Sh Rajinder Puri, Khanna V. The Principal Commissioner of Income Tax, Ludhiana

ITA 292/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8362 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Depreciation; Search and seizure; Document seized; Opportunity of being heard; Period of limitation; Question of law; Block assessment; Documents seized
• Section: 143(3); 153A; 69; 263; 63; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 292/CHD/2015 ASSESSMENT YEAR : 2007-08 SH. RAJINDER PURI, VS. THE PRINCIPAL CIT S/O SHRI HARI DEV PURI, (CENTRAL) #1034, WARD NO. 24, LUDHIANA MANKOO STREET, NAI ABADI KHANNA PAN NO. ACNPP5906H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : SH. SUSHIL KUMAR DATE OF HEARING : 15/03/2016 DATE OF PRONOUNCEMENT : 22 /03/2016 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LD. PRINCIPAL COMMISSIONER OF INCOME TAX(CENTRAL), LUDHIANA DT. 2 6/02/2015, FOR ASSESSMENT YEAR 2007-08 UNDER SECTION 263 OF THE INCOME TAX ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED RETURN OF INCOME DECLARING INCOME OF RS. 4,81,085/- AND ASSESSMENT W AS COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) OF THE ACT VIDE ORDER DT. 25/03/2013 ACCEPTING THE RETURN OF INCOME. 3. THE LD. CIT AFTER GOING THROUGH THE ASSESSMENT R ECORDS AND THE RELEVANT SEIZED MATERIAL FOUND THE ASSESSMENT ORDER TO BE ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. HE HAS THEREFORE ISSUED SHOW C AUSE NOTICE UNDER SECTION 263 OF THE ACT DT. 08/01/2015 WHICH IS REPRODUCED IN THE IMPUG NED ORDER IN WHICH IT IS BRIEFLY MENTIONED : 2 A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT W AS CONDUCTED AT THE BUSINESS PRENMISES OF SHR. RAJENDER PURI AND M/S NARAIN & C OMPANY GROUP OF CASES, MANDI GOBINDGARH ON 30/06/2010. THE NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 AND ASSESSEE FILED RET URN OF INCOME DECLARING INCOME OF RS. 4,81,085/- AND ASSESSMENT WAS COMPLETED UNDER S ECTION 153A / 143(3) DT. 25/03/2013 ACCEPTING THE RETURNED INCOME. IN THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE SE IZED FROM THE PREMISES OF M/S NARAIN & COMPANY GROUP OF CASES WHICH INCLUDED PAGE NO. 34-35 OF ANNEXURE A-9 WHICH WAS SEIZED FROM THE PREMISES OF M/S NARAIN & COMPANY OFFICE G.T. ROAD, MANDI GOBINDGARH. AS PER DOCUMENT, PAGE NO. 34-35 OF ANNE XURE A-9 SEIZED FROM THE PREMISES OF M/S NARAIN & COMPANY, MANDI GOBINDGARH WHICH IS A SALE AGREEMENT DATED 14/12/2005 BETWEEN THE ASSESSEE AND OTHERS AN D SH. BHOLA NATH FOR THE SALE OF LAND AT VILLAGE SALANI, ACCORDING TO WHICH RATE OF THE LAND IS RS. 6,50,000/- PER BIGHA AS AGAINST RS 1,53,000/- CLAIMED AND SHOWN BY THE ASSE SSEE. HOWEVER SOME OTHER DOCUMENTS SEIZED FROM THE PREMISES OF M/S NARAIN & COMPANY AS PER CHART ENCLOSED, ASSESSEE HAS PURCHASED AND SOLD SAME OF THE LAND IN VILLAGE SALANI. AS PER THESE DOCUMENTS, THE ASSESSEE HAS PURCHASED AND SOLD THE SAME LAND AT THE RATE MUCH BELOW RS. 6,50,000/- PER BIGHA SHOWN IN THE AGREEME NT SUPRA FOUND AND SEIZED FROM THE PREMISES OF M/S NARAIN & COMPANY. FOR INSTANCE THE DETAILS OF LAND SHOW ASSESSEE ALONGWITH SOME OTHER PERSONS HAS SOLD 10 BIGHA OF L AND AT VILLAGE SALANI TO M/S R.P. IMPORT & EXPORT (P) TD., MANDI GOBINDGARH ON 26/06/ 2006 FOR A TOTAL CONSIDERATION OF RS. 13,75,000/- @ RS. 1,37,500/-. SIMILAR IS THE POSITI ON IN RESPECT OF THE LAND SOLD BY THE ASSESSEE ALONGWITH OTHERS TO M/S R.P. IMPORT & EXPO RT (P) LTD. AS SHOWN IN THE CHART. ON THE OTHER HAND AS PER CHART ASSESSEE ALONGWITH OTHE RS HAS PURCHASED 7 BIGHA OF THE LAND AT THE SAME KHASRA AT VILLAGE SALANI FOR RS. 8 ,75,000/-. AS PER CHART SH. SUMIT GUPTA S/O SH. BHOLA NATH OF KHANNA HAS SOLD 4 BIGHA 10 B ISWA OF THE LAND IN THE SAME VILLAGE SALANI TO M/S R.P. IMPORT & EXPORT (P) LTD. THE DET AILS ARE MENTIONED IN THE SHOW CAUSE NOTICE REGARDING CERTAIN OTHER TRANSACTIONS BUT COP Y OF THE AGREEMENT FOUND FROM THE PREMISES OF M/S NARAIN & COMPANY REVEALED THE LAND WAS AGREED TO BE SOLD AT RS. 6,50,000/- PER BIGHA. IT IS ALSO NOTED THAT COPY OF THE SAME AGREEMENT WHICH IS NOT 3 CANCELLED AND ATTESTED BY NOTARY PUBLIC, WAS RECEIV ED FROM INDEPENDENT SOURCE IN THE COURSE OF ASSESSMENT PROCEEDINGS SUPPORT AND CORROB ORATE SEIZED DOCUMENTS. THE AUTHENTICITY OF THESE DOCUMENTS WAS REQUIRED TO BE EXAMINED AND ESTABLISHED WHICH HAS NOT BEEN DONE BY THE AO. THE LD. CIT WAS THEREF ORE OF THE VIEW THAT ACCORDING TO THE AGREEMENT THE RATE OF LAND IS RS 6,50,000/- PER BIGHA TO BE PURCHASED / SOLD AND COPY OF THE AGREEMENT IS RECEIVED FROM THE INDEPEND ENT SOURCE WHICH HAVE NOT BEEN EXAMINED BY THE AO. THEREFORE ASSESSMENT ORDER OF T HE AO WAS FOUND TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REV ENUE. 4. THE ASSESSEE IN RESPONSE TO THE ABOVE SHOW CAUSE NOTICE SUBMITTED A DETAILED REPLY WHICH IS NOTED IN THE IMPUGNED ORDER IN WHICH THE ASSESEE BRIEFLY EXPLAINED THAT THE AO PASSED THE ASSESSMENT ORDER CONSIDERING AND EXAMINING EACH AND EVERY ASPECTS PERTAINING TO THE AGREEMENT TO SALE REFERRE D TO IN THE SHOW CAUSE NOTICE. THE AGREEMENT IS FORGED ONE. THE ASSESSEE HAD ONLY PURC HASED 3 BIGHA AND 46.66 BISWA OF LAND IN APRIL, 2006 WHICH HAVE BEEN SOLD TO SH. NAR AIN SINGLA IN JUNE/JULY 2006. THE AGREEMENT IN QUESTION HAS NEVER BEEN EXECUTED AT AL L AS SIGNATURES OF THE PERSONS ARE FORGED ONE THE DATE OF PURCHASE OF STAMP PAPER OF T HE AGREEMENT DOES NOT APPEAR ON THE BACK SIDE OF THE AGREEMENT WHICH SHOWS THAT STAMP PAPER IS FORGED. THE SIGNATURE OF PURCHASER SH. BHOLA NATH AS ALLEGED IN THE AGREEMENT DOES NOT APPEAR ON THE PHOTOCOPY OF THIS AGREEMENT. THE AGREEMENT IS C ROSSED THROUGH THE LINES THEREFORE THIS HAS BEEN CANCELLED PAPER AND HAS NO EVIDENTIAR Y VALUE. THE ASSESSEE PURCHASED AND SOLD ONLY SMALL PIECE OF LAND AS EXPLAINED ABOV E. THE AUTHENTICITY OF THE SAID AGREEMENT WAS DULY EXAMINE AND VERIFIED BY THE AO A T ASSESSMENT STAGE. THE AO HAS ALSO EXAMINED SH. BHOLA NATH THE ALLEGED PURCHASER AND SH. GURDEEP SINGH. THE SIGNATURE OF SH. RAJINDER PURI ARE DIFFERENT AND FU RTHER SIGNATURE OF SH. RAM MURTI AND SH. PAWAN KUMAR ALSO DIFFERS THUS IT IS FAKE AND FORGED DOCUMENT. NO TRANSACTION WAS CARRIED OUT THROUGH THIS AGREEMENT TO SALE. NO SUCH DOCUMENT WAS FOUND DURING COURSE OF SEARCH FROM THE PREMISES OF THE ASSESSEE. THE ASSESSEE DID NOT POSSESS ANY LAND ON THE DATE OF AGREEMENT THEREFORE SAME CANNOT BE RELIED UPON. THE ORIGINAL AGREEMENT TO SALE WAS NEVER PRODUCED BY THE DEPART MENT. WITH REGARD TO THE RECEIPT OF THE COPY OF THE AGREEMENT FROM INDEPENDENT SOURC E IN THE COURSE OF ASSESSMENT 4 PROCEEDING, IT WAS SUBMITTED THAT SAME WAS SUPPLIED VIDE ORDER SHEET DT. 20/01/2015 I.E; AFTER PASSING OF THE ASSESSMENT ORDER ON 25/03 /2013. THE AFFIDAVIT OF THE PURCHASER AND OTHERS WERE FILED DENYING THE EXECUTION OF THE AGREEMENT. 5. THE LD. PRINCIPAL CIT HOWEVER DID NOT ACCEPT CON TENTION OF THE ASSESSEE AND NOTED THAT SINCE COPY OF THE AGREEMENT TO SALE RECE IVED FROM INDEPENDENT SOURCE HAS NOT BEEN EXAMINED AND NO PROPER ENQUIRY HAVE BEEN M ADE TO VERIFY THE AGREEMENT IN QUESTION AT ASSESSMENT STAGE THEREFORE ORDER OF THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. THE AO WAS NOT ONLY REQUIRED TO CONDUCT PROPER ENQUIRY BUT WAS ALSO REQUIRED TO MAKE ADDITION IN R ESPECT OF THE LAND PURCHASED / SOLD BY THE ASSESSEE OUT OF 49 BIGHA OF THE LAND. THE AS SESSMENT ORDER WAS THEREFORE SET ASIDE AND AO WAS DIRECTED TO MAKE ASSESSMENT AFRESH DENOVO AFTER PROPERLY EXAMINING THE FACT OF THE CASE AND AFTER MAKING PRO PER ENQUIRY. 6. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER UNDER SECTION 263 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION MADE BEFORE AUTHORITIES BELOW AND REFER TO PAPER BOOK 2 PAGE 1 WHICH IS A SHOW CAUSE NOTICE ISSUED BY THE AO ON 07/03/2013 AT THE ASSESSMENT STAGE SEEING EXPLANATI ON OF THE ASSESSEE WITH REGARD TO THE COPY OF THE AGREEMENT DT. 14/12/2015 , SEIZED F ROM RESIDENCE OF SH. NARAIN SINGLA AT MANDI GOBINDGARH, COPY OF THE SAME WAS ALSO SUPP LIED TO THE ASSESSEE FOR AGREEING TO SELL THE LAND AT RS. 6,50,000/- PER BIGHA TO SH. BHOLA NATH. THE ASSESSEE WAS REQUESTED TO GIVE DETAILS WITH DOCUMENTARY EVIDENCE TO EXPLA IN THE TOTAL AMOUNT AS PER THE ABOVE AGREEMENT TO SELL. PAPER BOOK-II PAGE 3 IS C OPY OF THE AGREEMENT TO SELL DT. 14/12/2005, WHICH IS CANCELLED AND CROSSED AND THER EFORE CANCEL DOCUMENT. PAPER BOOK II PAGE 7 IS COPY OF THE SAME AGREEMENT STATE D TO HAVE BEEN RECEIVED FROM INDEPENDENT SOURCE. PAPER BOOK-I PAGE 7 IS REPLY OF THE ASSESSEE BEFORE THE AO IN RESPONSE TO THE SHOW CAUSE NOTICE IN WHICH ASSESSEE EXPLAINED THE ENTIRE TRANSACTION ON WHICH THE AO RAISED THE QUERY, THE ASSESSEE EXPL AINED IN REPLY THAT THIS AGREEMENT TO SELL WAS SEIZED FORM RESIDENCE OF SH. NARAIN SIN GLA WAS NEVER EXECUTED WHICH IS A FORGED DOCUMENT. THE ASSESSEE ALSO EXPLAINED THAT N O ORIGINAL AGREEMENT WAS FOUND AND DEPARTMENT IS HARASSING ON THE BASIS OF THE FOR GED DOCUMENT. LD. COUNSEL FOR THE ASSESSEE REFERRED TO VARIOUS REPLIES FILED BEFORE T HE AO, COPY OF WHICH ARE FILED AT PAGE 5 NO. 1 TO 12 OF PAPER BOOK. THE ASSESSEE IN ONE OF T HE REPLY ALSO EXPLAINED THAT 3 BIGHA APPROX. OF LAND WAS PURCHASED IN APRIL 2006 FROM SH. AMARJEET SINGH & SH. BALDEV SINGH AND COPIES OF THE SALE DEED WERE FILED, IT W AS ALSO EXPLAINED THAT NO SUCH DEED WAS EXECUTED AS IS ALLEGED IN THE NOTICE ISSUED BY THE AO AT ASSESSMENT STAGE. LD. COUNSEL FOR THE ASSESSEE REFERRED TO STATEMENT OF S H. BHOLA NATH , SH. GURDEEP SINGH AND SH. SUMIT GUPTA RECORDED BY AO AT ASSESSMENT ST AGE IN WHICH THE PURCHASER SH. BHOLA NATH DENIED TO HAVE ENTERED INTO ANY AGREEMEN T TO SELL OR TO PURCHASE ANY PROPERTY AT VILLAGE SALANI FROM SH. PAWAN KUMAR, SH . RAJINDER PURI AND SH. RAM MURTI. THE AGREEMENT TO SELL DT. 14/12/2005 WAS SHOWN TO S HRI. BHOLA NATH IN HIS STATEMENT AND IN ANSWER TO THE SAME HE HAS DENIED TO HAVE SIGNED ANY SUCH AGREEMENT. LD. COUNSEL THEREFORE SUBMITTED THAT AO EXAMINED THE ENTIRE ISS UE ON THE BASIS OF THE AGREEMENT TO SELL DT. 14/12/2005 AT ASSESSMENT STAGE AND AFTER M AKING PROPER ENQUIRY COMPLETED THE ASSESSMENT THEREFORE, IT IS NOT A CASE OF AO PASSIN G ANY ERRONEOUS ORDER IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. 7. ON THE OTHER HAND LD. DR RELIED UPON IMPUGNED OR DER AND SUBMITTED THAT THE AGREEMENT TO SELL IN QUESTION SHOWS MORE CONSIDERAT ION WHICH WAS NOT EXAMINED BY AO AT ASSESSMENT STAGE. THE COPY OF THE AGREEMENT T O SELL RECEIVED FROM INDEPENDENT SOURCE WAS ALSO NOT EXAMINED BY THE AO. THE AO DID NOT MAKE ANY ENQUIRY ON THE MATTER IN ISSUE SHOWING LESSER CONSIDERATION OF THE PROPERTY TO BE PURCHASED / SOLD. THE ASSESSEE DID NOT REFER TO THE SEIZED PAPER IN THEIR REPLY AND NO EXPLANATION ON THE SAME HAVE BEEN GIVEN. HE HAS SUBMITTED WHERE AO HAD ACCE PTED THE RETURNED INCOME WITHOUT SCRUTINIZING OR REFERRING TO ANY MATERIAL E XAMINED BY HIM THE ACTION UNDER SECTION 263 WOULD BE JUSTIFIED. HE HAS RELIED UPON FOLLOWING DECISIONS: A. BASSERA REALTORS P LTD. VS. CIT-55 TAXMANN.COM 3 27 (ITAT, CHANDIGARH) B. CIT VS. ANSAL HOUSING & CONSTRUCTION LTD. 51 T AXMANN.COM376 (SC) C. CIT, KARNAL VS RAJESH MAHAJAN- 16 TAXMANN.COM 85 (HON'BLE HIGH COURT OF PUNJAB & HARYANA) D. VODAFONE SOUTH LTD. VS CIT(TDS) 61 TAXMANN.COM 108 (ITAT, CHANDIGARH) E. CIT VS. SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS- 231 ITR 53 (SC) 6 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. 9. THE LD. PRINCIPAL CIT IN THE SHOW CAUSE NOTICE H AS REFERRED TO CERTAIN TRANSACTIONS CONDUCTED OF THE IDENTICAL NATURE IN THE CASE OF M/ S R.P. IMPORT & EXPORT (P) LTD. IN THIS CASE ALSO THE LD. PRINCIPAL CIT HAS INITIATED THE P ROCEEDINGS UNDER SECTION 263 OF THE ACT ON IDENTICAL FACTS EXCEPT THAT THE ASSESSMENT ORDER MERGED WITH THE ORDER OF LD CIT(A) AND THE APPEAL OF THE ASSESSEE HAS BEEN CONS IDERED BY THE ITAT, CHANDIGARH BENCH IN THE CASE OF M/S R.P. IMPORT & EXPORT (P) L TD VS. PRINCIPAL COMMISSIONER OF INCOME TAX REPORTED IN 46 ITR (TRIBUNAL) 97(CHANDIG ARH). ENTIRE ORDER IN THIS CASE IS RELEVANT WHICH IS REPRODUCE AS UNDER IN WHICH THE T RIBUNAL SET ASIDE AND QUASHED THE ORDER UNDER SECTION 263 OF THE ACT AND ALLOWED THE APPEAL OF THE ASSESSEE. IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 421/CHD/2015 ASSESSMENT YEAR: 2007-08 M/S R.P. IMPORT & EXPORT P.LTD., VS THE PRINCIPA L CIT, B.D. COMPLEX, NEAR RAM BHAWAN, (CENTRAL), G.T. ROAD, LUDHIANA. MANDI GOBINDGARH. PAN: AADCR7435A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGA L RESPONDENT BY : SHRI SUSHIL KUMAR DATE OF HEARING : 07.01.2016 DATE OF PRONOUNCEMENT : 15.01.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. PRINCIPAL, CIT(CENTRAL) LUDHIANA DATED 26.02.2015 F OR ASSESSMENT YEARS 2007-08 UNDER SECTION 263 OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ORIGINAL RETURN IN THIS CASE WAS FILED ON 31.10.2007 DECLARING NIL INCOME. THEREA FTER, A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 30.06.2010. ACCORDINGLY, NOTICE UNDER SECTION 153A WAS ISSUED AND ASSESSEE AGAIN FILED RETURN OF INCOM E AT NIL. THE 7 DOCUMENTS PAGE NOS. 34-35 OF ANNEXURE A-9 WAS SEIZE D FROM THE OFFICE PREMISES OF THE DIRECTOR OF M/S NARAIN & COMPANY. T HE ASSESSING OFFICER IN THIS REGARD HAS OBSERVED THAT AS PER DOCUMENTS A T PAGE 34-35 OF ANNEXURE A-9 SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WERE CONFRONTED TO THE ASSESSEE VIDE SHOW CAUSE DAT ED 20.02.2013 PROPOSING TO ADOPT THE PURCHASE OF LAND AT THE RATE OF RS.6,50,000/-PER BIGHA. THE ASSESSEE SUBMITTED, BEFORE THE ASSESSING OFFICER THE FOLLOWING ARGUMENTS VIDE HIS LETTER DATED 28.02.2013:- 'THIS IS WITH REFERENCE TO YOUR LETTER DATED 20/02/ 2013 REGARDING .TO ADOPT THE RATE OF LAND AT RS. 6,50,00 0/- PER BIGHA FOR THE LAND PURCHASED BY THE COMPANY IN THE YEAR UNDER ASSESSMENT. IN THIS REGARD WE SUBMIT AS UNDER: - AS REGARD THE JUSTIFICATION OF PAGES 34 & 35 OF ANNEXURE A-9 WITH REGARD TO THE PURCHASE OF LAND BY M/S R.P. EXPORT AND IMPORT PVT. LTD. HIS REGARD IT IS B EING SUBMITTED THAT THE APPLICANT COMPANY NAMELY M/S R.P . EXPORT & IMPORT PURCHASED A LAND OF 49 BIGHA SITUAT ED IN VILL. SALANI IN F.Y. 2006-07. THE TOTAL AMOUNT WAS PAID BY THE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATION DEED. COPY OF T HE TITLE DEED ALSO FOUND AND SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH. THE SAID LAND PURCHASED BY THE COMPANY FROM VARIOUS PERSONS AND THE AMOUNT HAVE BE EN PAID BY THE COMPANY FROM THEIR REGULAR SOURCES. COP Y OF THE TITLE DEED ALONG WITH SOURCES OF THE AMOU NT FROM WHERE THE PAYMENTS HAVE ALREADY BEEN FILED DURING T HE COURSE OF ASSESSMENT. DURING THE COURSE OF SEARCH A LSO NO ADVERSE MATERIAL OR ANY KIND OF ADVERSE PAPER HAVE BEEN FOUND FOR GIVING THE ANY KIND OF OWN MONEY. AS REGA RD THE ONE OF THE AGREEMENT AS PER PAGES 34 & 35 OF ANNEXU RE A- 9 IT IS BEING SUBMITTED THAT THESE PAPER DOES NOT B ELONG TO THE APPLICANT GROUP AND ALSO THERE IS NO NAME OF THE APPLICANT GROUP IN THIS AGREEMENT. THIS AGREEMENT A LSO INDICATES THAT THIS IS A CANCELLED AGREEMENT WHEREI N THERE ARE MANY CROSS HAVE BEEN MENTIONED IN THEREIN. IT I S PERTINENT TO MENTION HERE THAT THE SAID DOCUMENT I. E. PAGE 34 & 35 HAVE NOT BEEN CONFRONTED AT THE TIME OF SEA RCH AND ALSO DURING THE POST SEARCH ENQUIRIES. THESE DOCUMENTS DOES NOT PERTAINS TO THE APPLICANT AND WE DO NOT KNOW FROM WHERE THIS DOCUMENT HAVE BEEN COME ON MY BUSINESS PREMISES. THEREFORE FROM THE ABOVE SAID FA CTS AND CIRCUMSTANCES NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. MOREOVER WE WOULD ALSO LIKE TO MENTION THAT ON THE BASIS OF THIRD PARTY DOCUMENTS IN WHICH OUR COMPANY NAME OF THEIR DIRECTORS NAME IS NOT MENTIONED ANYWH ERE AND THE DOCUMENTS IS A CROSSED DOCUMENTS AND EACH P AGE IS CROSSED AND CANCELLED. THE COMPANY RECORDED THE ACTUAL AMOUNT IN THE LAND ACCOUNT AS PAID TO THE PA RTIES FROM WHOM THE LAND WAS PURCHASED. OUT OF WHICH 4 BI GHA 10 BISWA WAS PURCHASED FROM SH. SUMIT GUPTA S/O SH. BHOLA NATH AS PER THE TITLE DEED FOR RS. 5,62,500/- . THE DOCUMENT AS PER PAGE 34 & 35 IS BETWEEN THE THIRD PARTIES AND NO WHERE THE NAME OF COMPANY OR G ROUP MEMBERS IS WRITTEN OR SIGNED BY ANY OF THE DIRECTO R OF GROUP MEMBER. IT IS ALSO PERTINENT TO MENTION THAT WE ALSO HAVE PURCHASED THE LAND FROM THE PERSONS OTHER THAN MENTIONED IN PAGE NO.34 AND 35 OF ANNEXURE A9. MOREOVER THE CROSS DOCUMENTS WERE NOT CONFRONTED TO US DURING THE COURSE OF SEARCH AND POST SEARCH ENQUIRIES. THERE IS NO SIGN OF ANY DIRECTOR OR GROU P MEMBER ON THE PAGE NO. 34 &. 35.' 8 3. THE ASSESSING OFFICER AFTER CONSIDERING SUBMISSI ONS OF THE ASSESSEE OBSERVED THAT AS PER THE SEIZED DOCUMENT REFERRED T O ABOVE, THE AGREEMENT WAS FOR PURCHASED OF LAND BY SH. BHOLA NATH FROM SH . PAWAN KUMAR, SH. RAJINDER PURI AND SH. RAM MURTI AND THE LAND WAS UL TIMATELY TRANSFERRED TO SH. SUMIT GUPTA S/O SH. BHOLA NATH AT THE RATE O F RS. 1,25,000/- PER BIGHA WHEREAS THE RATE OF LAND AS PER AGREEMENT REF ERRED TO WAS RS.6,50,000/- PER BIGHA. THE ASSESSING OFFICER, THE REFORE PROCEEDED TO CONCLUDE THAT THE ASSESSEE HAD PAID AN AMOUNT OF RS . 23,62,500/- FOR THE PURCHASE OF SAID LAND LEADING TO AN ADDITION THEREO F UNDER SECTION 69B OF THE I.T. ACT 1961. 4. THE ASSESSMENT ORDER DATED 25.03.2013 WHEREBY AD DITION OF RS. 23,62,500/- WAS MADE, WAS CHALLENGED BEFORE LD. CIT (APPEALS) AND ASSESSEE MADE DETAILED SUBMISSIONS EXPLAINING THEREIN THAT T HE SEIZED DOCUMENT IS CANCELLED/CROSSED ALLEGED AGREEMENT RELATING TO SOM E OTHER PARTY WITH WHICH ASSESSEE HAS NOTHING TO DO. THERE IS NO NAME OF TH E ASSESSEE ON THE SEIZED PAPER AND NONE OF THE DIRECTORS ARE ALSO CONNECTED WITH THE SAME. THE ASSESSEE PURCHASED 46 BIGHA 9 BISWA OF LAND FROM DI FFERENT PERSONS AFTER MAKING WITHDRAWALS FROM THE BANK ACCOUNT. NO EVIDEN CE WAS FOUND AGAINST THE ASSESSEE FOR MAKING ANY PAYMENT OVER AND ABOVE WHAT IS MENTIONED IN THE REGISTERED SALE DEED. THE SEIZED PAPER IS NOT CONFRONTED TO THE ASSESSEE. THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF RATE OF PURCHASE OF LAND FROM SHRI SUMI GUPTA IN RESPECT OF 4 BIGHA AND 10 BISWAS OF LAND ONLY. THE ASSESSING OFFICER HAS ACCEPTED T HE SALE CONSIDERATION AS MENTIONED IN THE OTHER SALE DEEDS IN RESPECT OF THE LAND PURCHASED FROM DIFFERENT PERSONS. THE LD. CIT(APPEALS) VIDE ORDER DATED 03.09.2013 DELETED THE ENTIRE ADDITION AND ALLOWED THE APPEAL OF THE A SSESSEE. 4(I) THE LD. CIT(APPEALS) IN HIS FINDINGS OBSERVED THAT NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATION WI TH REGARD TO ANY PAYMENT MADE OVER AND ABOVE WHAT IS RECORDED IN THE SALE DE ED. IT WAS THE CANCELLED DOCUMENT. THE REVENUE PREFERRED THE APPE AL BEFORE ITAT, CHANDIGARH BENCH ON THE SAME MATTER IN ISSUE IN ITA 1135/2013 ASSESSMENT YEAR 2007-08 AND THE TRIBUNAL VIDE ORDER DATED 12.1 2.2014 DISMISSED THE DEPARTMENTAL APPEAL. THE ORDER OF THE TRIBUNAL IS REPRODUCED AS UNDER : IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1135/CHD/2013 ASSESSMENT YEAR : 2007-08 THE D.C.I.T., VS. M/S R.P. IMPORT & EXPORT (P) LTD., CENTRAL CIRCLE III, G.T. ROAD, LUDHIANA. MANDI GOBINDGARH. PAN: AADCR7435A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MITTAL, DR RESPONDENT BY : SHRI SUDHIR SEHGAL DATE OF HEARING : 09.12.2014 DATE OF PRONOUNCEMENT : 12.12.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, LUD HIANA DATED 3.9.2013 FOR ASSESSMENT YEAR 2007-08 ON THE FOLLOWI NG GROUND OF 9 APPEAL : 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND O N FACTS IN DELETING THE ADDITION OF RS.23,62,500/- MADE ON ACCOUNT OF UNEXPLAINED IN VESTMENT BY THE ASSESSEE COMPANY IN THE PURCHASE OF LAND, IGNORING THE FACT THAT THE COPY OF AGREEMENT WAS SEIZED FROM THE SISTER CONCERN OF THE ASSESSEE WHICH SHOWS THE RATE OF LAND WAS @ RS.6,50,000/- PER BIGHA INSTEAD RS. 1,25,000/- PER BIGHA DECLARED IN THE REGISTRATION DEED. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE CHALLENGED THE ORDER OF THE ASSESSING OFFICER IN MAKING THE AD DITION OF RS.23,62,500/- BEFORE THE LEARNED CIT (APPEALS) BEI NG UNEXPLAINED INVESTMENT UNDER SECTION 69B OF THE ACT. THE ASSE SSING OFFICER IN THIS REGARD HAS OBSERVED THAT AS PER DOCUMENTS AT P AGE 34-35 OF ANNEXURE A-L SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WERE CONFRONTED TO THE ASSESSEE VIDE SHOW C AUSE DATED 20.02.2013 PROPOSING TO ADOPT THE PURCHASE OF LAND AT THE RATE OF RS.6,50, 000/-PER BIGHA. THE ASSESSEE SUBMITTED, BE FORE THE ASSESSING OFFICER THE FOLLOWING ARGUMENTS VIDE HIS LETTER DATED 28.02.2013:- 'THIS IS WITH REFERENCE TO YOUR LETTER DATED 20/02/ 2013 REGARDING .TO ADOPT THE RATE OF LAND AT RS. 6,50,00 0/- PER BIGHA FOR THE LAND PURCHASED BY THE COMPANY IN THE YEAR U NDER ASSESSMENT. IN THIS REGARD WE SUBMIT AS UNDER: - AS REGARD THE JUSTIFICATION OF PAGES 34 & 35 OF ANN EXURE A-9 WITH REGARD TO THE PURCHASE OF LAND BY M/S R.P. EXPORT AND IMPORT PVT. LTD. HIS REGARD IT IS BEING SUBMITT ED THAT THE APPLICANT COMPANY NAMELY M/S R.P. EXPORT & IMPORT P URCHASED A LAND OF 49 BIGHA SITUATED IN VILL. SALANI IN F.Y. 2006-07. THE TOTAL AMOUNT WAS PAID BY THE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATIO N DEED. COPY OF THE TITLE DEED ALSO FOUND AND SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH. THE SAID LAND PURCHASE D BY THE COMPANY FROM VARIOUS PERSONS AND THE AMOUNT HAVE BE EN PAID BY THE COMPANY FROM THEIR REGULAR SOURCES. COPY OF THE TITLE DEED ALONGWITH SOURCES OF THE AMOUNT FROM WHERE THE PAYMENTS HAVE ALREADY BEEN FILED DURING THE COURSE OF ASSESSMENT. DURING THE COURSE OF SEARCH ALSO NO ADV ERSE MATERIAL OR ANY KIND OF ADVERSE PAPER HAVE BEEN FOU ND FOR GIVING THE ANY KIND OF OWN MONEY. AS REGARD THE ONE OF THE AGREEMENT AS PER PAGES 34 & 35 OF ANNEXURE A-9 IT I S BEING SUBMITTED THAT THESE PAPER DOES NOT BELONG TO THE A PPLICANT GROUP AND ALSO THERE IS NO NAME OF THE APPLICANT GR OUP IN THIS AGREEMENT. THIS AGREEMENT ALSO INDICATES THAT THIS IS A CANCELLED AGREEMENT WHEREIN THERE ARE MANY CROSS HA VE BEEN MENTIONED IN THEREIN. IT IS PERTINENT TO MENTION HE RE THAT THE SAID DOCUMENT I.E. PAGE 34 & 35 HAVE NOT BEEN CONFR ONTED AT THE TIME OF SEARCH AND ALSO DURING THE POST SEARCH ENQUIRIES. THESE DOCUMENTS DOES NOT PERTAINS TO THE APPLICANT AND WE DO NOT KNOW FROM WHERE THIS DOCUMENT HAVE BEEN COME ON MY BUSINESS PREMISES. THEREFORE FROM THE ABOVE SAID FA CTS AND CIRCUMSTANCES NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. MOREOVER WE WOULD ALSO LIKE TO MENTION THAT ON THE BASIS OF THIRD PARTY DOCUMENTS IN WHICH OUR COMPANY NAME OF THEIR DIRECTORS NAME IS NOT MENTIONED ANYWHERE AND THE DO CUMENTS IS A CROSSED DOCUMENTS AND EACH PAGE IS CROSSED AND CANCELLED. THE COMPANY RECORDED THE ACTUAL AMOUNT I N THE LAND ACCOUNT AS PAID TO THE PARTIES FROM WHOM THE LAND W AS PURCHASED. OUT OF WHICH 4 BIGHA 10 BISWA WAS PURCHA SED FROM SH. SUMIT GUPTA S/O SH. BHOLA NATH AS PER THE TITLE DEED FOR RS. 5,62,500/-. 10 THE DOCUMENT AS PER PAGE 34 & 35 IS BETWEEN THE THI RD PARTIES AND NO WHERE THE NAME OF COMPANY OR GROUP M EMBERS IS WRITTEN OR SIGNED BY ANY OF THE DIRECTOR OF GRO UP MEMBER. IT IS ALSO PERTINENT TO MENTION THAT WE ALSO HAVE PURC HASED THE LAND FROM THE PERSONS OTHER THAN MENTIONED IN PAGE NO.34 AND 35 OF ANNEXURE A9. MOREOVER THE CROSS DOCUMENTS WERE NOT CONFRONTED TO US DURING THE COURSE OF SEARCH AND POST SEARCH ENQUIRI ES. THERE IS NO SIGN OF ANY DIRECTOR OR GROUP MEMBER ON THE PAGE NO. 34 &. 35.' 4. THE ASSESSING OFFICER AFTER CONSIDERING SUBMISSI ONS OF THE APPELLANT OBSERVED THAT AS PER THE SEIZED DOCUMENT REFERRED TO ABOVE, THE AGREEMENT WAS FOR PURCHASED OF LAND BY S H. BHOLA NATH FROM SH. PAWAN KUMAR, SH. RAJINDER PURI AND SH. RAM MURTI AND THE LAND WAS ULTIMATELY TRANSFERRED TO SH. SUMIT GUPTA S/O SH. BHOLA NATH AT THE RATE OF RS. 1,25,000/- PER BIGHA WHEREA S THE RATE OF LAND AS PER AGREEMENT REFERRED TO WAS RS.6,50,000/- PER BIGHA. THE ASSESSING OFFICER, THEREFORE PROCEEDED TO CONCLUDE THAT THE ASSESSEE HAD PAID AN AMOUNT OF RS. 23,62,500/- FOR THE PURCH ASE OF SAID LAND LEADING TO AN ADDITION THEREOF UNDER SECTION 69B OF THE I.T. ACT 1961. 5. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LEARNED CIT (APPEALS) AND THE SUBMISSIONS OF THE ASSESSEE ARE R EPRODUCED IN THE APPELLATE ORDER, WHICH READS AS UNDER : 'THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGIN G THE ADDITION OF RS.23,62,500/- U/S 69B OF THE INCOME TAX ACT, 1961. THE BRIEF FACT S OF THE CASE ARE THAT THERE WAS SEARCH AND SEIZURE OPERATION U/S 132 ON 30.06.2 010 AND DURING THE COURSE OF SEARCH AND SEIZURE, ONE CANCELLED/CROSSED ALLEGED A GREEMENT RELATING TO SOME OTHER PARTY WITH WHICH THE ASSESSEE HAS NOTHING TO DO WAS FOUND AND IN THIS AGREEMENT, THERE IS NO NAME OF THE ASSESSEE I.E. R. P. IMPORT AND EXPORT PVT. LTD. OR ITS DIRECTORS AS- PER COPY OF THE AGREEMENT BEIN G ENCLOSED HEREWITH AND NEITHER THE ASSESSEE HAD PURCHASED THE LAND FROM SH. BHOLA NATH. THE ASSESSING OFFICER HAS CONCLUDED THAT SINCE THE AGREEMENT IS OF THE SA ME AREA AND THE ASSESSEE MUST HAS APPLIED TO SAME RATE AS MENTIONED IN THAT AGREE MENT ON THE PURCHASE OF LAND BY THE COMPANY FROM SHRI SUMIT GUPTA ONLY. THE SEQUENCE OF EVENTS AND THE FACTS OF THE CASE AR E AS UNDER: - I. THE ASSESSEE HAD PURCHASED 46 BIGHA 9 BISWA OF LAND FROM THE FOLLOWING PERSONS:- SL.NO. NAME OF THE PERSON AREA AMOUNT 1. MUNISH KUMAR S/O SH.SUBHASH KUMAR, SALANI MANDI GOBINDGARH, HARISH KUMAR S/O RAM PURTI VILLAGE SALANY TEHSIL AMLOH. 6 BIGHA 15,00,000.00 2. RAM MURTI S/O SH.RAGHU NATH, RAJINDER PURI S/O HARI DEV PURI PAWAN KUMAR S/O MADAN GOPAL WARD NO.11, MANDI GOBINDGARH 10 B IGHA 13,75,000.00 3. DILBAG RAI S/O BABU RAM UMESH KUMAR S/O JAGDISH RAI RAMESH KRISHAN S/O KISHAN LAL, WARD NO.7, MANI GOBINDGARH 13 BIGHA 10 BISWA 18,42,500.00 4. RAJINDER PURI S/O HARI DEV PURI PREM CHAND S/O RAM MURTI DEEPAK KUMAR S/O RAM MURTI PAWAN KUMAR S/O MADAN GOPAL 12 BIGHA 9 BISWA 15,56,500.00 11 MANDI GOBINDGARH 5. SUMIT GUPTA S/O BHOLA NATH NEAR POST OFFICE G.T. ROAD SETH WALA, MOHALA KHANNA 4 BIGHA 10 BISWA 5,62,500.00 TOTAL 46 BIGHA 9 BISWA 68,36,500.00 II. THE PAYMENT OF THE CONSIDERATION FOR THE PURCHA SE OF LAND WAS MADE IN CASH WITHDRAWAL FROM THE BANK ACCOUNT OF TH E COMPANY. III. DURING THE COURSE OF SEARCH, NO EVIDENCE OR AN Y PAPER HAVE BEEN FOUND RELATING TO ABOVE CONSIDERATION AND EVEN NO EVIDENCE OF ANY PAYMENT HAVING BEEN MADE OVER AND ABOVE THE CON SIDERATION AS MENTIONED IN THE REGISTRATION DEED HAD BEEN FOUND. IV. THE SAID CROSSED/CANCELLED AGREEMENT WAS NEITHE R CONFRONTED DURING THE COURSE OF SEARCH OR DURING POST SEARCH E NQUIRIES. V. THERE IS NO EVIDENCE WORTH THE NAME OR ANY OTHE R EVIDENTIARY VALUE THAT THE ASSESSEE HAD MADE ANY PAYMENT OVER A ND ABOVE THE REGISTRATION CONSIDERATION. VI. THE STATEMENT OF SH. BHOLA NATH, WHO IS NEITHE R A SELLER TO THE SAID LAND WAS RECORDED BY THE ASSESSING OFFICER, WH O IS ONE OF THE PARTY TO THE SEIZED/CANCELLED AGREEMENT HAD NOT STA TED ANYTHING ABOUT ANY LINK OR CONNECTION WITH THE ASSESSEE COMP ANY OR ITS DIRECTORS NOR HE HAD STATED HAVING RECEIVED ANY PAY MENT OVER AND ABOVE THE CONSIDERATION. VII. THE ASSESSEE HAD NO LINK OR CONNECTION OR ANY RELATION WITH SH. BHOLA NATH AND WITH SH. SUMIT GUPTA, FROM WHOM THE ASSESSEE HAD PURCHASED THE LAND IN QUESTION. VIII. THE ASSESSING OFFICER HAD MADE THE BASIS OF A PPLICATION OF RATE OF PURCHASE OF LAND FROM SH. SUMIT GUPTA IN RESPECT OF 4 BIGHA & 10 BISWA OF LAND ONLY. THE ASSESSING OFFICER HAS ACCEP TED THE SALE CONSIDERATION AS MENTIONED IN THE REGISTRATION DEED IN RESPECT OF LAND PURCHASED IN THE SAME AREA FROM SH. MUNISH KUM AR. SH. RAM MURTI. SH. DILBAG RAI AND SH. RAIINDER PURI AND THE AREA IS ADLOININQ THE SAME AREA AND, THEREFORE, THE RELIANCE BY THE ASSESSING OFFICER ON THE SEIZED/CANCELLED AGREEMENT NOT RELATING TO THE ASSESSEE CONCERNED AND FROM WHOM EVEN NO LAND W AS PURCHASED AND HAD MADE THE ADDITION WITHOUT ANY REASON OR SUB STANCE. THE ASSESSING OFFICER HAS ACCEPTED THE CONSIDERATION IN RESPECT OF THE PURCHASES OF LAND FROM OTHER PERSONS IN THE SAME AR EA. IX. THE HON'BLE SUPREME COURT IN THE CASE OF SH. K. P. VARGHESE AS REPORTED IN 131 ITR 597 HAS HELD THAT AMOUNT MENTIO NED IN THE REGISTERED SALE DEED HAS TO BE TAKEN INTO CONSIDERA TION UNTIL OR UNLESS SOME OTHER EVIDENCE IS FOUND THAT ANY CONSID ERATION HAS BEEN PASSED OVER AND ABOVE THE REGISTERED CONSIDERATION. THE RATE OF THE LAND ALSO DEPENDS UPON MANY FACTORS AND, AS SUCH, T HE WHOLE BASIS OF MAKING THE ADDITION BY THE ASSESSING OFFICER IS CONTRADICTORY IN THE SENSE THAT THE ASSESSING OFFICER HAS ACCEPTED T HE CONSIDERATION AS MENTIONED IN REGISTERED DEED IN RESPECT OF LAND PURCHASED FROM SARVASHRI MUNISH KUMAR, RAM MURTI, DILBAG RAI AND S H. RAJINDER PURI AND THERE IS NO REASON NOT TO ACCEPT THE SAME CONSIDERATION OF THE LAND PURCHASED FROM SH. SUMIT GUPTA. BESIDES, THAT THE FOLLOWING FACTS NEED TO BE TAKEN INTO CONSIDERATION: A. THE SALE DEED HAS NOT BEEN CHALLENGED IN THE SE NSE THAT IT HAS NOT BEEN OBTAINED BY ANY FRAUD. B. THERE IS NO EVIDENCE THAT THE SELLER OF PLOT HA D RECEIVED ANY CONSIDERATION OVER AND ABOVE THE REGISTERED CONSIDE RATION AND 12 NEITHER ANY EVIDENCE HAS BEEN FOUND DURING THE COUR SE OF SEARCH, WHICH WAS CARRIED OUT AT NUMBER OF PLACES. C. THERE IS NO EVIDENCE THAT THERE WAS ANY PHYSICA L MOVEMENT OF MONEY FROM THE PURCHASER TO SELLER. D. THE SELLER HAD DISCHARGED THE ONUS BY ADDUCING I N EVIDENCE THAT THE SALE HAD BEEN EXECUTED AS PER REGISTERED C ONSIDERATION AND THERE IS NO EVIDENCE OF PAYMENT OVER AND ABOVE THE SALE CONSIDERATION. E. THE VALIDITY OF SALE DEED AND ITS GENUINENESS HA S NOT BEEN CHALLENGED. F. IT IS A WELL ESTABLISHED PROPOSITION THAT D IRECT DOCUMENTARY EVIDENCE, IN THE SHAPE OF VALIDLY EXECUTED SALE DEE D ,IF PITTED AGAINST THE MERE ORAL EVIDENCE, THE DOCUMENTAR Y EVIDENCE WOULD CERTAIN PREVAIL. THIS VIEW IS SUPPORTED BY THE HON 'BLE SUPREME COURT, IN THE CASE OF MOTORS AND GENERAL STORES (P) LTD. (1967) 6 6 ITR 692 (SC),WHEREIN IT HAS BEEN HELD AS UNDER: DEPRECIATION BALANCING CHARGE PRESENCE OF MONEY C ONSIDERATION IS ESSENTIAL ELEMENT IN TRANSACTION OF SALE AND WHE RE CONSIDERATION IS NOT MONEY BUT SOME OTHER VALUABLE CONSIDERATION IT MAY BE EXCHANGE OR BARTER BUT NOT SALEASSESSEE TRANSFE RRED CINEMA THEATRE FOR RS. 1,20,000 IN EXCHANGE OF SHARES O F A SUGAR MILL OF EQUIVALENT AMOUNT TRANSACTION IS NOT SALE AND SEC OND PROVISO TO S. 10(2)(VII) IS NOT ATTRACTED.' G. THE ASSESSING OFFICER HAS ACCEPTED THE SALE ON T HE BASIS OF REGISTERED SALE DOCUMENT, BUT HAS NOT ACCEPTED THE SALE CONSIDERATION. THUS, THE ASSESSING OFFICER DISREGAR DED THE VALID DOCUMENTARY EVIDENCE AND HAD UNDERTAKEN THE EXERCIS E OF REWRITING OF THE SALE DEED AND SUBSTITUTING THE SALE CONSIDER ATION WHICH HE CANNOT DO. H. SIMILARLY, THE RELIANCE IS BEING PLACED ON THE J UDGMENT OF PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V/S CHAND NI BHOCHAR (2010) 323 ITR 510, IN WHICH, IT HAS BEEN HELD AS U NDER: 'CAPITAL GAINS COMPUTATION ACTUAL SALE CONSIDERAT ION VIS-A-VIS VALUE TAKEN BY STAMP DUTY AUTHORITIES THERE IS CAT EGORICAL FINDING RECORDED BY THE CIT(A) THAT VALUE ADOPTED OR ASSESS ED BY ANY AUTHORITY OF THE STATE GOVERNMENT FOR THE PURPOSE O F PAYMENT OF STAMP DUTY IN RESPECT OF LAND OR BUILDING CANNOT BE TAKEN AS SALE CONSIDERATION RECEIVED FOR THE PURPOSE OF S. 48 TR IBUNAL RIGHTLY HELD THAT VALUATION DONE BY ANY STATE AGENCY FOR TH E PURPOSE OF STAMP DUTY WOULD NOT IPSO FACTO SUBSTITUTE THE ACTU AL SALE CONSIDERATION AS BEING PASSED ON TO THE SELLER BY T HE PURCHASER IN THE ABSENCE OF ANY ADMISSIBLE EVIDENCE AO IS OBLIG ED TO BRING ON RECORD POSITIVE EVIDENCE SUPPORTING THE PRICE ASSES