DCIT-CENTRAL-CIRCLE-2(2), Nagpur V. M/S RAJ SRI CONSTRUCTIONS, HYDERABAD

ITA 281/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1617 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Income from undisclosed sources; Document seized; Principle of natural justice
• Section: 143(3); 153A; 132; 15

Judgement Text

1 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 281 /NAG/2014 ASSESSMENT YEAR : 2007 - 08 DY. COMMISSIONER OF INCOME - TAX, M/S RAJ SRI CONSTRUCTION, CENTRAL CIRCLE - 2(2), NAGPUR. VS. HYDERABAD. APPELLANT. RESPONDENT. C.O. NO. 22/NAG/2015 (IN ITA NO. 281/NAG/2014) ASSESSMENT YEAR : 2007 - 08. M/S RAJSRI CONSTRUCTION, DY. COMMISSIONER OF INCOME - TAX, HYDERABAD. VS. CENTRAL CIRCLE - 2(2), NAGPUR. CROSS OBJECTOR. RESPONDENT. DEPARTMENT BY : SHRI NARENDRA KANE. ASSESSEE BY : SHRI K.C. DEVDAS. DATE OF HEARING : 16 - 09 - 2015 DATE OF PRONOUNCEMENT : 6 TH NOV. ., 2015 O R D E R PER MUKUL K. SHRAWAT, J.M. REVENUE IS IN APPEAL AND THE ASSESSEE HAS FILED CROSS OBJECTION, BOTH ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) - III, NAGPUR DATED 27 - 03 - 2004. 2. SINCE THE CROSS OBJECTOR HAS CHALLENGED THE VALIDITY OF THE PROCEEDINGS, HENCE WE HAVE DECIDED TO FIRST ADJUDICAT E THE CROSS OBJECTION. THE GROUNDS RAISED IN THE CROSS OBJECTION ARE AS UNDER : 2 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 1. THE ORDER OF THE CIT(A) - III, NAGPUR IN HOLDING THAT THE ACTION OF THE ASSESSING OFFICER IN INITIATING PROCEEDINGS U/S 153C OF THE IT ACT, 1961 WAS VALID IS WHOLLY UNSUSTAINA BLE BOTH ON FACTS AND IN LAW. 2. THE LEARNED CIT(A) FAILED TO NOTE THAT THE UNSIGNED, UNREGISTERED AGREEMENT OF SALE WHICH WAS FOUND DURING THE COURSE OF SEARCH U/S 132 OF THE IT ACT, 1961 ON 29.04.2010 IN THE CASE OF RBSSN GROUP WAS NOT A DOCUMENT AS CO NTEMPLATED U/S 153C(1)(B) OF THE IT ACT, 1961 AND THEREFORE OUGHT TO HAVE HELD THAT THE INITIATION OF PROCEEDINGS U/S 153C WAS INVALID AND WITHOUT JURISDICTION AND MUCH SO THE ASSESSMENT PROCEEDINGS PASSED ON 12.02.2013 U/S 143(3) R.W.S. 153C OF THE IT A CT, 1961. 3. REGISTRY HAS INFORMED THAT THE CROSS OBJECTION HAS BEEN FILED BY THE RESPONDENT - ASSESSEE BELATEDLY BY ABOUT 9 MONTHS. THROUGH AN AFFIDAVIT, REASONS FOR THE DELAY HAD BEEN EXPLAINED. IN THE SAID AFFIDAVIT IT WAS EXPLAINED THAT AFTER RECEIVING THE APPEAL MEMO OF THE REVENUE DEPARTMENT THE MATTER WAS DISCUSSED WITH THE CHARTERED ACCOUNTANT WHO HAD ADVISED TO FILE THE CROSS OBJECTION. IN FACT THERE WAS A CONFUSION ABOUT THE DATE OF RECEIPT OF THE APPEAL FILED BY THE REVENUE DEPARTMENT. INADVERTEN TLY IT WAS NOTED AS 13 TH OF JULY, 2015 AND THEREUPON THE CROSS OBJECTION WAS FILED ON 27 TH JULY, 2015. HOWEVER, THE CORRECT DATE OF RECEIPT OF THE APPEAL MEMO OF THE REVENUE DEPARTMENT WAS 18 - 10 - 2014. THEREFORE, THE CROSS OBJECTION WAS REQUIRED TO BE FILE D WITHIN A MONTHS TIME BUT FILED AFTER A DELAY OF 9 MONTHS. THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE CROSS OBJECTION WAS FILED WITHIN THE TIME PRESCRIBED BUT ONLY CAME TO KNOW ABOUT THE SAID DELAY WHEN A DEFECT MEMO DATED 28 - 07 - 2015, ISSUED BY THE TRIBUNAL WAS RECEIVED BY THE CROSS OBJECTOR. THEREAFTER A REVISED FORM 36A, I.E. MEMO OF CROSS OBJECTION WAS FILED BY THE ASSESSEE MENTIONING THE CORRE4CT DATE OF RECEIPT OF THE APPEAL OF THE REVENUE DEPARTMENT AS PER COL. 5 OF THE SAID FORM. THE CROSS OB JECT OR HAS , THEREFORE, PLEADED THAT IN THE LIGHT OF THE DECISION OF COLLECTOR, LAND ACQUISITION VS. MST. KAT IJI & IOTHERS 167 ITR 471 (SC), THE DELAY MAY BE CONDONED. 3 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 4. FROM THE SIDE OF THE REVENUE, LEARNED D.R. MR. NARENDRA KANE APPEARED AND OBJECT ED FOR THE SAME. 5. AFTER HEARING THE SUBMISSIONS AND THE REASONS EXPLAINED TO US, WE HEREBY CONDONE THE DELAY FOLLOWING THE PRECEDENT AS CITED BEFORE US AND ADJUDICATE THE GROUNDS RAISED AS PER THE CROSS OBJECTION. 6. THIS IS A CASE WHERE A SEARCH OPERAT ION WAS CONDUCTED U/S 132 OF I.T. ACT ON RBSS N AND GROUP ON 24 - 09 - 2010. THEREAFTER A NOTICE U/S 153C WAS ISSUED ON THE ASSESSEE (A.O.P.) ON 12 TH OF MARCH, 2012. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE HAD FILED A RETURN OF INCOME ON 10 - 10 - 2012 DECLARING INCOME AT RS.13,10,910/ - . AS PER THE ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTION 153C DATED 12 - 02 - 2013 THERE WAS A DOCUMENT WHICH WAS SEIZED FROM THE OFFICE BUILDING OF RBSSN GROUP WHICH WAS IN RESPECT OF SALE OF HOUSE SITUATED AT BANJARA HILLS, HYDERABAD. THERE WAS A X E ROX COPY OF AN AGREEMENT TO SALE ACCORDING TO WHICH A SUM OF RS.6.5 CRORES WAS ALLEGED TO HAVE BEEN RECEIVED AS A CONSIDERATION. THE OBJECTION OF THE ASSESSEE WAS THAT THE SAID DOCUMENT WAS NEVER EXECUTED AND BEING A XEROX COPY HENCE AN INVALID DOCUMENT TO INITIATE THE PROCEEDINGS U/S 153C OF I.T. ACT. THE ASSESSEE HAS CHALLENGED THE LEGALITY OF T HE PROCEEDINGS U/S 15 3 OF I.T. ACT ON THE GROUND THAT THE DOCUMENT WHICH WAS SEIZED DID NOT BELONG TO THE ASSESSEE BUT TO A THIRD PARTY, HENCE THE PROCEEDINGS WERE WRONGLY INITIATED. THE MAIN OBJECTION OF THE ASSESSEE WAS THAT IT WAS NOT A DOCUMENT IN THE EYES OF LAW. A DOC UMENT SHOULD BE A LEGAL AND FORCEABLE DOCUMENT. IT SHOULD BEAR SIGNATURE OF ALL THE PARTIES. SINCE THE DOCUMENT IN QUESTION WAS NOT SIGNED BY THE VEN DEE, NAMELY, SAJJAN KUMAR GOENKA (HUF), HENCE IT WAS NOT A PROPER ENFORCEABLE AGREEMENT TO SALE. IT WAS PLE ADED THAT AN AGREEMENT CAN BE ENFORCED IF THERE IS AN OFFER AS WELL AS THERE IS AN ACCEPTANCE. ONE MORE OBJECTION OF THE ASSESSEE WAS THAT THERE WERE NO WITNESSES ON THE IMPUGNED AGREEMENT. HENCE IT WAS NOT A LEGAL DOCUMENT WHICH COULD BE RELIED UPON FOR T HE PURPOSE OF INVOCATION OF SECTION 153C OF I.T. ACT. THERE W A S NO 4 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 VALID SATISFACTION RECORDED BY THE AO WHO HAS PASSED ON THE DOCUMENT TO THE AO HAVING THE JURISDICTION. HOWEVER, LEARNED CIT(APPEALS) WAS NOT CONVINCED AND REJECTED THIS PLEA IN THE FOLLOWI NG MANNER : THE AFORESAID SUBMISSIONS HAVE BEEN CONSIDERED. THE CAREFUL CONSIDERATION OF FACTS REVEAL THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE OBJECTED TO THE INITIATION OF THE PROCEEDINGS U/S 153C OF THE I.T. ACT STATING THE S AME AS ILLEGAL BECAUSE NO INCRIMINATING MATERIAL BELONGING TO IT HAD BEEN SEIZED DURING THE SEARCH IN THE CASE OF RBSSN GROUP. IN RESPONSE TO THIS, THE A.O. HAS MENTIONED IN PARA 12 OF THE ASSESSMENT ORDER THAT THE CONTENTION OF THE ASSESSEE MENTIONED IN PARA 12 OF THE ASSESSMENT ORDER THAT THE CONTENTION OF THE ASSESSEE WAS DEVOID OF MERITS AS THE SAID ITEM NO. 27 OF ANNEXURE B - 1 SEIZED FROM THE OFFICE BUILDING OF THE RBSSN GROUP IS A FILE UNDER THE HEADING RAJ SRI CONSTRUCTION. THIS FILE CONTAINED SEVE RAL DOCUMENTS PERTAINING TO THE ASSESSEE AS WELL AS THE INDIVIDUAL ACCOUNTS OF THE PARTNERS OF AOP AND IS ALSO CONTAINING SALE DEEDS RELATED TO THE SAME PROPERTY WITH RESPECT TO WHICH THE AGREEMENT TO SALE WAS FOUND. CONSIDERING THESE CRUCIAL FACTS, IT I S CORRECT TO HOLD THAT ACTION OF THE A.O. IN INITIATING PROCEEDINGS U/S 153C WAS VERY MUCH VALID AS THE ABOVE STATED AGREEMENT TO SALE WAS SHOWING MUCH HIGHER SALE CONSIDERATION THAN THAT SHOWN IN THE ACTUAL SALE DEEDS EXECUTED. THEREFORE, NO INTERFEREN CE IN THIS REGARD NIS CALLED FOR AN IT IS HELD THAT THE PROCEEDINGS INITIATED U/S 153C OF THE I T ACT ARE CORRECT AND AS PER LAW. THESE GROUNDS OF APPEAL ARE THEREFORE REJECTED. 7. FROM THE SIDE OF THE CROSS OBJECTO R LEARNED A.R. MR. K.C. DEVDAS APPEARED AND PLEADED THAT AS PER THE REASONS RECORDED FOR THE PURPOSE OF INITIATION OF PROCEEDINGS U/S 153C OF I.T. ACT IT IS NOT IN DISPUTE THAT THERE WAS ONLY A XEROX COPY OF AN ALLEGED AGREEMENT TO SALE. A XEROX COPY IS NOT A DOCUMENT, HE NCE THE AO WAS NOT LEGALLY ENTITLED TO RECORD A SATISFACTION FOR AN U NFORCEABLE DOCUMENT IN THE EYES OF LAW , ALLEGED TO HAVE BEEN RECOVERED AT THE TIME OF SEARCH FROM SOME THIRD PARTY. NEXT, HE HAS PLEADED THAT EVEN IT WAS NOT PROPERLY SIGNED. LEARNED A.R. HA S ALSO MENTIONED THAT THE SAID DOCUMENT WAS EXECUTED ON A NON - JUDICIAL STAMP PAPER . IT WAS ALSO SIGNED BY THREE MEMBERS OF THE AOP AND NOT BY ALL THE MEMBERS OF THE AOP. IT WAS ALSO NOT IN DISPUTE THAT 5 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 THE VENDEE, NAMELY, SAJJAN KUMAR GOENKA (HUF) HAD NOT SIGNED THE SAID AGREEMENT. EVEN THE AGREEMENT WAS NOT WITNESSED, WHICH WAS A LEGAL REQUIREMENT. HE HAS PLEADED THAT THERE ARE SEVERAL DECISIONS WHERE IT WAS HELD THAT THE PHOTO COPY HAD NO EVIDENTIARY VALUE. (MOOSA S. MADHA AND AZAM S. MADHA VS. CIT 89 ITR 65 (SC). AFTER ARGUING AT SOME LENGTH AND PLACING RELIANCE ON FEW CASE LAWS HE HAS PLEADED TO QUASH THE PROCEEDINGS. RELIANCE WAS PLACED ON PEP S I CO INDIA HOLDINGS 370 ITR 295 (DEL .), CIT VS. SHETTY PHARMACEUTICAL & BIOLOGICAL LTD. 57 TAXMAN.COM. 282 (A) , DIRECTOR OF INCOME - TAX VS INGRAM MICRO (INDIA) EXPORTS (P) LTD. 60 TAXMAN.COM.57 ( BOM ) ETC. 8. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LEARNED D.R. MR. NARENDRA KANE HAS SUPPORTED THE VIEW TAKEN BY LEARNED CIT(APPEALS). 9. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT IN THE LIGHT OF THE PROVISIONS OF SECTION 153C WHERE THE AO IS SATISFIED THAT A DOCUMENT SEIZED DURING THE SEARCH PROCEEDINGS BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE DOCUMENT SHALL BE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. IN THE PRESENT CASE THERE WAS A PIECE OF EVIDENCE WHICH RELATED TO THE ASSESSEE. WE HAVE EXAMINED THE SAID PIECE OF EVIDENCE DATED 10 TH JULY, 2006, A PHOTO COPY ON RECORD IN THE COMPILATION WHICH HAS MENTIONED THAT ONE SMT. ANJU SARAF, WIFE OF AJAY SARAF, ONKARLAL BARRIKA, RAVIKANT BADRIKA, AJAY SARAF AND SRIKANT BADRIKA WERE MENTIONED AS VENDORS FIRST PART Y . PURCHASER WAS MENTIONED AS SAJJAN KUMAR GOENKA SECOND PARTY. THE UNDISPUTED FACT IS THAT ONLY PHOTOSTATE COPY OF THIS ALLEGED DOCUMENT WAS RE COVERED AT THE TIME OF SEARCH. IT IS ALSO NOT IN DISPUTE THAT THE PURCHASER SHRI SAJ JAN KUMAR GOENKA HAD NOT PUT HIS SIGNATURE ON THE SAID DOCUMENT. BUT PRIMA FACIE AN INVESTIGATION WAS REQUIRED TO BE MADE BY THE REVENUE DEPARTMENT. WHETHER THIS DOCUMENT WAS LEGALLY EN F ORCEABLE OR NOT IN THE EYES OF LAW WAS A MATTER OF ADJUDICATION BUT 6 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 ONLY AFTER INVESTIGATING THE LEGALITY OF THE DOCUMENT. IN OUR HUMBLE OPINION, FOR THE PURPOSE OF INVOCATION OF PROCEEDINGS U/S 153C ONLY A PRIMA FACIE SATISFACTION IS REQUIRED. ULTIMATELY IT W OULD RESULT INTO AN ADDITION OR IT WOULD NOT RESULT INTO AN ADDITION. THAT DEPENDS UPON THE MERITS OF THE CASE. HOWEVER, AS FAR AS THE INITIATION OF PROCEEDINGS U/S 153C IS CONCERNED, THE ONLY REQUIREMENT OF THE STATUTE IS THAT THE AO WHO HA D MADE THE SEARCH FOUND A DOCUMENT BELONGING TO OR PERT AINED TO SOME OTHER PERSON NOT SEARCHED. THE DUTY OF THE OFFICER WHO IS IN POSSESSION OF THE SEARCHED MATERIAL IS TO PASS ON ALL SUCH INFORMATION, DOCUMENT, MONEY, BULLION, VALUABLE ARTICLES ETC. TO THE OFFICER HAVING JURISDICTION OVER SUCH PERSON TO WHOM THOSE ARTICLES OR THINGS WERE BELONGING ON THE FACE OF IT. THIS IS NOT A CASE WHERE IT WAS CHALLENGED THAT NO SATISFACTION WAS RECORDED. RATHER FROM THE SIDE OF THE REVENUE DEPARTMENT A SATISFACTION NOTE IS PLACED ON RECORD DATED 9 TH MARCH, 2012 WHICH SAY S THAT DURING THE COURSE OF SEARCH OPERATION IN THE CASE OF M/S RBSSN CARRIED OUT ON 24 - 09 - 2010 A MATERIAL WAS SEIZED WHICH WAS MARKED AS ANNEXURE ITEM NO. 27 OF ANNEXURE B/1 WHICH WAS BELONGING TO M/S RAJ SRI CONSTRUCTION, HYDERABAD. WHEN THIS INFORMATIO N IS CONFRONTED TO THE LEARNED A.R. MR/ K.C. DEVDAS, HE HAS PROMPTLY OBJECTED THAT IT WAS NOT A SATISFACTION NOTE OF THE OFFICER HAVING THE JURISDICTION ON THE PERSON SEARCHED, BUT IT WAS A SATISFACTION RECORDED BY THE REVENUE OFFICER WHO HAS ASSESSED HIS ASSESSEE. HE HAS SPECIFIED THAT ACIT, CENTRAL CIRCLE - 2(2), NAGPUR HAD RECORDED THE SATISFACTION, WHO HAD FRAMED THE ASSESSMENT U/S 153C ON THIS ASSESSEE. THEREFORE, IN THE ABSENCE OF PROPER SATISFACTION THE ENTIRE PROCEEDINGS WERE BAD IN LAW. 9.1 AT THI S STAGE OF SECOND APPEAL WHEN THIS VERY ISSUE HAD ALREADY BEEN CONSIDERED BY THE REVENUE AUTHORITIES, IT IS NOT SUSTAINABLE IN THE EYES OF LAW AS WELL AS AGAINST THE NATURAL JUSTICE TO RAISE A FRESH ISSUE OF NON EXISTENCE OF SATISFACTION NOTE OF THE AO HAV ING JURISDICTION OVER THE SEIZED MATERIAL. ON THIS CONTROVERSY A STATEMENT HAS ALSO BEEN MADE BY LEARNED D.R. MR. NARENDRA KANE 7 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 THAT THE CASES OF THE GROUP SEARCHED, NAMELY RBSSN GROUP WAS ALSO ASSESSED BY THE SAME ACIT, THEREFORE, IT COULD BE THE POSSIBI LITY THAT IN DUAL CAPACITY THE ACIT HAD SIGNED THE SATISFACTION NOTE AS WELL AS THE SATISFACTION BEFORE ISSUING THE NOTICE U/S 153C OF I.T. ACT. WE FIND FORCE IN THIS SUBMISSION OF THE LEARNED D.R. IN A SITUATION WHEN AN OFFICER OF THE REVENUE DEPARTME NT IS OFFICIATING IN DUAL CAPACITY OR HAVING TWO JURISDICTIONS THEN THE DOCUMENTS ARE GENERALLY HANDED OVER SYMBOLICALLY. THERE OUGHT NOT TO BE ANY ILLEGALITY IN SUCH PROCEDURE. IN THIS CONNECTION IT IS ALSO WORTH TO MENTION THAT THE INFORMATION WHICH W AS HANDED OVER WAS NOT CONFINED TO ONE DOCUMENT I.E. AGREEMENT TO SALE. BUT THERE WAS A FILE UNDER THE HEADING RAJ SRI CONSTRUCTION. THAT FILE CONTAINED SEVERAL DOCUMENTS WHICH PERTAINED TO THE ASSESSEE. THE SAID FILE WAS CONTAINING THE INDIVIDUAL AS WELL AS AOP ACCOUNTS. THESE WERE CRUCIAL EVIDENCES WHICH WERE REQUIRED TO BE EXAMINED.. HENCE THAT FILE WAS HANDED OVER TO THE ACIT HAVING JURISDICTION OVER THE ASSESSEE. 10. AS FAR AS THE PROCEEDINGS INITIATED U/S 153C IS CONCERNED, THE SECTION PROVIDES THAT THE AO OF THE PERSON ON WHOM SEARCH WAS CONDUCTED MUST BE SATISFIED THAT THE SEIZED MATERIAL DOES NOT BELONG TO THE PERSON SEARCHED U/S 153A BUT IT BELONGED TO ANOTHER PERSON. THEREFORE, THE AO PRIMA FACIE IS EXPECTED TO HAVE SATISFACTION THAT THE DO CUMENT IN QUESTION RELATED TO OR REFERRED TO SUCH OTHER PERSON. THIS IS A MACHINERY PROVISION ONLY TO FACILITATE AN ENQUIRY REGARDING THE EXISTENCE OF UNDISCLOSED INCOME, IF ANY. IN SOME OF THE DECISIONS AS CITED BEFORE US THE HONBLE COURTS HAVE EXAMINED THE EXPRESSION USED IN THE STATUTE I.E. BELONGS TO. IN THE CASE OF PEPSICO INDIA HOLDINGS P. LTD. VS. ACIT 370 ITR 295 (DEL.) AND IN THE CASE OF KAMLESHBHAI DHARMESHBHAI PATEL 31 TAXMAN.COM.50 (GUJ.) IT HAS BEEN OPINED THAT THE EXPRESSION BELONGS TO IS USED IN THE STATUTE TO INDICATE THE ANALOGOUS EXPRESSION SUCH AS RELATES TO / REFERRED TO. TERM BELONG TO IS NOT DEFINED IN THE ACT AND DOES NOT HAVE LEGALLY TECHNICAL CONNOTATION AND, THEREFORE, ONE 8 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 SHOULD FALL BACK ON THE DICTIONARY MEANING OF THE SAME. ONE NEED TO ASCERTAIN IF SUCH DOCUMENT CAN BE STATED TO HAVE RELATION TO OR REFERENCE TO THE AREA. THEREFORE, IF PRIMA FACIE AFTER READING A DOCUMENT THE AO HAS A SATISFACTION THAT THE DOCUMENT IN QUESTION IS RELATED TO SUCH OTHER PERSON THA N THE PERSON SEARCHED U/S 153A THEN THE SAID DOCUMENT SHALL BE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. AT THAT STAGE OF RECORDING THE SATISFACTION IT IS NOT STATUTORILY REQUIRED TO ALSO HAVE A SATISFACTION THAT THE DOCUMENT IN QUESTION IS ALSO LEGALLY OWNED BY SUCH OTHER PERSON. OR IT IS ALSO NOT STATUTORILY REQUIRED TO HAVE A SATISFACTION THAT THE AMOUNT IF ANY MENTIONED IN THE SAID DOCUMENT IS UNDER OWNER SHIP OF SUCH OTHER PERSON. ONLY A PRIMA FACIE SATISFACTION IS REQUIRED IN THE STATUTE SO THAT ON THAT BASIS THE IMPUGNED SEIZED DOCUMENT CAN BE HANDED OVER TO THE AO HAVING THE JURISDICTION OVER SUCH OTHER PERSON SO THAT AN INVESTIGATION CAN BE STARTED AND AN ENQUIRY CAN BE MADE FROM SUCH OTHER PERSON. AT THAT POINT OF TIME WHEN THE DOCUMENT IS HANDED OVER IT IS NOT A CONDITION PRECEDENT TO RECORD THAT THE AMOUNT IN QUESTION IS ALSO SUBJECT TO TAX IN THE HANDS OF SUCH OTHER PERSON, BECAUSE THAT ASPECT CAN ONLY BE ASCERTAINED AFTER COMPLETION OF ENQUIRY. BECAUSE OF THIS REASON , WE HEREBY HOLD THAT THE AO HAD HANDED OVER THE DOCUMENT TO THE AO HAVING THE JURISDICTION OVER SUCH OTHER PERSON BECAUSE THERE WAS A MENTION OF THE NAME IN THE DOCUMENT SO THAT AN INVESTIGATION COULD BE PROCEEDED. 10.1 WE, THEREFORE, HOLD THAT THERE W AS NO IRREGULARITY IN THE PROCEEDINGS INITIATED U/S 153C OF I.T. ACT. ALTHOUGH T HE LEARNED A.R. HAS PLACED RELIANCE ON FEW CASE LAWS , AS MENTIONED ABOVE, H OWEVER, NOT APPLICABLE ON THE FACTS OF THE CASE. HENCE ACCORDING TO TO US MIS - PLACED, THEREFORE, REJECTED. RESULTANTLY, THIS GROUND OF THE CROSS OBJECTION IS HEREBY DISMISSED. THE CROSS OBJECTION IS DISMISSED. 9 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 1 1 . REVENUE S APPEAL: GROUNDS RAISED BY THE REVENUE ARE REPRODUCED BELOW: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE LD.CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDITION MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES IN RESPECT OF DIFFERENCE OF VALUE MENTIONED IN THE AGREEMENT TO SALE AND THE SALE DEED? 2. WHETHER ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE, WHETHER THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE PHOTOSTAT COPY OF THE AGREEMENT O SALE IS A DOCUMENT, WHICH CANNOT BE RELIED UPON, AS AGAINST THE SALE DEED? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE LD.CIT(A) HAS ERRED IN TREATING THE AGREEMENT TO SALE AS AN UNRELIABLE DOCUMENT, EVEN THOUGH IT WAS EXECUTED ON NON - JUDICIAL STAMP PAPER, AND BORE THE SIGNATURE OF THREE MEMBERS OF THE AOP? 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, WHETHER THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE AGREEMENT TO SALE WAS NOT A GENUINE DOCUMENT THOUGH THE DETAILS OF PROPERTY, PURCHASERS NAND SELLERS NIN THE DOCUMENT MATCHES WITH THOSE MENTIO NED IN THE SALE DEED AND THE SALE DEED HAS BEE N DULY EXECUTED AND ACTED UPON BY BOTH THE PARTIES? 1 2 . AS PER THE ASSESSMENT ORDER, AN A GREEMENT TO S ALE DATED 10 TH JULY, 2006 WAS RECOVERED IN RESPECT OF A HOUSE SITUATED AT BANJARA HILLS, HYDERABAD. AS PER THE SAID AGREEMENT, THE PROPERTY WAS SOLD TO ONE MR. SAJJAN KUMAR GOENKA (HUF) , ONE OF THE MEMBER OF ASSESSEE (AOP) THE SALE CONSIDERATION WAS MENTIONED AS RS.6,50,00,000/ - . THE SAID PROPERTY WAS SATED TO BE PURCHASED BY THE VENDORS FOR A CONSIDERATION OF RS.78,79,988/ - . IT WAS SOLD FOR A SUM OF RS. 94,00,000/ - BY EXECUTION OF A REGISTERED SALE DEED. THE SAID PROPERTY WAS SOLD ON 28 TH JULY, 2006 TO SAJJAN KUMAR GOENKA, HUF BY A REGISTERED SALE DEED 10 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 FOR A SUM OF RS.94 LAKHS. THE OBJECTION OF THE AO WAS THAT THE SALE CONSIDERATION AS PER THE REGISTERED SALE DEED WAS UNDERSTATED. AS PER THE REGISTERED SALE DEED THE CONSIDERATION WAS MENTIONED AT RS.94 LAKHS , H OWEVER, AS PER THE SE IZED DOCUMENT THE PROPERTY WAS ALLEGED TO HAVE BEEN SOLD FOR A SUM OF RS.6,50,00,000/ - . THERE WAS A REFERENCE OF A SALE OF THE REMAINING PORTION OF THE SAME HOUSE BY OTHER VENDORS TO THE SAME PURCHASER, NAMELY, SAJJAN KUMAR GOENKA (HUF) FOR A SUM OF RS.1, 06,00,000/ - . THE AO HAS COMPUTED THE DIFFERENCE OF RS.4,50,00,000/ - WHICH WAS IN HIS OPINION THE CORRECT SALE CONSIDERATION PASSED ON AT THE TIME OF TRANSFER OF THE PROPERTY. ON THE BASIS OF THE PHOTO COPY OF THE SALE AGREEMENT THE AO HAS COMPUTED THE UNDI SCLOSED INCOME AS UNDER : I . 4 THE LAST PARA OF PAGE NO 4 OF THIS AGREEMENT TO SALE READ AS 'THAT THE ~ PURCH ASER HAS PAID A SUM OF RS. 11,00,000/ - (RUPEES ELEVEN LAKHS ONLY) VIDE CHEQUE BEARING NO. 220201 DATED 28/6/2006 DRAWN ON M/S CENTURION BANK ITD., PAVANI PLAZA BRANCH, HYDERABAD PRIOR TO THE DATE OF EXECUTION OF THIS AGREEMENT TO SALE TOWARDS ADVANCE BEING PART OF THE SALE CONSIDERATION AND THE RECEIPT OF WHICH THE VENDORS HEREBY ACKNOWLEDGE.' THE ABOVE MENTIONED CHEQUE WAS ISSUED BY TH E PURCHASER IN THE FAVOUR OF SHRI RAVIKANTH BADRUKA. THE SAME CHEQUE IS ALSO FIND MENTION IN THE SALE DEED DATED 22/7/2006 BETWEEN SHRI RAVIKANTH BADRUKA AS VENDOR AND M/S SAJJAN KUMAR GOENKA (HUF) AS PURCHASER. THIS IS CLINCH I NG C ORR OBORATIVE EVIDENCE. THIS FACT ITSELF SHOWS THAT THE AGREEMENT TO SALE IS AUTHENTIC AND TRUE PIECE OF EVIDENCE, WHICH THE ASSESSEE COULD NOT REBUT WITH ANY CLINCHING AND COGENT EVIDENCE. FURTHER THE VERY FACT THAT THE TERMS OF AGREEMENT WERE FOLLOWED RES ULTING IN SALE DEED IN PURSUANCE TO SUCH AGREEMENT CLEARLY SHOWS THAT THE AGREEMENT AND THE CONTENTS THEREIN WERE TRUE AND VALID. IT IS WELL SETTLED POSITION OF LAW THAT THE ONUS OF EXPLAINING 1. THE BOOKS OF ACCOUNTS, DOCUMENTS AND OTH ER ASSETS FOUND AND SEIZED DURING THE SEARCH WITH REFERENCE TO REGULAR BOOKS OF ACCOUNTS IS ON THE ASSESSEE. IF THE ASSESSEE DISCHARGES THE ONUS BY COGENT EVIDENCE, THEN THE BURDEN SHIFTS TO THE DEPARTMENT. THE ASSESSEE HAS NOT DISPUTED THE FACT OF THE IMPUGNED INCRIMINATING EVIDENCE SEIZED DURING SEARCH. SIMPLE DENIAL OF A TRANSACTION IS NOT DISCHARGING ONUS CAST UPON THE ASSESSEE. THE ASSESSEE IS SUPPOSED TO EXPLAIN THE DOCUMENTS WITH COGENT EVIDENCE. IT IS ALSO WELL SETTLED THAT THE SEIZED MATERIA L GATHERED IN A SEARCH CAN BE UTILIZED AGAINST THE ASSESSEE. FURTHER IT IS PROVED BEYOND DOUBT THAT THE PHOTOCOPY IS NOT A MEANINGLESS SHEET OF PAPER. THE CONTENTS OF THE PHOTOCOPY ARE CORROBORATED BY THE 11 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 INDEPENDENT EVIDENCE IN THE FORM OF SALE DEEDS, MORE PARTICULARLY REGARDING THE RECEIPT OF RS 11,00,000/ - . THE ASSESSEE CLAIMS THAT IT DISCHARGED THE ONUS BY SIMPLE DENIAL OF THE CONTENTS OF DOCUMENTS WITHOUT FURTHER EXPLAINING THE CONTENTS AND THE ON MONEY RECEIPT CONTAINED THEREIN WITH ANY DOCUMENT ARY OR OTHER EVIDENCE TO SUBSTANTIATE THE CLAIM. TH I S CLAIM OF THE ASSESSEE IS REJECTED SINCE IT IS PROVED THAT THE SEIZED DOCUMENT IS NOT A DUMB DOCUMENT BUT A SPEAKING DOCUMENT WHICH IS CORROBORATED BY OTHER SEIZED DOCUMENTARY EVIDENCE. IT MAY ALSO BE ADDED THAT THE ASSESSEE INSISTS WITH THE SUPPORT OF THE A PLETHORA OF CASE LAWS THAT A PHOTOCOPY HAS NO EVIDENTIARY VALUE WITHOUT ACTUALLY EXPLAINING THE CONTENTS THEREIN WHICH ITSELF ~ SHOWS THAT THE ASSESSEE HAS NO COGENT EXPLANATION TO OFFER AS REGARDS THE , - MONEY RECEIPTS WITH REFERENCE TO ITS REGULAR BOOKS OF ACCOUNTS. IT IS \ _ ~ I ALRE PROVED THAT THE IMPOUNDED DOCUMENT EVEN THOUGH IS A PHOTOCOPY IT ~ NEVERTHELESS A COPY OF THE ORIGINAL AGREEMENT, THE TERMS OF WHICH ARE CORROBORATED IN THE FORM OF SALE DEEDS WHICH ARE PART OF ASSESSEES REGULAR BOOKS OF ACCOUNTS AND WHICH ARE NOT PHOTOCOPIES. BASED ON THE ABOVE DISCUSSION, TOTAL SALE CONSIDERATION O F RS. 6,50,00,000/ - AS MENTIONED IN THE AGREEMENT TO SALE IS TAKEN AS TRUE SALE CONSIDERATION RECEIVED BY THE VENDORS. THE PROPORTIONATE AMOUNT RECEIVED BY THE ASSESSEE (AOP) IS AS UNDER: ACTUAL SALE CONSIDERATION RECEIVED BY THE AOP = RS.6,50,00,000/ - *(669/1421 . 4) = RS. 3,05,93,077/ - THEREFORE AN AMOUNT OF RS. 2,11,93,077/ - (RS. 3,05,93,077 - 94,00,000) IS ADDED TO TOTAL INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME. SINCE THE ASSESSEE HAS CONCEALED ITS PARTICULARS OF ITS INCOME P E N A L TY PROCEEDINGS U/ S 271 ( L )( C ) O F THE ACT ARE I NITIATED SEPARATE L Y . 1 3 . WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LEARNED CIT(APPEALS) HAS EXAMINED THE EVIDENCES AS WELL AS THE FACTS OF THE CASE AND THEREUPON A RRIVED AT A CONCLUSION THAT MERELY ON THE BASIS OF A PHOTO COPY OF AN ALLEGED AGREEMENT WHICH REMAINED OTHERWISE UNSUBSTANTIATED, HENCE THERE WAS NO JUSTIFICATION TO HOLD T HAT THE SAID AMOUNT WAS UNACCOUNTED INCOME OF THE ASSESSEE. THE FINAL VERDICT WAS AS UNDER : BESIDES, THE APPELLANT CONTENTED THAT THE 'AGREEMENT TO SALE' WAS NEVER EXECUTED AS IT IS NEITHER SIGNED BY THE PURCHASER WHICH IS ONE PART OF THE SAID 12 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 PROPERTY TRANSACTION NOR BY ANY WITNESSES . FURTHER, THIS DOCUMENT WAS NEVER REGISTERED . BESIDES, THE AO. DID NOT TAKE ANY EFFORTS TO EXAMINE THE PURCHASER NAMELY M/S. SAJJAN KUMAR GOENKA HUF, WHICH WAS QUITE ESSENTIAL, CONSIDERING THE FACTS OF THE CASE. BESIDES, THE AO. HAS HEAVILY RELIED UPON THE PAYMENT OF RS . 11 LACS WHICH IS MADE BY CHEQU E BEARING NO . 220201 DATED 28/06/2006 DRAWN ON M/S CENTURION BANK LIMITED, PAVANI PLAZA BRANCH , HYDERABAD , STATING THAT THE SAME HAS BEEN MENTIONED IN THE ACTUAL SALE DEED EXECUTED ON 22/7/2006 AS WELL AS IN THE ABOVE STATED ' AGREEMENT TO SALE' . AS REGARDS THIS, THE AR. HAS CLEARLY EXPLA I NED THAT THE SAID PAYMENT OF RS.11 LACS HAD BEEN RECEIVED BY SRI RAVIKANTH BADRUKA IN HIS INDIVIDUAL CAPACITY TOWARDS THE SALE CONSIDERATION OF HIS SHARE OF PROPE R TY . DURING THE APPELLATE PROCEEDINGS , THE APPELLANT WAS ASKE D TO FURNISH THE EXISTENCE OF AOP AND THE AR . SUBMITTED COPIES OF RETURN OF INCOME AS WELL AS THE ASSESSMENT ORDER OF THE ASSESSEE DATED 29/8/2008 FOR IMMEDIATE PRECEDING YEAR I . E. AYR . 2006 - 07 PASSED U/S . 143(3) OF THE I TACT . THE APPELLANT HAS FURTHER ARG UED THAT NO SHOW CAUSE NOTICE WAS EVER ISSUED BY THE AO. TO THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT , WHICH IS AGAINST THE NATURAL PRINCIPLES OF JUSTICE. IN TH I S REGARD , THE AR . RELIED UPON THE CASE LAWS : - TIN BOX CO V CIT 249 ITR 216 SC . ---- ---- - ------------------ YAGGINA VEERARAGHAVULU & M S CO V CIT 62 ITR 528 - 535(AP) N VENKAT SUBA RAO V CIT 31 ITR 781 (AP). BESIDES THE ABOVE, THE AR . HAS VEHEMENTLY ARGUED THAT THE AO . HAD ACTED UPON MERELY ON THE BASIS OF HIS SURMISES AND PRESUMPTIONS . IN THIS REGARD , HE HAS RELIED UPON VARIOUS CASE LAWS. IN THE CASE OF CIT V SHIVAKANI CO P LTD 159 ITR 71 SC , IT WAS HELD THAT UNLESS THERE IS EVIDENCE THAT MORE THAN WHAT WAS STATED , WAS RECEIVED, NO HIGHER PRICE CAN BE TAKEN TO BE THE BASIS FOR COMPUTATION OF CAPITAL GAINS . A SUSPICION MIGHT BE RAISED IN SUCH CASES BUT TO COME TO A CONCLUSION THAT A PARTICULAR HIGHER AMOUNT WAS IN FACT RECEIVED MUST BE BASED ON SUCH MATERIAL FROM WHICH SUCH AN IRRESISTIBLE CONCLUSION WOULD FOLLOW . IN THE CAS E OF K . P. VARGHESE V. ITO [1981] 24 CTR (SC) 358 : [1981] 131 JTR 597 (SC), IT WAS HELD THAT THE BURDEN OF PROVING ACTUAL CONSIDERATION MORE THAN THE DOCUMENT VALUE IS ON THE REVENUE & NO ADDITION CAN BE MADE ON SURMISES AND CONJECTURES . IN THE CASE OF CI T V. SMT . K.C . AGNES [2003] 262 ITR 354,KER , IT WAS HELD THAT EVEN IF I T IS ASSUMED THE PRICE MENTIONED IN THE AGREEMENT IS CORRECT, UNLESS IT IS PROVED THAT THE AGREEMENT WAS ACTED UPON AND UNLESS THE AMOUNT STATED IN THE AGREEMENT WAS PAID FOR SALE , A C ONCLUSION CANNOT BE REACHED THAT THE PR I CE MENTIONED IN THE SALE DEED IS NOT CORRECT . IN THIS CASE, HON'BLE HIGH COURT WENT A STEP FURTHER AND EVEN CONSIDERED THE EXISTENCE OF BOTH THE AGREEMENT TO SALE AND THE SALE DEED AND UPHELD THE VALIDITY AND SANC TITY OF THE SALE DEED. IN THE CASE OF THE ASSESSEE, THERE IS NO VALID AGREEMENT OF SALE TO DEMONSTRATE RECEIPT OF ON - MONEY CONCLUSIVELY . THUS IN THE FINAL ANALYSIS , IT REMA I NS MERELY THE SURMISES AND PRESUMPTIONS OF THE AO., WHICH WERE NEVER TAKEN TO TH E LOGICAL CONCLUSION BY 13 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 CARRYING OUT THE NECESSARY ENQUIRIES , WHICH IN MY VIEW , WERE A DIRE NECESSITY . IN LIEU OF THE AFORESAID, IT IS ACCORDINGLY HELD THAT THE ADDITIONS MADE BY THE AO. AMOUNTING TO RS.2, 11,93,0771 - ON ACCOUNT OF EXCESS SALE CONSIDERATION IS TOTALLY UNJUSTIFIED AND DESERVES TO BE DELETED . THE AO. IS ACCORDINGLY DIRECTED TO DELETE THE SAME . THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 1 4 . FROM THE SIDE OF THE REVENUE, LEARNED D.R. HAS PLACED R ELIANCE ON THE SAID AGREEMENT WHICH WAS RECOVERED AT THE TIME OF SEARCH. HE HAS PLEADED THAT THERE WAS NO AMBIGUITY IN THE SAID AGREEMENT. HENCE THE AMOUNT MENTIONED WAS ALSO THE TRUE AND CORRECT SALE CONSIDERATION WHICH WAS ACTUALLY PASSED ON AT THE TIME OF TRANSFER OF THE PROPERTY. ACCORDING TO HIM, THE ORIGINAL COPY OF THE SAID AGREEMENT SHOULD HAVE BEEN WITH THE PURCHASER, NAMELY SAJJAN KUMAR GOENKA (HUF). IN THAT ORIGINAL DOCUMENT THERE OUGHT TO BE THE SIGNATURES OF BOTH THE PARTIES. IT IS A NORMAL P RACTICE THAT THE VENDEE POSSES THE ORIGINAL DOCUMENTS. EVEN IN THE SALE DEED WHICH WAS EXECUTED IT WAS MENTIONED THAT THE ORIGINALS SHALL BE HANDED OVER BY THE VENDEE TO THE VENDOR. DUE TO THIS REASON ONLY, PHOTO COPY WAS RECOVERED BUT IT WAS AN AUTHENTIC DOCUMENT TO ESTABLISH THAT THE ACTUAL SALE CONSIDERATION WAS RS.6,50,00,000/ - PASSED ON AT THE TIME OF TRANSFER OF THE PROPERTY. 1 5 . ON THE OTHER HAND, FROM THE SIDE OF THE RESPONDENT - ASSESSEE, LEARNED A.R. HAS SUPPORTED THE VIEW TAKEN BY LEARNED CIT(APP EALS) AND PLACED RELIANCE ON THE DECISIONS OF MOOSA S. MADHA AND AZAM S. MADHA 89 ITR 65 (SC), DIRECTOR OF INCOME - TAX VS. INGRAM MICRO (INDIA) EXPORTS (P) LTD. 60 TAXMANN.COM 57 (BOM.), CIT VS. DINESH JAIN (HUF) & OTHERS 352 ITR 629 (DEL.) 14 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 16. THE DOCUME NT S IN QUESTION HA VE BEEN EXAMINED BY US. AT THE TIME OF SEARCH AN AGREEMENT OF SALE WAS RECOVERED WHICH WAS DATED 10 TH OF JULY, 2006. UNDISPUTEDLY THE SAID AGREEMENT OF SALE WAS A PHOTO COPY. UNDISPSUTEDLY IT WAS NOT AN ORIGINAL DOCUMENT BECAUSE A PHOTO COPY WAS MADE THE BASIS OF ADDITION, THEREFORE, FROM THE SIDE OF THE ASSESSEE LEARNED A.R. HAS PLACED RELIANCE ON A DECISION OF HONBLE SUPREME COURT PRONOUNCED IN THE CASE OF MOOSA S. MADHA AND AZAM S. MADHA VS. ACIT 89 ITR 65 (SC). IT WA S HELD THAT THE PHOTO COPIES HAVE VERY LITTLE EVIDENTIARY VALUE. BE THAT AS IT WAS, WE HAVE ALSO FOUND THAT LEARNED A.R. HAS SUCCESSFULLY DEMONSTRATED BEFORE US THAT THE ALLEGED AGREEMENT OF SALE WAS MERELY A DUMB DOCUMENT HAVING NO LEGAL SANCTITY IN TH E EYES OF LAW. THE FIRST OBJECTION OF THE ASSESSEE WAS THAT THE DOCUMENT IN QUESTION WAS NOT SIGNED BY THE PURCHASER I.E. SAJJAN KUMAR GOENKA (HUF). IT IS PLEADED THAT AN AGREEMENT IS COMPLETE ONLY IF IT IS SIGNED BY THE VENDOR ON ONE HAND AND ALSO SIGN ED BY THE PURCHASER ACCEPTING THE TERMS AND CONDITIONS ON THE OTHER HAND. SINCE THERE WAS NO SIGNATURE OF THE PARTY OF THE SECOND PART I.E. PURCHASER, THEREFORE, THERE WAS NO ACCEPTANCE OF ANY OF THE CONDITIONS MENTIONED IN THE SAID AGREEMENT INCLUDING THE AMOUNT OF CONSIDERATION MENTIONED THEREIN, HENCE THE REVENUE DEPARTMENT SHOULD NOT HAVE PRESUMED THAT THE ALLEGED CONSIDERATION HAD ACTUALLY BEEN PASSED ON TO THE ASSESSEE. NATURALLY THIS PLANK OF ARGUMENT HA S SUBSTANTIAL FORCE BECAUSE OF THE LEGAL REQ UIREMENT THAT AN AGREEMENT SHOULD HAVE BEEN ACCEPTED BY BOTH THE SIDES , THEN ONLY IT HAS SANCTITY IN THE EYES OF LAW. IN OTHER WORDS, ONE SIDED AGREEMENT IS NOT ENFORCEABLE, THUS HAVE NO LEGAL SANCTITY. THE EXISTENCE OF THESE FACTS HAVE, THEREFORE, ON THE FACE OF IT, HAVE RAISED A DOUBT ABOUT THE ENFORCEABILITY OF THE ALLEGED AGREEMENT. 17. AN INTERESTING AS WELL AS AN IMPORTANT FACTUAL POINT HAS BEEN DEMONSTRATED BEFORE US THAT IN THE SAID AGREEMENT TO SALE VIDE CLAUSE 3, CERTAIN DATES WERE MENTIONED FOR THE PURPOSE OF EXECUTION OF THE FINAL SALE 15 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 DEED. TH E SAID CLAUSE HAD PROVIDED THAT THE PURCHASER HAD TO PAY 50% OF THE SALE CONSIDERATION ON OR BEFORE 31 ST JULY, 2006 AND ON RECEIPT OF THE PART CONSIDERATION THE VENDORS SHOULD EXECUTE THE REGISTERED SALE DEED ON OR BEFORE 31 ST JULY, 2006 IN FAVOUR OF THE PURCHASER ONLY 50% OF THE PROPERTY. THIS CLAUSE 3 HAS FURTHER MENTIONED THAT THE REMAINING 50% OF THE SALE CONSIDERATION WAS REQUIRED TO BE PAID BY THE PURCHASER ON OR BEFORE 30 TH SEPT., 2006 AND ON RECEIVING THE SALE CONSIDERATION THE REST OF THE PART OF THE PROPERTY SHALL BE TRANSFERRED AFTER EXECUTION OF A REGISTERED SALE DEED. HOWEVER, MOST IMPORTANTLY, NONE OF THE DATES HAVE MATCHED WITH THE FINAL SALE DEED WHICH WAS EXECUTED IN FAVOUR OF SHRI SAJJAN KUMAR GOENKA (HUF). THE COPIES OF THE FINAL SALE DEEDS HAVE ALSO BEEN PLACED ON RECORD. THERE WERE TWO SALE DEEDS EXECUTED HAVING DOCUMENT NO. 3937/2006 DATED 28 - 07 - 2006 FOR A CONSIDERATION OF RS.32 LAKHS IN RESPECT OF AREA MEASURING 227 SQ.MTRS. THE OTHER SALE DEED DOCUMENT NO. IS 3938/2006 DATED 28 - 07 - 2006 FOR A CONSIDERATION OF RS.62 LAKHS IN RESPECT OF AREA 442 SQ. MTRS. THEREFORE, IT IS APPARENT THAT NOT ONLY THE CONSIDERATION WAS DIFFERENT FROM THE ALLEGED AGREEMENT OF SALE BUT AS PER THE A GREEMENT THE DATES GIVEN FOR THE PAYMENTS WAS 31 ST JULY, 2006 AND 30 TH SEPT., 2006 HAVING NO CONNECTION WITH THE ACTUAL TRANSACTION . HOWEVER, THE SALE DEED WAS EXECUTED ON 28 TH JULY, 2006 I.E. BEFORE THE DATES AS MENTIONED IN THE ALLEGED AGREEMENT OF SALE. MEANING THEREBY THE AGREEMENT OF SALE WAS NOT THE DOCUMENT ENFORCEABLE ON THE PURCHASER, THEREFORE, NOT AT ALL ACTED UPON BY EITHER SIDE. 17.1 ANOTHER DISCREPANCY HAD BEEN HIG HLIGHTED THAT THE ALLEGED AGREEMENT OF SALE WAS MENTIONING THE AREA AS 1700 SQ. YARDS OR 1421.40 SQ.MTRS. BUT AS PER THE S ALE S EEDS EXECUTED THE AREA WHICH WAS TRANSA \ CTED WAS FACTUALLY IN TOTAL 669 SQ.MTRS. OR 800 SQ.YARDS. THEREFORE, THE AREA WAS ALSO NOT MATCHING IN THE DOCUMENTS IN AQUESTION. ALL THESE DISCREPANCIES HAVE, THEREFORE, RAISED A SERIOUS DOUBTS ABOUT THE AUTHENTICITY OF THE SAID DOCUMENT I.E. AGREEMENT TO SALE. THERE ARE SEVERAL DECISIONS WHERE IT WAS HELD THAT UNLESS THERE IS AN EVIDENC E TO 16 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 DEMONSTRATE THAT A HIGHER PRICE WAS ACTUALLY TRANSACTED THAN THE PRICE STATED IN A DOCUMENT, NO ADDITION SHOULD BE MADE MERELY ON APPREHENSION OR SURMISES. CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES UNDER WHICH THE PROCEEDINGS UNDER WHICH 153C W ERE INITIATED AS ALSO CONSIDERING THE SERIOUS DOUBTS ABOUT THE GENUINENESS OF THE DOCUMENT IN QUESTION, WE HEREBY HOLD THAT THE ASSESSEE HA D MADE THE LEGALLY CORRECT DISCLOSURE OF THE CONSIDERATION WHICH WAS ACTUALLY RECEIVED AS ALSO DULY SUPPORTED BY T HE SALE DEEDS EXECUTED BETWEEN THE PARTIES . THAT AMOUNT SHOULD HAVE BEEN TAXED IN THE HANDS OF THE ASSESSEE. THE AMOUNT OF CONSIDERATION AS MENTIONED IN THE ALLEGED AGREEMENT OF S ALE REMAINED UNSUBSTANTIATED, RATHER QUESTIONABLE, THEREFORE, RIGHTLY GRAN TED RELIEF BY THE LEARNED CIT(APPEALS). RESULTANTLY WE HEREBY AFFIRM THAT T HE REVENUE DEPARTMENT HA D NOT PROCE EDED ON A LEGALLY SOUND REASONS, HENCE THE GROUND OF THE REVENUE IS HEREBY DISMISSED. 18. IN THE RESULT, APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF NOV ., 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER. JUDICIAL MEMBER NAGPUR, DATED: 6 TH NOV ., 2015. 17 ITA NO. 28/N AG/2014 CO NO.22/NAG/2015 COPY FORWARDED TO : 2. M/S RAJ SRI CONSTRUCTIONS, 503, 8 - 2 - 618/8, ROAD NO.1, BANJARA HILLS, HYDERABAD. 3. D CIT, CENTRAL CIRCLE - 2(2), NAGPUR. 4. C.I.T., CONCERNED 5. CIT(APPEALS) - II I , NAGPUR. 6. D.R., ITAT, NAGPUR. 7. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR.