Sh. Pritam Singh, Ambala V. ITO, Ambala

ITA 162/CHANDI/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9987 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 10-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Tax effect; Onus to prove
• Section: 143(3); 142(1); 153A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 162/CHD/2012 ASSESSMENT YEAR: 2006-07 SHRI PRITAM SINGH VS THE ITO, S/O SHRI AVTAR SINGH, WARD 3, VILLAGE UGALA, AMBALA. TEHSIL BARARA, DISTT. AMBALA. PAN: CBZPS3413B & ITA NO. 163/CHD/2012 ASSESSMENT YEAR: 2006-07 SHRI MANMOHAN SINGH VS THE ITO, S/O SHRI AVTAR SINGH, WARD 3, VILLAGE UGALA, AMBALA. TEHSIL BARARA, DISTT. AMBALA. PAN: CRZPS3446Q & ITA NO. 164/CHD/2012 ASSESSMENT YEAR: 2006-07 SHRI SUKHJIT SINGH VS THE ITO, S/O SHRI KARTAR SINGH, WARD 3, VILLAGE GOLI, AMBALA. TEHSIL BARARA, DISTT. AMBALA. PAN: AZWPS3453N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SING H RESPONDENT BY : SHRI MANOJ MISHRA DATE OF HEARING : 05.05.2016 DATE OF PRONOUNCEMENT : 23.05.2016 2 O R D E R PER BHAVNESH SAINI,JM ALL THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS) PANCHK ULA DATED 30.11.2011 FOR ASSESSMENT YEAR 2006-07 CHALLENGING THE ADDITIONS OF RS. 20 LACS EACH ON AC COUNT OF UNEXPLAINED INVESTMENTS. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. 3. BOTH THE PARTIES MAINLY ARGUED IN THE CASE OF SH RI SUKHJIT SINGH, ASSESSEE IN ITA 164/2012 AND SUBMITT ED THAT ISSUE IS SAME ON IDENTICAL FACTS IN THE REMAIN ING APPEALS, THEREFORE, ORDER IN THE CASE OF SHRI SUKHJ IT SINGH COULD BE FOLLOWED IN OTHER APPEALS. THE APPE AL OF SHRI SUKHJIT SINGH, ASSESSEE IS, THEREFORE, DECIDED AS UNDER. ( SHRI SUKHJIT SINGH :: ITA 164/2012 ) 4. RECORD REVEALED THAT THIS APPEAL WAS EARLIER DISMISSED FOR DEFAULT, HOWEVER, EX-PARTE ORDER WAS RECALLED WHILE ALLOWING MISCELLANEOUS APPLICATION O F THE ASSESSEE, VIDE ORDER DATED 16.04.2013 AND APPEAL WA S RE-FIXED FOR HEARING ON MERITS. 3 5. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAS INVESTED RS. 20 LACS IN PURCHASE OF LAND FROM SHRI RAJ KUMAR AND SMT. NEELAM OF AMBALA CITY DURING THE YEA R UNDER CONSIDERATION AT VILLAGE JANDLI (AMBALA) AND FINDING THAT ASSESSEE HAD NOT FILED HIS RETURN, NOT ICE UNDER SECTION 142(1) WAS ISSUED ON 21.01.2009. TH E ASSESSEE ADMITTED OF HAVING BEEN DOING SUCH PROPERT Y DEALS AND STATED THAT RECORD OF HIS ENTIRE PROPERTY DEALS WAS WITH ONE SHRI DARSHAN KUMAR, DEED WRITER FROM WHERE THE SAME HAS BEEN SEIZED BY THE INCOME TAX DEPARTMENT DURING SEARCH AND THEREFORE, RETURN COUL D NOT BE FILED. THEREFORE, A NOTICE UNDER SECTION 14 8 OF THE ACT WAS ISSUED AND ASSESSEE, IN RESPONSE THERET O, FILED RETURN OF INCOME AT RS. 99,550/-. THE ASSESS ING OFFICER FRAMED ASSESSMENT UNDER SECTION 143(3) OF T HE ACT AT THE INCOME OF RS. 22,20,050/-. 5(I) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AS PER REPLY FILED BY THE ASSESSEE DATED 22.12.2010, H E IS ENGAGED IN THE PROPERTY DEALING. HE HAS INVESTED A SUM OF RS.21,20,503/- IN PURCHASE OF AGRICULTURAL LAND MEASURING 2 KANAL 17 MARLA IN VILLAGE JANDLI. THE SOURCE OF INVESTMENT IS CLAIMED TO BE AN ADVANCE OF RS.21,00,000/- AGAINST SALE OF LAND FROM ONE SH. MANJEET SINGH AND THAT THE SAID AMOUNT WAS USED FOR PURCHASE OF THE ABOVE LAND. AN AFFIDAVIT DATED 24.12.2010 FROM SH. MANJEET SINGH JAGGI WAS FILED MENTIONING THEREIN