SED BY THE STATE GOVERNMENT FOR THE PURPOSE OF STAMP DUTY CIT(A) AN D THE TRIBUNAL HAVE ACCEPTED SALE CONSIDERATION DEPICTED IN SALE D EED ASSESSEE HAS DISCHARGED THE BURDEN OF PROVING THE SALE CONSI DERATION AS PROJECTED IN THE SALE DEED NO SUBSTANTIAL QUESTION OF LAW ARISES CIT VS. SMT. RAJ KUMARIVIMLA DEVI (2005) 279 ITR 360 (ALL) CONCURRED WITH' I. THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V/S SATINDER KUMAR (2001) 250 ITR 484 HAS CLEARLY HELD THAT THE ASSESSING OFFICER IS NOT COMPETENT TO MAKE ADDITION IN ABSENCE OF CREDIBLE EVIDENCE, IN RESPECT OF INVESTMENT MADE OV ER AND ABOVE THE CONSIDERATION RECORDED, IN THE SALE DEED. THE HEAD NOTE OF THE DECISION IS REPRODUCED HEREUNDER: 13 APPEAL TO HIGH COURT - SUBSTANTIAL QUESTION OF LAW - SEARCH AND SEIZURE - ADDITIONS TO INCOME - INCOME FROM UNDISC LOSED SOURCES - NO MATERIAL EVIDENCE TO ESTABLISH THAT ASSESSEE MAD E INVESTMENT OVER AND ABOVE THAT RECORDED IN SALE DEED - TRIBUNA L DELETING ADDITIONS MADE SECTION 69 - JUSTIFIED - NO QUESTION OF LAW ARISES - INCOME TAX ACT, 1961 SS. 69, 260A.' J. SIMILARLY, RELIANCE IS BEING PLACED ON THE FOLLO WING JUDGMENT OF CIT V/S SMT. NILOFER I. SINGH, IN WHICH, IT HAS BEE N HELD AS UNDER: 'CAPITAL GAINSCOMPUTATIONFULL VALUE OF CONSIDERAT ION EXPRESSION 'FULL VALUE OF CONSIDERATION' USED IN S. 48 DOES NOT HAVE ANY REFERENCE TO THE MARKET VALUE BUT ONLY TO THE C ONSIDERATION REFERRED TO IN THE SALE DEEDS AS THE SALE PRICE OF THE ASSETS WHICH HAVE BEEN TRANSFERREDCIT VS. GILLANDERS ARBUTHNOT & CO. 1973 CTR (SC) 136 : (1973) 87 ITR 407 (SC) AND CIT VS. GEORGE HENDERSON & CO. LTD. (1967) 66 ITR 622 (SC) FOLLOWED.' K. CIT V/S GILLANDERS ARBUTHNOT & CO. (1973) 87 ITR 407 (SC), WHEREIN, IT HAS BEEN HELD AS UNDER: 'CAPITAL GAINS - FULL VALUE OF THE CONSIDERATION IN SALE - WHERE FIRST PROVISO TO S. 12B(2) NOT ATTRACTED, FULL VALUE MEAN S SALE PRICE ACTUALLY RECEIVED.' I. LASTLY, WE RELY TO THE JUDGMENT OF M/S RAJDEEP B UILDERS V/S ACIT, CIRCLE, SHIMLA OF ITAT, CHANDIGARH BENCH, CHA NDIGAH, IN WHICH ON SIMILAR FACTS AND AFTER DETAILED ANALYSIS OF VARIOUS JUDGMENTS INCLUDING PUNJAB &. HARYANA HIGH COURT, I T HAS BEEN HELD THAT THE SALE CONSIDERATION AS PER REGISTERED DOCUMENT HAS TO BE TAKEN INTO CONSIDERATION, WHILE DELIVERING THE A BOVE JUDGMENT, THE HON'BLE BENCH HAS RELIED UPON THE ABOVE JUDGMEN TS AS WELL AND AS SUCH, THE VERY BASIS AND MAKING THE ADDITION IS FAULTY.' 4. RELIANCE IS ALSO BEING PLACED IN THE FOLLOWING JUDGMENTS:- A. INCOME TAX OFFICER VS M/S NEW P. GRAND RESORTS ITA NO.526/CHD/2009, ITAT, CHANDIGARH BENCH, CHANDI GARH B. ACIT VS RUPEN KAUSHAL IN ITA NO. 866/CHD/2009,ITAT, BENCH, CHANDIGARH BENCH, CHANDIG ARH. IN VIEW OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE ADDITION AS MADE BY THE ASSESSING OFFICER DESERVES TO BE DELETE D AND OBLIGE. 6. THE LEARNED CIT (APPEALS) CONSIDERING THE SUBMIS SIONS OF THE ASSESSEE AND MATERIAL ON RECORD DELETED THE ADDITIO N. THE FINDINGS OF THE LEARNED CIT (APPEALS) IN PARA 4 OF THE APPEL LATE ORDER ARE REPRODUCED AS UNDER : 4. I HAVE CONSIDERED THE BASIS OF ADDITION MADE B Y THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON TH E ISSUE. THE ASSESSING OFFICER HAS RELIED UPON A COPY OF AGR EEMENT TO SELL SEIZED DURING THE COURSE OF SEARCH OPERATION W HICH ON THE FACE OF IT HAS BEEN CANCELLED BY MARKING CROSS WHIC H SHOWS THAT THE SAID AGREEMENT HAD NOT BEEN PROCEEDED WITH AS RECORDED. SECONDLY THE AGREEMENT IN QUESTION DOES N OT HAVE ANY IDENTIFICATION OF THE LAND PROPOSED TO BE SOLD. THIS MEANS THAT ONLY A GENERAL AREA OF VILLAGE HAS BEEN WRITTE N AND NO SPECIFIC PROPERTY IN THE SAID VILLAGE HAS BEEN IDEN TIFIED IN THE AGREEMENT TO SELL. THE NAME OF THE BUYER AND THE SE LLER IS SPECIFIED AND THE PROPOSED SALE CONSIDERATION HAS A LSO BEEN RECORDED AS RIGHTLY OBSERVED BY THE ASSESSING OFFIC ER, BUT IN THE ABSENCE OF THE MOST IMPORTANT FACTOR I.E. PROPE RTY TO BE BOUGHT OR SOLD BEING NOT IDENTIFY, THE AGREEMENT DO ES NOT LEND 14 CREDENCE TO THE REST OF THE MATTER. THE ASSESSEE IS NEITHER BUYER NOR SELLER OF THE SAID OF THE UNIDENTIFIED PI ECE OF THE PROPERTY AS PER AGREEMENT TO SELL AND IN THE GIVEN FACTS ARE CIRCUMSTANCES OF THE CASE AS HIGHLIGHTED ABOVE, IT IS HIGHLY IN PROPER TO ADOPT THE SALE CONSIDERATION ON THE BASIS OF THIS AGREEMENT TO SELL. IT IS ALSO SEEN THAT THE APPELLA NT HAD PURCHASED THE FOLLOWING REAL ESTATE MEASURING 46 BI GHA 9 BISWA OF LAND FROM THE FOLLOWING PERSONS:- SL.NO. NAME OF THE PERSON AREA AMOUNT 1. MUNISH KUMAR S/O SH.SUBHASH KUMAR, SALANI MANDI GOBINDGARH, HARISH KUMAR S/O RAM PURTI VILLAGE SALANY TEHSIL AMLOH. 6 BIGHA 15,00,000.00 2. RAM MURTI S/O SH.RAGHU NATH, RAJINDER PURI S/O HARI DEV PURI PAWAN KUMAR S/O MADAN GOPAL WARD NO.11, MANDI GOBINDGARH 10 BIGHA 13,75,000.00 3. DILBAG RAI S/O BABU RAM UMESH KUMAR S/O JAGDISH RAI RAMESH KRISHAN S/O KISHAN LAL, WARD NO.7, MANI GOBINDGARH 13 BIGHA 10 BISWA 18,42,500.00 4. RAJINDER PURI S/O HARI DEV PURI PREM CHAND S/O RAM MURTI DEEPAK KUMAR S/O RAM MURTI PAWAN KUMAR S/O MADAN GOPAL MANDI GOBINDGARH 12 BIGHA 9 BISWA 15,56,500.00 NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEA RCH OPERATION FROM THE ASSESSEE WHICH WITH REGARD TO ANY UNACCOUN TED PAYMENT INVOLVED IN THE PURCHASE OF AFOREMENTIONED PROPERTI ES. IT IS ALSO A MATTER OF FACT THAT STATEMENT OF SH. BHOLA NATH WHO IS ONE OF THE PARTY TO THE SEIZED/CANCELLED AGREEMENT TO SELL AND HE HAS NOT STATED ANY LINK OR CONNECTION WITH THE ASSESSEE COM PANY. IT IS FURTHER SEEN THAT THE ASSESSING OFFICER HAD APPLIED SAID PURCHASE RATE ON THE BASIS OF AGREEMENT TO SELL ONLY IN RESP ECT OF 4 BIGHA & 10 BISWA OF LAND AND THE SALE CONSIDERATION IN RESP ECT OF REST OF THE PURCHASES MADE IN THE SAME AREA HAS BEEN ACCEPTED A S PER THE REGISTERED DEED. THE RELIANCE PLACED BY THE ASSESSI NG OFFICER ON THE AGREEMENT TO SELL WHICH IS CANCELLED AS ON THE DATE OF SEIZURE AND DOES NOT RECORD THE PROPERTY TO BE PURCHASED OR SOL D, IS MISPLACED AND NOT WARRANTED. THE SALE CONSIDERATION AS RECORD ED IN THE REGISTERED DEED CAN BE SUBSTITUTED BY ANOTHER HIGHE R FIGURE ONLY WHEN THERE IS SPECIFIC EVIDENCE DIRECT OR CIRCUMSTA NTIAL TO CONTRADICT THE SAME. THE HON'BLE APEX COURT IN THE CASE OF K.P . VARGHESE 131 ITR 597 IS DIRECTLY ON THE ISSUE. THE HON'BLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT V/S SATINDER KUMAR (2001) 250 ITR 484 HAS ALSO CLEARLY HELD THAT THE ASSESSING OFFICER WAS NO T COMPETENT TO MAKE ADDITION IN ABSENCE OF CREDIBLE EVIDENCE, IN R ESPECT OF INVESTMENT MADE OVER AND ABOVE CONSIDERATION RECORD ED, IN THE SALE DEED. THE EVIDENCE RELIED UPON BY THE ASSESSING OFF ICER IN THE FORM OF AGREEMENT TO SELL, BECAUSE OF VARIOUS SHORT COMI NGS HIGHLIGHTED ABOVE, CANNOT BE SAID TO BE CREDIBLE SO AS TO BE TA KEN AS THE BASIS OF SUBSTITUTING THE SALE CONSIDERATION AS RECORDED IN THE REGISTERED DEED. IN THE CIRCUMSTANCES THE ADDITION MADE BY THE ASSESSING OFFICER IS DIRECTED TO BE DELETED. IN THE RESULT APPEAL IS ALLOWED. 7. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE ASSESSING O FFICER HAS RELIED UPON THE COPY OF THE AGREEMENT TO SELL SEIZED DURIN G THE COURSE OF SEARCH OPERATION, WHICH HAS ADMITTEDLY BEEN CANCELL ED BY THE PARTIES BY MARKING CROSS ON THE SAME. IT IS ALSO A DMITTED FACT THAT THE SAID AGREEMENT IN QUESTION DID NOT HAVE ANY PRO PER IDENTIFICATION OF THE LAND PROPOSED TO BE SOLD. N O SPECIFIC PROPERTY IS MENTIONED IN THE SAID AGREEMENT FOR THE PURPOSE OF SALE. NO EVIDENCE HAS BEEN BROUGHT ON RECORD IF THE SAID AGR EEMENT TO SELL WAS ACTED UPON BY THE CONCERNED PARTIES. THE SEL LER TO THE 15 AGREEMENT TO SELL OR THE WITNESSES TO THE AGREEMENT TO SELL HAVE NOT BEEN EXAMINED EITHER BY THE SEARCH PARTY OR THE ASS ESSING OFFICER. THE ASSESSEE IS ADMITTEDLY NOT PARTY TO THE AGREEME NT TO SELL IN QUESTION AND NONE OF THE PERSONS RELATED TO THE ASS ESSEE COMPANY ALSO CONNECTED WITH THE SAID AGREEMENT IN QUESTION. NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEARCH TO PROVE IF ANY OVER AND ABOVE CONSIDERATION HAVE BEEN PAID IN RESPECT OF AN Y PROPERTY PURCHASED BY THE ASSESSEE. DURING THE COURSE OF S EARCH ALSO, NO ADVERSE MATERIAL WAS FOUND AGAINST THE ASSESSEE TO JUSTIFY ANY UNACCOUNTED INVESTMENT MADE IN ANY PROPERTY. SIN CE THE AGREEMENT IN QUESTION IS CANCELLED DOCUMENT AND DID NOT RELATE TO THE ASSESSEE DIRECTLY OR INDIRECTLY, THEREFORE, THE ASSESSING OFFICER HAS MERELY INFERRED THAT THE ASSESSEE MIGHT HAVE PA ID SOME MORE CONSIDERATION OVER AND ABOVE WHAT IS STATED IN THE REGISTERED DOCUMENTS. IT WAS MERELY THE SUSPICION OF THE ASS ESSING OFFICER TO MAKE ADDITION AGAINST THE ASSESSEE. HOWEVER, IT I S WELL SETTLED LAW THAT SUSPICION, WHATSOEVER MAY BE STRONG, CANNO T TAKE PLACE OF LEGAL PROOF. IN THE ABSENCE OF ANY ADVERSE MATERI AL AGAINST THE ASSESSEE, WE DO NOT FIND ANY JUSTIFICATION TO INTER FERE IN THE ORDER OF THE LEARNED CIT (APPEALS) IN DELETING THE ADDITION. THE DEPARTMENTAL APPEAL THUS, HAS NO MERIT AND IS LIABL E TO BE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF DECEMBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 TH DECEMBER, 2014 5. THE LD. PRINCIPAL CIT (CENTRAL) LUDHIANA, AFTER PASSING OF THE ORDER BY ITAT DATED 12.12.2014 ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE UNDER SECTION 263 OF THE INCOME TAX ACT DATED 08.01.2015 STATING THE SAME FACTS AND NOTED THAT DOCUMENT PAGE NO. 34-35 OF ANNEXURE A-9 WAS SEIZED FROM M/S NARAIN & COMPANY WHICH IS SALE AGREEMENT OF THE LAND BETWEEN SHRI RAJINDER PURI & OTHERS AND SHRI BHOLA NATH. THE AS SESSING OFFICER MADE ADDITION OF RS. 23,62,500/- IN RESPECT OF 4 BIGHA 1 0 BISWA PURCHASED BY THE ASSESSEE FROM ONE SHRI SUMIT GUPTA. HOWEVER, NO ADD ITION IN RESPECT OF REMAINING LAND I.E. ABOUT 44 BIGHA HAS BEEN MADE BY THE ASSESSING OFFICER EVEN THOUGH, LAND IS PART OF 49 BIGHA IN THE SAME V ILLAGE WHICH IS EVIDENT FROM THE SEIZED PAPER. THE PCIT ALSO NOTED IN THE SHOW CAUSE NOTICE THAT COPY OF THE SAME AGREEMENT WHICH IS NOT CANCELLED A ND IS ATTESTED BY NOTARY PUBLIC, HAS BEEN RECEIVED FROM INDEPENDENT SOURCES IN THE COURSE OF ASSESSMENT PROCEEDINGS. THIS DOCUMENT SUPPLEMENT TH E SHORTCOMINGS IN THE SEIZED DOCUMENT AND AUTHENTICITY OF THIS DOCUMENT W AS REQUIRED TO BE EXAMINED AND ADDITION OF RS. 2,31,00,000/- WAS REQU IRED TO BE MADE FOR ENTIRE PROPERTY. SINCE THE COPY OF THE AGREEMENT I N QUESTION WAS RECEIVED FROM THE INDEPENDENT SOURCES AND IT IS NOT EXAMINED BY THE ASSESSING OFFICER, THEREFORE, ORDER OF THE ASSESSING OFFICER DATED 25.03.2013 WAS CONSIDERED ERRONEOUS IN SO FAR AS PREJUDICIAL TO TH E INTEREST OF REVENUE. 6. THE ASSESSEE SUBMITTED BEFORE LD. PRINCIPAL CIT (CENTRAL) THAT SAME SEIZED PAPER WAS CONSIDERED BY THE ASSESSING OFFICE R AT ASSESSMENT STAGE AND LD. CIT(APPEALS) HAVE DELETED THE ENTIRE ADDITI ON AND THE TRIBUNAL ALSO DISMISSED DEPARTMENTAL APPEAL. THEREFORE, NO ACTIO N CAN BE TAKEN UNDER SECTION 263 OF THE INCOME TAX ACT ON THE SAME MATTE R IN ISSUE. THE PCIT, HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND FOUND THAT NO ADDITION OF THE REMAINING LAND I.E. ABOUT 44 BIGHA HAS BEEN MADE BY THE ASSESSING OFFICER WHICH IS FORMING PART OF THE SAME VILLAGE AND ADDITION IS REQUIRED TO BE MADE OF RS. 2,31,00,000/-. COPY OF THE SEIZED DOCUMENT WHICH IS NOT CANCELLED, HAS BEEN RECEIVED FROM INDE PENDENT SOURCES. AUTHENTICITY AND CORRECTNESS OF THE SAME HAS NOT BE EN EXAMINED BY THE 16 ASSESSING OFFICER. THEREFORE, ORIGINAL ASSESSMENT ORDER WAS SET ASIDE AND ASSESSING OFFICER WAS DIRECTED TO MAKE THE ASSESSME NT AFRESH DENOVO. 7. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT. THE LD. COUNSEL FOR THE ASSESS EE REFERRED TO PB-1 WHICH IS SHOW CAUSE NOTICE ISSUED BY ASSESSING OFFICER AT ASSESSMENT STAGE AND AT SR.NO. 37, ASSESSING OFFICER ASKED THE EXPLANATI ON OF THE ASSESSEE WITH REGARD TO PURCHASE OF LAND OF 49 BIGHA IN MANDI GOB INDGARH AND ALSO CALLED FOR THE DETAILS OF THE LANDS PURCHASED THROUGH REGI STERED SALE DEEDS. PB-6 IS REPLY OF THE ASSESSEE BEFORE ASSESSING OFFICER I N WHICH ASSESSEE EXPLAINED THAT LAND OF 49 BIGHA SITUATED AT VILLAGE SALANI WAS PURCHASED BY ASSESSEE AND TOTAL AMOUNT PAID BY ASSESSEE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATIO N DEED, COPIES OF THE DOCUMENTS WERE ALSO FILED AND DETAILS OF THE PERSON S FROM WHOM PROPERTIES HAVE BEEN PURCHASED WAS ALSO EXPLAINED. THE ASSESS EE ALSO EXPLAINED THE SEIZED PAPER IN QUESTION DID NOT BELONG TO THE ASSE SSEE AND EVEN NO NAME OF THE ASSESSEE HAS BEEN MENTIONED IN THE SAME SEIZED DOCUMENT. SINCE THE SEIZED DOCUMENT ALSO INDICATES THAT IT IS CANCELLED AGREEMENT AND IT DID NOT BELONG TO THE ASSESSEE, THEREFORE, NO ADDITION COUL D BE MADE ON THE BASIS OF THE SAME. PB-10 IS LAND ACCOUNT SHOWING PURCHASE O F LAND FOR RS. 68,36,500/-. PB-11-58 ARE REGISTERED SALE DEEDS AN D PB-39 BELONG TO SHRI SUMIT GUPTA. PB-61-62 IS THE SEIZED PAPER IN QUESTI ON WHICH IS CANCELLED DOCUMENT AS WAS FOUND DURING THE COURSE OF SEARCH. HE HAS SUBMITTED THAT ON THE SAME MATTER IN ISSUE, LD. CIT(APPEALS) DELET ED THE ENTIRE ADDITION VIDE ORDER DATED 03.09.2013 AND THE ORDER OF THE LD. CIT (APPEALS) HAS BEEN CONFIRMED BY THE ITAT CHANDIGARH BY DISMISSING DEPA RTMENTAL APPEAL VIDE ORDER DATED 12.12.2014 (SUPRA). THE LD. COUNSEL FO R THE ASSESSEE, THEREFORE, SUBMITTED THAT SINCE SEIZED DOCUMENT DID NOT BELONG TO THE ASSESSEE AND SAME IS REFERRED TO BY THE LD. PCIT IN THE ORDER UN DER SECTION 263 OF THE ACT, THEREFORE, LD. PCIT, ON THE SAME MATTER IN ISSUE SH OULD NOT BELIEVE COPY OF THE SAME SEIZED PAPER. SINCE CANCELLED SEIZED PAPE R WAS RECOVERED DURING THE COURSE OF SEARCH, THEREFORE, COPY OF THE SAME H AS NO RELEVANCE, MORE SO WHEN SAME DID NOT RELATE TO THE ASSESSEE. THE ASSE SSING OFFICER EXAMINED THE ENTIRE ISSUE AT ASSESSMENT STAGE AND TOOK ONE O F THE POSSIBLE VIEW BASED ON THE SAME SEIZED DOCUMENT THEREFORE, ON MERE DIFF ERENCE OF OPINION, PCIT SHOULD NOT HAVE RESORTED TO ACTION UNDER SECTION 26 3 OF THE ACT. HE HAS FURTHER SUBMITTED THAT THE SAME ISSUE, PRIOR TO THE PROCEEDINGS UNDER SECTION 263 OF THE ACT HAVE BEEN EXAMINED BY THE LD. CIT(AP PEALS) AND THE ITAT CHANDIGARH BENCH, THEREFORE, ORDER OF THE ASSESSING OFFICER MERGED WITH THE ORDER OF THE APPELLATE AUTHORITIES AND AS SUCH, PRI NCIPAL CIT HAS NO JURISDICTION TO INVOKE PROCEEDINGS UNDER SECTION 26 3 OF THE ACT. 7(I) ON THE OTHER HAND, LD. DR RELIED UPON IMPUGNED ORDER AND SUBMITTED THAT COPY OF THE SAME SEIZED PAPER IS RELEVANT AND ASSESSING OFFICER MERELY MADE ADDITION ON THE BASIS OF 4 BIGHA. FINDINGS OF ITAT ALSO SHOW THAT ASSESSING OFFICER DID NOT MAKE INDEPENDENT ENQUIRY. UN-CANCELLED COPY OF THE SEIZED PAPER IS NOT PART OF THE RECORD OF THE A SSESSING OFFICER, HOWEVER, SAME IS MENTIONED IN THE SCRUTINY PROCEEDINGS FOR M AKING REFERENCE FOR INITIATING PROCEEDINGS UNDER SECTION 263 OF THE INC OME TAX ACT. THE LD. DR, THEREFORE, SUBMITTED THAT THE ORDER OF THE ASSESSIN G OFFICER WAS RIGHTLY HELD TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INT EREST OF REVENUE BECAUSE ASSESSING OFFICER SHOULD HAVE MADE ENTIRE ADDITION INCLUDING 44 BIGHA OF THE LAND PURCHASED IN THE SAME VILLAGE. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS. SECTION 2 63 OF THE INCOME TAX ACT READS AS UNDER : 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MA Y CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE [ASSESSING] OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH I NQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLIN G THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION, 17 (A) AN ORDER PASSED [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT CO MMISSIONER [OR DEPUTY COMMISSIONER] OR THE INCOME-TAX OFFICER ON THE BASI S OF THE DIRECTIONS ISSUED BY THE [JOINT] COMMISSIONER UNDER SECTION 144A ; (II) AN ORDER MADE BY THE [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICE R CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTION 120 ; (B) 'RECORD' [SHALL INCLUDE AND SHALL BE DEEMED AL WAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER OF ANY APPEAL [FILED O N OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988], THE POWERS OF THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEND [AND SHALL BE DEEMED ALWA YS TO HAVE EXTENDED] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN S UCH APPEAL.] [(2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SO UGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING O R DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TRIBUNAL, [NATIONAL TAX TRIBUNAL,] TH E HIGH COURT OR THE SUPREME COURT. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2), THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSE SSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER T HIS SECTION IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXC LUDED. 9. SECTION 263(1) EXPLANATION (C) PROVIDES THAT WH ERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE A SSESSING OFFICER HAD BEEN SUBJECT MATTER OF ANY APPEAL FILED ON OR BEFOR E OR AFTER FIRST DATE OF JUNE, 1988, POWERS OF THE COMMISSIONER UNDER THIS S UB-SECTION SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL . IT WOULD, THEREFORE, SHOW THAT IF A MATTER IN ISSUE HAS BEEN CONSIDERED IN APPEAL AND DECIDED BY THE APPELLATE AUTHORITIES, THE SAME COULD NOT BE SUBJECT MATTER OF REVISION UNDER SECTION 263 OF THE INCOME TAX ACT. IT IS NO EXPLAINED WHEN ORIGINAL SEIZED DOCUMENT HAS ALREADY BEEN CONSIDERED BY THE APPELLATE AUTHORITIES AGAINST THE REVENUE, HOW THE COPY OF THE SAME IS ADMISSIBLE IN EVIDENCE IN SUBSEQUENT REVISION PROCE EDINGS UNDER SECTION 263 OF THE INCOME TAX ACT. 10. HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE O F CIT VS SHALIMAR HOUSING & FINANCE LTD. 320 ITR 157 HELD AS UNDER : A SEARCH WAS CONDUCTED IN THE ASSESSEE'S GROUP AND A BLOCK ASSESSMENT WAS PASSED WITH SEVERAL ADDITIONS AGAINS T THE ASSESSEE. THE COMMISSIONER (APPEALS) ALLOWED THE APPEAL OF TH E ASSESSEE IN PART. THE ASSESSEE AND THE DEPARTMENT PREFERRED APPEALS W HICH WERE PENDING DISPOSAL BEFORE THE TRIBUNAL. MEANWHILE, THE COMMI SSIONER UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961, REVISED TH E ORDER OF THE ASSESSING OFFICER ON THE GROUNDS THAT (I) FROM THE PROJECT-WISE ANALYSIS IT WAS PERCEPTIBLE THAT WORK-IN-PROGRESS AS PER THE SE IZED DOCUMENTS AMOUNTED TO RS. 26,83,97,827 AS AGAINST RS. 8,42,62 ,301 AS ARRIVED AT BY THE ASSESSEE WHICH RESULTED IN UNDERVALUATION OF THE WORK-IN- PROGRESS TO THE EXTENT OF RS. 18.41 CRORES; (II) TH AT ONE OF THE DIRECTORS OF THE ASSESSEE HAD ADMITTED TO HAVE RECEIVED SALARY A ND PERQUISITES WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE; (III) THAT THE ASSESSING OFFICER IN THE INDIVIDUAL CASE O F THE DIRECTORS HAD HELD THAT EACH DIRECTOR HAD BEEN PAID SALARY AND PE RQUISITES TO THE TUNE OF RS. 84,000 BUT, WHILE FRAMING THE ASSESSMENT OF THE ASSESSEE, SALARY AND PERQUISITES OF ONLY ONE DIRECTOR WERE ADDED TO THE INCOME OF THE ASSESSEE; AND (IV) THAT DURING THE ASSESSMENT PROCE EDINGS OF INS BANK, WHICH WAS RUN BY THE ASSESSEE, IT COULD NOT EXPLAIN THE DEPOSIT OF RS. 18 79,40,246 AND, THEREFORE, THE ADDITION OF THE AMOUN T WAS MADE IN THE CASE OF THE BANK ON PROTECTIVE BASIS WITH THE FINDI NG THAT THE ADDITION SHOULD BE CONSIDERED ON SUBSTANTIVE BASIS IN THE HA NDS OF VARIOUS DEPOSITORS AND ALSO PROTECTIVE ADDITION SHOULD BE M ADE IN THE HANDS OF THE ASSESSEE BUT IT WAS NOT CONSIDERED BY THE ASSES SING OFFICER WHILE FRAMING THE ASSESSMENT OF THE ASSESSEE. THE TRIBUNA L HELD THAT THE ACTION OF THE COMMISSIONER WAS NOT JUSTIFIED. ON A PPEAL: HELD, DISMISSING THE APPEAL, THAT THE TRIBUNAL HAD ADVERTED TO THE FACTUAL, POSITION IN A DETAILED MANNER, HAD APPRECI ATED THOSE ISSUES THAT HAD BEEN TAKEN UP BY THE COMMISSIONER WHILE EXERCIS ING JURISDICTION UNDER SEC: 263 AND HELD THAT THE FACETS HAD BEEN DE ALT WITH BY THE COMMISSIONER (APPEALS) AND, THEREFORE, BY VIRTUE OF CLAUSE (C) OF SECTION 263(1) THE COMMISSIONER WAS NOT COMPETENT TO ASSUME JURISDICTION AND DIRECT REASSESSMENT. THE ORDER OF THE TRIBUNAL WAS JUSTIFIED. 10(I) THE AFORESAID JUDGEMENT HAS BEEN CONFIRMED B Y HON'BLE SUPREME COURT BY DISMISSING THE SLP OF THE DEPARTMENT REPOR TED IN 322 ITR (STATUTES)-14 IN THE NAME OF CIT VS SHALIMAR HOUSIN G & FINANCE LTD. 11. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE PROVISIONS CONTAINED UNDER SECTION 263(1) EXPLANATION (C) OF T HE INCOME TAX ACT AND THE JUDGEMENT ABOVE, IT IS CLEAR THAT LD. PRINCIPAL CIT HAS EXCEEDED HIS JURISDICTION UNDER SECTION 263 OF THE ACT. SINCE T HE SAME SEIZED DOCUMENT HAS BEEN CONSIDERED BY ASSESSING OFFICER WHO MADE T HE ADDITION AGAINST THE ASSESSEE WHICH REMAINED SUBJECT MATTER IN APPEA L BEFORE LD. CIT(APPEALS) AND ADDITION HAS BEEN DELETED, WOULD C LEARLY SHOW THAT THE MATTER IN ISSUE REMAINED IN SUBJECT MATTER IN APPEA L BEFORE LD. CIT(APPEALS) PRIOR TO INITIATION OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. NOT ONLY THIS, WHEN THE DEPARTMENT HAS PREFER RED APPEAL BEFORE TRIBUNAL, TRIBUNAL ALSO DISMISSED THE DEPARTMENTAL APPEAL VIDE ORDER DATED 12.12.2014 (SUPRA). THE TRIBUNAL IN THE FINDI NG HAS SPECIFICALLY OBSERVED THAT ASSESSEE IS NOT PARTY TO THE AGREEMEN T TO SELL IN QUESTION AND NONE OF THE PERSONS RELATING TO THE ASSESSEE CO MPANY ALSO CONNECTED WITH THE SAID AGREEMENT IN QUESTION. IT WAS ALSO N OTED THAT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO PROVE IF A NY OVER AND ABOVE CONSIDERATION HAVE BEEN PAID IN RESPECT OF ANY PROP ERTY PURCHASED BY THE ASSESSEE COMPANY. EVEN DURING THE COURSE OF SEARCH , NO ADVERSE MATERIAL WAS FOUND AGAINST THE ASSESSEE. IT WAS ALSO NOTED THAT SINCE AGREEMENT IN QUESTION IS CANCELLED DOCUMENT AND DID NOT RELAT E TO THE ASSESSEE DIRECTLY OR INDIRECTLY, THEREFORE, ASSESSING OFFICE R HAS MERELY INFERRED THAT ASSESSEE MIGHT HAVE PAID SOME MORE CONSIDERATION OV ER AND ABOVE WHAT IS STATED IN THE REGISTERED DOCUMENT. THE DEPARTME NTAL APPEAL WAS DISMISSED BECAUSE THE ADDITION WAS FOUND TO HAVE BE EN MADE MERELY ON SUSPICION. 12. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KULWANT RAI 291 ITR 36 HELD AS UNDER : HELD, DISMISSING THE APPEAL (I) THAT ADMITTEDLY TH E ASSESSEE HAD NOT SIGNED THE AGREEMENT IN QUESTION AND SINCE HE HAD N OT SIGNED THE AGREEMENT, NO LIABILITY COULD BE ATTRACTED QUA THAT AGREEMENT TOWARDS HIM SINCE HE WAS NOT A PARTY TO THE AGREEME NT TILL HE HAD SIGNED THE AGREEMENT. THE MERE FACT THAT THIS AGREE MENT WAS FOUND IN THE POSSESSION OF THE ASSESSEE DID NOT LEAD ANYW HERE. THUS, THE ADDITION OF RS. 17,00,892/- MADE BY THE ASSESSING O FFICER BY WAY OF HALF SHARE OF THE ASSESSEE IN THE EARNEST MONEY WAS BASED ON SURMISES AND GUESS WORK ONLY AND WAS LIABLE TO BE D ELETED. 13. SINCE THE SEIZED DOCUMENT PAGE NO. 34-35 OF ANN EXURE A-9 SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WA S NOT EXECUTED BY THE ASSESSEE COMPANY AND DID NOT RELATE TO THE ASSE SSEE COMPANY AT ALL, THEREFORE, WHERE IS THE QUESTION OF MAKING ANY ADDI TION AGAINST THE ASSESSEE EVEN IN RESPECT OF THE BALANCE LAND OF 44 BIGHA AS IS NOTED IN THE IMPUGNED ORDER. THE ASSESSING OFFICER, AT THE ASSESSMENT STAGE HAS EXAMINED THE ISSUE IN DETAIL AND ASSESSEE ALSO FILE D DETAILED REPLY BEFORE ASSESSING OFFICER IN RESPECT OF THE ENTIRE PROPERTY SO PURCHASED AND ALSO MADE A DETAILED REPLY ON THE SEIZED PAPER, THEREFOR E, IT CAN NOT BE SAID 19 THAT ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE I N DETAIL. THEREFORE, WHEN PRIOR TO THE INITIATION OF THE PROCEEDINGS UND ER SECTION 263 OF THE ACT, MATTER IN ISSUE HAS BEEN EXAMINED BY THE APPEL LATE AUTHORITIES I.E. LD. CIT(APPEALS) AND ITAT CHANDIGARH BENCH ON THE B ASIS OF THE SEIZED DOCUMENT, THEREFORE, PRINCIPAL CIT WAS NOT COMPETEN T TO ASSUME JURISDICTION UNDER SECTION 263 OF THE ACT AND DIREC T THE RE-ASSESSMENT IN THE MATTER. THE DECISION IN THE CASE OF SHALIMAR H OUSING & FINANCE LTD. (SUPRA) SQUARELY APPLY IN FAVOUR OF THE ASSESSEE. 14. THE CIT WAS SWAYED BY THE COPY OF THE SEIZED DO CUMENT WHICH, ACCORDING TO HIM WAS RECEIVED FROM INDEPENDENT SOUR CES. IT WOULD, THEREFORE, CLEARLY SHOW THAT THE COPY OF THE SAID A GREEMENT WHICH IS REFERRED TO BY LD. PRINCIPAL CIT WAS NOT SEIZED DUR ING THE COURSE OF SEARCH. THEREFORE, HOW THIS COULD BE RELEVANT IN P ROCEEDINGS UNDER SECTION 153A OF THE ACT, WAS NOT AT ALL EXPLAINED. IT IS ADMITTED FACT THAT DURING THE COURSE OF SEARCH, THE SEIZED PAPER AS WA S RECOVERED, WAS A CANCELLED/CROSSED DOCUMENT. THEREFORE, THERE IS NO QUESTION OF CONSIDERING SAME AGAINST THE ASSESSEE, THAT TOO WHE N THE SAME IS NOT SIGNED BY THE ASSESSEE COMPANY. FURTHER MORE WHEN THE ORIGINAL SEIZED DOCUMENT PAGE 34-35 OF ANNEXURE A-9 WAS CONSIDERED AND DISCUSSED IN DETAIL AND IT IS HELD BY THE APPELLATE AUTHORITIES THAT NO ADDITION COULD BE MADE ON THE BASIS OF THE SAME CANCELLED DOCUMENT AG AINST THE ASSESSEE, THERE IS NO QUESTION OF CONSIDERING THE SAME AGAINS T THE ASSESSEE ON THE BASIS OF COPY OF THE SAME SEIZED DOCUMENT. WHEN THE MATTER IN ISSUE HAS ALREADY BEEN EXAMINED BY THE APPELLATE AUTHORITIES, PRIOR TO PROCEEDINGS UNDER SECTION 263 OF THE ACT, THE LD. PRINCIPAL CIT SHOULD NOT HAVE RESORTED TO THE PRESENT PROCEEDINGS UNDER SECTION 2 63. WHEN THE ORDER OF THE ASSESSING OFFICER IS MERGED WITH THE ORDERS OF THE APPELLATE AUTHORITIES, THEREFORE, PROCEEDINGS UNDER SECTION 2 63 OF THE ACT ON THE SAME MATTER IN ISSUE COULD NOT BE RESORTED TO IN VI EW OF THE EXPLANATION (C) OF SUB SECTION (1) OF SECTION 263 OF THE ACT. WE MAY ALSO REFER TO THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT 243 ITR 83 WHEREIN IT WAS HELD AS U NDER : EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCO ME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN L AW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE V IEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFF ICER IS UNSUSTAINABLE IN LAW. 15. IN THIS CASE, THE ASSESSING OFFICER EXAMINED TH E SEIZED DOCUMENT AT ASSESSMENT STAGE AND HIS ORDER HAS BEEN SET ASIDE B Y THE APPELLATE AUTHORITIES, THEREFORE, THERE IS NO QUESTION OF CON SIDERING HIS ORDER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. IN THIS CASE, WHEN THE SEIZED DOCUMENT ITSELF WAS NOT RELIED UPON BY THE APPELLATE AUTHORITIES, THE COPY OF THE SAME AGREEMENT AS WAS RECEIVED THROUGH INDEPENDENT SOURCES, AS STATED BY THE LD. PRINCIPAL CIT WOULD NOT MAKE ANY DIFFERENCE IN FAVOUR OF THE REVENUE. 16. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THE PROCEEDINGS UNDER SECTION 263 OF THE ACT ARE CLEARL Y BEYOND THE COMPETENCE OF LD. PRINCIPAL CIT AND WHOLE PROCEEDIN GS ARE UNJUSTIFIED AND UNREASONABLE. THEREFORE, THE IMPUGNED ORDER COULD NOT BE SUSTAINED IN LAW. WE, ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER UNDER SECTION 263 OF THE ACT AND QUASH THE SAME. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. 20 SD/- SD/- (RANO JAIN) (BHAV NESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH JANUARY, 2016. 10. ON CONSIDERATION OF THE FACTS OF THE CASE IN TH E LIGHT OF THE SUBMISSIONS OF PARTIES AND DECISION IN THE CASE OF M/S R.P. IMPORT & EXPORT (P) LTD. (SUPRA), WE ARE OF THE VIEW LD. PRINCIPAL CIT WAS NOT JUSTIFIED IN INITIATING THE PROCEEDING UNDER SECTION 263 OF THE ACT AGAINST THE ASSESEE. T HE ENTIRE CASE IS SET UP ON THE BASE OF AGREEMENT TO SELL DT. 14/12/2005, WHICH WAS RECOVERED DURING SEARCH FROM THE PREMISES OF M/S NARAIN & COMPANY. IT IS AD MITTED FACT THAT THIS DOCUMENT IS CANCELLED PAPER AND THE ORIGINAL OF THE SAME WAS NEVER PRODUCE FOR INSPECTION OF THE PARTIES. THE AO EXAMINED THE IDENTICAL ISSUE AT ASSESSMENT STAGE ON THE BASIS OF THE AGREEMENT TO SELL DT. 14/ 12/2005. 11. THE AO RAISED SPECIFIC QUERY FROM THE ASSESSEE ON THE BASIS OF HIGHER CONSIDERATION AS NOTED IN THE AGREEMENT TO SELL DT. 14/12/2005. THE ASSESSEE FILED SPECIFIC REPLY BEFORE THE AO SUBMITTING THERE IN THAT IT IS A FORGED DOCUMENT AND ASSESSEE NEVER SIGNED THIS AGREEMENT TO SELL. T HE ASSESSEE DENIED TO HAVE PURCHASED OR SOLD ANY PROPERTY THROUGH THIS AGREEME NT TO SELL. THE STATEMENT OF SH. SUMIT GUPTA, SH. BHOLA NATH AND SHRI GURDEEP SI NGH WERE RECORDED BY THE AO AT ASSESSMENT STAGE IN WHICH ALL THESE PERSONS H AVE DENIED TO HAVE ENTERED INTO ANY TRANSACTIONS OF SALE OR PURCHASE OF PROPER TY. IT MAY BE STATED THAT IN THIS AGREEMENT TO SELL SH. BHOLA NATH IS STATED TO BE A PURCHASER. HOWEVER IN STATEMENT HE HAS DENIED TO HAVE ENTERED INTO ANY AG REEMENT TO SELL PURCHASE ANY PROPERTY AT VILLAGE SALANI FOR RS. 6,50,000/- P ER BIGHA. HE HAS DENIED TO HAVE PAID ANY EARNEST MONEY. HE HAS ALSO DENIED TO HAVE SIGNED ANY SUCH AGREEMENT DT. 14/12/2005. THESE FACTS AND MATERIAL ON RECORD CLEARLY PROVED THAT AO HAS RAISED SPECIFIC QUERY ON THIS MATTER IN ISSUE AT ASSESSMENT STAGE AND CALLED FOR THE EXPLANATION OF ASSESSEE AND RECORDED STATEMENT OF VARIOUS 21 PERSONS INCLUDING THE STATEMENT OF THE ALLEGED PURC HASER SH. BHOLA NATH. THEREFORE AO HAS EXAMINED THIS ISSUE AND VERIFY THE ENTIRE TRANSACTION IN ACCORDANCE WITH LAW AT THE ASSESSMENT STAGE. THEREF ORE LD. CIT WAS NOT JUSTIFIED IN HOLDING THAT AO HAS NOT VERIFIED THE TRANSACTION S ON THE ALLEGED AGREEMENT TO SELL DT. 14/12/2005. 11.1 WE MAY ALSO NOTE HERE THAT LD. CIT INITIATED T HE PROCEEDING UNDER SECTION 263 OF THE ACT ON THE BASIS OF THE COPY OF THE AGRE EMENT TO SELL RECEIVED FROM INDEPENDENT SOURCE IT WOULD THEREFORE SHOWS THAT CO PY OF THE SAID AGREEMENT AS IS REFERRED TO IN THE IMPUGNED ORDER WAS NOT SE IZED DURING THE COURSE OF SEARCH. THEREFORE HOW THIS COULD BE RELEVANT IN PRO CEEDING UNDER SECTION 153A OF THE ACT WAS NOT AT ALL EXPLAINED. THIS ISSUE WAS ALSO EXAMINED IN DETAIL IN THE CASE OF M/S R. P. IMPORT & EXPORT (P) LTD. AND NO A DVERSE VIEW HAVE BEEN TAKEN AGAINST ASSESSEE. 11.2 THE ISSUE IS THEREFORE COVERED IN FAVOUR OF TH E ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF M/S. R. P. IMPORT & EXPORT (P) LTD. (SUPRA) EXCEPT THE ISSUE OF MERGER OF THE ASSESSMENT ORDER WITH THE APPELLATE ORDER OF THE LD. CIT(A). IT APPEARS FROM THE FACTS AND CIRC UMSTANCES ABOVE THAT AO AFTER MAKING DETAILED ENQUIRY ON THE MATTER IN ISSU E HAS ADOPTED ONE OF THE VIEW PERMISSIBLE IN LAW TO WHICH THE LD. PRINCIPAL CIT DOES NOT AGREE THEREFORE THE SAME WOULD NOT GIVE RISE TO OCCASION TO CONSID ER THE ASSESSMENT ORDER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERE ST OF REVENUE. 12. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE ABOVE WE FIND THAT AO EXAMINED THE SEIZED DOCUMENTS AT ASSESSMENT STAG E AFTER MAKING DETAILED ENQUIRY AND RIGHTLY DID NOT TAKE ANY ADVERSE VIEW A GAINST THE ASSESSEE. IN THIS CASE WHEN SEIZED DOCUMENT ITSELF CANNOT BE RELIED U PON WHICH IS A CANCELLED DOCUMENT, HOW, THE COPY OF THE SAME AGREEMENT AS R ECEIVED THROUGH INDEPENDENT SOURCE WOULD BE ADMISSIBLE AGAINST THE ASSESSEE. THE SAME WOULD 22 NOT MAKE ANY DIFFERENT IN FAVOUR OF THE REVENUE. T HE DECISION RELIED UPON BY THE LD. DR ARE THEREFORE CLEARLY DISTINGUISHED ON FACTS OF THIS CASE AND WOULD NOT SUPPORT THE CASE OF THE REVENUE. 13. CONSIDERING THE ABOVE FACTS, WE ARE OF THE VIEW THAT PROCEEDING UNDER SECTION 263 OF THE ACT ARE CLEARLY BEYOND THE COMPE TENCE OF THE LD. PRINCIPAL CIT AND WHOLE PROCEEDING ARE UNJUSTIFIED AND UN REA SONABLE. THEREFORE THE IMPUGNED ORDER CANNOT BE SUSTAINED IN LAW. WE ACCOR DINGLY SET ASIDE THE IMPUGNED ORDER UNDER SECTION 263 OF THE ACT AND QUA SHED THE SAME. RESULTANTLY ASSESSMENT ORDER DATED 25/03/2013 UNDER SECTION 153 A / 143(3) IS RESTORED. 14. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : MARCH 2016 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR