Appeal Details
Counselvise Citation
[2016] 132 COUNSELVISE.COM (IT) 8220 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 year(s) 10 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
19-04-2016
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
E
Next Hearing Date
22-02-2016
Assessment Year
2007-2008
Appeal Filed On
13-06-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO.-3150-3152/DEL/2011 (ASSESSMENT YEAR-2006-07 TO 2008 -09) ACIT, CENTRAL CIRCLE-12, MEERUT (APPELLANT) S MUKESH JOSHI, P-2/18,KAILASH DHAM SOCIETY, SECTOR-50, NOIDA PAN-ACRPJ0305L (RESPONDENT) APPELLANT BY MS. MITALI MADHUSMITA, CIT DR RESPONDENT BY SH.VINOD KUMAR BINDAL, CA ORDER PER DIVA SINGH, JM THESE THREE APPEALS HAVE BEEN FILED BY THE REVENUE ASSAILING THE CORRECTNESS OF THREE SEPARATE ORDERS DATED 25.03.20 11 OF CIT(A), MEERUT PERTAINING TO 2006-07 TO 2008-09 ASSESSMENT YEARS. ALL THESE APPEALS ARE BEING DECIDED BY A COMMON ORDER FOR THE SAKE OF CONVENIEN CE, AS THE ISSUES RAISED THEREIN ALL INTER-LINKED. 2. THE RELEVANT FACTS OF CASE ARE THAT THE ASSESSEES PREMISES NO.P-2/18, KAILASH DHAM SOCIETY, SEC-50, NOIDA WERE SUBJECTED TO A SEARCH OPERATION ON 15.02.2008. SUBSEQUENTLY, SEARCH WARRANTS IN RESPE CT OF LOCKERS NOS.270 AND 234, AXIS BANK, SEC-18, NOIDA IN THE NAME OF THE AS SESSEE AND HIS WIFE WERE ISSUED AND ACCORDINGLY, THE SAID LOCKERS WERE ALSO SEARCHED ON 03.03.2008. DURING THE COURSE OF THE SEARCH OPERATION, THE FOLL OWING CASH AND JEWELLERY WERE FOUND:- APPEAL NO DATE OF HEARING ITA NO. - 3150/DEL/2011 24.02.2016 ITA NOS. - 3151&3152/DEL/2011- 25.02.2016 DATE OF PRONOUNCEMENT 19 .04.2016 I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 2 CASH AT RESIDENCE NO.P-2/18, KAILASH DHAM SOCIETY, SEC-50, NOIDA RS.7,56,000/- CASH FROM LOCKER NO.234, AXIS BANK, SEC-18, NOIDA RS.10,00,000/- JEWELLERY AT RESIDENCE NO.P-2/18, KAILASH DHAM SOCI ETY, SEC-50, NOIDA RS.6,01,197/- JEWELLERY FROM LOCKER NO.270, AXIS BANK, SEC-18, NO IDA RS.5,29,385/- 3. THE AO AFTER ISSUANCE OF NOTICE U/S 153A FOR THE Y EARS UNDER CONSIDERATION REQUIRED THE ASSESSEE TO FILE THE RET URNS. THE ASSESSEE IN THE THREE ASSESSMENT YEARS DECLARED AN INCOME OF RS.1,8 1,227/-; RS.1,38,34,940/-; AND RS.1,75,94,790/- RESPECTIVELY. THE ADDITIONS H AVE BEEN MADE BY THE AO IN THE THREE YEARS UNDER CONSIDERATION. MOST OF THESE WERE MORE OR LESS DELETED IN APPEAL BY THE CIT(A) LEADING TO THE FILING OF THESE THREE APPEALS BY THE REVENUE. 4. IN ITA NO.3150/DEL/2011 THE REVENUE IS BEFORE US ON THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF CIT(A) IS ERRONEOUS IN JAW AN D ON FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT IN CONTRAVENTION TO RULE 46-A OF THE I.T.RULES WITH OUT GIVING PROPER OPPORTUNITY TO THE A.O. TO REBUTT THE APPELLANT'S C LAIM. 2. THAT THE C1T{A) ERRED IN LAW IN DELETING THE ADD ITION OF RS, 2,50,OQQ/- AND RS. 60,000/- ON ACCOUNT OF UNEXPLAIN ED CASH DEPOSITED IN BANK WITHOUT APPRECIATING THE FACT AND WITHOUT ANY BASIS IGNORING THE FACTS BROUGHT ON RECORDS BY THE A.O. AND BY SUBSTITUTING HIS OWN SATISFACTION IN PLACE OF A.O.' S SATISFACTION. 3. THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF RS 85,00,000/- BEING THE AMOUNT RECEIVED IN CASH FROM M/S SANRAJ H EALTH (P.) LIMITED WITHOUT APPRECIATING THE FACTS THAT THIS AD DITION WAS MADE ON THE BASIS OF SEIZED DOCUMENT AT ANNEXURE LP -3 WHICH CONSTITUTED AN EVIDENCE IN TERMS OF SECTION 132 OF THE IT. ACT. 4. THAT THE CIT (A) ERRED IN DELETING THE ADDITION OF RS.40,93,200/- ON ACCOUNT OF CASH PAYMENT FOR LAND TRANSACTIONS WI THOUT APPRECIATING THE FACT THIS ADDITION WAS MADE ON THE BASIS OF SEIZED DOCUMENT AT ANNEXURE A-1 WHICH CONSTITUTED A N EVIDENCE IN TERMS OF SECTION 132 OF THE I.T. ACT. 5. THAT THE ORDER OF THE CIT (A) BEING ERRONEOUS I N LAW AND ON FACTS NEEDS TO BE VACATED AND THE ORDER OF THE AO. BE RES TORED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 5. INVITING ATTENTION TO GROUND NO. 1, IT WAS SUBMITT ED BY THE LD. CIT DR THAT IN THE REMAINING 2 YEARS ALSO AN IDENTICAL GRO UND HAS BEEN RAISED BY THE REVENUE AS GROUND NO.1. ACCORDINGLY IT WAS HER SUB MISSION THAT THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 3 ARGUMENTS ADVANCED HERE WOULD ADDRESS THE IDENTICAL GROUND IN THOSE TWO APPEALS ALSO. ADDRESSING THE GROUND RAISED IT WAS SUBMITTED BY HER THAT THE REVENUE IS AGGRIEVED BY THE ACTION OF THE CIT(A) IN ACCEPTING FRESH EVIDENCES. ON QUERY IT WAS CONCEDED THAT A REMAND REPORT HAS B EEN OBTAINED FROM THE AO BY THE CIT(A). THUS THE LD.CIT DR WAS REQUIRED TO SHOW HOW RULE 46A WAS STATED TO BE CONTRAVENED. HOWEVER, NO FURTHER ARGUM ENTS DESPITE A QUERY WERE ADVANCED. 6. THE LD. AR HEAVILY RELYING UPON THE SUBMISSION ADV ANCED BEFORE THE CIT(A) FOR ADMISSION OF FRESH EVIDENCES SUBMITTED T HAT LACK OF OPPORTUNITY, BEFORE THE AO WAS BORNE OUT FROM THE RECORD. THIS F ACT HAS NOT BEEN ASSAILED BY THE CIT DR. REFERRING TO THE SAME IT WAS SUBMITTED THAT THE PHOTOCOPIES OF THE SEIZED MATERIAL SUPPLIED BY THE INVESTIGATION WING, GHAZIABAD WERE ADMITTEDLY NOT LEGIBLE AND A WRITTEN REQUEST WAS MADE VIDE LET TER DATED 13/04/2009 TO SUPPLY THE SAME. AFTER REPEATED REQUESTS FINALLY LE GIBLE PHOTOCOPIES WERE MADE AVAILABLE ON 12.11.2009 FOR EACH OF THE YEARS. THU S, AFTER RE-FIXING THE HEARING FINALLY TIME ONLY UPTO 15.12.2009 WAS PROVIDED TO T HE ASSESSEE AND THE ASSESSMENT WAS CONCLUDED ON 23.12.2009. THE THIRD P ARTY INDEPENDENT SUPPORTING EVIDENCES OF DEPOSITS IN THE BANK ACCOUN TS IT WAS SUBMITTED COULD NOT BE GATHERED IN THE TIME AVAILABLE. THUS, THE E VIDENCE IN THE FORM OF CONFIRMATION FROM CREDITORS AND PAYEES WERE FILED A S FRESH EVIDENCES AND CONSIDERING THE REMAND REPORT FINALLY FILED AND IND EPENDENT VERIFICATION AND RECORDING OF STATEMENTS OF DEPONENTS BY THE CIT(A) HIMSELF, THE ORDER HAS BEEN PASSED. ACCORDINGLY IT WAS HIS SUBMISSION THAT MOR E THAN ADEQUATE OPPORTUNITY HAS BEEN GIVEN TO THE REVENUE BY THE CI T(A) TO PLACE ITS OBJECTIONS TO THE FRESH EVIDENCES PLACED ON RECORD AND THUS RE LYING UPON THE FINDING OF THE CIT(A), IT WAS SUBMITTED THAT ON FACTS THERE IS NO VIOLATION OF RULE 46A AND I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 4 INFACT THE AO HAS REPEATEDLY BEEN MOST RELUCTANT FO R REASONS BEST LEFT UNADDRESSED TO PLACE A REMAND REPORT ON RECORD. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION THEREOF, WE FIND THAT S INCE LEGIBLE PHOTOCOPIES OF THE SEIZED MATERIAL REQUIRED TO BE ADDRESSED BY THE ASS ESSEE ADMITTEDLY WERE MADE AVAILABLE BY THE AO ON REPEATED REQUESTS FAIRLY CLO SE TO THE FAG END OF THE ASSESSMENT PROCEEDINGS WHICH FINDING OF FACT HAS NO T BEEN ASSAILED BY THE REVENUE. IN THESE FACTS THE NEED FOR THE ASSESSEE TO FILE PETITION FOR ADMISSION OF FRESH EVIDENCE WAS WARRANTED ON FACTS. THE EVIDENC E SOUGHT TO BE RELIED UPON AVAILABLE IN THE PAPER BOOKS BEFORE US, IT IS SEEN IS RELEVANT AND CRUCIAL FOR DECIDING THE ISSUES. WE ALSO FIND THAT THE EVIDENC E HAS BEEN MADE AVAILABLE TO THE AO AND THE LD.CIT(A) HAS ZEALOUSLY PURSUED THE AO TO MAKE A REMAND REPORT AVAILABLE. FROM THE RECORD IT IS SEEN THAT THE PETITION FOR FRESH EVIDENCE DATED 12.02.2010 WAS SENT TO THE ASSESSING OFFICER ON 17.02.2010 AND A REMAND REPORT AFTER REPEATED REMINDERS WAS FINALLY FILED O NLY ON 24.02.2011 I.E. AFTER ALMOST A YEAR. IT IS ALSO SEEN THAT SINCE THE LAST OPPORTUNITY PROVIDED TO THE AO TO FILE THE SAME UPTO 15.02.2011 WAS NOT COMPLIED W ITH THE CIT(A) HOLDING THAT THE POWERS HELD BY HIM WERE CO-TERMINUS WITH THAT OF THE AO CARRIED OUT THE VERIFICATION OF ADDITIONAL EVIDENCES HIMSELF AND PR OCEEDED TO EXAMINE THE WITNESSES AND RECORD THEIR STATEMENT ON OATH ETC. O N 25.02.2011 AND CONSIDERING THE REMAND REPORT WHICH WAS ALSO RECEIV ED BY HIM BY THEN THE IMPUGNED ORDER WAS PASSED. IN THE FACTS AS AVAILAB LE ON RECORD WHICH REMAIN UNASSAILED, WE FINDING OURSELVES IN AGREEMENT WITH THE FOLLOWING REASONING AND CONCLUSION ARRIVED AT BY THE CIT(A) DISMISS THE DEP ARTMENTAL GROUND:- 4. I AM CONVINCED THAT THE REASONABLE/SUFFICIENT TIME WAS NOT GRANTED TO THE ASSESSEE TO FILE THE IMPUGNED EVIDEN CES DURING THE ASSESSMENT PROCEEDINGS AND THESE EVIDENCES FURNISHE D NOW MUST BE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 5 ADMITTED SINCE THEY GO TO THE VERY ROOT OF THE MATT ER. ACCORDINGLY, TO MEET THE ENDS OF JUSTICE, THE SAID FRESH/ADDITIONAL EV IDENCES ALONG WITH THE WRITTEN SUBMISSIONS DATED 12-02-10 OF THE APPELLANT WERE SENT TO THE AO ON 17-02-10 FOR HIS VERIFICATION AND A DIRECTION WAS ISSUED TO FILE HIS COMMENTS THEREON LATEST BY 05- 03-10. ON THIS DATE THE AO SOUGHT FURTHER TIME, WHICH WAS GRANTED TO HIM TILL 10-04-1 0. HOWEVER, NO REPORT WAS STILL FILED BY THE AO ON THE VERIFICATIONS SOUG HT FROM HIM RATHER A REQUEST WAS MADE BY THE ADDL. CIT, CENTRAL, MEERUT ON 15-04-10 URGING FURTHER TIME FOR COMPLIANCE BY THE AO, WHICH WAS YE T AGAIN GRANTED UP TO 30-04-10 BUT WITH THE CLEAR DIRECTIONS THAT NO FURT HER TIME SHALL BE ALLOWED. THE AO DID NOT SUBMIT HIS REMAND REPORT EV EN UP TO 30-04-10. THE AO AND THE ADDL. CIT DID NOT EVEN MAKE COMPLIAN CE TO THE DIRECTIONS OF THE CIT, CENTRAL, KANPUR TO SUBMIT REPORT BY RET URN OF POST WHICH WAS CONVEYED TO THEM VIDE HIS LETTER NO. 165 DATED 27-0 4-10. FURTHER REMINDERS WERE SENT TO THE AO ON 03-05-10 AND 13-07 -10, BUT NO COMPLIANCE WAS MADE BY THE AO. FINALLY, ON 31-01-11 LAST OPPORTUNITY WAS PROVIDED TO THE AO TO FILE HIS COMMENTS BY 15-0 2-11 WITH THE DIRECTIONS THAT IN THE EVENT OF FAILURE TO DO SO, T HE MATTER WOULD BE DECIDED EXPARTE. SINCE THE POWERS OF THE APPELLATE AUTHORITY ARE CO- TERMINUS WITH THAT OF THE ASSESSING AUTHORITY, THE APPELLATE PROCEEDINGS WERE RESUMED ON 22-02-11 AND THE VERIFICATION OF TH E ADDITIONAL EVIDENCES WAS UNDERTAKEN BY THIS OFFICE ITSELF AND THE AR WAS ASKED TO PRODUCE THE ASSESSEE AND THE WITNESSES FOR THEIR PE RSONAL DEPOSITION ON 25-02-11. HOWEVER, IN THE MEANWHILE, REMAND REPORT OF THE AO WAS ULTIMATELY RECEIVED ON 24.02.11 IN MY OFFICE, AND T HE APPELLANT AND WITNESSES ALSO APPEARED IN PERSON FOR DEPOSITION ON 25-02-11, AS DIRECTED BY ME, WHO FURNISHED THEIR AFFIDAVITS AND WHOSE STATEMENTS WERE RECORDED ON OATH. THE REMAND REPORT, IN THE IN TEREST OF JUSTICE, WAS TAKEN ON RECORD AND A COPY OF THE AOS REMAND REPOR T WAS SUPPLIED TO THE AR ON 25-02-11 AGAINST WHICH A REJOINDER WAS SU BMITTED ON 28-02- 11. 8. ADDRESSING GROUND NO. 2 IT WAS SUBMITTED BY THE LD . CIT DR THAT THE FACTS ARE FOUND ADDRESSED IN THE UN-NUMBERED PAGES 2 AND 3 OF THE ASSESSMENT ORDER. THE ASSESSEE IT WAS SUBMITTED WAS REQUIRED T O EXPLAIN THE DEPOSITS TOTALING TO RS.2,29,500/-IN S.B. ACCOUNT NO. 16456 MAINTAINED WITH THE CANARA BANK AND A FEW MORE DEPOSITS TOTALING RS.21, 000/- IN S.B. ACCOUNT NO.12485 ALSO MAINTAINED WITH THE CANARA BANK. THE ASSESSEE FAILED TO EXPLAIN THE SAME LEADING TO THE ADDITION OF RS. 2,50,500/-. 8.1. APART FROM THESE DEPOSITION IT WAS SUBMITTED THE A SSESSEE HAD DEPOSITED (20,000/- + RS.10,000/- + RS.10,000/- + RS.20,000/- ) ON FOUR DIFFERENT DATES IN THE S.B. ACCOUNT OF 12485, TOTALING TO RS.60,000/-. HEREIN ALSO NO SATISFACTORY EXPLANATION COULD BE OFFERED APART FROM CLAIMING TH AT THREE OF THE DEPOSITS WERE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 6 LOANS FROM HIS MOTHER-IN-LAW, SMT.KAUSHLAYA SEHGAL. DESPITE AN OPPORTUNITY, CONFIRMATIONS FROM THESE CREDITORS WAS NOT FILED LE ADING TO THE ADDITION OF RS.60,000/-. 8.2. CARRYING US THROUGH THE OBSERVATIONS MADE BY THE A O IT WAS HER SUBMISSION THAT THE ADDITIONS HAVE BEEN DELETED BY THE CIT(A) WITHOUT CARING TO ADDRESS FULL FACTS PROPERLY. ACCORDINGLY RELYING U PON THE ASSESSMENT ORDER, IT WAS HER SUBMISSION THAT THE ADDITIONS MAY BE SUSTAI NED OR THE MATTER BE REMANDED BACK TO THE AO FOR FRESH CONSIDERATION 9. THE LD. AR OPPOSING THE PRAYER MADE TOOK STRONG OB JECTION TO THE DEPARTMENTAL ARGUMENTS AND THE REQUEST. INVITING A TTENTION TO THE DETAILED EXPLANATION OFFERED BY THE ASSESSEE ON FACTS AND SP ECIFICALLY THE ASSESSING OFFICERS OPINION EXPRESSED IN THE REMAND REPORT EX TRACTED IN THE ORDER IT WAS HIS SUBMISSION THAT THE AO HAVING GIVEN UP THE ISSU E IN THE REMAND REPORT ITSELF AS FAR AS THE ADDITION OF RS.60,000/- WAS CO NCERNED THE SPECIFIC ADDITION COULD NOT HAVE BEEN CHALLENGED THEREAFTER AND IN T HESE FACTS THERE COULD HAVE BEEN NO OCCASION FOR THE CIT DR TO RELY UPON THE A SSESSMENT ORDER AND MAKE THE PRAYER FOR CONFIRMING THE ADDITION OR RESTORING THE MATTER. 9.1. SIMILARLY ADDRESSING THE ADDITION OF RS.21,000/- D ELETED IT WAS SUBMITTED THE RAISING OF THE GROUND BY THE AO WAS WRONG AS TH IS ISSUE ALSO HAD BEEN GIVEN UP BY THE AO HIMSELF AS PER PARA 6.3 OF THE I MPUGNED ORDER. ACCORDINGLY HEAVY RELIANCE WAS PLACED THEREON. 9.2. ADDRESSING THE REMAINING AMOUNT OF RS.2,29,500/- I T WAS SUBMITTED THAT ALL ALONG THE ASSESSEE HAS BEEN CLAIMING THAT THES E DEPOSITS REPRESENTED UNDISCLOSED INCOME OF M/S LUMEN ALCHEMY EXIM P. LTD . WHICH HAD INTRODUCED, THE AMOUNT BACK IN ITS BUSINESS FROM ROUTING THROU GH THE BANK ACCOUNT OF THE ASSESSEE AND MOST IMPORTANT IT HAS BEEN ADMITTED AS UNDISCLOSED INCOME OF I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 7 THAT COMPANY. THIS CLAIM WAS SUPPORTED BY AN ASSES SMENT ORDER PASSED U/S 143(3) FOR 2006-07 AY IN THE CASE OF THAT ASSESSEE . THE AO IN THE FACTS OF THE PRESENT CASE IN UN-NUMBERED PAGE 2 ALSO TAKES NOTE OF THE FOLLOWING FACT:- DURING THE YEAR ASSESSEE HAS SHOWN INCOME FROM SAL ARY AT RS.2,78,400/- RECEIVED FROM M/S LUMEN ALCHEMY EXIM P.LTD. IN WHICH HE IS A DIRECTOR AND SHAREHOLDER. BESIDES, LOSS FR OM HOUSE PROPERTY AMOUNTING TO RS.76,645/- AS INTEREST PAID ON HOUSIN G LOAN IN RESPECT OF SELF-OCCUPIED PROPERTY, BUSINESS INCOME OF RS.64,70 0/- FROM CONSULTANCY AND INCOME FROM OTHER SOURCES CONSISTIN G OF INTEREST ON TERM DEPOSIT AND SAVING ACCOUNTS HAVE ALSO BEEN DECLARED . 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME, WE FIND THAT AS FAR AS THE AMOUNT OF RS.2,50,000/- IS CONCERNED, IT IS SEEN THAT IT CONS ISTS OF RS.2,29,500 AND RS.21,000/-. WE FIND THAT THE LD. AR IS CORRECT IN HIS SUBMISSIONS THAT THE RELIEF OF RS.21,000/- HAS BEEN GIVEN BY THE ASSESSI NG OFFICER HIMSELF IN THE REMAND REPORT AS PER PARA 6.3 OF THE IMPUGNED ORDER . ACCORDINGLY WE FIND THE AO COULD NOT BE SAID TO BE AGGRIEVED THEREAFTER. T HE RAISING OF THE GROUND TO THAT EXTENT IS FOUND TO BE NOT JUSTIFIED. IN REGAR D TO THE REMAINING ADDITION OF RS.2,29,500/-, WE FIND IN THE FACE OF THE ADDITION OF THE VERY SAME AMOUNT AS UNDISCLOSED INCOME OF M/S LUMEN ALCHEMY EXIM P. LTD . THE SAME CANNOT AGAIN BE ADDED AS INCOME OF THE ASSESSEE. ACCORDINGLY FI NDING OURSELVES IN AGREEMENT WITH THE CONCLUSIONS ARRIVED AT BY THE CIT(A) IN PA RA 6.5(I) AND 6.5(II) THE FOLLOWING FINDING IS UPHELD:- 6.5(I) FOR DEPOSITING SUMS IN CASH INTO SB A/C # 1 2485 WITH CANARA BANK- RS.21,000/- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. TWO SUMS OF RS.10,000/- AND RS.11,0 00/- WERE FOUND DEPOSITED IN CASH ON 20.09.05 AND 21.09.05 RESPECTI VELY INT EH BANK ACCOUNT OF THE APPELLANT. IT WAS EXPLAINED BY THE APPELLANT THAT HE HAD RECEIVED CONSULTANCY INCOME IN CASH OF THE EQUIVALE NT AMOUNTS ON THE SAID TWO DATES, WHICH WERE DEPOSITED IN HIS BANK AC COUNT BY HIM. HOWEVER, SINCE A COMBINED CASH FLOW STATEMENT FOR A LL CASH AND BANK TRANSACTIONS HAD BEEN FURNISHED BEFORE THE ASSESSIN G AUTHORITY, THE ENTIRE CONSULTANCY INCOME AGGREGATING TO RS.64,700/ - RECEIVED IN CASH AND THROUGH CHEQUES WAS SHOWN AT ONE PLACE THEREIN. THE DETAILS OF I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 8 CONSULTANCY RECEIPT FURNISHED BY THE APPELLANT SHOW THE TOTAL RECEIPT OF RS.26,250/- THROUGH CHEQUES AND THE BALANCE SUM OF RS.38,450/- IN CASH. THE SAID DETAILS OF TOTAL CONSULTANCY RECEIPTS OF R S.64,700/- SUBMITTED BY THE APPELLANT WAS VERIFIED FROM THE CA SH ACCOUNT AND BANK ACCOUNTS & PASSBOOKS OF THE APPELLANT AND IT WAS FO UND THAT THE IMPUGNED SUMS AGGREGATING TO RS.21,000/- HAD BEEN D ULY SHOWN AS RECEIVED IN CASH ON THE SAID DATES AND ALSO SHOWN A S DEPOSITED IN THE BANK ACCOUNT ON THE SAME DATES. THUS, THE SUM OF R S.21,000/- UNDISPUTEDLY FORMS PART OF THE TOTAL CONSULTANCY RE CEIPT OF RS.64,700/- WHICH WAS DECLARED AS INCOME BY THE APPELLANT IN HI S RETURN OF INCOME AND ALSO ADMITTED AS SUCH BY THE AO INT EH ASSESSME NT ORDER. EVEN THE AO IN HIS REMAND REPORT HAS ACCEPTED THE EXPLANATIO N OF THE APPELLANT IN THIS REGARD AFTER VERIFICATION. ACCOR DINGLY, THE SOURCE OF IMPUGNED CASH DEPOSITS OF RS.21,000/- STA NDS FULLY EXPLAINED AND THE ADDITION SO MADE U/S 69 OF THE AC T IS DELETED. II. FOR DEPOSITING SUMS TOTALING TO RS. 2,29,500/- IN CASH INTO SB A/C # 6456 WITH CANARA BANK I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. THERE IS NO DISPUTE THAT THE SAID SUMS H AD BEEN DEPOSITED IN CASH BY THE APPELLANT IN HIS BANK ACCOUNT DURING T HE RELEVANT PREVIOUS YEAR AND THAT HE WAS A DIRECTOR IN THAT COMPANY. TH ERE IS ALSO NO DISPUTE THAT THE SAID SUMS WERE FURTHER GIVEN TO M/ S LUMEN ALCHEMY EXIM (P) LTD. FROM THE BANK ACCOUNT OF THE APPELLAN T. THE ASSESSMENT ORDER DATED 15-12-08 U/S 143(3) OF THE ITO, WARD 4( 4), NEW DELHI FOR THE AY 2006-07 IN THE CASE OF M/S LUMEN ALCHEMY EXIM (P) LTD. CLEARLY REVEALS THAT THE ADDITION OF THE IMPUG NED SUM OF RS. 2,29,500/- WAS MADE IN THE HANDS OF THAT COMPANY U/ S 68 OF THE ACT AS ITS INCOME. HENCE, IT IS MY CONSIDERED VIEW THAT THE SAID AMOUNTS OF CASH TOTALING TO RS. 2,29,500/- HAD BEEN EARNED FROM UNDISCLOSED SOURCES BY THAT COMPANY, AS HAS ALREADY BEEN ASSESSED AND ALSO ADMITTED BY THAT COMPANY, BUT ROUTED BACK INTO ITS BOOKS THROUGH THE BANK ACCOUNT OF THE APPELLANT. ACCORDIN GLY, THE SUM OF RS. 2,29,500/- CANNOT BE TAXED AGAIN IN THE HANDS OF TH E APPELLANT HIS INCOME NOW AND THE ADDITION SO MADE IS, THEREFORE, DELETED. (EMPHASIS PROVIDED) 10.1. THE REMAINING AMOUNT OF THE RS.60,000/-, IT IS SEE N ALSO HAS BEEN GIVEN UP BY THE ASSESSING OFFICER HIMSELF IN HIS REMAND R EPORT. IN THE CIRCUMSTANCES WE ARE SURPRISED HOW THE AO CAN BE SAID TO BE AGGRI EVED. FOR READY REFERENCE PARA 7.3 OF THE IMPUGNED ORDER IS REPRODUCED HEREUN DER:- 7.3 DECISION AND REASONS THEREFOR: I. FOR CONSULTANCY RECEIPT - RS. 20,000/- IT WAS EXPLAINED BY THE APPELLANT THAT THE SUM OF R S. 20,000/- FOUND CREDITED IN THE BANK ACCOUNT ON 02-07-05 WAS THE RE CEIPT AGAINST CONSULTANCY INCOME DECLARED BY HIM IN THE RETURN OF INCOME. I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISH ED BY THE APPELLANT. THE DETAILS OF CONSULTANCY INCOME TOTALING TO RS. 6 4,700/- HAVE ALREADY BEEN VERIFIED AND EXAMINED IN GROUND NO. 1 HEREIN A BOVE AND IT IS SEEN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 9 THAT THE IMPUGNED CREDIT OF RS. 20,000/- FORMS PART OF THE TOTAL RECEIPT DECLARED BY THE APPELLANT AND ALSO ACCEPTED AS SUCH IN THE ASSESSMENT OF INCOME BY THE AO. EVEN THE AO IN HIS REMAND REPO RT HAS ACCEPTED THE EXPLANATION OF THE APPELLANT IN THIS REGARD AFTER V ERIFICATION. ACCORDINGLY, THE SAID DEPOSIT OF RS. 20,000/- STANDS FULLY EXPLA INED AND THE ADDITION SO MADE U/S 68 OF THE ACT IS DELETED. II. FOR GIFTS RECEIVED FROM MRS. KAUSHALYA SEHGAL - RS. 40,000/ I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. THE APPELLANT WAS ASKED TO PRODUCE M R. K.K. SEHGAL, HUSBAND OF LATE MRS. KAUSHALYA SEHGAL, FOR EXAMINAT ION AND VERIFICATION OF FACTS. MR. K.K. SEHGAL APPEARED AND HIS STATEMEN T WAS RECORDED UNDER OATH ON 25-2-11. HE IS THE FATHER-IN-LAW OF T HE APPELLANT, WHO RETIRED AS THE SECTION OFFICER FROM AFHO, GOVT, OF INDIA ON 31/1/06 AND HIS NOW DECEASED WIFE, MRS. KAUSHALYA SEHGAL, RETIR ED FROM MTNL AS SR. TOA(G) ON 30/11/05. MR. K.K. SEHGAL ADMITTED THAT T HE IMPUGNED GIFTS AND ADVANCES WERE GIVEN IN CASH AND THROUGH BANK AC COUNTS TO THE APPELLANT BY HIM AS WELL AS HIS DECEASED WIFE DURIN G THE CHECK PERIOD COVERED IN THE SEARCH PROCEEDINGS. HE SUBMITTED THE YEAR-WISE SUMMARY STATEMENTS OF THE SAID TRANSACTIONS WITH THE APPELL ANT FOR HIMSELF AND HIS WIFE AND ALSO PRODUCED THE ORIGINAL COPIES OF T HE RELEVANT BANK PASSBOOKS FOR VERIFICATION FROM WHERE THE SAID PAYM ENTS HAD BEEN MADE BY THEM. THE ABOVE GIFTS TOTALING TO RS. 40,000/- W ERE FOUND TO HAVE BEEN GIVEN TO THE APPELLANT FROM HER BANK ACCOUNT O N THREE OCCASIONS. IN FACT, EVEN THE BANK PASSBOOKS OF MRS. KAUSHALYA SEH GAL CLEARLY REVEALED THAT THE IMPUGNED CHEQUES WERE CLEARED TO THE CREDI T OF THE APPELLANTS SB A/C # 12485. EVEN THE AO IN HIS REMAND REPORT HA S ACCEPTED THE EXPLANATION OF THE APPELLANT IN THIS REGARD AFTER V ERIFICATION. ACCORDINGLY, THE SAID DEPOSITS TOTALING TO RS. 40,000/- STANDS F ULLY EXPLAINED AND THE ADDITION SO MADE U/S 68 OF THE ACT IS DELETED. (EMPHASIS PROVIDED) 11. ADDRESSING THE NEXT GROUND ASSAILING THE ADDITION O F RS.85 LACS DELETED BY THE CIT(A) THE LD. CIT DR CARRYING US THROUGH THE R ELEVANT FINDING OF AO AT UN- NUMBERED PAGE 4 AND 5 OF THE ASSESSMENT ORDER SUBMI TTED THAT DURING THE SEARCH AT THE RESIDENCE OF THE ASSESSEE, CERTAIN DO CUMENTS PAGES 50 TO 59 OF ANNEXURE LP 3 AND PAGE 22 OF ANNEXURE LP5 SHOWED THAT THE ASSESSEE HAD ENTERED INTO SOME BUY BACK AGREEMENTS FOR SALE OF L ANDS WITH SH. SANJEEV SETHI OF M/S SANRAJ HEALTH SERVICES PRIVATE LIMITED. AND SH. AJAY JOSHI. THE ASSESSEE HAD ALSO SHOWN OUTSTANDING LIABILITY OF RS .3.50 CRORES IN THE NAME OF M/S SANRAJ HEALTH SERVICES. THE ASSESSEE WAS REQUI RED TO FILE A CONFIRMATION COPY WHICH WAS FILED. THE SAID COPY WHICH ALSO ME NTIONED THAT RS.3.50 CRORES WAS ADVANCED FOR PURCHASE OF LAND AT DEHRADUN ON B EHALF OF M/S SANRAJ HEALTH I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 10 SERVICES. HOWEVER, SEIZED DOCUMENT NO. 57 OF ANNEX URE LP-3 WHICH WAS A PAYMENT RECEIPT DATED 10.10.2005 SIGNED BY THE ASSE SSEE ACKNOWLEDGED THE RECEIPT OF RS.1.85 CRORE TILL 10/10/2005 FROM SH. S ANJEEV SETHI ON BEHALF OF M/S SANRAJ HEALTH SERVICES PRIVATE LIMITED WHERE PART O F IT I.E RS.1 CRORE WAS RECEIVED BY CHEQUE NO. 048363 DATED 10.10.2005 AND RS.75 LAKHS WAS SHOWN TO HAVE BEEN RECEIVED IN CASH FROM MR. SANJEEV SETH I OVER AND ABOVE RS.10 LACS RECEIVED ALONGWITH SH. VIJENDRA SINGH AND SH. ARVIN D KAUSHIK. CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AS UNSATISFACTO RILY ADDITION OF RS.85 LACS WAS MADE BY THE AO. 11.1. IN APPEAL BEFORE THE CIT(A), IT WAS HER SUBMISSI ON GENERAL ARGUMENTS IN REGARDS TO THE NATURE OF ASSESSEES WORK AND OTHER GENERAL SUBMISSIONS ADDRESSING MODUS OPERANDI OF SUCH WORK HAVE BEEN AC CEPTED. THE FACT THAT REMAND REPORT WAS CALLED WAS NOT DISPUTED, BUT, IT WAS SUBMITTED THAT THE AO HAD NOT ACCEPTED THE EVIDENCES RELIED UPON. IT WAS HER SUBMISSION THAT IN THE ABSENCE OF ANY CLEAR-CUT EVIDENCES AND FACTS ON REC ORD THE ISSUE MAY BE REMANDED BACK TO THE FILE OF THE AO FOR A RE-CONSID ERATION ON MERIT, AS ADMITTEDLY THE ASSESSEE HAS CANVASSED THAT TIME AVA ILABLE TO IT BEFORE THE AO WAS NOT SUFFICIENT. IT WAS ALSO HER ARGUMENT THAT THE CIT(A) HAS MERELY ACCEPTED THE ASSESSEES SUBMISSION AND HAS NOT CONS IDERED THE FACTS IN THE PROPER PERSPECTIVE. 12. THE LD. AR IN REPLY INVITING ATTENTION TO THE DETA ILED SUBMISSIONS ADVANCED BEFORE THE CIT(A) WHICH ARE FOUND TO BE RE PRODUCED IN THE ORDER SUBMITTED THAT THE SUBMISSIONS RECORDED AT PAGES 19 TO 27 REPRODUCED IN PARA 8.2 OF THE IMPUGNED ORDER CANNOT BE SAID TO BE GENE RAL ARGUMENTS. THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE IT W AS SUBMITTED MUST BE READ AS A WHOLE AND TAKEN INTO CONSIDERATION. A READING OF THE SAME IT WAS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 11 SUBMITTED WOULD ADDRESS THE ENTIRE FACTS AND CIRCUM STANCES OF THE CASE. IT WAS SUBMITTED THE ASSESSEE HAS EXPLAINED EACH DOCUMENT FOUND AND SEIZED. THE DETAILED SUBMISSION ON FACTS NOT ONLY ADDRESSED THE ISSUE IN THE PRESENT APPEAL IT WAS SUBMITTED BUT WOULD ALSO ADDRESS THE FACTS F OR THE ENTIRE PERIOD. THE FRESH EVIDENCES AMPLIFYING THE SEIZED DOCUMENTS AND KNITTING THE SEIZED DOCUMENTS WITH EACH OTHER ALONGWITH COPIES OF BANK ACCOUNTS FOR ALL THE RESPECTIVE PARTIES WOULD SHOW THAT THE AO HAS NO CA SE. REFERRING TO THE REMAND REPORT WHICH HAS BEEN REPRODUCED IN PARA 8.3 OF THE IMPUGNED ORDER, IT WAS SUBMITTED THAT THE ASSESSING OFFICER INSTEAD OF ADDRESSING THE FACTS AND EVIDENCES ON RECORD PLACED BEFORE HIM FOR CONSIDERA TION INSTEAD AGAIN PROCEEDED ON ASSUMPTIONS AND PREJUDICES WHICH ALSO HAVE BEEN ADDRESSED IN THE REJOINDER OF THE ASSESSEE ALSO REPRODUCED IN PARA 8.4 OF THE IMPUGNED ORDER. HEAVY RELIANCE WAS PLACED THEREON. CONSIDERING THE ENTIR ETY OF THE FACTS AND THE CIRCUMSTANCES, IT WAS SUBMITTED THE CIT(A) PROCEEDE D TO CONSIDER THE ISSUES FROM THE VARIOUS ANGLES RIGHT FROM THE STAGE OF EVI DENCES PERTAINING TO THE YEAR UNDER CONSIDERATION THE SPECIFIC RELEVANT DOCUMENTS HAVE BEEN ADDRESSED IN DETAIL. THE FACT THAT THE ASSESSEE HAS ACTED FOR V ARIOUS PARTIES AT DIFFERENT POINTS OF TIME AS FACILITATOR FOR CONSOLIDATING LAN D HOLDINGS WHERE THE PARTIES AT TIMES DID NOT WANT TO COME DIRECTLY IN FRONT SO AS TO KEEP THE PROCURING PRICE OF THE LAND LOW HAVE ALL BEEN ADDRESSED RIGHT FROM THE STAGE OF THE M/S SANRAJ HEALTH SERVICES AND SUBSEQUENTLY VARIOUS OTHER BUIL DERS WHO ENTERED INTO THE PICTURE FROM TIME TO TIME. THE ASSESSEES ROLE IT WAS SUBMITTED REMAINED CONSTANT I.E. OF A FACILITATOR. THE POSITION STAND S ACCEPTING BY THE AO HIMSELF AS WOULD BE EVIDENT FROM UN-NUMBERED PAGE 5 OF THE ASS ESSMENT ORDER:- I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 12 DURING THE COURSE OF SEARCH OPERATION AND POST SEA RCH INVESTIGATION, IT WAS ADMITTED BY THE ASSESSEE THAT HE IS MAINLY FACILITA TOR/ARRANGER HELPING IN CONSOLIDATION PURCHASE/SALE OF LANDS AT VARIOUS PLA CES WORKING FOR OTHERS AND EARNING INCOME THEREFROM, FOR WHICH A SURRENDE R OF RS. 75 LACS WAS MADE BY HIM FOR THESE ACTIVITIES FOR THE A.Y. 08-09 . 12.1 . ACCORDINGLY THE REQUEST OF THE REVENUE THAT THE I SSUES BE RESTORED BACK TO THE AO WAS STRONGLY OPPOSED. IT WAS HIS SUBMISSION THAT IN ORDER TO CANVASS FOR THE SAID RELIEF IT IS FIRST NECESSARY FOR THE REVEN UE TO JUSTIFY THE PRAYER. THE REQUEST FOR A REMAND IT WAS SUBMITTED CANNOT BE MAD E ON IPSE DIXIT OF THE REVENUE. THE EVIDENCES STAND ADDRESSED BY THE ASSES SEE THE ARGUMENTS ARE RECORDED IN THE ORDER UNDER CHALLENGE. THE FINDING OF THE CIT(A) IS A SPEAKING FINDING. THE EVIDENCES RELIED UPON BY THE ASSESSEE HAVE BEEN MADE AVAILABLE TO THE AO. MORE THAN A YEARS TIME HAS BEEN GIVEN TO THE AO TO CONSIDER THE SAME. THE CIT(A) HAS ALSO INDEPENDENTLY EXAMINED THE EVID ENCES AND ALSO THE DEPONENTS STATEMENTS ON OATH HAVE BEEN RECORDED. THESE FACTS IT WAS SUBMITTED WERE EVIDENT FROM PARA 4 OF THE CIT(A) AN D THE SAID GROUND OF THE REVENUE HAS ALREADY BEEN ADDRESSED. IT WAS FURTHER STATED THAT ALL THESE EVIDENCES ARE AVAILABLE IN THE PAPER BOK FILED FOR EACH OF THE YEARS AND COPY OF THE REMAND REPORT WAS ALSO FILED IN THE COURT. ACC ORDINGLY IT WAS HIS SUBMISSION THAT THE ISSUES HAVE BEEN EXAMINED BY TH E CIT(A) AT HIS OWN LEVEL AS THE ASSESSING OFFICER HAS BEEN RELUCTANT TO FORWARD A REMAND REPORT DESPITE REPEATED REQUESTS. THE REMAND REPORT HAS BEEN OBTA INED IT HAS BEEN CONSIDERED. IN THE CIRCUMSTANCES THE ARGUMENTS OF THE LD. CIT DR DO NOT ADDRESS ANY REASON FOR MAKING THE REQUEST AS MERELY REITERATING THE OBSERVATIONS OF THE ASSESSING OFFICER AS THE FACTS WERE CONSIDERED BY HIM AT THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 13 ASSESSMENT STAGE, NO WAY CAN BE SAID TO BE A JUSTIF ICATION FOR THE PRAYER OF REMAND. 13. WE HAVE HEARD THE RIVALS OMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE ADDRESSING THE ARGUMENTS OF THE RES PECTIVE PARTIES, WE DEEM IT APPROPRIATE TO EXTRACT THE RELEVANT FINDING FROM TH E ASSESSMENT ORDER ON WHICH HEAVY RELIANCE HAD BEEN PLACED BY THE LD. CIT DR:- 8. AOS FINDING FROM THE DETAILS, DOCUMENTS, BANK STATEMENTS, CASH FLOW STATEMENT AND STATEMENT OF AFFAIR, IT IS NOTICED THAT ASSESSEE HA S SHOWN A SUM OF RS.3.50 CRORES AS OUTSTANDING LIABILITY IN THE NAME OF M/S SANRAJ HEALTH SERVICES PVT.LTD. ASSESSEE WAS ASKED TO FILE CONFI RMED COPY OF ACCOUNT FROM THE SAID CREDITOR AND TO FILE ITS BANK STATEME NT AND COPY OF RETURN ALONG WITH BALANCE SHEET OF THE CREDITOR COMPANY. I N RESPONSE, A CONFIRMED COPY OF ACCOUNT HAS BEEN FILED FROM THE S AID COMPANY IN WHICH, IT HAS BEEN CERTIFIED THAT CHEQUES OF RS. 1 CRORE, RS. 1,50 CRORES AND RS. 1 CRORE HAVE BEEN ADVANCED BY THE SAID COMP ANY TO THE ASSESSEE ON 14-10-05, 16-11-05 AND 15-12-05 RESPECT IVELY TOTALING RS. 3.50 CRORES TOWARDS ADVANCE FOR PROCUREMENT OF LAND AT VILLAGE KHIRSHALI, DEHRADUN. ASSESSEE WAS ASKED TO EXPLAIN THE NATURE AND PURPOSE OF THESE ADVANCES AND TO FILE A COPY OF AGR EEMENT IN THIS RESPECT. IN RESPONSE, IT WAS STATED BY THE ASSESSEE THAT THE SAID COMPANY IS NOT COOPERATING ANY FURTHER WITH THE ASSESSEE AND THAT THERE WAS NO WRITTEN AGREEMENT WITH THE SAID COMPANY FOR RECEIVING THE S AID ADVANCE BY THE ASSESSEE. IT WAS FURTHER STATED THAT ASSESSEE HAD R ECEIVED ADVANCE OF RS. 3.50 CRORES FOR PROCUREMENT OF LAND ON BEHALF O F SAID COMPANY. FURTHER, DURING THE COURSE OF SEARCH OPERATION, CER TAIN DOCUMENTS WERE FOUND AND SEIZED FROM THE RESIDENCE OF THE ASS ESSEE. AS PER DOCUMENTS SEIZED AND MENTIONED AT PAGE 50 TO 59 OF ANNEXURE LP-3 AND PAGE 22 OF ANNEXURE LP-5, IT WAS NOTICED THAT ASSES SEE HAS MADE SOME AGREEMENTS FOR SALE OF LANDS TO SH. SANJEEV SETHI C /O M/S SANRAJ HEALTH SERVICES PVT. LTD. AND HAS ALSO ENTERED INTO BUY BA CK AGREEMENTS WITH SH. SANJEEV SETHI (FOR M/S SANRAJ HEALTH SERVICES ( P) LTD.) AND SH. AJAY JOSHI. FROM SEIZED DOCUMENTS NO. 57 OF ANNEXURE LP- 3, WHICH IS A PAYMENT RECEIPT DATED 10-10-05 SIGNED BY SH. MUKESH JOSHI, ASSESSEE, IT IS NOTICED THAT ASSESSEE HAS ACKNOWLEDGED TO HAV E RECEIVED TOTAL PAYMENT OF RS.1.85 CRORES TILL 10-10-05 FROM SH, SA NJEEV SETHI ON BEHALF OF M/S SANRAJ HEALTH SERVICES PVT. LTD. INCLUDING P AYMENT OF RS.1 CRORE VIDE CHEQUE NO. 048363 DATED 10-10-05. FROM ANOTHER SEIZED DOCUMENTS NO. 59 OF ANNEXURE LP-3, WHICH IS ANOTHER PAYMENT R ECEIPT DATED 10-10- 05 SIGNED AND ACKNOWLEDGED BY THE ASSESSEE TO THE E FFECT THAT RS. 75 LACS HAS BEEN RECEIVED BY HIM ON 10-10-05 IN CASH F ROM SH. SANJEEV SETHI ON BEHALF OF M/S SANRAJ HEALTH SERVICES PVT. LTD. ALSO, FROM THE SEIZED DOCUMENT NO. 55 OF ANNEXURE LP-3, IT IS NOTI CED THAT THE ASSESSEE ALONGWITH TWO OTHER PERSONS NAMELY SH. VIJENDER SIN GH AND SH. ARVIND KAUSHIK HAVE RECEIVED RS. 10 LACS IN CASH FROM SH. SANJEEV SETHI. FROM THE ABOVE SEIZED DOCUMENTS INCLUDING PAYMENT RECEIP TS, IT IS NOTICED THAT THESE PAYMENTS (CHEQUES AS WELL AS CASH) HAVE BEEN RECEIVED BY THE ASSESSEE FROM SH. SANJEEV SETHI ON BEHALF OF M/S SA NJRAJ HEALTH I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 14 SERVICES PVT. LTD. WITH REFERENCE TO AGREEMENT TO S ELL SIGNED ON 27-07-05 (OUT OF WHICH PART PAYMENT WAS RECEIVED BY THE ASSE SSEE 05-10-05) TOWARDS THE SALE PROCEED FOR THE SALE OF LAND MEASU RING 350 BIGHA TO SH. SANJEEV SETHI. FROM THE PERUSAL OF ALL THESE SEIZED DOCUMENTS, IT IS CLEAR THAT TILL OCTOBER, 2005, TOTAL AMOUNT OF RS. 1.85 C RORES (AS MENTIONED IN PAYMENT RECEIPT DATED 10-10-05 ON PAGE-57 OF ANNEXU RE LP-3) WAS RECEIVED BY THE ASSESSEE FOR SALE OF LAND TO SH. SA NJEEV SETHI. HOWEVER, IN THE CONFIRMED COPY OF ACCOUNT FILED BY M/S SANRA J HEALTH SERVICES PVT. LTD. THE AMOUNT PAID BY THE SAID COMPANY TO SH. MUK ESH JOSHI TILL OCTOBER 2005 HAS BEEN SHOWN AT RS. 1 CRORE ONLY (WH ICH HAS BEEN PAID THROUGH CHEQUE). IT IS ALSO CLEARLY MENTIONED ON PA GE 57 OF THE SEIZED DOCUMENT MENTIONED ABOVE THAT ACTUAL PAYMENT RECEIV ED BY THE ASSESSEE UPTO 10-10-05 WAS RS. 1.85 CRORE WHICH IS SUPPORTED FROM SEIZED DOCUMENT NO. 59 AND 55 OF ANNEXURE LP-3 IN W HICH THE ASSESSEE HAS ACKNOWLEDGED THAT FOR THE SAID LAND DEAL, HE HA S RECEIVED RS. 75 LACS AND RS. 10 LACS RESPECTIVELY TOTALING RS. 85 L ACS IN CASH. ALL THESE FACTS WERE BROUGHT TO THE NOTICE OF THE A SSESSEE AND HE WAS ASKED TO EXPLAIN THE ABOVE TRANSACTIONS INCLUDI NG CASH RECEIVED BY HIM FOR RS. 85 LACS WHICH HAS NOT BEEN DECLARED BY THE ASSESSEE. IN RESPONSE, IT WAS STATED BY THE ASSESSEE THAT HE HAD RECEIVED ADVANCE FOR PURCHASE OF LAND ON BEHALF OF M/S SANRAJ HEALTH SERVICES PVT. LTD. BY CHEQUE AND BY CASH. IT WAS FURTHER SUBMITTED THAT T HE DEALS DID NOT MATERIALIZE AND SO THE CASH RECEIVED WAS RETURNED S UBSEQUENTLY AND THE CHEQUE AMOUNT IS YET TO BE RETURNED BY HIM. THUS, FROM ALL THE ABOVE DISCUSSION, IT IS CLEAR TH AT ASSESSEE HAS TAKEN TOTAL AMOUNT OF RS. 1.85 CRORE UPTO 10-10-05 FROM SH. SANJEEV SETHI ON BEHALF OF M/S SANRAJ HEALTH SERVICES PVT. LTD. FOR SALE OF LAND OUT OF WHICH ONLY RS. 1 CRORE HAS BEEN SHOWN IN THE BOOKS OF ACCOUNTS UPTO 10-10-05, AS REFLECTED FROM STATEMENT OF AFFAI R BY THE ASSESSEE, AND AS ADMITTED BY THE ASSESSEE HIMSELF THAT THE BALANC E AMOUNT OF RS. 85 LACS WAS TAKEN BY HIM IN CASH. THE ASSESSEE COULD N OT FURNISH ANY EVIDENCE IN SUPPORT OF HIS CONTENTION THAT THE CASH PORTION WAS RETURNED BY HIM TO THE SAID COMPANY WHICH MEANS THAT THE CAS H RECEIVED OF RS. 85 LACS IN TERMS OF ABOVE LAND DEAL WAS RETAINED BY HIM AND THE SAME WAS NOT DECLARED BY HIM IN HIS BOOKS OF ACCOUNTS, S TATEMENT OF AFFAIR AND RETURN OF INCOME. SINCE, THE ABOVE CASH RECEIVE D OF RS. 85 LACS IS IN THE NATURE OF INCOME OF THE ASSESSEE, WHICH HAS NOT BEEN DECLARED AT ALL BY HIM, AND ACCORDINGLY, THIS SUM OF RS. 85 LACS IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE. DURING THE COURSE OF SEARCH OPERATION AND POST SEAR CH INVESTIGATION, IT WAS ADMITTED BY THE ASSESSEE THAT HE IS MAINLY FACILITATOR/ARRANGER HELPING IN .CONSOLIDATION PURC HASE/SALE OF LANDS AT VARIOUS PLACES WORKING FOR OTHERS AND EARNING INCOM E THEREFROM, FOR WHICH A SURRENDER OF RS.75 LACS WAS MADE BY HIM FOR THESE ACTIVITIES FOR THE A.Y.08-09. 13.1. SINCE THE REVENUE HAS MADE A PRAYER FOR REMAND ON THE GROUND THAT THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE WERE GENERAL SUBMISSIONS AND NOT SUBMISSION ADDRESSING THE SPECIFIC SEIZED DOCUM ENTS FOUND DURING THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 15 SEARCH, IT IS DEEMED APPROPRIATE TO REPRODUCE THE S UBMISSIONS TAKEN ON RECORD BY THE CIT(A). THESE ARE REPRODUCED HEREUNDER FOR READY-REFERENCE:- 8.2. IT WAS AVERRED BY THE ASSESSING AUTHORITY THAT ON CONFRONTING THE ASSESSEE WITH THE SEIZED DOCUMENTS SHOWING RECEIPT OF RS. 85 LACS IN CASH IN ADDITION TO CHEQUES AGGREGATING TO RS. 3.50 CRORES RECEIVED FROM M/S SANRAJ HEALTH SERVICES (P) LTD., THE ASSESSEE E XPLAINED THAT SINCE THE DEALS DID NOT MATERIALIZE, THE CASH WAS RETURNE D TO THE PARTY SUBSEQUENTLY. HOWEVER, AS PER THE ASSESSING AUTHORI TY SINCE NO EVIDENCE FOR RETURNING CASH COULD BE FURNISHED BY THE ASSESS EE, IT MEANT THAT THE CASH RECEIPT OF RS. 85 LACS HAD BEEN RETAINED BY HI M; AND ALSO SINCE THE ASSESSEE HAD SURRENDERED A SUM OF RS. 75 LACS AS HI S UNDISCLOSED INCOME FROM FACILITATION / ARRANGEMENT ACTIVITIES O F LAND CONSOLIDATION IN THE AY 2008-09; THEREFORE, AN ADDITION OF RS. 85 LA CS WAS MADE IN THE AY 2006-07 AS UNDISCLOSED INCOME FROM SUCH SOURCES. IN THIS REGARD IT IS IMPORTANT TO FIRST LOOK INTO T HE HISTORY OF THE DEAL MADE WITH M/S SANRAJ HEALTH SERVICES PVT. LTD. OF DELHI (SANRAJ) VIS-A-VIS THE APPELLANT FOR PROPER APPRECIATION OF THE FACTS AND THE TRANSACTIONS UNDERTAKEN DURING THE RELEVANT PREVIOUS YEAR. THE S AME IS GIVEN AS UNDER: THE PROPERTY MARKET IN INDIA HAD STAGED A COME BACK IN THE YEAR 2003 AND MANY PEOPLE STARTED SHOWING INTEREST IN BUYING PROPERTIES IN THE HILLY AREAS AND PARTICULARLY UTTRAKHAND, WHICH WAS AN UPCOMING STATE THEN. SINCE THE APPELLANT WAS A NATIVE OF UTTRAKHAN D, HIS BUSINESS CONTACTS IN DELHI AND NOIDA STARTED APPROACHING HIM FOR BUYING PLOTS OF LAND IN DEHRADUN, WHOM THE APPELLANT STARTED REFERR ING TO ONE OF HIS CLOSE FRIENDS, MR. SACHIN UPADHAYA, WHO KNEW QUITE A FEW LAND-OWNERS IN AND AROUND DEHRADUN SINCE HE WAS SETTLED THERE. GRADUALLY THE APPELLANT HIMSELF NOTICED POTENTIAL I N THE REAL ESTATE BUSINESS AND IN THE FY 2004-05 HE DECIDED TO VENTUR E INTO THIS BUSINESS ALONG WITH MR. SACHIN UPADHAYA. THEY STRUCK A DEAL WITH RPS GROUP OF FARIDABAD. LATER, DURING THE PREVIOUS YEAR UNDER CO NSIDERATION, THE APPELLANT ALSO STARTED RENDERING CONSULTANCY SERVIC ES FACILITATING PEOPLE IN THE PURCHASE / SALE OF LAND IN UTTRAKHAND. SOMEWHERE AROUND THE MONTH OF JUNE, 2005, M/S SANRA J HEALTH SERVICES PVT. LTD., THROUGH ITS DIRECTOR, MR. SANJEEV SETHI, CONTACTED THE APPELLANT AND SHOWED ITS INTEREST IN BUYING SOME LAND IN AND AROUND DEHRADUN. IT MUST BE APPRECIATED THAT THERE IS A STANDARD PRACTI CE ADOPTED BY THE BUILDERS OF NOT DISCLOSING THEIR IDENTITY BEFORE TH E LAND OWNERS. THE REASON IS THAT IF THEIR NAME GETS DISCLOSED TO THE LAND OWNERS IN THE BEGINNING, THEIR ASPIRATIONS GO UP AND THEY START D EMANDING HIGHER LAND RATES. THUS, EVEN SANRAJ DID NOT DISCLOSE ITS IDENT ITY IN THE BEGINNING. ACCORDINGLY, IT WAS AGREED THAT THE APPELLANT WOULD FIRST ENTER INTO AGREEMENTS TO SELL WITH THE LAND OWNERS IN HIS OWN NAME AND THEN FINALLY GET THE SALES DEEDS REGISTERED IN SANRAJS NAME DIRECTLY FROM THOSE LAND OWNERS. A SIMILAR ARRANGEMENT WAS ALSO M ADE BY SANRAJ WITH MR. SACHIN UPADHAYA, NOT AS THE APPELLANTS ASSOCIA TES, BUT IN HIS OWN INDIVIDUAL CAPACITY. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 16 SINCE THE APPELLANT KNEW TWO INFLUENTIAL LOCAL PROP ERTY DEALERS, NAMELY, (I) MR. ARVIND KAUSHIK AND (II) MR. VIJENDRA SINGH, WHO COULD OBTAIN THE DESIRED PIECES OF LAND FOR SANRAJ, THEY FORMED A CO NSORTIUM TOGETHER ARID APPROACHED THE LAND OWNERS AS BUYERS AND ENTERED IN TO SOME AGREEMENTS TO SELL IN JULY, 2005 WITH THEM PROPOSIN G TO BUY THEIR LANDS WITH THE STIPULATION THAT THE FINAL SALE DEEDS WOUL D BE EXECUTED UP TO THE END OF DECEMBER, 2005; HAVING ALREADY REACHED A BAC K-TO-BACK UNDERSTANDING WITH SANRAJ IN THIS REGARD THAT ALL T OKEN ADVANCE PAYMENTS TO BE MADE TO THE LAND OWNERS WOULD BE PRO VIDED BY SANRAJ DIRECTLY. LIKEWISE, SANRAJ DID NOT DISCLOSE ITS IDENTITY EVEN TO THE SAID TWO PROPERTY DEALERS AND MADE THE APPELLANT OBTAIN GPA FROM THE SAID PERSONS IN HIS OWN FAVOUR TO ACT ON THEIR BEHALF TO FACILITATE BACK-TO-BACK REGISTRATION OF THE SAID PIECES OF LAND DIRECTLY IN FAVOUR OF SANRAJ ULTIMATELY. IN THIS MANNER, THE APPELLANTS CONSORTIUM STARTED ENTERING INTO AGREEMENTS TO SELL WITH DIFFERENT LAND OWNERS IN OR DER TO CONSOLIDATED ONE LARGE CHUNK OF LAND OF ABOUT 350 BIGHAS FOR SAN RAJ. FINALLY WHEN MOST OF THE AGREEMENTS TO SELL HAD BEE N EXECUTED WITH THE LAND OWNERS BY THE SAID CONSORTIUM, THEIR UNDERSTAN DING WAS FORMALIZED AND REDUCED TO WRITING WITH SANRAJ IN OCTOBER, 2005 . SANRAJ GAVE A SUM OF RS. 3.50 CRORES THROUGH CHEQUES AND ALSO TOTAL S UM OF RS. 1.85 CRORES IN CASH TO THE APPELLANT, WHICH WERE TO BE APPLIED BY THE APPELLANT FOR THE PURPOSE OF THE LAND DEALS AND / OR TO BE DISBUR SED FOR AND ON BEHALF OF SANRAJ. THE TERMS AND CONDITIONS REGARDING REMUN ERATION DUE TO THE APPELLANT FROM THE DEAL WERE ALSO SPELT OUT IN THE LAND-WISE BUY-BACK AGREEMENTS DATED 6/10/05, AS PER WHICH THE APPELLAN TS INTEREST (OR FACTUALLY THE INTEREST OF THE SAID CONSORTIUM) IN T HE DEAL WAS OUTLINED AS LIMITED TO THE EARNING OF COMMISSION DEPENDING UPON THE INCREASE IN THE LAND VALUE OVER A STIPULATED PERIOD OF TIME WHILE T HE OWNERSHIP OF THE LANDS IN QUESTION WOULD BE VESTED IN SANRAJ. HOWEVER, DUE TO SOME DELAYS ON PART OF SANRAJ, MOST OF THE LAND DEALS FELL THROUGH AND THE DISPUTES ARE STILL PENDING UNR ESOLVED IN MANY SUCH CASES. WHILE THE ADVANCE OF RS. 3.50 CRORES STILL R EMAINS WITH THE APPELLANT TO BE RETURNED TO SANRAJ AFTER SETTLEMENT OF THOSE DISPUTES, THE CASH COMPONENT OF RS. 1.85 CRORES WAS FULLY UTILIZE D FOR BUYING LANDS OR DISBURSED FOR AND ON BEHALF OF SANRAJ DURING THE RE LEVANT PREVIOUS YEAR ITSELF BY THE APPELLANT. THE RELEVANT DOCUMENTS SEIZED FROM THE APPELLANT DU RING THE COURSE OF SEARCH ARE LISTED AS UNDER AND PHOTOCOPIES OF THE S AME ARE ALSO ENCLOSED FOR YOUR READY PERUSAL: A) PAGES NO. 50 & 51 OF ANNEXURE LP-3 GPA DATED 05/10/05 OF (I) MR. VIJENDRA SINGH AND (I I) MR. ARVIND KAUSHIK IN FAVOUR OF MR. MUKESH JOSHI. B) PAGE NO. 52 OF ANNEXURE LP-3 GPA DATED 05/10/05 OF (I) MR. VIJENDRA SINGH AND (I I) MR. ARVIND KAUSHIK IN FAVOUR OF MR. MUKESH JOSHI. B) PAGE NO. 53 OF ANNEXURE LP-3 BUY BACK AGREEMENT DATED 06/10/05 AMONGST (I) MR. S ANJEEV SETHI OF SANRAJ, (II) MR. MUKESH JOSHI, AND (III) MR. AJAY J OSHI CONTAINING TERMS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 17 REGARDING REMUNERATION OF THE APPELLANT TO ARISE FR OM THE LAND DEALS FOR SANRAJ BASED ON THE MINIMUM LAND RATE OF RS. 9,89,9 00/- PER BIGHA. D) PAGE NO. 54 OF ANNEXURE LP-3 AGREEMENT TO SELL DATED 27/05/05 BETWEEN THE CONSOR TIUM COMPRISING OF (I) MR. MUKESH JOSHI, (II) MR. VIJENDRA SINGH AND ( III) MR. ARVIND KAUSHIK WITH DIFFERENT LAND OWNERS AS ANOTHER GROUP FOR DEH RADUN LAND BEING ACQUIRED FOR SANRAJ. E) PAGE NO. 55 OF ANNEXURE LP-3 RECEIPT DATED 05/10/05 REGARDING RS. 10 LACS PAID T O THE LAND OWNERS THROUGH THE APPELLANT BY MR. SANJEEV SETHI OF SANRA J. F) PAGE NO. 56 OF ANNEXURE LP-3 BUY BACK AGREEMENT DATED 06/10/05 AMONGST (I) MR. S ANJEEV SETHI OF SANRAJ, (II) MR. MUKESH JOSHI, AND (III) MR. AJAY J OSHI CONTAINING TERMS REGARDING REMUNERATION OF THE APPELLANT TO ARISE FR OM THE LAND DEALS FOR SANRAJ BASED ON THE MINIMUM LAND RATE OF RS. 9,89,9 00/- PER BIGHA. G) PAGE NO. 57 OF ANNEXURE LP-3 RECEIPT DATED 10/10/05 FOR PAYMENT OF RS. 1 CRORE B Y SANRAJ TO THE APPELLANT BY CHEQUE AND ALSO MENTIONING TOTAL PAYME NT OF RS. 1.85 CRORE MADE BY SANRAJ TO THE APPELLANT TILL THAT DATE. H) PAGE NO. 58 OF ANNEXURE LP-3 BUY BACK AGREEMENT DATED 06/10/05 AMONGST (I) MR. S ANJEEV SETHI OF SANRAJ, (II) MR. MUKESH JOSHI, AND (III) MR. AJAY J OSHI CONTAINING TERMS REGARDING REMUNERATION OF THE APPELLANT TO ARISE FR OM THE LAND DEALS FOR SANRAJ BASED ON THE MINIMUM LAND RATE OF RS. 11,00, 000/- PER BIGHA. I) PAGE NO. 59 OF ANNEXURE LP-3 RECEIPT DATED 10/10/05 FOR PAYMENT OF RS. 75 LACS B Y SANRAJ TO THE APPELLANT IN CASH AND ALSO REFERRING TO THE RECEIPT DATED 05/10/05 THEREIN, J) J) PAGE NO. 22 OF ANNEXURE LP-5 SUPPLEMENTARY AGREEMENT TO SELL DATED 12/11/05 BETW EEN THE APPELLANT AND SANRAJ. K) PAGE NO. 23 OF ANNEXURE LP-5 LAND IMPREST ACCOUNT SUMMARY OF THE RECEIPTS FROM S ANRAJ AND PAYMENTS MADE FOR AND ON ITS BEHALF BY THE APPELLAN T TILL 06/11/05. ON THE BASIS OF SOME PAYMENT RECEIPTS DATED 05/10/0 5 AND 10/10/05, SEIZED AS PAGES 55, 57 & 59 OF ANNEXURE LP-3, THE ASSESSING AUTHORITY NOTICED THAT A SUM OF RS. 85 LACS HAD BEE N RECEIVED IN CASH FROM SANRAJ BY THE APPELLANT BESIDES RS. 1 CRORE BY CHEQUE TILL 10/10/05. IT HAS ALSO BEEN MENTIONED IN THE ASSESSM ENT ORDER THAT TWO CHEQUES OF RS. 1.50 CRORE AND RS. 1 CRORE WERE FURT HER GIVEN BY SANRAJ ON 16/11/05 AND 15/12/05 RESPECTIVELY TO THE APPELLANT . THUS, AS PER THE ASSESSING AUTHORITY WHEREAS A TOTAL SUM OF RS. 3.50 CRORES BY CHEQUES AND AN ADDITIONAL SUM OF RS. 85 LACS IN CASH HAD AC TUALLY BEEN RECEIVED BY THE APPELLANT FROM 05/10/05 TILL 15/12/05 FROM S ANRAJ, THAT THE APPELLANT HAD JUST DECLARED RS. CRORES AS DUE TO SA NRAJ IN HIS PERSONAL STATEMENT OF AFFAIRS AS AT 31/3/06 FURNISHED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS; AND ALSO THAT THE CONFIRMAT ION FURNISHED BY SANRAJ ACKNOWLEDGED THE CHEQUE-WISE PAYMENTS AGGREG ATING TO RS. 3.50 CRORES ONLY. IT HAS BEEN FURTHER AVERRED BY THE ASSESSING AUTHOR ITY THAT THE APPELLANT ACKNOWLEDGED THE RECEIPT OF PAYMENTS BY CHEQUE AND ALSO IN CASH FROM SANRAJ FOR PURCHASE OF LAND, BUT STATED THAT THE CA SH WAS RETURNED BACK TO THAT COMPANY SINCE THE DEALS DID NOT MATERIALIZE . AS PER THE ASSESSING AUTHORITY SINCE NO EVIDENCE FOR RETURNING CASH TO S ANRAJ WAS PRODUCED BY I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 18 THE APPELLANT, IT WAS PRESUMED THAT THE CASH OF RS. 85 LACS HAD BEEN RETAINED BY THE APPELLANT AND ALSO SINCE THE APPELL ANT DID NOT SHOW IT AS HIS LIABILITY IN HIS PERSONAL STATEMENT OF AFFAIRS AS AT 31/3/06, THE SAME WAS ADMITTEDLY HIS INCOME. THUS, THE ADDITION OF RS . 85 LACS WAS MADE FOR THE SAME. IN THIS REGARD IT IS SUBMITTED THAT THE ASSERTION O F THE ASSESSING AUTHORITY IN RESPECT OF RECEIPT OF RS. 85 LACS IN CASH UPTO 1 0/10/05 FROM SANRAJ IS JUST PARTIALLY CORRECT. FACTUALLY, A SUM OF RS. 1.8 5 CRORE HAD BEEN RECEIVED BY THE APPELLANT FROM SANRAJ IN CASH UPTO 06/11/05 AS IMPREST FOR PURCHASE OF LAND OR TO MAKE OTHER DISBURSEMENT FOR AND ON ITS BEHALF. WHEREAS RS. 10 LACS AND RS. 75 LACS HAD BEEN RECEIV ED ON 05/10/05 AND 10/10/05 AS PER THE SEIZED DOCUMENTS AS STATED IN THE ASSESSMENT ORDER, FURTHER CASH OF RS. 1 CRORE WAS ALSO RECEIVE D FROM SANRAJ IN TWO EQUAL INSTALLMENTS OF RS. 50 LACS EACH BETWEEN 10/1 0/05 AND 06/11/05, WHICH IS ABUNDANTLY CLEAR FROM THE PAPER SEIZED AS PAGE 23 OF ANNEXURE LP-5 FROM THE APPELLANT. ON THE TOP LEF T HAND SIDE OF THIS PAPER IT IS CLEARLY WRITTEN THAT THE FOLLOWING SUMS AGGREGATING TO RS. 2.75 CRORES HAD BEEN RECEIVED: RS. 75 LACS CASH 50 LACS CASH 50 LACS CASH 1.75 1.00 CR. BANK 2.75 WHILE ON THE RIGHT HAND SIDE OF THE SAME PAPER, UTI LIZATION / DISBURSEMENT OF RS. 1.35 CRORES HAS FURTHER BEEN CL EARLY WRITTEN AND THE DATE OF 06/11/05 IS ALSO WRITTEN THEREIN. IN FACT, THE SAID PAPER HAS BEEN DISCUSSED AT LENGT H IN THE ASSESSMENT ORDER FOR THE AY 2008-09 OF THE APPELLANT BY THE AS SESSING AUTHORITY, ON THE BASIS OF WHICH HE MADE AN ADDITION OF RS. 1.75 CRORE FOR THE CASH COMPONENT OUT OF THE TOTAL RECEIPT OF RS. 2.75 CROR E, THOUGH HOLDING IT AS UNEXPLAINED INVESTMENT, BUT WHILE CHOOSING TO IGNOR E OR RATHER CHOOSING NOT TO ADDRESS THE FOLLOWING MATERIAL FACTS TO SUIT HIS OWN CONVENIENCE FOR MAKING THE SAID ADDITION IN THE AY 2008-09: A) THAT THE SAID PAPER CONTAINED THE DATE OF 06/11/05 WRITTEN QUITE CLEARLY THEREIN ON THE RIGHT HAND SIDE. THEREFORE, WHEREAS IT WAS NOT AN UNDATED PAPER WHICH COULD BE CONSIDERED FOR ADDITION IN THE YEAR OF SEARCH ONLY, I.E., IN THE AY 2008-09, R ATHER THE SAID DATE SUGGESTED THE SAME SHOULD HAVE BEEN CONSIDERED IN THE AY 2006-07 BY THE ASSESSING AUTHORITY SINCE IT PERTAIN ED TO THAT YEAR. B) THAT FROM WHOM HAD THE LAST AMOUNT OF RS. 1 CRORE BEEN RECEIVED BY THE APPELLANT AND ON WHICH DATE & BANK ACCOUNT O F THE APPELLANT HAD THAT AMOUNT BEEN DEPOSITED DURING THE PREVIOUS YEAR RELEVANT TO THE AY 2008-09. [OR SINCE THE CASH COMPONENT OF RS. 1.75 CRORES WAS HELD BY THE AO AS UNEXPLAINED I NVESTMENT IN AY 2008-09, FOLLOWING THE SAME COROLLARY, THE QUEST ION WOULD BE: TO WHOM, WHEN & FROM WHICH BANK ACCOUNT HAD RS. 1 C RORE BEEN PAID.] SINCE NO ADDITION FOR THE SAME WAS MADE BY T HE ASSESSING AUTHORITY, THOUGH IT WAS INCUMBENT UPON HIM TO MENT ION HOW THE SAME HAD BEEN DECLARED BY THE APPELLANT BEFORE HIM AND WHY IT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 19 HAD NOT BEEN CONSIDERED AS UNDISCLOSED INCOME OF TH E APPELLANT FOR THE AY 2008-09. C ) THAT THE RIGHT HAND SIDE OF THE SAME PAPER CLEARL Y SHOWED AN OUTFLOW OF RS. CRORES OUT OF THE SAID RECEIPT, BUT NO MENTION OF THE SAME WAS MADE BY THE ASSESSING AUTHORITY. IN FACT, THE SAID SUMS HAD BEEN RECEIVED FROM SANRA J BY THE APPELLANT AND ALSO DISBURSED TO THE EXTENT OF RS. 1 .35 CRORES IN CASH FOR AND ON ITS BEHALF. THIS IS SQUARELY VERIFI ABLE FROM THE FACT THAT IT CONTAINED AN ACCOUNT OF SOME PARTY AROUND 0 6/11/05 AND THE ONLY PARTY THAT THE APPELLANT WAS DEALING WITH AROUND THAT TIME WAS SANRAJ. MOREOVER, THE SAID SUM OF RS. 1 C R. BANK WAS RECEIVED FROM SANRAJ BY CHEQUE ON 10/10/05 AND DEPO SITED IN THE SB A/C # 16456 OF THE APPELLANT WITH CANARA BANK, W HICH WAS ALSO SO STATED ON THE SEIZED PAGE NO. 57 OF ANNEXUR E LP-3 AND ALSO SO ADMITTED BY THE ASSESSING AUTHORITY IN THE ASSESSMENT ORDER OF THE AY 2006-07. THUS, UNDISPUTEDLY THE SAI D ACCOUNT CONTAINED THE RECEIPT OF RS. 1 CRORE BY CHEQUE AND THAT OF RS. 1.75 CRORE IN CASH FROM SANRAJ ONLY DURING THE PERIOD FR OM 10/10/05 TO 06/11/05 AND ALSO CONTAINED THE DISBURSEMENTS MADE IN CASH OUT OF THE SAME DURING THAT PERIOD. HOWEVER, THE SUM OF RS. 10 LACS PAID IN CASH BY SAN RAJ ON 05/10/05 WAS NOT MENTIONED THEREIN SINCE IT HAD BEEN GIVEN DIRECTLY TO THE LAND OWNERS BY SANRAJ THOUGH THROUG H THE APPELLANT AS ITS INTERMEDIARY. UNDISPUTEDLY, THIS FACT STANDS ACKNOWLEDGED BY THE INCOME-TAX DEPARTMENT SINCE AN ADDITION OF RS. 85 LACS HAS BEEN MADE IN THE AY 2006-07 FOR CAS H RECEIPTS OF RS. 10 LACS ON 05/10/05 AND RS. 75 LACS ON 10/10/05 FROM SANRAJ BY THE APPELLANT. THUS, IN ALL RS. 3.50 CROR ES HAD BEEN RECEIVED BY CHEQUES AND AN ADDITIONAL SUM OF RS. 1. 85 CRORE HAD BEEN RECEIVED IN CASH FROM SANRAJ BY THE APPELLANT BETWEEN 05/10/05 AND 06/11/05 FOR THE PURPOSE OF ACQUIRING LANDS AND MAKING DISBURSEMENTS ON ITS BEHALF. AGAINST THE SAID SUM OF RS. 1.85 CRORE RECEIVED FRO M SANRAJ AS IMPREST, THE FOLLOWING PAYMENTS / DISBURSEMENTS WER E MADE BY THE APPELLANT FOR AND ON BEHALF OF SANRAJ: DATE AMOUNT(RS.) EXPLANATION 05/10/05 10 LACS PAID TO THE LAND OWNERS AS PER R ECEIPT DATED 05/10/05 (PAGE 55 OF ANNEXURE LP-3) 06/11/05 135 LACS DISBURSED TO VARIOUS PERSONS FOR AND ON BEHALF OF SANRAJ (PAGE; 23 OF ANNEXURE LP-5) 03/01/06 12.5 LACS A DVANCE FOR LAND GIVEN TO ISHWAR (LAND OWNER) BY CHEQUE ISSUED FROM SB A/C # 16456 CANARA BANK BY THE APPELLANT ON BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) 12/01/06 12.5 LACS ADVANCE FOR LAND GIVEN TO DEEPAK (LAND OWNER) BY CHEQUE ISSUED FROM SB A/C # I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 20 16456 CANARA BANK BY THE APPELLANT ON BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) 18/01/06 15 LACS ADVANCE FOR LAND GIVEN TO RATAN (LAND OWNER) BY CHEQUE ISSUED FROM SB A/C # 16456 CANARA BANK BY THE APPELLANT OR BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) 185 LACS TOTAL PAYMENT MADE A DATE-WISE CHART OF INFLOW AND OUTFLOW OF LAND IMP REST MONEYS RECEIVED BY THE APPELLANT BOTH IN CASH AND BY CHEQU ES DURING THE RELEVANT PREVIOUS YEAR FROM SANRAJ IS ENCLOSED FOR YOUR KIND PERUSAL AND APPRECIATION OF THE FACTS STATED ABOVE. IT IS CATEGORICALLY STATED THAT THE SAID CHART HAS BEEN P REPARED ON THE BASIS OF SEIZED MATERIAL AND CORROBORATIVE EVIDENCES ONLY. THE SEIZED PAPER (PAGE NO. 23 OF LP-5) SHOWING PAYMENTS OF RS. 1.35 CRORES ALSO INCLUDES PAYMENTS OF RS. 82 LACS MADE T O MR. SACHIN UPADHAYA BY THE APPELLANT. IN THIS REGARD IT IS EXP LAINED THAT THE APPELLANT AND MR. SACHIN UPADHAYA WERE BOTH WORKING , IN THEIR INDIVIDUAL CAPACITIES IN ARRANGING LAND FOR SANRAJ AND MAKING PAYMENTS TO THE DIFFERENT LAND OWNERS FOR AND ON BEHALF OF S ANRAJ. IT MUST BE APPRECIATED THAT IN NONE OF THE AGREEMENTS OF THE A PPELLANT WITH SANRAJ, MR. SACHIN UPADHAYA WAS A PARTY, BUT HE WAS ONLY A WITNESS TO THOSE AGREEMENTS. THUS, HE WAS ACTING IN HIS OWN INDIVIDU AL CAPACITY IN DEALING WITH SANRAJ AND NOT AS AN ASSOCIATE OF THE APPELLANT. THEREFORE, THEY WERE INDIVIDUALLY ACCOUNTABLE TO SANRAJ FOR UT ILIZATION OF THE LAND IMPREST MONEY RECEIVED BY THEM, AND SINCE THE APPEL LANT HAD REMITTED THE SUM OF RS. 82 LACS FURTHER TO MR. SACHIN UPADHA YA AT THE BEHEST OF SANRAJ OUT OF ITS IMPREST, MR. SACHIN UPADHAYA ALON E WAS ACCOUNTABLE TO SATISFY SANRAJ AS TO ITS UTILIZATION AND NOT THE AP PELLANT; AND AS FAR AS THE APPELLANT IS CONCERNED, HE HAD DISBURSED THE SA ID SUM FOR AND ON BEHALF OF SANRAJ. SIMILARLY ALL OTHER PAYMENTS LIST ED IN THE SAID SEIZED DOCUMENT HAD ALSO BEEN DISBURSED BY THE APPELLANT T O SANRAJS LOCAL STAFF AND ITS OTHER ASSOCIATES FOR AND ON BEHALF OF SANRAJ TILL 06/11/05. RS. 25 LACS AND RS. 17 LACS WERE GIVEN TO MR. GOVIN D AND MR. SHARAD RESPECTIVELY, WHO WERE BOTH ASSOCIATES OF SANRAJ IN DEHRADUN AND RS. 11.585 LACS TO SANRAJS STAFF TEMPORARILY POSTED IN DEHRADUN FOR MISCELLANEOUS ITEMS AS LISTED IN THE IMPUGNED SEIZE D DOCUMENT. THUS, THE ENTIRE SUM OF RS. 1.85 CRORE RECEIVED IN CASH FROM SANRAJ WAS PAID / DISBURSED BY THE APPELLANT BEFORE 31/3/06 WH ILE THE CHEQUES TOTALING TO RS. 3.50 CRORES REMAINED UNSPENT TILL T HEN, THE APPELLANT DECLARED THE NET LIABILITY OF RS.CRORES DUE TO SANR AJ IN HIS PERSONAL STATEMENT OF AFFAIRS AS ON THAT DATE. IT MUST BE AP PRECIATED THAT IT IS NOT MATERIAL WHETHER THE SAID PAYMENTS ALSO INCLUDED PA YMENTS OF RS. 40 LACS MADE BY CHEQUES BY THE APPELLANT. THE CRUX OF THE MATTER IS THAT THE ENTIRE RECEIPT OF RS. 1.85 CRORE FROM SANRAJ HAD BE EN USED FOR AND ON BEHALF OF THAT PARTY BY THE APPELLANT. THEREFORE, T HE BASIC CHARGE OF THE ASSESSING AUTHORITY THAT THE RETURNING / UTILIZATIO N OF RS. 85 LACS HAD NOT BEEN SHOWN WITH EVIDENCE BY THE APPELLANT AND HENCE THE SAME MUST HAVE BEEN RETAINED BY HIM AS INCOME, HAS NO LEGS TO STAND. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 21 IN FACT, IT WAS WITHIN THE CLEAR KNOWLEDGE OF THE A SSESSING AUTHORITY THAT THE PAPER SEIZED AS PAGE NO. 23 AT ANNEXURE LP-5 CONTAINED THE ACCOUNT OF THIS VERY RECEIPT FROM SANRAJ AND ALSO I TS OUTFLOW FOR IT. THEREFORE, THE SAME WAS DELIBERATELY TREATED AS UND ATED PAPER BY HIM AND WITHOUT REFERRING TO THE UTILIZATION PART OF IT , WHILE SUPPRESSING THE DATE MENTIONED THEREIN AND ALSO WHILE CONSIDERING T HE SUM OF RS. 1 CRORE IN BANK AS DECLARED EVEN WITHOUT CONFRONTING THE AP PELLANT AS TO ITS SOURCE, HE PROCEEDED TO MAKE AN ADDITION OF RS. 1.7 5 CRORE FOR UNEXPLAINED CASH INVESTMENT IN THE AY 2008-09 AND M AKING A SIMULTANEOUS ADDITION OF RS. 85 LACS AS UNEXPLAINED CASH RECEIPT IN THE AY 2006-07 FOR A PORTION OF IT. MOREOVER, THE ASSESSING AUTHORITY HAS NOT DISPUTED THAT THE ENTIRE MONEY BOTH BY CHEQUE AND IN CASH HAD BEEN PAID BY SANRAJ TO THE APPELLANT. IN FACT, THE CONFIRMATION OF SANRAJ ALSO GOES ON TO PR OVE OF THE EXISTENCE OF THE SOURCE BEING SANRAJ EVEN IN RESPECT OF THE CASH TRANSACTIONS INVOLVED, AND IF ONCE THE SOURCE IS PROVED THE SAME CANNOT BE PRESUMED AS INCOME OF THE APPELLANT ESPECIALLY WHEN THE SAID AMOUNT HA D BEEN FULLY UTILIZED FOR AND ON BEHALF OF THAT PARTY ONLY. THE ASSERTION OF THE ASSESSING AUTHORITY IS THAT SI NCE THE APPELLANT DID NOT PROVE THE RETURNING OF RS. 85 LACS RECEIVED IN CASH FROM SANRAJ, THE SAME MUST HAVE BEEN RETAINED BY HIM AND ACCORDINGLY IT WAS ASSESSED AS HIS INCOME. BUT IN THAT CASE, EVEN THE SUM OF RS . 3.50 CRORES RECEIVED BY CHEQUES HAD NEITHER BEEN RETURNED NOR UTILIZED B Y THE APPELLANT FOR AND ON BEHALF OF SANRAJ. THEREFORE, A PERTINENT QUE STION ARISES AS TO WHY WAS THE SAME NOT ASSESSED AS THE APPELLANTS UNDISC LOSED INCOME ALSO. THE ANSWER OF THE ASSESSING AUTHORITY COULD BE THAT SANRAJ HAD CONFIRMED HAVING GIVEN RS. 3.50 CRORES BY CHEQUES T O THE APPELLANT BUT IT DID NOT CONFIRM ANY PAYMENT IN CASH TO HIM, THEREFO RE, THE ADDITION FOR CASH ALONE HAD BEEN MADE. BUT IN THAT CASE, THE SIT UATION WOULD BECOME EVEN MORE ANOMALOUS SINCE THE ASSESSING AUTHORITY H AS HIMSELF RELIED UPON THE RECEIPTS DATED A 05/10/05 AND 10/10/05 FO R PAYMENT OF RS. 85 LACS MADE IN CASH BY SANRAJ TO THE APPELLANT, TH US, ACTUALLY ADMITTING THAT SANRAJ WAS THE SOURCE OF CASH PAYMENTS MADE TO THE APPELLANT. MOREOVER, IT IS NOT UNDERSTOOD WHY THE ASSESSING AU THORITY DID NOT ISSUE SUMMONS TO SANRAJ TO CONFRONT THE PAYMENT MADE IN C ASH BY. IT WHICH WERE NOT DISCLOSED IN THE CONFIRMATION ISSUED BY IT WHILE THE IMPUGNED SEIZED RECEIPTS INDICATED OTHERWISE; OR IF IN CASE THE SUMMONS WERE ISSUED, THEN WHAT WAS THE OUTCOME OF THE SAME IS NO T KNOWN SINCE THE ASSESSMENT ORDER IS COMPLETELY SILENT IN THIS REGAR D. IT MUST BE APPRECIATED THAT THE IMPUGNED CONFIRMATI ON OF SANRAJ JUST PROVES THE SOURCE OF THE MONEYS RECEIVED BY THE APP ELLANT BUT IT DOES NOT REFLECT ITS UTILIZATION, WHICH IS THE MOOT POINT UN DER DEBATE HERE AND WHICH MUST BE ADDRESSED TO ARRIVE AT THE PROPER CON CLUSION AS TO THE ASSESSABILITY OF RS. 1.85 CRORES RECEIVED IN CASH F ROM SANRAJ BY THE APPELLANT. AS EXPLAINED ABOVE, THE ENTIRE SUM OF RS . 1.85 CRORES HAD DEFINITELY BEEN USED UP FOR AND ON BEHALF OF SANRAJ ONLY THROUGH THE APPELLANT SO NOTHING REMAINED TO BE RETURNED TO SAN RAJ OUT OF THE SAME. THUS, NO ADDITION IN RESPECT OF THE SAID RS. 1.85 C RORES COULD BE MADE IN ANY MANNER IN ANY ASSESSMENT YEAR SINCE ITS SOURCE AS WELL AS ITS UTILIZATION STAND FULLY EXPLAINED. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 22 THUS, THE PRESUMPTION OF THE ASSESSING AUTHORITY TH AT THE CASH RECEIPTS HAD BEEN RETAINED BY THE APPELLANT GETS SQUARELY RE BUTTED. ACCORDINGLY, THE ADDITION OF RS. 85 LACS FOR CASH RECEIPT SHOUL D BE DELETED. (EMPHASIS PROVIDED BY THE BENCH) 13.1. ON CONSIDERATION OF THE ABOVE, WE FIND THAT THE AR GUMENTS ADVANCED ON BEHALF OF THE REVENUE THAT GENERAL SUBMISSIONS WERE ADVANCED AND NOT FACT SPECIFIC SUBMISSION IS AN INCORRECT ARGUMENT BORNE OUT FROM THE RECORD. WE FURTHER FIND THAT THESE SUBMISSIONS WERE MADE AVAIL ABLE TO THE ASSESSING OFFICER AS IS EVIDENT FROM PARA 4 OF THE IMPUGNED ORDER EXT RACTED EARLIER IN THIS ORDER AND FIND THAT MORE THAN A YEARS TIME WAS MADE AVAI LABLE TO THE AO IN THE REMAND PROCEEDINGS. THE REMAND REPORT HAS BEEN REP RODUCED IN PARA 8.3 BY THE CIT(A). FOR READY REFERENCE IT IS REPRODUCED H EREUNDER:- 8.3 AOS REMAND REPORT: I HAVE GONE THROUGH THE EXPLANATIONS OF THE ASSESS EE, THE RELEVANT SEIZED MATERIAL AND ALSO THE DOCUMENTS FURNISHED BY THE ASSESSEE IN THE APPELLATE PROCEEDINGS. THERE IS NO DOUBT THAT RS. 1 0 LACS AND RS. 75 LACS HAD BEEN RECEIVED BY THE ASSESSEE FROM M/S SANRAJ O N 05/10/2005 AND 10/10/2005 AS PER THE SEIZED DOCUMENTS AND AS ALSO STATED IN THE ASSESSMENT ORDER. FURTHER, THERE IS NO DOUBT ALSO T HAT CASH OF RS. 1 CRORE WAS ALSO RECEIVED FROM M/S SANRAJ IN TWO EQUAL INST ALLMENTS OF RS. 50 LACS EACH BETWEEN 10/10/2005 AND 06/11/2005, WHICH IS CLEAR FROM THE SEIZED PAGE NO. 23 OF ANNEXURE LP-5. IT IS CLEA RLY WRITTEN ON THE TOP LEFT HAND SIDE OF THIS PAPER THAT THE FOLLOWING SUM S AGGREGATING TO RS. 2.75 CRORES HAD BEEN RECEIVED: RS. 75 LACS CASH 50 LACS CASH 50 LACS CASH 1.75 1.00 CR. BANK WHILE ON THE RIGHT HAND SIDE OF THE SAME PAPER, UTI LIZATION / DISBURSEMENT OF RS. 1.35 CRORES HAS FURTHER BEEN CL EARLY WRITTEN AND THE DATE OF 06/11/2005 IS ALSO FOUND WRITTEN THEREIN. T HUS, NOT JUST RS. 85 LACS WAS RECEIVED IN CASH UPTO I 10/10/2005 FROM SA NRAJ, RATHER TOTAL SUM OF RS. 1.85 CRORE HAD BEEN RECEIVED BY 1 THE ASSESSEE FROM SANRAJ IN CASH UPTO 06/11/2005. IN FACT, THE SAID PAPER HAS B EEN DISCUSSED AT LENGTH IN THE ASSESSMENT ORDER FOR THE AY 2008-09 O F THE ASSESSEE BY THE AO AND ON THE BASIS OF WHICH HE MADE AN ADDITION OF RS. 1.75 CRORE FOR THE CASH COMPONENT OUT OF THE TOTAL RECEIPT OF RS. 2.75 CRORES, HOLDING IT AS UNEXPLAINED INVESTMENT IN THAT YEAR, I.E., THE Y EAR OF SEARCH, BY CONSIDERING THE SAID PAPER AS UNDATED. THE ASSESSEE HAD RECEIVED TOTAL SUM OF RS. 5.35 CRO RES AS ADVANCE FROM M/S SANRAJ OUT OF WHICH RS. 3.50 CRORES HAD BEEN RE CEIVED BY CHEQUES AND THE BALANCE SUM OF RS. 1.85 CRORES WAS RECEIVED IN CASH. IT IS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 23 VERIFIABLE FROM THE SEIZED MATERIAL, PERSONAL BALAN CE SHEET AND CASH & BANK FLOW STATEMENT OF THE ASSESSEE SUBMITTED IN TH E ASSESSMENT PROCEEDINGS THAT A SUM OF RS. 40 LACS HAD BEEN ADVA NCED FROM HIS BANK ACCOUNT TO THE LAND-OWNERS ON BEHALF OF M/S SANRAJ BY THE ASSESSEE AND CLEARLY STATED AS SUCH IN HIS BALANCE SHEET AS AT 3 1/03/2006. FURTHER, THE SEIZED PAGE NO. 55 OF ANNEXURE LP-3 REVEALS THA T A SUM OF RS. 10 LACS HAD BEEN ADVANCED IN CASH TO THE LAND-OWNER S BY THE ASSESSEE ON BEHALF OF M/S SANRAJ. FINALLY, I HAVE A LSO VERIFIED THAT THE SEIZED PAGE NO. 23 OF ANNEXURE LP-5 CLEARLY SHO WS THAT AN AGGREGATE SUM OF RS. 1.35 CRORE HAD FURTHER BEEN DI SBURSED BY THE ASSESSEE IN CASH ON BEHALF OF M/S SANRAJ. THUS, TOTAL SUM OF RS. 1.85 CRORES WAS DISBURSED ON BEHALF OF M/S SANR AJ BY THE ASSESSEE OUT OF TOTAL SUM OF RS. 5.35 CRORES RECEIV ED FROM THAT COMPANY DURING THIS YEAR, THUS, LEAVING A BALANCE S UM OF RS. 3.50 CRORES WITH HIM AS ADVANCE AS ON 31/03/2006, W HICH WAS DULY DECLARED IN HIS PERSONAL BALANCE SHEET AS ON T HAT DATE BY THE ASSESSEE AS PER THE ASSESSMENT RECORD. THE ASSESSEE ALSO FURNISHED A DATE-WISE CHART OF INFLOW AND OUTFLOW O F LAND IMPREST MONEYS RECEIVED BY HIM BOTH IN CASH AND BY CHEQUES FROM M/S SANRAJ AS WELL AS FROM ALL OTHER PARTIES DURING THE SEARCH PERIOD, COMPILED ON THE BASIS OF SEIZED MATERIAL AND CORROBORATIVE EVID ENCES. IT IS ALSO PLEADED THAT SAID ADDITION WAS MADE PROBABLY DUE TO OVERSIGHT BY AO OF 06/11/2005 DATE WRITTEN ON THE SEIZED PAGE NO 23 OF ANNEXURE LP-5. AS REGARDS THE ADVANCES GIVEN OR TAKEN FOR PURCHASE OR SALE OF IT MUST BE IN FURTHERANCE OF REGISTERED AGREEMENT OTHERWISE TH E TRANSACTION CAN NOT BE ACCEPTED AS VALID EVIDENCES PARTICULARLY WHE N THE TRANSACTIONS OF ADVANCES HAVE BEEN MADE IN CASH. THE EXPLANATION OF THE ASSESSEE THAT THE DEAL DID NOT MATERIALIZED AND THE CASH RECEIVED WAS RETURNED SUBSEQUENTLY AND THE CHEQUE AMOUNT WAS YET TO BE RETURNED IS NOT EXPECTABLE AT ALL PARTICULARLY AMOU NT RECEIVED, PAID OR RETURNED IN CASH. IN VIEW OF THESE FACTS ADDITIONS OF RS.85 LACS MADE BY THE ASSESSING OFFICER IN THIS REGARD SHOULD BE SUST AINED. (EMPHASIS SUPPLIED) 13.2. THE RECORD ALSO SHOWS THAT THE FOLLOWING RE-JOINDE R WAS FILED ON BEHALF OF THE ASSESSEE AND IS EXTRACTED HEREUNDER FOR THE SAK E OF COMPLETENESS :- ARS REJOINDER: WHEREAS AFTER CARRYING OUT HIS VERIFICATION OF THE DOCUMENTS PRODUCED AND ALSO THE RELEVANT SEIZED MATERIAL THE AO HAS UN EQUIVOCALLY ADMITTED THAT THE ADVANCE OF RS.85 LACS WAS GIVEN IN CASH BY M/S SANRAJ HEALTHCARE SERVICES (P) LTD. TO THE ASSESSEE, YET F OR THE REASONS BEST KNOWN TO HIM HE HAS JUSTIFIED THE SAID ADDITION ON THE GROUND THAT IN CASE OF UNREGISTERED AGREEMENTS CASH TRANSACTIONS D O NOT STAND VALIDLY EVIDENCED. IT IS NOT UNDERSTOOD HOW REGISTRATION OR NON-REGISTRATION OF THE SALE AGREEMENT CAN BE MATERIAL IN THIS CASE WHEN TH E SEIZED MATERIAL UNAMBIGUOUSLY SHOW THAT SANRAJ HAD PAID THE IMPUGNE D SUM OF RS. 85 LACS IN CASH TO THE ASSESSEE. THUS, THE ADDITION SO MADE MUST BE DELETED. 13.3. CONSIDERING THESE FACTS AND SUBMISSIONS THE C IT(A IT IS SEEN HAS COME TO A DETAILED CONCLUSION. ON CONSIDERATION THEREOF WE FIND THAT THE PRAYER OF THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 24 LD.CIT DR HAS NO LEGS TO STAND AS NO FACT HAS BEEN REBUTTED BY THE REVENUE, NO CONCLUSION HAS BEEN SHOWN TO BE AN INCORRECT CONCLU SION ON THE FACTS AS THEY STAND. WE FIND THAT THE NATURE OF THE EVIDENCES PL ACED BY THE ASSESSEE ON RECORD IN THE PAPER BOOK TODAY BEFORE US CONSISTING OF DOCUMENTS BEFORE THE AO AND THE CIT(A) ALSO HAS NOT BEEN SHOWN TO EITHER BE INCORRECT OR INSUFFICIENT. WE FIND THAT NO EFFORT TO REBUT ANY EVIDENCE HAS BE EN MADE BY THE REVENUE. AS WOULD BE EVIDENT FROM PARA 4 OF THE IMPUGNED ORDER REPRODUCED IN THE EARLIER PART OF THIS ORDER. THUS WHERE WE FIND THAT MORE TH AN SUFFICIENT OPPORTUNITY WAS AVAILABLE TO THE AO TO CONSIDER THE EVIDENCES WHICH HAVE BEEN FURTHER CONSIDERED IN THE PECULIAR FACTS OF THE PRESENT CAS E BY THE CIT(A) HIMSELF WHO HAS ALSO CONSIDERED THE REMAND REPORT FILED. ACCOR DINGLY IN THE FACTS AS THEY STAND, WE FIND NO PROCEDURAL VIOLATION AND CONSIDER ING THE FACTS AS THEY STAND AND IN THE ABSENCE OF ANY COGENT ARGUMENT JUSTIFYI NG THE REQUEST FOR REMAND WE REJECT THE SAME. BEING SATISFIED WITH THE REASO NING AND THE CONCLUSION ON THE FACTS AS THEY STAND WE FIND OURSELVES IN AGREEM ENT WITH THE FINDING ARRIVED AT BY THE CIT(A). THE SAME IS REPRODUCED HEREUNDER :- 8.5 DECISION AND REASONS THEREFOR: I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. IN HIS REMAND REPORT THE AO HAS ACCEPTED AFTER VERIFYING THE SEIZED MATERIAL THAT THERE IS NO DOUBT THAT RS.10 LACS AND RS. 75 LACS HAD BEEN RECEIVED BY THE ASSESSEE FROM M/S SANRAJ O N 05/10/2005 AND 10/10/2005 AS PER THE SEIZED DOCUMENTS AND AS ALSO STATED IN THE ASSESSMENT ORDER. FURTHER, THERE IS NO DOUBT ALSO T HAT CASH OF RS. 1 CRORE WAS ALSO RECEIVED FROM M/S SANRAJ IN TWO EQUAL INST ALLMENTS OF RS. 50 LACS EACH BETWEEN 10/10/2005 AND 06/11/2005, WHICH IS CLEAR FROM THE SEIZED PAGE NO. 23 OF ANNEXURE LP- 5. FURTHER THE AO HAS ALSO ACCEPTED AFTER VERIFYING TH E SEIZED MATERIAL THAT IT IS VERIFIABLE FROM THE SEIZED MATERIAL, PERSONA L BALANCE SHEET AND CASH & BANK FLOW STATEMENT OF THE ASSESSEE SUBMITTE D IN THE ASSESSMENT PROCEEDINGS THAT A SUM OF RS. 40 LACS HA D BEEN ADVANCED FROM HIS BANK ACCOUNT TO THE LAND-OWNERS ON BEHALF OF M/S SANRAJ BY THE ASSESSEE AND CLEARLY STATED AS SUCH IN HIS BALANCE SHEET AS AT 31/03/2006. FURTHER, THE SEIZED PAGE NO. 55 OF ANNE XURE LP-3 REVEALS THAT A SUM OF RS. 10 LACS HAD BEEN ADVANCED IN CASH TO THE LAND-OWNERS BY THE ASSESSEE ON BEHALF OF M/S SANRAJ. FINALLY, I HAVE ALSO VERIFIED THAT THE SEIZED PAGE NO. 23 OF ANNEXURE LP-5 CLEARL Y SHOWS THAT AN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 25 AGGREGATE SUM OF RS. 1.35 CRORE HAD FURTHER BEEN DI SBURSED BY THE ASSESSEE IN CASH ON BEHALF OF M/S SANRAJ. THUS, TOT AL SUM OF RS. 1.85 CRORES WAS DISBURSED ON BEHALF OF M/S SANRAJ BY THE ASSESSEE OUT OF TOTAL SUM OF RS. 5.35 CRORES RECEIVED FROM THAT COM PANY DURING THIS YEAR, THUS, LEAVING A BALANCE SUM OF RS. 3.50 CRORES WITH HIM AS ADVANCE AS ON 31/03/2006, WHICH WAS DULY DECLARED IN HIS PERSO NAL BALANCE SHEET AS ON THAT DATE BY THE ASSESSEE AS PER THE ASSESSME NT RECORD. THE ONLY CONTENTION RAISED BY THE AO IN HIS REMAND REPORT JUSTIFYING THE SAID ADDITION OF RS. 85 LACS IS THAT UNLESS AN AGRE EMENT FOR SALE / PURCHASE OF LAND IS REGISTERED, CASH ADVANCES CANNO T BE ACCEPTED AS VALIDLY EVIDENCED. ON CONSIDERATION OF ALL THESE FACTS IT IS SEEN THAT IT IS UNDISPUTED THAT SANRAJ PAID CERTAIN SUMS OF MONEY TO THE APPELLANT BY CHEQUES AND ALSO IN CASH AS ADVANCE FOR PROCUREMENT OF LAND IN AND A ROUND DEHRADUN. IT IS ALSO UNDISPUTED THAT THE ASSESSEE WAS ONLY RENDE RING FACILITATION OR MEDIATOR SERVICES FOR SALE / PURCHASE OF LAND FOR O THER PARTIES. NOW THE MOOT POINTS FOR MY CONSIDERATION ARE AS UNDER AND G IVEN BELOW EACH OF WHICH ARE MY FINDINGS ON THOSE ISSUES: WHETHER THE PAPER FOUND FROM THE POSSESSION OF THE APPELLANT AND SEIZED AT PAGE NO. 23 OF ANNEXURE LP-5 PERTAINE D TO THE AY 2006-07 OR AY 2008-09? I HAVE GONE THROUGH THE ASSESSMENT ORDER DATED 23-1 2-2009 OF THE AO FOR THE AY 2008-09 IN THE CASE OF THE SAME ASSESSEE , I.E., THE APPELLANT, AND FIND THAT THE AO HAS ONLY CONSIDERED THE CONTEN TS ON THE LEFT HAND SIDE (LHS) OF THE SEIZED PAGE NO. 23 OF THE ANNEXUR E LP-5 AND IGNORED THE RIGHT HAND SIDE (RHS) PORTION ALL TOGETHER WHIC H ACTUALLY CONTAINS THE DATE 06-11-05 WRITTEN THEREIN. MOREOVER, EVEN THE T RANSACTIONS OF RS. 75 LACS CASH AND OF RS.L CR. BANK RECORDED ON LHS M ATCH WITH THE RECEIPTS OF THE SAID SUMS ON 10-10-05 FROM M/S SANR AJ HEATH SERVICES (P) LTD. AS PER THE SEIZED RECEIPTS DATED 10-10-05 AT PAGE NOS. 59 AND 57 OF THE ANNEXURE LP-3 RESPECTIVELY AND ALSO ADMITTED AS SUCH BY THE AO IN THE ASSESSMENT ORDER FOR THE AY 2006-07. THUS, T HERE REMAINS NO DOUBT IN MY MIND THAT THE SAID DOCUMENTS PERTAINS T O THE PREVIOUS YEAR 2005- 06, I.E., THE AY 2006-07 AND NOT THE AY 2008- 09, AND MUST BE CONSIDERED FOR ASSESSMENT IN THE AY 2006-07 ONLY. WHETHER THE PAPER FOUND FROM THE POSSESSION OF THE APPELLANT AND SEIZED AT PAGE NO. 23 OF THE ANNEXURE LP-5 PERTAINED TO THE TRANSACTIO NS WITH M/S SANRAJ HEALTH SERVICES (P) LTD. VIS-A-VIS THE ASSESSEE? IN ORDER TO PROVE HIS POINT THAT THE SAID PAPER CON TAINS HIS TRANSACTIONS UNDERTAKEN WITH SANRAJ, THE APPELLANT HAS STATED TH AT THE LHS CONTAINS RECEIPTS OF MONEYS IN CASH AND BY CHEQUES FROM SANR AJ AND THE RHS CONTAINS PAYMENTS MADE FOR AND ON BEHALF OF SANRAJ. SINCE THE RECEIPTS OF RS. 75 LACS CASH AND OF RS. 1 CR. BANK RECOR DED ON LHS MATCH WITH THE RECEIPTS OF THE SAID SUMS ON 10-10-05 FROM M/S SANRAJ HEATH SERVICES (P) LTD. AS PER THE SEIZED RECEIPTS DATED 10-10-05 AT P AGE NOS. 59 AND 57 OF THE ANNEXURE LP- 3 RESPECTIVELY AND ALSO ADMITTED AS SUCH BY THE AO IN THE ASSESSMENT ORDER FOR THE AY 2006-0 7; THE PREPONDERANCE OF PROBABILITIES WEIGHS STRONGLY IN F AVOUR OF THE APPELLANT THAT ALL OTHER TRANSACTIONS RECORDED ON THE IMPUGNE D PAPER ALSO MUST PERTAIN TO SANRAJ, ONLY UNLESS PROVED OTHERWISE. IT IS NOT PERMITTED TO I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 26 IGNORE A PART OF THE TRANSACTIONS RECORDED ON A PAP ER WHICH HAS TO BE CONSIDERED IN TOTALITY. IN RESPECT OF THE PAYMENTS RECORDED ON THE RHS OF T HE SAID PAPER, IT HAS BEEN EXPLAINED BY THE APPELLANT THAT ALL THESE PAYM ENTS WERE MADE FOR AND ON BEHALF OF SANRAJ TO ITS STAFF AND ASSOCIATES STATIONED AT DEHRADUN FOR THEIR VARIOUS NEEDS. WITH REGARD TO THE PAYMENT S OF RS. 82 LACS MADE TO MR. SACHIN UPADHAYA, AS RECORDED THEREIN, IT WAS EXPLAINED BY THE APPELLANT THAT ALTHOUGH THE SAID PERSON WAS ALSO WO RKING IN CAPACITY OF AN ASSOCIATE OF THE APPELLANT IN OTHER SUCH LAND DE ALS, BUT IN THE CASE OF LAND DEALS WITH SANRAJ, BOTH OF THEM WERE WORKING I NDEPENDENTLY AND IN THEIR OWN INDIVIDUAL CAPACITIES IN ARRANGING PLOTS OF LAND FOR SANRAJ AND MAKING PAYMENTS TO THE DIFFERENT LAND OWNERS FOR AN D ON BEHALF OF SANRAJ. MY ATTENTION WAS PARTICULARLY DRAWN TO THE SEIZED GPAS AT PAGE NOS. 50 TO 52 OF ANNEXURE LP-3, WHERE MR. SACHIN UP ADHAYA WAS NOT A PARTY, BUT HE WAS JUST A WITNESS TO THOSE DOCUMENTS . THUS, HE WAS ACTING IN HIS OWN INDIVIDUAL CAPACITY IN DEALING WI TH SANRAJ AND NOT AS AN ASSOCIATE OF THE APPELLANT. THEREFORE, THEY WERE INDIVIDUALLY ACCOUNTABLE TO SANRAJ FOR UTILIZATION OF THE LAND I MPREST MONEY RECEIVED BY THEM, AND SINCE THE APPELLANT HAD HANDED OVER A SUM OF RS. 82 LACS FURTHER TO MR. SACHIN UPADHAYA AT THE BEHEST OF SAN RAJ OUT OF ITS IMPREST WITH THE APPELLANT, MR. SACHIN UPADHAYA ALONE WAS A CCOUNTABLE TO SATISFY SANRAJ AS TO ITS UTILIZATION AND NOT THE AP PELLANT; AND AS FAR AS THE APPELLANT IS CONCERNED, HE HAD DISBURSED THE SA ID SUM FOR AND ON BEHALF OF SANRAJ. IT WAS FURTHER EXPLAINED BY THE APPELLANT THAT SIMI LARLY ALL OTHER PAYMENTS NOTED IN THE SAID SEIZED DOCUMENT HAD ALSO BEEN DISBURSED BY THE APPELLANT TO SANRAJS LOCAL STAFF AND ITS OTHER ASSOCIATES FOR AND ON BEHALF OF SANRAJ TILL 06-11-05. RS. 25 LACS AND RS. 17 LACS WERE GIVEN TO MR. GOVIND AND MR. SHARAD RESPECTIVELY, WHO WERE BO TH ASSOCIATES OF SANRAJ IN DEHRADUN AND RS. 11.585 LACS TO SANRAJS STAFF TEMPORARILY POSTED IN DEHRADUN FOR MISCELLANEOUS ITEMS AS LISTE D IN THE IMPUGNED SEIZED DOCUMENT. I FIND SUBSTANCE IN THE EXPLANATIONS AND ARGUMENTS OF THE APPELLANT AND ALSO NOTICE THAT THE AO CHOSE TO IGNORE THE CONTENT S WRITTEN ON RHS OF THE IMPUGNED SEIZED DOCUMENT ALL TOGETHER. THUS, THERE REMAINS NO DOUBT IN MY MIND THAT ALL TRANSACTIONS NOTED DOWN ON THE SAI D PAPER PERTAINED TO SANRAJ ONLY AS NOTHING CONTRARY HAS BEEN BROUGHT ON RECORD BY THE AO. IN FACT, EVEN THE AO IN HIS REMAND REPORT HAS ACCEPTED , AFTER CARRYING OUT HIS VERIFICATION OF THE SEIZED MATERIAL, THAT RS. 1 .85 CRORE HAD BEEN RECEIVED IN CASH BY THE APPELLANT FROM SANRAJ AND A LSO THAT DISBURSEMENT TO THE TUNE OF RS. 1.35 CRORE WAS MADE OUT OF IT BY THE APPELLANT ON BEHALF OF SANRAJ ONLY. WHETHER THE ACTUAL SUM RECEIVED IN CASH FROM SANRAJ DURING THE AY 2006-07 WAS RS. 85 LACS OR RS. 1.85 CRORE? IT HAS ALREADY BEEN HELD BY ME THAT ALL TRANSACTION S RECORDED ON THE PAPER SEIZED AT PAGE NO.23 OF THE ANNEXURE LP-5 PER TAINED TO SANRAJ. ACCORDINGLY, EVEN THE SUMS OF RS.50 LACS CASH NOTED DOWN TWICE ON THE RECEIPTS SIDE (LHS) WERE ALSO RECEIVED FROM SANRAJ UNDOUBTEDLY. ALTHOUGH THIS PAPER CONTAINS REFERENCE TO RS.1.75 C RORE RECEIVED IN CASH FROM SANRAJ, BUT AS MENTIONED BY THE AO IN THE ASSE SSMENT ORDER AND AS ALSO ADMITTED BY THE APPELLANT, RS.10 LACS HAD ALSO BEEN RECEIVED IN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 27 CASH FROM SANRAJ BY WAY DIRECT PAYMENTS MADE TO THE LAND OWNERS AGAINST AGREEMENTS TO SELL. THUS, THE TOTAL RECEIP TS IN CASH FROM SANRAJ WAS INDEED RS.1.85 CRORE AND NOT JUST THE SUM OF RS .85 LACS. EVEN THE AO IN HIS REMAND REPORT HAS ACCEPTED, AFTER CARRYIN G OUT HIS VERIFICATION OF THE SEIZED MATERIAL, THAT TOTAL SUM OF RS.1.85 C RORE HAD BEEN RECEIVED IN CASH BY THE APPELLANT FROM SANRAJ. WHETHER THE APPELLANT SIGNED AGREEMENTS TO SELL FOR PURCHASE OF PLOTS OF LAND IN HISV NAME FOR HIS OWN USE AND PUR POSE OR DID HE ACT AS THE AGENT OR FRONT OF SANRAJ AS EXPLAINED BY HIM? FROM THE SEIZED RECORD IT IS NOTICED THAT THE RECEI PT DATED 05-10-05 FOR RS. 10 LACS SEIZED AS PAGE NO. 55 OF THE ANNEXURE L P-3 CLEARLY REFERS TO THE AGREEMENTS TO SELL DATED 27-07-05 OF THE APPELL ANT ENTERED WITH THE LAND OWNERS AND ALSO THE FACTUM OF PAYMENT OF RS. 1 0 LACS TO THE LAND OWNERS THROUGH THE APPELLANT BY MR. SANJEEV SETHI O F SANRAJ. THIS RECEIPT CLEARLY STATES THAT 150 BIGHA OF LAND AT VILLAGE KH IRSHALI, DEHRADUN WAS BEING SOLD TO MR. SANJEEV SETHI AT THE RATE OF RS. 9,89,900/- PER BIGHA FOR WHICH A PART PAYMENT OF RS. 10 LACS WAS MADE BY MR. SANJEEV SETHI AND THE SALE DEEDS FOR WHICH WERE TO BE EXECUTED BY 10- 10-05. FURTHER, THE BUY-BACK AGREEMENT DATED 06-10-05 SEIZ ED AT PAGE NO. 56 OF THE ANNEXURE LP-3 ALSO REVEALS THAT A MINIMUM GUARA NTEE OF 25% INCREASE WITHIN NEXT 6 MONTHS ON THE AGREED PURCHAS E PRICE OF RS. 9,89,900/- PER BIGHA HAD BEEN GIVEN TO MR. SANJEEV SETHI (1 ST PARTY) BY THE APPELLANT, MR. MUKESH JOSHI (2 ND PARTY) AND MR. AJAY JOSHI (3 RD PARTY) FAILING WHICH THE 1 ST PARTY WAS TO PAY THE COMMISSION @ 2% ONLY TO THE 3 RD PARTY. IT WAS FURTHER STIPULATED THEREIN THAT IN C ASE THE LAND PRICES INCREASED BETWEEN 25% TO 50% WITHIN NEXT 6 MONTHS, THEN THE 1 ST PARTY WILL GET 25% AS MINIMUM GUARANTEE AND THE APPELLANT (2 ND PARTY) SHALL BE ENTITLED TO THE BALANCE INCREASED SUM, WHEREAS BOTH PARTIES AGREED TO GIVE 2% COMMISSION TO THE 3 RD PARTY FROM THEIR RESPECTIVE SHARES. FURTHER, IT WAS STIPULATED THAT IN CASE THE LAND PRICES INCR EASED BY MORE THAN 50% WITHIN THE NEXT 6 MONTHS, THEN THE INCREASE OVE R 50% SHALL BE SHARED EQUALLY BY THE THREE PARTIES BUT THE 3 RD PARTY SHALL GET HIS DUE COMMISSION OR L/3 RD SHARE SO DETERMINED, WHICHEVER IS HIGHER. THUS, PARTIES NO. 1 AND 2 TO THIS BUY-BACK AGREEMEN T, BEING MR. SANJEEV SETHI OF SANRAJ AND MR. MUKESH JOSHI, THE APPELLANT , WERE THE BUYERS OF LAND TOGETHER AND MR. AJAY JOSHI, THE 3RD PARTY, WA S TO RECEIVE COMMISSION FROM THE SAID LAND DEALS. THEREFORE, IT IS CLEAR THAT THE APPELLANT WAS WORKING ALONGSIDE MR. SANJEEV SETHI O F SANRAJ IN PROCURING THE SAID PLOTS OF LAND ON HIS BEHALF AND NOT AS AN INDEPENDENT BUYER. IN OTHER WORDS, THE APPELLANT HAD SIGNED THE AGREEM ENTS TO SELL IN JULY 2005 FOR PURCHASE OF PLOTS OF LAND FOR AND ON BEHAL F OF SANRAJ, THOUGH IN HIS OWN NAME, BUT ACTING AS THE AGENT OR THE FRONT MAN OF SANRAJ. WHETHER THE APPELLANT WAS TO RECEIVE ANY REMUNERATI ON FROM SANRAJ AT THE TIME OF ENTERING INTO AGREEMENTS TO S ELL WITH THE LAND OWNERS? AS PER THE SAID BUY-BACK AGREEMENT OF THE APPELLANT WITH SANRAJ, THE APPELLANT WAS TO RECEIVE HIS REMUNERATION AFTER EXE CUTION OF THE SALE DEEDS, THOUGH BASED ON THE FUTURE INCREASE IN THE L AND PRICES. THERE IS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 28 NO EVIDENCE ON RECORD INDICATING ANY REMUNERATION P AYABLE TO THE APPELLANT BY SANRAJ FOR OR AT THE TIME OF ENTERING INTO AGREEMENTS TO SELL WITH THE LAND OWNERS. WHETHER THE APPELLANT SOLD ANY OF HIS OWN LAND TO S ANRAJ FOR WHICH HE COULD HAVEA RECEIVED SALE PRICE FROM SANR AJ IN CASH OR WAS HE MERELY ACTING AS A FACILITATOR IN THE LAND D EALS FOR SANRAJ? IN THIS REGARD IT WAS FURTHER EXPLAINED BY THE APPE LLANT THAT THE PLOTS OF LAND IN QUESTION WERE AGREED TO BE PROCURED FROM TH E VARIOUS LAND OWNERS AT THE RATE OF RS. 9,89,900/- PER BIGHA ON B EHALF OF MR. SANJEEV SETHI OF SANRAJ THOUGH ENTERED INTO IN HIS OWN NAME BY THE APPELLANT BUT THE FINAL CONVEYANCE DEEDS WERE TO BE MADE DIRECTLY BY SANRAJ WITH THE LAND OWNERS. UNDER THIS UNDERSTANDING THE SO-CALLED BUY-BACK AGREEMENT WAS ALSO GOT SIGNED BY MR. SANJEEV SETHI TO SAFEGUARD HIS INTEREST BECAUSE HE HAD MADE THE TOTAL INVESTMENT F OR PURCHASE OF THE SAID PLOTS OF LAND. MOREOVER, SINCE HOT EVEN A SINGLE COPY OF THE AGREEMENTS TO SELL AND THE SALE DEEDS PERTAINING TO THE SAID PLOTS OF LAND WAS FOUND FROM THE POSSESSION OF THE APPELLANT DURI NG THE SEARCH ALSO BEARS TESTIMONY TO THE FACT THAT ALL THOSE DOCUMENT S HAD BEEN KEPT BY MR. SANJEEV SETHI IN HIS OWN CUSTODY SINCE HE WAS T HE ACTUAL BUYER AND THE APPELLANT WAS JUST HIS AGENT OR FRONT FOR PROCU RING THE SAID PLOTS OF LAND FOR SANRAJ. I FIND FORCE IN THE ARGUMENTS OF THE APPELLANT. AS PER THE SAID BUY-BACK AGREEMENT, THE APPELLANT WAS TO RECEIVE HIS REMUNER ATION EVENTUALLY, THOUGH BASED ON THE FUTURE INCREASE IN THE LAND PRI CES. THIS CANNOT BE UNDERSTOOD AS PROFIT ON SALE OF LAND ACCRUING TO HI M, BUT IT WAS THE REMUNERATION DUE TO HIM FOR RENDERING LAND PROCUREM ENT SERVICES TO SANRAJ. IF THE APPELLANT IS HELD TO BE THE ACTUALLY PURCHASER OF THE SAID LAND WHO EVENTUALLY SOLD IT TO MR. SANJEEV SETHI, T HEN SOME PAYMENTS WOULD CERTAINLY HAVE BEEN MADE BY HIM AT THE TIME O F PURCHASE, BUT NEITHER ANY SUCH DOCUMENTS WERE FOUND DURING THE SE ARCH NOR ANY SUCH FINDING HAS BEEN GIVEN BY THE AO IN THIS REGARD. TH US, THE SAID LAND WAS INDEED PURCHASED BY THE APPELLANT FOR AND ON BEHALF OF SANRAJ AND THE QUESTION OF ITS SUBSEQUENT SALE TO SANRAJ BY HIM DO ES NOT ARISE AND, THEREFORE, THE APPELLANT WAS MERELY ACTING AS A FAC ILITATOR IN THE SAID LAND DEALS FOR SANRAJ. WHETHER THE RECEIPT OF RS. 85 LACS OR RS. 1.85 CROR E IN CASH FROM SANRAJ AN ADVANCE OR INCOME OF THE APPELLANT? THE BUY-BACK AGREEMENTS SEIZED IN SEARCH CLEARLY RE VEAL THAT THE APPELLANT WAS TO RECEIVE HIS REMUNERATION ONLY AFTE R 6 MONTHS FROM THE REGISTRATION OF THE SAID PLOTS OF LAND IN THE NAME OF SANRAJ. AS PER THE SEIZED RECORD EXAMINED BY ME IN THIS REGARD, THE SA ID SALE DEEDS WERE DUE TO BE EXECUTED FROM 10-10-05 TILL THE END OF DE CEMBER, 2005. ACCORDINGLY, THE REMUNERATION OF THE APPELLANT FELL DUE ONLY AFTER 6 MONTHS THEREFROM, WHILE THE SAID CASH OF RS. 1.85 C RORE HAD CLEARLY BEEN RECEIVED BY HIM MUCH BEFORE. THUS, THE RECEIPT OF R S. 1.85 CRORE IN CASH FROM SANRAJ WAS IN NATURE OF ADVANCE FOR LAND PROCU REMENT AND WHICH EVEN WAS DISBURSED BY THE APPELLANT FOR AND ON BEHA LF OF SANRAJ BY THE APPELLANT AS UNDER: I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 29 DATE AMOUNT(RS.) EXPLANATION 05/10/05 10.00 LACS PAID TO THE LAND OWNERS AS PER RECEIPT DATED 05/10/05 (PAGE 55 OF ANNEXURE LP-3) 06/11/05 135.00 LACS DISBURSED TO VARIOUS PERSONS FOR AND ON BEHALF OF SANRAJ (PAGE 23 OF ANNEXURE LP-5) 03/01/06 12.50LACS ADVANCE FOR LAND GIVE N TO ISHWAR (LAND OWNER) BY CHEQUE ISSUED FROM SB A/C # 16456 CANARA BANK BY THE APPELLANT ON BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) 12/01/0612.50 LACS ADVANCE FOR LAND GIVEN TO DEEPAK (LAND OWNER) BY CHEQUE A ISSUED FROM SB A/C # 16456 CANARA BANK BY THE APPELLANT ON BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) 18/01/06 15.00 LACS ADVANCE FOR LAND GI VEN TO RATAN (LAND OWNER) BY CHEQUE ISSUED FROM SB A/C # 16456 CANARA BANK BY THE APPELLANT ON BEHALF OF SANRAJ (CLEARLY STATED SO IN THE STATEMENT OF AFFAIRS AS ON 31/3/06 REFERRED TO BY THE ASSESSING AUTHORITY) LACS TOTAL PAYMENT MADE THUS, NO PART OF THE SAID CASH RECEIPT TOTALING TO RS. 185 LACS REMAINED WITH THE APPELLANT AND NO PART OF IT CAN BE HELD AS HIS INCOME BY ANY STRETCH OF IMAGINATION. WHETHER THE APPELLANT PAID / DISBURSED RS. 1.85 CRO RE FOR AND ON BEHALF OF SANRAJ? I HAVE ALREADY HELD HEREIN ABOVE THAT THE EVIDENCE SEIZED FROM THE POSSESSION OF THE APPELLANT CLEARLY REVEALS THAT RS . 1.35 CRORE HAD BEEN DISBURSED BY HIM IN CASH FOR AND ON BEHALF OF SANRA J AND BESIDES THIS, RS. 40 LACS HAD BEEN BEEN ADVANCED TO SOME LAND OWN ERS FOR PURCHASE OF LAND BY CHEQUES FOR AND ON BEHALF OF SANRAJ. THE REMAINING RS 10 LACS WERE ALSO PAID TO THE PLOT OWNERS IN CASH. THUS, TH E APPELLANT HAD UNDOUBTEDLY PAID / DISBURSED RS. 1.85 CRORE FOR AND ON BEHALF OF SANRAJ. EVEN THE AO IN HIS REMAND REPORT HAS ACCEPTED, AFTE R CARRYING OUT HIS VERIFICATION OF THE SEIZED MATERIAL, THAT RS. 1.85 CRORE HAD BEEN DISBURSED FOR AND ON BEHALF OF SANRAJ. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 30 WHETHER THE AO WAS JUSTIFIED IN MAKING THE SAID ADD ITION FOR CASH RECEIPT SINCE ONLY THE CHEQUE PAYMENTS HAD BEE N CONFIRMED BY SANRAJ BEFORE HIM? IT IS MY CONSIDERED VIEW THAT MERELY BECAUSE M/S SA NRAJ HEALTH SERVICES (P) LTD. ONLY CONFIRMED PAYMENT OF RS. 3.50 CRORES BY C HEQUES TO THE APPELLANT, IT CANNOT BE CONCLUDED THAT NO CASH PAYM ENTS HAD BEEN MADE BY THE SAID COMPANY TO THE APPELLANT FOR PROCUREMEN T OF LAND, ESPECIALLY BECAUSE THE SEIZED DOCUMENTS CLEARLY REVEALED THAT PAYMENT OF RS. 1.85 CRORES WAS ALSO MADE IN CASH BY SANRAJ TO THE APPEL LANT. THUS, IN MY OPINION THE AO WAS NOT JUSTIFIED IN MAKING THE SAID ADDITION FOR CASH RECEIPT SINCE ONLY THE CHEQUE PAYMENTS HAD BEEN CON FIRMED BY SANRAJ BEFORE HIM. IN VIEW OF THE DISCUSSION ABOVE AND CONSIDERING ALL FACTS, ASPECTS AND CIRCUMSTANCES OF THE ISSUE INVOLVED, THE ADDITION O F RS. 85 LACS MADE BY THE AO IS HEREBY DELETED. 13.4. CONSIDERING THE ABOVE IN THE CONTEXT OF THE R EPLY OF THE ASSESSEE PLACED ON RECORD AND JUXTAPOSED WITH THE REMAND REPORT OF THE AO, (ALSO REPRODUCED ABOVE) WHICH HAS BEEN HEAVILY RELIED UPON BY THE LD . CIT DR BEFORE US WE FIND THAT WHEN THESE READ ALONGWITH THE SUBMISSIONS AD VANCED WE ARE OF THE VIEW THAT BY RELYING UPON THE ASSESSMENT AND THE REMAND REPORT, THE REVENUE CAN AT BEST AROUSE SUSPICION WHICH BY ITSELF CANNOT BE SAI D TO BE SUFFICIENT REASON TO JUSTIFY THE DEMAND FOR A REMAND. NO DOUBT ITAT HAS THE POWER TO REMAND THE ISSUE, HOWEVER THE SAID REQUEST CANNOT BE REQUESTED FOR ON IPSE DIXIT OF THE PARTIES; IT HAS TO BE SUPPORTED ON THE BASIS OF SOM E COGENT AND RELEVANT FACTS WHICH CAN BE SAID TO HAVE BEEN EITHER NOT CONSIDERE D OR CONSIDERED INCORRECTLY. FOR THE SAID PURPOSES THE NECESSARY EXERCISE HAS NO T BEEN DONE BY THE REVENUE. WE FIND FROM THE RECORD THAT THE ASSESSEE HAS ADDRE SSED THE SEIZED ANNEXURES AND DOCUMENTS RELIED UPON BY THE AO AND THE DETAILE D EXPLANATION ON THESE SEIZED ANNEXURES AND DOCUMENTS HAS BEEN MADE AVAIL ABLE TO THE ASSESSING OFFICER. IT IS SEEN THAT THE ASSESSING OFFICER HAS REPEATEDLY BEEN REMINDED TO PLACE ITS REMAND REPORT ON RECORD AND SINCE DESPITE REMINDERS WHEN IT WAS NOT BEEN PLACED ON RECORD THE CIT(A) HAS PROCEEDED TO E XAMINE THE DOCUMENTS AND I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 31 CALLED FOR THE WITNESSES AND HAD ALREADY STARTED TH E PROCESS OF RECORDING THEIR STATEMENTS BY WHICH TIME THE ASSESSING OFFICER FINA LLY ALSO PLACED ITS REMAND REPORT ON RECORD. WE HAVE TAKEN INTO CONSIDERATION THE CONTENTS OF THE REMAND REPORT RELIED UPON BY THE REVENUE. A PERUSAL OF TH E SAME SHOWS THAT THE BASIC CLAIM ON FACTS IS AGREED TO BY HIM AND AFTER THAT O N SELECTIVE REASONING HAS PROCEEDED TO ADDRESS THE EVIDENCES WHICH ARE NOT DI SPUTED. THE OBJECTION IS ONLY ON THE REASONING THAT REGISTERED DOCUMENTS CAN ONLY BE CONSIDERED. THE ROLE OF THE ASSESSEE AS A FACILITATOR AS PER THE AS SESSING OFFICER HIMSELF FOR CONSOLIDATING PURCHASE/SALE OF LANDS ON BEHALF OF O THER PARTIES STANDS ACCEPTED THE DOCUMENTS STAND ADDRESSED THUS IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IN THE ABSENCE OF ANY INFIRMITY POINTED OU T IN THE ORDER WE FIND NO GOOD REASON TO INTERFERE WITH THE FINDING ARRIVED AT. AC CORDINGLY GROUND NO. 3 OF THE REVENUE IS DISMISSED. 14. ADDRESSING GROUND NO.4, THE LD. CIT DR INVITING AT TENTION TO UNNUMBERED PAGE 5 AND 6 OF THE ASSESSMENT ORDER SUB MITTED THAT THAT CERTAIN FINANCIAL TRANSACTIONS WERE FOUND IN THE SEIZED LAP TOP OF THE ASSESSEE WHICH HAVE BEEN MENTIONED AS ANNEXURE A 1. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME. IT WAS SUBMITTED THAT THE ASSESSEE HAS A VOIDED A REPLY AND INSTEAD SAID THAT THESE LAPTOPS WERE USED BY HIS WIFE AND H IS BROTHER-IN-LAW FOR TEACHING AND RE-CREATION PURPOSES OF THE CHILDRENS EDUCATIO N ETC. AND THAT THEY DID NOT REFLECT ANY FINANCIAL TRANSACTIONS. THE EXPLANATION IT WAS SUBMITTED WAS FOUND TO BE INCORRECT AS EVIDENTLY SPECIFIC CHEQUE NUMBER S AND TRANSACTIONS IN CASH TOTALING TO RS.40,93,200/- WERE RECORDED. INVITING ATTENTION TO THE SUBMISSIONS ADVANCED BEFORE THE CIT(A) IT WAS HER SUBMISSION TH AT THE ARGUMENT OF THE ASSESEE HAS BEEN ACCEPTED WITHOUT ANY BASIS. THE A SSESSING OFFICER IT WAS SUBMITTED HAS SUCCESSFULLY REJECTED THIS GENERALIST IC EXPLANATION OFFERED AND I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 32 HELD THAT THE ARGUMENT IS WITHOUT ANY EVIDENCE, NAM ELY THAT THE ASSESSEE AND SH. SACHIN UPADHYAY WERE JOINTLY ACTING AS ASSOCIAT ES FOR PROCURING LAND IN DEHRADUN FOR M/S PRATEEK RESORTS. IN SUPPORT OF TH E ASSESSEES CLAIM IT WAS SUBMITTED NO JOINT VENTURE AGREEMENT WAS EVER MADE AVAILABLE. THE EVIDENCE IN THE FORM OF REGISTERED AGREEMENTS OR SALE DEED ETC. IT WAS SUBMITTED WAS FOUND TO BE MISSING. ACCORDINGLY IT WAS HER SUBMISSION TH AT THE ISSUE SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A VERIFICATION ON FACTS SINCE ADMITTEDLY IN THE CASE OF ATS GROUP OF COMPANIES IN CLUDING THAT OF M/S PRATEEK RESORTS AND BUILDERS A SPECIAL AUDIT HAD BEEN ORDER ED. 15. THE LD. AR ON THE OTHER HAND STRONGLY OPPOSED THE REQUEST FOR A REMAND. IT WAS HIS SUBMISSION THAT WHATEVER THE DEPARTMENT COULD FIND AGAINST THE ASSESSEE HAS BEEN FOUND IN THE SEARCH. THE EVIDENC E IN SUPPORT OF ITS CASE HAS BEEN CONFRONTED TO THE AO. MORE THAN ADEQUATE TIME HAS BEEN MADE AVAILABLE TO HIM TO CONSIDER THE SAME AND AT THE COST OF REIT ERATION IT WAS SUBMITTED NO ARGUMENT HAS BEEN ADVANCED TO JUSTIFY THE REQUEST. THE FACT THAT THE EVIDENCES HAVE BEEN INDEPENDENTLY VERIFIED BY THE CIT(A) HIMS ELF AND SPEAKING FINDING HAS BEEN GIVEN HAS BEEN LEFT UNADDRESSED. THUS IN THE ABSENCE OF ANY INFIRMITY IN THE ORDER THE REQUEST FOR REMAND WAS STRONGLY OPPOS ED. ADDRESSING THE FACT THAT THE TRANSACTIONS ARE RECORDED IN THE LAPTOP, IT WAS SUBMITTED DOES NOT MAKE THE ASSESSEE A LIAR AS THE EXPLANATION OFFERE D AT THE STAGE OF ASSESSMENT THAT THE LAPTOPS WERE USED BY THE FAMILY FOR EDUCAT ION AND RECREATIONAL PURPOSES WAS ALSO CORRECT AND THE ASSESSEE STANDS B Y IT. THE SAID CLAIM WAS CORRECT AND MERELY BECAUSE SOME TRANSACTIONS WERE A LSO RECORDED AT A POINT OF TIME IS A FACT. THE FACT THAT THE ASSESSEE CAN EXP LAIN WHAT WAS RECORDED THEREIN AND HAS SUCCESSFULLY DEMONSTRATED THAT THESE WERE D ETAILS OF THE TRANSACTIONS RECORDED FOR SOME CALCULATION PURPOSES AND EXPLAINE D THAT THE PAYMENT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 33 RECORDED AS CODED M IN THE SEIZED DOCUMENT MATCH WITH THE BANK ENTRIES FOR MR MUKESH JOSHI AND THE ONE RECORDED FOR S TALLIED WITH THE BANK ACCOUNTS OF MR SACHIN UPADHYAY. IT WAS HIS SUBMISSION THAT THE ASSESSEE HAS NEVER CLAIMED THAT MR SACHIN UPADHYAY AND HE WERE ACTING IN A JOINT VENTURE FOR PROCURING LAND FOR AND ON BEHALF OF MRS PRATEEK RES ORTS AND BUILDERS A GROUP COMPANY OF ATS. WHAT HAS BEEN CLAIMED, IT WAS SUBM ITTED IS THAT BOTH OF THEM WERE WORKING IN THEIR INDIVIDUAL CAPACITY FOR THIS PURPOSE. THEY WERE WORKING WITH A COMMON GOAL. THEY WERE ACCOUNTABLE TO THE CO MPANY FOR THE MONEY GIVEN TO THEM FOR PROCUREMENT OF LAND THROUGH THEM WHICH WERE RECORDED IN THE IMPUGNED SHEET FOUND FROM THE SEIZED LAPTOP. IT WAS SUBMITTED THAT THIS EXPLANATION OF THE ASSESSEE AND THE REJOINDER TO TH E REMAND REPORT OF THE ASSESSING OFFICER WHEN READ ALONG WITH THE DETAILED SUBMISSIONS ADVANCED BEFORE THE CIT(A) TO EXPLAIN THE NATURE OF ASSESSEE S BUSINESS WOULD SHOW AND EXPLAIN HOW THE ASSESSEE HAS BEEN FUNCTIONING OVER THE YEARS FOR CONSOLIDATION OF LAND AND FACILITATING PURCHASES IN THE AREA OF D EHRADUN FOR AND ON BEHALF OF M/S SANRAJ HEALTH SERVICES; FOR AND ON BEHALF OF TH E ATS GROUP; RPS GROUP OF FARIDABAD; AND PRATEEK RESORTS ETC. AT A DIFFERENT POINTS OF TIME. THE ASSESSEES EXPLANATION, IT WAS SUBMITTED IS WELL KNITTED WITH EACH AND EVERY TRANSACTION ON EACH AND EVERY DOCUMENT FOUND. THIS EVIDENCE IT WA S SUBMITTED HAS NOT BEEN ASSAILED BY THE REVENUE WHATSOEVER. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE PLEA MADE AT THIS STAGE FOR A REMAND BASED ON NO EV IDENCE AND ASSAILING NO EVIDENCE AND LEADING NO FRESH EVIDENCE ON FACT SHOU LD NOT BE ACCEPTED. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE FOLLOWING TRANSACTIO NS RELATABLE TO THE YEAR UNDER CONSIDERATION WERE FOUND RECORDED IN THE SEIZED LAP TOPS DESCRIBED AS ANNEXURE A-1. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 34 S.NO. DATE CHEQUE AMOUNT CASH AMOUNT NAME OF PERSON 1. 09/03/06 5,00,000/- 13,75,000/- SUGANCHAND 2. 09/03/06 3,50,000/- 8,81,500/- ELIZABETH 3. 17/03/06 5,00,000/- 4,42,400/- KAMLESH CHAUHAN 4. 02/-03/06 4,82,000/- 13,94,300/- SANJEEV VIRMANI TOTAL 40,93,200/- 16.1. IT IS SEEN THAT FOLLOWING SUBMISSIONS ON FACTS HAV E BEEN ADVANCED BEFORE THE CIT(A: 9.2. ARS SUBMISSION AR MADE THE FOLLOWING SUBMISSIONS:- THE LAST GROUND OF APPEAL IS TO CHALLENGE THE ACTI ON OF THE ASSESSING AUTHORITY IN MAKING AN ADDITION OF RS.40,93,200/-FO R CASH PAYMENTS MADE ON ACCOUNT OF LAND TRANSACTIONS OF THIRD PARTI ES. IT WAS AVERRED BY THE ASSESSING AUTHORITY THAT ONE OF THE FILES FOUND IN THE LAPTOP COMPUTER OF THE ASSESSEE SEIZED VIDE ANNEXURE A-L, CONTAINED CERTAIN DATA OF FINANCIAL TRANSACTIONS IN RESPECT OF PURCHASE / SALE OF LAND. IT WAS ASSERTED BY THE ASSESSING AUTH ORITY THAT THE FACT THAT THE SAID DATA PERTAINED TO THE ASSESSEE WAS EVIDENT SINCE SOME OF THE PAYMENTS RECORDED THEREIN HAD BEEN MADE BY THE ASSE SSEE THROUGH CHEQUES TO VARIOUS PERSONS ON VARIOUS DATES, WHICH TALLIED WITH THE BANK STATEMENTS OF THE ASSESSEE. FURTHER, IT WAS AVERRED THAT CERTAIN CASH PAYMENTS MADE BY THE ASSESSEE WERE ALSO FOUND RECOR DED THEREIN BESIDES THE SAID CHEQUE PAYMENTS, BUT THE SAME WERE NEITHER FOUND RECORDED IN THE CASH FLOW STATEMENT SUBMITTED BY TH E ASSESSEE NOR ITS SOURCES WERE EXPLAINED. ACCORDINGLY, AN ADDITION WA S MADE BY THE ASSESSING AUTHORITY FOR CASH PAYMENTS TOTALING TO R S. 40,93,200/- FOR THE RELEVANT PREVIOUS YEAR RECORDED THEREIN AS EXPENDIT URE MADE FROM UNDISCLOSED SOURCES. IN THIS REGARD IT IS IMPORTANT TO FIRST LOOK INTO T HE HISTORY OF THE DEAL MADE WITH THE ATS GROUP (ATS) VIS-A-VIS THE APPELLANT FO R PROPER APPRECIATION OF THE FACTS AND THE TRANSACTIONS UNDERTAKEN DURING THE RELEVANT PREVIOUS YEAR. THE SAME IS GIVEN AS UNDER: IT HAS BEEN EXPLAINED ABOVE HOW THE APPELLANT SAW P OTENTIAL IN THE REAL ESTATE BUSINESS AND VENTURED INTO THE SAME. IN DECE MBER, 2004, HE ALONG WITH MR. SACHIN UPADHAYA, HIS CLOSE FRIEND AN D ASSOCIATE, ACQUIRED 100% SHARES OF AN EXISTING COMPANY, M/S PR ATEEK RESORTS & BUILDERS PVT. LTD. IN EQUAL PROPORTION FOR CARRYING OUT REAL ESTATE ACTIVITIES IN DEHRADUN. IN THE MEANWHILE, AROUND THE MONTHS OF OCTOBER-NOVEMBER, 2004, RPS GROUP OF BUILDERS, BASED IN FARIDABAD, WERE LOOKING AROUND FOR CHEAP LAND FOR THEIR PROPOSED HOUSING PROJECT IN DE HRADUN AND CAME IN CONTACT WITH THE APPELLANT AND MR. SACHIN UPADHAYA, WHO WERE IN A POSITION TO FACILITATE ACQUISITION OF SOME LAND SIT UATED IN SOME PRIME AREA IN DEHRADUN FOR THEM. AN UNDERSTANDING WAS REACHED WITH THEM IN DECEMBER, 2004 AND M/S PRATEEK RESORTS & BUILDERS P VT. LTD. (PRATEEK) STARTED BUYING LAND THEREAFTER AT THE BEH EST OF M/S RPS ASSOCIATES (RPS). AS EXPLAINED ABOVE, IT IS A STANDARD PRACTICE WITH I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 35 BUILDERS THAT THEY DO NOT COME IN THE FORE FRONT IN THE INITIAL STAGES OF LAND ACQUISITION SINCE THE SELLERS OF LAND START DE MANDING EXCESSIVE PRICES FROM THEM. HENCE, PRATEEKS NAME WAS USED BY RPS. AROUND 155 BIGHAS OF LAND GOT ACQUIRED FOR RPS ULTIMATELY BY PRATEEK FOR DEVELOPMENT OF A RESIDENTIAL COLONY BY RPS. IN FACT , THE ENTIRE FUNDING REQUIRED FOR THE ACQUISITION OF LAND WAS PR OVIDED BY RPS BY WAY OF ADVANCING LOAN TO THE SAID COMPANY IN DEC EMBER, 2004 ITSELF. BUT IN ORDER TO PROTECT ITS INTEREST, RPS N OMINATED ITS OWN PERSONS AS DIRECTORS IN THE BOARD OF THE SAID COMPA NY AND SUBSEQUENTLY REMOVED THE EXISTING DIRECTORS FROM IT S BOARD, THUS, WIELDING 100% CONTROL OVER ITS BOARD; WHILE THE SHARES IN THAT COMPANY CONTINUED TO REMAIN IN THE NAMES OF THE APP ELLANT AND MR. SACHIN UPADHAYA, WHO FACTUALLY WERE MERELY ACTI NG AS THE FACILITATORS / MEDIATORS FOR ACQUIRING LAND FOR RPS AND THEIR REMUNERATION WAS AGREED TO BE GIVEN BY RPS AS PART OF PURCHASE CONSIDERATION FOR THE SHARES OF PRATEEK HELD BY THE M, WHICH WERE TO BE SOLD TO RPS JUST BEFORE THE CONSTRUCTION ACTIVITY W AS TO BE COMMENCED ON THAT PIECE OF LAND. HOWEVER, RPS LATER DECIDED TO WITHDRAW FROM THE PROJECT IN JANUARY, 2006 AND ROPED IN THE ATS GROUP TO TAKE IT OVER FROM THEM. ACCORDINGLY, IT WAS DECIDED IN FEBRUARY, 2006 THAT ATS SHALL TAKEOVER THE OWNERSHIP, MANAGEMENT AND CONTROL OF M /S PRATEEK RESORTS & BUILDERS PVT. LTD. BY PURCHASING ITS SHARES HELD BY THE APPELLANT AND MR. SACHIN UPADHAYA. IN THIS MANNER THE APPELLANT AND MR. SACHIN UPADHAYA CAME IN THE CONTACT WITH THE ATS GROUP FOR THE FIRST TIME. SINCE ATS WAS A LARGE GROUP OF BUILDERS AND COLONIZ ERS, THEY WANTED A BIGGER CHUNK OF LAND HAVING AN AREA OF AROUND 250 B IGHAS FOR ACHIEVING THE FINANCIAL VIABILITY OF THEIR HOUSING PROJECT IN DEHRADUN, AND SINCE THE APPELLANT AND HIS ASSOCIATE WERE IN A POSITION TO O BTAIN THE ADJOINING PIECES OF THE SAID LAND AS WELL, THEIR SERVICES WER E REQUISITIONED FOR FURTHER CONSOLIDATION OF THE DESIRED ADJOINING AREA S BY ATS. HOWEVER, IN ORDER THAT THE APPELLANT AND HIS ASSOCI ATE DO NOT BACK OUT FROM THEIR COMMITMENT, ATS MADE THEM THE DIRECTORS OF M/S PRATEEK RESORTS & BUILDERS PVT. LTD. AND ALSO NOMINATED TWO MORE DIRECTORS TO ITS BOARD SUBSEQUENTLY WHILE REMOVING ALL OTHER EXISTIN G DIRECTORS OF RPS IN THE PROCESS OF ACQUISITION OF THAT COMPANY. WHEREAS THE TRUE CONTROL AND MANAGEMENT OF THE SAID COMPANY FULLY VESTED IN THE TWO DIRECTORS OF ATS NOW FOR ALL PRACTICAL PURPOSES AND THE APPELLANT AN D HIS ASSOCIATE WERE JUST POSITIONED AS DORMANT DIRECTORS IN THE BOARD. THUS, THE APPELLANT AND MR. SACHIN UPADHAYA HAD ONLY LENT THEIR NAMES A ND WERE IN NO MANNER CONTROLLING THE AFFAIRS OF THAT COMPANY. NOT ONLY THIS, ATS FURTHER ENSURED THEIR CONTINUED ASSISTANCE TO THE COMPANY F OR ACQUISITION OF THE ADJOINING LAND BY MAKING THEM AGREE TO SELL THEIR S HARES OF M/S PRATEEK RESORTS & BUILDERSPVT. LTD. TO ATS IN A PHASED MANN ER SPREAD OVER A PERIOD OF TIME, THOUGH THE TOTAL PRICE OF THOSE SHA RES WAS PRE-FIXED IN FEBRUARY, 2006 ITSELF BASED ON THE VALUATION OF LAN D PREVAILING AT THAT POINT OF TIME. THE SAID SHARES WERE SUBSEQUENTLY TR ANSFERRED IN PARTS BY THE APPELLANT AND MR. SACHIN UPADHAYA AS DETAILED H EREIN BELOW: NUMBER OF SHARES DATE OF MUKESH SACHIN TOTAL (NUMBER & TRANSFER JOSHI UPADHAYA PERCENTAGE) 21/08/06 2,000 2,000 4,000 40% I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 36 20/10/06 500 1,000 1,500 15% 14/11/07 1,000 1,000 2,000 20% 08/12/08 1.500 1.000 2.500 25% TOTAL 5.000 5.000 10.000 100% DURING THIS PERIOD, ADJACENT PIECES OF LAND TOTALIN G TO AROUND 100 BIGHAS WERE FURTHER ACQUIRED FOR THE SAID COMPANY THROUGH THE EFFORTS OF THE APPELLANT AND MR. SACHIN UPADHAYA AND THE FINAL LOT OF SHARES WAS GOT TRANSFERRED BY ATS IN ITS FAVOUR. ALSO, THE APPELLA NT AND MR. SACHIN UPADHAYA WERE ALLOWED TO RESIGN FROM THE DIRECTORSH IP OF THE SAID COMPANY IN DECEMBER, 2008 AFTER THEY HAD FULLY RENDERED THEIR COMMITTED SERVICES TO ATS. UNDER THIS BACKGROUND, IT IS SUBMITTED THAT THE SAI D DATA CONTAINED THE PAYMENTS MADE TO PURCHASE LAND ON BEHALF OF M/S PRA TEEK RESORTS & BUILDERS PVT. LTD. BY THE APPELLANT AND HIS ASSOCIA TE, MR. SACHIN UPADHAYA. HOWEVER, THE ASSESSING AUTHORITY ONCE AGA IN PICKED AND CHOSE THE CONTENTS OF THE SAID DATA TO SUIT HIS OWN CONVENIENCE IN ORDER TO MAKE THE SAID ADDITION. THE CASH PAYMENTS RECORD ED FOR THE FY 2005- 06 OUT THE SAID DATA, FOR WHICH THE ADDITION WAS MA DE, HAVE BEEN MENTIONED IN THE ASSESSMENT ORDER AS UNDER BY THE A SSESSING AUTHORITY: DATE CHEAUE AMT CASH AMOUNT NAME OF PERSON 09/03/06 5,00,000 13,75,000 SUGAN 09/03/06 3,50,000 8,81,500 ELIZABETH 17/03/06 5,00,000 4,42,400 KAMLESH 02/03/06 4,82,000 13.94.300 SANJEEV VIRMANI TOTAL: 40.93.200 A PHOTOCOPY OF THE PRINT-OUT OF THE SAID DATA SUPPL IED BY THE ASSESSING AUTHORITY IS ENCLOSED. THIS DATA CONTAINS THE FINAN CIAL TRANSACTIONS SPREAD OVER IN TWO FINANCIAL YEARS, I.E., FYS 2005- 06 *& 2006-07 AND ALSO STATES THE ACCOUNT HOLDERS NAME IN THE LAST COLUMN AS S AND M AGAINST EACH ROW. THIS CLEARLY SHOWS THAT THE R ESPECTIVE PAYMENTS BY CHEQUE OR IN CASH WERE MADE BY THE SAID ACCOUNT HOLDERS. IT IS NOT VERY DIFFICULT TO DECIPHER WHAT S AND M STAND FOR. WHEREAS M STOOD FOR MUKESH JOSHI, THE APPELL ANT, S STOOD FOR SACHIN UPADHAYA, HIS ASSOCIATE, WHO MADE THE STATED PAYMENTS BY CHEQUES OR IN CASH AS RECORDED AGAINST THEIR RES PECTIVE NAMES. BUT THE ASSESSING AUTHORITY SIMPLY CHOSE TO IGNORE THIS VITAL PIECE OF INFORMATION RECORDED THEREIN AND SIMPLY ATTRIBUTED ALL PAYMENTS AS MADE BY THE APPELLANT. THE FACT THAT THE CORRESPONDING PAYMENTS HAD INDEED BEEN MADE BY THE APPELLANT AND MR. SACHIN UPADHAYA CAN BE EASILY ASC ERTAINED FROM THEIR RESPECTIVE BANK ACCOUNTS. A PHOTOCOPY OF THE BANK S TATEMENT OF SB A/C NO. 016401521868 WITH ICICI BANK, DEHRADUN OF MR. S ACHIN UPADHAYA AVAILABLE WITH THE APPELLANT IS ENCLOSED, WHEREIN T HE ABOVE SAID CHEQUE PAYMENTS MADE TO THE SAID PARTIES, EXCEPT ELIZABETH , ARE DULY RECORDED. PAYMENT TO ELIZABETH ON 09/03/06 MAY HAVE BEEN MADE BY MR. SACHIN UPADHAYA FROM HIS SOME OTHER BANK ACCOUNT WHICH IS NOT AVAILABLE WITH THE APPELLANT, BUT IT CAN BE VERIFIED THAT THE SAME HAS NOT BEEN MADE BY THE APPELLANT FROM ANY OF HIS BANK ACCOUNTS IN THE FY 2005-06. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 37 PHOTOCOPIES OF THE PASSBOOKS / STATEMENTS OF ALL BA NK ACCOUNTS FOR THE YEAR OF THE APPELLANT HAVE ALREADY BEEN FURNISHED V IDE PARA NO. 2.2.1 HEREIN ABOVE. THUS, UNDISPUTEDLY THE IMPUGNED CHEQU ES WERE PAID BY MR. SACHIN UPADHAYA AND EVEN THE CASH PAYMENTS RECO RDED AGAINST HIS NAME WERE MADE BY HIM ONLY AND NOT THE APPELLANT. IT IS NOT UNDERSTOOD HOW THE ASSESSING AUTHORITY HA S AVERRED THAT THE CHEQUE PAYMENTS HAD BEEN VERIFIED AS MADE FROM THE APPELLANTS BANK ACCOUNT, WHEN NOT A SINGLE CHEQUE PAYMENT DURING TH E FY 2005-06 WAS MADE FROM HIS BANK ACCOUNTS BY THE APPELLANT AND WH EN THE SAID PAYMENTS ON THE STATED DATES HAD FACTUALLY BEEN MAD E BY MR. SACHIN UPADHAYA FROM HIS OWN BANK ACCOUNT(S). THUS, THERE IS NO MERIT IN THE SAID AVERMENT OF THE ASSESSING AUTHORITY WHO, FOR T HE REASONS BEST KNOWN TO HIM, SIMPLY PRESUMED THE ENTIRE CASH PAYME NT AS MADE BY THE APPELLANT WITHOUT EVEN CONFRONTING MR. SACHIN UPADH AY IN THIS REGARD OR EVEN WITHOUT BRINGING ON RECORD THE OUTCOME OF SUCH CONFRONTATION, IF ANY MADE. MOREOVER, FACTUALLY ALL PAYMENTS MADE BY THE APPELLANT AGAINST THE ENTRIES RECORDED IN HIS NAME IN THE IMPUGNED FI NANCIAL DATA PERTAIN TO THE NEXT FINANCIAL YEAR 2006-07 AND NOT THE PREV IOUS YEAR UNDER CONSIDERATION AT ALL. THUS, NONE OF THE SAID CASH PAYMENTS WAS MADE BY TH E APPELLANT AND THE QUESTION OF EXPLAINING ITS SOURCE BY THE APPELL ANT COULD NOT ARISE. IT MUST BE APPRECIATED THAT MR. SACHIN UPADHAYA WAS AL SO COVERED IN THE SAID SEARCH ON ATS GROUP AND THE PERTINENT QUESTION S OF THE SOURCE OF THE SAID CASH PAYMENTS SHOULD HAVE BEEN DIRECTED AT HIM AND NOT THE APPELLANT, WHO IS ANSWERABLE FOR HIS OWN TRANSACTIO NS AND NOT THOSE UNDERTAKEN BY ANY OTHER PERSON(S). ACCORDINGLY, IF AT ALL ANY ADDITION WAS TO BE MADE FOR THE ABOVE UNEXPLAINED CASH PAYME NTS, IT COULD ONLY BE MADE IN THE HANDS OF MR. SACHIN UPADHAYA IN THIS CASE, WHO HAD BEEN SIMULTANEOUSLY ASSESSED U/S 153A BY THE SAME A SSESSING OFFICER AND NOT IN THE HANDS OF THE APPELLANT. THUS, THE AD DITION OF RS. 40,93,200/- SO MADE SHOULD BE DELETED. (EMPHASIS PROVIDED) 16.2. WE FIND THAT THE ARGUMENTS OF THE CIT DR THAT GENE RALISTIC NON-FACTUAL ARGUMENTS WERE ADVANCED BEFORE THE CIT(A) ON FATS I S A WRONG AND INCORRECT SUBMISSION AND WE FIND ON CONSIDERING THE SAME THAT IT CANNOT BE ACCEPTED. THE ARGUMENTS ARE FACT SPECIFIC AND ALSO ADDRESS TH E OVERALL CLAIM ON THE ISSUES. WE FIND FROM A READING OF THE FOLLOWING REMAND REPO RT OF THE AO THAT THE CLAIMS ARE DISPUTED ON THE GROUND THAT REGISTERED DEEDS WE RE NOT FILED. THE FACT THAT THE LAND CONSOLIDATION PROCESS SET IN MOTION BY THE ACTIVITIES OF THE ASSESSEE BASED ON THE DOCUMENTS SEIZED HAVE BEEN ADDRESSED A LONGWITH THE COPIES OF THE BANK ACCOUNTS OF THE VARIOUS PARTIES PROVING THE AS SESSEES CLAIM, WE FIND THIS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 38 FINDING BASED ON THE EVIDENCES ON RECORD HAS NOT BE EN ASSAILED. THE REMAND REPORT EXTRACTED IN PARA 9.3 IS REPRODUCED HEREUNDE R:- 9.3. AOS REMAND REPORT: THERE IS NO VALID EVIDENCE THAT ASSESSEE AND SHRI SACHIN UPADHAYA WERE JOINTLY AS ASSOCIATES FOR PROCURING LAND IN DE HRADUN FOR M/S. PRATEEK RESORTS. THERE IS NO SUCH AGREEMENT OR JOIN T VENTURE IN THIS REGARD BETWEEN THE ASSESSEE AND SHRI SACHIN UPADHAY A. BEHAVIORS OF PRIVATE PARTIES CANNOT OVER RULE THE PROVISION OF L AW. SO FAR THE RECEIPT AND PAYMENT OF ADVANCES FOR PURCHASE OR SALE OF LAN D ARE CONCERNED IT MUST BE IN FURTHERANCE OF REGISTERED AGREEMENT OTHE RWISE THE SAME MAY ARE NOT ACCEPTABLE AS VALID EVIDENCE PARTICULARLY W HEN THE TRANSACTIONS HAVE BEEN MADE IN CASH. THEREFORE, EXPLANATION AND EVIDENCE FURNISHED BY THE ASSESSEE REGARDING THE ADDITION OF RS. 40,93 ,200/- MAY BE REJECTED AND ADDITION MADE BY THE ASSESSING OFFICER SHOULD BE SUSTAINED. (EMPHASIS SUPPLIED) 16.3. THE ASSESSEES REJOINDER THERETO IN PARA 9.4 AGAIN AT PAGE 42 OF THE IMPUGNED ORDER IS ALSO EXTRACTED FOR THE SAKE OF CO MPLETENESS: 9.4. ARS REJOINDER: IT IS TRITE THAT THE CONDUCT OR BEHAVIOUR OF THE P ARTIES INVOLVED SHOULD NOT BE IGNORED IN ARRIVING AT JUSTICE. THE ASSESSEE HAS NEVER CLAIMED THAT HE AND MR. SACHIN UPADHAYA WERE WORKING IN A JOINT VEN TURE FOR PROCURING LAND FOR AND ON BEHALF OF M/S PRATEEK RESORTS & BUI LDERS (P) LTD., A GROUP COMPANY OF ATS. THEY WERE ADMITTEDLY WORKING IN THEIR INDIVIDUAL CAPACITY FOR THIS PURPOSE, BUT WORKING WITH A COMMO N GOAL OF EARNING REMUNERATION FOR THEIR SAID SERVICES TO THE SAID AT S GROUP COMPANY. ACCORDINGLY, THEY WERE ACCOUNTABLE TO THAT COMPANY FOR THE MONEYS GIVEN TO THEM FOR PROCUREMENT OF LAND THROUGH THEM, WHICH WAS RECORDED TOGETHER ON THE IMPUGNED SHEET FOUND FROM THE SEIZE D LAPTOP. FURTHER, IT IS NOT UNDERSTOOD HOW THE QUESTION OF O N-MONEY PREMIUM PAID IN CASH TO THE LAND OWNERS TOWARDS PURCHASE OF LAND IN AND AROUND DEHRADUN FOR AND ON BEHALF OF M/S PRATEEK RESORTS & BUILDERS (P) LTD. BY THE ASSESSEE AND HIS ASSOCIATE MR. SACHIN UPADHA YA CAN BE EVIDENCED FROM THE REGISTERED SALE DEEDS. ADMITTEDL Y THE SAID SUMS WERE RECEIVED IN CASH FROM THE ATS GROUP FOR ADVANC ING THE SAME AS ON- MONEY PREMIUM TO THE LAND OWNER AGAINST PURCHASE OF THEIR LAND. WHATEVER SUMS WERE PAID IN CASH AND BY CHEQUES BY M R. SACHIN UPADHAYA WERE WRITTEN IN CODED LETTER S AND SIMIL ARLY SUMS PAID BY THE APPELLANT, MR. MUKESH JOSHI WERE CODED AS M I N THE SEIZED SHEET. EACH CHEQUE PAYMENT RECORDED IN THAT SHEET AGAINST M SQUARELY MATCHES FROM THE BANK ACCOUNTS OF THE APPELLANT AND THOSE RECORDED AGAINST S TALLIES FROM THE BANK ACCOUNTS OF MR. S ACHIN UPADHAYA. THUS, EVEN THE IMPUGNED CASH PAYMENTS MUST NECESSAR ILY HAVE BEEN MADE BY THE SAID PERSONS IN THE SAME MANNER. THUS, THE ADDITION SO MADE SHOULD BE DELETED. (EMPHASIS SUPPLIED) I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 39 16.4. IN THE FACE OF THE FACTS REMAINING UNREBUTTED ON R ECORD AND CONSIDERING THE EVIDENCE RELIED UPON BY THE ASSESSEE, WHICH ADM ITTEDLY HAS BEEN CONFRONTED TO THE AO, AND ALSO HAS BEEN INDEPENDENTLY EXAMIN ED BY THE CIT(A), WE FIND IN THESE PECULIAR FACTS AND CIRCUMSTANCES THE FOLLOWIN G FINDING ARRIVED AT IN THE IMPUGNED ORDER DESERVES TO BE UPHELD. AS OBSERVED IN ORDER TO JUSTIFY A REMAND THE REVENUE MUST MAKE OUT A CASE IN SUPPORT OF THE CLAIM. IN THE ABSENCE OF ANY ARGUMENT ASSAILING THE FACTS OR THE CORRECTNESS OF THE CONCLUSION OR LEADING ANY ARGUMENT ON INSUFFICIENCY OF THE EVIDENCES OR F URNISHING ANY FRESH FACT ON RECORD OR CANVASSING THAT A CRUCIAL EVIDENCE, HAS B EEN IGNORED. THE REQUEST CASUALLY MADE CANNOT BE ACCEPTED. AS WE HAVE OBSER VED THE EVIDENCES HAVE BEEN AVAILABLE IN THE PAPER BOOK AND NOTHING BEFORE US ALSO HAS BEEN REFERRED TO THEREIN BY THE REVENUE TO DEMOLISH THE CONCLUSIO N DRAWN BY THE CIT(A). BEING SATISFIED BY THE REASONING AND CONCLUSION ARR IVED AT THE FOLLOWING FINDING THE SAME IS UPHELD BY US:- 9.5. DECISION AND REASONS THEREFOR: I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. IT IS SEEN FROM THE SHEET, A PRINT-OUT O F THE DATA RETRIEVED FROM THE LAPTOP OF THE APPELLANT, THAT IT CONTAINS THE F INANCIAL TRANSACTIONS SPREAD OVER IN TWO FINANCIAL YEARS, I.E., FYS 2005- 06 & 2006-07 AND ALSO STATES THE ACCOUNT HOLDERS NAME IN THE LAST COLUMN AS S AND M AGAINST EACH ROW. IT WAS EXPLAINED THAT M STOOD F OR MUKESH JOSHI, THE APPELLANT, S STOOD FOR SACHIN UPADHAYA, HIS ASSOC IATE; AND THAT THE RESPECTIVE PAYMENTS BY CHEQUE OR IN CASH WERE MADE BY THE SAID ACCOUNT HOLDERS. THE AO HAS STATED IN THE ASSESSMENT ORDER THAT THE CHEQUE PAYMENTS HAD BEEN VERIFIED AS MADE FROM THE APPELLANTS BANK ACCOUNT AND ACCORDINGLY HE LOGICALLY CONCLUDED THAT EVEN THE CA SH PAYMENTS RECORDED ON THAT SEIZED SHEET MUST HAVE BEEN MADE BY THE ASS ESSEE. IN MY VIEW IT IS LAWFUL TO PRESUME, AS WAS EFFECTIVELY SO DONE BY THE AO, THAT WHOEVER MADE THE CHEQUE PAYMENTS MUST HAVE MADE THE PAYMENTS IN CASH ALSO, UNLESS IT IS REBUTTED OTHERWISE WITH SOM E DIRECT EVIDENCE. HOWEVER, ON VERIFICATION OF ALL BANK ACCOUNTS OF TH E APPELLANT FOR THE RELEVANT PREVIOUS YEAR, NO PAYMENT WAS FOUND TO HAV E BEEN MADE FROM THE SAME. BUT THE PHOTOCOPY OF THE BANK STATEMENT O F SB A/C NO. 016401521868 WITH ICICI BANK, DEHRADUN OF MR. SACHI N UPADHAYA, PROVIDED BY THE APPELLANT, REVEALED THAT THE IMPUGN ED CHEQUE PAYMENTS MADE TO THE SAID PARTIES, EXCEPT ELIZABETH, WERE DU LY RECORDED THEREIN. IN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 40 RESPECT OF THE PAYMENT MADE TO ELIZABETH ON 09-03-0 6, IT WAS EXPLAINED BY THE APPELLANT THAT THE SAME MAY HAVE BEEN MADE B Y MR. SACHIN UPADHAYA FROM SOME OTHER BANK ACCOUNT OF HIS WHICH WAS NOT READILY AVAILABLE WITH THE APPELLANT, BUT IT CAN CERTAINLY BE VERIFIED THAT THE SAID PAYMENT HAD NOT BEEN MADE BY THE APPELLANT FROM ANY OF HIS BANK ACCOUNTS IN THE FY 2005-06 AS ALLEGED BY THE AO.' M OREOVER, IT WAS ALSO PLEADED THAT MR. SACHIN UPADHAYA WAS ALSO COVERED I N THE SAME SEARCH AND THE SAID FACTS COULD WELL HAVE BEEN ASCERTAINED FROM HIS BANK ACCOUNTS BY THE AO, WHO HAPPENED TO BE THE SAME OFF ICER. ON VERIFICATION OF THE ABOVE FACTS IT IS SEEN THAT UNDISPUTEDLY THREE OUT OF THE FOUR IMPUGNED CHEQUES RECORDED IN THE DATA SHEE T IN THE ROW AGAINST ACCOUNT HOLDERS NAME OF S HAD INDEED BEEN PAID B Y MR. SACHIN UPADHAYA AND NONE OF THE IMPUGNED CHEQUES PAYMENTS HAD BEEN MADE FROM THE BANK ACCOUNTS OF THE APPELLANT. THUS, IT C AN BE SAFELY CONCLUDED THAT EVEN THE CASH PAYMENTS RECORDED AGAINST HIS NA ME WERE MADE BY MR. SACHIN UPADHAYA ONLY AND NOT THE APPELLANT. FURTHER, IT WAS SEEN FROM THE IMPUGNED FINANCIAL DA TA SHEET THAT ALL PAYMENTS RECORDED AGAINST THE ENTRIES MARKED M UN DER THE COLUMN ACCOUNT HOLDERS NAME PERTAINED TO THE SUCCEEDING F Y 2006-07 AND NOT THE PREVIOUS YEAR UNDER CONSIDERATION AT ALL. THUS, THERE IS NO MERIT IN THE SAID AVERMENT OF THE ASSESSING AUTHORITY WHO SIMPLY PRESUMED THE ENTIRE CASH PAYMENT AS MADE BY THE APPELLANT WITHOUT EVEN CONFRONTING MR. SACHIN UPADHAYA IN THI S REGARD OR EVEN WITHOUT BRINGING ON RECORD THE OUTCOME OF SUCH CONF RONTATION, IF ANY MADE. FURTHERMORE, THE QUESTION OF ON-MONEY PAID IN CASH INVOLVED HERE CANNOT BE EVIDENCED FROM THE REGISTERED SALE DEEDS IN ANY MANNER AS ASSERTED BY THE AO IN HIS REMAND REPORT. IN MY OPIN ION THE CORROBORATIVE EVIDENCE IN RESPECT OF M (STANDING FOR MUKESH) AN D S (STANDING FOR SACHIN) DEMONSTRATED BY THE APPELLANT THROUGH THEIR RESPECTIVE BANK STATEMENTS VIS-A-VIS EACH PAYMENT FOUND RECORDED FO R THE FYS 205-06 AND 2006-07 IN THE IMPUGNED SEIZED SHEET LEAVES NO FURTHER DOUBT ABOUT THE CORRECTNESS OF THE SAID EXPLANATION. IT IS TRIT E THAT THE CONDUCT OR BEHAVIOUR OF THE PARTIES INVOLVED SHOULD NOT BE IGN ORED IN REACHING JUSTICE. IN THIS CASE, THERE ARE AMPLE EVIDENCES BY WAY OF SEIZED RECORD AND THE BANK STATEMENTS TO DEMONSTRATE THAT THE SAI D PERSONS, NAMELY, MR. SACHIN UPADHAYA AND THE APPELLANT WERE UNDOUBTE DLY OPERATING WITH THE COMMON INTEREST BUT INDEPENDENTLY FOR PROC URING LANDS IN AND AROUND DEHRADUN FOR M/S PRATEEK RESORTS & BUILDERS (P) LTD., A GROUP COMPANY OF ATS. THEREFORE, IT WAS BUT LOGICAL FOR T HEM TO MAKE A COMMON SHEET TO ACCOUNT FOR THE MONEYS INCURRED FOR LAND' ACQUISITION ON BEHALF OF M/S PRATEEK TO THAT COMPANY. ACCORDINGLY, IT IS HELD THAT NONE OF THE IMPUGNED C ASH PAYMENTS HAD BEEN MADE BY THE APPELLANT AND THE QUESTION OF EXPL AINING ITS SOURCE BY THE APPELLANT COULD NOT ARISE AND THE ADDITION OF R S. 40,93,200/- SO MADE IS DELETED. HOWEVER, AS IT HAS BEEN REPORTED BY THE AO THAT THE BOOKS OF ACCOUNT OF THE ATS GROUP COMPANIES INCLUDING THAT OF M/S PRATE EK RESORTS & BUILDERS (P) LTD. HAVE BEEN REFERRED TO THE SPECIAL AUDIT U/S 142(2A) OF THE ACT FOR THE ENTIRE SEARCH PERIOD AND THE ASSESS MENTS U/S 153 A OF THAT GROUP ARE YET TO BE COMPLETED BY HIM. THEREFOR E, IN ORDER TO PROTECT THE INTEREST OF REVENUE THE AO IS DIRECTED TO EXAMI NE THE SOURCE OF THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 41 SAID SUM OF RS. 40,93,200/- PAID IN CASH BY THAT GR OUP FOR THE PURPOSE OF PURCHASING LAND IN DEHRADUN DURING THE ASSESSMEN T PROCEEDINGS OF THE CONCERNED ATS GROUP COMPANIES AND IF NOT FOUND SATISFACTORY, THE SAID SUM SHOULD BE ADDED AS UNDISCLOSED INCOME OF T HE RELEVANT ATS GROUP COMPANY. 17. GROUND NO.5 BEING A GENERAL GROUND NEEDS NO SEPARA TE ADJUDICATION AND STANDS ADDRESSED IN THE FINDINGS ARRIVED AT IN GROU ND NO.1 TO 4. GROUND NO.6 BEING A RESIDUARY GROUND WAS NOT PRESSED. 18. IN THE RESULT, ITA NO.3150/DEL/2011 IS DISMISSED. 19. ITA NO.3151/DEL/2011 PERTAINS TO 2007-08 AY THE RELEVANT FACTS OF THE CASE ARISE OUT OF THE SAME SEARCH. IN RESPONSE TO T HE NOTICE ISSUED UNDER SECTION 153A ETC. THE ASSESSEE DECLARED AN INCOME O F RS.1,38,34,940/-. IT WAS NOTICED BY THE AO THAT IN THE YEAR UNDER CONSIDERAT ION THE INCOME DECLARING WAS FROM CAPITAL GAIN ON SALE OF SHARES OF M/S PRATEEK RESORTS & BUILDERS PRIVATE LIMITED AND INCOME FROM OTHER SOURCES CONSISTING OF INTEREST IN FDR'S IN SAVING ACCOUNTS ETC. 20. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS BASED ON THE DEPOSITS OF RS. 32,49,000/- ON SIX DIFFERENT OCCASIONS IN S.B.ACCOU NT NO. 12272 IN AXIS BANK, THE ASSESSEE WAS REQUIRED TO EXPLAIN THEM. FINDING THE EXPLANATION AS NOT SATISFACTORY ADDITION OF THE SAID AMOUNT WAS MADE B Y THE AO. 20.1. CONSIDERING THE CREDIT ENTRY OF RS.1 LAC ON 21.04. 2006 WITH THE NOMENCLATURE OF ADVANCE TAKEN FOR LAND TBV IN S .B. A/C NO.DD016401521848 IN ICICI BANK; AND TWO CREDIT ENT RIES OF RS.25,000/- AND RS.35,000/- AND ALSO LOANS CLAIMED TO HAVE BEEN TAK EN FROM SH. SACHIN UPADHAYA ON DIFFERENT DATES TOTALING RS.2.20 CRORES AND NOTING THAT AFTER PAYMENT OF RS.17 LACS TO HIM ON VARIOUS DATES THE UNSECURED LOANS OUTSTANDING NET BALANCE OF RS.2.03 CRORES EXISTED O N 31.03.2007 IN THE NAME OF SH. SACHIN UPADHAYA. THE ASSESSEE ACCORDINGLY WAS REQUIRED TO BE EXPLAIN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 42 AND ALSO FILE CONFIRMATIONS FROM THE PARTIES. IN T HE ABSENCE OF ANY CONFIRMATION FROM SMT. KAUSHLYA SEHGAL AND SH. SACHIN UPADHAYA, THE AMOUNT OF RS.2,21,600/- WAS ADDED IN THE HANDS OF THE ASSESSE E. 20.2. THE AO ALSO REQUIRED THE ASSESSEE TO EXPLAIN THE INVESTMENT OF RS.3,32,000/- CONSISTING OF RS.1 LAC INVESTED ON 10 .10.2006, ANOTHER RS.1 LAC ON 17.02.2007; RS.32,000/- ON 25.10.2006 AND RS.1 L AC ON 10.10.2006 IN THE SHARES OF GMS BUILDERS, SMP DEVELOPERS, SM HOSPITAL ITY AND TG BUILDTECH. REJECTING THE EXPLANATION OFFERED ADDITION OF THE S AID AMOUNT WAS MADE. 20.3. ALSO CONSIDERING THE FOLLOWING DETAILS OF THE LAND TRANS ACTIONS AS PER DETAILS FROM THE SEIZED LAPTOPS, THE FOLLOWING EVID ENCE WAS CONFRONTED TO THE ASSESSEE:- S.NO. DATE CHEQUE AMOUNT CASH AMOUNT NAME OF PERSON 1. 17/05/06 4,50,000 7,48,000 ISHAK LAL 2. 17/05/06 5,25,000 6,35,780 RADHYE SHYAM/KAPIL 3. 17/05/06 5,00,000 3,75,400 MEENAKSHI BHARADWAJ 4. 5/6/2006 15,00,000 40,61,900 DEVENDAR KUAMR 5. 11/8/2006 19,22,000 98,03,000 SUSHILA DEVI, NARESH, YADAVCHAND, DEVENDAR & OTHERS 6. 18/08/06 6,20,000 15,88,000 ANWAR ALI 7. 18/07/06 10,00,000 18,00,000 ANAND SWAROOP 8. 19/07/06 10,00,000 30,00,000 SANJAY MOHAN UNIYAL TOTAL 2,20,12,080 20.3.1. THE EXPLANATION OF THE ASSESSEE WAS REJECTED AND A N ADDITION OF RS. 2,20,12,080/- WAS ALSO MADE. 21. THESE ADDITIONS WERE CHALLENGED IN APPEAL BEFORE T HE CIT(A) AND AS IN THE EARLIER APPEAL A PETITION FOR ADMISSION OF FRESH EV IDENCE WAS MOVED AND AFTER OBTAINING A REMAND REPORT THE EVIDENCE WAS ADMITTED WAS CONSIDERED LEADING TO THE PASSING OF THE IMPUGNED ORDER. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL ON THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF CIT(A) IS ERRONEOUS IN LAW AN D ON FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 43 IN CONTRAVENTION TO RULE 46-A OF THE I.T.RULES WITH OUT GIVING PROPER OPPORTUNITY TO THE A.O. TO REBUT THE APPELLANTS CL AIM. 2. THAT THE CIT(A ERRED IN LAW IN DELETING THE ADDI TION OF RS.32,49,000/- AND RS.1,60,000/- ON ACCOUNT OF UNEX PLAINED CASH DEPOSITED IN BANK WITHOUT APPROPRIATING THE FA CT AND WITHOUT ANY BASIS IGNORING THE FACTS BROUGHT ON REC ORDS BY THE A.O. AND BY SUBSTITUTING HIS OWN SATISFACTION IN PL ACE OF AOS SATISFACTION. 3. THAT THE CIT(A) ERRED IN DELETING THE ADDITION O F RS.2,20,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT WITHOUT APPRE CIATING THE FACT AND WITHOUT ANY BASIS IGNORING THE FACTS BROUG HT ON RECORDS BY THE A.O AS THE ASSESSEE WAS NOT ABLE TO DISCHARG E ITS ONUS AS PROVIDED IN SECTION 68 OF THE I.T.ACT TO THE SATISF ACTION OF THE A.O. 4. THAT THE CIT(A) ERRED IN DELETING THE ADDITION O F RS.3,32,000/- ON ACCOUNT OF PURCHASE OF SHARES ON WRONG APPRECIATING OF FACTS AND LAW WITHOUT APPRECIATING THE FACT THAT THE INVESTME NT IN SHARES WERE FROM OUTSIDE THE BOOKS OF ACCOUNT AND ONUS AS PROVIDED IN SECTION 69 OF THE I.T.ACT WAS NOT DISCHARGED BY THE ASSESSEE TO THE SATISFACTION OF THE A.O AS REQUIRED UNDER THE L AW. 5. THAT THE CIT(A) ERRED IN DELETING THE ADDITION O F RS.2,20,12,080/- ON ACCOUNT OF CASH PAYMENT FOR LAND TRANSACTIONS WI THOUT APPRECIATING THE FACT THIS ADDITION WAS MADE ON THE BASIS OF SEIZED DOCUMENT AT ANNEXURE A-1 AND THE ASSESSEE WA S NOT ABLE TO SUBSTANTIATE THE GENUINENESS OF THESE CASH PAYME NTS. THE ANNEXURE A-1 DURING THE COURSE OF SEARCH COULD NOT HAVE BEEN IGNORED AS IT CONSTITUTED AN EVIDENCE AS PROVIDED U /S 132 OF THE I.T.ACT. 6. THAT THE ORDER OF THE CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS NEEDS TO BE VACATED AND THE ORDER OF THE A.O. BE RE STORED. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 22. IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BE NCH THAT THE FACTS & CIRCUMSTANCES QUA GROUND NO.1 CONTINUE TO REMAIN TH E SAME AS IN ITA NO.3150/DEL/2011. ACCORDINGLY IT HAS BEEN ARGUED T HAT NOTHING FURTHER IS REQUIRED TO BE ADDRESSED. THE SUBMISSIONS OF THE P ARTIES ARE FOUND TO BE CORRECT. FOLLOWING THE VIEW TAKEN IN ITA NO.3150/D EL/2011 AND TAKING INTO CONSIDERATION THE IDENTICAL FINDING ARRIVED AT BY T HE CIT(A) IN PARA 4 OF THE IMPUGNED ORDER IN THE PRESENT PROCEEDINGS THE DEPAR TMENTS GROUND NO.1 IS DISMISSED. 23. ADDRESSING GROUND NO.-2 IT WAS SUBMITTED BY THE LD .CIT DR THAT THE CASH FLOW STATEMENT WAS NEVER FILED BY THE ASSESSEE BEFORE THE AO. INVITING I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 44 ATTENTION TO THE IMPUGNED ORDER IT WAS SUBMITTED TH AT NO OUT-FLOW OF CASH HAS BEEN FILED BY THE ASSESSEE AND SINCE THE SOURCE IS FROM OUTSIDE BOOKS OF ACCOUNTS, THE ARGUMENTS ADVANCED BEFORE THE CIT(A) THAT THESE WERE ADVANCES FROM THE BUILDERS IT WAS SUBMITTED SHOULD NOT HAVE BEEN ACCEPTED. ACCORDINGLY HEAVY RELIANCE WAS PLACED UPON THE ASSESSMENT ORDER AND A PRAYER WAS MADE THAT THE MATTER BE REMANDED. THESE ARGUMENTS IT WA S SUBMITTED WOULD ALSO ADDRESS THE ADDITION OF RS.1,60,000/- AND HAVE BEEN ADDRESSED AT PAGE 2 AND 3 OF THE ASSESSMENT ORDER. HEREIN ALSO IT WAS SUBMIT TED CONFIRMED COPIES FROM THE PARTIES WERE NEVER FILED BY THE ASSESSEE DESPIT E AN OPPORTUNITY. 24. THE LD. AR IN REPLY SUBMITTED THAT THE FACT THAT T HE ASSESSEE WAS A FACILITATOR FOR CONSOLIDATING LAND PURCHASES AND WA S ACTING AS A FRONTMAN TO CONSOLIDATE THE PURCHASE OF LAND DURING THIS PERIOD IS A FACT ACCEPTED BY THE AO HIMSELF IN 2006-07 AY. THUS IT WAS SUBMITTED THAT T HIS IS AN ADMITTED FACT. IN THE YEAR UNDER THE CONSIDERATION, IT WAS SUBMITTED THE AO HAS ALSO TAKEN NOTE OF THE FACT THAT THE ASSESSEE HAD DECLARED INCOME F ROM CAPITAL GAIN. THE RELEVANT PORTION IS EXTRACTED HEREUNDER FOR READY-R EFERENCE:- DURING THE YEAR, ASSESSEE HAS DECALRED INCOME FROM CAPITAL GAIN ON SALE OF SHARES OF M/S PRATEEK RESORTS & BUILDERS P. LTD. AND INCOME FROM OTHER SOURCES CONSISTING OF INTEREST ON FDRS A ND SAVING ACCOUNTS. 24.1. INVITING ATTENTION TO THE DETAILED WRITTEN SUBMIS SIONS ADVANCED BEFORE THE CIT(A) WHICH WERE CONFRONTED TO THE AO AND ARE RECO RDED AT PAGES 6 -12 OF THE IMPUGNED ORDER IT WAS SUBMITTED THAT THE CASH FLOW FOR THE YEAR UNDER CONSIDERATION WAS FILED BEFORE THE AO AND IT CONSIS TS OF SUMMARY OF ALL CASH AND BANK ACCOUNT TRANSACTIONS TOGETHER AND WAS PLACED B EFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. ALL RECEIPTS AND PAYMENTS FOR THE YEAR UNDER CONSIDERATION IT WAS SUBMITTED WERE REFLECTED THERE IN. IT WAS SUBMITTED WHENEVER CASH OR CHEQUE WAS RECEIVED OR ISSUED, IT WAS REFLECTED IN THE FLOW OF I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 45 THE SAID STATEMENT EXPLAINING ITS SOURCE. POINTING TO THE SAME IT WAS SUBMITTED WHENEVER A PAYMENT WAS MADE IT WAS REFLECTED IN THE OUT FLOW. HOWEVER, SINCE DUE TO THE INFLOW OR OUT FLOW OF FUNDS FROM THE BAN K DEPOSITS TO THE CASH BOOK AND A WITHDRAWAL OR DEPOSIT FROM THE CASH BOOK TO T HE BANK DID NOT ULTIMATELY IMPACT THE OVERALL AVAILABILITY OF FUNDS THERE WAS NO IMPACT IN THE SUMMARY FILED. IT WAS ELABORATED THAT AS THE CASH BALANCE STOOD REDUCED BY THE CORRESPONDING INCREASE REFLECTED IN THE BANK BALANC E AND VICE VERSA THE OVERALL POSITION REMAINED THE SAME. THUS THE ASSERTIONS OF THE LD. CIT DR THAT NO CASH FLOW STATEMENT WAS FILED BEFORE THE AO, IT WAS SUBM ITTED IS INCORRECT. THIS EXPLANATION IT WAS SUBMITTED HAS BEEN GIVEN BEFORE THE CIT(A) CONFRONTED TO THE AO AND FOMS PART OF THE FINDING AND WITHOUT POINTIN G OUT ANY INCORRECTNESS IN THE SAME MERELY RELYING UPON ASSESSMENT ORDER IT WA S SUBMITTED CANNOT LEAD TO THE CONCLUSION THAT A REMAND IS NECESSITATED. IT WA S SUBMITTED IT IS THE VERY SAME CASH FLOW STATEMENT FILED BEFORE THE AO WHICH WAS FURTHER AMPLIFIED RELYING UPON THE SEIZED EVIDENCE CONSIDERED BY THE AO. THE FRESH EVIDENCE CONFRONTED TO THE AO REFERRING TO THE IMPUGNED ORDE R IT WAS SUBMITTED WAS AS UNDER:- COPIES OF THE FOLLOWING WORKING PAPERS PREPARED FO R MAKING THE CASH FLOW STATEMENT :- A) A COPY OF THE CASH & BANK FLOW STATEMENT (EXP ANDED) FOR THE YEAR ENDED ON 31/3/07 REFLECTING THE CONTRA ENTRIES IN RESPECT OF CASH DEPOSITS AND THEREIN. B) COPIES OF THE SUMMARIES FOR THE YEAR IN RES PECT OF ALL CASH AND BANK ACCOUNT(S) TRANSACTIONS. C) COPIES OF THE CASH (GENERAL), CASH (LAND IMPREST) AND BANK ACCOUNTS FOR THE YEAR SHOWING DATE WISE TRANSAC TIONS. D) PHOTOCOPIES OF THE PASSBOOKS I STATEMENTS OF ALL BANK ACCOUNTS OPERATED BY THE APPELLANT DURING THE YEAR ARE ENCLO SED. 24.2. IT WAS SUBMITTED THAT THE ASSESSEE ADDRESSED THE E NTIRE HISTORY OF THE MANNER IN WHICH HE HAS BEEN FUNCTIONING, SETTING OU T THE ROLE OF FACILITATOR FOR CONSOLIDATING LAND HOLDINGS PERFORMED BY HIM FOR AT S GROUP PRIOR TO THAT RPS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 46 GROUP OF FARIDABAD, ETC. MR. SACHIN UPADHAYA WAS ALSO SIMILARLY ACTING AS A FACILITATOR IN HIS OWN CAPACITY. THE UNDERSTANDING REACHED WITH M/S PRATEEK RESORTS & BUILDERS PVT. LTD. ETC. WHERE THE INITIA L LAND ACQUISITION FOR RPS GROUP OF 155 BIGHAS WAS CONSIDERED INSUFFICIENT BY ATS A BIGGER BUILDER. IT WAS SUBMITTED THAT THE ASSESSEE HAS EXPLAINED HOW R PS NOMINATED ITS OWN PERSONS AS DIRECTORS ON THE BOARD TO WATCH OUT FOR ITS INTEREST OF THE SAID COMPANY AND SUBSEQUENTLY REMOVED THE EXISTING DIREC TORS FROM THE BOARD SO AS TO MAINTAIN 100% CONTROL OVER THE BOARD. THE ASSE SSEE AND MR. SACHIN UPADHAYA IT WAS SUBMITTED MERELY ACTED AS FACILIT ATORS/MEDIATORS. DESPITE THE FACTS THAT THE SHARES CONTINUED TO REMAIN IN TH EIR NAMES. THE EXPLANATION THAT HOW, THE OWNERSHIP, MANAGEMENT AND CONTROL OF RPS GROUP WAS TAKEN OVER BY PRATEEK GROUP BY PURCHASING ITS SHARES HELD BY T HE ASSESSEE AND MR. SACHIN UPADHAYA AND IT WAS THIS EVENT WHICH LEAD THE ASSES SEE TO COME IN CONTACT WITH THE ATS GROUP. REFERRING TO PAGE 8 OF THE IMPUGNED ORDER IT WAS SUBMITTED THAT ON BEHALF OF THE ASSESSEE IT WAS SUBMITTED THAT THE ATS GROUP OF BUILDERS AND COLONIZERS BEING A LARGE GROUP WANTED A BIGGER CHUN K OF LAND HAVING AN AREA OF AROUND 250 BIGHAS FOR ACHIEVING THE FINANCIAL VIABI LITY OF THEIR HOUSING PROJECT IN DEHRADUN. THE SERVICES OF THE ASSESSEE AND MR. SAC HIN UPADHAYA ACCORDINGLY WERE REQUISITIONED BY ATS IN ORDER TO FACILITATE LA ND CONSOLIDATION. TO ENSURE THE COMPLIANCE AND CONTROL OF THE ASSESSEE AND MR.S ACHIN UPADHAYA THAT THEY SHOULD NOT BACK OUT FROM THE COMMITMENT, ATS MADE T HEM THE DIRECTORS OF PRATEEK AND ALSO NOMINATED TWO MORE DIRECTORS TO IT S BOARD AND REMOVED ALL THE OTHER EXISTING DIRECTORS OF RPS IN THE PROCESS OF A CQUISITION OF THAT COMPANY. AS A RESULT OF THIS IT WAS SUBMITTED THAT THE ASSESSEE HAD STATED BEFORE THE CIT(A) THAT EFFECTIVE CONTROL FOR ALL PRACTICAL PRACTICES IN REGARD TO THE MANAGEMENT OF THE COMPANY WAS WITH THE TWO DIRECTORS OF THE ATS A ND THE ASSESSEE AND HIS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 47 ASSOCIATES MR. SACHIN UPADHAYA WERE DORMANT DIRECTO RS ON THE BOARD AND MERELY LENT THEIR NAMES. IT WAS SUBMITTED THAT THE Y WERE MADE TO SELL THEIR SHARES OF PRATEEK GROUP TO ATS IN A PHASED MANNER S PREAD OVER A PERIOD OF TIME, ALTHOUGH THE TOTAL PRICE OF ALL THOSE SHARES WAS PRE-FIXED IN FEBRUARY 2006 ITSELF BASED ON THE VALUATION OF LAND PREVAILING AT THAT POINT OF TIME. THE FOLLOWING CHART PLACED AT PAGES 9 OF THE IMPUGNED O RDER IT WAS SUBMITTED REFLECTS THE POSITION:- NUMBER OF SHARES 24.3. DURING THIS PERIOD IT WAS SUBMITTED THE ASSES SEE AND MR. SACHIN UPDHAYA WERE ADVANCED AMOUNTS BY CHEQUES IN THEIR INDIVIDUA L NAMES AS WELL AS IN CASH BY THE ATS GROUP OF COMPANIES TO BUY THE ADJACENT P IECES OF LAND TOTALING TO AROUND 100 BIGHAS WHICH WAS ULTIMATELY ACQUIRED FOR THE SAID COMPANY AND BY THIS TIME THE FINAL LOT OF SHARES ALSO WERE TRANSF ERRED BY ATS IN ITS FAVOUR AT THE PRE-AGREED PRICE. THE ASSESSEE AND MR. SACHIN UPAD HAYA IT WAS SUBMITTED WERE ALLOWED TO RESIGN FROM THE DIRECTORSHIP OF THE SAID COMPANY IN DECEMBER, 2008 AFTER THEY HAD FULLY RENDERED THEIR COMMITTED SERVI CES TO ATS. DATE-WISE DETAILS OF THESE RECEIPTS IT WAS SUBMITTED HAVE BEEN EXTRA CTED AT PAGES 9 TO 11 OF THE IMPUGNED ORDER. FOR READY-REFERENCE, WE REPRODUCE THE RELEVANT EXTRACT HEREUNDER:- UNDER THIS BACKGROUND, IT IS SUBMITTED THAT THE APP ELLANT AND HIS ASSOCIATE WERE JUST ACTING AS THE FACILITATORS I ME DIATORS IN THE SAID RPS- ATS COLONIZATION DEAL AND THEIR NAMES HAD BEEN USED BY THE SAID TWO GROUPS AS THE SHAREHOLDERS I DIRECTORS WITH A VIEW TO ARREST THE ARTIFICIAL RISE IN THE LAND PRICES UNDER PURCHASE BY THEM AS E XPLAINED ABOVE AND ALSO TO BIND THEM TO GET THE CONSOLIDATION OF THE A DDITIONAL ADJOINING DATE OF TRANSFER MUKESH JOSHI SACHIN UPADHAYA TOTAL (NUMBER & PERCENTAGE - ) 21/08/06 2,000 2,000 4,000 20/10/06 500 1,000 1,500 15% 14/11/07 1,000 1,000 2,000 20% 08/12/08 1.500 1.000 2.500 25% TOTAL: 5.000 5.000 10.000 100% I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 48 PIECES OF LAND FOR THEM. THE REQUISITE FINANCES WER E GIVEN BOTH BY CHEQUES AND IN CASH TO THEM FROM TIME TO TIME BY TH E SAID TWO BUILDER GROUPS, BUT BY A TS ALONE DURING THE RELEVANT PREVI OUS YEAR SINCE RPS HAD WITHDRAWN IN THE PRECEDING YEAR ITSELF. BESIDES THE ADVANCES RECEIVED FROM ATS GROUP IN THE IMMEDIATELY PRECEDING YEAR, DURING THE YEAR UNDER C ONSIDERATION, THE APPELLANT FURTHER RECEIVED A TOTAL SUM OF RS. 627.5 0 LACS FROM ATS GROUP COMPANIES AS IMPREST FOR THE PURPOSE OF BUYING FURT HER 100 BIGHAS OF LAND FOR THEM; BEING RS. 48 LACS IN CASH AND RS. 87 .50 LACS BY CHEQUES RECEIVED FROM M/S ATS INFRASTRUCTURE LTD. AND RS. 4 92 LACS BY CHEQUES RECEIVED FROM M/S PRATEEK RESORTS & BUILDERS PVT. L TD. DATE-WISE DETAILS OF THE SAME WITH EXPLANATIONS ARE GIVEN A UNDER: A. RECEIPTS FROM ATS INFRASTRUCTURE LTD, IN CASH DATE AMOUNT EXPLANATION 18/07/06 15,51,000 CASH REED FROM ATS FOR PAY ING ANAND SWAROOP 14/11/06 2,50,000 CASH-DIRECT DEPOSIT IN AX IS BANK #12272 BY ATS 17/11/06 5,00,000 CASH-DIRECT DEPOSIT IN AX IS BANK #12272 BY ATS 21/11/06 1,99,500 CASH-DIRECT DEPOSIT IN AX IS BANK #12272 BY ATS 01/12/06 7,99,500 CASH-DIRECT DEPOSIT IN AX IS BANK #12272 BY ATS 05/12/06 9,90,000 CASH-DIRECT DEPOSIT IN AXIS BANK #12272 BY ATS 12/12/06 5.10,000 CASH-DIRECT DEPOSIT IN AXIS BANK #12272 BY ATS 48.00.000 TOTAL RECEIPT TOWARDS LAND PURCHASE IMPREST B. RECEIPTS FROM ATS INFRASTRUCTURE LTD, BY CHEQUES DATE AMOUNT (RS) EXPLANATION 19/05/06 2,00,00,000 CHEQUE DEPOSITED I N ICICI BANK # 21848 21/08/06 (-) 1,10,00,000 ADJUSTED AGAINST SA LE OF PRATEEK'S SHARES 19/10/06 (-) 27,50,000 ADJUSTED AGAINST S ALE OF PRATEEK'S SHARES 26/10/06 25.00.000 CHEQUE DEPOSITED IN ICICI BANK #21848 87,50.000 NET RECEIPT TOWARDS LAND PURCHASE IMPREST C. RECEIPTS FROM PRATEEK RESORTS & BUILDERS PVT. LTD, BY CHEQUES DATE AMOUNT (RS) EXPLANATION 31/08/06 1,00,00,000 CHEQUE DEPOSITED IN 1CICI BA NK # 21848 23/10/06 15,00,000 CHEQUE DEPOSITED IN AXIS BANK # 12272 02/11/06 2,00,000 CHEQUE DEPOSITED IN HSBC BANK # 51006 17/11/06 2,00,00,000 CHEQUE DEPOSITED IN AXIS BAN K # 12272 02/12/06 1,00,00,000 CHEQUE DEPOSITED IN ICICI BA NK #21848 12/02/07 75.00,000 CHEQUE DEPOSITED IN AXIS BANK # 12272 4.92.00.000 TOTAL RECEIPT TOWARDS LAND PURCHASE IMPREST 24.4. RELYING UPON THE DETAILS BEFORE THE CIT(A) SUPPORT ED BY RELEVANT DOCUMENTS IN PAPER BOOK IN EACH OF THESE YEARS FILE D, IT WAS HIS SUBMISSION THAT IN THE FACE OF THE DETAILED SUBMISSIONS ON FACTS AV AILABLE ON RECORD THE REVENUE WITHOUT POINTING OUT ANY ERROR IN FACTS OR ASSAILIN G ITS CORRECTNESS IS ONLY TRYING TO RAKE UP AN ISSUE WHICH HAS ALREADY BEEN DECIDED. RELYING UPON CIT VS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 49 KAMLA BEN TAX APPEAL 70 OF 2014 ORDER DATED 17.02.2 014 OF THE HONBLE GUJARAT HIGH COURT, IT WAS HIS SUBMISSION THAT THER E IS NO BREACH OF RULE 46A WHEN THE INTEREST OF REVENUE WAS SAFEGUARDED BY CAL LING FOR A REMAND REPORT AND THE EVIDENCES HAVE BEEN CONFRONTED TO THE AO TO COMMENT UPON SUCH ADDITIONAL EVIDENCE. IN THE FACTS OF THE PRESENT C ASE IT WAS HIS SUBMISSION THAT THE GLARING FACT AVAILABLE FROM THE RECORD IS THAT MORE THAN ADEQUATE OPPORTUNITY HAVE BEEN GRANTED TO THE AO, THE REMAND REPORTS HAVE BEEN CONSIDERED AND IS REPRODUCED ON THE ISSUES IN EACH OF THE YEARS. COPIES OF THE REMAND REPORTS FOR EACH OF THE YEARS HAVE BEEN FILE D IN THE COURT BY THE ASSESSEE. THE DETAILED PAPER BOOK ADDRESSING THE IS SUES CONSIDERED BY THE CIT(A) WHICH WERE NOT ONLY CONFRONTED TO THE AO BUT HAVE ALSO BEEN VERIFIED INDEPENDENTLY BY THE CIT(A) AS THE AO FOR A LONG TI ME DILLY-DALLIED IN FORWARDING A REMAND REPORT. AS A RESULT OF WHICH INDEPENDENT INQUIRY WAS DONE BY THE CIT(A) HIMSELF CALLING FORTH THE DEPONENTS OF THE A FFIDAVITS FILED AND THE WITNESSES FOR AN EXAMINATION ON OATH AND VERIFYING THE CORRECTNESS OF THE DOCUMENTS FILED. THUS IF THE REVENUE WANTS TO NOW ARGUE ITS CASE FOR A REMAND AN EFFORT ATLEAST TO DEMOLISH THE EVIDENCE SHOULD B E DONE AND MERELY REPEATING WHAT THE AO HAS OBSERVED IT WAS SUBMITTED IS NOT SU FFICIENT. IT IS THE DUTY OF THE REVENUE IT WAS ARGUED TO ADDRESS WHERE THE COM MISSIONER HAS ERRED WHICH FACT HAS BEEN LEFT UNADDRESSED WHICH NOW NEEDS TO B E ADDRESSED. THIS EFFORT IT WAS ARGUED HAS TO BE DONE. IN THE ABSENCE OF THE S AME IT WAS SUBMITTED THE PRAYER MADE MAY BE REJECTED. IN SUPPORT OF THE IMP UGNED ORDER, APART FROM RELYING UPON THE COMPLETE SUBMISSION ON FACTS SPECI FIC EMPHASIS WAS PLACED ON THE FOLLOWING DETAILED SUBMISSIONS RECORDED AT PAG E 11 & 12 EXTRACTED IN THE IMPUGNED ORDER. FOR READY-REFERENCE THESE ARE REPR ODUCED HEREUNDER:- I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 50 WHEREAS THE ABOVE RECEIPT OF CHEQUES IS SQUARELY V ERIFIABLE FROM THE COPIES OF THE BANK STATEMENTS OF THE APPELLANT ALRE ADY FURNISHED VIDE PARA NO. 2.3 HEREIN ABOVE, IN RESPECT OF CASH RECEI PTS IT IS SUBMITTED THAT THE LANDS IN QUESTION WERE BEING PURCHASED BY ATS G ROUP IN THE NAME OF M/S PRATEEK RESORTS & BUILDERS PVT. LTD. THROUGH TH E APPELLANT, THEREFORE, THE ONLY PRESUMPTION CAN BE THAT ALL FUN DS WERE GIVEN BY THE ATS GROUP ONLY WHETHER BY CHEQUE OR IN CASH. THE AP PELLANT MERELY UTILIZED THE SAID FUNDS FOR ACQUIRING LANDS FOR .TH E GROUP AND MADE PAYMENTS FOR THAT PURPOSE WHETHER BY ISSUING CHEQUE S FROM HIS BANK ACCOUNTS OR IN CASH ACCORDING TO THE FUNDS AVAILABL E WITH HIM IN THE SAID BANK ACCOUNTS OR IN CASH. IT MUST BE APPRECIATED THAT WHEN THE SOURCE AND PUR POSE OF THE SAID CHEQUES RECEIVED FROM THE ATS GROUP HAS NOT BE EN DISPUTED BY THE ASSESSING AUTHORITY FOR WHICH NO OTHER EVIDENCE IS ON RECORD EXCEPT THAT THE SAME WERE RECORDED IN THE BANK STATEMENTS OF TH E APPELLANT, IT IS NOT UNDERSTOOD HOW ANY DOUBT CAN BE CAST ON THE RECEIPT OF FUNDS IN CASH FROM THE SAME SOURCE WHICH UNDISPUTEDLY WAS UTILIZE D FOR THE SAME PURPOSE OF PURCHASE OF LANDS FOR THAT GROUP. THUS, THE ENTIRE FUNDS REQUIRED FOR LAND PURCHASE WERE GIVEN BY ATS GROUP BY CHEQUES AS WELL AS IN CASH TO THE APPELLANT. FURTHER, MORE PARTICULARLY IN RESPECT OF THE IMPUGN ED CASH DEPOSITS AGGREGATING TO RS. 32,49,000/- MADE IN THE SB A/C # 12272 WITH AXIS BANK OF THE APPELLANT, IT IS SUBMITTED TH AT THE APPELLANT HAD PAID RS. 48 LACS IN CASH TO TWO SELLERS OF LAND, NA MELY, MR. ANAND SWAROOP AND MR. SANJAY MOHAN UNIYAL, ON BEHALF OF A TS IN JULY, 2006 FOR WHICH RS. 15.51 LACS WERE GIVEN BY ATS IN CASH ON 18/7/06 AT DEHRADUN AND THE BALANCE SUM OF RS. 32.49 LACS WAS SUBSEQUENTLY DEPOSITED IN CASH IN THE SAID SB A/C # 12272 OF THE APPELLANT WITH AXIS BANK, NOIDA DIRECTLY BY ATS. IT MUST BE APPRECIATED THAT THE PIECES OF LAND UNDER PURCHASE BY ATS THROUGH THE APPELLANT WE RE SITUATED IN DEHRADUN AND A TS WAS BASED IN NOIDA. THE BALANCE I MPUGNED SUM OF RS. 32.49 LACS WAS REQUIRED TO BE SENT IN CASH BY A TS FROM NOIDA TO THE APPELLANT IN DEHRADUN. IN ORDER TO AVOID THE RISK I NVOLVED IN PHYSICAL MOVEMENT OF CASH FROM NOIDA TO DEHRADUN, A TS GOT A NEW BANK ACCOUNT OF THE APPELLANT OPENED ON 23/09/06 WITH TH E AXIS BANK HAVING ITS BRANCH AT K-21,22, SECTOR-IS, NOIDA, SIN CE IT WAS IN THE IMMEDIATE VICINITY OF ATS'S OFFICE AT K-19, SECTOR- 18, NOIDA. IN THIS MANNER, ATS WAS ABLE TO AVOID THE RISK OF PHYSICALL Y MOVING THE CASH TO DEHRADUN BY DIRECTLY DEPOSITING THE SAME IN THE SAI D BANK ACCOUNT OF THE APPELLANT AS AND WHEN CASH WAS AVAILABLE WITH I T. THUS, EVEN THE CIRCUMSTANTIAL I CORROBORATIVE EVIDE NCE UNMISTAKABLY ESTABLISHES THAT THE IMPUGNED CASH AMO UNTS AGGREGATING TO RS. 32,49,0001- WERE INDEED DEPOSITED BY A TS DI RECTLY INTO THE SB ALE # 12272 OF THE APPELLANT WITH AXIS BANK, NOIDA. THEREFORE, IT IS BEYOND DOUBT THAT THE SOURCE OF RECEIPT I DEPOSIT O F THE SAID CASH IN AXIS BANK WAS ATS ONLY. ACCORDINGLY, THE ADDITION SO MAD E SHOULD BE DELETED.' 24.6. REFERRING TO THE FOLLOWING REMAND REPORT AVAILABLE ON RECORD AND ON THE ISSUE ADDRESSED IN PARA 6.3 IT WAS SUBMITTED THAT I T CANNOT BE SAID THAT THE EVIDENCES CAN BE SAID TO HAVE BEEN ASSAILED BY THE AO BY ANY STRETCH OF I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 51 IMAGINATION. THE AO IT WAS SUBMITTED HAS NOT DISPU TED THE CLAIM AND HAS MERELY INSTEAD DIVERTED THE ISSUE HOLDING THAT REGI STERED AGREEMENTS ONLY CAN BE CONSIDERED. THE PARA ADDRESSING THE REMAND REPO RT RELIED UPON BY THE LD. CIT DR AND STATED TO BE NON SPEAKING BY THE LD.AR I S REPRODUCED HEREUNDER:- 6.3. AO'S REMAND REPORT: 'THE ASSESSEE IS TRYING TO EXPLAIN THAT ABOVE RECE IPT OF CHEQUES ARE VERIFIABLE FROM THE COPIES OF THE BANK STATEMENTS O F THE ASSESSEE AND FIND THEM TALLYING. SO THE ENTRIES OF CASH DEPOSIT IN BANK ACCOUNT ARE ALSO EXPLAINED, IN RESPECT OF CASH DEPOSITS ASSESSE E HAS EXPLAINED THAT THE LAND IN QUESTION WERE BEING PURCHASED BY A TS G ROUP IN THE NAME OF MLS PRATEEK RESORTS AND BUILDERS (P) LTD. THROUGH H IM, THEREFORE, THE ONLY PRESUMPTION CAN THAT ALL FUNDS WERE GIVEN BY T HE ATS GROUP ONLY WHETHER BY CHEQUE OR IN CASH AND HE MERELY UTILIZED THE SAID FUNDS FOR ACQUIRING LANDS FOR THE GROUP AND MADE PAYMENTS FOR THE PURPOSE WHETHER BY ISSUING CHEQUES FROM HIS BANK ACCOUNTS O R IN CASH ACCORDING TO THE FUNDS AVAILABILITY WITH HIM IN THE SAID BANK ACCOUNT OR IN CASH. THE ARGUMENT OF THE ASSESSEE IS NOT ACCEPTABLE AND IT HAS NOT BEEN PROVED IN ANY ORDER OF CERTAINTY THAT IF THE CHEQUE S HAVE BEEN RECEIVED FROM A TS GROUP THEN CASH HAVE ALSO BEEN RECEIVED F ROM THE A TS. ANY TRANSACTION OF PROPERTY MADE IN THE NAME OF A PERSO N FOR WHICH PAYMENTS HAVE BEEN MADE BY ANOTHER PERSON IS PUNISH ABLE BY LAW. UNLESS THERE IS A REGISTERED AGREEMENT FOR TRANSACT ION OF LAND PAYMENTS FOR ADVANCE RECEIVED OR PAID IN RESPECT OF LAND ARE NOT ACCEPTABLE AS VALID EVIDENCE. THEREFORE, EXPLANATIO N GIVEN BY THE ASSESSEE MAY BE REJECTED AND ADDITION OF RS. 32,49, 0001- MADE BY ASSESSING OFFICER IN THIS REGARD SHOULD BE SUSTAINE D.' 24.7. THE RE-JOINDER FILED ON BEHALF OF THE ASSESSEE AND ALSO EXTRACTED IN PARA 6.4 OF THE ORDER WAS HEAVILY RELIED UPON. IT WAS S UBMITTED THE DEPARTMENT ACCEPTS THE FACT THAT THE ASSESSEE WAS FACILITATING PROCUREMENT OF LAND FOR THE SAID COMPANY. THE FACT THAT PAYMENT BY CHEQUES HAV E BEEN PAID BY ATS GROUP IS ALSO AN EVIDENCE WHICH THE DEPARTMENT AGREES WIT H. THUS THE RELUCTANCE TO CONSIDER THAT THE ON MONEY PREMIUM FOR THE ACQUISI TION OF THESE PLOTS WAS ALSO PROVIDED BY THE ATS GROUP IT WAS SUBMITTED IS SURPR ISING. NO WHERE HAS THE DEPARTMENT BUILT A CASE THAT THE ASSESSEE WAS HIMSE LF INDULGING IN LAND ACQUISITION FOR HIS OWN PURPOSES. THE DETAILED FUND ROTATION CHART, IT WAS SUBMITTED HAS ESTABLISHED THAT FUNDS WERE RECEIVED FROM THE ATS GROUP WHICH FUNDS WERE DEPOSITED IN THE BANK ACCOUNTS OF THE A SSESSEE. THE FACT THAT WHILE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 52 FINALIZING THE LAND DEALS THE ASSESSEE HAS WITHDRAW N CASH OUT OF THOSE ATS BANK FUND OR UTILIZED THE CHEQUE AMOUNT ALSO AVAILA BLE WITH IT FROM THE DEPOSITS OF SANRAJ HEALTH SERVICES PVT. LTD. ALSO LYING WIT H HIM AND SHOWN AS OUTSTANDING IS A FACT ON RECORD. IT WAS ARGUED THA T IT IS IMMATERIAL, AT THE TIME OF ACTION, WHICH FINDS ARE BEING SPENT AS THE ENDEA VOUR FOR A MAN ON THE GROUND WAS TO SEAL THE DEALS AS FAST AS POSSIBLE AND AT AS LOW A PRICE AS POSSIBLE. THE APPROACH OF HEADS I WIN, TAILS YOU LOSE. OF THE REVENUE IN SELECTIVELY DISAGREEING WAS QUESTIONED. IT WAS SUBMITTED THE ATTITUDE WAS QUESTIONABLE AS ARGUED IT ONLY SHOWS THE RELUCTANCE OF THE REVENUE TO FACE THE FACTS AND DOES NOT ASSAIL THE FACT IN ANY MANNER. FOR READY-REFER ENCE, THE SAME IS REPRODUCED HEREUNDER:- 6.4. AR'S REJOINDER: 'IN THIS REGARD IT IS SUBMITTED THAT IN RESPECT OF THE ADDITION OF RS. 40,93,200/-MADE IN THE AY 2006-07 (GROUND NO. 4 IN APPEAL NO. 196/09-10) AND OF RS. 2,20,12,080/- MADE IN THE AY 2007-08 (GROUND NO. 4 HEREIN BELOW), THE AO HAS STATED IN THE RESPE CTIVE ASSESSMENT ORDERS THAT THE CHEQUE PAYMENTS IN THAT CASE HAD BE EN VERIFIED AS MADE FROM THE APPELLANT'S BANK ACCOUNT AND ACCORDINGLY H E LOGICALLY CONCLUDED THAT EVEN THE CASH PAYMENTS RECORDED ON T HAT SEIZED SHEET MUST HAVE BEEN MADE BY THE ASSESSEE. THUS, IT WAS E FFECTIVELY PRESUMED BY THE AO THAT WHOEVER MADE THE CHEQUE PAY MENTS MUST HAVE MADE THE PAYMENTS IN CASH ALSO, UNLESS REBUTTE D OTHERWISE WITH SOME DIRECT EVIDENCE. THE BENEFIT OF THE SAME ANALO GY CANNOT BE DENIED TO THE APPELLANT. REVENUE CANNOT BE ALLOWED TO TOSS THE COIN AND CALL 'HEADS I WIN, TAILS YOU LOSE'. UNDISPUTEDLY, THE LA ND REGISTRIES OF THE PLOTS RECORDED ON THE SHEET FOUND IN THE SEIZED LAP TOP WERE MADE IN THE NAME OF M7S PRATEEK RESORTS & BUILDERS (P) LTD. THE RE IS AMPLE EVIDENCE TO SHOW THAT THE APPELLANT AND MR. SACHIN UPADHAYA WERE FACILITATING PROCUREMENT OF LAND IN DEHRADUN FOR TH AT COMPANY. IT IS ALSO UNDISPUTED THAT HUGE SUMS WERE PAID THROUGH CHEQUES BY THE ATS GROUP TO THE APPELLANT AND MR. SACHIN UPADHAYA FOR THAT PURPOSE. THEREFORE, IT IS LOGICAL TO CONCLUDE THAT EVEN THE CASH FOR PAYING ON- MONEY PREMIUMS FOR THE ACQUISITION OF THOSE PLOTS O F LAND MUST ALSO HAVE BEEN PROVIDED BY THE ATS GROUP ONLY. MOREOVER, IT IS ALSO CLEAR FROM THE FUND ROTATION CHART THAT SUFFICIENT FUNDS RECEIVED FROM ATS GROUP WERE LYING IN THE BAN K ACCOUNT OF THE APPELLANT AT THE TIME OF MAKING THE CASH PAYMENTS A GGREGATING TO RS. 48 LACS TO THE LAND OWNERS. THEREFORE, IT MAKES NO DIFFERENCE WHETHER THE APPELLANT WOULD HAVE WITHDRAWN CASH OUT OF THE ATS FUNDS LYING IN HIS BANK ACCOUNT TO PAY THE SAID LAND OWNERS IN CAS H OR CHOSE TO UTILIZE THE CASH OF SANRAJ LYING WITH HIM INSTEAD. IN ANY C ASE, THE APPLICATION OF RS. 48 LACS IN CASH WAS MADE OUT OF TOTAL FUNDS REC EIVED FROM ATS ONLY, I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 53 WHETHER RECEIVED IN CASH OR THROUGH CHEQUES, BUT TH E SAID SUM WAS DEFINITELY RECEIVED BACK IN CASH FROM ATS FIRST AS ADVANCE RS. 15.51 LACS AND THEN BY WAY OF CASH DEPOSITS AGGREGATING T O RS. 32.49 LACS SUBSEQUENTLY IN THE AXIS BANK ACCOUNT OF THE ASSESS EE IN NOIDA AS EXPLAINED. THUS, THE SOURCE OF CASH DEPOSITS OF RS. 32.49 LACS STANDS FULLY EXPLAINED AND THE ADDITION SO MADE MUST BE DELETED. ' 24.8. ACCORDINGLY IT WAS SUBMITTED THAT THE ORDER DESERV ES TO BE UPHELD AND REMAND MAY NOT BE DIRECTED AS IT IS AN ATTEMPT TO U NNECESSARILY HARASS THE ASSESSEE. 25. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION THEREOF, WE FIND THAT THE ARGUMENTS OF THE LD. CIT DR THAT CASH FLOW STATEMENT WAS NOT FILED BEFORE TH E AO IS INCORRECT AND WE ALSO FIND THAT NO SUCH CASE HAS BEEN MADE OUT BY THE AO IN THE REMAND REPORT ALSO. WE ALSO FIND THAT THE DETAILED SUBMISSIONS ON FACTS ; THE FUND ROTATION CHART; EXPANDED CASH FLOW STATEMENT, THE NATURE OF SERVICE S ADMITTEDLY RENDERED BY THE ASSESSEE TO THE DIFFERENT PLAYERS IN THE FIELD AT D IFFERENT POINT OF TIME ARE ALL FACTS WHICH ARE ADMITTED FACTS AND HAVE NOT BEEN ASSAILED . THE ONLY OBJECTION POSED TO THE SEIZED DOCUMENTS REFLECTING TRANSACTIONS WHE RE ON MONEY DID PASS IS THAT THE AO NAIVELY NOTES THAT IT IS PUNISHABLE THUS THE FACT THAT IT HAS BEEN INDULGED IN WAS REFUSED TO BE CONSIDERD. THE PLEA THAT IN PE RFORMANCE OF HIS ROLE OF FACILITATOR THE CASH PAYMENTS FOR FINALIZING THE DE ALS ALSO FLOWED FROM THE SAME SOURCE FROM WHERE CHEQUE AMOUNTS WERE TRANSFERRED I N BANK ACCOUNTS WAS MADE AND THE OCCASION TO REFUSE TO CONSIDER THE SAM E DOES NOT ARISE. EVEN TODAY THE PAPER BOOK CONTAINING THESE EVIDENCES HAV E NOT BEEN REBUTTED BY THE REVENUE OR COMMENTED UPON SO AS TO CANVASS A CONTRA RY VIEW THEREON. IN THE FACE OF THE SPEAKING ORDER AVAILABLE ON RECORD THE ONLY ARGUMENT IS REPETITION OF THE OBSERVATIONS MADE IN THE AO. WE FIND THAT NO E FFORT TO SHOW ANY ERROR IN THE ORDER UNDER CHALLENGE HAS BEEN MADE. IN THE ABSENC E OF ANY ARGUMENT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 54 JUSTIFYING A REMAND OF THE ORDER, WE HOLD THAT THE REMAND CANNOT BE DIRECTED AT THE WHIMS AND FANCIES OF A PARTY. FINDING OURSELVE S IN AGREEMENT WITH THE CONCLUSIVE ARRIVED AT. WE DISMISS THE DEPARTMENTAL GROUND TO THE EXTENT IT ADDRESSES THE ADDITION OF RS.32,49,000/- FOR READY- REFERENCE, THE SAME RELEVANT FINDING WHICH IS UPHELD BY US IS REPRODUCED HEREUND ER:- PAGE 6.5 DECISION AND REASONS THEREFORE : I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAD FURNISHED A CASH FLOW STATEMENT SHOWING SOURCES OF FUNDS AND APPLICATIONS THEREOF FOR ALL BANK AND CASH TRAN SACTIONS UNDERTAKEN BY HIM DURING THE RELEVANT PREVIOUS YEAR. IN ORDER TO PROVE HIS EXPLANATION THAT CASH DEPOSIT INTO THE BANK ACC OUNT OR CASH WITHDRAWAL MADE FROM THE SAME DID NOT AFFECT THE OV ERALL FUND POSITION OF THE APPELLANT SINCE THE SAID CASH FLOW STATEMENT WAS A I COMBINED STATEMENT FOR BOTH CASH AND BANK TRANSACTIONS CONSI DERED TOGETHER, THE APPELLANT HAS FURTHER SUPPLIED THE IN DEPENDENT SUMMARIES OF ALL BANK ACCOUNTS AND CASH ACCOUNT FOR THE YEAR AND ALSO AN EXPANDED CASH FLOW STATEMENT CARRYING T HE CASH DEPOSIT AND WITHDRAWAL TRANSACTIONS AS WELL THEREIN . DURING THE APPELLATE PROCEEDINGS, ALL TRANSACTIONS RECORDED TH EREIN WERE VERIFIED AND TALLIED WITH THE ORIGINAL CASH FLOW ST ATEMENT SUBMITTED IN THE ASSESSMENT PROCEEDINGS AS WELL AS BANK STATEMENTS I PASSBOOKS OF THE APPELLANT FOR THE YEAR. NO DISC REPANCY OF ANY KIND WAS FOUND THEREIN AND THE CASH DEPOSITS WERE ALSO VERIFIED AS FUND APPLICATIONS IN CASH RESULTING INTO CORRESP ONDING FUND ACCRUALS IN THE BANK ACCOUNTS. THE APPELLANT ALSO PRODUCED A FUND ROTATION CHART FROM 01-04- 05 TO 31-03:-08 CONTAINING ALL CASH AND BANK TRANSA CTIONS UNDERTAKEN BY HIM ON BEHALF OF VARIOUS BUILDERS ON ACCOUNT OF IMPREST GIVEN BY THEM FOR PROCUREMENT OF LAND ON TH EIR BEHALF. THE SAME WAS VERIFIED FROM HIS BANK STATEMENTS I PA SSBOOKS AND CASH ACCOUNT IN RESPECT OF EACH TRANSACTION RECORDED THE REIN AND IT WAS FOUND THAT THERE WAS SUFFICIENT CASH BALANCE AVAILABLE ON ALL DATES DURING THE SAID THREE YEAR PERIOD WITH THE APPELLANT WHENEVER ANY CASH PAYMENT HAD BEEN MADE. I HAVE HELD IN GROUND NO. 3 IN APPEAL NO. 196/09-10 IN THE CASE OF THE SAME ASSESSEE FOR THE AY 2006-07 IN MY ORDER OF DATE THAT THE ASSESSEE WAS LEFT WITH A CASH BALANCE OF R S. 39.41 LACS OUT OF RS. 1.85 CRORES RECEIVED BY HIM FROM MLS SAN RAJ HEALTH SERVICES (P) LTD. SINCE HE HAD ADVANCED A SUM OF RS. 40 LACS BY CHEQUES FROM HIS PERSONAL BANK ACCOUNTS TO THE LAND OWNERS FOR AND O N BEHALF OF THAT BUILDER COMPANY. THUS, THIS SUM OF RS. 39.41 LACS W AS AVAILABLE WITH HIM ON 01-04-06, OUT OF WHICH THE UTILIZED A SUM OF RS. 4.01 LACS FOR HIS OTHER PERSONAL USE. THE SAID CASH ROTATION CHART CL EARLY REVEALS THE SAME. FURTHER, AS PER THE SAID CASH ROTATION CHART, THE APPELLANT RECEIVED A SUM OF RS. 15.51 LACS IN CASH FROM ATS ON 18-07-06, THUS, THE APPELLANT HAD A CASH IN HAND OF RS. 50.91 LACS WITH HIM AS ON THAT DATE OUT OF WHICH HE ADVANCED RS. 48 LACS TO THE L AND OWNERS FOR AND I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 55 ON BEHALF OF A TS THEREAFTER. THUS, AN EXCESS SUM O F RS.32.49 LACS HAD BEEN SPENT IN CASH BY THE APPELLANT UP TO 12-12-06 FOR AND ON BEHALF OF ATS, WHICH WAS SUBSEQUENTLY REIMBURSED TO HIM BY AT S BY DIRECTLY DEPOSITING CASH IN THE AXIS BANK SAVINGS ACCOUNT O F THE APPELLANT BETWEEN 14-11-06 AND 12-12-06 AS LISTED BY THE AO IN THE ASSESSMENT ORDER. THUS, IT IS OBSERVED THAT EVEN IF THE IMPUGNED CASH DEPOSITS IN BANK WERE NOT REFLECTED IN THE COMBINED CASH FLOW S TATEMENT SEPARATELY, NO ADVERSE COGNIZANCE OF THE SAME CAN BE TAKEN SINC E OTHERWISE ALSO THE SOURCE OF THE SAID CASH DEPOSIT MADE STANDS DUL Y EXPLAINED FROM THE CASH ROTATION CHART. IN THE CASH ROTATION CHART, THE APPELLANT SHOWED TH E IMPUGNED CASH DEPOSITS AS DIRECTLY MADE BY ATS INTO THE SB A/C # 12272 WITH AXIS BANK OF THE APPELLANT ON THE MANY DATES AGGREGATING TO RS. 32,49,000/- WITH THE EXPLANATION THAT THE SAID MONEYS WERE GIVEN BY A TS FOR PROCUREMENT OF LAND A T DEHRADUN FOR THEM AND THAT THE CIRCUMSTANTIAL / CORROBORATIVE EV IDENCE UNMISTAKABLY POINTS AT THE SOURCE OF THE IMPUGNED RECEIPT FROM A TS ONLY. IN THIS REGARD, THE EXPLANATION OF THE APPELLANT IS SUMMARIZED AS UNDER: A. THAT THE APPELLANT AND HIS ASSOCIATE, MR. SACHIN UP ADHAYA, WERE ENGAGED BY ATS TO ARRANGE PROCUREMENT OF AROUND 250 BIGHA LAND IN DEHRADUN FOR THEIR COLONIZATION PROJECT. A TS HAD T AKEN OVER THE SAID PROJECT FROM RPS ASSOCIATES, WHICH HAD ALREADY PROC URED AROUND 155 BIGHA LAND AT DEHRADUN THROUGH THE EFFORTS OF THE A PPELLANT AND MR. SACHIN UPADHAYA IN THE NAME OF A COMPANY, M/S PRATE EK RESORTS AND BUILDERS PVT. LTD. (IN SHORT PRATEEK). RPS WANTED TO USE THE APPELLANT AND MR. SACHIN UPADHAYA AS ITS 'FRONT' PERSONS TO P ROCURE THE LAND AT DEHRADUN AND MADE THEM AS SHAREHOLDERS IN P RATEEK. A TS TOOK OVER PRATEEK AND CONTINUED WITH THE SERVICE S OF THE APPELLANT AND MR. SACHIN UPADHAYA IN THE SAME MANNER SINCE IT WANTED ANOTHER 100 BIGHAS OF LAND TO BE ACQUIRED IN THE SAME VICIN ITY. ATS MADE THE APPELLANT AND MR. SACHIN UPADHAYA DIRECTORS IN PRAT EEK ALONG WITH ITS OTHER NOMINEES. WHEREAS THE APPELLANT AND MR. SACHIN UPADHAYA WERE DIRECTLY DEALING WITH THE LAND OWNERS AS DIREC TORS OF PRATEEK, THE FINANCIAL AND ADMINISTRATIVE MANAGEMEN T & CONTROL OF THAT COMPANY COMPLETELY VESTED IN THE OTHER - A TS DIRECTORS. IT WAS ALSO DECIDED BY A TS THAT THE REMUNERATION DUE TO THE APPELLANT AND MR. SACHIN UPADHAYA FOR THEIR LAND PROCUREMENT SERVICES WOULD BE PAID BY PURCHASING THE SHARES HELD BY THEM IN PRATE EK AT A PRE- DETERMINED PRICE BASED ON THE VALUATION OF EXISTING LAND PREVAILING AT THAT POINT OF TIME. THE SAID SHARES WERE SUBSEQUENT LY TRANSFERRED IN PARTS BY THE APPELLANT AND MR. SACHIN UPADHAYA AS D ETAILED HEREIN BELOW: DATE MUKESH SACHIN TOTAL NUMBER & OF TRANSFER JOSHI UPADHAYA PERCENTAGE 21.08.06 2,000 2,000 4,000 40% 20.10.06 500 1,000 1,500 15% 14.11.07 1,000 1,000 2,000 20% 08.12.08 1,500 1,000 2,500 25% TOTAL 5,000 5,000 10,000 100% I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 56 B . THAT FOR THE PURPOSE OF PROCURING THE DESIRED LA ND AT DEHRADUN, ATS GROUP COMPANIES PROVIDED FUNDS BY CHEQUES AND ALSO IN CASH TO THE APPELLANT AND MR. SACHIN UPADHAYA IN THEIR INDI VIDUAL NAMES. FINALLY, IN DECEMBER, 2008, AFTER THE DESIRED LAND HAD BEEN PROCURED FOR A TS BY THE APPELLANT AND MR. SACHIN U PADHAYA AND THEIR SHARES IN PRATEEK WERE TRANSFERRED IN ITS FAVOUR BY ATS AND ITS NOMINEES, THEY WERE ALLOWED TO RESIGN FROM THE DIRE CTORSHIP OF PRATEEK. C. THAT THE APPELLANT AND MR. SACHIN UPADHAYA WERE JUST ACTING AS THE FACILITATORS / MEDIATORS IN THE SAID RPS-ATS CO LONIZATION DEAL AND THEIR NAMES HAD BEEN USED BY THE SAID TWO GROUPS A S THE SHAREHOLDERS / DIRECTORS WITH A VIEW TO ARREST THE ARTIFICIAL RISE IN THE LAND PRICES UNDER PURCHASE BY THEM AS IT IS THE USUAL TRADE PRACTICE FOLLOWED BY LARGE BUILDERS AND ALSO TO BIND THEM TO GET THE CONSOLIDATION OF THE ADDITIONAL ADJOINING PLOTS OF LAND FOR THEM. MOREOVER AS PER CEILING ON AGRICULTURAL LAND HOLDING AREA IN EVERY STATE IN ONE NAME, IT IS IMPERATIVE FOR ANY COLONISOR THAT PLOT S OF AGRICULTURAL LAND ARE HELD BY HIM IN DIFFERENT NAMES WITHIN THE CEIL ING OF THE HOLDING LIMIT IN EACH NAME TILL THE LAND USE IS CHANGED AS NON AG RICULTURAL AS ONLY THEREAFTER HE CAN HOLD THE ENTIRE AREA OF LAND IN H IS NAME. THE REQUISITE FINANCES WERE GIVEN BOTH BY CHEQUES AND IN CASH TO THEM FROM TIME TO TIME BY THE SAID TWO BUILDER GROUPS, BUT BY A TS AL ONE DURING THE RELEVANT PREVIOUS YEAR SINCE RPS HAD WITHDRAWN IN T HE PRECEDING YEAR ITSELF. D. THAT BESIDES THE ADVANCES RECEIVED FROM A TS GROUP IN THE IMMEDIATELY PRECEDING YEAR, THE APPELLANT, DURING THE YEAR UNDE R CONSIDERATION, FURTHER RECEIVED A TOTAL SUM OFRS. 627.50 LACS FROM ATS GROUP COMPANIES AS IMPREST FOR THE PURPOSE OF BUYING FURT HER 100 BIGHAS OF LAND FOR THEM; BEING RS. 48 LACS IN CASH AND RS. 87 .50 LACS BY CHEQUES RECEIVED FROM MLS ATS INFRASTRUCTURE LTD. AND RS. 4 92LACS BY CHEQUES RECEIVED FROM M/S PRATEEK RESORTS & BUILDERS PVT. L TD. DATE-WISE DETAILS OF THE SAME WERE PROVIDED, WHICH WERE VERIFIED FROM THE BANK ACCOUNT OF THE APPELLANT AND ALSO FROM THE FUND ROTATION CHART DURING THE APPELLATE PROCEEDINGS. THESE DETAILS INCLUDED THE IMPUGNED SU MS TOTALING TO RS. 32.49 LACS STATED TO HAVE BEEN DEPOSITED IN CASH IN THE SB A/C OF THE APPELLANT WITH AXIS BANK DIRECTLY BY ATS AND ANOTHE R SUM OF RS. 15.51 LACS ALSO IN CASH STATED TO HAVE BEEN RECEIVED FROM A TS FOR PAYING THE SAME TO A LAND OWNER, MR. ANAND SWAROOP. THUS, TOTA L CASH RECEIPT FROM A TS DURING THE RELEVANT PREVIOUS YEAR CAME TO RS. 48 LACS. E. THAT SINCE THE PLOTS OF LAND IN QUESTION WERE BE ING PURCHASED BY A TS GROUP IN THE NAME OF M/S PRATEEK RESORTS & BUI LDERS PVT. LTD. THROUGH THE EFFORTS OF THE APPELLANT, THEREFOR E, THE ONLY PRESUMPTION CAN BE THAT ALL FUNDS WERE GIVEN BY THE A TS GROUP ONLY WHETHER BY CHEQUE OR IN CASH. THE APPELLANT ME RELY UTILIZED THE SAID FUNDS FOR ACQUIRING PLOTS OF LAND FOR THE GROUP AND MADE PAYMENTS FOR THAT PURPOSE WHETHER BY ISSUING C HEQUES FROM HIS BANK ACCOUNTS OR IN CASH ACCORDING TO THE FUNDS AVAILABLE WITH HIM IN THE SAID BANK ACCOUNTS OR IN CASH. F. THAT WHEN THE SOURCE AND PURPOSE OF THE CHEQUES RE CEIVED FROM THE ATS GROUP HAD NOT BEEN DISPUTED BY THE AO FOR WHICH NO DIRECT EVIDENCE IS AVAILABLE ON RECORD EXCEPT THAT THE SAME WERE RECOR DED IN THE BANK STATEMENTS OF THE APPELLANT, HOW CAN THE RECEIPT OF FUNDS IN CASH FROM THE SAME SOURCE BE DOUBTED, WHICH WERE UNDISPUTEDLY , AS PER THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 57 SEIZED MATERIAL, UTILIZED FOR THE SAME PURPOSE OF P URCHASING PLOTS OF LAND FOR THAT GROUP. THUS, IT IS MY CONSIDERED VIEW THAT THE ENTIRE FUNDS REQUIRED FOR LAND PURCHASE WERE GIVEN BY A TS GROUP BY CHEQUES AS WELL AS IN CASH TO THE APPELLANT. FURTHER THERE' IS NO R EASON OTHERWISE ALSO TO PRESUME THAT THE APPELLANT WOULD HAVE USED HIS OWN MONEY FOR ACQUIRING PLOTS OF LAND IN HIS CAPACITY AS THE AGEN T OF A TS, ESPECIALLY WHEN A TS HAD BEEN PROVIDING MONEYS IN ADVANCE TO T HE APPELLANT TO ACQUIRE PLOTS OF LAND FOR IT. G. THAT MORE PARTICULARLY IN RESPECT OF THE IMPUGNED CASH DEPOSITS AGGREGATING TO RS.32,49,0001- MADE IN THE SB A/C # 12272 WITH AXIS BANK OF THE APPELLANT, IT WAS EXPLAINED BY THE APPE LLANT THAT HE HAD PAID RS. 48 LACS IN CASH TO TWO SELLERS OF LAND, NA MELY, MR. ANAND SWAROOP AND MR. SANJAY MOHAN UNIYAL, ON BEHALF OF A TS IN JULY, 2006 FOR WHICH RS. 15.51 LACS WERE GIVEN BY ATS IN CASH ON 18-07- 06 AT DEHRADUN AND THE BALANCE SUM OF RS. 32.49 LACS WAS SUBSEQUENTLY DEPOSITED IN CASH IN THE SAID SB A/C # 12272 OF THE APPELLANT WITH AXIS BANK, NOIDA DIRECTLY BY ATS. H. THAT SINCE THE PLOTS OF LAND UNDER PURCHASE BY ATS THROUGH THE APPELLANT WERE SITUATED IN DEHRADUN AND A TS WAS BA SED IN NOIDA, THE SAID BANK ACCOUNT WAS OPENED BY THE APPE LLANT AT THE REQUEST AND INSTANCE OF A TS ON 23-09-06 WITH AXIS BANK HAVING ITS BRANCH AT K-2I ,22, SECTOR-I 8, NOIDA BECAUSE I T WAS SITUATED IN THE IMMEDIATE VICINITY OF ATS'S OFFICE AT K-I9, SECTOR-I 8, NOIDA AND ALSO SINCE IN THIS MANNER A TS WOULD BE ABLE TO AVOID THE RISK OF PHYSICALLY MOVING THE CASH TO DEHRADUN BY D IRECTLY DEPOSITING THE SAME IN THE SAID BANK ACCOUNT OF THE APPELLANT AS AND WHEN CASH WAS AVAILABLE WITH IT. I. THAT, THEREFORE, THE CIRCUMSTANTIAL 1 CORROBORATIVE EVIDENCE ESTABLISHES THAT THE IMPUGNED CASH AMOUNTS AGGREGATING TO RS. 3 2,49,000/- WERE INDEED DEPOSITED BY ATS DIRECTLY INTO THE SB ALE # 12272 OF THE APPELLANT WITH AXIS BANK, NOIDA; AND THEREFORE, THE ADDITION SO MADE SHOULD BE DELETED. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E ISSUE INVOLVED, IT IS MY CONSIDERED VIEW THAT IT WAS A TS WHICH HAD UNDERTAKEN THE COLONIZATION PROJECT THROUGH MLS PRA TEEK RESORTS & BUILDERS (P) LTD. THE FACT THAT THE APPELLANT AND M R. SACHIN UPADHAYA PERIODICALLY SOLD THEIRS SHARES IN PRATEEK TO ATS A ND THEIR NOMINEES AT A PRE- DETERMINED PRICE GOES ON TO PROVE THAT THE APP ELLANT AND MR. SACHIN UPADHAYA WERE NOT INVOLVED IN THE CONSTRUCTION OR D EVELOPMENT OF THE COLONY AT DEHRADUN AND MAKE PROFIT FROM THAT BUSINE SS, RATHER THEIR INTEREST WAS LIMITED TO RECEIVING REMUNERATION FROM LAND PROCUREMENT FACILITATION SERVICES RENDERED BY THEM, WHICH THEY RECEIVED FROM SELLING SHARES OF PRATEEK TO ATS ULTIMATELY. FURTHER, APPOI NTMENT OF ITS OWN DIRECTORS ON THE BOARD OF PRATEEK BY A TS FURTHER S UPPORTS THE CAUSE OF THE APPELLANT THAT THEY WERE MADE DIRECTORS IN PRAT EEK ONLY WITH THE AIM OF USING THEIR NAMES AS 'FRONT' PERSONS AND ALSO IN ORDER TO BIND THEM FOR PROCURING FURTHER ADJACENT PLOTS OF LAND FOR THEIR COLONIZATION PROJECT. THUS, THE APPELLANT AND MR. SACHIN UPADHAYA ONLY RE NDERED PROCUREMENT SERVICES WHILE THE LAND WAS BEING PROCU RED BY A TS THROUGH THEM. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 58 IN RESPECT OF THE ADDITION OF RS. 40,93,200/- MADE IN THE AY 2006- 07 (GROUND NO. 4 IN APPEAL NO. 196/09-10) AND OF RS. 2,20,12,080/- MADE IN THE AY 2007-08(GROUND NO. 4 H EREIN BELOW), THE AO HAS STATED IN THE RESPECTIVE ASSESSM ENT ORDERS THAT THE CHEQUE PAYMENTS HAD BEEN VERIFIED AS MADE FROM THE APPELLANT'S BANK ACCOUNT AND ACCORDINGLY HE LOGICAL LY CONCLUDED THAT EVEN THE CASH PAYMENTS RECORDED ON THAT SEIZED SHEET MUST HAVE BEEN MADE BY THE ASSESSEE. IN MY VIEW IT IS LAWFUL TO PRESUME AS WAS EFFECTIVELY SO DONE BY THE AD, THAT WHOEVER MADE THE CHEQUE PAYMENTS MUST HAVE MADE THE PAYMENTS IN CASH ALSO, UNLESS IT IS REBUTTED OTHERWISE WITH SOME DIRECT EVIDENCE. THE B ENEFIT OF THE SAME ANALOGY CANNOT BE DENIED TO THE APPELLANT. REVENUE CANNOT BE ALLOWED TO TOSS THE COIN AND CALL 'HEADS I WIN, TAILS YOU L OSE'. UNDISPUTEDLY, THE LAND REGISTRIES OF THE PLOTS RECORDED ON THE SHEET FOUND IN THE SEIZED LAPTOP WERE MADE IN THE NAME OF M/S PRATEEK RESORTS & BUILDERS (P) LTD. THERE IS AMPLE EVIDENCE TO SHOW THAT THE APPEL LANT AND MR. SACHIN UPADHAYA WERE FACILITATING PROCUREMENT OF LAND IN D EHRADUN FOR THAT COMPANY. IT IS ALSO UNDISPUTED THAT HUGE SUMS WERE PAID THROUGH CHEQUES BY THE A TS GROUP TO THE APPELLANT AND MR. SACHIN UPADHAYA FOR THAT PURPOSE. THEREFORE, IT IS LOGICAL TO CONCLUDE THAT EVEN THE CASH FOR PAYING ON-MONEYPREMIUMS.FOR THE ACQUISITION OF THOSE PLOTS OF LAND MUST ALSO HAVE BEEN PROVIDED BY THE ATS GROUP ONLY. MOREOVER, IT IS ALSO CLEAR FROM THE FUND ROTATION CHART THAT SUFFICIENT FUNDS RECEIVED FROM ATS GROUP WERE LYING IN THE BA NK ACCOUNT OF THE APPELLANT AT THE TIME OF MAKING THE CASH PAYMENTS A GGREGATING TO RS. 48 LACS TO THE LANDOWNERS. THEREFORE; IT IS MY CONSIDE RED VIEW THAT IT MAKES NO DIFFERENCE WHETHER THE APPELLANT WOULD HAVE WITH DRAWN CASH OUT OF THE A TS FUNDS LYING IN HIS BANK ACCOUNT TO PAY THE SAID LAND OWNERS IN CASH OR CHOSE TO UTILIZE THE CASH OF SANRAJ LYING W ITH HIM INSTEAD. IN ANY CASE, THE APPLICATION OF RS. 48 LACS IN CASH WAS MA DE OUT OF TOTAL FUNDS RECEIVED FROM ATS ONLY, WHETHER RECEIVED IN CASH OR THROUGH CHEQUES, BUT THE SAID SUM MUST HAVE BEEN RECEIVED BACK FROM ATS FIRST AS ADVANCE RS. 15.51 LACS IN CASH AND THEN BY WAY OF C ASH DEPOSITS AGGREGATING TO RS. 32.49 LACS SUBSEQUENTLY IN THE A XIS BANK ACCOUNT OF THE ASSESSEE IN NOIDA. THUS, IT CANNOT BE DOUBTED THAT THE NECESSARY FUNDS BOTH BY CHEQUES AND IN CASH REQUIRED FOR LAND PROCUREMENT M UST HAVE BEEN PROVIDED BY A TS ONLY FROM TIME TO TIME. EVEN THE T EST OF HUMAN PROBABILITIES SUPPORTS THE CONTENTION-OF THE APPELL ANT THAT THE CASH OF RS. 48 LACS HAD INDEED BEEN PAID BY A TS ONLY TO THE AP PELLANT FOR PROCURING PLOTS OF LAND ON ITS BEHALF BECAUSE IT IS UNHEARD O F THAT ANYONE PROVIDING SERVICES WOULD INVEST HIS OWN FUNDS FOR THE BUILDER S AND NOT BE REIMBURSED BY THEM. FURTHERMORE, THE SITUATION OF T HE IMPUGNED BANK IN THE CLOSE PROXIMITY OF A TS'S OFFICE IN NOIDA IS AN OTHER STRONG POINTER IN FAVOUR OF THE APPELLANT THAT THE MONEYS DUE TO HIM AGAINST CASH ADVANCED BY HIM TOWARDS LAND PROCUREMENT FOR A TS M UST HAVE BEEN DEPOSITED IN CASH BY ATS ONLY IN THE SAID BANK ACCO UNT. THUS, EVEN THOUGH NO DIRECT DOCUMENTARY EVIDENCE IN THIS REGARD COULD BE PRODUCED BY THE APPELLANT, YET THERE ARE E NOUGH CIRCUMSTANTIAL/CORROBORATIVE EVIDENCES UNMISTAKABLY POINTING AT THE SOURCE OF THE IMPUGNED RECEIPT IN CASH FROM ATS ONL Y. ACCORDINGLY, THE ADDITION OF RS. 32,49,000/- SO MADE IS DELETED. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 59 (EMPHASIS PROVIDED) 26. ADDRESSING GROUND NO.3 IT WAS SUBMITTED BY THE LD. CIT DR THAT SHE WOULD SIMULTANEOUSLY ADDRESS THE DELETION OF THE AD DITION OF RS.1.60 LACS AGITATED IN GROUND NO.2 AND THE ADDITION OF RS.2.20 CRORES DELETED BY THE CIT(A) AGITATED IN GROUND NO.3 BY THE REVENUE. INVITING A TTENTION TO THE SAME IT WAS SUBMITTED VARIOUS CREDIT ENTRIES WERE FOUND IN THE BANK ACCOUNT OF THE ASSESSEE AND DESPITE AN OPPORTUNITY THE ASSESSEE FAILED TO F ILE CONFIRMED COPIES FROM THE SAID PARTIES. THE CIT(A) IT WAS SUBMITTED CONSIDE RING THE SUBMISSIONS RECORDED IN PAGE 22 TO 26, IGNORING THE REMAND REPORT OF THE AO THAT THE EVIDENCE BE NOT ACCEPTED HAS ACCEPTED THE ASSESSEES VERSION. REFE RRING TO THE SAME IT WAS SUBMITTED THAT THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF THE DEPOSITS IN THE SPECIFIC BANK ACCOUNTS AND THE SUBMISSIONS OF THE A SSESSEE HAVE BEEN CONSIDERED BY THE AO WHILE MAKING THE ADDITION AND THE SAME IS SELF- EXPLANATORY. IT WAS HER SUBMISSION THAT NO DOUBT T HE REMAND REPORT HAS BEEN OBTAINED AND TO THE EXTENT OF THE DEPOSITS FROM MRS . KAUSHALYA SEHGAL THE MOTHER-IN-LAW OF THE ASSESSEE WHICH ISSUE HAS BEEN GIVEN UP BY THE AO HIMSELF IN 2007-08 ASSESSMENT YEAR THE SAME MAY BE FOLLOWED BUT FOR THE REMAINING AMOUNT WHICH IS AGITATED IN GROUND NO.3 THE ISSUE I T WAS SUBMITTED MAY BE RESTORED TO THE AO FOR RECONSIDERATION ON MERITS. 27. THE LD. AR VEHEMENTLY OPPOSED THESE SUBMISSIONS FOR RESTORATION. INVITING ATTENTION TO THE SPECIFIC OBJECTION IN THE REMAND REPORT WHICH IS EXTRACTED IN PARA 7.3 IT WAS HIS SUBMISSION THAT T HE SAME HAS BEEN ADDRESSED BY THE ASSESSEE IN PARA 7.4 AND CARRYING US THROUGH THESE SPECIFIC PARAS ALONGWITH THE WRITTEN SUBMISSIONS EXTRACTED IN THE ORDER IT WAS HIS SUBMISSION THAT THE DEPARTMENTAL REQUEST MAY BE DISMISSED. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 60 27.1. IT WAS HIS SUBMISSION THAT TBV IT HAS BEEN EXPL AINED REFERRED TO TO BE VERIFIED. IT WAS SUBMITTED THAT AT THE TIME OF RE CORDING THE TRANSACTIONS WHERE THE PROCESS IS UNDER WAY WITH VARIOUS PEOPLE, FOR V ARIOUS LAND DEALS WHICH ARE PROPOSED OR ARE IN THE PROCESS THE EVENT AT TIME I S RECORDED AS IT WAS IN THE PROCESS OF BEING FINALIZED. THE SAID RECORDING ON THE PART OF THE ASSESSEE DOES NOT LEAD TO ANY INCRIMINATING MATERIAL OR EVIDENCE. THE EVENT HAS BEEN VERIFIED AND EXPLAINED. REFERRING TO THE BANK ACCOUNTS MAINT AINED AT DEHRADUN IT WAS SUBMITTED THAT MS. ELIZABETH DESPITE AGREEING FOR A SPECIFIC PRICE REALIZING THE LOCATION OF HER LAND WAS PUSHING FOR MORE PAYMENT T HUS ORIGINALLY P.O.S OF THE AGREED AMOUNTS WERE MADE FROM THE SPECIFIC BANK A/C AND BY WAY OF ABUNDANT CAUTION ONE MORE P.O OF RS. 1 LAC WAS GOT READY IN ORDER TO DEAL WITH THE EVENTUALITY OF THAT LADY STILL INSISTED IN HIKING U P THE PRICE. SINCE THE ASSESSEE WAS ABLE TO PUSH FOR SALE AT THE SAME ORIGINALLY AG REED TO PRICE ON BEHALF OF PRATEEK GROUP THE RS.1 LAC P.O WAS GOT CANCELLED. IT WAS SUBMITTED THAT WHILE NEGOTIATING AND FINALIZING THE DEAL BOTH SIDES TRY TO PUSH FOR MAXIMUM AND THE BLUFF HAS TO BE CARRIED THROUGH AND AT TIMES GIVEN UP. THE DEBITS IN THE BANK ACCOUNTS COMPRISING OF POSTAL ORDERS OF RS.3.50 LAC S AND RS. 1 LAC ACCORDINGLY STOOD FULLY EXPLAINED. SIMILARLY THE TWO AMOUNTS O F RS.25,000/- AND RS.35,000/- AGAIN FOUND CREDITED IN THE BANK ACCOUN T STOOD EXPLAINED AS RS.35,000/- AS RECEIPT FROM HIS LATE MOTHER-IN-LAW, MRS. KAUSHLYA SEHGAL WHICH HAS BEEN ACCEPTED BY THE AO IN THE REMAND REPORT IT SELF AND RS.25,000/- AS TRANSFERRED FROM SB A/C12485 ALSO MAINTAINED IN THE SAME BRANCH OF THE SAME BANK I.E CANARA BANK DULY REFLECTED IN THE CASH FLO W STATEMENT AS WELL AS THE STATEMENT OF AFFAIRS AS ON 31.03.2007. 27.2. ADDRESSING THE REMAINING PORTION WHICH IS THE MAJ OR PORTION I.E UNSECURED LOAN FROM MR. SACHIN UPADHAYA OF RS.2.20 CRORES THE DETAILED I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 61 FINDING AVAILABLE IN THE ORDER UNDER CHALLENGE WHIC H HAS NOT BEEN ASSAILED BY THE REVENUE WERE RELIED UPON. IT WAS SUBMITTED THA T THE DETAILED SUBMISSIONS ADDRESSING SEIZED DOCUMENT ENTRY-WISE HAS BEEN ADD RESSED AND EXPLAINED AND IS FOUND TO BE SUPPORTED BY THE BANK ACCOUNT STATEM ENTS OF BOTH THE ASSESSEE AND MR. SACHIN UPADHAYA AND THE EVIDENCE ON RECORD CONSIDERED HAS NOT BEEN REBUTTED BY THE REVENUE. IT WAS SUBMITTED THAT FUL L FACTS HAVE BEEN EXPLAINED AND AFTER CONSIDERING THE SAME, THE FINDING HAS BE EN ARRIVED AT. ACCORDINGLY, IT WAS HEAVILY RELIED UPON. 28. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IT IS SEEN AS FAR AS THE REMAINING AMOU NT OF RS.1.60 LACS WHICH IS FORMING PART OF GROUND NO.2 OF THE REVENUE IS CONCE RNED CONSIDERING THE FACTS BROUGHT ON RECORD AND THE ARGUMENTS OF THE RESPECT IVE PARTIES, WE FIND NO GOOD REASON TO INTERFERE WITH THE FOLLOWING FINDING ARRI VED AT IN PARA 7.5 (I) & 7.5 (II) AT PAGES 26 TO 28 OF THE IMPUGNED ORDER:- 7.5. DECISION AND REASONS THEREFOR: I. FOR SUM CREDITED ON 21-04-06 IN SB A/C # 21848 W ITH ICICI BANK - RS.L,00,000/-. I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. THE APPELLANT WAS ASKED TO REVEAL WH AT 'TBV' STOOD FOR. IT WAS EXPLAINED THAT AT THE TIME OF PREPARING HIS ACC OUNTS ON COMPUTER FOR THE PURPOSE OF ASSESSMENT PROCEEDINGS, THE ACCOUNTA NT RECORDED THE IMPUGNED CREDIT OF RS. 1 LAC AS CANCELLATION OF BAN K PO BUT IN ORDER TO VERIFY THE NAME OF THE PERSON IN WHOSE NAME THE SAI D PO WAS ORIGINALLY GOT MADE, HE WROTE THE WORD TBV IN THE NARRATION ME ANING 'TO BE VERIFIED' FROM THE ASSESSEE. THUS, TBV DID NOT REFE R TO ANY PERSON OR PARTY AS MISCONSTRUED BY THE AO AND IT WAS ARGUED T HAT NO ADVERSE COGNIZANCE OF THE SAME SHOULD BE TAKEN. THE BANK STATEMENT OF THE SB A/C # 21848 OF THE APP ELLANT WITH ICICI BANK, DEHRADUN REVEALS THAT A PO FOR RS. 4.50 LACS WAS GOT MADE ON 19-04-06 FROM THAT ACCOUNT AND FURTHER PO # 1107 78 OF RS. 1 LAC WAS GOT CANCELLED ON 21-04-06 FROM THE SAID BANK ACCOUN T BY THE APPELLANT. IT WAS EXPLAINED BY THE APPELLANT THAT TWO POS BEARING NOS. 110777 AND 11 0778 FOR RS. 3.50 LACS AND 1 LAC RESPECTIVELY WE RE GOT MADE VIDE CHEQUE NO. 006302 IN FAVOUR OF MS. ELIZABETH ON 19- 04-06 TOWARDS PURCHASE OF HER LAND FOR ATS GROUP AND OUT OF WHICH ONE PO BEARING NO. 110778 OF RS. 1 LAC WAS GOT CANCELLED SUBSEQUENTLY ON 21-04-06. IT HAS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 62 ALSO BEEN VERIFIED FROM THE STATEMENT OF AFFAIRS AS AT 31- 03-07 OF THE APPELLANT FILED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THAT AMOUNT OF RS. 3.50 LACS WAS SHOWN UNDER THE HEAD 'L OANS AND ADVANCES' AS ADVANCE GIVEN TO MS. ELIZABETH FOR PRATEEK OF A TS GROUP. MOREOVER, A COPY OF THE SALE DEED DATED 19-04-06 FOR PURCHASE O F LAND AT DEHRADUN BY M/S PRATEEK RESORTS & BUILDERS (P) LTD. FROM MS. ELIZABETH WAS ALSO FURNISHED BY THE APPELLANT, WHERE IT WAS FOUND THAT THE PAYMENT OF RS.3.50 LACS HAD BEEN CATEGORICALLY STATED AS MADE VIDE PO # 110777 DATED 19-04-06 OF ICICI BANK, DEHRADUN. THUS, THE F ACT THAT THE SUM OF RS. 4.50 LACS DEBITED ON 19-04-06 IN THE SB ALE OF THE APPELLANT WITH ICICI BANK COMPRISED OF THE TWO POS OFRS. 3.50 LACS AND RS. 1 LAC AS EXPLAINED BY THE APPELLANT GETS FULLY VERIFIED. EVE N THE AO IN HIS REMAND REPORT HAS ACCEPTED THE EXPLANATION OF THE APPELLAN T IN THIS REGARD AFTER VERIFICATION. THUS, THE EXPLANATION OF THE APPELLANT STANDS VERIF IED AS CORRECT AND THE SOURCE OF CREDIT OF RS. 1 LAC ALSO STANDS F ULLY EXPLAINED. ACCORDINGLY, THE ADDITION OF RS. 1 LAC SO MADE IS D ELETED. II. FOR CREDIT ENTRIES IN SB ALE # 12485 WITH CANA RA BANK - RS. 60,000/- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. THE AID SUM OF RS. 60,000/- COMPRISE D OF THE FOLLOWING CREDIT ENTRIES: DATE OF CREDIT AMOUNT (RS.) 12/07/06 25,000 24/02/07 35,000 ___________ TOTAL: 60,00 0 ___________ IT WAS VERIFIED FROM THE TWO BANK ACCOUNTS OF THE A PPELLANT THAT THE SUM OF RS. 25,000/- CREDITED ON 12-07-06 IN THE SB A/C # 12485 WITH CANARA BANK WAS RECEIVED AS TRANSFER FROM THE APPELLANT'S OTHER SB A/C # 16456 WITH CANARA BANK VIDE CHEQUE NO. 549276 ON TH E SAME DATE. ALL TRANSACTIONS OF THE SAID TWO BANK ACCOUNTS WERE FOU ND INCORPORATED IN THE CASH FLOW STATEMENT FOR THE RELEVANT PREVIOUS Y EAR AS WELL AS THE STATEMENT OF AFFAIRS AS AT 31-03-07 OF THE APPELLAN T FURNISHED BY HIM DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. AC CORDINGLY, THE SOURCE OF DEPOSIT OF RS. 25,0001- STANDS DULY EXPLAINED AN D THE ADDITION SO MADE IS DELETED. EVEN THE AO IN HIS REMAND REPORT H AS ACCEPTED THE EXPLANATION OF THE APPELLANT IN THIS REGARD AFTER V ERIFICATION. IN RESPECT OF THE DEPOSIT OF RS. 35,0001- STATED TO HAVE BEEN RECEIVED THROUGH LATE MRS. KAUSHALYA SEHGAL, THE MOTHER-IN-L AW OF THE APPELLANT, THE APPELLANT COULD NOT PROVIDE THE NAME OF THE PER SON WHO GAVE THE SAID SUM OR PRODUCE ANY EVIDENCE IN SUPPORT THEREOF. IT IS NOT UNDERSTOOD HOW AND ON WHAT BASIS HAS THE AD IN HIS REMAND REPORT G OT SATISFIED ABOUT THE SAME. ACCORDINGLY, THE SAID ADDITION IS CONFIRM ED. THUS, IN THE NET RESULT, OUT OF TOTAL CREDITS OF RS . 60,0001-, ADDITION FOR THE SUM OF 25,000/- IS DELETED, WHILE ADDITION MADE FOR THE BALANCE SUM OF RS. 35,0001- IS CONFIRMED. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 63 28.1. CONSIDERING THE ARGUMENTS ADDRESSING SPECIFIC GROUN D NO.3, WE FIND THAT THE REASONING ARRIVED AT BY THE CIT(A) IN PARA 7.5 (III) AT PAGES 28-30 WHICH REITERATES THE FACTUAL BACKGROUND OF THE ASSESSEE H AVING ACTED AS FACILITATOR FOR CONSOLIDATING LAND AT DIFFERENT STAGES FOR DIFFEREN T PARTIES WHEN READ ALONGWITH THE EVIDENCES ON RECORD, WE FIND THAT IN THE ABSENC E OF ANY SPECIFIC REASONING JUSTIFYING THE REQUEST FOR A REMAND THE REQUEST HAS TO BE REJECTED. WE NOTE THAT IN EACH OF THESE YEARS, THE ASSESSEE HAD FILED DETA ILED PAPER BOOK CONSISTING OF ALL THE EVIDENCES RELIED UPON BY THE CIT(A), THESE HAVE BEEN CONFRONTED TO THE AO AND EXAMINED BY THE LD. CIT(A) AND AFTER CONSIDE RING THE SUBMISSIONS ADVANCED IN WRITING EXTRACTED IN THE IMPUGNED ORDER IN ORDER THE CONCLUSION HAS BEEN ARRIVED AT. ADDRESSING THESE ISSUES IN TH E OVERALL FACTUAL MATRIX WHICH STANDS UN-ASSAILED AND FINDING OURSELVES IN AGREEME NT WITH THE REASONING AND CONCLUSIONS ARRIVED AT THE FOLLOWING FINDING OF FAC TS IS UPHELD BY US:- III. FOR UNSECURED LOAN TAKEN FROM MR. SACBIN UPADB AYA - RS. 2.20 CRORE. I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. THE DETAILS OF MONEYS RECEIVED FROM MR. SACHIN UPADHAYA, WHO WAS A BUSINESS ASSOCIATE OF THE APPEL LANT, REVEALED THAT CERTAIN SUMS TOTALING TO RS. 15 LACS RECEIVED FROM HIM HAD BEEN DEPOSITED INTO HIS BANK ACCOUNT BY THE APPELLANT WH EREAS THE BALANCE SUM OF RS. 2.05 CRORES HAD BEEN PAID DIRECTLY TO M/ S GURU RAM DASS EDUCATION TRUST (GRD) ON BEHALF OF THE APPELLANT BY MR. SACHIN UPADHAYA FOR PURCHASE OF LAND FROM IT BY THE APPELL ANT. THE ABOVE PAYMENTS TOTALING TO RS. 2.20 CRORES MAD E BY MR. SACHIN UPADHAYA WERE VERIFIED FROM THE COPIES OF TH E BANK ACCOUNTS OF MR. SACHIN UPADHAYA FURNISHED BY APPELLANT DURING T HE COURSE OF THE APPELLANT PROCEEDINGS AND CROSS CHECKED WITH THE ST ATEMENT OF THE APPELLANT FOR RS. 15 LACS DEPOSITED THEREIN AND ALS O FROM THE COPY SALE DEED DATED 07-03-07 IN RESPECT PAYMENT OF RS. 2.05 CRORES MADE BY MR. SACHIN UPADHAYA OF THE PURCHASE OF LAND BY THE APPE LLANT FROM GRD WHICH CONTAINED THE CHEQUE-WISE PAYMENT DETAILS THE REIN. FROM THE ASSESSMENT ORDER IT IS NOTED THAT THE AO MADE THE ADDITION OF RS. 2.20 CRORES IN THE HANDS OF THE APP ELLANT UNDER THE AVERMENT THAT THE APPELLANT COULD NOT FURNISH A CON FIRMATION OF LOAN FROM MR. SACHIN UPADHAYA ALONG WITH HIS BANK STATEMENT A ND THE RELEVANT INCOME-TAX RETURN TO PROVE IDENTITY, GENUINENESS AN D CREDITWORTHINESS OF THE SAID CREDITOR. WHEREAS, IT IS SEEN FROM THE COP Y OF THE ASSESSMENT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 64 ORDER DATED 23-12- 09 FOR THE AY 2007-08 FRAMED U/S 153C OF THE SAID CREDITOR, MR. SACHIN UPADHAYA, AS PROVIDED BY THE A PPELLANT THAT IT HAS BEEN FRAMED BY THE SAME ASSESSING OFFICER ON THE SA ME DATE, I.E., ON 23-12-09 ASSESSING HIS TOTAL INCOME AT RS. 12.27 CR ORES. THUS, THE IDENTITY AND CREDITWORTHINESS OF THE SAID CREDITOR CANNOT BE DISPUTED. ALSO, IT IS CLEAR FROM THE ASSESSMENT ORDERS OF THE APPELLANT AND MR. SACHIN UPADHAYA THAT THEY WERE CLOSE BUSINESS ASSOC IATES WHO WERE CARRYING OUT THE LAND CONSOLIDATION WORK FOR PRATEE K OF A TS GROUP AS FACILITATORS TOGETHER AND THEY HAD EARNED CONSIDERA BLE AMOUNT FROM SALE OF PRATEEK'S SHARE TO ATS DURING THE RELEVANT PREVI OUS YEAR. THUS, EVEN THE SOURCE OF ADVANCING RS. 2.20 CRORES BY MR. SACH IN UPADHAYA TO AND ON BEHALF OF THE APPELLANT CANNOT BE DOUBTED. FURTHER, IT IS NOTICED THAT THE AO IN HIS REMAND RE PORT HAS NOT CONTROVERTED THE PAYMENTS TO THE TUNE OF RS. 2.20 C RORES MADE BY MR. SACHIN UPADHAYA DIRECTLY TO THE SELLER ON BEHALF OF THE APPELLANT; BUT HAS REJECTED THE EXPLANATION ON THE GROUND THAT THE RE IS NO MENTION OF THE FACT IN THE CONVEYANCE DEED THAT THE SAID PAYME NTS WERE MADE BY MR. SACHIN UPADHAYA ON BEHALF OF THE ASSESSEE AND, THEREFORE, THE SAID TRANSACTION IS A BENAMI TRANSACTION. IT IS A STRANG E ASSERTION MADE BY THE AO. I AGREE WITH THE APPELLANT THAT THERE IS NO LEGAL REQUIREMENT THAT THE NAME OF THE LENDER MUST BE COMPULSORILY MENTION ED ON THE SALE DEED, OR THAT THE FACT THAT THE LENDER MADE ANY DIR ECT PAYMENTS TO THE SELLER ON BEHALF OF THE BUYER SHOULD BE STATED IN T HE SALE DEED. IT IS WELL KNOWN THAT IN THE CASE OF HOME LOANS, BANKS INSIST UPON MAKING THE DIRECT PAYMENT TO THE SELLER, BUT NEITHER THE FACT OF PAYMENT NOR THE NAME OF THE BANK AS LENDER ARE RECORDED IN THE SALE DEED. MOREOVER, I ALSO FIND THAT THE APPELLANT HAD DECLARED THE SAME AS LOAN TAKEN FROM MR. SACHIN UPADHAYA IN HIS PERSONAL STATEMENT OF AF FAIRS FURNISHED DURING THE ASSESSMENT PROCEEDINGS, THUS, QUESTION O F THIS BEING A BENAMI TRANSACTION DOES NOT ARISES AS ALLEGED BY TH E AD. THUS, THE SAID PAYMENTS STAND DULY VERIFIED IN RESPECT OF ITS SOUR CE. ACCORDINGLY, THE IDENTITY, GENUINENESS AND CREDITWO RTHINESS OF THE SAID CREDITOR FOR ADVANCING LOAN OF RS. 2.20 CR ORES TO THE APPELLANT STAND PROVED, AND THE ADDITION MADE U/S 68 OF THE A CT IS DELETED. IN THE NET RESULT OUT OF TOTAL ADDITION OF RS. 2,21 ,60,0001- MADE FOR THE SUMS FOUND CREDITED IN THE BANK ACCOUNTS OF THE APPELLANT, SOURCES OF DEPOSITS FOR SUMS TOTALING TO RS. 2,21,2 5,000/- STAND ADEQUATELY EXPLAINED AND THE ADDITION SO MADE U/S 6 8 TO THAT EXTENT IS DELETED, WHILE THE SOURCES OF DEPOSIT FOR THE BALAN CE SUM OF RS. 35,0001- REMAINS UNEXPLAINED AND ADDITION TO THAT EXTENT IS HEREBY CONFIRMED. 29. ADDRESSING GROUND NO.4, THE LD.CIT DR RELYING UPON THE ASSESSMENT ORDER SUBMITTED THAT THE ASSESSEE WAS REQUIRED TO E XPLAIN THE SOURCE OF INVESTMENT IN THE SPECIFIC COMPANIES AND SINCE THE EXPLANATION WAS FOUND TO BE NOT ACCEPTABLE, THE ADDITION HAS BEEN MADE. IN THE SE CIRCUMSTANCES, THE RELIANCE PLACED UPON BY THE CIT(A) ON THE CASH FLOW STATEMENT IT WAS SUBMITTED I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 65 WAS NOT JUSTIFIED. THE REMAND REPORT OF THE AO ALS O IT WAS SUBMITTED ADDRESSES THE FACT THAT SINCE NO EXPLANATION WAS OF FERED AT THE STAGE OF ASSESSMENT PROCEEDINGS THE EXPLANATION NOW OFFERED SHOULD BE DISMISSED AS AN AFTER THOUGHT. 30. THE LD.AR IN REPLY SUBMITTED THAT THE AVAILABILITY OF CASH HAS BEEN ESTABLISHED BY THE CASH FLOW STATEMENT; DATE-WISE C HART OF INFLOW AND OUT FLOW OF LAND IMPREST MONEYS RECEIVED IN CASH AND CHEQUE FOR THE THREE YEARS. THESE HAVE BEEN RELIED UPON AND ARE RECORDED IN THE IMPUG NED ORDER AT PAGE 31 AND 32 AND SUPPORTED BY THE PAPER BOOK ALSO AVAILABLE O N RECORD. IT WAS SUBMITTED THAT THE EVIDENCE OF THE SEIZED MATERIAL ITSELF WOU LD SHOW THAT A SUM OF RS.4,01,000/- HAD BEEN WITHDRAWN FOR PERSONAL UTILI ZATION. FOR READY-REFERENCE, THE SAID SUBMISSION EXTRACTED IN PARA 8.2 IS REPROD UCED HEREUNDER:- 8.2. AR'S SUBMISSIONS: THE AR MADE THE FOLLOWING SUBMISSIONS: 'THE THIRD GROUND OF APPEAL IS TO CHALLENGE THE ACT ION OF THE ASSESSING AUTHORITY IN MAKING AN ADDITION OF RS. 3,32,000/- F OR PURCHASE OF SHARES OF SOME COMPANIES IN CASH. IT WAS AVERRED BY THE ASSESSING AUTHORITY THAT FROM THE DETAILS OF INVESTMENTS MADE BY THE ASSESSEE, IT WAS NOTICED SH ARES OF SOME COMPANIES HAD BEEN BOUGHT FOR RS. 3,32,000/- IN CAS H, BUT FOR WHICH THERE WAS NO CASH OUTFLOW SHOWN IN THE CASH FLOW ST ATEMENT. HENCE, THE SAME WAS ADDED AS INCOME FROM UNDISCLOSED SOURCES. IN THIS REGARD IT IS SUBMITTED THAT THE APPELLANT H AD FURNISHED A CASH FLOW STATEMENT FOR THE RELEVANT PREVIOUS YEAR CONTA INING THE SUMMARY OF ALL CASH AND BANK TRANSACTIONS, PHOTOCOPY OF WHICH HAS ALREADY BEEN FURNISHED VIDE PARA NO. 2.3 HEREIN ABOVE, WHERE THE SAID INVESTMENTS WERE CLEARLY SHOWN AS OUTFLOW IN SCHEDULE 'C' OF IN VESTMENTS ATTACHED THERETO. THUS, IT IS NOT UNDERSTOOD HOW THE SAME HA S BEEN AVERRED BY THE ASSESSING AUTHORITY AND THE ADDITION MADE. FURTHER, A DATE-WISE CHART OF INFLOW AND OUTFLOW OF LAND IMPREST MONEYS RECEIVED BY THE APPELLANT BOTH IN CASH AND BY CHEQU ES FOR 3 YEARS DURING THE PERIOD FROM 01/04/05 TO 31/03/08 FROM SANRAJ AN D ATS IS ENCLOSED FOR YOUR KIND PERUSAL. THE SAID AVAILABILITY OF CAS H BALANCE HAS BEEN EXPLAINED AT LENGTH IN RESPECT OF GROUND NO. 3 TAKE N FOR THE AY 2006-07, WHICH ALSO MAY KINDLY BE REFERRED TO. FURTHER, IT I S CATEGORICALLY STATED THAT THE SAID CHART HAS BEEN PREPARED ON THE BASIS OF SEIZED MATERIAL, BANK STATEMENTS AND CORROBORATIVE EVIDENCES ONLY. A PERUSAL OF THE SAID CHART SHOWS THAT A SUM OF RS. 4,01,000/- HAD BEEN W ITHDRAWN FOR I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 66 PERSONAL UTILIZATION OUT OF THE OPENING CASH BALANC E OF RS. 40 LACS APPROX. AS ON 1/4/06. THE ABOVE INVESTMENTS IN SHARES WERE MADE FROM THE SAID SUM OF RS. 4,01,000/- SUBSEQUENTLY BY THE APPELLANT AS UNDER: DATE AMOUNT (RS.) COMPANY'S NAME 10/10/06 1,00,000 GMS BUILDERS 10/10/06 1,00,000 TG BUILDTECH 25/10/06 32,000 SM HOSPITALITY 17/02/07 1,00,000 SMP DEVELOPERS TOTAL 3,32,000 HENCE, THE APPELLANT HAD SUFFICIENT FUNDS AVAILABLE IN CASH FOR MAKING THE SAID INVESTMENTS AND THE ADDITION SO MADE SHOUL D BE DELETED. 30.1. INVITING ATTENTION TO THE RE-JOINDER OF THE REMAND REPORT IT WAS SUBMITTED THAT THE AOS VERSION WAS ASSAILED AND IT HAD BEEN SUBMITTED THAT THE EXPLANATION WAS OFFERED AT THE ASSESSMENT STAGE AND THE STATEMENT OF AFFAIRS FILED BEFORE THE AO DULY EXPLAINED AND IN THE REMAN D PROCEEDINGS ALSO THESE WERE AGAIN GOT VERIFIED BY THE AO. IT WAS SUBMI TTED THAT FOR SOME REASON KNOWN TO THE AO HIMSELF HE NOW DOES NOT WANT TO NO W REFER TO THEM. RELIANCE WAS PLACED UPON THE IMPUGNED ORDER . 31. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. CONSIDERING THE ARGUMENTS ADVANCE ON BE HALF OF THE REVENUE, AND THE SUBMISSION OF THE LD. AR, WE FIND THAT NO INF IRMITY HAS BEEN POINTED OUT BY THE CIT DR IN THE FINDING RECORDED. IT IS SEEN THA T THE OBSERVATION IN THE REMAND REPORT THAT NO EXPLANATION WAS OFFERED DURIN G THE ASSESSMENT STAGE HAS BEEN REBUTTED BY THE ASSESSEE IN ITS RE-JOINDER AS REPRODUCED FROM THE IMPUGNED ORDER:- 8.4. AR'S REJOINDER: 'IT IS AN INCORRECT ASSERTION OF THE AO THAT NO EXP LANATION WAS GIVEN IN THE ASSESSMENT PROCEEDINGS. THE SAID INVESTMENTS WE RE DULY DECLARED IN THE STATEMENT OF AFFAIRS AND EXPLAINED TO THE AO FR OM THE FUND FLOW STATEMENT. MOREOVER, THE SOURCES OF THE SAME WERE A GAIN GOT VERIFIED FROM THE AO DURING THE REMAND PROCEEDINGS WITH THE EXTENDED CASH FLOW STATEMENT. THUS, THE SAID ADDITION MUST BE DELETED. ' I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 67 31.1. THE EXTENDED CASH FLOW STATEMENT HAS BEEN EXPLAINED AS AMPLIFICATION OF DETAILS ALREADY AVAILABLE ON RECORD BY WAY OF SEIZE D DOCUMENTS. IN THE ABSENCE OF ANY REBUTTAL ON FACTS AND FINDING OURSELVES IN A GREEMENT WITH THE CONCLUSION AND THE REASONING, THE FOLLOWING FINDING IN PARA 8. 5 OF CIT(A) IS UPHELD. THE SAME IS REPRODUCED HEREUNDER FOR READY-REFERENCE:- 8.5. DECISION AND REASONS THEREFOR: I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. DURING THE ASSESSMENT PROCEEDINGS THE AP PELLANT HAD FURNISHED A CASH FLOW STATEMENT SHOWING SOURCES OF FUNDS AND APPLICATIONS THEREOF FOR ALL BANK AND CASH TRANSACT IONS UNDERTAKEN BY HIM DURING THE RELEVANT PREVIOUS YEAR. IN ORDER TO PROVE HIS EXPLANATION THAT CASH DEPOSIT INTO THE BANK ACCOUNT OR CASH WIT HDRAWAL MADE FROM THE SAME DID NOT AFFECT THE OVERALL FUND POSITION O F THE APPELLANT SINCE THE SAID CASH FLOW STATEMENT WAS A COMBINED STATEME NT FOR BOTH CASH AND BANK TRANSACTIONS CONSIDERED TOGETHER, THE APPE LLANT HAS FURTHER SUPPLIED THE INDEPENDENT SUMMARIES OF ALL BANK ACCO UNTS AND CASH ACCOUNT FOR THE YEAR AND ALSO AN EXPANDED CASH FLOW STATEMENT CARRYING THE CASH DEPOSIT AND WITHDRAWAL TRANSACTIONS AS WEL L THEREIN. DURING THE APPELLATE PROCEEDINGS, ALL TRANSACTIONS RECORDED TH EREIN WERE VERIFIED AND TALLIED WITH THE ORIGINAL CASH FLOW STATEMENT S UBMITTED IN THE ASSESSMENT PROCEEDINGS AS WELL AS BANK STATEMENTS / PASSBOOKS OF THE APPELLANT FOR THE YEAR. NO DISCREPANCY OF ANY KIND WAS FOUND THEREIN AND THE CASH DEPOSITS WERE ALSO VERIFIED AS FUND AP PLICATIONS IN CASH RESULTING INTO CORRESPONDING FUND ACCRUALS IN THE B ANK ACCOUNTS. THE APPELLANT ALSO PRODUCED A FUND ROTATION CHART F ROM 01-04-05 TO 31- 03-08 CONTAINING ALL CASH AND BANK TRANSACTIONS UND ERTAKEN BY HIM ON BEHALF OF VARIOUS BUILDERS ON ACCOUNT OF IMPREST GI VEN BY THEM FOR PROCUREMENT OF LAND ON THEIR BEHALF. THE SAME WAS V ERIFIED FROM HIS BANK STATEMENTS / PASSBOOKS AND CASH ACCOUNT IN RES PECT OF EACH TRANSACTION RECORDED THEREIN AND IT WAS FOUND THAT THERE WAS SUFFICIENT CASH BALANCE AVAILABLE ON ALL DATES DURING THE SAID THREE YEAR PERIOD WITH THE APPELLANT WHENEVER ANY CASH PAYMENT HAD BE EN MADE. A PERUSAL OF THE SAME FURTHER REVEALED THAT THE APP ELLANT HAD CASH AVAILABILITY OF RS. 39.41 LACS AS ON 31-03-06 OUT O F THE CASH OF RS. 1.85 CRORES RECEIVED FROM M/S SANRAJ HEALTH SERVICES (P) LTD., OUT OF WHICH A SUM OF RS. 4.01 LACS WAS WITHDRAWN IN CASH ON 01-04 -06 FOR SELF UTILIZATION FROM WHICH THE SAID INVESTMENTS TOTALIN G TO RS. 3.32 LACS DURING THE FY 2006-07. MOREOVER, THE STATEMENT OF A FFAIRS AS ON 31-03-07 OF THE APPELLANT ALSO SHOWED THE SAID INVESTMENTS I N SHARES OF THE COMPANIES TOTALING TO RS. 3.32 LACS. ACCORDINGLY, T HE SOURCE OF INVESTMENT IN SHARES OF RS. 3.32 LACS STANDS FULLY EXPLAINED A ND THE ADDITION SO MADE U/S 69 OF THE ACT IS DELETED. 32. ADDRESSING GROUND NO.5, THE CIT DR SUBMITTED THAT THE SEIZED LAPTOP REFLECTED CERTAIN TRANSACTIONS PERTAINING TO THE YE AR UNDER CONSIDERATION. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 68 RELYING UPON THE ASSESSMENT ORDER IT WAS HER SUBMIS SION THAT SINCE THESE PERTAINED TO TRANSACTIONS NOT FOUND RECORDED IN THE BOOKS OF ACCOUNTS, THE ADDITION ON FACTS WAS JUSTIFIED. THE EXPLANATION O FFERED BEFORE THE CIT(A) IT WAS SUBMITTED HAS CORRECTLY BEEN TREATED BY THE AO AS A N AFTER THOUGHT. IT WAS HER ARGUMENT THAT THE FACTS AND THE SUBMISSIONS MAY NE ED TO BE VERIFIED AND THE ISSUE MAY BE RESTORED BACK. 33. THE LD.AR OBJECTED TO THE REQUEST MADE. IT WAS SU BMITTED THAT ALL ALONG THE ASSESSEE HAS BEEN CONSIDERED TO BE A FACILITATO R FOR CONSOLIDATING PURCHASE OF LANDS AT DEHRADUN. THIS POSITION ACCEPTED BY TH E ASSESSEE AS WELL AS THE DEPARTMENT. IT WAS SUBMITTED THAT IT IS ALSO AN AC CEPTED FACT THAT THE ASSESSEE WAS WORKING ALONGWITH MR. SACHIN UPADHAYA FOR VARIO US BUILDERS AT DIFFERENT POINTS OF TIME WHO WERE CONTEMPLATING PURCHASING LA NDS. THE BUILDER GROUPS ACCORDINGLY, IT WAS SUBMITTED WOULD UTILIZE THE SER VICES OF THE ASSESSEE FOR CONSOLIDATING. ACCORDINGLY THE RECEIPT OF FUNDS IN ITIALLY FROM M/S SANRAJ HEALTH SERVICES PVT. LTD.; RPS GROUP; PRATEEK GROUP AND UL TIMATELY ATS WHO FINALLY ENTERED THE PICTURE ALL STANDS ADDRESSED. THE RECO RD OF RECEIPT OF FUNDS IN THE BANK ACCOUNT OF THE ASSESSED FROM THE BANK ACCOUNTS OF THESE BUILDER GROUP AT DIFFERENT POINTS OF TIME IS A FACT ON RECORD; THE P URPOSE FOR ADVANCING THE LOANS STANDS ACCEPTED BY THE AO AND THE CONCLUSION IS NOT DISPUTED BY THE ASSESSEE. ACCORDINGLY THE EXPLANATION OF THE ASSESSEE, ADDRES SING THE SEIZED DOCUMENTS, RECORDINGS IN THE BANK STATEMENTS AND OTHER SUPPORT ING EVIDENCES AVAILABLE ON RECORD CANNOT ALL BE IGNORED BY THE REVENUE AND MER ELY EXPLAINED AWAY AS AN AFTER THOUGHT. THE INFIRMITY IF ANY IN THE EVIDENC ES HAS TO BE ARGUED AND DEMONSTRATED. IN THE FACTS WHERE ADMITTEDLY THE AO HAS BEEN GIVEN MORE THAN ADEQUATE TIME AND EVEN TODAY THESE EVIDENCES ARE AV AILABLE IN THE PAPER BOOK FILED THE RELUCTANCE OF THE REVENUE TO POINT OUT AN Y INFIRMITY AND MERELY ARGUE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 69 THAT MORE TIME IS REQUIRED WAS STRONGLY OPPOSED BY HIM. IT WAS SUBMITTED THAT IF A REMAND IS DIRECTED IT WOULD AMOUNT TO MAKING A FARCE OF JUSTICE. THE RE- JOINDER OF THE ASSESSEE AVAILABLE IN PARA 9.4 AND T HE SUBMISSIONS ADVANCED WHICH HAVE BEEN EXTRACTED IN PARA 9.2 WERE HEAVILY RELIED UPON IN SUPPORT OF THE FINDING ARRIVED AT IN PARA 9.5. FOR READY-REFERENC E, PARA 9.2 TO 9.4 ARE REPRODUCED HEREUNDER:- 9.2. AR'S SUBMISSIONS: THE AR MADE THE FOLLOWING SUBMISSIONS: 'THE NEXT GROUND OF APPEAL IS TO CHALLENGE THE ACTI ON OF THE ASSESSING AUTHORITY IN MAKING AN ADDITION OF RS. 2,20,12,080/ - FOR CASH PAYMENTS MADE ON ACCOUNT OF LAND TRANSACTIONS OF THIRD PARTI ES. IT WAS AVERRED BY THE ASSESSING AUTHORITY THAT ONE OF THE FILES FOUND IN THE LAPTOP COMPUTER OF THE ASSESSEE SEIZED VIDE ANN EXURE A-I, CONTAINED CERTAIN DATA OF FINANCIAL TRANSACTIONS IN RESPECT O F PURCHASE / SALE OF LAND. IT WAS ASSERTED BY THE ASSESSING AUTHORITY TH AT THE FACT THAT THE SAID DATA PERTAINED TO THE ASSESSEE WAS EVIDENT SIN CE SOME OF THE PAYMENTS RECORDED THEREIN HAD BEEN MADE BY THE ASSE SSEE THROUGH CHEQUES TO VARIOUS PERSONS ON VARIOUS DATES, WHICH TALLIED WITH THE BANK STATEMENTS OF THE ASSESSEE. FURTHER, IT WAS AVERRED THAT CERTAIN CASH PAYMENTS MADE BY THE ASSESSEE WERE ALSO FOUND RECOR DED THEREIN BESIDES THE SAID CHEQUE PAYMENTS, BUT THE SAME WERE NEITHER FOUND RECORDED IN THE CASH FLOW STATEMENT SUBMITTED BY TH E ASSESSEE NOR ITS SOURCES WERE EXPLAINED. ACCORDINGLY, AN ADDITION WA S MADE BY THE ASSESSING AUTHORITY FOR CASH PAYMENTS TOTALING TO R S. 2,20,12,080/- FOR THE RELEVANT PREVIOUS YEAR RECORDED THEREIN AS EXPE NDITURE MADE FROM UNDISCLOSED SOURCES. IN THIS REGARD A HISTORY IN BRIEF OF THE APPELLANT AND THE DEAL WITH THE A TS GROUP (ATS) VIS-A-VIS THE APPELLANT IS STATED AT AN OUTSET AS UNDER FOR PROPER APPRECIATION OF FACTS AND THE SAID FINANCIAL TRANSACTIONS UNDERTAKEN: IN DECEMBER, 2004, THE APPELLANT ALONG WITH MR. SAC HIN UPADHAYA, HIS CLOSE FRIEND AND ASSOCIATE, ACQUIRED 100% SHARES OF AN EXISTING COMPANY, MLS PRATEEK RESORTS & BUILDERS PVT. LTD. I N EQUAL PROPORTION FOR CARRYING OUT REAL ESTATE ACTIVITIES IN DEHRADUN. IN THE MEANWHILE, AROUND THE MONTHS OF OCTOBER-NOVE MBER, 2004, RPS GROUP OF BUILDERS, BASED IN FARIDABAD, WERE LOOKING AROUND FOR CHEAP LAND FOR THEIR PROPOSED HOUSING PROJECT IN DEHRADU N AND CAME IN CONTACT WITH THE APPELLANT AND MR. SACHIN UPADHAYA, WHO WER E IN A POSITION TO FACILITATE ACQUISITION OF SOME LAND SITUATED IN SOM E PRIME AREA IN DEHRADUN FOR THEM. AN UNDERSTANDING WAS REACHED WIT H THEM IN DECEMBER, 2004 AND MLS PRATEEK RESORTS & BUILDERS P VT. LTD. (PRATEEK) STARTED BUYING LAND THEREAFTER AT THE BEHEST OF MLS RPS ASSOCIATES (RPS). AS EXPLAINED ABOVE, IT IS A STANDARD PRACTICE WITH BUILDERS THAT THEY DO NOT COME IN THE FORE FRONT IN THE INITIAL STAGES OF LAND ACQUISITION SINCE THE SELLERS OF LAND START DEMANDING EXCESSIVE PRICES FR OM THEM. HENCE, I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 70 PRATEEK'S NAME WAS USED BY RPS. AROUND 155 BIGHAS O F LAND GOT ACQUIRED FOR RPS ULTIMATELY BY PRATEEK FOR DEVELOPM ENT OF A RESIDENTIAL COLONY BY RPS. IN FACT, THE ENTIRE FUNDING REQUIRED FOR THE ACQUISITION OF LAND WAS PROVIDED BY RPS BY WAY OF ADVANCING LOAN T O THE SAID COMPANY IN DECEMBER, 2004 ITSELF. BUT IN ORDER TO P ROTECT ITS INTEREST, RPS NOMINATED ITS OWN PERSONS AS DIRECTORS IN THE BOARD OF THE SAID COMPANY AND SUBSEQUENTLY REMOVED THE EXISTING DIRECTORS FRO M ITS BOARD, THUS, WIELDING 100% CONTROL OVER ITS BOARD; WHILE THE SHA RES IN THAT COMPANY CONTINUED TO REMAIN IN THE NAMES OF THE APPELLANT A ND MR. SACHIN UPADHAYA, WHO FACTUALLY WERE MERELY ACTING AS THE F ACILITATORS I MEDIATORS FOR ACQUIRING LAND FOR RPS AND THEIR REMU NERATION WAS AGREED TO BE GIVEN BY RPS AS PART OF PURCHASE CONSIDERATIO N FOR THE SHARES OF PRATEEK HELD BY THEM, WHICH WERE TO BE SOLD TO RPS JUST BEFORE THE CONSTRUCTION ACTIVITY WAS TO BE COMMENCED ON THAT P IECE OF LAND. HOWEVER, RPS LATER DECIDED TO WITHDRAW FROM THE PRO JECT IN JANUARY, 2006 AND ROPED IN THE ATS GROUP INSTEAD TO TAKE IT OVER FROM THEM. ACCORDINGLY, IT WAS DECIDED IN FEBRUARY, 2006 THAT A TS SHALL TAKEOVER THE OWNERSHIP, MANAGEMENT AND CONTROL OF MLS PRATEE K RESORTS & BUILDERS PVT. LTD. BY PURCHASING ITS SHARES HELD BY THE APPELLANT AND MR. SACHIN UPADHAYA. IN THIS MANNER THE APPELLANT AND M R. SACHIN UPADHAYA CAME IN THE CONTACT WITH THE A TS GROUP FO R THE FIRST TIME. SINCE ATS WAS A LARGE GROUP OF BUILDERS AND EO IONI ZERS, THEY WANTED A BIGGER CHUNK OF LAND HAVING AN AREA OF AROUND 250 B IGHAS FOR ACHIEVING THE FINANCIAL VIABILITY OF THEIR HOUSING PROJECT IN DEHRADUN, AND SINCE THE APPELLANT AND HIS ASSOCIATE WERE IN A POSITION TO O BTAIN THE ADJOINING PIECES OF THE SAID LAND AS WELL, THEIR SERVICES WER E REQUISITIONED FOR FURTHER CONSOLIDATION OF THE DESIRED ADJOINING AREA S BY ATS. HOWEVER, IN ORDER THAT THE APPELLANT AND HIS ASSOCI ATE DO NOT BACK OUT FROM THEIR COMMITMENT, A TS MADE THEM THE DIRECTORS OF MZS PRATEEK RESORTS & BUILDERS PVT. LTD. AND ALSO NOMINATED TWO MORE DIRECTORS TO ITS BOARD SUBSEQUENTLY WHILE REMOVING ALL OTHER EXISTIN G DIRECTORS OF RPS IN THE PROCESS OF ACQUISITION OF THAT COMPANY. WHEREAS THE TRUE CONTROL AND MANAGEMENT OF THE SAID COMPANY FULLY VESTED IN THE TWO DIRECTORS OF A TS NOW FOR ALL PRACTICAL PURPOSES AND THE APPELLANT AND HIS ASSOCIATE WERE JUST POSITIONED AS DORMANT DIRECTORS IN THE BO ARD. THUS, THE APPELLANT AND MR. SACHIN UPADHAYA HAD ONLY LENT THE IR NAMES AND WERE IN NO MANNER CONTROLLING THE AFFAIRS OF THAT COMPAN Y. NOT ONLY THIS, ATS FURTHER ENSURED THEIR CONTINUED ASSISTANCE TO THE C OMPANY FOR ACQUISITION OF THE ADJOINING LAND BY MAKING THEM AGREE TO SELL THEIR SHARES OF MLS PRATEEK RESORTS & BUILDERS PVT. LTD. TO A TS IN A P HASED MANNER SPREAD OVER A PERIOD OF TIME, THOUGH THE TOTAL PRICE OF TH OSE SHARES WAS PRE-FIXED IN FEBRUARY, 2006 ITSELF BASED ON THE VALUATION OF LAND PREVAILING AT THAT POINT OF TIME. THE SAID SHARES WERE SUBSEQUENTLY TR ANSFERRED IN PARTS BY THE APPELLANT AND MR. SACHIN UPADHAYA AS DETAILED H EREIN BELOW: NUMBER OF SHARES DATE OF MUKESH SACHIN TOTAL (NUMBER & PERCENTAGE) TRANSFER JOSHI UPADHAYA 21/08/06 2,000 2,000 4,000 40% I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 71 20110106 500 1,000 1,500 15% 14/11/07 1,000 1,000 2,000 20% 08/12/08 1,500 1,000 2,500 25% _______ ________ ________ ________ TOTAL: 5,000 5,000 10,000 100% _______ ________ ________ ________ DURING THIS PERIOD, ADJACENT PIECES OF LAND TOTALIN G TO AROUND 100 BIGHAS WERE FURTHER ACQUIRED FOR THE SAID COMPANY THROUGH THE EFFORTS OF THE APPELLANT AND MR. SACHIN UPADHAYA AND THE FINAL LOT OF SHARES WAS GOT TRANSFERRED BY ATS IN ITS FAVOUR. ALSO, THE APPELLA NT AND MR. SACHIN UPADHAYA WERE ALLOWED TO RESIGN FROM THE DIRECTORSH IP OF THE SAID COMPANY IN DECEMBER, 2008 AFTER THEY HAD FULLY REND ERED THEIR COMMITTED SERVICES TO ATS. UNDER THIS BACKGROUND, IT IS SUBMITTED THAT THE SAI D DATA CONTAINED THE PAYMENTS MADE TO PURCHASE LAND ON BEHALF OF MLS PRA TEEK RESORTS & BUILDERS PVT. LTD. BY THE APPELLANT AND HIS ASSOCIA TE, MR. SACHIN UPADHAYA. HOWEVER, THE ASSESSING AUTHORITY PICKED A ND CHOSE THE CONTENTS OF THE SAID DATA TO SUIT HIS OWN CONVENIEN CE IN ORDER TO MAKE THE SAID ADDITION. THE CASH PAYMENTS RECORDED FOR T HE FY 2006-07 OUT THE SAID DATA, FOR WHICH THE ADDITION WAS MADE, HAV E BEEN MENTIONED IN THE ASSESSMENT ORDER AS UNDER BY THE ASSESSING AUTH ORITY, EXCEPT FOR THE LAST COLUMN, WHICH WAS DELIBERATELY IGNORED BY HIM, BUT HAS BEEN REPRODUCED FROM THE SAID SEIZED DOCUMENT: S. CHQUE CASH A/C NO. DATE AMOUNT AMOUNT NAM E OF PERSON HOLDER 1. 17/05/06 4,50,000 7,48,000 ISHAK LAL S 2. 17/05/06 5,25,000 6,35,780 RADHEY SHYAM / KAPIL S 3. 17/05/06 4,00,000 3,75,400 MEENAKASHI BHA RDWAJ S 4. 05/06/06 15,00,000 40,61,900 DEVENDER KUMAR S 5. 11/08/06 19,22,000 98,03,000 SUSHILA DEVI, N ARESH, S YADAVCHAND, DEVENDAR & OTHERS 6. 18/08/06 6,20,000 15,88,000 ANWAR ALI S 7. 18/07/06 10,00,000 18,00,000 ANAND SWAROOP M 8. 19/07/06 10,00.000 30,00,000 SANJAY MOHAN UNIYAL M _________ TOTAL 2,20,12,080 __________ A PHOTOCOPY OF THE PRINT-OUT OF THE SAID DATA SUPPL IED BY THE ASSESSING AUTHORITY IS ENCLOSED. THIS DATA CONTAINS THE FINAN CIAL TRANSACTIONS SPREAD OVER IN TWO FINANCIAL YEARS, I.E., FYS 2005- 06 & 2006-07 AND ALSO STATES THE ACCOUNT HOLDER'S NAME IN THE LAST COLUMN AS 'S' AND 'M' AGAINST EACH ROW. THIS CLEARLY SHOWS THAT THE RESPECTIVE PA YMENTS BY CHEQUE OR IN CASH WERE MADE BY THE SAID ACCOUNT HOLDERS. IT I S NOT VERY DIFFICULT TO DECIPHER WHAT 'S' AND 'M' STAND FOR. WHEREAS 'M' ST OOD FOR MUKESH JOSHI, THE APPELLANT, 'S' STOOD FOR SACHIN UPADHAYA, HIS A SSOCIATE, WHO MADE THE STATED PAYMENTS BY CHEQUES OR IN CASH AS RECORD ED AGAINST THEIR RESPECTIVE NAMES. BUT THE ASSESSING AUTHORITY SIMPL Y CHOSE TO IGNORE THIS VITAL PIECE OF INFORMATION RECORDED THEREIN AND SIM PLY ATTRIBUTED ALL PAYMENTS AS MADE BY THE APPELLANT. THE FACT THAT THE CORRESPONDING PAYMENTS HAD INDEED BEEN MADE BY THE APPELLANT AND MR. SACHIN UPADHAYA CAN BE EASILY ASC ERTAINED FROM THEIR RESPECTIVE BANK ACCOUNTS. A PHOTOCOPY OF THE BANK S TATEMENT OF SB A/C NO. 016401521868 WITH ICICI BANK, DEHRADUN OF MR. S ACHIN UPADHAYA AVAILABLE WITH THE APPELLANT IS ENCLOSED, WHEREIN A LL OF THE ABOVE SAID CHEQUE PAYMENTS MADE TO THE SAID PARTIES AT SERIAL NUMBERS 1 TO 6 ARE DULY RECORDED. MOREOVER, IT CAN BE VERIFIED THAT TH E SAID PAYMENTS HAD I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 72 NOT BEEN MADE BY THE APPELLANT FROM ANY OF HIS BANK ACCOUNTS. PHOTOCOPIES OF THE PASSBOOKS I STATEMENTS OF ALL BA NK ACCOUNTS FOR THE YEAR OF THE APPELLANT HAVE ALREADY BEEN FURNISHED V IDE PARA NO. 2.3 HEREIN ABOVE. THUS, UNDISPUTEDLY THE IMPUGNED CHEQU ES WERE PAID BY MR. SACHIN UPADHAYA AND EVEN THE CASH PAYMENTS RECO RDED AGAINST HIS NAME WERE MADE BY HIM ONLY AND NOT THE APPELLANT. IT IS NOT UNDERSTOOD HOW THE ASSESSING AUTHORITY HA S AVERRED THAT THE CHEQUE PAYMENTS HAD BEEN VERIFIED AS MADE FROM THE APPELLANT'S BANK ACCOUNT, WHEN NOT A SINGLE CHEQUE PAYMENT NOTED BY HIM AT SERIAL NUMBERS 1 TO 6 ABOVE WAS MADE FROM THE BANK ACCOUNT S OF THE APPELLANT AND ESPECIALLY WHEN ALL PAYMENTS ON THE STATED DATE S IN RESPECT OF THE SAID PARTIES HAD FACTUALLY BEEN MADE BY MR. SACHIN UPADHAYA FROM HIS OWN BANK ACCOUNT. THUS, THERE IS NO MERIT IN THE SA ID AVERMENT OF THE ASSESSING AUTHORITY WHO, FOR THE REASONS BEST KNOWN TO HIM, SIMPLY PRESUMED THAT THE ENTIRE CASH PAYMENT WAS MADE BY T HE APPELLANT WITHOUT EVEN CONFRONTING MR. SACHIN UPADHAY IN THIS REGARD OR EVEN WITHOUT BRINGING ON RECORD THE OUTCOME OF SUCH CONF RONTATION, IF ANY MADE. IN RESPECT OF THE PAYMENTS MADE TO THE PARTIES AT S ERIAL NUMBERS 7 & 8 ABOVE, AGAINST WHICH 'M', I.E THE NAME OF THE APPEL LANT IS RECORDED, IT IS SUBMITTED THAT THE SAME HAD INDEED BEEN MADE BY THE APPELLANT. THE STATED CHEQUES TO THE SAID PARTIES WERE ISSUED FROM THE SB A/C # 21848 WITH ICICI BANK, DEHRADUN OF THE APPELLANT AND SO W ERE THE STATED SUMS OF RS. 18 LACS ON 18/07/06 AND RS. 30 LACS ON 19107 /06 PAID IN CASH TO ANAND SWAROOP AND SANJAY MOHAN UNIYAL RESPECTIVELY BY THE APPELLANT. A SUM OF RS. 15.51 LAC WAS GIVEN BY ATS IN CASH ON 1817/06 AT DEHRADUN FOR THE PURPOSE OF PAYING THE SAID SUM OF RS. 48 LACS IN CASH TO THE SAID LAND SELLERS AND THE BALANCE SUM OF RS. 32.49 LACS WAS PAID BY THE APPELLANT OUT OF THE BALANCE OF NEARLY RS. 4 0 LACS LEFT IN CASH FROM LAND PURCHASE IMPREST RECEIVED FROM SANRAJ HEALTH S ERVICES (P) LTD. LAST YEAR. IN FACT, THE BALANCE SUM OF RS. 32.49 LACS WA S LATER DEPOSITED IN CASH BY A TS IN THE AXIS BANK AC COUNT OF THE APPELLANT, HENCE, SQUARING UP ITS CASH IMPREST ACCO UNT WITH THE APPELLANT. A DATE-WISE CHART OF INFLOW AND OUTFLOW OF LAND IMP REST MONEYS RECEIVED BY THE APPELLANT BOTH IN CASH AND BY CHEQUES FOR 3 YEARS DURING THE PERIOD FROM 01/04/05 TO 31103/08 FROM SANRAJ AND A TS HAS ALREADY BEEN FURNISHED VIDE PARA NO. 4.3 HEREIN ABOVE FOR Y OUR KIND PERUSAL AND APPRECIATION OF THE FACTS STATED ABOVE. A PERUSAL OF THE SAME REVEALS THAT THE APPELLANT HA D LAND IMPREST CASH BALANCE OF RS. 35,40,5001- ON 1817/06 AND ANOTHER S UM OF RS. 15,51,0001- WAS FURTHER RECEIVED ON 1817/06 IN CASH FROM A TS, FROM WHICH THE CASH PAYMENT OF RS. 18 LACS ON 1817/06 TO MR. ANAND SWAROOP AND RS. 30 LACS ON 1917/06 TO MR. SANJAY MO HAN UNIYAL WERE MADE BY THE APPELLANT. THE ASSESSING AUTHORITY HAS ASSERTED THAT THE SAID FINANCIAL DATA PERTAINED TO THE APPELLANT SINCE SOME TRANSACTIONS MENTIONED THEREIN AS PAYMENTS MADE BY THE APPELLANT THROUGH CHEQUES TO V ARIOUS PERSONS ON VARIOUS DATES TALLIED WITH THE BANK STATEMENTS. ACC ORDINGLY, IT WAS UNDERSTOOD BY THE ASSESSING AUTHORITY THAT THE CASH PAYMENTS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 73 MENTIONED THEREIN HAD ALSO BEEN MADE BY THE APPELLA NT. IN THIS REGARD IT IS SUBMITTED THAT INDEED THE SAID PRESUMPTION OF TH E ASSESSING AUTHORITY THAT 'WHOEVER PAID BY CHEQUES MUST HAVE PAID IN CAS H AS WELL' APPEARS TO BE JUSTIFIED. BUT ITS APPLICATION OR ITS COROLLA RIES IN FAVOUR OF THE APPELLANT SHOULD NOT HAVE BEEN IGNORED BY THE ASSES SING AUTHORITY. IF THE SAID LOGIC IS TO BE APPLIED THEN THERE SHOULD BE NO HESITATION IN ADMITTING THE PLEA OF THE APPELLANT THAT CASES WHERE CHEQUE P AYMENTS HAD BEEN MADE BY MR. SACHIN UPADHAYA, EVEN THE CASH PAYMENTS MUST HAVE BEEN MADE BY HIM ALONE. ALSO, APPLYING THE SAME LOGIC, W HEN UNDISPUTEDLY A TS HAD PROVIDED FUNDS BY CHEQUES TO THE APPELLANT F OR PURCHASE OF LANDS, THEN EVEN CASH REQUIRED FOR THE SAID PURPOSE MUST HAVE BEEN GIVEN TO THE APPELLANT BY A TS ALONE. THUS, THE SAI D RECEIPT OF RS. 15.51 LACS IN CASH ON 18/7/06 AND DEPOSIT OF THE BALANCE SUM OF RS. 32.49 LAC (AS PER GROUND NO. 1 ABOVE) IN CASH BY A TS SUBSEQU ENTLY MUST BE ACCEPTED ON THE BASIS OF THIS CIRCUMSTANTIAL I CORR OBORATIVE EVIDENCE. THUS, TO SUM UP, IT IS STATED THAT ONLY A SUM OF RS . 48 LACS HAD BEEN PAID IN CASH BY THE APPELLANT TO THE PARTIES LISTED IN THE SAID SEIZED DOCUMENTS FROM LAPTOP AND NOT THE SUM OF RS. 2,20,1 2.0801- AS ALLEGED BY THE ASSESSING AUTHORITY. WHEREAS ALL OTHER REMAI NING PAYMENTS IN CASH OR BY CHEQUE WERE MADE BY MR. SACHIN UPADHAYA AS EXPLAINED ABOVE. MOREOVER, THERE WAS SUFFICIENT CASH BALANCE AVAILABLE WITH THE APPELLANT AS EXPLAINED FOR MAKING PAYMENTS OF RS. 4 8 LACS TO THE ABOVE SAID TWO PARTIES, THUS, EVEN THE SOURCE FOR PAYING THE SAME STAND FULLY EXPLAINED. THEREFORE, THE ADDITION OF RS. 2,20,12,0 80/- SHOULD BE DELETED. 34. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IN THE FACE OF THE CONSISTENT STAND OF THE ASSESSEE AND THE SUBMISSION ADVANCED ON FACTS ADDRESSING THE SEIZED DOCUMENTS ALONGWITH THE ENTRIES RECORDED IN THE BANK ACCOUNTS AND CONSIDERI NG THE EXPLANATION GIVEN IN THE RECORDINGS MADE THEREIN WE FIND OURSELVES IN AG REEMENT WITH THE CONCLUSIONS DRAWN. THE RECORDING OF S IN THE LA ST COLUMN WE AGREE INDICATES SACHIN UPADHAYA AND M INDICATES MUKESH JOSHI I.E THE ASSESSEE AND THE DOCUMENT WHEN READ ALONGWITH THE COPY OF THE SPECIF IC BANK ACCOUNT 21848 WITH ICICI BANK, DEHRADUN OF SACHIN UPDHAYA AND THE ISSUANCE OF CHEQUES OF RS.18 LACS ON 18.07.2006 AND RS.30 LACS ON 19/07/06 PAID IN CASH TO ANAND SWAROOP AND SANJAY MOHAN UNIYAL. WE FIND THE CONCL USION DRAWN HAS TO BE UPHELD. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 74 34.1. ACCORDINGLY ON A CONSIDERATION OF THE ENTIRETY OF T HE FACTS AND CIRCUMSTANCES OF THE CASE AND CONSIDERING THE EVIDE NCE ON RECORD WE FIND OURSELVES IN AGREEMENT WITH THE FOLLOWING DETAILED FINDING ON FACTS BY THE CIT(A). THUS IN THE ABSENCE OF ANY INFIRMITY POINTED OUT B Y THE REVENUE THE SAME IS UPHELD:- 9.5 DECISION AND REASONS THEREFOR : I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT. IT IS SEEN FROM THE DATA IN THE PRIN T-OUT OF THE DATA RETRIEVED FROM THE LAPTOP OF THE APPELLANT THAT IT CONTAINS THE FINANCIAL TRANSACTIONS SPREAD OVER IN TWO FINANCIAL YEARS, I. E., FY S 2005-06 & 2006-07 AND ALSO STATES THE ACCOUNT HOLDER'S NAME I N THE LAST COLUMN AS'S' AND 'M' AGAINST EACH ROW. IT WAS EXPLAINED TH AT 'M' STOOD FOR MUKESH JOSHI, THE APPELLANT, 'S' STOOD FOR SACHIN U PADHAYA, HIS ASSOCIATE; AND THAT THE RESPECTIVE PAYMENTS BY CHEQ UE OR IN CASH WERE MADE BY THE SAID ACCOUNT HOLDERS. THE AO HAS STATED IN THE ASSESSMENT ORDER THAT THE CHEQUE PAYMENTS HAD BEEN VERIFIED AS MADE FROM THE APPELLA NT'S BANK ACCOUNT. ON VERIFICATION OF THE BANK ACCOUNTS OF THE APPELLA NT FOR THE RELEVANT PREVIOUS YEAR, IT WAS SEEN THAT THE IMPUGNED CHEQUE PAYMENTS LISTED AT SI. NOS. 7 & 8 IN THE ASSESSMENT ORDER HAD BEEN MAD E FROM THE BANK ACCOUNT OF THE APPELLANT; AND THE PHOTOCOPY OF THE BANK STATEMENT OF SB A/C NO.016401521868 WITH ICICI BANK, DEHRADUN OF MR . SACHIN UPADHAYA, PROVIDED BY THE APPELLANT, FURTHER REVEAL ED THAT THE CHEQUE PAYMENTS LISTED AT SI. NOS. 1 TO 6 IN THE ASSESSMEN T ORDER HAD BEEN MADE BY MR. SACHIN UPADHAYA FROM HIS BANK ACCOUNT. FURTHER ON VERIFICATION OF THE ABOVE FACTS FROM THE IMPUGNED DATA SHEET IT IS SEEN THAT IN THE LAST COLUMN UNDER TH E HEAD 'ACCOUNT HOLDER' S' HAD BEEN DISTINCTLY TYPED AGAINST PAYMENTS LISTE D AT SL. NOS. 7 & & 8 BY THE AO IN HIS ASSESSMENT ORDER. THUS, THE CONTEN TION OF THE APPELLANT THAT HE WAS ACCOUNTABLE ONLY FOR THE PAYMENTS LIST ED AGAINST HIS OWN NAME IN THE IMPUGNED DATA SHEET SINCE ONLY THOSE P AYMENTS HAD BEEN MADE BY HIM HAS A LOT OF FORCE BECAUSE THE SAME GE TS SQUARELY VERIFIED FROM THE BANK ACCOUNTS OF THE APPELLANT AND MR. SA CHIN UPADHAYA. FURTHERMORE, I ALSO FIND FORCE IN THE ARGUMENT OF T HE APPELLANT THAT MR. SACHIN UPADHAYA WAS ALSO COVERED IN THE SAME SEARCH AND THE SAID FACTS COULD WELL HAVE BEEN ASCERTAINED FROM HIS BAN K ACCOUNTS BY THE AO, WHO HAPPENED TO BE THE SAME OFFICER AS IN THE CASE OF THE APPELLANT; AND WHOSE ASSESSMENTS WERE ALSO COMPLETE D U/S 153A OF THE ACT FOR THE SAME SEARCH PERIOD ON THE SAME DATE ; BUT NOTHING IN THIS REGARD WAS STATED IN THE RELEVANT ASSESSMENT ORDER OF THE APPELLANT BY THE AO. IN VIEW OF THE ABOVE VERIFICATION OF RECORD, THERE REMAINS NO DOUBT IN MY MIND THAT ONLY THE LAST TWO IMPUGNED PAYMENTS OUT OF THE EIGHT LISTED BY THE AO IN THE ASSESSMENT ORDER HAD BEEN M ADE FROM THE BANK ACCOUNTS OF THE APPELLANT IN RESPECT OF THE CHEQUE AMOUNTS AND, THUS, IT CAN BE SAFELY CONCLUDED THAT EVEN THE CASH PAYMENTS RECORDED AGAINST HIS NAME WERE MADE BY THE APPELLANT, WHEREAS THE FI RST SIX LISTED I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 75 PAYMENTS BY CHEQUES AS WELL AS IN CASH HAD BEEN MAD E BY MR. SACHIN UPADHAYA ONLY AND NOT THE APPELLANT. THUS, THERE IS NO MERIT IN THE AVERMENT OF THE ASSE SSING AUTHORITY THAT ALL IMPUGNED CASH PAYMENTS HAD BEEN MADE BY TH E APPELLANT; WITHOUT CONFRONTING MR. SACHIN UPADHAY IN THIS REGA RD OR BRINGING ON RECORD THE OUTCOME OF SUCH CONFRONTATION MADE, IF A NY. ACCORDINGLY, IT IS HELD THAT ONLY TWO CASH PAYMENTS OF RS. 18 LACS TO MR. ANAND SWAROOP ON 18-07-06 AND RS. 30 LACS TO MR. SANJAY MOHAN UNIYAL ON 19-07-06 HAD BEEN MADE BY THE APPEL LANT OUT OF THE TOTAL PAYMENT OF RS. 2,20,12,080/- LISTED BY THE AO IN THE ASSESSMENT ORDER; AND THE APPELLANT WAS ANSWERABLE TO PROVE TH E SOURCE OF PAYMENT ONLY IN RESPECT OF RS. 48 LACS PAID IN CASH. IN RESPECT OF THE SOURCE OF PAYMENT OF RS. 48 LAC S PAID IN CASH, IT WAS EXPLAINED BY THE APPELLANT THAT THE SAID SUM HAD BEEN PAID TO THE TWO LAND OWNERS AGAINST PURCHASE OF LAND FOR AND ON BEHALF OF M/S PRATEEK RESORTS & BUILDERS (P) LTD. OF ATS GROUP FO R WHICH RS. 15.51 LACS WAS GIVEN BY ATS IN CASH ON 18-07-06 AT DEHRA DUN AND THE BALANCE SUM OF RS. 39.41 LACS LEFT IN CASH FROM LA ND PURCHASE IMPREST RECEIVED FROM SANRAJ HEALTH SERVICES (P) LTD. LAST YEAR. THE APPELLANT FURNISHED A CASH ROTATION CHART FROM 01-04-05 TO 31 -03-08 IN RESPECT OF THE IMPREST /ADVANCE RECEIVED FOR PROCUREMENT OF LA ND AT DEHRADUN FOR DIFFERENT BUILDERS FOR VERIFICATION OF THE ABOVE FACTS. I HAVE ALREADY HELD IN GROUND NO. 1 FOR THE AY 2007 -08 OF THE ASSESSEE HEREIN ABOVE THAT CASH PAYMENTS FOR PROCU REMENT OF LAND MUST HAVE BEEN PROVIDED BY THE ATS ONLY SINCE THE P LOTS OF LAND WERE UNDISPUTEDLY BEING ACQUIRED BY THE APPELLANT FOR AN D THE TEST OF HUMAN PROBABILITIES SUPPORTS THE CONTENTION OF THE APPELL ANT THAT THE - OF RS. 48 LACS HAD BEEN PAID BY A TS ONLY TO THE APPELLANT FO R PROCURING PLOTS OF LAND ITS BEHALF BECAUSE IT IS UNHEARD OF THAT ANYON E PROVIDING SERVICES WOULD INVEST HIS OWN FUNDS FOR THE BUILDERS AND NOT BE PAID I REIMBURSED BY THEM. FURTHER, I HAVE ALSO HELD IN GROUND NO. 3 IN APPEAL NO. 196/09-10 IN THE CASE OF THE SAME ASSESSEE FOR THE AY 2006-0 7 THAT THE ASSESSEE WAS LEFT WITH A CASH BALANCE OF RS. 39.41 LACS OUT OF RS. 1.85 CRORES RECEIVED BY HIM FROM M/S SANRAJ HEALTH SERVICES (P) LTD., SINCE HE HAD ADVANCED A SUM OF RS. 40 LACS FROM HIS BANK ACCOUNT S TO THE LAND OWNERS FOR AND ON BEHALF OF THAT BUILDER COMPANY. T HUS, THIS SUM OF RS. 39.41 LACS WAS AVAILABLE WITH HIM ON 01-04-06, OUT OF WHICH THE APPELLANT UTILIZED A SUM OF RS. 4.01 LACS FOR HIS O THER PERSONAL USE. THE SAID CASH ROTATION CHART CLEARLY REVEALS THE SAME. FURTHER, AS PER THE SAID CASH ROTATION CHART, THE APPELLANT RECEIVED A SUM OF RS. 15.-51 LACS IN CASH FROM ATS ON 18-07-06, THUS, THE APPELLANT H AD A CASH IN HAND OF RS. 50.91 LACS WITH HIM AS ON THAT DATE OUT OF WHIC H HE ADVANCED A TOTAL SUM OF RS. 48 LACS TO THE LAND OWNERS FOR AND ON BE HALF OF ATS ON 18- 07-06 & 19-07-06. THUS, AN EXCESS SUM OF RS. 32.49 LACS HAD BEEN SPENT IN CASH BY THE APPELLANT UP TO 12-12-06 FOR A ND ON BEHALF OF A TS, WHICH WAS SUBSEQUENTLY REIMBURSED TO HIM BY ATS BY DIRECTLY DEPOSITING CASH IN THE AXIS BANK SAVINGS ACCOUNT O F THE APPELLANT BETWEEN 14-11-06 AND 12-12-06 AS ALREADY HELD BY ME IN GROUND NO. 1 FOR THE A.Y 2007 -08 OF THE ASSESSEE HEREIN ABOVE. MOREOVER, IT IS ALSO CLEAR FROM THE FUND ROTAT ION CHART THAT SUFFICIENT FUNDS RECEIVED FROM ATS GROUP WERE LYIN G IN THE BANK ACCOUNT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 76 OF THE APPELLANT AT THE TIME OF MAKING THE CASH PA YMENTS AGGREGATING TO RS. 48 LACS TO THE LAND OWNERS. IN MY OPINION WHET HER THE APPELLANT WOULD HAVE WITHDRAWN CASH OUT OF THE ATS FUNDS LYIN G IN HIS BANK ACCOUNT TO PAY THE SAID LAND OWNERS IN CASH OR CHO SE TO UTILIZE THE CASH OF SANRAJ LYING WITH HIM INSTEAD. IN ANY CASE, THE APPLICATION OF RS. 48 LACS IN CASH WAS MADE OUT OF TOTAL FUNDS RECEIVE D FROM ATS ONLY, WHETHER RECEIVED IN CASH OR THROUGH CHEQUES. ACCORDINGLY, SOURCES FOR PAYING RS. 48 LACS IN CASH , I.E., RS. 18 LACS TO MR. ANAND SWAROOP ON 18-07-06 AND RS. 30 LACS TO MR. SANJAY MOHAN UNIYAL ON 19-07-06, STAND FULLY EXPLAINED. IN THE NUTSHELL, IT IS HELD THAT OUT OF RS. 2,20,12 ,080/-, TOTAL SUM OF RS. 1 72,12,080/- HAD BEEN PAID IN CASH BY MR. S ACHIN UPADHAYA, THE SOURCE OF WHICH IS DIRECTLY EXPLAINABLE BY THAT PERSON ONLY VIS-A-VIS M/S PRATEEK RESORTS & BUILDERS (P) LTD. OF THE ATS GROUP AND NO ADDITION FOR THE SAME CAN BE MADE IN THE HANDS OF T HE APPELLANT AT ALL; AND FURTHER SINCE THE SOURCES IN RESPECT OF THE BAL ANCE SUM OF RS. 48 LACS PAID BY THE APPELLANT IN CASH STANDS FULLY EXP LAINED, THE ADDITION OF THE ENTIRE SUM OF RS. 2,20,12,080/- IS DELETED. HOWEVER, AS IT HAS BEEN REPORTED BY THE AO THAT THE BOOKS OF ACCOUNT OF THE ATS GROUP COMPANIES INCLUDING THAT O F M/S PRATEEK RESORTS & BUILDERS (P) LTD. HAVE BEEN REFERRED TO T HE SPECIAL AUDIT U/S 142(2A) OF THE ACT FOR THE ENTIRE SEARCH PERIOD AND THE ASSESSMENTS U/S 153A OF THAT GROUP ARE YET TO BE COMPLETED BY HIM. THEREFORE, IN ORDER TO PROTECT THE INTEREST OF REVENUE THE A 0 IS DIRECTED TO EXAMINE THE SOURCE OF THE SAID SUM OF RS. RS. 2,20,12,0801- PAID IN CA SH BY THAT GROUP FOR THE PURPOSE OF PURCHASING LAND IN DEHRADUN DURING T HE ASSESSMENT PROCEEDINGS OF THE CONCERNED ATS GROUP COMPANIES AN D IF NOT FOUND SATISFACTORY, THE SAID SUM SHOULD BE ADDED AS UNDIS CLOSED INCOME OF THE RELEVANT A TS GROUP COMPANY. 35. GROUND NO.6 BEING GENERAL IN NATURE STANDS ADDRESS ED WHILE DECIDING GROUND NOS. 1 TO 5 AS SUCH, IT REQUIRES NO SPECIFIC ADJUDICATION. GROUND NO.7 BEING RESIDUARY WAS NOT PRESSED. 36. IN THE RESULT, ITA NO.3151/DEL/2911 IS DISMISSED. ITA NO.3152/DEL/2011 37. A PERUSAL OF THE RECORD SHOWS THAT PURSUANT TO THE VERY SAME SEARCH OPERATION FOLLOWING CASH & JEWELLERY WAS FOUND:- CASH AT RESIDENCE NO.P-2/18, KAILASH DHAM SOCIETY, SEC-50, NOIDA RS.7,56,000/- CASH FROM LOCKER NO.234, AXIS BANK, SEC-18, NOIDA RS.10,00,000/- JEWELLERY AT RESIDENCE NO.P-2/18, KAILASH DHAM SOCI ETY, SEC-50, NOIDA RS.6,01,197/- JEWELLERY FROM LOCKER NO.270, AXIS BANK, SEC-18, NO IDA RS.5,29,385/- I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 77 38. IN RESPONSE TO THE NOTICE ISSUED THE ASSESSEE RETU RNED AN INCOME OF RS.1,75,94,790/-. THE RETURNED INCOME CONSISTED OF INCOME FROM CAPITAL GAIN ON SALE OF SHARES OF M/S PRATEEK RESORTS & BUILDERS P.LTD. APART FROM INCOME FROM OTHER SOURCES CONSISTING OF INTEREST ON FDRS AND S.B.A/C. OVER AND ABOVE THIS, A SURRENDER OF RS.75 LACS TOWARDS MISCELLA NEOUS INCOME WAS MADE BY THE ASSESSEE. 39. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS THE AS SESSEE WAS REQUIRED TO EXPLAIN THE CASH OF RS.10 LACS FOUND FROM THE ABOVE MENTIONED LOCKER AND RS.7,56,000/- FOUND FROM HIS RESIDENCE DURING THE S EARCH. THE EXPLANATION THAT THE SURRENDER OF RS.75 LACS COVERED THESE TWO AMOUN TS WAS NOT ACCEPTED BY THE AO LEADING TO THE ADDITION OF RS.17.56 LACS MADE IN THE HANDS OF THE ASSESSEE. APART FROM THAT AN ADDITION OF RS.4,44,106/- WAS MA DE ON ACCOUNT OF JEWELLERY FOUND FROM LOCKER NO.270 IN AXIS BANK, SECTOR-18, N OIDA HELD BY HIM AND HIS WIFE AND ALSO FROM HIS RESIDENCE. ADDITION OF RS.9 ,25,000/- WAS MADE AS UNEXPLAINED EXPENDITURE ON ACCOUNT OF VALUABLE ASSE TS FOUND AT HIS RESIDENCE THESE HAVE BEEN MENTIONED IN UN-NUMBERED PAGE 3 OF THE ASSESSMENT ORDER. INVENTURISED AND VALUED AS PER ANNEXURE-A. ADDITIO N OF RS.1.75 CRORE WAS MADE ON THE BASIS OF SEIZED DOCUMENTS PAGE 23 OF LP -5 WHICH REFLECTED CERTAIN CASH TRANSACTIONS. APART FROM THESE, ADDITION OF RS.1,01,25,000/- WAS ALSO MADE ON ACCOUNT OF LOANS STATED TO HAVE BEEN TAKEN FROM MRS. KAUSHLYA SEHGAL AND FROM MR.SACHIN UPADHAYA FROM WHOM DESPITE OPPOR TUNITY CONFIRMATIONS WERE NOT FILED. 40. THESE ADDITIONS MADE IN THE ASSESSMENT ORDER WERE CHALLENGED IN APPEAL BEFORE THE CIT(A). AGAINST THE RELIEF GRANTED IN A PPEAL, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS:- I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 78 1. THAT THE ORDER OF CIT(A) IS ERRONEOUS IN LAW AN D ON FACTS AS HE HAS ACCEPTED THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT IN CONTRAVENTION TO RULE 46-A OF THE I.T.RULES WITHOUT GIVING PROPER OPPORTUNITY TO THE A.O. TO REBUTT THE APPELLANT'S C LAIM. 2. THAT THE C1T{A) ERRED IN LAW IN DELETING THE ADD ITION OF RS, 31,25,106/- TOWARDS UNEXPLAINED ASSETS AND CASH FO UND DURING THE COURSE OF SEARCH & SEIZURE OPERATION ON A WRONG APPLICATION OF FACTS AND LAW AND BY SUBSTITUTING HIS OWN SATISFACT ION IN PLACE OF AOS SATISFACTION BY ADMITTING THAT THE SURRENDER OF RS.75,00,000/- INCLUDED THE UNEXPLAINED ASSETS AND CASH FOUND AT THE TIME OF SEARCH OPERATION. IN DOING SO, CIT( A) ALSO IGNORED THE FACTS BROUGHT ON RECORD BY THE A.O.ON THIS ISSU E. 3. THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF RS 1,75,00,000/- ON ACCOUNT OF LAND WITHOUT APPRECIATING THE FACT TH AT THIS ADDITION WAS MADE ON THE BASIS OF THE SEIZED DOCUMENTS AT AN NEXURE LP-5 AND THE ASSESSEE WAS NOT ABLE TO DISCHARGE HIS ONUS AS CONTAINED IN SECTION 68 OF THE I.T.ACT 1961 TO THE SATISFACTI ON OF THE AO. 4. THAT THE CIT (A) ERRED IN DELETING THE ADDITIO N OF RS.1,01,25,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT WITHOUT APPRE CIATING THE FACT AND WITHOUT ANY BASIS IGNORING THE FACTS BROUG HT ON RECORDS BY THE A.O. AS THE ASSESSEE WAS NOT ABLE TO DISCHAR GE ITS ONUS AS PROVIDED IN SECTION 68 OF THE I.T.ACT TO THE SATISF ACTION OF THE AO. 5. THAT THE ORDER OF THE CIT (A) BEING ERRONEOUS I N LAW AND ON FACTS NEEDS TO BE VACATED AND THE ORDER OF THE AO. BE RES TORED. 6. THAT THE ORDER OF THE CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS NEEDS TO BE VACATED AND THE ORDER OF THE A.O BE RES TORED. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 41. SINCE THE ARGUMENTS OF THE PARTIES IN REGARD TO G ROUND NO.1 IN THE PRESENT APPEAL REMAINED IDENTICAL TO THE FACTS, CIR CUMSTANCES AND ARGUMENTS ADVANCED IN ITA NO.3150 & 3151/DEL/2011. ACCORDING LY FOR SIMILAR REASONS GROUND NO.1 OF THE REVENUE FOLLOWING THE VIEW TAKEN EARLIER THEREIN IS DISMISSED. WHILE SO HOLDING WE HAVE CONSIDERED THE FINDING ARRIVED AT BY THE CIT(A) IN PARA 4 THAT THERE WAS A LACK OF ADEQUATE OPPORTUNITY BEFORE THE AO; THAT THE EVIDENCES CONSIDERED WERE RELEVANT AND CRU CIAL FOR DECIDING THE ISSUES AND HAVE NOT BEEN CONFRONTED TO THE AO WHOSE COMMEN TS WERE FILED AND CONSIDERED; THE FACT THAT THE COMMENTS WERE FILED A FTER MULTIPLE REMINDERS OF THE CIT(A) BY WHICH TIME HE HAD STARTED TO HIMSELF EXAMINE THE CORRECTNESS OF THE EVIDENCES RELIED UPON AND RECORDING THE STATEME NT OF THE WITNESSES ETC. DEPARTMENT WHOSE AFFIDAVITS WERE CONFRONTED TO THE AO, ALL FACTS WHICH HAVE NOT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 79 BEEN REBUTTED BY THE REVENUE AND IN FACT, ALL ADMI TTED FACTS. ACCORDINGLY FINDING NO INFIRMITY IN THE ORDER IN ALLOWING THE A DMISSION OF FRESH EVIDENCE PETITION AND IN PASSING THE ORDER AFTER OBTAINING THE REMAND REPORT, WE DISMISS THE GROUND. 42. ADDRESSING GROUND NO.-2, THE LD. CIT DR RELYING UP ON THE ASSESSMENT ORDER SUBMITTED THAT BY NO STRETCH OF IMAGINATION THE SURRENDER OF RS.75 LACS COULD BE SAID TO HAVE BEEN ADDRESSING THE CASH FOUN D AT THE RESIDENCE AND THE LOCKER. THE DELETION OF THE ADDITION WHICH IS CHAL LENGED BY THIS GROUND IT WAS SUBMITTED CONSISTS OF THE CASH FOUND FROM THE LOCK ER AND THE RESIDENCE OF THE ASSESSEE TOTALING RS.17,56,000/ (RS.7,56,000/- + RS .10.00.000/-) AND THE ADDITION OF RS.4,44,106/- MADE ON ACCOUNT OF UNEXPL AINED JEWELLERY FOUND IN THE LOCKER AND THE RESIDENCE ALONGWITH THE ADDITIO N OF RS.9,25,000/- MADE ON ACCOUNT OF ASSETS FOUND AT THE RESIDENCE OF THE ASS ESSEE DULY INVENTORISED WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE. IT WAS SUB MITTED NEITHER ANY SATISFACTORY EXPLANATION COULD BE OFFERED NOR THE B ILLS FOR PURCHASE OF JEWELLERY ETC. AND OTHER LUXURY ASSETS FOUND IN THE FORM OF L CD TV, HOME THEATER, AC, FRIDGE ETC. COULD BE PRODUCED. 43. THE LD.AR RELYING UPON THE EXPLANATION OFFERED BEFORE THE CIT(A) IN PARA 6.2 SUBMITTED THAT IT IS A REPETITION OF WHAT WAS ARGUED BEFORE THE AO. RELYING UPON THE FOLLOWING FINDING RECORDED BY THE AO HIMSE LF IN UN-NUMBERED PAGE-2, IT WAS SUBMITTED THAT THE HOLLOWNESS OF THE DEPARTM ENTAL STAND STANDS ESTABLISHED FROM CERTAIN FACTS AVAILABLE ON RECORD: - DURING THE YEAR, ASSESSEE HAS DECLARED INCOME FROM CAPITAL GAIN ON SALE OF SHARE OF M/S. PRATEEK RESORTS & BUILDERS P. LTD. AND INCOME FROM OTHER SOURCES CONSISTING OF INTEREST ON FDRS AND SA VING ACCOUNTS. BESIDES, MISC. INCOME OF RS. 75 LACS HAS ALSO BEEN DECLARED IN THE RETURN OF INCOME BEING SURRENDER MADE BY THE ASSESEEE DURING THE COU RSE OF SEARCH AND POST SEARCH INVESTIGATION. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 80 DURING THE COURSE OF SEARCH OF LOCKER NO. 234, AXIS BANK, NOIDA HELD BY SHRI MUKESH JOSHI, CASH OF RS. 10 LACS WAS FOUND . HE WAS, VIDE STATEMENT RECORDED AFTER OPERATION OF THE SAID LOCK ER, ASKED TO EXPLAIN THE SOURCE OF RS. 10 LACS FOUND IN HIS BANK LOCKER, IN RESPONSE, ASSESSEE HAD REPLIED AS UNDER: Q NO. 3: AS YOU HAVE STATED EARLIER YOU DO NOT REME MBER CONTENTS OF EACH LOCKER SEPARATELY. NOW A CASH OF RS. 10 LACS WAS FO UND IN LOCKER NO. 234. DO YOU WANT TO SAY ANYTHING BECAUSE THIS HAS NOT BE EN REFLECTED IN YOUR BOOKS OF ACCOUNT? ANS: - SINCE THIS AMOUNT HAS NOT BEEN REFLECTED IN MY BOOKS OF ACCOUNTS THE AMOUNT OF RS. 10 LAKH MAY KINDLY BE TREATED MY UNDI SCLOSED INCOME IN CURRENT YEAR. THUS, FROM THE ABOVE REPLY, IT IS CLEAR THAT ASSESS EE DID NOT HAVE ANY EXPLANATION REGARDING THIS CASH FOUND AND THIS CASH OF RS. 10 LACS WAS SURRENDERED BY HIM AS HIS UNDISCLOSED INCOME FOR TH E A. Y. 08-09. FURTHER, AT THE TIME OF SEARCH, CASH OF RS. 7,56,00 0/- WAS ALSO FOUND RESIDENCE OF THE ASSESSEE. THEREFORE, VIDE QUESTION NAIRE DATED 06/11/09, ASSESSEE WAS ASKED TO EXPLAIN SOURCES OF THIS CASH FOUND AT HIS RESIDENCE. IN RESPONSE, IT WAS STATED THAT HE HAD SURRENDERED RS. 75 LACS IN THE RETURN OF INCOME AND THE CASH OF RS. 17.56 LACS FOU ND (RS. 7.56 LACS FROM RESIDENCE AND RS. 10 LACS FROM LOCKER) WAS PART OF SAID SURRENDER OF RS. 75 LACS. THE REPLY MADE BY THE ASSESSEE HAS BEEN CONSI DERED AND CHECKED FROM RECORDS. AFTER PERUSAL OF SEARCH RECORDS. PANC HNAMA FILES AND POST SEARCH INVESTIGATION FOLDER, IT IS FOUND THAT AT TH E TIME OF SEARCH, MANY INCRIMINATORY DOCUMENTS WERE FOUND AND SEIZED FROM HIS RESIDENCE AND LOCKER AND IT WAS FOUND THAT ASSESSEE IS A DIRECTOR IN NUMBER OF COMPANIES AND IS ALSO INVOLVED IN LAND TRANSACTIONS AT DEHRAD UN. HE WAS FOUND TO BE IN POSSESSION VARIOUS LAND AGREEMENTS ENTERED INTO BETWEEN VARIOUS PARTIES. HE WAS GIVEN A SHOW CAUSE BY THE INVESTIG ATION WING TO EXPLAIN VARIOUS TRANSACTIONS VIDE LETTER DATED 03/06/08. N RESPONSE TO THAT LETTER, DURING THE COURSE OF POST SEARCH INVESTIGATION A LE TTER WAS SUBMITTED BY THE ASSESSEE, THE CONTENTS OF WHICH ARE REPRODUCED AS U NDER: 'THIS IS WITH REFERENCE TO THE SEARCH AND SEIZURE P ROCEEDINGS CONDUCTED IN MY CASE AND VARIOUS DOCUMENTS ETC. SEI ZED BY THE DEPARTMENT. IN THIS CONNECTION, IT IS SUBMITTED THA T THE ASSESSEE IS MAINLY FACILITATOR / ARRANGER HELPING IN CONSOLIDATING PUR CHASE AND SALE OF LANDS AT VARIOUS PLACES WORKING FOR OTHERS. AS A CONSOLIDATO R MANY TIME, MANY COMBINATIONS AND PERMUTATIONS ARE TO BE DONE RESULT ING INTO DIFFERENT AND MEANINGLESS FIGURES, WHICH ARE SCRIBBLED IN THE NOT ES BY WAY OF PROJECTIONS BECAUSE THE PROPOSED DEALS ARE NOT DONE IN ONE GO B UT TIME TO TIME OVER A PERIOD OF TIME AND MOST OF THE TIME IT DOES NOT MAT ERIALIZE. IT IS FURTHER SUBMITTED THAT EVEN MOST OF THE NOTINGS, SCRUBBING S ARE NOT MADE BY ME AND ARE NOT IN MY HANDWRITING AND ARE NOT IN MY HAN DWRITING HAVE NOTHING TO DO WITH ME. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 81 HOWEVER, WITHOUT PREJUDICE TO THE SUBMISSIONS, INFO RMATION, DETAILS AND EXPLANATIONS BEING GIVEN FROM TIME TO TIME IN O UR CASE EXPLAINING THE NOTINGS, SCRIBBLINGS ETC., IN ORDER TO BY PEACE & A VOID LITIGATION, I HEREBY DISCLOSE A SUM OF RS. 75,00,000/- ( RUPEES SEVENTY FIVE LACS ONLY) AS MY INCOME WITH AN UNDERSTANDING THAT NO CONCEALMENT PE NALTY WILL BE LEVIED IN MY CASE AND NO PROSECUTION SHALL BE INITIATED AGAIN ST US. THE CASH FOUND AND SEIZED BY THE DEPARTMENT MAY BE ADJUSTED AGAINS T THE TAX PAYABLE ON THE AFORESAID DISCLOSURES.' SD/- MUKESH JOSHI THUS, FROM THE ABOVE, IT IS CLEAR THAT A SURRENDER OF RS. 10 LACS WAS MADE BY THE ASSESSEE IN RESPECT OF CASH FOUND IN HI S LOCKER AT THE TIME OF OPERATION OF THE SAME AND A FURTHER SURRENDER OF RS . 75 LACS WAS MADE DURING POST SEARCH INVESTIGATION IN RESPECT OF VARI OUS LAND TRANSACTIONS GOT ARRANGED/FACILITATED BY HIM AND FROM THE ABOVE, IT IS CLEAR THAT THE SURRENDER OF RS. 75 LACS MADE DURING POST SEARCH IN VESTIGATION ON ACCOUNT OF VARIOUS LAND TRANSACTIONS DID NOT INCLUDE SURREN DER OF RS. 10 LACS MADE IN RESPECT OF CASH FOUND. THUS, AT THE TIME OF SEAR CH/POST SEARCH INVESTIGATION, THERE WAS TOTAL SURRENDER OF RS. 85 LACS (RS. 75 LACS ON ACCOUNT OF LAND TRANSACTIONS AND RS. 10 LACS IN RES PECT OF CASH FOUND IN LOCKER) AGAINST WHICH, ASSESSEE HAD DECLARED ONLY A N AMOUNT OF RS. 75 LACS IN THE RETURN OF INCOME AND THE SURRENDER MADE OF RS. 10 LACS IN RESPECT OF CASH FOUND IN LOCKER HAS NOT BEEN DECLAR ED BY HIM. FROM THE ABOVE, IT IS ALSO CLEAR THAT THE CASH FOUND OF RS. 7.56 LACS AT THE RESIDENCE OF THE ASSESSEE WAS NOT COVERED BY THE SURRENDER OF RS. 75 LACS AS NO EXPLANATION WAS OFFERED BY THE ASSESSEE AT THE TIME OF SEARCH WHEN THIS CASH WAS FOUND FROM THE RESIDENCE. ALSO, AT THE TIM E OF SURRENDER OF RS. 75 LACS DURING THE COURSE OF POST SEARCH INVESTIGATION , NO REFERENCE TO THE CASH FOUND AT RESIDENCE AND LOCKER WAS MADE FROM WHICH I T IS CLEAR THAT THE SURRENDER OF RS. 75 LACS MADE IN RESPECT OF LAND TR ANSACTIONS DURING COURSE OF POST SEARCH INVESTIGATION DID NOT INCLUDE CASH F OUND AT RESIDENCE AND AT LOCKER. ALL THESE FACTS WERE EXPLAINED TO THE ASSES SEE VIDE ORDER SHEET DATED 23111109 AND IN VIEW OF THE ABOVE FACTS, HE W AS ASKED TO EXPLAIN AND SHOW CAUSE AS TO WHY THE CASH FOUND OF RS. 17.5 6 LACS IN TOTAL (RS. 10 LACS FROM LOCKER AND RS. 7.56 LACS FROM RESIDENCE) SHOULD NOT BE ADDED TO HIS TOTAL INCOME FOR BEING UNEXPLAINED CASH IN ADDI TION TO THE SUN-ENDER OF RS. 75 LACS MADE ON ACCOUNT OF LAND TRANSACTIONS. I N RESPONSE, IT WAS STATED BY THE ASSESSEE THAT THE SAID SURRENDER OF R S. 75 LACS MADE INCLUDED CASH OF RS. 17.56 LACS FOUND FROM HIS RESI DENCE AND LOCKER AND THESE AMOUNTS ARE NOT OVER THE ABOVE RS. 75 LACS BU T WERE PART OF TOTAL SURRENDER OF RS. 75 LACS. THE SUBMISSION MADE BY THE ASSESSEE HAVE BEEN CONSI DERED BUT WERE FOUND TO BE UNCONVINCING AS, AS DISCUSSED ABOV E IN DETAIL, THE SURRENDER OF RS. 75 LACS WAS MADE DURING POST SEARC H INVESTIGATION IN RESPECT OF LAND TRANSACTIONS MADE BY THE ASSESSEE A ND THERE WAS NO REFERENCE AT ALL OF CASH FOUND FROM RESIDENCE AND L OCKER OF THE ASSESSEE. THUS, IT IS CLEAR THAT SUBMISSIONS MADE BY THE ASSE SSEE NOW ARE JUST AFTER THOUGHT TO COVER UP THE UNEXPLAINED CASH OF RS. 17. 56 LACS FOUND FROM HIS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 82 POSSESSION. THUS, THIS UNEXPLAINED CASH IS HEREBY A DDED TO THE TOTAL INCOME OF THE ASSESSEE TREATING IT AS UNEXPLAINED W HICH IS OVER AND ABOVE THE SURRENDER OF RS. 75 LACS MADE BY THE ASSESSEE ON ACCOUNT OF LAND TRANSACTION. 43.1. THE SURRENDER IT WAS SUBMITTED AS WOULD BE EVIDENT FROM THE ASSESSMENT ORDER WAS MADE IN RESPONSE TO SHOW CAUSE NOTICE ISS UED BY THE INVESTIGATION WING AND DATED 03.06.2008 AND THE IMPUGNED ORDER BR INGS OUT THAT IT WAS NOT EVEN IN RESPONSE TO THIS BUT MADE MUCH AFTER THAT. THUS WHERE THE RESIDENCE WAS SEARCHED ON 15.02.2008 AND THE LOCKERS WERE SEA RCHED ON 03.03.2008 THE SURRENDER OBVIOUSLY ADDRESSED THE CASH, JEWELLERY, HOUSEHOLD ASSETS ETC. FOUND PERTAINING TO DOCUMENTS AND TRANSACTIONS ETC. CONF RONTED TO THE ASSESSEE. ADDRESSING THE LACK OF BILLS FOR JEWELLERY ETC. IT WAS SUBMITTED INVITING ATTENTION TO THE RE-JOINDER AND THE EXPLANATION FILED BEFORE THE CIT(A) THAT SINCE THE ASSESSEE IS NOT A TRADER IN JEWELLERY AND THE JEWEL LERY BEING A PERSONAL ASSET OF THE ASSESSEE, IT WAS NOT CONSIDERED NECESSARY TO RE TAIN THE PURCHASE BILLS. IT WAS SUBMITTED THAT IT HAD ALSO BEEN ARGUED BEFORE T HE CIT(A) THAT IF THE DESCRIPTION OF THE ITEMS DID NOT MATCH THESE COULD HAVE BEEN EXCHANGED WITH SOME OTHER ITEMS HOWEVER, AS FAR AS THE SOURCE IS C ONCERNED, IT STANDS EXPLAINED. THE LAND CONSOLIDATION ACTIVITIES DID G ENERATE INCOME WHICH HAS BEEN RETURNED AND ITS APPLICATION TOWARDS HOUSE HOL D EFFECTS, JEWELLERY AND REMAINING RETAINED IN CASH STANDS ADDRESSED. INVIT ING ATTENTION TO THE EXPLANATION OFFERED REGARDING INVESTMENT IN HOUSEHO LD ITEMS, IT WAS SUBMITTED THAT THE RE-JOINDER FILED BY THE ASSESSEE WOULD SHO W THAT THE ASSESSEE HAD PURCHASED THE RESIDENTIAL APARTMENT FOR RS.25.10 LA CS IN 2005-06 AY A FACT WHICH HAS BEEN ACCEPTED BY THE REVENUE. ITS CARPE T AREA WAS 1600 SQ. FEET. IN THE LIMITED SPACE AVAILABLE THE INTERIOR RENOVATION WORK DONE IS EXPLAINABLE BY I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 83 THE YEAR-WISE DRAWINGS MADE BY THE ASSESSEE FROM TH E PERIOD 2006-07 TO 2008- 09 AYS. THE DRAWINGS IT WAS SUBMITTED HAVE GONE UP WHEN COMPARED WITH THE EARLIER YEARS. IT WAS HIS SUBMISSION THAT IT WOULD SHOW THAT THE DRAWINGS MADE WERE FAR IN EXCESS OF WHAT WOULD HAVE BEEN REQUIRE D IMPROVING THE SMALL APARTMENT AND FAR IN EXCESS OF NORMAL HOUSEHOLD EXP ENSES CONSIDERING THE SIZE OF THE ASSESSEES FAMILY. THESE DRAWINGS IT WAS SU BMITTED WOULD HAVE BEEN UTILIZED FOR ACQUIRING THE ASSETS. IN THESE CIRCUM STANCES, THE EXPLANATION OFFERED BY THE ASSESSEE IT WAS SUBMITTED HAS CORREC TLY BEEN ACCEPTED ON FACTS BY THE CIT(A). 44. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME, WE FIND THAT THE SURRENDER HAS BEEN MADE NOT IN RESPONSE TO THE POST SEARCH INVESTIGATI ON LETTER DATED 03.06.2008 BUT IN RESPONSE TO A QUESTIONNAIRE DATED 3/14/05/08 OF ADIT (INV.)-III, GHAZIABAD (THOUGH THE DATE 03.06.2008 HAS BEEN MENT IONED IN THE ASSESSMENT ORDER). THIS FINDING OF FACT HAS BEEN ARRIVED AT I N PARA 6.5 OF THE IMPUGNED ORDER AND WE FIND IT HAS NOT BEEN REBUTTED BY THE R EVENUE BY ANY CONTRARY FACT OR SUBMISSION. WE FURTHER FIND THAT THE RELEVANT D OCUMENTS IN THE PAPER BOOK SUPPORT THIS CONCLUSION. ACCORDINGLY THE FINDING A RRIVED AT BY THE CIT(A) THAT THE SURRENDER WAS IN RESPONSE TO VARIOUS DOCUMENTS FOUND FROM THE ASSESSEES POSSESSION WHICH INCLUDED RECORDINGS OF LAND DEALS, SHARES, JEWELLERY CASH ETC. STANDS ACCEPTED. THUS, THE SUBMISSION THAT THE SUR RENDER OF RS.75 LACS INCLUDES RS.10 LACS AND RS.7,56,000/- FOUND DURING THE SEARCH FROM THE LOCKER AND RESIDENCE RESPECTIVELY CANNOT BE FAULTED WITH. WE FIND THAT THE ASSESSEE WAS NEVER REQUIRED TO CLARIFY WHERE THE SAID INCOME HAS BEEN APPLIED OR KEPT THUS THE PRESUMPTION THAT IT MAY HAVE BEEN KEPT IN CASH OR IN PURCHASING JEWELLERY OR HOUSEHOLD ITEMS ETC. CANNOT BE FAULTED WITH. TO THE EXTENT THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 84 JEWELLERY BELONGED TO THE ASSESSEES WIFE, WE FIND AS IT WAS A JOINT LOCKER THE SAME STANDS ADDRESSED. TO THE EXTENT THE JEWELLERY BELONGING TO THE ASSESSEE IS CONCERNED, WE FIND NO GOOD REASON FOR THE PRESENT A SSESSEE TO HAVE RETAINED THE BILLS AND SURRENDER OF RS.75 LACS WOULD INCLUDES TH ESE PURCHASES. THE ABOVE HAS BEEN A BRIEF CONCLUSION OF THE DETAILED FINDIN G ARRIVED AT BY THE CIT(A) WHICH STANDS UNASSAILED BY ANY SPECIFIC ARGUMENT ON FACTS OR LAW, BY THE REVENUE. ACCORDINGLY BEING SATISFIED BY THE REASON S AND CONCLUSIONS, WE ARE OF THE VIEW THAT THE FINDING ON FACTS ARRIVED AT IN PA RA 6.5 DESERVES TO BE ACCEPTED. WE ALSO HOLD THAT THE INCREASE IN HOUSEHOLD DRAWING S BY THE ASSESSEE FOR THE PERIOD UNDER CONSIDERATION I.E 3 YEARS FULLY SUPPOR TS THE CONCLUSION THAT IT WOULD HAVE BEEN APPLIED TO PURCHASING OF TV-LCD, FR IDGE, HOME THEATER, ACS ETC. NONE OF THESE CONCLUSIONS DRAWN ON FACTS ON R ECORD HAVE BEEN ATTEMPTED TO BE REBUTTED BY THE REVENUE. IN THE ABSENCE OF ANY COGENT ARGUMENT WE FIND NO GOOD REASON TO INTERFERE WITH THE FINDING ARRIVED A T. BEING SATISFIED BY THE REASONS AND CONCLUSIONS ARRIVED AT IN PARA 6.5 WHIC H HAS BEEN EXTRACTED HEREINAFTER, GROUND NO.2 OF THE REVENUE IS DISMISSE D. 6.5. DECISION AND REASONS THEREFOR: I. ADDITION FOR UNEXPLAINED CASH FOUND FROM THE RES IDENCE (RS. 7.56 LACS) AND BANK LOCKER (RS. 10 LACS) AT THE TIME OF SEARCH - R S. 17,56,000/- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITIONS. IT HAS BEEN AVERRED BY THE AO THAT WHEREAS THE ASSESSEE HAD MADE TOTAL SURRENDER OFRS. 85 LACS DURING THE COURS E OF SEARCH AND POST SEARCH INVESTIGATIONS, HE DECLARED A SUM OF RS. 75 LACS ON LY AS HIS UNDISCLOSED INCOME IN THE RETURN OF INCOME FILED U/S 153A FOR THE AY 2008 -09. AS PER THE AO, SURRENDER OF RS. 10 LACS WAS MADE BY THE ASSESSEE ON ACCOUNT OF CASH FOUND IN HIS BANK LOCKER DURING THE COURSE OF SEARCH AND ANOTHER SUM OF RS. 75 LAC WAS DECLARED BY HIM DURING THE COURSE OF POST-SEARCH INVESTIGATION ON ACCOUNT OF VARIOUS LAND TRANSACTIONS. THUS, AS PER THE AO TOTAL SURRENDER O F RS. 85 LACS HAD BEEN MADE. BUT THE ASSESSEE HAD DECLARED ONLY RS. 75 LACS IN H IS RETURN OF INCOME . ACCORDINGLY, AN ADDITION OF RS. 10 LACS WAS MADE F OR CASH FOUND IN THE BANK LOCKER BY HIM WHILE THE APPELLANT'S ARGUMENT IS THA T THE LATER SURRENDER OF RS. 75 LACS AT THE TIME OF POST-SEARCH ENQUIRES WAS AN OVE RALL SURRENDER INCLUDING THE EARLIER SURRENDER FOR CASH OF RS. 10 LACS FOUND IN HIS BANK LOCKER. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 85 FURTHER, IN RESPECT OF CASH OF RS. 7.56 LACS FOUND FROM THE RESIDENCE OF THE APPELLANT, THE AO HAS AVERRED THAT SINCE THE SURREN DER OF RS. 75 LACS HAD BEEN MADE BY THE ASSESSEE DURING THE POST-SEARCH INVESTI GATION WAS ON ACCOUNT OF VARIOUS DOCUMENTS PERTAINING TO UNDISCLOSED LAND TR ANSACTIONS FOR THE AY 2008- 09, IT DID NOT INCLUDE CASH OF RS. 7.56 LACS FOUND AT HIS RESIDENCE DURING THE SEARCH. HENCE, THE SAME WAS ADDED BACK AS UNDISCLOS ED INCOME OF THE ASSESSEE FOR THE AY 2008-09, WHEREAS THE APPELLANT'S ARGUMEN T IS THAT THE LATER SURRENDER OF RS. 75 LACS AT THE TIME OF POST-SEARCH ENQUIRES WAS AN OVERALL SURRENDER ACCOUNTING WITHIN IT THE CASH OF RS. 7.56 LACS FOUN D IN HIS RESIDENCE. THUS, WHEREAS THE AO ACCEPTED THE SURRENDER OF RS. 75 LACS, HE MADE FURTHER ADDITIONS OF RS. 17.56 LACS SEPARATELY FOR CASH FOUND AT THE RESIDENCE AND BANK LOCKER OF THE APPELLANT, WHILE AS PER THE APPE LLANT, THE SURRENDER OF RS. 75 LACS INCLUDED THE SAME AND HAS CHALLENGED THE SEPAR ATE ADDITION OFRS. 17.56 LACS BEFORE ME. LT IS UNDISPUTED THAT THE APPELLANT HAD ADMITTED TH AT THE CASH OF RS. 10 LACS FOUND FROM HIS BANK LOCKER WAS HIS UNDISCLOSED INCO ME VIDE QUES. NO. 3 IN HIS STATEMENT T RECORDED AT THE TIME OF OPENING OF THAT BANK LOCKER. NOW THE QUESTION FOR MY CONSIDERATION IS WHETHER THIS SUM OF RS. 10 LACS WAS INCLUDED IN THE SURRENDER OF RS. 75 LACS MADE DURING THE POST-SEARC H ENQUIRIES MADE BY THE INCOME TAX DEPARTMENT FROM THE APPELLANT OR NOT. ON GOING THROUGH THE QUESTIONNAIRE DATED 3/14-05-08 OF THE ADIT (INV)-III, GHAZIABAD (THOUGH MENTIONED AS DATED 03-06-08 BY TH E AO IN THE ASSESSMENT ORDER), WHICH HAS BEEN RELIED UPON BY THE AO IN MAK ING THE SAID ADDITION, IT CLEARLY STANDS OUT .AAT THE ADIT HAD ASKED THE ASSE SSEE TO EXPLAIN VARIOUS DOCUMENTS FOUND FROM HIS POSSESSION DURING THE COUR SE OF SEARCH, WHICH INCLUDED EXPLANATIONS SOUGHT FROM HIM ON VARIOUS LAND AGREEM ENTS ENTERED INTO BETWEEN VARIOUS PARTIES AND ALSO IN RESPECT OF THE RECEIPT OF MONEY BY HIM FROM ATS AGAINST SALE OF SHARES OF MLS PRATEEK RESORTS & BUI LDERS (P) LTD. TO THEM AND ALSO ON RECEIPT OFRS. 1.85 CRORES FROM MR. SANJEEV SETHI OF MLS SANRAJ HEALTH SERVICES (P) LTD. VIDE LAST TWO QUESTIONS AT PAGE NO. 2 OF T HAT LETTER. THUS, IT SHALL BE WRONG TO PRESUME THAT THE SURREND ER OF RS. 75 LACS AS PER THE WRITTEN REPLY OF THE APPELLANT TO THE SAID QUES TIONNAIRE OF ADIT COULD ONLY REFER TO SOME THE UNEXPLAINED EXPENDITURE INCURRED ON SOM E LAND TRANSACTIONS AS AVERRED BY THE AO. IN FACT, THE SAID REPLY OF THE A PPELLANT CLEARLY REVEALS THAT HE HAD MADE THE SURRENDER RS. 75 LACS TOWARDS HIS UNDI SCLOSED 'INCOME' AND NOT UNEXPLAINED 'EXPENDITURE'. FURTHER, THERE IS NO DISPUTE THAT THE APPELLANT WAS ENGAGED M PROVIDING FACILITATION SERVICES FOR ARRANGING PURCHASE / SALE OF LAND FOR OTHER PARTIES AND WAS EARNING INCOME FROM SUCH ACTIVITIES. EVEN THE T EST OF HUMAN PROBABILITIES SUPPORTS THE CAUSE OF THE APPELLANT BECAUSE IT IS U NHEARD OF THAT ANYONE PROVIDING SERVICES WOULD INVEST HIS OWN FUNDS FOR T HE BUILDERS AND NOT BE PAID / REIMBURSED BY THEM FOR THE SAME. MOREOVER, THE RECO RD REVEALS THAT NO LAND DEALINGS HAD BEEN UNDERTAKEN DURING THE PREVIOUS YE AR RELEVANT TO THE AY 2008- 09 BY HIM EITHER FOR SELF OR FOR ANY OTHER PARTY, T HEREFORE, THE QUESTION OF UNEXPLAINED EXPENDITURE MADE DURING THE RELEVANT PR EVIOUS YEAR ON ANY LAND TRANSACTIONS COULD NOT ARISE AS DISCLOSURE OF THE U NDISCLOSED INCOME WAS UNDISPUTEDLY MADE BY THE APPELLANT IN THE RETURN OF INCOME FOR THE AY 2008-09 AND ALSO ACCEPTED BY THE AO FOR THAT VERY YEAR ONLY . THUS, THE SAID PRESUMPTION OF THE AO STANDS SQUARELY REBUTTED BY THE APPELLANT THAT THE APPELLANT HAD MADE THE SURRENDER OF RS. 75 LACS TOWARDS UNEXPLAINED EX PENDITURE ON PROCUREMENT OF VARIOUS PLOTS OF LAND DURING THE AY 2008-09 DURING THE POST-SEARCH ENQUIRIES. I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 86 FURTHERMORE, THE AO HAS ALSO AVERRED THAT SINCE THE RE WAS NO MENTION OF THE SURRENDER OF RS. 10 LACS FOUND IN CASH FROM THE BANK LOCKER OF THE APPELLANT IN THE RELEVANT SURRENDER LETTER OF RS. 75 LACS, HENCE , BOTH SURRENDERS WERE INDEPENDENT OF EACH OTHER AND, THUS, THE SAME TANTA MOUNT TO A TOTAL SURRENDER OF RS. 85 LACS. I DO NOT AGREE WITH THIS AVERMENT OF THE AO. THE UNDISCLOSED INCOME OF RS. 75 LACS BEEN SURRENDERED DURING THE POST-SEARCH INVESTIGATION AND IT NATURALLY ENCOMPASSED THE EARLIER SURRENDER OF RS. 10 LACS MA DE TOWARDS CASH FOUND IN HIS BANK LOCKER UNLESS IT WAS SPECIFICALLY STATED AS SU CH BY THE APPELLANT. IN FACT, THE APPELLANT DID NOT SPECIFY WHERE THE SAID INCOME OF RS. 75 LACS HAD BEEN APPLIED OR KEPT BY HIM AT THE TIME OF SEARCH, THUS, THE ON LY PRESUMPTION THAT CAN POSSIBLY BE MADE IS THAT THE SAME HAD BEEN KEPT IN THE FORM OF CASH OR UTILIZED BY HIM IN PURCHASING JEWELLERY AND HOUSEHOLD ITEMS FOUND AT T HE TIME OF SEARCH SINCE IT IS TRITE THAT A SEARCH DRAWS AN IMPREGNABLE BOUNDARY A ROUND WHAT REALLY EXISTS. ALL INCRIMINATING DOCUMENTS IN RESPECT OF UNACCOUNTED T RANSACTIONS WERE FOUND & SEIZED BY THE INCOME-TAX DEPARTMENT DURING THE COUR SE OF SEARCH & SEIZURE CONDUCTED ON THE APPELLANT. THUS, WHAT REALLY EXIST ED WAS UNEARTHED BY THE INCOME-TAX DEPARTMENT, AND WHAT DID NOT EXIST CANNO T BE IMAGINED BY ANYONE INCLUDING THE AO AFTER THE SEARCH. AN ASSESSMENT CA N ONLY BE MADE ON THE BASIS OF COGENT AND CORROBORATIVE EVIDENCES ONLY. IN ABSE NCE OF ANY EVIDENCE POINTING AT THE UNEXPLAINED OUTFLOW OF CASH FROM THE APPELLANT EXCEPT UNEXPLAINED ASSETS OF RS. 31,25,106/- (I.E., CASH, JEWELLERY AND HOUSEHOL D ITEMS) FOUND AT THE TIME OF SEARCH FROM HIS POSSESSION AND FOR WHICH ADDITIONS HAVE BEEN MADE BY THE AO, THE DISCLOSURE OF RS. 75 LACS AS UNDISCLOSED INCOME WAS SUFFICIENT TO COVER THE SAME AND IT CANNOT BE PRESUMED THAT THE APPELLANT W ANTED TO MAKE OR HAD MADE A TOTAL SURRENDER OF RS. 85 LACS. THUS, IT IS MY CONSIDERED VIEW THAT THE SURRENDER O F RS. 75 LACS INCLUDED THE EARLIER SURRENDER MADE FOR CASH OF RS. 10 LAC F OUND FROM THE BANK LOCKER. MOREOVER, THE SAID SURRENDER FULLY EXPLAINS THE SOU RCE OF CASH OF RS. 17.56 LACS FOUND FROM THE RESIDENCE AND BANK LOCKER, JEWELLERY OF RS. 4,44,106/- AND HOUSEHOLD ITEMS OF RS. 9.25 LACS FOUND FROM THE POS SESSION OF THE APPELLANT AT THE TIME OF SEARCH FOR WHICH SEPARATE ADDITIONS CANNOT BE MADE. ACCORDINGLY, THE ADDITIONS OF RS. 10 LACS AND RS. 7 .56 LACS MADE FOR CASH FOUND FROM THE BANK LOCKER AND THE RESIDENCE OF THE APPELLANT ARE DELETED. 11. ADDITION FOR UNEXPLAINED INVESTMENT IN JEWELL ERY FOUND AT THE TIME OF SEARCH RS. 4,44,106 /- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUME NTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITION. THE STATEMENT OF AFFAIRS AS AT 31-03 -07 OF THE APPELLANT COUPLED WITH THE CASH AND BANK ACCOUNTS FOR THAT YEAR EXAMI NED DURING THE COURSE OF THE APPELLANT PROCEEDINGS FOR THE AY 2007-08 CLEARLY R EVEAL THAT THE APPELLANT HAD BOUGHT TOTAL JEWELLERY OF RS. 3,69,000/- DURING THE YEAR. IT IS A MATTER OF RECORD THAT THE GOLD RATE PER 10 GMS. WAS PREVAILING AT RS. 11,700/- ON 15-02-08, I.E., ON THE DATE OF VALUATIO N AS PER THE VALUATION REPORT OF THE DEPARTMENTAL VALUER; WHEREAS THE GOLD RATE AS O N 31-03-07 WAS RS. 9,395/- PER 1 0 GMS. AT THE END OF THE YEAR WHEN THE SAID J EWELLERY HAD BEEN BOUGHT. THUS, THE VALUATION OF JEWELLERY TOTALING TO RS. 3, 69,0001- BOUGHT DURING THE FY I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 87 2006-07 BY THE APPELLANT, EVEN IF CALCULATED BY CON SIDERING THE GOLD RATE PREVAILING ON 31-03-07 THOUGH IT HAD BEEN PURCHASED ON DIFFERENT DATES DURING THE FY 2006-07, COMES TO RS. 4,59,531/- [I.E., 3,69 ,000 X 11,700/9,395] AS ON 15- 02-08, WHICH WORKS OUT EVEN HIGHER THAN THAT VALUED BY THE DEPARTMENTAL VALUER AS ON THAT DATE. FURTHER, I AGREE WITH THE AR THAT THE-JEWELLERY IN QUESTION WAS THE PERSONAL ASSET OF THE ASSESSEE AND HE WAS NOT ENGAGED IN ITS TRADING IN WHICH CASE IT WOULD' HAVE BEEN MANDATORY FOR HIM TO RETAIN THE PU RCHASE BILLS FOR VERIFICATION OF THE IT AUTHORITIES MOREOVER, IT WAS NOT MATERIAL IF THE ITEMS BOUGHT WERE DIFFERENT FROM THOSE FOUND AT THE TIME OF SEARCH SINCE EVEN I F, FOR THE SAKE OF PRESUMPTION, THE ASSESSEE HAD EXCHANGED THOSE ITEMS WITH DIFFERE NT ORNAMENTS TILL THE DATE OF SEARCH, THE SOURCE OF THEIR ACQUISITION STILL REMAI NED THE SAME. MOREOVER, IT HAS ALREADY BEEN HELD BY ME THAT THE S URRENDER OF RS. 75 LACS MADE FOR THE AY 2008-09 BY THE APPELLANT MORE THAN COVERS THE SOURCE OF INVESTMENT IN JEWELLERY FOUND IN HIS POSSESSION AT THE TIME OF SEARCH. FURTHERMORE, EVEN IF NO PURCHASE BILLS COULD BE PRO DUCED BY THE APPELLANT, THE PREPONDERANCE OF PROBABILITIES WEIGHS IN THE FAVOUR OF THE APPELLANT UNLESS SOME JEWELLERY PURCHASE BILLS HAD ACTUALLY BEEN FOUND DU RING THE SEARCH AND ITS DIRECT SOURCE COULD NOT BE EXPLAINED BY THE APPELLANT. THU S, ABSENCE OF PURCHASE BILLS DOES NOT MITIGATE THE CLAIM 1 EXPLANATION OF THE AP PELLANT. MY ATTENTION WAS ALSO DRAWN TO INSTRUCTION NO. 1916 DATED 11105/94 OF CBDT CONTAINING GUIDELINES FOR SEIZURE' OF JEWELLER Y AND ORNAMENTS IN THE COURSE OF A SEARCH. CBDT HAS INSTRUCTED THE AUTHORIZED OFF ICERS NOT TO SEIZE GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GMS. P ER MARRIED LADY, 250 GMS. PER UNMARRIED LADY AND 100 GMS. PER MALE MEMBERS OF THE FAMILY IN THE CASE OF A PERSON NOT ASSESSED TO WEALTH TAX. IN MY OPINION TH E SAID INSTRUCTION HAS BEEN ISSUED KEEPING IN MIND THE HINDU CUSTOMS AND PRACTI CES FOLLOWED SINCE AGES OF GIFTING OF GOLD JEWELLERY AND ORNAMENTS BY RELATIVE S RIGHT FROM THE BIRTH OF A PERSON TILL MARRIAGE ON VARIOUS OCCASIONS CELEBRATE D IN BETWEEN; AND UNDER THIS BACKDROP ONLY IT WAS FELT BY CBDT THAT S UCH SMALL QUANTITIES OF GOLD JEWELLERY AND ORNAMENTS SHOULD BE ACCEPTED AS EXPLAINED WITHOUT INSISTING FOR ITS PRE-DECLARATION BY THE ASSESSEE. THE RELIAN CE WAS PLACED ON THE FOLLOWING DECISIONS OF THE HIGHER AUTHORITIES IN THIS REGARD: CIT VS RATANLAL VYAPARILAL JAIN (2010) 45 DTR (GUJ.) 290; DR. SUSHI I RASTOGI VS DI RECTOR OF INVESTIGATIONS, INCOME TAX DEPARTMENT (2003) 260 ITR 249 (AIL.); CIT VS M. S. AGRAWAL (HUF) (2008) 11 DTR (MP) 169; CIT VS KAILASH CHAND SHARMA (2005) 19 8 CTR (RAJ.) 201; SMT. PATI DEVI VS ITA (1999) 240 ITR 727 (KAM.); DCIT VS SMT. JAYITA BOSE (2004) 3 SOT 525 (KOLKATA); SMT. SULOCHANA DEVI JAISWAL VS D CIT (2004) 90 TTJ (JAB) 974; JAI KUMAR JAIN VS ACIT (2006)' 99 TTJ (JP) 744 ; AND ACIT VS GOPI LAL MOR (2007) 107 TTJ (JD) 510. IT IS UNDISPUTED THAT AT THE TIME OF SEARCH THE APP ELLANT WAS LIVING WITH HIS WIFE AND THREE UNMARRIED DAUGHTERS; AND TOTAL JEWEL LERY AND ORNAMENTS WEIGHING 750.200 GMS. HAD BEEN FOUND FROM THE SAID FAMILY. 1 T IS ALSO UNDISPUTED THAT NONE OF THE FAMILY MEMBERS OF THE APPELLANT HAD FIL ED THEIR WEALTH TAX RETURNS EVER TILL THE DATE OF SEARCH. THEREFORE, TOTAL JEWE LLERY FOUND AT THE TIME OF SEARCH WAS MUCH BELOW THE LIMIT OF 1,350.000 GMS. APPLICAB LE ON THE SIZE OF THE ASSESSEE'S FAMILY AS PRESCRIBED BY THE SAID CBDT IN STRUCTION AND, THEREFORE, THE SOURCE OF ACQUISITION OF IT SHOULD BE DEEMED AS EXP LAINED. THE DECISIONS OF THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 88 HIGHER AUTHORITIES CITED BY THE APPELLANT ON THE AP PLICABILITY OF THE SAID CBDT INSTRUCTION IN HIS CASE ALSO SUPPORT THE ISSUE IN H IS FAVOUR FULLY. ACCORDINGLY, THE SOURCE OF JEWELLERY VALUED AT RS. 4,44,106/- AT THE TIME OF SEARCH STANDS FULLY EXPLAINED AND THE ADDITION SO M ADE IS DELETED. ILL. ADDITION FOR UNEXPLAINED INVESTMENT IN HOUSEH OLD ITEMS FOUND AT THE TIME OF SEARCH - RS. 9,25,000/- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITION. YET AGAIN THIS ADDITION WAS MADE BY THE AO UNDER THE AVERMENT THAT THE ASSESSEE COULD NOT PRODUCE PURCHASE BILLS OF THE IMPUGNED HOUSEHOLD ITEMS. THE APPELLANT EXPLAINED THAT THE HOUSEHOLD ITEMS HA D BEEN BOUGHT FROM THE DECLARED INCOME ONLY BUT THEIR COST HAD BEEN CHARGE D OFF AS DRAWINGS IN THE BOOKS OF ACCOUNT CONTAINING HIS PERSONAL TRANSACTIO NS, WHICH WERE SPECIFICALLY PREPARED TO FACILITATE VERIFICATIONS OF TRANSACTION S FOR THE PURPOSE OF THE SEARCH ASSESSMENT PROCEEDINGS. ON VERIFICATION OF THE CASH FLOW STATEMENTS OF THE APPELLANT FOR THE LAST 4-5 YEARS, I.E., FOR THE A Y S 2004-05 TO 2008-09, IT IS SEEN THAT THE APPELLANT HAD DECLARED THE DRAWINGS FOR HI S PERSONAL EXPENSES AS UNDER: ASSTT. YEAR AMOUNT 2004-05 1.301ACS 2005-06 3.49LACS 2006-07 47.431ACS 2007-08 42.721ACS 2008-09 18.001ACS ________________ TOTAL: 111.941ACS _______________ IT WAS EXPLAINED BY THE APPELLANT THAT HE HAD USED THE ABOVE DRAWINGS NOT ONLY FOR THE KITCHEN AND OTHER DAY-TO-DAY EXPENSES OF HIS FAMILY BUT MAINLY ON THE INTERIOR WORKS UNDERTAKEN IN HIS RESIDENTIAL HO USE AT NOIDA AS WELL AS FOR THE ACQUISITION OF THE HOUSEHOLD ITEMS. THE AO IN HIS REMAND REPORT HAS CONTENDED THAT THE SOURCE OF ACQUISITION OF THE HOUSEHOLD ITEMS CANNOT BE EXPLAINED ONLY ON T HE BASIS OF THE DRAWINGS MADE. THE APPELLANT IN HIS REJOINDER HAS EXPLAINED THAT IN THE FY 2004-05 HE HAD PURCHASED A ESIDENTIAL APARTMENT IN NOIDA, HAVING A CARPET AREA OF 1,600 SQ. FT. APPROX., FOR HIS OWN RESIDENTIAL PURPOSES FOR RS. 2 5.10 LACS, WHICH WAS ACCEPTED BY THE REVENUE. SOME INTERIOR RENOVATION WORK WAS G OT DONE IN THIS FLAT BY HIM AND ALSO NEW HOUSEHOLD ITEMS WERE BOUGHT. MY ATTENT ION WAS DRAWN TO THE TREND OF YEAR-WISE DRAWINGS OF THE APPELLANT, WHICH UNDIS PUTED INCREASED SUBSTANTIALLY IN THE FY S 2005-06, 2006-07 & 2007-08 OVER THE EAR LIER YEARS. IT WAS ARGUED THAT THE DRAWINGS MADE IN EXCESS OF MEETING NORMAL HOUSEHOLD EXPENSES COULD NOT HAVE BEEN ALL SPENT ON THE INTERIOR WORK CONSID ERING THE SIZE OF THE APARTMENT AND THE SMALL SIZE OF HIS FAMILY. THUS, IT WAS PLEA DED THAT THERE SHOULD REMAIN NO DOUBT THAT THE EXCESS DRAWINGS DEFINITELY INCLUDED COST OF THE IMPUGNED I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 89 HOUSEHOLD ITEMS ALSO, AND ACCORDINGLY THE SOURCE OF HOUSEHOLD ITEMS STOOD EXPLAINED. I AGREE WITH THE AR AND FIND THAT THE DRAWINGS DECL ARED BY THE APPELLANT IN THE A YS 2006-07, 2007-08 & 2008-09 ARE MORE THAN A DEQUATE TO EXPLAIN THE SOURCE OF ACQUIRING THE IMPUGNED HOUSEHOLD ITEMS. M OREOVER, IT HAS ALREADY BEEN HELD BY ME THAT THE SURRENDER OF RS. 75 LACS MADE F OR THE AY 2008-09 BY THE APPELLANT MORE THAN ADEQUATELY COVERS THE SOURCE OF INVESTMENT IN HOUSEHOLD FOUND IN HIS POSSESSION AT THE TIME OF SEARCH. FURT HERMORE, EVEN IF NO PURCHASE BILLS COULD BE PRODUCED BY THE APPELLANT, THE PREPO NDERANCE OF PROBABILITIES WEIGHS IN THE FAVOUR OF THE APPELLANT UNLESS SOME P URCHASE BILLS HAD ACTUALLY BEEN FOUND DURING THE SEARCH AND ITS DIRECT SOURCE COULD NOT BE EXPLAINED BY THE APPELLANT. THUS, ABSENCE OF PURCHASE BILLS DOES NOT MITIGATE THE CLAIM 1 EXPLANATION OF THE APPELLANT. ACCORDINGLY, THE ADDITION OF UNEXPLAINED INVESTMENT IN HOUSEHOLD ITEMS OF RS.9.25 LACS IS DELETED. IN NUTSHELL, THE ENTIRE ADDITION OF RS. 31,25,106/ - TOWARDS UNEXPLAINED ASSETS FOUND AT THE TIME OF SEARCH IS DELETED. 45. ADDRESSING GROUND NO.3, THE LD.CIT DR SUBMITTED TH AT THE ADDITION MADE IS ON THE BASIS OF SEIZED DOCUMENT DESCRIBED AS PAG E 23 OF LP-5 FOUND FROM THE RESIDENCE OF THE ASSESSEE AS MENTIONED IN THE UN-NU MBERED PAGE 4 TO 5 OF THE ASSESSMENT ORDER. REFERRING TO THE SAME IT WAS SUB MITTED THAT THE AO TOOK NOTE OF THE FACT THAT THERE WERE CERTAIN UNDATED , UNSIG NED CALCULATIONS REFERRING TO SOME TRANSACTIONS. THE EXPLANATION OF THE ASSESSEE WAS FOUND TO BE NOT ACCEPTABLE AS THE ASSESSEE HAD ADMITTED THE FACT TH AT APART FROM CHEQUE TRANSACTION THERE WERE CASH TRANSACTIONS ALSO, THU S THE ADDITION BY THE AO WAS JUSTIFIED ON FACTS. THE GENERALISTIC EXPLANATION O FFERED BY THE ASSESSEE BEFORE THE CIT(A) MENTIONED IN PARA 7.2 IT WAS SUBMITTED IS MORE OR LESS A REPETITION OF WHAT WAS SUBMITTED IN THE APPEAL FOR 2006-7 AY AND SHOULD NOT HAVE BEEN ACCEPTED. ACCORDINGLY IT WAS HER PRAYER THAT THE F INDING ARRIVED IN PARA 7.5 MAY BE SET ASIDE FOR RE-CONSIDERATION AFRESH IN ORDER T O VERIFY THE FACTS. 46. THE LD.AR IN REPLY SUBMITTED THAT THE VERY FACT THAT THE EXPLANATION OFFERED IS RE-ITERATION OF THE FACTS AS ARGUED AND CONSIDERED IN THE APPEAL FOR 2006-7 AY WOULD SHOW THAT THE ASSESSEE HAS CONSISTE NTLY MAINTAINED THE SAME I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 90 STAND. THE SEIZED DOCUMENTS HAVE BEEN ADDRESSED CO MPLETELY SPANNING OVER THE YEARS THE ACTIVITIES OF THE ASSESSEE FOR THIS P ERIOD. THE NARRATION IN THE DOCUMENTS HAVE BEEN LINKED WITH THE RECORDINGS IN T HE BANK ACCOUNTS OF THE ASSESSEE AND ALSO OF ALL THE CONCERNED PARTIES. NO NE OF THESE EVIDENCES IT WAS SUBMITTED HAVE BEEN SHOWN TO BE INCORRECT; WRONG OR FALSE. IT WAS SUBMITTED THAT IT IS AN ADMITTED POSITION OF THE ASSESSEE AS WELL AS OF THE DEPARTMENT THAT THE ASSESSEE WAS ACTING AS A FACILITATOR FOR CONSOL IDATING LAND DEALS FOR VARIOUS CONCERNS AT DIFFERENT POINTS OF TIME DURING THIS PE RIOD. THIS POSITION IT WAS SUBMITTED HAS BEEN ACCEPTED BY THE AO AND NOT DISPU TED BY THE REVENUE. THE FACT THAT VARIOUS CONCERNS AT DIFFERENT POINTS OF T IME EITHER ACTED AS FRONTMEN FOR THE OTHER OR PASSED OFF THE DEALS TO THE OTHER BIGG ER PLAYERS ALL UTILIZED THE ASSESSEES SERVICES FOR NEGOTIATING THE LAND DEALS. THIS SIMILAR ACTIVITY FOR SOME OF THESE CONCERNS IT WAS SUBMITTED WAS ALSO DONE BY A FRIEND MR.SACHIN UPADHAYA IN HIS INDIVIDUAL CAPACITY UTILIZING THE F UNDS WHICH WERE MADE AVAILABLE TO HIM. THE UTILIZATION BY THE ASSESSEE OF THESE FUNDS EITHER IN CHEQUE OR CASH FOR AND ON BEHALF OF THESE CONCERNS WHERE M ONEYS DUE TO M/S SANRAJ HEALTH SERVICES P. LTD. WERE STILL OUTSTANDING ;THE SE FACTS IT WAS SUBMITTED HAVE ALL ALONG BEEN CONSISTENTLY EXPLAINED AND THE SAID EXPLANATION ON VERIFICATION HAS BEEN FOUND TO BE CORRECT BY THE CIT(A). THE RE VENUE NOW TO SUCCEED IN THE REQUEST FOR REMAND IT WAS SUBMITTED MUST SHOW SOME SHORT COMING IN THE FINDING ARRIVED AT. REFERRING TO THE RECORD IT WAS SUBMITTED THAT INITIALLY THE STRATEGY AND PLAN WAS THAT ALL TOKEN ADVANCE PAYMEN T WOULD BE PROVIDED BY M/S SANRAJ DIRECTLY FOR WHICH SOME DEALS WERE STRUC K IN JULY 2005 WITH THE UNDERSTANDING THAT THE FINAL SALE DEED WOULD BE EXE CUTED UPTO DECEMBER 2005. THUS AT THIS STAGE SANRAJ NEVER CAME OUT IN THE OPE N AND THE ASSESSEE WAS ACTING ON ITS BEHALF AND MR. SANDEEP SETHI WAS M/S SANRAJS MAN. THUS SANRAJ I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 91 DIRECTLY NEVER CAME OUT IN THE OPEN AND INSTEAD MAD E THE ASSESSEE TO OBTAIN THE GENERAL POWER OF ATTORNEY FROM THOSE PERSONS IN ITS FAVOUR WHERE THE ASSESSEE WAS TO FACILITATE THE REGISTRATION FINALLY IN FAVOU R OF THE M/S SANRAJ. FOR THE SAID PURPOSE M/S SANRAJ MADE AN AMOUNT OF RS.3.50 CRORE S AVAILABLE THROUGH CHEQUES AND RS.1.85 CRORES IN CASH AVAILABLE TO THE ASSESSEE OVER A PERIOD OF TIME. HOWEVER, DUE TO CERTAIN DELAYS ON THE PART O F M/S SANRAJ, MOST OF THE LAND DEALS IT WAS SUBMITTED FELL THROUGH AND LOT OF DISPUTES AROSE AND ARE STILL PENDING TILL DATE. IT WAS SUBMITTED THAT THE ASSES SEE STILL HAS TO RETURN THE ADVANCE OF RS.3.50 CRORE TO SANRAJ AFTER THE SETTLE MENT OF THESE DISPUTES. THE CASH COMPONENT OF RS.1.85 CRORE IT WAS SUBMITTED WA S UTILIZED FOR BUYING LAND OR WAS DISBURSED ON BEHALF OF SANRAJ DURING THE 20 06-07 AY. THE DOCUMENTS IN SUPPORT OF THE CLAIM IT WAS SUBMITTED HAVE BE EN ADDRESSED IN PAGES 30 & 31 OF THE IMPUGNED ORDER IN COMPLETE DETAIL. THESE COPIES IT WAS SUBMITTED ARE AVAILABLE IN THE PAPER BOOK FILED AND HAVE NOT BEE N ASSAILED BY THE REVENUE. IT WAS HIS ARGUMENT THAT WHERE THE SEIZED DOCUMENTS H AVE BEEN EXPLAINED BY THE ASSESSEE AND THE INCORRECT CONCLUSIONS DRAWN BY THE AO ON FACTS HAVE BEEN DEMONSTRATED TO BE SO I.E. INCORRECT THUS THE OCCAS ION TO AGAIN RESTORE THE VERY SAME EXPLANATION ALONGWITH THE EVIDENCES ALREADY AV AILABLE TO THE AO IN THE REMAND PROCEEDINGS AND ALSO TODAY IN THE PAPER BOO K IT WAS SUBMITTED CANNOT JUSTIFY THE ACCEPTANCE OF THE DEPARTMENTS REQUEST CASUALLY MADE WITHOUT ANY EFFORT TO SHOW HOW THE REQUEST MUST BE ACCEPTED IN LAW. IT WAS HIS SUBMISSION THAT THE VERY SAME DOCUMENT WHICH HAS BEEN EXTRACTE D IN THE ASSESSMENT ORDER SHOWS A UTILIZATION/DISBURSEMENT OF RS.1.85 CRORE O N THE RIGHT HAND SIDE MENTIONING THE DATE OF 06.11.2005. THE AO FOR REA SONS BEST KNOWN TO HIM DOES NOT WANT TO READ THE DOCUMENT IN FULL CHOOSIN G TO SELECTIVELY REFER TO SOME FACTS AND IGNORING THE REST TO SUIT HIS PURPOSES. THESE FACTS AND ARGUMENTS I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 92 HAVE BEEN EXAMINED AND ACCEPTED WHICH DESPITE HAVIN G COPY OF THE SEIZED DOCUMENTS IN THE PAPER BOOK THE REVENUE DOES NOT WA NT TO ADDRESS. ATTENTION WAS INVITED TO THE DETAILS AVAILABLE IN THE PAPER B OOK. HEAVY RELIANCE WAS PLACED ON THE WRITTEN SUBMISSIONS AT PAGE 32 & 33. THE ASSESSEE IT WAS SUBMITTED HAS ALSO RELIED UPON DATE-WISE. IN-FLOW A ND OUT-FLOW OF LAND IMPREST MONEY RECEIVED BY THE ASSESSEE BOTH IN CASH AND CHE QUE IN 2006-07 AY FROM SANRAJ WHICH HAS BEEN PREPARED ON THE BASIS OF SEIZ ED MATERIAL. IT WAS CATEGORICALLY STATED THAT THE SAID CHART HAS BEEN P REPARED ON THE BASIS OF SEIZED MATERIAL AND CORROBORATED EVIDENCES THAT NO FURTHER TRANSACTIONS, WHETHER IN CASH OR BY CHEQUES, WERE UNDERTAKEN BY THE ASSESSEE WITH SANRAJ THEREAFTER FROM 1/4/06 TILL 31/3/08. 46.1 . IT WAS FURTHER SUBMITTED THAT THE SEIZED PAPER SHO WING PAYMENT OF RS.13.5 CRORE INCLUDES THE PAYMENT OF RS.82 LACS MA DE TO MR.SACHIN UPDHAYA WHO WERE BOTH WORKING IN THEIR INDIVIDUAL CAPACITY IN ARRANGING LAND FOR M/S SANRAJ AT THAT POINT OF TIME AND MAKING PAYMENTS T O DIFFERENT LAND OWNERS FOR AND ON BEHALF OF THE SANRAJ. IT WAS EMPHASIZED THA T IN NONE OF THE AGREEMENTS OF THE ASSESSEE WITH SANRAJ, MR.SACHIN UPADHAYA WAS A PARTY, IT WAS SUBMITTED THAT HE WAS ONLY A WITNESS TO THOSE AGREEMENTS AND THESE TWO PERSONS WERE INDIVIDUALLY ACCOUNTABLE TO SANRAJ FOR UTILIZATION OF LAND IMPREST MONEY AND SINCE THE ASSESSEE REMITTED A SUM OF RS.82 LACS TO MR.SACHIN UPADHAYA AT THE BEHEST OF SANRAJ OUT OF ITS IMPREST. THUS FOR THE SAID AMOUNT THEREAFTER MR. SACHIN UPADHAYA ALONE WAS ACCOUNTABLE TO SANRAJ AS TO ITS UTILIZATION AND THE ASSESSEE WAS NO LONGER ACCOUNTABLE. THUS ALL THE O THER PAYMENTS LISTED IN THE OTHER SEIZED DOCUMENTS IT WAS SUBMITTED WAS DISBURS ED BY THE ASSESSEE TO SANRAJS LOCAL STAFF AND ITS OTHER ASSOCIATES FOR A ND ON BEHALF OF SANRAJ TILL 06.11.2005. RS. 25 LACS AND RS.17 LACS ACCORDINGLY WERE GIVEN TO MR. GOVIND I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 93 AND MR. SHARAD RESPECTIVELY WHO WERE ASSOCIATES OF SANRAJ IN DEHRADUN. RS.11.585 LACS WAS GIVEN TO SANRAJS STAFF WHICH WA S TEMPORARILY BASED IN DEHRADUN. IT WAS SUBMITTED THAT THE ENTIRE CASH O F RS.1.85 CRORE STOOD DISBURSED ON BEHALF OF M/S SANRAJ AND ONLY THE CHEQ UES TOTALING TO RS.3.50 CRORE REMAINED UN-SPENT AS A RESULT OF THIS THE ASS ESSEE DECLARED NET LIABILITY OF RS.3.50 CRORE DUE TO SANRAJ IN HIS PERSONAL STATEME NT OF AFFAIRS AS ON THAT DATE. HEAVILY RELYING UPON THE EXPLANATION OFFERED BEFORE THE CIT(A) AND CONFRONTED TO THE AO IT WAS SUBMITTED THAT THE RELIEF GRANTED IN PARA 7.5 MAY BE UPHELD. 47. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE EXPLANATION OFFERED BY THE ASSESSEE EXTRACTED IN PARA 7.2 CONSIDERED ALONGWITH REMAND REPORT WITH LD. ARS RE -JOINDER AND THE CONCLUSION ARRIVED AT IN ITA NO.3150/DEL/2011 WE FI ND ON CONSIDERATION FULLY SUPPORTS THE VIEW TAKEN BY THE CIT(A). WE FIND THA T THE LD. CIT DR HAS NOT REBUTTED ANY OF THE FACTS AND EVIDENCES ON RECORD A ND HAS MERELY REQUESTED A REMAND. THE REQUEST HAS BEEN MADE WITHOUT BRING ON RECORD ANY FACT WRONGLY CONSIDERED BY THE CIT(A) OR ANY FACT WRONGLY IGNORE D. WITHOUT ADDRESSING ANY REASON OR ARGUMENT IN SUPPORT OF THE REQUEST WE FIN D THE REQUEST CANNOT BE ACCEPTED, WITHOUT ANY VALID JUSTIFICATION. WE HAVE ALREADY ADDRESSED THIS REQUEST RE-ITERATED ON BEHALF OF THE REVENUE ON SIM ILAR REASONING QUA THE OTHER DEPARTMENTAL GROUNDS. THE PRAYER SO MADE WE FIND H AS NOT BEEN SUPPORTED BY ANY COGENT ARGUMENT OR FOR THAT MATTER ANY ARGUMENT JUSTIFICATION HOW IT DESERVES TO BE ALLOWED. ON GOING THROUGH THE MATERI AL AVAILABLE ON RECORD, WE FIND NO GOOD REASON IN THE FACTS AS THEY STAND JUST IFYING INTERFERENCE WITH THE FINDING ARRIVED AT BY THE CIT(A). WE FIND THAT THE FOLLOWING REMAND REPORT OF THE AO DOES NOT INSPIRE ANY CONFIDENCE:- 7.3. AOS REMAND REPORT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 94 THE VIEW TAKEN BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS ON A PARTICULAR DOCUMENT SEIZED DURING SEARCH CANNOT BE REVIVED AT THIS STAGE AND THE ADDITION MADE IN THIS REGARD SHOULD BE SUSTAINED. 48.1. ON THE OTHER HAND CONSIDERING THE DEPARTMENTAL ARG UMENTS, WE FIND THAT THE REASONING AND CONCLUSION OF THE CIT(A) ARRIVED AT DESERVES TO BE UPHELD. BEING SATISFIED WITH THE FINDINGS ARRIVED AT THERE IN THE DEPARTMENTAL GROUND IS DISMISSED. THE RELEVANT FINDING IS REPRODUCED HERE UNDER:- 7.5. DECISION AND REASONS THEREFOR: I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITION. I HAVE ALREADY HELD I N GROUND NO. 3 OF THE ASSESSEE'S APPEAL NO. 196/09-10 FOR THE AY 2006-07 THAT IN THIS ASSESSMENT ORDER FOR THE AY 2008-09, THE AO HAS ONL Y CONSIDERED THE CONTENTS ON THE LEFT HAND SIDE (LHS) OF THE IMPUGNE D SEIZED PAGE NO. 23 OF THE ANNEXURE LP-5 AND IGNORED THE RIGHT HAND SID E (RHS) PORTION ALL TOGETHER, WHICH ACTUALLY CONTAINS THE DATE 06-11-05 WRITTEN CLEARLY THEREIN, WHILE NO OTHER DATE IS FOUND WRITTEN ON IT . THUS, THIS PAPER CANNOT BE HELD AS AN UNDATED PAPER, THE COGNIZANCE OF WHICH MUST BE TAKEN IN THE YEAR OF SEARCH. MOREOVER, EVEN THE TRANSACTIONS OF 'RS. 75 LACS CAS H' AND OF'RS. I CR. BANK' RECORDED ON LHS MATCH WITH THE RECEIPTS OF TH E SAID SUMS ON 10- 10-05 FROM M/S SANRAJ HEATH SERVICES (P) LTD., WHIC H AGAIN IS SQUARELY VERIFIABLE FROM THE SEIZED RECEIPTS DATED 10-10-05 AT PAGE NOS. 59 AND 57 OF THE ANNEXURE LP-3 RESPECTIVELY AND ALSO ADMIT TED AS SUCH BY THE AO IN THE ASSESSMENT ORDER FOR THE AY 2006-07. THUS , EVEN THE CONTENTION OF THE AO THAT THE SUM OF RS. 1.75 CRORE REPRESENTS UNEXPLAINED PAYMENTS MADE BY THE APPELLANT IN CASH TOWARDS PROCUREMENT OF LAND DOES NOT HOLD ANY WATER, SINCE THE SAME IS FACTUALLY THE RECEIPT OF MONEY FROM MLS SANRAJ HEAL TH SERVICES (P) LTD. THUS, THERE REMAINS NO DOUBT IN MY MIND THAT THE SA ID DOCUMENTS CONTAINS TRANSACTIONS PERTAINING TO THE PREVIOUS YE AR 2005-06, I.E., RELEVANT TO THE AY 2006-07 AND NOT THE AY 2008-09; AND ALSO THAT THE SAID SUM OF RS. 1.75 CRORES REPRESENTS RECEIPT IN C ASH FROM SANRAJ. ACCORDINGLY, THE SAID SEIZED DOCUMENT WAS CONSIDERE D BY ME FOR ASSESSMENT IN THE AY 2006-07 ONLY TO WHICH IT FACTU ALLY PERTAINED AND' IT IS MY CONSIDERED VIEW THAT ITS COGNIZANCE CANNOT BE TAKEN IN THE AY 2008-09 AT ALL. ACCORDINGLY, THE ADDITION OF RS. 1.75 CRORE MADE FO R UNEXPLAINED INVESTMENT BY THE AO IN THE AY 2008-09 IS HEREBY DE LETED. 49. ADDRESSING GROUND NO.4 THE LD. CIT DR INVITING ATT ENTION TO THE FINDINGS OF THE AO SUBMITTED THAT THE ASSESSEE WAS REQUIRED TO EXPLAIN THE LOANS FROM I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 95 HIS MOTHER-IN-LAW SMT. KAUSHLYA SEHGAL AND FROM MR. SACHIN UPADHAYA. ACCORDINGLY TO THE EXTENT OF RS.25,000/- SOUGHT TO BE EXPLAINED FROM THE MOTHER-IN-LAW IT WAS HER SUBMISSION THAT THE EXPLAN ATION ACCEPTED MAY BE UPHELD BUT FOR MR. SACHIN UPADHYA SHE WOULD RELY UP ON THE FINDINGS OF THE AO IN 2006-07 AY. APART FROM THAT IT WAS SUBMITTED S HE WOULD ALSO RELY UPON THE FINDINGS ARRIVED AT BY THE AO IN THE YEAR UNDER CON SIDERATION. IT WAS SUBMITTED THAT BEFORE THE AO, THE ASSESSEE DID NOT OFFER ANY EXPLANATION IN REGARD TO THE LOANS, THE ADDITIONS ACCORDINGLY WERE JUSTIFIED ON FACTS. RELYING UPON THE REMAND REPORT IT WAS SUBMITTED THAT THE ADDITIONAL EVIDENCE HAS CORRECTLY BEEN REJECTED BY THE AO. 50. LD.AR ON THE OTHER HAND INVITING ATTENTION TO THE SUBMISSIONS ADVANCE BEFORE THE CIT(A) WHICH ARE EXTRACTED IN PARA 8.2 A ND THE RE-JOINDER TO THE REMAND REPORT OF THE AO RECORDED IN PARA 8.4 SUBMIT TED THAT THE AO IN HIS ZEAL TO MAINTAIN THE ADDITION IN THE REMAND REPORT FORGO T TO ADDRESS THE BASIC FACTS THAT RS.25,000/- WAS TAKEN FROM MRS. KAUSHLYA SEHG AL, MOTHER-IN-LAW OF THE ASSESSEE I.E. MOTHER OF MS. ECCHA JOSHI I.E WIFE OF THE ASSESSEE. IT WAS SUBMITTED THAT SINCE THE ISSUE OF LOAN FROM MS. KAU SHLYA SEHGAL IS NOT SERIOUSLY DISPUTED BY THE LD.CIT DR, HE WOULD CONFINE HIS ARG UMENTS ONLY TO THE UNSECURED LOANS OF RS.1.01 CRORE FROM MR.SACHIN UPA DHAYA. THE DETAILS OF THIS IT WAS SUBMITTED HAVE BEEN ADDRESSED BY THE ASSESSE E AND HAVE BEEN REPRODUCED IN THE ORDER UNDER CHALLENGE AND ALSO AV AILABLE IN THE PAPER BOOKS FILED. THE EXPLANATION OF THE ASSESSEE REPRODUCED IN THE ORDER IT WAS SUBMITTED WOULD SHOW THAT SPECIFIC CHEQUE NOS., DATES AND AMO UNTS HAVE ALL BEEN MENTIONED AND ADDRESSED AND THESE HAVE BEEN SUPPORT ED AND LINKED WITH THE SPECIFIC BANK DETAILS OF THE ASSESSEE AND MR.SACHIN UPADHAYA. THESE ARGUMENTS AND SUBMISSIONS ON FACTS HAVE BEEN ADDRES SED AND ARE EXTRACTED IN I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 96 PAGES 39-40 OF THE ORDER. PHOTOCOPIES OF THE TWO B ANK STATEMENTS MADE AVAILABLE TO THE CIT(A) ARE ALSO AVAILABLE IN THE P APER BOOK AND WERE ALSO MADE AVAILABLE TO THE AO IN THE REMAND PROCEEDINGS AND B ASICALLY CONSISTS OF SEIZED DOCUMENTS AND BANK ACCOUNTS OF THE PARTIES. THE VE RY SAME AO IT WAS SUBMITTED HAS ASSESSED THE TOTAL INCOME OF MR.SACHI N UPADHAYA AS RS. 39.38 LACS FOR 2008-09 AY. ACCORDINGLY THE IDENTITY AND CREDITWORTHINESS OF THE SAID CREDITOR WAS FULLY KNOWN TO THE AO. INVITING ATTEN TION TO THE RE-JOINDER TO THE REMAND REPORT FILED BY THE ASSESSEE AND ALSO REPROD UCED IN THE ORDER IT WAS SUBMITTED THAT DESPITE CONFRONTING THESE FACTS AND EVIDENCES, THE AO MERELY OBSERVES THAT MR. SACHIN UPADHAYA IS ALSO ASSESSED TO TAX IN THE SAME CIRCLE AND THE ASSESSMENT IN HIS CASE WAS ALSO MADE AT THE SAME TIME AS THE ASSESSMENT WAS COMPLETED IN THE CASE OF THE ASSESSE E. THUS THE FACTS ARE NOT DISPUTED AND IN NO WAY CAN IT BE SAID TO BE UPSETTI NG THE FACTS AS CLAIMED BY THE ASSESSEE. THUS WHEN THESE FACTS ARE CONFRONTED IN T HE REMAND PROCEEDINGS AND THESE FACTS ARE NOT ASSAILED EVEN TODAY THE FINDING ARRIVED AT IN PARA 8.5, IT WAS HIS SUBMISSION CANNOT BE UPSET. 51. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. AS EXAMINED IN GREATER DETAILS EARLIER, WE HAVE FOUND THAT ADMISSION OF FRESH EVIDENCES BEFORE THE CIT(A) WAS WARRANTED ON ACCOUNT OF LACK OF EFFECTIVE OPPORTUNITY TO THE ASSESSEE BEFORE THE AO. WE HAVE ALSO SEEN THAT THE EVIDENCES CONSIDERED HAVE BEEN CONFRONTED TO THE AO. A PERUSA L OF PARA 4 OF THE IMPUGNED ORDER WOULD SHOW THAT REPEATEDLY REMAND REPORT HA S BEEN SOUGHT BY THE CIT(A) AND FINALLY IN THE ABSENCE OF THE SAME THE C IT(A) HAS PROCEEDED TO EXAMINE THE VERACITY OF THE EVIDENCES AT HIS OWN LE VEL HOLDING THAT THE POWERS OF THE CIT(A) ARE CO-TERMINUS WITH THAT OF THE AO. IN THE SAID EXERCISE, VERIFICATION OF THE ADDITIONAL EVIDENCES WAS UNDERTAKEN BY THE C IT(A) HIMSELF REQUIRING THE I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 97 ASSESSEE TO PRODUCE THE WITNESSES AND DEPONENTS OF THE AFFIDAVIT FOR EXAMINING THEM ON OATH ON 25.02.2011. WE HAVE SEEN THAT IN T HE MEANTIME, THE REMAND REPORT OF THE AO WAS ALSO MADE AVAILABLE. THE WITN ESSES ETC. AND THE CONCERNED PARTIES WHO HAD FILED THEIR AFFIDAVIT, THEIR STATEM ENT ON OATH IN THE MEANTIME WERE ALSO RECORDED. THE IMPUGNED ORDER IT IS SEEN HAS BEEN PASSED ON 24.03.2011 AFTER CONSIDERING THE REMAND REPORT AND THE VERIFICATION OF THE EVIDENCES BY THE CIT(A). IT WOULD BE NOTE WORTHY T O OBSERVE THAT THE WRITTEN SUBMISSIONS EXTRACTED IN THE IMPUGNED ORDER DATED 1 2.12.2010 WERE FORWARDED TO THE AO ON 17.02.2010 AND AFTER FREQUENT REMINDER S TO SUBMIT REMAND REPORT IT WAS FINALLY MADE AVAILABLE ONLY ON 24.02.2011 FO R THE THREE YEARS INCLUDING THE YEAR UNDER CONSIDERATION. THE RELEVANT EVIDENC ES ARE AVAILABLE IN THE PAPER BOOKS FILED. THUS IN THESE PECULIAR FACTS AND CIRCU MSTANCES WHERE THE ASSESSEE IS MAKING A CLAIM THAT THE AMOUNTS ADVANCED THROUGH CHEQUES FROM A SPECIFIC BANK ACCOUNT OF MR.SACHIN UPADHAYA WHO AS PER THE E VIDENCE AVAILABLE ON RECORD LIKE THE ASSESSEE WAS ALSO ACTING AS A FACI LITATOR FOR LAND CONSOLIDATING DEALS FOR THE PARTIES AND THE SAID PERSON HAS BEEN ASSESSED WITH THE VERY SAME AO THUS THE EXPLANATION RELYING ON THE SEIZED DOCUM ENTS AND SUPPORTED BY THE RESPECTIVE BANK ACCOUNTS OF THE ASSESSEE AND MR. SA CHIN UPADHAYA AND THE OTHER PARTIES, INVOLVED WHOSE CORRECTNESS REMAINS U NREBUTTED THE PRAYER FOR THE REMAND CANNOT BE ACCEPTED. IN THE FACE OF THE EVID ENCES AVAILABLE ON RECORD WHERE THE CORRECTNESS OF THE EXPLANATION OFFERED BY THE ASSESSEE HAS NOT BEEN DEMOLISHED BY EITHER REFERRING TO SOME FACT ON RECO RD WHICH HAS BEEN IGNORED OR WITHOUT REFERRING TO A FACT WHICH CAN BE SAID TO BE WRONGLY CONSIDERED. WITHOUT ANY SUCH EFFORT THE PRAYER FOR A REMAND BASED PUREL Y ON THE LEAP OF FAITH IN FAVOUR OF THE REVENUE CANNOT BE ALLOWED. SOME ARGU MENT WORTHY OF BRING ACCEPTED HAS TO BE MADE. A PRESUMPTION THAT THE AS SESSEE MUST BE WRONG I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 98 CANNOT BE DRAWN. IN THE PECULIAR FACTS AND CIRCUMS TANCES OF THE CASE AND IN THE ABSENCE OF ANY INFIRMITY IN THE IMPUGNED ORDER, WE FIND NO GOOD REASON TO EITHER JUSTIFY UPSETTING THE FINDING OR TO DIRECT A REMAND OF THE ISSUE. FINDING OURSELVES IN AGREEMENT WITH THE CONCLUSIONS DRAWN THE DEPARTMENTAL GROUND IS DISMISSED. THE RELEVANT FINDING IS EXTRACTED HEREU NDER FOR READY-REFERENCE:- 8.5. DECISION AND REASONS THEREFOR: I. FOR SUM CREDITED ON 05-06-07 IN SB ALC # 12485 WITH CANARA BANK - RS. 25,000/- I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITION. CERTIFICATE DATED 25- 01-10 OF LIC OF INDIA FURNISHED BY THE APPELLANT DURING THE APPELLATE PRO CEEDINGS CLEARLY REVEALS THAT THE SAID SUM OF RS. 25,0001- FOUND CRE DITED ON 05-06-07 IN THE SB ALE # 12485 OF THE APPELLANT HAD BEEN RECEIV ED AGAINST THE LIFE INSURANCE POLICY # 113449740 OF THE APPELLANT'S WIF E, MRS. ECHHA JOSHI FROM LIC OF INDIA. IT HAS ALSO BEEN VERIFIED FROM T HE RELEVANT PASSBOOK THAT THE SAID BANK ACCOUNT WAS JOINTLY HELD BY THE APPELLANT WITH HIS WIFE, WHERE THE IMPUGNED CHEQUES RECEIVED BY HER FR OM LIC WAS DEPOSITED. THUS, SINCE THE APPELLANT HAS DECLARED T HE SAID BANK ACCOUNT IN HIS BOOKS, THE SAID SUM BECOMES HIS LIABILITY TO WARDS MS. ECHHA JOSHI, THOUGH AS PER THE APPELLANT, INADVERTENTLY T HE SAME HAD BEEN RECORDED AS DUE TO MRS. KAUSHALYA SEHGAL IN THE COM PUTERIZED BOOKS OF ACCOUNT SPECIALLY PREPARED TO EXPLAIN TRANSACTIONS FOR THE PURPOSE OF ASSESSMENTS CONSEQUENT TO SEARCH. MRS. ECHHA JOSHI WAS ALSO COVERED IN THE SAME SEARC H ALONG WITH HER HUSBAND, THE APPELLANT AND ALSO ASSESSED. THUS, ALL THE THREE ESSENTIAL COMPONENTS OF SECTION 68 REGARDING IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF TRANSACTION GETS SQUARELY PROVED IN THIS CASE AND THE ADDITION OF RS. 25,000/- SO MADE IS DELETED. II. FOR UNSECURED LOAN TAKEN FROM MR. SACHIN UP ADHAYA - RS. 1.01 CRORE I HAVE PERUSED THE FACTS OF THE CASE AND DOCUMENTS FURNISHED BY THE APPELLANT AND ALSO THE RELEVANT CONTENTS OF THE ASS ESSMENT ORDER IN RESPECT OF THE SAID ADDITION. I HAVE ALREADY HELD T HAT REASONABLE 1 SUFFICIENT TIME WAS NOT GRANTED BY THE AO TO THE AS SESSEE TO FILE THE REQUISITE EVIDENCES DURING THE ASSESSMENT PROCEEDIN GS AND THESE EVIDENCES FURNISHED NOW MUST BE ADMITTED SINCE THEY GO TO THE VERY ROOT OF THE MATTER. NOW, COMING TO THE CREDIT ENTRIES AGGREGATING TO RS . 1.01 CRORE, EACH RECEIPT COMPRISED IN THE SAID SUM HAS BEEN VERIFIED FROM THE BANK STATEMENTS OF MR. SACHIN UPADHAYA DURING THE APPELL ATE PROCEEDINGS AND FOUND TALLYING WITH THE BANK STATEMENTS OF THE APPELLANT. IT HAS ALSO BEEN VERIFIED THAT THE APPELLANT ALSO REPAID R S. 85.50 LACS BACK TO MR. SACHIN UPADHAYA DURING THE SAME YEAR, HENCE LEA VING A NET LIABILITY I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 99 OF RS. 2,18,50,0001- PAYABLE TO HIM AS ON 31-03-08, WHICH IS FOUND DULY DECLARED IN THE STATEMENT OF AFFAIRS AS ON THA T DATE OF THE APPELLANT. FROM THE ASSESSMENT ORDER IT IS NOTED THAT THE AO M ADE THE ADDITION OF RS. 1.01 CRORE IN THE HANDS OF THE APPELLANT UNDER THE AVERMENT THAT THE APPELLANT COULD NOT FURNISH A CONFIRMATION OF LOAN FROM MR. SACHIN UPADHAYA ALONG WITH HIS BANK STATEMENT AND THE RELE VANT INCOME-TAX RETURN TO PROVE IDENTITY, GENUINENESS AND CREDITWOR THINESS OF THE SAID CREDITOR. WHEREAS, IT IS SEEN FROM THE COPY OF THE ASSESSMENT ORDER DATED 23-12-09 FOR THE AY 2008-09 FRAMED U/S 144 OF THE SAID CREDITOR, MR. SACHIN UPADHAYA, AS PROVIDED BY THE APPELLANT T HAT IT HAS BEEN FRAMED BY THE SAME ASSESSING OFFICER ON THE SAME DA TE, I.E., ON 23-12- 09 ASSESSING HIS TOTAL INCOME AT RS. 39.38 CRORES. THUS, THE IDENTITY AND CREDITWORTHINESS OF THE SAID CREDITOR CANNOT BE DIS PUTED. ALSO, IT IS CLEAR FROM THE ASSESSMENT ORDERS OF THE APPELLANT AND MR. SACHIN UPADHAYA THAT THEY WERE CLOSE BUSINESS ASSOCIATES WHO WERE C ARRYING OUT THE LAND CONSOLIDATION WORK FOR PRATEEK OF ATS GROUP AS FACILITATORS TOGETHER AND THEY HAD EARNED CONSIDERABLE AMOUNT FROM SALE O F PRATEEK'S SHARE TO ATS DURING THE RELEVANT PREVIOUS YEAR. THUS, EVE N THE SOURCE OF ADVANCING RS. 1.01 CRORES BY MR. SACHIN UPADHAYA TO AND ON BEHALF OF THE APPELLANT CANNOT BE DOUBTED. ACCORDINGLY, THE IDENTITY, GENUINENESS AND CREDITWO RTHINESS OF THE SAID CREDITOR FOR ADVANCING LOAN OF RS. 1.01 CRORES TO T HE APPELLANT STAND PROVED, AND THE ADDITION MADE U/S 68 OF THE ACT IS DELETED. 52. THE REMAINING GROUNDS 5 & 6 WE FIND IN SUPPORT OF THE GROUNDS 1 TO 4 HAVE ALREADY BEEN ADDRESSED AND THUS BEING GENERAL IN NATURE WE FIND REQUIRE NO SPECIFIC ADJUDICATION. GROUND NO.7 BEING A RESID UARY GROUND HAS NOT BEEN PRESSED. 53. ITA NO.3152/DEL/2011 ACCORDINGLY IS DISMISSED. IN THE RESULT THE APPEALS OF THE REVENUE ARE DISMI SSED. SD/- SD/- (O.P. KANT) (DI VA SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED: THE 19.04.2016 *AMIT/BINITA/VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT I.T.A .NO.-3150 TO 3152/DEL/2011 PAGE 100 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMB 5. DATE OF AP PROVED ORDER COMES TO THE SR. P 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER
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