THAT HE HAD GIVEN AN 4 ADVANCE OF RS.21,00,000/- TO THE ASSESSEE ON 20.03.2006 FOR PURCHASE OF LAND. 5(II) THE ASSESSEE DID NOT MAINTAIN HIS BOOKS OF ACCOUNT NOR HE COULD PRODUCE THE COPY OF HIS ACCOUN T IN THE BOOKS OF THE PERSON FROM WHOM THE AMOUNT OF RS.21,00,000/- IS ALLEGED TO HAVE BEEN RECEIVED. TH E AFFIDAVIT OF SH. MANJEET SINGH DID NOT CONTAIN DETA ILS OF BANK ACCOUNT OR CHEQUE/DD THROUGH WHICH HE MIGHT HAVE ADVANCED THE AMOUNT. NO DOCUMENTARY EVIDENCE COULD BE PLACED ON RECORD TO PROVE THAT THE ALLEGED CREDITOR HAD EVER GIVEN THE SAID ADVANCE TO THE ASSESSEE. THUS, NEITHER THE CAPACITY OF THE SO CALLED CREDITOR NOR THE GENUINENESS OF TRANSACTION, IF ANY , BETWEEN THE SAID CREDITOR AND THE ASSESSEE IS PROVE D. THE ASSESSEE WAS NOT ABLE TO EXPLAIN SATISFACTORILY THE SOURCE OF RS.21,20,503/-INVESTED TO PURCHASE THE AFORESAID LAND. THE AO MADE AN ADDITION OF RS.21,20,503/- ON ACCOUNT OF UNDISCLOSED SOURCE OF INCOME. 6. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS). THE WRITTEN SUBMISSION OF THE ASSESS EE IS REPRODUCED IN THE APPELLATE ORDER WHICH READS AS UN DER: ' THE APPELLANT IS AN INDIVIDUAL ENGAGED IN PROPERTY D EALING & AGRICULTURE. THE RETURN WAS FILED DECLARING AN INCOM E OF RS.99,550/-. THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT WAS MADE BY THE LD. ITO, WARD-3, AMBALA AT RS.22,20,503/- BY MAKING AN ADDITION OF RS.21,2O,503/ - 5 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AGRICULTURE LAND PURCHASED DURING THE YEAR. IT IS VERY PERTINENT TO GIVE THE BACKGROUND OF THE CA SE. THE APPELLANT IS THE ELDER BROTHER OF SH. MANJIT SINGH S ON OF SH. KARTAR SINGH WHO IS PROPERTY DEALER AND REAL ES TATE AGENT AND DERIVES INCOME FROM SALE AND PURCHASE OF PROPERTIES. THE SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED AT THE PREMISES OF SH. MANJIT SINGH ON 21.10.2008. DURING THE COURSE OF SEARCH THE DOCUMEN T PERTAINING TO THE SALE TRANSACTION OF SH. SUKHJIT S INGH I.E. SALE DEED IN THE NAME OF THE APPELLANT WERE FOUND F ROM THE PREMISES OF SH. MANJIT SINGH. HE HAS BEEN ENGAGED IN THE TRANSACTION IN THE NAME OF THE APPELLANT AS THE SAME WAS CONVENIENT TO HIM TO DO SO. SH. MANJIT SINGH WANT ED TO SET UP A PROJECT AT JANDLI FOR WHICH HE NEEDED L AND WHICH WAS REQUIRED FOR FULFILLING SOME TYPICAL CRIT ERIA LIKE CLOSE TO VICINITY OF AMBALA. THE PURCHASE OF LAND BY SH.MANJIT SINGH WHO IS A KNOWN BUILDER & DEVELOPER A ND REAL ESTATE AGENT, WAS A DIFFICULT AFFAIR SINCE ALL THE PERSONS ESPECIALLY THE FARMERS HAVE A PSYCHOLOGY TO EXPLOIT WHEN THEY KNOW THAT DEVELOPER OF PROJECT IS BUYING. THE PURCHASE OF LAND BY DEVELOPERS NEAR CITIES/ TOWNS HAS MADE IT EVEN MORE DIFFICULT. HENCE, THE ONLY WAY TO G O WAS TO INVOLVE SOME AGRICULTURIST AND NOT TO DISCLOSE TH E NAME OF SH.MANJIT SINGH. AS SUCH HE ENGAGED THE SERVICES OF HIS FAMILY MEMBERS AND FRIENDS FOR THE PURCHASE OF LAND FOR THE PROJECT. FOR WHICH HE GAVE ADVANCE TO THE APPEL LANT AND OTHER FAMILY MEMBERS AND ENTERED INTO AGREEMENT WITH THEM TO SECURE HIS MONEY. AS PER SALE DEED DATED 22.03.20O6, THE APPELLANT HAD PURCHASED AGRICULTURAL LAND SITUATED IN VILLAGE JANDLI 6 MEASURING 2 KANAL 16 MARIA BEARING KHASRA NO. 30/5/3/L[L-6],30/5/3/3[0-4] KHATA NO. 1044/1168, 1045/1170 FROM SMT. NEELAM RANI W/O SH. VINOD KUMAR AND SH.RAJ KUMAR SON OF SH.PYAR LAI, SECTOR-7, URBAN ESTATE ,AMBALA FOR A SUM OF RS.21,00,000/-AND AFTER ADDING BACK THE COST OF STAMP PAPERS AND REGISTRATI ON CHARGES AT RS.1,20,000/- THE TOTAL COST TO THE APPE LLANT WAS AT RS.21,20,500/-. DURING THE COURSE OF ASSESSME NT PROCEEDINGS THE LD. AO ASKED THE APPELLANT TO EXPLAIN THE SOURCE OF INVESTMENT OF THE AMOUNT. THE APPELLANT EXPLAINED TO THE LD. AO THAT HE HAD TAKEN AN ADVANCE OF RS.21,00,000/- IN CASH FROM HIS BROTHER SH. MANJEET SIN GH, A PROPERTY DEALER, WHO HAD AGREED TO PURCHASE THE APPELLANT'S AGRICULTURAL LAND MEASURING 24KANAL BEARING KHASRANO.L7//12/2/2, 19, 22, 19//11/1/2, 20//2, 7, 11/2, 14, 15, 7//12/2/2, 19, 22, 19//11/1/2, 20//2, 7, LL/2, 14,15 SITUATED IN VILLA GE GOLI SUB TEHSIL MULANA, DISTT. AMBALA HELD BY THE APPELLANT. SH.MANJIT SINGH HAD ALSO SHOWN THIS ADVANCE O F RS.21,00,000/- IN HIS BALANCE SHEET. AS SUCH THE CASE WAS TAKEN UP ONLY ON 24.12.2010 AF TER THE RECEIPT OF THE COPIES OF DOCUMENTS ON WHICH DATE SH. MANJEET SINGH WHO HAD GIVEN THE ADVANCE OF RS.21 LACS FOR THE PURCHASE OF THE SAID LAND, PERSONALLY ATTENDED T HE OFFICE OF THE LD. AO. SHRI MANJIT SINGH WHO HAD GIVEN AN ADVANCE HAD ADMITT ED THAT HE HAD GIVEN THIS ADVANCE IN CASH. AS SUCH THE ALLEGATION OF THE ID. AO THAT SH. MANJIT SINGH'S AF FIDAVIT DOES NOT CONTAIN DETAILS OF BANK ACCOUNT OR CHEQUE/ 00 THROUGH WHICH HE MIGHT HAVE ADVANCED THE AMOUNT IS MET WITH AS THE AMOUNT IN QUESTION WAS GIVEN IN CASH. 7 FOR CERTAIN REASONS THE SALE OF THE IMPUGNED LAND MEA SURING 24 KANAL SITUATED IN VILLAGE GOLI SUB TEHSIL MULANA DI STT AMBALA DID NOT MATURE. ACCORDINGLY A FAMILY ARRANGEM ENT BETWEEN THE TWO BROTHERS WAS EXECUTED ON 14.4.2008. IN THIS ARRANGEMENT IT WAS AGREED BETWEEN THE TWO BROTHERS THAT SINCE THE SALE DID NOT MATURE THE APPELLANT AGREED TO SELL HIS LAND MEASURING 2KANAL 16 MARLAS SITUATED IN VILL JANDL I FOR THE SAME AMOUNT WHICH HAS ALREADY BEEN RECEIVED BY TH E APPELLANT ON THE FOLLOWING DATES: DATED AMOUNT 27.6.2005 20,00,000/- 20.3.2006 1,00,000/- TOTAL 21,00,000/- ACCORDINGLY ON 9.9.2011 THE SALE DEED IN RESPECT OF THIS LAND MENTIONED SUPRA WAS EXECUTED BEFORE THE SUB REGISTRAR, AMBALA. IN THIS REGISTERED SALE DEED ALS O ALL THE FACTS STATED SUPRA HAVE BEEN REITERATED. SINCE IT WAS A CONSIDERATION RECEIVED FOR THE SALE OF LAND HELD BY THE APPELLANT SO THE APPELLANT HAS DISCHARGED THE ONUS CAST ON HIM. IT WAS SUBMITTED THAT FOR ANY CASH CREDIT THREE THI NGS WERE TO BE PROVED (I) THE IDENTITY OF THE CREDITOR (II) GENUINENESS OF TRANSACTION AND CAPACITY AND CREDIBI LITY OF THE CREDITOR. THE IDENTITY OF THE CREDITOR STANDS ESTABLISHED FROM THE FACT THAT HE IS REGULARLY BEIN G ASSESSED TO INCOME TAX BY THE DCIT, CENTRAL CIRCLE ,KARNAL UNDER PAN NO. ATLPS1956M. AS REGARDS, GENUINENESS O F TRANSACTIONS THE COPY OF THE SALE DEED IS ATTACHED WHEREIN BOTH THE PURCHASER AND SELLER HAVE ADMITTED THE PAYMENTS OF RS.21,00,000/-. SH. MANJIT SINGH WHO ADVAN CED THIS AMOUNT IS AN INCOME TAX ASSESSEE AND HAVING CO NFIRMED THE ADVANCE IN HIS AFFIDAVIT AND ALSO IN PERSON ONU S OF THE APPELLANT STANDS DISCHARGED MORE SO WHEN HE CONFIRME D 8 BEFORE THE LD. AO ON 24.12.2010. THIS IS ALSO EVIDENT FR OM THE BALANCE SHEET AND OTHER ANNEXURE ACCOMPANYING TH E RETURN OF SH. MANJIT SINGH WHEREIN THIS AMOUNT HAS BEE N SHOWN AS ADVANCE AGAINST THE APPELLANT. SINCE NO FURTH ER QUERY WAS RAISED. THE CONTENT OF THE AFFIDAVIT AND H IS STATEMENTS HAS TO BE TAKEN TO HAVE BEEN ADMITTED BY THE LD. AO. FURTHER THIS ADVANCE HAS DULY BEEN SHOWN BY SH. MANJIT SINGH IN HIS BALANCE SHEET SUBMITTED BEFORE HIS AO. AS REGARDS CREDITWORTHINESS OF SH. MANJIT SINGH HIS PR OFIT AND LOSS AMOUNT AND BALANCE SHEET ARE ENCLOSED HERE WITH, DURING THIS YEAR ITSELF, HIS SALES WERE AT RS.4,29,66,123 /- AND GP ON THESE SALES WAS AT RS.1,58,48,658/-BESIDES THE COMMISSION OF RS.8,68,067/-AND PROFIT FROM COLONY VAT BARARA 'AT RS. 15,49,562/-. THE ADVANCE OF RS.20,00,000/- GIVEN BY SH. MANJIT SINGH WAS DEPOSITED IN THE BANK ACCOUNT WITH HARYANA GRAMI N BANK(PNB). THE ABOVE DETAILS OF DEMAND DRAFTS /CHEQUES ARE THE SAME AS RECEIVED BY THE SELLER AND VERIFIED BY THE LD.AO WARD-3, AMBALA AND THIS EXACTLY IS THE BASIS OF REOPENING THE CASE. THE TITLE OF THE LAND UNDER REFERENCE STANDS TRANSF ERRED IN THE NAME OF SH. MANJIT SINGH THROUGH A 'REGD. SALE D EED' WHEREIN IT HAS BEEN CLARIFIED BY SH. MANJIT SINGH THAT THE ENTIRE INVESTMENT ON THE PURCHASES OF LAND WAS MADE B Y NAME OF ACCOUNT HOLDER SH. NO./DD BATED AMOUNT SH. HARBANS SINGH VILLAGE GOLI 158181 28.6.2005 5,00,000/- SH. FAKIR CHAND 158182 28.6.2005 5,00,000/- MRS. JAGDISH KAUR 158183 28.6.2005 5,00,000/- SH. GURPAL SINGH 178802 28.6.2005 5,00,000/- TOTAL 20,00,000/- 9 HIM EARLIER SO THE LAND IS BEING TRANSFERRED TO HIS NAME WITHOUT FURTHER ANY CONSIDERATION. THE APPELLANT RELIE D UPON THE FOLLOWING CASES :- A) CIT VS. SHYAM SUNDER & CO. 181ITR187 B ) CIT VS. SRI KRISHNA (P) L TD.L93 ITR 494 C) CIT VS. NIRANJAN LAI RAM BALABLE 29 TR 459 D) CIT VS. JALAN TIMBERS 223ITR11 E) JAGADAMBA CONSTRUCTION CO. VS. ITO [2004]82 TTJ (JD. )(TRIB) 13 F) CIT VS. HEERA LAL CHAGAN LAL 257ITR 281 (RAJ.) G) BHAGAWANDAS SHARDA VS. A CIT 82 TTJ 982(HYD.) 7. THE LD. CIT(APPEALS) CONSIDERING THE SUBMISSION OF THE ASSESSEE, AND MATERIAL ON RECORD, CONFIRMED THE ADDITION OF RS. 20 LACS, HOWEVER, ACCEPTED THE EXPLANATION OF THE ASSESSEE WITH REGARD TO INVESTME NT OF RS. 1,20,503/-. SAME ADDITION WAS, THEREFORE, DELET ED. 8. THE FINDINGS OF LD. CIT(APPEALS) IN PARA 5 OF TH E IMPUGNED ORDER ARE REPRODUCED AS UNDER : 5. THE FACTS OF THE CASE AS WELL AS THE SUBMIS SIONS HAVE BEEN CONSIDERED BY THE UNDERSIGNED. THE CASES CITED ARE DISTINGUISHABLE ON FACTS. THE SOURCE OF INVESTMENT IN PURCHASE OF AGRICULTURAL LAND MEASURING 2 KANAL 17 MARIAS IN V ILLAGE JANDLI ON 22.03.2006 IS CLAIMED TO BE ADVANCE OF RS.21 LACS AGAINST SALE OF LAND SINGH BROTHER OF THE APPELLANT. IT IS A NO ACCOUNT. THE AMOUNT OF RS. 21 LACS IS CLAIMED TO HAVE BEEN RECEIVED IN CASH FROM HIS BROTHER SH. MANJIT SINGH, A PROPERTY DE ALER AGAINST SALE OF THE SAME LAND MEASURING 2 KANAL 17 MARLA AT VILLAGE 10 JANDLI FOR RS.21 LACS. THE PLEA OF THE APPELLANT IS NOT ACCEPTABLE FOR THE FOLLOWING REASONS :- I) TIME GAP BETWEEN DATE OF PURCHASE AND THE DAT E OF RECEIPT OF MONEY THE APPELLANT PURCHASED LAND MEASURING 2 KANAL 16 MA RLA AT VILLAGE JANDLI DISTT. AMBALA FOR RS. 21 LACS AS PER SALE DEED DATED 22.03.2006 FROM SMT. NEELAM RANI VV/O SH. VINOD KUMAR AND SH. RAJ KUMAR S/O SH. PYAR LAL SECTOR 7, URBAN ES TATE, AMBALA. TOTAL COST INCLUDING STAMP PAPERS AND REGIST RATION CHARGES WAS RS.21,20,500/-. THE SOURCE OF INVESTMENT IS CHIMED TO BE CASH RECEIVED FROM BROTHER OF THE APPELLANT SH . MANJIT SINGH, THE DATES OF PURCHASE VIS-A-VIS RECEIPT OF CAS H ARE AS UNDER : U N D KEEPING IN VIEW THE TIME GAP OF A MONTHS BETWEEN DA TE OF RECEIPT OF MONEY I.E. 27.06.2006 AND DATE OF INVESTMENT IN PU RCHASE OF LAND 22.03.2006, PLEA OF THE APPELLANT IS NOT ACCEPTABLE . NO PRUDENT PERSON WOULD KEEP RS.20 LACS AT HOME FOR 9 M ONTHS THESE DAYS. THEREFORE, THE PLEA OF THE APPELLANT REGAR DING SOURCE OF RS.20 LACS IS REJECTED. HOWEVER, APPELLANT'S ARGUME NT REGARDING THE INVESTMENT OF RS.L LAC ACCEPTED. II) FAILURE TO PROVE GENUINENESS OF THE TRANSACTION SECONDLY, THE APPELLANT'S PLEA REGARDING INVESTMENT O F RS.20 LACS IS NOT ACCEPTABLE DUE TO FAILURE OF THE APPELLANT TO PROVE THE GENUINENESS OF THE TRANSACTION. IT IS NOT ONLY THE ID ENTITY BUT CREDITWORTHINESS AS WELL GENUINENESS OF THE TRANSACTI ON WHICH DATE OF PURCHASE AS PER SALE DEED AMOUNT DATE OF RECEIPT OF CASH AMOUNT (RS.) TIME GAP 22.03.2006 21 LACS 27.06.2005 20.03.2006 20,00,000/- 1,00,000/- 9 MONTHS 2 DAYS 11 NEEDS TO BE PROVED BY THE APPELLANT DO DISCHARGE TH E ONUS TO PROVE A CASH CREDIT. FOR THIS THE RELIANCE IS PLACED U PON THE APEX COURT JUDGEMENT IN KALE KHAN HANIF MOHAMMAD'S CASE IN 50 ITR 1 (SC AND HON'BLE CALCUTTA HIGH COURT JUDGMENT IN SHANKAR INDUSTRIES CASE 114 ITR 689 (CAL). KEEPING IN VIEW THESE FACTS AND THE LEGAL POSITION, TH E APPELLANT'S PLEA REGARDING SOURCE OF INVESTMENT IN PURCHASE OF L AND TO THE EXTENT OF RS.20 LACS IS REJECTED. AS A RESULT, THE ADD ITION TO EXTENT OF RS.20 LACS IS CONFIRMED AND THE BALANCE ADDITION O F RS.1,20,503/- IS ORDERED TO BE DELETED. AS A RESULT, THESE GROUNDS OF APPEAL ARE PARTLY ALLOWED. 9. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFER RED TO VARIOUS DOCUMENTS FROM THE PAPER BOOK IN SUPPORT OF THE CONTENTION THAT ASSESSEE GENUINELY RECEIVED ADV ANCE OF RS. 21 LACS FROM HIS BROTHER SHRI MANJIT SINGH. HE HAS FURTHER SUBMITTED THAT SIMILARLY SHRI MANJIT SI NGH HAD ALSO GIVEN ADVANCE OF THE SIMILAR AMOUNT TO SHR I JANG BAHADUR AND SHRI KULWANT SINGH AND IN THEIR CASES, THE LD. CIT(APPEALS), ROHTAK DELETED THE ENT IRE ADDITIONS VIDE ORDER DATED 19.03.2012. THE ORDER O F LD. CIT(APPEALS), ROHTAK HAS BEEN CONFIRMED BY DISMISSI NG THE DEPARTMENTAL APPEALS IN THEIR CASES BY ITAT CHANDIGARH BENCH VIDE ORDER DATED 28.12.2015 CONSIDERING LOW TAX EFFECT IN THEIR APPEALS. COPIE S OF BOTH THE ORDERS ARE PLACED ON RECORD. 12 9(I) THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DECISION OF KERALA HIGH COURT IN THE CASE OF S.R.VENTAKARATNAM VS CIT, KARNATAKA-I & OTHERS 127 ITR 807 IN WHICH THE AMOUNT IN QUESTION WAS INVESTE D IN FIRM WHICH WAS ALLEGED TO HAVE BEEN WITHDRAWN FR OM THE BANK TWO YEARS BEFORE NOT UTILIZED DURING INTERVENING PERIOD REVENUE CANNOT SURMISE THAT IT WAS IMPROBABLE THAT AMOUNT WAS UNUTILIZED FOR TWO YEARS AND REJECTED ASSESSEE'S EXPLANATION. HE HAS ALSO R ELIED UPON ORDER OF ITAT DELHI BENCH IN THE CASE OF ACIT VS BALDEV RAJ CHARLA & OTHERS 18 DTR 413 IN WHICH IT W AS HELD, THERE BEING NO MATERIAL WITH IT AUTHORITIES TO SHOW THAT THE AMOUNT OF CASH DEPOSITS IN QUESTION, ADMITTEDLY WITHDRAWN FROM THE BANK AND ASSESSEE'S CONCERN, WERE UTILIZED FOR ANY OTHER PURPOSE, NO AD DITION COULD BE MADE ONLY ON THE GROUND THAT THERE WAS TIM E GAP BETWEEN THE WITHDRAWAL AND THE CORRESPONDING CA SH DEPOSITS. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT IMPUGNED ADDITION COULD NOT BE MADE ONLY BECAUSE THERE WAS SOME TIME GAP BETWEEN THE LO AN ADVANCED AND UTILIZED BY THE ASSESSEE. ON THE OTHE R HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE FACT S REGARDING ADVANCE RECEIVED BY ASSESSEE FROM HIS BRO THER, REGARDING FAMILY SETTLEMENT AND PURCHASE OF PROPERT Y, AS NOTED ABOVE, ARE NOT IN DISPUTE. THE ASSESSEE EXPL AINED THAT HE HAS RECEIVED ADVANCE OF RS. 21 LACS FROM HI S 13 BROTHER SHRI MANJIT SINGH FOR MAKING INVESTMENT IN PURCHASE OF THE PROPERTY. SHRI MANJIT SINGH FILED HIS AFFIDAVIT BEFORE AUTHORITIES BELOW CONFIRMING THERE IN HIS SOURCE OF INCOME AND GIVING ADVANCE OF RS. 21 LACS TO THE ASSESSEE FOR PURCHASE OF PROPERTY. HE HAS ALSO PRO VIDED HIS PAN NUMBER AND WARD WHERE HE WAS ASSESSED TO TA X. COPY OF THE SAME IS FILED AT PAGE 31 OF THE PAPER B OOK. THE TRADING AND PROFIT & LOSS ACCOUNT 01.04.2005 TO 31.03.2006 HAS BEEN PREPARED BY SHRI MANJIT SINGH, BALANCE SHEET IS ALSO FILED IN THE PAPER BOOK AT PA GES 32-36 AND THE LIST OF SUNDRY DEBTORS AS ON 31.03.20 06 IS FILED AT PAGE 35 OF THE PAPER BOOK WHICH CONTAINED THE NAME OF SHRI SUKHJEET SINGH AS DEBTOR IN A SUM OF R S. 21 LACS. SIMILARLY, S/SHRI KULWANT SINGH, PRITAM SINGH , MANMOHAN SINGH AND JANG BAHADUR ARE ALSO MENTIONED IN THE LIST OF SUNDRY DEBTORS FOR A SUM OF RS. 21 LACS EACH. PB-51 IS THE ASSESSMENT ORDER A.Y. 2006-07 IN THE C ASE OF SHRI MANJIT SINGH UNDER SECTION 153A OF THE INCOME TAX ACT DATED 29.12.2010 PASSED BY DCIT, CENTRAL CIRCLE , KARNAL IN WHICH NO ADVERSE INFERENCE HAS BEEN DRAWN AGAINST SHRI MANJIT SINGH OF GIVING ADVANCE TO THES E FIVE PERSONS. THE ASSESSEE EXPLAINED BEFORE LD. CIT(APP EALS) THAT SHRI MANJIT SINGH WHO HAD GIVEN ADVANCE, HAD PERSONALLY ADMITTED BEFORE ASSESSING OFFICER THAT H E HAD GIVEN ADVANCE TO THE ASSESSEE IN CASH. THE EXPLANA TION OF THE ASSESSEE HAS NOT BEEN DISAPPROVED BY THE AUTHOR ITIES BELOW. 14 10(I) PB-39 IS FAMILY SETTLEMENT DEED WHICH HAVE NO T BEEN DISPUTED. THE TRADING AND PROFIT & LOSS ACCOU NT OF SHRI MANJIT SINGH SHOWS HE HAS MADE SALES OF RS.4.2 9 CR AND HAS SHOWN GROSS PROFIT OF RS. 1.58 CR AND APART FROM THE ABOVE GROSS PROFIT INCOME, SHRI MANJIT SINGH HA S COMMISSION INCOME OF RS. 8,68,067/- AND PROFIT FROM BARARA COLONY IN A SUM OF RS. 15,49,562/-. PB-56 IS ASSESSMENT ORDER OF SHRI MANJIT SINGH DATED 29.12.2 010 UNDER SECTION 153A&B OF THE INCOME TAX ACT FOR ASSESSMENT YEAR 2009-10. IN ASSESSMENT YEAR 2006-0 7, THE ASSESSMENT ORDER REVEALED THAT HE HAS FILED RET URN OF INCOME AT RS.1.84 CR AND AGRICULTURE INCOME OF RS. 11,50,301/- AND HAS ALSO SURRENDERED INCOME OF RS. 2 CRORE. RETURN WAS REVISED. IN ASSESSMENT ORDER OF 2 009- 10, SHRI MANJIT SINGH HAS DECLARED INCOME OF RS. 1. 77 CR AND AGRICULTURE INCOME OF RS. 11,42,880/- AND TOTAL INCOME IS COMPUTED AT RS. 2.46 CR. THESE FACTS CLE ARLY REVEALED THAT ASSESSEE PROVED IDENTITY OF SHRI MANJ IT SINGH WHO HAD ADVANCED RS. 21 LACS TO THE ASSESSEE AND WA S ALSO ASSESSED TO TAX AND HAS SHOWN SUBSTANTIAL AMOU NT AS INCOME AS WELL AS MADE SUBSTANTIAL AMOUNT AS ADDITI ONAL INCOME SURRENDERED IN PROCEEDINGS UNDER SECTION 153 A AFTER SEARCH. THE COPIES OF TWO ASSESSMENT ORDERS F OR ASSESSMENT YEAR 2006-07 AND 2009-10 ITSELF REVEALED THAT SHRI MANJIT SINGH WAS A MAN OF MEANS AND HIS CREDIT WORTHINESS HAVE BEEN PROVED BY THE ASSESSEE. THE GENUINENESS OF THE TRANSACTION IS ALSO PROVED BY TH E FACT 15 THAT THE AMOUNT ADVANCED BY SHRI MANJIT SINGH WAS INVESTED BY THE ASSESSEE IN PURCHASE OF THE PROPERT Y. 11. IT MAY ALSO BE NOTED HERE THAT SHRI MANJIT SING H HAD NOT ONLY ADVANCED RS. 21 LACS TO THE ASSESSEE BUT A LSO TO SHRI JANG BAHADUR AND SHRI KULWANT SINGH. THE ASSESSEES NAMES HAVE BEEN MENTIONED IN THE LIST OF SUNDRY DEBTORS ALONGWITH NAME OF THESE PERSONS. IN THEIR CASES, SIMILAR ADDITIONS WERE MADE OF RS. 21,20,502 /-. IN THEIR CASES, LD. CIT(APPEALS), KARNAL VIDE ORDER DA TED 19.03.2012 DELETED THE ENTIRE ADDITIONS. THE FINDIN GS OF LD. CIT(APPEALS) IN THE ORDER DATED 19.03.2012 IN T HE CASES OF SHRI JANG BAHADUR AND SHRI KULWANT SINGH I N PARA 9 OF THE ORDER ARE REPRODUCED AS UNDER : 9. I HAVE CAREFULLY CONSIDERED THE ISSUE AND THE SUBMISSIONS MADE BY THE AR. THE FACT OF ADVANCE OF RS 20.00 LACS ON 24.06.2005 BY SH. MANJEET SINGH TO THE APPE LLANT IS EVIDENT FROM DULY CERTIFIED COPIES OF BALANCE SHEET AND P&L A/C OF SH. MANJEET SINGH RECEIVED FROM DCIT, CENTRAL CI RCLE, KARNAL. THE SOURCE FOR GIVING THE SAID ADVANCE IS E VIDENT FROM THE AVAILABILITY OF CASH BALANCE AS REFLECTED IN TH E CASH-BOOK. SH. MANJEET SINGH HAS CONFIRMED THE ADVANCE BY WAY OF AN AFFIDAVIT WHICH HAS NOT BEEN CONTRADICTED BY THE AO . THE GENUINENESS OF THE TRANSACTION IS NOT IN DOUBT IN V IEW OF THE EVIDENCES FILED BY THE ASSESSEE AND THE ENQUIRIES C ONDUCTED BY THE AO DURING REMAND PROCEEDINGS. THE CASH OF RS 20.00 LACS RECEIVED BY THE APPELLANT FROM SH. MANJEET SINGH ON 24.06.2005 HAS BEEN DEPOSITED BY T HE APPELLANT IN THE BANK ACCOUNTS OF FOUR PERSONS KNOW N TO THE APPELLANT (AS THE APPELLANT WAS NOT HAVING BANK 1 A /C, BEING AN AGRICULTURIST) WITHIN 2 DAYS AS EVIDENT FROM, TH E COPIES OF 16 THEIR BANK ACCOUNTS. THIS AMOUNT HAS BEEN IMMEDIATE LY PAID BY THE ASSESSEE TO SH. RAJ KUMAR AND SMT. NEELAM RA NI BY DDS DATED 28.06.2005, 30.06.2005 AND 1.7.2005. THIS FAC T IS CONFIRMED BY THE COPIES OF BANK STATEMEN TS, CONFIRMATION CERTIFICATES ISSUED BY THE BANKS, COPIES OF DDS, AF FIDAVITS OF THE SAID 4 PERSONS AND FINALLY CONFIRMATION BY SH. RAJ KUMAR AND SMT. NEELAM RANI. FROM THE ABOVE, IT CAN BE SEEN TH AT THE ASSESSEE ESTABLISHED THE IDENTITY AND GENUINENESS O F TRANSACTION OF ADVANCE FROM SH. MANJEET SINGH BY FU RNISHING COPY OF SALE AGREEMENT, CREDITWORTHINESS OF SH. MAN JEET SINGH BY FURNISHING AN AFFIDAVIT, COPY OF CASH BOOK AND BALA NCE SHEET EVIDENCING THE SAID ADVANCE FILED ALONG WITH THE RE TURN AND THE ASSESSMENT ORDER OF DCIT, CENTRAL CIRCLE, KARNAL. T HE UTILIZATION OF SAID ADVANCE BY THE ASSESSED BY WAY OF PAYMENT TO SH. RAJ KUMAR AND SMT. NEELAM RANI FOR PURCHASE OF PROPERTY HAS BEEN ESTABLISHED BY THE EVIDENCES MENT IONED ABOVE. IT IS THEREFORE HELD THAT THE ASSESSEE DISCHARGED T HE ONUS CAST ON HIM OF PROVING THE CASH CREDIT BY WAY OF ESTABLI SHING THE IDENTITY OF THE CREDITOR, GENUINENESS OF TRANSACTIO N AND CREDITWORTHINESS OF THE CREDITOR. IN VIEW OF THE AB OVE, THE INVESTMENT IN PROPERTY OF RS 21,20,503/- CANNOT BE REGARDED AS UNEXPLAINED AS THE SOURCE FOR THE SAID INVESTMENT S TANDS EXPLAINED. THE ADDITION MADE BY THE AO IS THEREFORE DELETED AND THE GROUNDS OF APPEAL ARE ALLOWED. 11(I) THIS ORDER OF THE LD. CIT(APPEALS) DATED 19.0 3.2012 HAVE BEEN CONFIRMED BY ITAT CHANDIGARH BENCH BY DISMISSING THE DEPARTMENTAL APPEALS IN THEIR CASES VIDE ORDER DATED 28.12.2015 BECAUSE OF THE LOW TAX EFFEC T. 12. CONSIDERING THE ABOVE DISCUSSION, IN THE LIGHT OF THE MATERIAL ON RECORD, IT IS CLEAR THAT SHRI MANJIT SI NGH CONFIRMED GIVING OF ADVANCE TO THE ASSESSEE AND HIS AFFIDAVIT AND STATEMENT GIVEN BEFORE ASSESSING OFFI CER HAVE 17 NOT BEEN CONTRADICTED BY THE ASSESSING OFFICER. TH E ASSESSEE INVESTED THE AMOUNT ADVANCED TO HIM IN THE PROPERTY. THEREFORE, IDENTITY OF SHRI MANJIT SINGH , WHO IS ALSO ASSESSED TO TAX HAVE NOT BEEN DISPUTED. THE A SSESSEE IS ABLE TO PROVE CREDIT WORTHINESS OF SHRI MANJIT S INGH WHICH HAVE ALSO BEEN ACCEPTED IN THE CASES OF SHRI JANG BAHADUR AND SHRI KULWANT SINGH. THE GENUINENESS OF THE TRANSACTION IS NOT IN DOUBT. THEREFORE, WHEN FINDI NG OF FACT HAS REACHED FINALITY IN OTHER CASES OF SHRI JA NG BAHADUR AND SHRI KULWANT SINGH ON SAME FACTS AND ON IDENTICAL ISSUE, THERE IS NO REASON TO TAKE A CONTR ARY VIEW IN THE MATTER. THE ABOVE DISCUSSION CLEARLY PROVED THE IDENTITY OF SHRI MANJIT SINGH, HIS CREDIT WORTHINES S AND GENUINENESS OF THE TRANSACTION IN THE MATTER. 13. THE LD. CIT(APPEALS) CONFIRMED THE ADDITION OF RS. 20 LACS CONSIDERING A GAP OF NINE MONTHS IN GIVING ADV ANCE AND PURCHASE OF THE PROPERTY. THE LD. CIT(APPEALS) OBSERVED THAT NO PRUDENT PERSON WOULD KEEP RS. 20 L ACS AT HOME FOR NINE MONTHS. THIS ITSELF IS NOT A GROUND TO CONFIRM THE ADDITION AGAINST THE ASSESSEE. THE JUDGEMENT/ORDER IN THE CASE OF SHRI S.R.VENKATARATN AM AND SHRI BALDEV RAJ CHARLA AND OTHERS (SUPRA) RELIE D UPON BY LD. COUNSEL FOR THE ASSESSEE CLEARLY SUPPORT THE SUBMISSIONS OF THE ASSESSEE THAT ASSESSEE RECEIVED GENUINE ADVANCE FROM SHRI MANJIT SINGH. 14. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHIV CHARAN DASS VS CIT, 126 ITR 263 CONSIDERED THE 18 FACTS IN WHICH THE AMOUNT WAS KEPT WITH THE WIFE OF THE ASSESSEE FROM 1951 UPTO HER DEATH IN 1956, LATER DEPOSITED IN BANK IN THE NAME OF TWO UNMARRIED DAUG HTERS OF THE ASSESSEE, AFTER THEY BECAME MAJOR. HON'BLE HIGH COURT OBSERVED THAT, THERE WAS NOTHING ON RECORD TO SHOW THAT THE AMOUNT WAS UTILIZED BY THE ASSESSEE OR HUF IN ANY OTHER MANNER THAN THE ONE WHICH WAS REPRESENTED BY THE ASSESSEE. THE ONUS LAY ON THE DEPARTMENT TO SHOW T HAT EXPLANATION OFFERED BY ASSESSEE SHOULD NOT BE ACCEP TED. IN THIS VIEW OF THE MATTER, NO ADDITION OF RS. 20 L ACS COULD BE MADE AGAINST THE ASSESSEE ONLY BECAUSE THERE WAS SOME TIME GAP BETWEEN THE AMOUNT ADVANCED BY SHRI MANJIT SINGH AND USED BY THE ASSESSEE FOR PURCHASE OF PROP ERTY. 15. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND ABOVE DISCUSSION, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION OF RS. 20 LAC S. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BE LOW AND DELETE THE ADDITION OF RS. 20 LACS. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ( SHRI PRITAM SINGH :: ITA 162/2012 ) ( SHRI MANMOHAN SINGH :: ITA 163/2012 ) 17. IN THESE TWO APPEALS, THE ADDITION IS ON IDENTI CAL FACTS, THEREFORE, FOLLOWING THE ORDER AND REASONS F OR DECISIONS IN THE CASE OF SUKHJIT SINGH (SUPRA) WE S ET ASIDE 19 THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ADDI TIONS OF RS. 20 LACS EACH IN THEIR CASES. 18. IN THE RESULT, BOTH THESE APPEALS ARE ALLOWED. 19. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD MAY,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD