PADAM DATA, Alwar V. DCIT, Alwar

ITA 297/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2170 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 19-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA DCIT DR DHK
• Keywords: Unexplained investment; Loose papers; Corroborative evidences; Retraction
• Section: 133A; 131; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 297/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2013-14 SHRI PADAM DATA HARSOLI ROAD, KHAIRTHAL ALWAR (RAJ) CUKE VS. THE DCIT CIRCLE 1 ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AFKPD 3422 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI A.S. NEHRA, DCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/01/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25 /01/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALWAR DATED 09-03-2017 FOR THE ASSESSMENT YEAR 2013-14 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. THAT THE AO HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN ADDING AN AMOUNT OF RS . 67,50,000/- ON SUBSTANTIVE BASIS INTO THE INCOME OF THE ASSESSEE O N ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTIES WITHIN THE MEANING OF SEC 69 OF THE I.T. ACT, 1961 JUST ON THE BASIS OF STATEMENT RECORDED DURING THE COURS E OF SURVEY, WHICH WERE RETRACTED LATER ON BY THE ASSESSEE WITH COGENT MATE RIAL AND EVIDENCES AND LD. CIT(A) HAS ERRED SUSTAINING THE SAME WITHOUT CONS IDERING THE REMAND REPORT OF THE AO AND THE STATEMENT/ AFFIDAVIT OF THE PERSO NS NAMED IN THE LOOSE PAPERS RECORDED DURING THE REMAND PROCEEDINGS. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 2 2. THAT THE AO HAS ERRED IN LAW AS WELL AS ON THE F ACTS AND CIRCUMSTANCES OF THE CASE IN ADDING AN AMOUNT OF RS .1,00,000/- ON SUBSTANTIVE BASIS INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNDECLARED INCOME FROM COMMISSION/BROKERAGE JUST ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY, WHICH WERE REITERATED LATER ON BY THE ASSESSEE WITH COGENT MATERIAL AND EVIDENCES AND LD. CIT(A) HAS ERRED IN SUSTAINING THE SAME. 2.1 APROPOS GROUND NO. 1 AND GROUND NO. 2 OF THE A SSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- GROUND NO. 1 OF THE ASSESSEE 5.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO, SUBMISSIONS AND CROSS REPLY OF TH E APPELLANT INCLUDING JUDICIAL CITATIONS GIVEN THEREIN. FOLLOWI NG FACTS HAVE EMERGED. 1. THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF SALE/PURCHASE OF LANDS AND PLOTS. HE IS ALSO A PART NER IN M/S. V.K. SUPPLIERS AND M/S. R.B. SONS. HE ALSO DERIVES INCOME FROM M/S. PIYUSH SUPPLIERS. 2. THAT DURING THE YEAR UNDER CONSIDERATION, A SURVEY U/S 133A OF THE ACT WAS CONDUCTED IN THE BUS INESS PREMISES OF M/S. SHAILJA ASSOCIATES AND M/S. SHAILJ A GRITS UDYOG, KHAIRTAL ON 03-01-2013. 3. THAT SHRI PADAM CHAND DATA AS PER HIS OWN STATEMENT AND SHRI GIRISH DATA MANAGE THE AFFAIRS O F THE FIRMS. 4. THAT DURING THE COURSE OF SURVEY OPERATION SOME INCRIMINATING DOCUMENTS HAS BEEN FOUND. ONE SUCH DOCUMENT I.E. PAGE NO.12 OF ANNEXURE A-1 REVEALS RE CORDING OF FOLLOWING TRANSACTION WITH A PROPER DATE ALSO ME NTIONED ON THE PAPER. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 3 PRITHVI 30,00,000.00 AABHAV 5,00,000.00 DSP 10,00,000.00 ROHITASH 22,50,000.00 TOTAL 67,50,000.00 5. THAT SHRI PADAM CHAND DATA HAS RECORDED THE STATEMENT THAT THE ABOVE ENTRIES ARE INVESTMENT IN PROPERTIES MADE BY HIMSELF AND HIS BROTHER SHRI GIRISH DATA AN D HE HAS AGREED TO SURRENDER THE ENTIRE AMOUNT OF RS. 67,50, 000/- AS UNEXPLAINED INVESTMENT IN PROPERTIES FOR TAX. HE HA S ALSO AGREED THAT THIS AMOUNT WILL BE SURRENDERED BY BOTH THE PERSONS I.E. IN HIS OWN HAND AND SHRI GIRISH DATA ( I.E. 50% OF EACH) IN THEIR RESPECTIVE RETURNS. 6. THAT THE APPELLANT HAS FILED AN AFFIDAVIT VIDE LETTER DATED 30-05-2014 CONFIRMING AS UNDER:- 3.0 THAT BESIDES PARTNERS OF THE FIRM SHAILJA GRITS UDYOG, KHAIRTHAL AND M/S. SHAILJA ASSOCIATES, KHAIRTHAL. I AM ALSO LOOKING AFTER DAY TO DAY OF THESE CONCERNS . 7. THAT THE APPELLANT HAD RETRACTED FROM THE STATEMENT MADE DURING THE COURSE OF SURVEY OPERATIO N CITING THAT THE STATEMENT RECORDED DURING THE COURSE OF SU RVEY WAS NOT VOLUNTARY AND HAD BEEN RECORDED UNDER PRESSURE OF SURVEY TEAM AND THE ASSESSEE WAS TRAUMATIZED, HARAS SED AND PUT TO MENTAL AGONY TO GIVE FALSE STATEMENT. 8. THAT THE AO WENT ON TO REJECT THE RETRACTION OF THE APPELLANT AND ADDED THE ENTIRE AMOUNT OF RS. 67 ,50,000/- IN THE HAND OF THE APPELLANT ON SUBSTANTIVE BASIS. 5.5.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACT OF THE CASE. THERE IS NO DOUBT ABOUT THE PAPERS FOUND FROM THE PREMISES OF THE FIRM WHOSE AFFAIRS IS MANAGED BY THE APPELLA NT. THERE IS ALSO NO DOUBT THE SAID PAPER HAD RECORDED SOME TRAN SACTION ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 4 INDICATING THE NAME OF THE PERSONS ALSO INVOLVED IN THE TRANSACTION AND ALSO MENTION THE DATE OF TRANSACTION AS 05-11-2 012. THE CONTENT OF THE PAPER WAS SOWN TO THE APPELLANT AND THE APPELLANT HAD CONFESSED THAT THE TRANSACTIONS DID INDICATE IN VESTMENT MADE BY HIM AND HIS BROTHER SHRI GIRISH DATA. THE APPELL ANT HAS ALSO OFFERED THE VALUE OF INVESTMENT FOR TAXATION. LATER ON, THE APPELLANT HAD RETRACTED FROM HIS EARLIER STATEMENT AND SUBMIT TED THAT THE STATEMENT WAS NOT GIVEN UNDER PRESSURE. 5.5.3 THE A.R. HAS CITED VARIOUS JUDICIAL PRONOUNCE MENTS IN SUPPORT OF THE CLAIM FOR TRANSACTION OF THE STATEME NT. IN ALL THE JUDICIAL CITATIONS RELIED UPON BY THE A.R. IT IS SE EN THAT THE ADDITIONS WERE MADE MERELY ON THE BASIS OF A CONFES SIONAL STATEMENT WITHOUT ANY EVIDENCES OR ON THE BASIS OF A STATEMENT GIVEN BY A THIRD PARTY. HOWEVER, IN THIS CASE, A DO CUMENT WAS FOUND FROM THE PREMISE DURING THE COURSE OF SURVEY OPERATION AND THE DOCUMENT SO FOUND WAS BROUGHT TO THE NOTICE OF THE APPELLANT. THE APPELLANT AFTER VERIFYING THE DOCUMENT FOUND DU RING THE COURSE OF SURVEY OPERATION MADE A CONFESSIONAL STATEMENT. THEREFORE, THE ASSESSMENT, IN THE PRESENT CASE, WAS NOT MADE, MERE LY ON THE BASIS OF A CONFESSIONAL STATEMENT BUT ON THE BASIS OF A D OCUMENT FOUND DURING THE COURSE OF SURVEY AND THE DOCUMENT INDICA TED CERTAIN TRANSACTIONS AND ALSO NAME OF PERSONS WERE ALSO WRI TTEN WITH WHOM SUCH TRANSACTIONS WERE MADE AND ALSO DATE OF THE TRANSACTION . THEREFORE, THE JUDICIAL CITATIONS SHOWN BY THE APPELLANT IN SU PPORT OF HIS CLAIM IS NO TENABLE ON THE BASIS OF FACTUAL MATRIX OF THE PRESENT CASE. WHEN A DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH/ SURVEY, IT IS INCUMBENT UPON THE ASSESSEE T O DISPROVE ITS GENUINENESS/ OR OTHERWISE. WHEN A DOCUMENT IS FOUND DURING THE COURSE OF SURVEY, IT IS PRESUMED THAT THE TRANSACTI ON MENTIONED IN THE DOCUMENT IS REAL UNLESS PROVED OTHERWISE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING. IN THIS CASE, THE APPELLANT HAS NOT BEEN ABLE TO DISPROVE THE CONTENT S OF THE DOCUMENT. MERELY FILING AN AFFIDAVIT AND STATEMENT GIVEN BY THE PERSONS IS NOT ENOUGH ON THE FACT OF AN IRREFUTABLE PIECE OF EVIDENCE FOUND DURING A SURVEY OPERATION. THE WHOLE EXERCISE BY THE APPELLANT DURING ASSESSMENT PROCEEDING SEEMS TO BE AN AFTERTHOUGHT TO EVADE THE DUE TAXES ON AN UNEXPLAIN ED INVESTMENT ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 5 WHICH HAS BEEN ACCEPTED BY THE APPELLANT AT THE FIR ST PLACE. I HAVE PARTICULARLY NOTED THE FACT THAT THE NAME OF PERSON S MENTIONED IN THE DOCUMENT ARE REAL PERSONS AND THE APPELLANT HAD REGULAR BUSINESS DEALING WITH THEM. I HAVE ALSO TAKEN INTO ACCOUNT THE FACT THAT THE APPELLANT IS ENGAGED IN SALE/PURCHASE OF L AND/PLOTS. IN THIS LINE OF BUSINESS IT IS VERY COMMON THAT MONEY CHANG ES HAND EVEN BEFORE THE ACTUAL SALE PURCHASE OF LAND/PLOT. THERE FORE, THE APPELLANTS CONTENTION THAT NO ACTUAL SALE/PURCHASE OF LAND/PLOT HAD TAKEN PLACE INVOLVING THE AMOUNT OF TRANSACTION IND ICATED IN THE DOCUMENTS AGAINST THE NAME SO MENTIONED, DOES NOT C ARRY ANY WEIGHT IN VIEW OF THE NORMAL BUSINESS PRACTICES IN REAL ESTATE. THE MOOT POINT IN THIS CASE IS WHETHER THE MONEY HAD CH ANGED HANDS AT THAT PARTICULAR MOMENT OF TIME OR NOT? IF THE ANSWE R IS AFFIRMATIVE THEN THE SOURCE OF SUCH INVESTMENT HAS TO BE EXPLAI NED BY THE ASSESSEE IRRESPECTIVE OF THE FACT WHETHER THE LAND WAS ACTUALLY TRANSACTED OR NOT. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDING IN RESPECT OF SHRI GIRISH DATA, SHRI GIRISH DATA HAS C ATEGORICALLY DENIED ABOUT ANY TRANSACTION CONFESSED ABOUT THE RE CORDED TRANSACTION AS INVESTMENT AND HIS FURTHER AFFIDAVIT DATED 30-05- 2014 THAT HE MANAGES THE AFFAIRS OF FIRM SHAILJA GR ITS UDYOG, KHAIRTHAL AND M/S. SHAILJA ASSOCIATES, KHAIRTHAL FR OM WHOSE PREMISES THE DOCUMENTS HAVE BEEN FOUND, THE AO HAS JUSTIFIABLY ADDED THE ENTIRE UNDISCLOSED INVESTMENT IN HIS HAND ON SUBSTANTIVE BASIS. THEREFORE, TAKING FACTUAL MATRIX OF THE CASE, IT IS MY CONSIDERED VIEW THAT THERE IS NO CREDIBLE REASON TO NEGATE THE STATEMENTS OF FACTS GIVEN BY THE APPELLANT DURING T HE COURSE OF SURVEY OPERATION WHILE EXPLAINING THE CONTENTS OF T HE TRANSACTION MENTIONED IN PAGE NO. 12 OF ANNEXURE A-1. ACCORDING LY, AN AMOUNT OF RS. 67,50,000/- AS CONFESSED BY THE APPEL LANT IS SUSTAINED AS UNEXPLAINED INVESTMENT IN THE HAND OF THE APPELLANT ON SUBSTANTIVE BASIS. ACCORDINGLY, APPELLANTS GROUND OF APPELLANT ON THIS ISSUE IS DISMISSED. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 6 GROUND NO. 2 OF THE ASSESSEE 6.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO, SUBMISSIONS AND CROSS REPLY OF TH E APPELLANT INCLUDING JUDICIAL CITATIONS GIVEN THEREIN. FOLLOWI NG FACTS HAVE EMERGED. 1. THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF SALE/PURCHASE OF LANDS AND PLOTS. HE IS PARTNER IN M/S. V.K. SUPPLIERS AND M/S. R.B. SONS. 2. THAT DURING THE YEAR UNDER CONSIDERATION, A SURVEY U/S 133A OF THE ACT WAS CONDUCTED IN THE BUS INESS PREMISES OF M/S. SHAILJA ASSOCIATES AND M/S. SHAILJ A GRITS UDYOG, KHAIRTAL ON 03-01-2013. 3. THAT SHRI PADAM CHAND DATA MANAGES THE AFFAIRS OF THE FIRMS. 4. THAT DURING THE COURSE OF SURVEY OPERATION SOME INCRIMINATING DOCUMENTS HAS BEEN FOUND. SOME OF THE DOCUMENTS HAD RECORDED SALE/PURCHASE OF PROPERTIES AND THE COMMISSION EARNED ON THE TRANSACTIONS. 5. THAT SHRI PADAM CHAND DATA HAS RECORDED THE STATEMENT HE HAD EARNED COMMISSION OF RS. 1 LAKH ON SUCH TRANSACTION WHICH HAS BEEN RECORDED IN THE REGULAR BOOKS OF ACCOUNTS ACCORDINGLY, HE HAS ALSO AGREED THAT THIS AMOUNT W ILL BE SURRENDERED BY HIM AND HIS BROTHER SHRI GIRISH D ATA (I.E. 50% OF EACH) IN THEIR RESPECTIVE RETURNS. 6. THAT THE APPELLANT HAD RETRACTED FROM THE STATEMENT MADE DURING THE COURSE OF SURVEY OPERATIO N CITING THAT THE STATEMENT RECORDED DURING THE COURSE OF SU RVEY WAS NOT VOLUNTARY AND HAD BEEN RECORDED UNDER PRESSURE OF SURVEY TEAM AND THE ASSESSEE WAS TRAUMATIZED, HARAS SED AND PUT TO MENTAL AGONY TO GIVE FALSE STATEMENT. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 7 8. THAT THE AO WENT ON TO REJECT THE RETRACTION OF THE APPELLANT AND ADDED THE ENTIRE AMOUNT OF RS.1,0 0,000/- IN THE HAND OF THE APPELLANT ON SUBSTANTIVE BASIS. 6.5.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACT OF THE CASE. THERE IS NO DOUBT ABOUT THE PAPERS FOUND FROM THE PREMISES OF THE FIRM WHERE THE APPELLANT IS A PARTNER/ MANAG ES THE AFFAIRS. THERE IS ALSO NO DOUBT THE SAID PAPER RECORDS SOME TRANSACTION INDICATING THE NAME OF THE PERSONS ALSO INVOLVED IN THE TRANSACTION. THE CONTENT OF THE PAPER WERE SHOWN TO THE APPELLAN T AND THE APPELLANT HAD CONFESSED THAT HE HAD EARNED UNRECORD ED COMMISSION ON SUCH LAND DEALS ALONGWITH HIS BROTHER SHRI GIRIS H DATA. THE APPELLANT HAS ALSO OFFERED THE UNDECLARED COMMISSIO N OF RS. 1 LAKH FOR TAXATION TO BE SURRENDERED 50% EACH IN HIS HAND AND IN THE HAND OF SHRI BROTHER SHRI GIRISH DATA. LATER ON, THE AP PELLANT HAD RETRACTED FROM HIS EARLIER STATEMENT AND SUBMITTED THAT THE STATEMENT WAS NOT GIVEN UNDER PRESSURE. 6.5.3 THE A.R. HAS CITED VARIOUS JUDICIAL PRONOUNCE MENTS IN SUPPORT OF THE CLAIM FOR RETRACTION OF THE STATEMEN T. IN ALL THE JUDICIAL CITATIONS RELIED UPON BY THE APPELLANT, IT IS SEEN THAT THE ADDITIONS WERE MADE MERELY ON THE BASIS OF A CONFES SIONAL STATEMENT WITHOUT ANY EVIDENCES OR ON THE BASIS OF A STATEMENT GIVEN BY A THIRD PARTY. HOWEVER, IN THIS CASE, A DO CUMENT WAS FOUND FROM THE PREMISE DURING THE COURSE OF SURVEY OPERATION AND THE DOCUMENT SO FOUND WAS BROUGHT TO THE NOTICE OF THE APPELLANT. THE APPELLANT AFTER VERIFYING THE DOCUMENT FOUND DU RING THE COURSE OF SURVEY OPERATION MADE A CONFESSIONAL STATEMENT. THEREFORE, THE ASSESSMENT, IN THE PRESENT CASE, WAS NOT MADE, MERE LY ON THE BASIS OF A CONFESSIONAL STATEMENT BUT ON THE BASIS OF A D OCUMENT FOUND DURING THE COURSE OF SURVEY AND THE DOCUMENT INDICA TED CERTAIN TRANSACTIONS AND ALSO NAME OF PERSONS WERE ALSO WRI TTEN WITH WHOM SUCH TRANSACTIONS WERE MADE . THEREFORE, THE JUDICIAL CITATIONS SHOWN BY THE APPELLANT IN SUPPORT OF HIS CLAIM IS N O TENABLE ON THE BASIS OF FACTUAL MATRIX OF THE PRESENT CASE. WHEN A DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH/ SURVEY, IT IS IN CUMBENT UPON THE ASSESSEE TO DISPROVE ITS GENUINENESS/ OR OTHERWISE. WHEN A ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 8 DOCUMENT IS FOUND DURING THE COURSE OF SURVEY, IT I S PRESUMED THAT THE TRANSACTION MENTIONED IN THE DOCUMENT IS REAL U NLESS PROVED OTHERWISE BY THE ASSESSEE DURING THE COURSE OF ASSE SSMENT PROCEEDING. IN THIS CASE, THE APPELLANT HAS NOT BEE N ABLE TO DISPROVE THE CONTENTS OF THE DOCUMENT. I HAVE ALSO TAKEN INT O ACCOUNT THE FACT THAT THE APPELLANT IS ENGAGED IN SALE/PURCHASE OF LAND/PLOTS. IN THIS LINE OF BUSINESS, IT IS VERY COMMON THAT MONE Y CHANGES HAND EVEN BEFORE THE ACTUAL SALE PURCHASE OF LAND/PLOT. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDING IN RESPECT OF S HRI GIRISH DATA, SHRI GIRISH DATA HAS CATEGORICALLY DENIED ABOUT AN Y TRANSACTION CONFESSED BY SHRI PADAM CHAND. SHRI PADAM CHAND HAD CONFESSED ABOUT THE UNRECORDED TRANSACTION AS COMMISSION AND HIS FURTHER AFFIDAVIT DATED 30-05-2014 THAT HE MANAGES THE AFFA IRS OF FIRM SHAILJA GRITS UDYOG, KHAIRTHAL AND M/S. SHAILJA ASS OCIATES, KHAIRTHAL FROM WHOSE PREMISES THE DOCUMENTS HAVE BE EN FOUND, THE AO HAS JUSTIFIABLY ADDED THE ENTIRE UNDISCLOSED COMMISSION IN HIS HAND ON SUBSTANTIVE BASIS. THEREFORE, TAKING FACTUAL MATRIX OF THE CASE, IT IS MY CONSIDERED VIEW THAT THERE IS NO CREDIBLE REASON TO NEGATE THE STATEMENTS OF FACTS GIVEN BY THE APPELLANT DURING T HE COURSE OF SURVEY OPERATION WHILE EXPLAINING THE CONTENTS OF T HE TRANSACTION MENTIONED ANNEXURE A-1. ACCORDINGLY, AN AMOUNT OF R S. 1,00,000/- AS CONFESSED BY THE APPELLANT IS SUSTAIN ED AS UNDECLARED COMMISSION IN THE HAND OF THE APPELLANT ON SUBSTANT IVE BASIS. ACCORDINGLY, APPELLANTS GROUND OF APPELLANT ON THI S ISSUE IS DISMISSED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF BOTH THE DISALLOWANCES I.E. RS. 67,50,0 00/- AND RS. 1.00 LAC FOR WHICH THE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. 1. IT IS SUBMITTED THAT THE MAIN REASON OF THE AD DITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS THE STATEMENT OF THE ASSESSEE RECORDED IN SURVEY U/S 133A. A STATEMENT RECORDED IN SURVEY HAS NO EVIDENTIARY VALUE AS HELD BY HONBLE SUPREME COURT IN CASE OF CIT VS. S. KHADER KHAN SON ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 9 (2013) 352 ITR 480. HENCE, SUCH STATEMENT MORE PARTICULARLY WHEN THE SA ME STOOD RETRACTED CANNOT BE A BASIS FOR MAKING THE AD DITION. HERE IT IS PERTINENT TO MENTION THAT THE ASSESSEE IN HIS AFFIDAVIT FILED ON 30.05.2014 HAS EXPLAINED THE CIRCUMSTANCES UNDER WHICH HE MADE THE SURRENDER (PB 45-50) . FURTHER, IN THE STATEMENT RECORDED IN SURVEY, THE ASSESSEE ALSO SUR RENDERED CASH OF RS. 8,96,610/- IN HIS HANDS AND RS. 7,37,035/- IN THE H ANDS OF SHRI GIRISH DATA (PB 40-41) . THIS SURRENDER WAS ALSO RETRACTED BY THE ASSESSEE IN HIS AFFIDAVIT BY EXPLAINING THAT SUCH CASH IS VERIFIABLE FROM THE BO OKS OF ACCOUNTS OF VARIOUS FAMILY CONCERNS. THE AO IN THE ASSESSMENT PROCEEDIN GS HAS ACCEPTED THIS EXPLANATION AS PER THE DISCUSSION MADE AT PAGES 12- 14 OF THE ORDER. THUS, WHEN THE EXPLANATION IN RESPECT OF CASH HAS BEEN AC CEPTED, THERE IS NO REASON TO HOLD THAT THE EXPLANATION GIVEN IN RESPECT OF TH E SURRENDER OF RS. 67,50,000/- IS AN AFTERTHOUGHT JUST TO ESCAPE FROM THE TAX LIAB ILITY AND THAT SUCH ADMISSION CONSTRUED THE BEST PIECE OF EVIDENCE FOR MAKING THE ADDITION. 2. ON THE MERIT OF THE ADDITION OF RS. 67,50,000/- CONFIRMED BY THE LD. CIT(A), IN THE REMAND PROCEEDINGS, THE ASSE SSEE HAS FILED DETAILED EXPLANATION ALONG WITH THE SUPPORTING EVIDENCES. ST ATEMENT OF SHRI PRITHVI SINGH WAS RECORDED. FURTHER THE AO ACCEPTED THAT PU RCHASE OF LAND FOR RS. 15,75,000/- FROM SHRI ROHITASH IS DULY RECORDED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNTS. HOWEVER, THE LD. CIT(A) WITHOUT GIVING ANY FINDING ON THE EVIDENCE PRODUCED HAS ERRONEOUSLY CONFIRMED THE ADD ITION ONLY FOR THE REASON THAT THE ALLEGED INVESTMENT IS CONFESSED BY THE ASS ESSEE AS HIS UNEXPLAINED INVESTMENT IN THE STATEMENT RECORDED IN COURSE OF S URVEY. THE EXPLANATION WITH RESPECT TO EACH OF THE AMOUNT NOTED ON THE PAPER IS AS UNDER: (A) SHRI PRIVTHI RS. 30 LAKHS: IT IS SUBMITTED THAT THE ASSESSEE IN HIS AFFIDAVIT IN PARA NO. 19 (PB 48- 49) HAS EXPLAINED THAT SHRI PRITHVI RAJ YADAV WAS ASKIN G RS. 30 LAKHS FOR SALE OF HIS AGRICULTURAL LAND WHICH WAS FOUND TO BE EXCE SSIVE AND THEREFORE, HE DECLINED TO BUY HIS AGRICULTURAL LAND. THEREAFTER, SHRI PRITHVI RAJ YADAV SOLD HIS LAND ON 14.03.2013 TO SHRI CHARAN SINGH AND SHR I SURAJ SINGH FOR RS. 11,71,000/- LAKHS THROUGH REGISTERED SALE DEED (PB 51-55) . STATEMENT OF SHRI PRITHVI SINGH WAS RECORDED IN THE REMAND PROCEEDING S. THE EXTRACT OF HIS STATEMENT IS REPRODUCED BY THE AO IN HIS REMAND REP ORT (PB 3-4) . IN THE STATEMENT, HE HAS STATED THAT HE HAS NOT DONE ANY T RANSACTION OF RS. 30 LAKHS. HE HAS SOLD 0.700 HECTARE OF AGRICULTURAL LAND TO S HRI CHARAN SINGH AND SHRI SURAJ SINGH FOR RS. 11.71 LAKHS IN FY 2012-13 AND T HAT HE HAS NEVER MET TALKED ABOUT SALE OF HIS AGRICULTURAL LAND TO SHRI PADAM CHAND DATA FOR RS. 30 LAKHS. ALL THESE EVIDENCES PROVE THAT THE ASSESSEE HAS NOT MADE ANY PAYMENT OF RS. 30 LAKHS TO SHRI PRITHVI RAJ YADAV AND THERE FORE, NO ADDITION IN RESPECT OF THIS AMOUNT IS CALLED FOR. (B) SHRI ABHAY RS. 5 LAKHS : ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 10 IT IS SUBMITTED THAT THE ASSESSEE IN HIS AFFIDAVIT IN PARA NO. 17 (PB 49) HAS EXPLAINED THAT SHRI ABHAY WAS THE OCCUPIER ON T HE LAND BELONGING TO SHRI PRITHVI RAJ YADAV WHICH HE WAS PROPOSING TO BUY AND FOR THAT HE PROPOSED TO GIVE RS. 5 LAKH TO HIM FOR VACATING THE LAND. HOWEV ER, SINCE THE DEAL WITH SHRI PRITHVI RAJ YADAV DID NOT MATERIALIZE, NO AMOUNT WA S GIVEN TO HIM. THIS ISSUE WAS RAISED BY THE AO IN COURSE OF THE STATEMENT OF SHRI PRITHVI RAJ SINGH WHERE HE SAID THAT HE DOES NOT KNOW SHRI ABHAY SINGH. FRO M THESE FACTS IT EVIDENT THAT THE ASSESSEE HAS NOT MADE ANY PAYMENT TO SHRI ABHAY SINGH AND THEREFORE, NO ADDITION IN RESPECT OF THIS AMOUNT IS CALLED FOR. DSP URF SHRI SISHRAM SAHARAWAT RS. 10 LAKHS IT IS SUBMITTED THAT THE ASSESSEE IN HIS AFFIDAVIT IN PARA NO. 18 (PB 49) HAS STATED THAT HE WAS PLANNING TO BUY AGRICULTURAL LAND BEARING KHASRA NO. 250, MEASURING 0.32 HECTARE SMT. SUNITA W/O SHRI SISHRAM SAHARAWAT FOR RS. 10 LAKHS. SHRI SISHRAM SAHARAWAT IS KNOWN AS DSP. HOWE VER, THE SELLER REFUSED THE SELL THE LAND AND IT WAS ULTIMATELY SOLD BY THEM TO SHRI AJAY MISHRA AND OTHER FOR RS. 20 LAKHS ON 11.02.2013 (PB 56-59) . IN THE REMAND PROCEEDINGS, THE SUMMONS ISSUED TO HIM IS RETURNED UNSERVED. THEREFO RE, THE AO TOOK AN ADVERSE VIEW IGNORING THAT WHEN THE LAND UNDER CONSIDERATIO N WAS SOLD TO SOME OTHER PERSON THROUGH REGISTERED DEED AND THERE IS NO EVID ENCE OF ANY PAYMENT MADE BY THE ASSESSEE TO DSP, NO ADVERSE SHOULD BE TAKEN. HENCE, THE ADDITION OF RS. 10LAKHS ON THIS ACCOUNT IS UNJUSTIFIED AND UNCALLED FOR. (D)SHRI ROHITASH RS. 22.5 LAKHS IT IS SUBMITTED THAT THE ASSESSEE IN HIS AFFIDAVIT IN PARA NO. 19 (PB 49) HAS STATED THAT SMT. CHANDRA DEVI W/O SHRI ROHITASH WAS HAVING THE AGRICULTURAL LAND BEARING KHASRA NOS. 245 & 266. IN ITIALLY HE PLANNED TO BUY BOTH THE KHASRAS BUT SUBSEQUENTLY, HE BOUGHT ONLY O NE KHASRA NO. 245 FOR RS. 15,75,000/- THROUGH REGISTERED SALE DEED DATED 16.0 5.2013 (PB 65-69) AND KHASRA NO. 266 WAS SOLD BY THEM TO SHRI DEEPAK SHAR MA FOR RS. 8,55,000/- THROUGH SALE DEED DATED 16.05.2013 (PB 60-64) . THE INVESTMENT OF RS. 15,75,000/- IS DULY RECORDED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS. THE AO IN THE REMAND PROCEEDINGS, OBSERVED THAT THE SUMMON S ISSUED U/S 131 TO SHRI ROHITASH WAS RECEIVED BACK UNSERVED FOR WANT OF FUL L ADDRESS. HOWEVER, CONSIDERING THAT RS. 15,75,000/- IS DULY RECORDED I N THE BOOKS OF THE ASSESSEE THE AO ACCEPTED THE EXPLANATION OF THE ASSESSEE TO THIS EXTENT. IN ABOVE CONNECTION, IT MAY BE NOTED THAT THE ASSES SEE COULD NOT PRODUCE SHRI ROHITASH ON 30.11.2016 DUE TO A DEATH IN HIS FAMILY. THEREAFTER, HE WAS PRODUCED ON 05.12.2016 BUT AS THE AO WAS ON LEAVE, HIS AFFIDAVIT WAS FILED (PB 70-71). IN THE AFFIDAVIT, SHRI ROHITASH HAS EXPLAINED THE E NTIRE FACTS RELATING TO THE NEGOTIATION OF THE SALE OF LAND BEL ONGING TO HIS WIFE FOR RS. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 11 22,50,000/- AND HAS ADMITTED THAT HE HAS NOT RECEIV ED ANY AMOUNT FROM THE ASSESSEE DURING THE FY 2012-13. THE LD. CIT(A) HOWE VER, WITHOUT CONSIDERING THE REMAND REPORT OF THE AO AND THE AFF IDAVIT OF SHRI ROHITASH HAS CONFIRMED THE ADDITION OF THE ENTIRE AMOUNT OF RS. 22,50,000/- WHICH IS UNJUSTIFIED AND UNCALLED FOR. IN RESPECT OF COMMISSION INCOME OF RS. 1 LAKH, THE ASSESSEE IN HIS STATEMENT HAS STATED THAT HE AND HIS BROTHER HAVE E ARNED COMMISSION INCOME OF RS. 1 LAKH DURING THE YEAR. HOWEVER, NO EVIDENCE OF ANY COMMISSION INCOME WAS FOUND IN SURVEY. IN ANY CASE, ASSESSEE HAS FILE D THE RETURN DECLARING INCOME OF RS. 55,21,450/- THEREFORE, IN THE ABSENCE OF ANY EVIDENCE OF COMMISSION INCOME NO SEPARATE ADDITION IS CALLED FO R KEEPING IN VIEW THE INCOME DECLARED BY THE ASSESSEE. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY THE LD. CIT(A) BE DIRECTED TO BE DELETED. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE SURRENDE RED RS.67,50,000/- ON THE BASIS OF PG NO.12 OF ANNEXURE A-1 (PB PAGE 19) ON ACCOUNT OF INVESTMENT IN PROPERTIES. THE ENTRIES ON THIS PAPER ARE REPRODUCED AS UNDER:- 3000000 PRITHVI NOV 500000 ABHAY 05.11.2012 1000000 DSP 2250000 ROHITASH 6750000 ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 12 THE ASSESSEE HAD RETRACTED THE STATEMENT RECORDED B Y FILING AN AFFIDAVIT. THE RELEVANT PARAS OF AFFIDAVIT PLACED AT PAGE 47 & 48 ARE REPRODUCED HEREUNDER:- 6.0 THE RECORDING OF THE ABOVE STATEMENTS WERE BE GAN AT 12.50 AFTERNOON ON 03-01-2013 AND WERE CONTINUED TI LL 3.30 MIDNIGHT OF 04-01-2013. 7.0 THAT ON ACCOUNT OF LONG AND TIRING EXERCISE OF RECORDING OF STATEMENT, I GOT EXHAUSTED AND WAS NOT IN A SOUND STATE OF MIND AND REPLIED TO THE VARIOUS QUES TIONS AGAINST THE FATS AND WITHOUT VERIFYING FROM THE BOO KS OF ACCOUNTS. 8.0 THAT DURING THE COURSE OF RECORDING OF STATEMEN T, I WAS NOT ALLOWED BY THE SURVEY PARTY TO VERIFY THE F ACTS FROM THE BOOKS OF ACCOUNTS. 9.0 TO 12.0...... 13.0 DURING THE COURSE OF SURVEY A LOOSE PAPER NUMB ER 12 OF ANNEXURE A-1 WAS FOUND, WHEREIN THE FOLLOWING NO TTINGS/ JOTTINGS WERE MENTIONED. 13.1 PRITHVI 30,00,000.00 13.2 ABHAY 5,00,000.00 13.3 DSP 10,00,000.00 13.4 ROHITASH 22,50,000.00 TOTAL 67,50,000.00 14.0 WHILE REPLYING THE QUESTION NUMBER 9, I HAVE ERRONEOUSLY OFFERED ON ACCOUNT OF THE REASON AS MEN TIONED IN PARA NUMBER 6 & 7 SUPRA, AS MY UNDISCLOSED INCOME O F 50% OF 67,50,000/- I.E. RUPEES 33,75,000.00 FOR THE CUR RENT ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 13 FINANCIAL YEAR AND THE REMAINING 50% OF 67,50,000.0 0 I.E. RUPEES 33,75,000.00 AS UNDISCLOSED INCOME OF MY BRO THER SHRI GIRISH DATA. 15.0 I HEREBY RETRACT FROM THE OFFERING THE UNDISCL OSED INCOME AS MADE WHILE REPLYING TO THE QUESTION NUMBE R 9 ON PAGE NUMBER 5 & 6 OF THE STATEMENT DATED 03-01-2013 BEING 50% OF 67,50,000.00 I.E. RUPEES 33,75,000.00 IN MY HANDS AND REMAINING OF RUPEES 67,50,000.00 I.E. RUPEES 33,75,000.00 IN THE HANDS OF MY BROTHER SHRI GIRISH DATA ON ACCOUNT OF THE REASON AND EXPLANATION GIVEN HEREUND ER. 16.0 THE NOTINGS AND JOTTINGS GIVEN IN THE LOOSE PA PER NUMBER 12 OF ANNEXURE A-1 IS THE ASKING RATE OR AMO UNT OF THE PROPERTY OF THE REASONS MENTIONED IN PARA NUMBE R 13.0 WHICH EXCEPT THE TRANSACTION WITH WIFE OF SHRI ROHI TASH KUMAR OF RUPEES 15,75,000.00 ULTIMATELY COULD NOT MATERIALIZE ON ACCOUNT OF ONE REASON OR OTHER AS ME NTIONED HEREUNDER. 17.0 THAT EXCEPT THE TRANSACTION WITH THE WIFE OF S HRI ROHITASH KUMAR OF RUPEES15,75,000.00 ON OTHER TRANS ACTION WAS EFFECTED NOR MADE ANY INVESTMENT, THEREFORE, I HAVE MADE THE RETRACTION AS MENTIONED IN PARA NUMBER 15. 0 HEREOF. 18.0 THAT I HAVE RECORDED THE TRANSACTION ENTERED I NTO WITH THE WIFE OF SHRI ROHITASH KUMAR IN MY REGULAR BOOKS OF ACCOUNT. 19.0 RUPEES 30,00,000.00 OR PRATHVI:- THAT SHRI PRA THVI RAJ YADAV WAS ASKING A SUM OF RUPEES 30,00,000.00 F OR THE SALE OF HIS TOTAL HOLDING OF AGRICULTURE LAND. HE W AS HAVING THE TOTAL AGRICULTURE LAND DOF0.700 HECTARE. THE AS KING AMOUNT OF AGRICULTURE LAND HOLDING BY SHRI PRATHVI RAJ WAS FOUND TO BE VERY MUCH ON EXCESSIVE SIDE, THEREFORE, I DECLINED TO BUY THIS AGRICULTURE HOLDING. SHRI PRAT HVI RAJ YADAV THEN SOLD PART OF HIS AGRICULTURE LAND ON 14- 03-2013 THROUGH REGISTERED SALE DEED FOR A SUM OF RUPEES ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 14 11,71,000.00 TO SHRI CHARAN SINGH S/O SHRI BALBIR S INGH CHOUDHARY R/O VILLAGE: JATKA, TEHSIL-KISHANGARH (MO BILE NUMBER 9214456254) AND SHRI SURAT SINGH S/O SHRI PO KHAR RAM YADAV R/O KULTAJPUR, TEHSIL-KISHANGARH (MOBILE NUMBER 978537476). SINCE NO TRANSACTION WAS EFFECTE D WITH SHRI PRITHVI RAJ YADAV, THEREFORE NO AMOUNT OF RUPE ES 30,00,000.00 CAN BE CONSIDERED AS UNDISCLOSED INVES TMENT EITHER IN MY HANDS NOR IN THE HANDS OF MY BROTHER S HRI GIRISH DATA. 17.0 RUPEES 50,00,000.00 OF ABHAY:-SHRI ABHYA WAS T HE OCCUPIER OF THE LAND BELONGING TO SHRI PRITHVI RAJ YADAV WHICH I WAS PROPOSING TO BUY AND RUPEES 5,00,000.00 WAS PROPOSED TO BE GIVEN TO HIM IN CONSIDERATION OF VAC ATING THE LAND. SINCE THE DEAL WITH SHRI PRITHVI RAJ YADAV CO ULD NOT BE MATERIALZED, THEREFORE, NO AMOUNT WAS GIVEN TO HIM. IN VIEW THEREOF, NO AMOUNT OF RUPEES 5,00,000.00 CAN BE CON SIDERED AS UNDISCLOSED INVESTMENT EITHER IN MY HANDS NOR IN THE HANDS OF MY BROTHER SHRI GIRISH DATA. 18.0 RUPEES 10,00,000.00 OF DSP:- I WAS PLANNING TO BUY THE AGRICULTURE LAND BEARING KHASRA NUMBER 250 MEAS URING 0.32 HECTARE IN VILLAGE DANTLA TEHSIL MUNDAWAR, DIS TT.ALWAR OF SMT.SUNITAW/O SHRI SISHRAM SAHRAWAT R/O NANGAL CHOUDHARY TEHSIL NARNAUL FOR A SUM OF RUPEES 10,00,000.00. SHRI SISHRAM SAHARAWAT IS KOWN AS DSP , THEREFORE, THERE IS A REFERENCE OF DSP IN THE LOOSE PAPER NUMBER 12, BUT SUBSEQUENTLY THE SELLER REFUSED TO S ALE THE SAID AGRICULTURE LAND ON ACCOUNT OF LOWER SALE CONS IDERATION. THE SELLER ULTIMATELY SOLD THE KHASRA NUMBER 250 TO THREE PERSONS NAMELY SHRI AJAY MISRA, SHRI CHARAN SINGH, SHRI DEEP CHAND AND SHRI DEEPAK SHARMA THROUGH REGISTERE D SALE DEED DATED 11-02-2013. SINCE NO SALE TRANSACTION WA S EFFECTED WITH SMT. SUNITA W/O SHRI SISHRAM SAHARAWA T (DSP), THEREFORE, NO AMOUNT OF RUPEES 10,00,000.00 CAN BE CONSIDERED AS UNDISCLOSED INVESTMENT EITHER IN MY H ANDS NOR IN THE HANDS OF MY BROTHER SHRI GIRISH DATA. ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 15 19.0 RUPEES 22,50,000.00 OF ROHITASH:- SMT. CHANDRA DEVI W/O SHRI ROHITASH R/O BILASPUR TEHSIL GURGAON WAS HAVING THE AGRICULTURE LAND BEARING KHASRA NO. 245 AND 266 IN VILLAGE DATLA, TEHSISL MUNDAWAR, DISTT. ALWAR. INIT IALLY I PLANNED TO BUY BOTH THE KHASRA NUMBER 245 AND 266 I N VILLAGE DATLA,TEHSIL MUNDAWAR, DISTT. ALWAR. INITIA LLY I PLANNED TO BUY BOTH THE KHASRA NUMBER BUT SUBSEQUEN TLY DUE TO NON-AVAILABILITY OF FUNDS, BOUGHT ONLY KHASR A NUMBER 245 FOR A SUM OF RUPEESS 15,75,000.00 THROUGH REGIS TERED SALE DEED DATED 16-05-2013 AND SMT. CHANDRA DEVI W/ O SHRI ROHITASH SOLD ANOTHER KHASRA NUMBER 266 FOR A SUM OF RUPEES 8,55,000.00 TO SHRI DEEPAK SHARMA AGE 22 YEA RS S/O SHRI KRISHANA KUMAR SHARMA R/O D-110, D BLOCK, YADA V NAGAR, SAMAYPUR, DELHI (MOBILE NUMBER 09211845588) AGAIN THROUGH REGISTERED SALE DEED DATED 16-05-2013 . I HAVE SHOWN THE INVESTMENT OF RUPEES 15,75,000.00 IN THE PURCHASE OF AGRICULTURE LAND VIDE KHASRA NUMBER 245 IN MY REGULAR BOOKS OF ACCOUNT, THEREFORE, NO AMOUNT OF 22,50,000.00 CAN BE CONSIDERED AS UNDISCLOSED INVES TMENT EITHER IN MY HANDS NO IN THE HANDS OF MY BROTHER SH RI GIRISH DATA. FROM PERUSAL OF CONTENT OF THIS PAPER, WE HOLD THA T THERE IS NO CLEAR INDICATION OF ANY PAYMENT MADE TO THESE PERSONS PAR TICULARLY ON THE DATE MENTIONED THEREIN. THE PAPER ITSELF IS NOT SUFFICIE NT TO ARRIVE AT A FINDING THAT IT WAS AN INVESTMENT IN ANY PROPERTY. IT IS AL SO NOTED THAT THE PERSONS MENTIONED IN THIS SHEET HAVE SOLD THEIR AGRICULTURE LAND TO VARIOUS OTHER PERSONS RATHER THAN ASSESSEE WHICH ARE EVIDENCED F ROM THE VARIOUS REGISTERED SALE DEED PLACED IN PB PAGES 51-64. THE ASSESSEE HAD ONLY PURCHASED KHASRA NO. 245 OF AGRICULTURAL LAND FRO M SH. ROHITASH ON ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 16 16.05.2013 FOR RS.15,75,000/- WHICH IS DULY RECORDE D IN THE BOOKS OF ACCOUNTS. THE ANOTHER LAND OF KHASRA NO.266 HAD BE EN SOLD BY SHRI ROHITASH TO SHRI DEEPAK SHARMA FOR RS.8,55,000/-. SH. PRITHVI RAJ YADAV HAS STATED THAT HE HAS NEITHER RECEIVED ANY AMOUNT OF RS.30 LACS FROM THE ASSESSEE NOR SOLD ANY AGRICULTURAL LAND TO THE ASSESSEE. SH. PRITHVI RAJ YADAV HAD SOLD HIS LAND ON 14-03-2013 T O SHRI CHARAN SINGH AND SURAT SINGH FOR RS. 11,71,000/-. THE RELEVANT S ALE DEED IS PLACED AT PAGES 51 TO 55 OF PAPER BOOK. SH. PRITHVI RAJ YADAV HAD ALSO DENIED ANY TRANSACTION OF RS. 30.00 LACS WITH ASSESSEE IN HIS STATEMENT. THUS THE ALLEGATION OF INVESTMENT OF RS. 30.00 LACS WITH PRI THVI IS NOT ESTABLISHED. THE PAYMENT TO SHRI ABHAY FOR VACATING THE LAND IS ALSO NOT ESTABLISHED AS THERE IS NO PURCHASE OF LAND FROM SH. PRITHVI RAJ . THE FACT REGARDING PURCHASE OF LAND FOR DSP ( SHISHRAM SAHARAWAT) IS A LSO NOT ESTABLISHED AS LAND BY WIFE OF SAHARAWAT, SUNITA HAD SOLD TO SHRI AJAY MISHRA. THE FACT ABOUT PURCHASE OF LAND OF KHASRA NO. 245 IS RECORD ED IN BOOKS OF ACCOUNT OF ASSESSEE. IN THE REMAND REPORT, THE AO HAD ALSO ACCEPTED THAT PURCHASE OF LAND OF RS.15,75,000/- FROM SH. ROHITAS H IS RECORDED IN THE BOOKS OF ASSESSEE. THE LOWER AUTHORITIES HAVE NOT B ROUGHT ANY MATERIAL ON RECORD AGAINST THE REGISTERED SALE DEED TO ESTABLIS H THAT THE ASSESSEE HAS ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 17 PURCHASED ANY LAND FROM THESE PERSONS EXCEPT FOR TH E LAND PURCHASED FROM SH. ROHITASH NOR ANY MATERIAL THAT CASH HAS BE EN PAID BY THE ASSESSEE TO THESE PERSONS. THEREFORE, THE ADDITION OF RS.67,50,000/- MADE ON THE BASIS OF PAGE 12 OF ANNEXURE A-1 AND ON THE BASIS OF THE STATEMENT RECORDED DURING SURVEY WHICH WAS DULY RET RACTED BY FILING AN AFFIDAVIT DATED 16-05-2014 HAD NO EVIDENTIARY VALU E AS HELD BY SUPREME COURT IN CASE OF CIT VS. S. KHADER KHAN SONS 352 IT R 480. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE HAD ALSO FILED DOCUMENTARY EVIDENCES THAT THE PERSONS MENTIONED IN THE PAPER HAVE SOLD T HEIR LAND TO SOME OTHER PERSONS BY REGISTERED SALE DEED PLACED AT PB PAGES 51-64 RATHER THAN ASSESSEE AS ALLEGED BY AUTHORITIES BELOW. IN SUCH FACTUAL MATRIX NO ADDITION COULD BE SUSTAINED FOR THE INVESTMENT MA DE IN SUCH PROPERTIES IN THE HANDS OF ASSESSEE. THUS THE ADDITION CONFI RMED BY THE LD. CIT(A) AMOUNTING TO RS. 67,50,000/- IS DELETED. THUS GROU ND NO. 1 OF THE ASSESSEE IS ALLOWED. 2.4(1) AS REGARDS GROUND NO.2 OF THE ASSESSEE, W E FIND THAT ADDITION OF RS.1 LACS IS ALSO MADE SIMPLY ON THE B ASIS OF THE STATEMENT WITHOUT REFERRING TO ANY PAPER IMPOUNDED IN SURVEY TO SUGGEST THAT ASSESSEE HAS EARNED ANY COMMISSION INCOME NOT DISCL OSED IN THE RETURN ITA NO.297/JP/2017 SHR I PADAM DATA VS DCIT, CIRCLE 1,ALWAR 18 PARTICULARLY WHEN ASSESSEE HAS FILED THE RETURN DEC LARING INCOME OF RS.55.21 LACS AND HIS BROTHER GIRISH DATA HAS FILED THE RETURN DECLARING INCOME OF RS.49.99 LACS. THE ORDER OF THE LOWER AUT HORITIES DO NOT INDICATE THE PROPER BASIS OF CONFIRMING THE ADDITIO N OF RS. 1.00 LAC IN THE HANDS OF THE ASSESSEE EXCEPT FOR HIS STATEMENT WHIC H DO NOT HAVE EVIDENTIARY VALUE AS DISCUSSED IN GROUND NO. 1 ABOV E. HENCE, THE ADDITION OF RS. 1.00 LAC IS DELETED BY ALLOWING TH E GROUND OF ASSESSEE. THUS GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 25-01-2018. SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /01/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI PADAM DATA, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CIRCLE 1, ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 297/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR