRI JAI RAM CHAWLA IN THIS CASE ALSO. 6. IN THE RESULT, THIS APPEAL IS ALSO PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2016. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; ' DATED : 06/01/2016 CTX? P.S/. .. JAIRAM & DEEPA CHAWLA 14 #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. $ %& / THE ASSESSEE 2. '(%& / THE RESPONDENT. 3. ) ) * ( $ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -. ' /0 , ) $ /01 , / DR, ITAT, MUMBAI 6. 2 3 / GUARD FILE. / BY ORDER, ( -$ ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI