A.C.I.T., Circle 3(1), Gwalior V. Smt. Poonam Gupta, Gwalior

ITA 156/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 56935 (ITAT-AGRA)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Search and seizure; Document seized; Assessment record; Tax effect; Documents seized
• Section: 50C; 153A; 69; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 155/AGRA/2011 ASST. YEAR : 2005-06 A.C.I.T., CIRCLE 3(1), VS. SHRI PRAVEEN GUPTA, GWALIOR. 61, LAXMI BAI COLONY, GWALIOR. (PAN : ACOPG 5406 G) ITA NO. 156/AGRA/2011 ASST. YEAR : 2005-06 A.C.I.T., CIRCLE 3(1), VS. SMT. POONAM GUPTA, GWALIOR. 61, LAXMI BAI COLONY, GWALIOR. (PAN : ACOPG 5442 Q) (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI ANURAG SINHA, ADVOCATE DATE OF HEARING : 20.03.2012 DATE OF PRONOUNCEMENT : 23.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THIS ORDER SHALL DISPOSE OF BOTH THE APPEALS FILED BY THE REVENUE AGAINST DIFFERENT ORDERS OF LD. CIT(A), GWALIOR DATED 14.02 .2011 AND 22.02.2011 FOR THE ASSESSMENT YEAR 2005-06 IN THE CASE OF BOTH THE ASS ESSEES/RESPONDENTS ABOVE. ITA NO. 155 & 156/AGRA/2011 2 SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE APPEAL S, THEREFORE, BOTH WERE HEARD TOGETHER AND WE DISPOSE OF THE SAME THROUGH THIS CO MMON / CONSOLIDATED ORDER. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW : SHRI PRAVEEN GUPTA 3. THE REVENUE ON GROUND NO. 1 CHALLENGED THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.14,71,000/- MADE BY THE AO ON AC COUNT OF UNEXPLAINED INVESTMENT IN PLOT. IN THESE CASES, SEARCH AND SEIZ URE OPERATION U/S. 132 WAS CARRIED ON 28.03.2008 AT THE BUSINESS AND RESIDENTIAL PREMI SES OF THE ASSESSEE AND THEIR FAMILY MEMBERS. PROCEEDINGS U/S. 153A WERE, ACCORDI NGLY INITIATED. THE AO NOTED THAT THE ASSESSEE ALONGWITH HIS WIFE SMT. POONAM GU PTA PURCHASED A COMMERCIAL PLOT OF LAND SITUATED AT CITY CENTRE, GWALIOR DURIN G THE ASSESSMENT YEAR UNDER APPEAL VIDE SALE DEED DATED 20.09.2004 FOR A SALE C ONSIDERATION OF RS.25,08,000/-. ON EXAMINATION OF THE CONTENTS OF THE SALE DEED, IT WAS NOTICED THAT THE REGISTRAR HAS CHARGED THE STAMP DUTY ON THE BASIS OF MARKET V ALUE OF THE PROPERTY DETERMINED AT RS.54,50,000/-. THE ASSESSEES WERE, THEREFORE, A SKED TO EXPLAIN THE REASONS AS TO WHY THE VALUE OF THE PROPERTY MAY NOT BE TAKEN AT R S.54,50,000/- AND RS.29,42,000/- MAY NOT BE TREATED AS PAYMENT MADE T O THE SELLER OF THE PROPERTY FROM UNDISCLOSED SOURCES. NO SATISFACTORY REPLY WAS FILED, THEREFORE, ITA NO. 155 & 156/AGRA/2011 3 RS.14,71,000/- EACH WAS ADDED TO THE INCOME OF THE ASSESSEE AND HIS WIFE SMT. POONAM GUPTA AS UNEXPLAINED INVESTMENT. 3.1 THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT( A) AND IT WAS SUBMITTED THAT THE ASSESSEES HAVE NOT MADE ANY INVESTMENT OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE SALE DEED. IT WAS SUBMITTED THAT T HERE IS NO SUCH PROVISION TO MAKE THE ADDITION. THE ASSESSEE RELIED UPON THE DEC ISION OF HONBLE SUPRME COURT IN THE CASE OF K.P. VARGHESE VS. ITO, 131 ITR 597 (SC). IT WAS ALSO EXPLAINED THAT THE ASSESSEE CANNOT BE PUT TO NEGATIVE ONUS TO CAST ON IMPOSSIBLE BURDEN. THE LD. CIT(A), CONSIDERING THE EXPLANATION OF THE ASSESSEE , DELETED THE ADDITION. HIS FINDINGS IN PARA 4.2 OF THE APPELLATE ORDER ARE REP RODUCED AS UNDER : 4.2 APPELLANTS SUBMISSION ALONG WITH ASSESSMENT OR DER HAVE BEEN CONSIDERED CAREFULLY. ASSESSMENT RECORDS ALONGWITH APPRAISAL REPORT AND SEIZED DOCUMENTS HAVE ALSO BEEN PERUSED. AO H AS MADE THE ADDITION SOLELY ON THE GROUND OF VALUE OF PROPERTY TO BE TAKEN AT RS. 54,50,000/- ON THE BASIS OF STAMP DUTY IN PLACE OF RS. 25,08,000/- AS DECLARED BY THE APPELLANT. ACCORDINGLY, ADDITION FO R 50% SHARE OF THE APPELLANT ON THE DIFFERENCE OF AMOUNT OF RS. 29,42, 000/- HAS BEEN MADE WHEREAS ANOTHER 50% HAS BEEN ADDED IN THE HAND S OF APPELLANTS WIFE NAMELY SMT POONAM GUPTA AS PER HER ASSESSMENT ORDER. HOWEVER, AO HAS NOT BROUGHT EVEN A SINGLE PIECE OF EVIDENCE ON RECORD TO SHOW THAT THE APPELLANT HAS, INDEED, P AID THIS DIFFERENCE OF AMOUNT. THIS IS DESPITE THE FACT THAT EXTENSIVE SEARCH AND SEIZURE OPERATION HAVE BEEN CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE APPELLANT AND HER FAMILY MEMBERS WH EREBY EVERY NOOK & CORNER GETS COVERED. THERE CAN NOT BE A PRESUMPTI ON THAT THE APPELLANT HAS PAID &/OR EARNED ON MONEY WITHOUT ANY EVIDENCE. THIS VIEW HAS ALSO BEEN HELD BY HONBLE DELHI HIGH COURT IN CASE OF RAZA ITA NO. 155 & 156/AGRA/2011 4 SUGAR CO. LTD. VS. CIT(1981) 130 ITR 421 (DEL). IT IS WELL SETTLED POSITION OF LAW THAT PROVISION OF SECTION 50C OF TH E IT ACT ARE NOT APPLICABLE IN THE HANDS OF PURCHASER OF PROPERTY. T HOUGH THE AO HAS NOT INVOKED SECTION 50C IN THE ASSESSMENT ORDER BUT HAS APPLIED ITS PRINCIPLE. HIGHER REGISTRATION VALUE IN ITSELF DOES NOT PROVE THE FACT THAT THE TRANSACTION HAS TAKEN PLACE AT A FIGURE DI FFERENT FROM THAT RECORDED IN THE APPELLANTS BOOKS. ON THE OTHER HAN D, THE DEEMING PROVISION INTRODUCE BY SECTION 56 ARE APPLICABLE FO RM 01.10.2009, THUS NOT RELEVANT FOR THE ASSESSMENT YEAR UNDER CON SIDERATION. IT IS ONLY AN INFERENCE OF THE AO THAT THE APPELLANT HA S PAID MORE CONSIDERATION AS AGAINST SHOWN IN HIS BOOKS OF ACCO UNTS BUT THE SAME IS NOT SUPPORTED BY ANY EVIDENCE. THE SAME VIEW HAS BEEN HELD BY HONBLE ITAT, AHEMDABAD IN CASE OF INCOME TAX OFFIC ER VS. VENU PROTEINS IN ITA NO. 1087 VIDE ORDER DATED 11.06.201 0 REPORTED IN (2010) 4 ITR (TRIB.) 602 (AHD.) HONBLE ITAT, MUMBA I HAS ALSO HELD IN CASE OF INDRALOK HOTELS (P) LTD. VS. ITO (2009) 318 ITR 234 (MUMBAI) (AT) THAT SECTION 50C IS APPLICABLE ONLY F OR THE PURPOSES OF DETERMINING THE SALE CONSIDERATION FOR COMPUTATION OF CAPITAL GAINS IN THE HANDS OF SELLER AND IT CANNOT BE APPLIED FOR DE TERMINING INCOME UNDER OTHER HEADS. HONBLE SUPREME COURT IN CASE OF K.P. VARGHESE VS. ITO (1981) 131 ITR 597 (SC) HAS ALSO HELD SIMIL AR VIEW BY STATING THAT BE PUTTING THE BURDEN OF SHOWING THAT THERE IS NO UNDERSTATEMENT OF THE CONSIDERATION ON THE APPELLANT WOULD TANTAMO UNT TO CASTING AN IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH THE NEGATIV E I.E THAT HE DID NOT RECEIVE ANY CONSIDERATION BEYOND THAT DECLARED BY HIM. HONBLE ALLAHABAD HIGH COURT IN CASE OF DINESH KUMAR MITTAL VS. ITO AND OTHERS (1992) 193 ITR 770 (ALL.) HAS FURTHER HELD A S UNDER. WE CAN NOT RECOGNISE ANY RULE OF LAW TO THE EFFECT THAT THE VALUE DETERMINED FOR THE PURPOSE OF STAMP DUTY IS T HE ACTUAL CONSIDERATION PASSING BETWEEN THE PARTIES TO A SALE . FURTHER, IN SEARCH ASSESSMENT, ADDITION IS TO BE MA DE ON THE BASIS OF SEIZED MATERIAL AND EVIDENCE, ADDITIONS MADE ON THE BASIS OF PROBABILITIES AND PRESUMPTION GO BEYOND ITS SCOPE. ACCORDINGLY, AO IS NOT FOUND JUSTIFIED IN MAKING ADDITION OF RS. 14 ,71,000/- TO THE INCOME OF THE APPELLANT WITHOUT ANY ADVERSE AND CON TRARY MATERIAL ON RECORD FOUND DURING SEARCH OR ASSESSMENT PROCEEDING S. ACCORDINGLY, ADDITION OF RS. 14,71,000/- IS, HERBY, DELETED. ITA NO. 155 & 156/AGRA/2011 5 4. THE LD. DR RELIED UPON THE ORDER OF THE AO AND S UBMITTED THAT THE AO HAS NOT INVOKED THE PROVISIONS OF SECTION 50C IN THE MA TTER, WHICH IS EVIDENT FROM THE FINDING OF THE LD. CIT(A). HE HAS SUBMITTED THAT TH E LD. CIT(A) WITHOUT ANY BASIS DELETED THE ADDITION BECAUSE FINDINGS OF THE AO WER E BASED UPON THE STAMP DUTY APPLIED BY THE REGISTRAR FOR THE PURPOSE OF REGISTR ATION OF THE SALE DEED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITER ATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). THE CRU X OF FINDINGS OF THE AO IS THAT THE ADDITION IS MADE BY THE AO MERELY ON THE BASIS OF S TAMP VALUATION ADOPTED BY THE REGISTRAR FOR THE PURPOSE OF REGISTRATION OF THE DO CUMENT. THERE IS NOTHING ON RECORD TO SUPPORT THE FINDING OF THE AO FOR MAKING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY. THERE IS NO LAW TO JUSTIFY THE FINDINGS OF THE AO TO ADOPT THE STAMP VALUATION FOR THE PURPOSE OF MAKING ADDITION IN THE CASE OF THE PURCHASER. IT WAS A CASE OF SEARCH AND NOTHING WAS FOUND AGAINST THE ASSESSEE IF THE ASSESSEE OR HIS WIFE MADE ANY UNDISCLOSED INVES TMENT IN PROPERTY. ACCORDING TO THE LD. DR, THE AO HAS NOT INVOKED THE PROVISION S OF SECTION 50C OF THE IT ACT, BUT NO OTHER PROVISION HAS BEEN BROUGHT TO OUR NOTI CE UNDER WHICH SUCH AN ADDITION CAN BE MADE AGAINST THE ASSESSEES. IN VIEW OF THE F INDING OF FACT GIVEN BY THE LD. ITA NO. 155 & 156/AGRA/2011 6 CIT(A) AND IN ABSENCE OF ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEE BROUGHT ON RECORD FOR THE PURPOSE OF MAKING ABOVE ADDITION, WE DO NOT FIND ANY INFIRMITY OR ILLEGALITY IN THE ORDER OF THE LD. CIT(A) IN DEL ETING THE ADDITION. GROUND NO. 1 OF APPEAL OF THE REVENUE HAS NO MERIT AND IS ACCORDING LY DISMISSED. 6. ON GROUND NO. 2, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.78,000/- MADE BY THE AO ON ACCOUNT OF HOUSEHOLD EXPENSES. THE AO FOUND THAT THE ASSESSEE AND OTHER FIVE MEMBERS OF HIS FAM ILY HAVE MADE TOTAL WITHDRAWALS OF RS.60,000/- IN THE YEAR AND THE ASSESSEE MADE WI THDRAWALS OF RS.12,000/-. THE FAMILY OF THE ASSESSEE CONSISTS OF FIVE MEMBERS AND FOUR CHILDREN. THE AO CONSIDERING THE SIZE OF THE FAMILY AND LOW WITHDRAW ALS, ESTIMATED THE HOUSEHOLD EXPENSES AT RS.4,30,000/- IN TOTAL AND IN THE CASE OF ASSESSEE, IT WAS ESTIMATED AT RS.90,000/- AND ADDITION OF RS.78,000/- WAS ACCORDI NGLY MADE. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT NO MATERIAL IS BROUGHT O N RECORD TO MAKE ESTIMATE OF HOUSEHOLD EXPENSES AND THAT IN EARLIER YEAR ALSO, T HE ASSESSEE AND THEIR FAMILY MEMBERS HAVE MORE OR LESS SHOWN SIMILAR HOUSEHOLD W ITHDRAWALS. IN THE ABSENCE OF ANY MATERIAL AGAINST THE ASSESSEE, THE ADDITION PURELY ON ESTIMATION BASIS IS UNJUSTIFIED. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND ALSO NOTED THAT IN EARLIER YEAR, THE AO TOOK THE SIMILAR WITHD RAWALS AT RS.50,000/- AND WITHOUT GIVING ANY JUSTIFICATION ENHANCED AND ESTIMATED SIM ILAR EXPENDITURES. IN THE ITA NO. 155 & 156/AGRA/2011 7 ABSENCE OF ANY EVIDENCE ON RECORD, THE ADDITION WAS FOUND TO BE UNJUSTIFIED AND WAS ACCORDINGLY DELETED. 7. THE LD. DR RELIED UPON THE ORDER OF THE AO. ON T HE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT IN THE CASE OF OTHER FAMIL Y MEMBERS AND IN THE CASES OF OTHER YEARS OF THE PRESENT ASSESSEES, THE LD. CIT(A ) SIMILARLY DELETED THE ADDITION AND BECAUSE OF LOW TAX EFFECT, THE DEPARTMENT HAS N OT PREFERRED APPEALS BEFORE THE TRIBUNAL. SOME ORDERS OF THE LD. CIT(A) IN THE CASE S OF BOTH THE ASSESSEES ARE ALSO FILED ON RECORD. 8. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE AO PURELY MADE ESTIMATED ADDITION WITHOUT BRINGING ANY MATERIAL AGAINST THE ASSESSEE FOR ESTI MATING HOUSEHOLD EXPENSES. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN OTHER CASES SIMILAR ADDITIONS HAVE BEEN DELETED, HAS NOT BEEN REBUTTED THROUGH AN Y MATERIAL ON RECORD. IN THE ABSENCE OF ANY MATERIAL ON RECORD IN FAVOUR OF THE REVENUE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD . CIT(A). SAME IS CONFIRMED AND THUS, THE APPEAL OF THE REVENUE IS DISMISSED. NO OT HER POINT IS ARGUED OR PRESSED. IN THE RESULT, THE APPEAL OF THE REVENUE IN THE CAS E OF PRAVEEN GUPTA IS DISMISSED. ITA NO. 155 & 156/AGRA/2011 8 SMT. POONAM GUPTA 9. ON GROUND NO.1, THE REVENUE SIMILARLY CHALLENGED THE DELETION OF ADDITION OF RS.14,71,000/- ON ACCOUNT OF UNEXPLAINED INVESTM ENT IN THE PLOT AND ON GROUND NO. 3, THE REVENUE CHALLENGED THE DELETION OF ADDIT ION OF RS.78,000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. BOTH THE PARTIES SUBM ITTED THAT THESE GROUNDS ARE SAME AND IDENTICAL AS HAVE BEEN CONSIDERED IN THE C ASE OF SHRI PRAVEEN GUPTA AND THE FINDING IN THAT CASE MAY BE FOLLOWED. WHILE CON SIDERING BOTH THE ISSUES IN THE CASE OF SHRI PRAVEEN GUPTA (SUPRA), WE HAVE DISMISS ED BOTH THE GROUNDS OF DEPARTMENTAL APPEAL. BY FOLLOWING THE SAME REASONS FOR DECISION IN THE CASE OF PRAVEEN GUPTA, WE DISMISS BOTH THESE GROUNDS OF APP EAL OF THE REVENUE. 10. ON GROUND NO.2, THE REVENUE CHALLENGED THE ORDE R OF LD. CIT(A) IN DELETING THE ADDITION OF RS.1,20,00,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PLOT AT SIROLE. THE AO NOTED THAT THE ASSESSEE IS STATED TO HAVE PURCHASED A LAND AT VILLAGE SIROLE SITUATED AT CITY CENTRE, GWALIOR DURING THE ASSESSMENT YEAR UNDER APPEAL VIDE SALE DEED DATED 2 0.08.2004 FOR A SALE CONSIDERATION OF RS.10,00,000/-. ON EXAMINATION OF THE CONTENTS OF SALE DEED, IT WAS NOTICED THAT THE REGISTRAR HAS CHARGED THE STAM P DUTY ON THE BASIS OF MARKET VALUE OF THE PROPERTY DETERMINED AT RS. 35,10,000/- . WHILE EXAMINING PAGE NO. ITA NO. 155 & 156/AGRA/2011 9 182 OF THE SEIZED MATERIAL OF BS-1, IT WAS FOUND TH AT PAYMENTS WERE MADE TO THE SELLER AMOUNTING TO RS.1,30,00,000/-. THE ASSESSEE WAS ASKED TO EXPLAIN THE CONTENTS OF THE SEIZED PAPER, BUT NO SATISFACTORY E XPLANATION WAS SUBMITTED. THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE VALUE OF PROP ERTY SHOULD NOT BE TAKEN AT RS.1,30,00,000/- AND ADDITION OF RS.1,20,00,000/- S HOULD NOT BE MADE BEING THE PAYMENT MADE TO THE SELLER OF THE PROPERTY FROM THE UNDISCLOSED SOURCES. THE AO, ACCORDINGLY, MADE THE ADDITION. IT WAS SUBMITTED BE FORE THE LD. CIT(A) THAT FROM THE PERUSAL OF THE SEIZED PAPER, IT MAY BE SEEN THA T THE PAPER IS NOT CAPABLE OF BEING ASSESSED, IN AS MUCH AS, IT DID NOT MENTION EITHER THE AMOUNT PAID OR RECEIVED, IF PAID, AS PRESUMED BY THE AO, ON WHICH DATE IT WAS P AID AND AGAINST WHAT CONSIDERATION, THE AMOUNT WAS PAID ? THE AO MERELY MADE ADDITION CONSIDERING THE PAYMENT MADE OVER AND ABOVE THE AMOUNT MENTIONE D IN THE SALE DEED. IT WAS FURTHER SUBMITTED THAT IT IS A MATTER FACT, WHICH C AN BE VERIFIED FROM THE RECORDS OF THE INVESTIGATION WING THAT IMMEDIATELY AFTER THE S EARCH, THE SELLER WAS PUT TO NOTICE AND HIS STATEMENT WAS RECORDED BY THE INVEST IGATION WING, WHICH IS NOT REFERRED TO IN THE ASSESSMENT ORDER, IN WHICH THE S ELLER HAS CONFIRMED THAT NO PRICE/PAYMENT OVER AND ABOVE WHAT IS MENTIONED IN T HE REGISTERED SALE DEED HAS BEEN RECEIVED BY HIM. NO ACTION HAS BEEN TAKEN IN T HE CASE OF THE SELLER. IT WAS, THEREFORE, EXPLAINED THAT ADDITION IS MADE WITHOUT ANY BASIS. IT WAS ALSO EXPLAINED THAT PROPERTY WAS PUT TO AUCTION BY THE STATE GOVER NMENT, WHO VALUED THE SAME ITA NO. 155 & 156/AGRA/2011 10 JUST FOR RS.27,00,000/-, WHICH TOOK PLACE AFTER THR EE YEARS OF PURCHASE BY THE ASSESSEE. THE DETAILED EVIDENCES IN THIS REGARD WER E ALSO FURNISHED. IT WAS, THEREFORE, SUBMITTED THAT WHEN THE VALUE OF AUCTION AFTER THREE YEARS OF THE PURCHASE WAS RS.27,00,000/-, IT COULD NOT BE RS.1,3 0,00,000/- THREE YEARS PRIOR TO THAT. IT WAS, THEREFORE, SUBMITTED THAT THE ADDITIO N IS MADE WITHOUT ANY BASIS. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF THE ASSES SEE AND THE MATERIAL ON RECORD, DELETED THE ADDITION. HIS FINDINGS IN PARA 4.2 OF T HE APPELLATE ORDER ARE REPRODUCED AS UNDER : 4.2 APPELLANTS SUBMISSION ALONGWITH ASSESSMENT ORD ER HAVE BEEN CONSIDERED CAREFULLY. SEIZED DOCUMENT ON WHICH A.O. HAS RELIED TO MAKE THE SAID ADDITION HAS ALSO BEEN PERUSED. POST SEARCH ENQUIRY RECORDS OF THE INVESTIGATION WING HAVE ALSO BEEN CA LLED FOR AND SEEN IN RESPECT OF APPELLANTS SUBMISSIONS REGARDING STA TEMENT OF SHRI SANJAY RAJORIA, THE SELLER OF THE SAID PROPERTY. ON PERUSAL, SUBMISSIONS OF THE APPELLANT ARE FOUND ACCEPTABLE. THE SEIZED DOCUMENT. I.E. PAGE 182, BS-01 IS UNSIGNED AND UNDA TED AND DEFINITELY APPEARS TO BE ROUGH JOTTINGS. IT MENTIONS CERTAIN A MOUNTS IN CASH, IN NAME OF SHRI SANJAY, R.C. AND RRPS, TOTAL OF WHICH HAS BEEN ADDED BY THE A.O. AS UNDISCLOSED INVESTMENT OF THE APPELL ANT. THOUGH THE PRESUMPTION EMBEDDED U/S 132(4) IS AVAILABLE TO THE A.O; HOWEVER IT IS ALSO REBUTTABLE AND THE ONUS IS ON THE A.O. TO P ROVE THAT THE APPELLANT HAS INDEED MADE/RECEIVED PAYMENT IN RESPE CT OF THIS SEIZED DOCUMENT, IF DENIED BY THE APPELLANT. IN FACT, DOCU MENT REGARDING GOVT. AUCTION OF THE SAID PROPERTY IN THE YEAR 2006 FIXING ITS PRICE AT RS. 27,00,000/- HAVE ALSO BEEN FOUND AND SEIZED DUR ING THE COURSE OF SEARCH OPERATIONS. THE SAID PROPERTY HAS BEEN PURCH ASED IN PARTS AT RS. 1,50,000/- AND RS. 4,54,000/- VIDE REGD. DEEDS DATED 6.8.2001 AND 3.8.2001 BY M/S. RAJORIA CONSTRUCTIONS, WHO IS THE SELLER OF THE PROPERTY TO THE APPELLANT. AS PER APPRAISAL REPORT, STATEMENT OF SHRI SANJAY RAJORIA HAS BEEN RECORDED ON 11.11.2008 BY T HE INVESTIGATION ITA NO. 155 & 156/AGRA/2011 11 WING. AS PER ITS RETURNS, M/S. SANJAY RAJORIA CONST RUCTIONS HAS SHOWN TO HAVE RECEIVED RS. 10,00,000/- AS SALE CONS IDERATION OF THE LAND. A.O. HAS PROCEEDED TO MAKE THE ADDITION UNDER APPEAL SOLELY ON THE PRESUMPTION MENTIONED IN THE APPRAISAL REPORT ( PG. 32) THAT SINCE HE I.E. SHRI SANJAY RAJORIA HAS INVESTED LARGE AMOU NTS ON THE DEVELOPMENT OF THIS PROPERTY, NO PRUDENT PERSON WIL L SELL THE LAND AT A LOSS IN BOOMING PROPERTY MARKET AS THE PERIOD OF 20 02 TO 2007 HAS SEEN SUBSTANTIAL INCREASE IN THE PROPERTY PRICES. F URTHER, SHRI SANJAY RAJORIA MUST HAVE RECEIVED SOME CONSIDERATION TO VA CATE THE SAID PROPERTY. AO HAS NOT BROUGHT ANY MATERIAL ON RECORD FOUND DURING THE COURSE OF SEARCH OR POST SEARCH ENQUIRY OR ASSESSME NT PROCEEDINGS TO SHOW THAT THE APPELLANT HAS INDEED PAID THE AMOUNT OF RS. 1,30,00,000/- TO THE SELLER. IT IS AGAIN REITERATED THAT IN SEARCH RELATED ASSESSMENT THERE IS NO SCOPE FOR PRESUMPTIONS AND P ROBABILITIES. THE AO HAS SIMPLY RELIED SOLELY ON THE SEIZED DOCUMENT WITHOUT MAKING ANY EFFORT FOR FURTHER ENQUIRY ESPECIALLY WHEN IT I S NOT FOUND TO BE IN HER HAND WRITING AND ITS CONTENTS HAVE BEEN DENIED BY THE APPELLANT AND THE SELLER ALIKE. IT HAS BEEN HELD BY HONBLE G UJRAT HIGH COURT IN CASE OF USHAKANT N. PATEL VS. CIT (2006) 282 ITR 55 3 (GUJ) THAT SECTION 132(4A) (III) DOES NOT NECESSARILY RAISE A PRESUMPTION QUA THE PERSON SEARCHED OR FORM WHOSE POSSESSION THE BOOKS ARE FOUND, EVEN IF PRESUMPTION AVAILABLE UNDER SECTION 132(4A) CAN BE RAISED AGAINST THE ASSESSEE. THE PREREQUISITE CONDITIONS OF SECTIO N 69 HAVE TO BE SATISFIED AND CANNOT BE PRESUMED TO HAVE BEEN ESTAB LISHED ON THE BASIS OF SECTION 132(4A). BEFORE PROVISIONS OF SECT ION 69A CAN BE APPLIED, THE APPELLANT SHOULD BE FOUND TO BE OWNER OF MONEY, BILLION OR JEWELLERY FOUND IN HER POSSESSION WHICH ARE NOT RECORDED IN HER BOOKS OF ACCOUNTS. SECTION 69A IS NOT FOUND APPLICA BLE IN CASE OF POSSESSION OF LOOSE SLIPS/PAPERS AND NOT OF ANY VAL UABLE ARTICLES OR THINGS. IT IS A SETTLED POSITION OF LAW THAT THE SL IPS OR LOOSE SHEETS DO NOT FALL WITHIN THE PURVIEW OF BOOK. AN ENTRY IN BO OKS OF ACCOUNTS, MAINTAINED IN THE REGULAR COURSE OF BUSINESS, IS RE LEVANT TO BE CONSIDERED IN RESPECT OF TRANSITIONS REFLECTED THER EBY, BUT IS NOT CONCLUSIVELY DECISIVE THEREOF OR OF THE MATTER CONT AINED THEREIN OR LIABILITY REFLECTED THEREBY, AND MUCH LESS SO AND E NTRY IN A LOOSE SHEET WHICH IS OF A STILL FEEBLE NATURE. NO LIABILITY CAN BE FASTENED ON THE APPELLANT NOR CAN AND ADDITION BE MADE OF THE BASIS OF FEW JOTTINGS/ENTRIES IN A LOOSE SHEET WITHOUT THERE BEI NG SOME FURTHER TRUSTWORTHY/RELIABLE CORROBORATIVE EVIDENCE LENDING CREDENCE TO SUCH AND ENTRY. VIEWED AS ABOVE, IN THE INSTANT CASE, AP ART FORM SOME ITA NO. 155 & 156/AGRA/2011 12 ENTRIES IN A LOOSE SHEET, THERE IS NOT AND IOTA OF EVIDENCE ON RECORDS SUPPORTIVE OF THE FINDING ARRIVED AT BY THE AO TO F ASTEN THE LIABILITY ON THE APPELLANT IN RESPECT OF THE PAYMENT OF THE AMOU NTS MENTION IN LOOSE SHEET. ON THE BASIS OF FACTS ABOVE AND DISCUSSION MADE, A O IS NOT FUND JUSTIFIED IN MAKING HUGE ADDITION OF RS. 1,20,00,00 0/- ON THE BASIS OF ROUGH ENTRIES MADE IN THE SEIZED DOCUMENT WITHOUT B RINGING ON RECORD ANY OTHER CORROBORATIVE EVIDENCE. ACCORDINGLY, ADDI TION OF RS. 1,20,00,000/- MADE IS, HEREBY DELETED. 11. THE LD. DR RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT THE SEIZED PAPER ITSELF SPEAKS AGAINST THE ASSESSEE. THEREFORE , THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. ON THE OTHER HAND, THE LD. CO UNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE L D. CIT(A) PERUSED THE SEIZED DOCUMENT AND ALSO FOUND THAT DURING THE POST SEARCH ENQUIRY, THE STATEMENT OF SELLER OF THE PROPERTY SHRI SANJAY RAJORIA WAS R ECORDED BY THE INVESTIGATION WING. THE LD. CIT(A) FOUND THAT SEIZED DOCUMENT WAS UNSIGNED AND UNDATED AND APPEARS TO BE ROUGH JOTTINGS. IT CONTAINED CERTAIN AMOUNTS IN CASH IN THE NAME OF SHRI SANJAY, RC AND RRPS. THE LD. CIT(A) ALSO FOUND THAT THE DOCUMENTS OF GOVERNMENT AUCTION OF THE PROPERTY IN THE YEAR 2006 FIXING THE PRICE AT RS.27,00,000/- WAS ALSO FOUND IN SEARCH. THE APPRAI SAL REPORT CONTAINED STATEMENT OF SHRI SANJAY RAJORIA RECORDED BY THE INVESTIGATIO N WING WHO HAS SHOWN TO HAVE ITA NO. 155 & 156/AGRA/2011 13 RECEIVED RS.10,00,000/- AS SALE CONSIDERATION OF TH E LAND. THE LD. CIT(A), THEREFORE, NOTED THAT THE AO HAS NOT BROUGHT ANY MA TERIAL ON RECORD OR FOUND DURING THE POST SEARCH ENQUIRIES TO SHOW THAT THE A SSESSEE HAS MADE PAYMENT OF RS.1,30,00,000/- TO THE SELLER. THE LD. CIT(A) FURT HER NOTED THAT ADDITION CANNOT BE MADE MERELY ON PRESUMPTION AND PROBABILITIES IN THE CASES RELATED TO SEARCH. THE LD. CIT(A) ALSO FOUND THAT CONTENTS OF THE DOCUMENT HAVE BEEN DENIED BY THE ASSESSEE AS WELL AS THE SELLER OF THE PROPERTY. THE REFORE, NO LIABILITY CAN BE FASTENED AGAINST THE ASSESSEE FOR THE PURPOSE OF MAKING ADDI TION ON THE BASIS OF FEW JOTTINGS WITHOUT BRINGING ANY CORROBORATIVE AND TRUSTWORTHY EVIDENCE ON RECORD. THE FINDING OF FACT RECORDED BY THE LD. CIT(A) HAS NOT BEEN REBUTTED THROUGH ANY EVIDENCE ON RECORD. THE LD. COUNSEL FOR THE ASSESSE E ALSO FILED COPY OF THE SEIZED PAPER IN QUESTION, ON EXAMINATION OF WHICH, WE FIND THAT THE LD. CIT(A) PROPERLY APPRECIATED THE CONTENTS OF THE SEIZED PAPER FOR AR RIVING AT THE JUST DECISION IN THE MATTER. SINCE THE AO HAS NOT BROUGHT ANY EVIDENCE O N RECORD THAT THE ASSESSEE MADE PAYMENT OF RS.1,30,00,000/- TO THE SELLER AND NO COGENT AND RELIABLE CORROBORATIVE EVIDENCE HAVE BEEN FILED ON RECORD, W E DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). THE FINDING OF FACT RECORDED BY THE LD. CIT(A) SUPPORT THE CONTENTION OF THE LD. COUNSEL FO R THE ASSESSEE THAT IT IS NOT A FIT CASE FOR TAKING A CONTRARY VIEW WHAT HAS ALREADY BE EN TAKEN BY THE LD. CIT(A). ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THIS GROUN D OF APPEAL OF THE REVENUE. ITA NO. 155 & 156/AGRA/2011 14 THE DEPARTMENTAL APPEAL IS, ACCORDINGLY, DISMISSED ON THIS GROUND AS WELL. AS A RESULT, THE DEPARTMENTAL APPEAL IS DISMISSED. 13. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY