Sh. Simmardeep Singh, Ludhiana V. ITO, Ludhiana

ITA 343/CHANDI/2014

• Counselvise Citation: 34321514 RSA 2014
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 03-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHIL KUMAR
• Assessee Lawyers: ASHWANI KUMAR
• Keywords: Salary income; Principle of natural justice; Opportunity of cross examination; Third party statement; Retraction
• Section: 131; 132; 28; 92; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 343/CHD/2014 ASSESSMENT YEAR: 2010-11 SHRI SIMMARDEEP SINGH, VS THE ITO, 39-1, SARABHA NAGAR, WARD VI(3), LUDHIANA. L UDHIANA PAN: ATCPS0775R & ITA NO. 442/CHD/2015 ASSESSMENT YEAR: 2010-11 SHRI AMANDEEP SINGH, VS THE ITO, B-XXIX/51/1, WARD V(1), DABA ROAD, LUDHIANA. G.T.ROAD, LUDHIANA. PAN: ATPS0673G & ITA NO. 670/CHD/2015 ASSESSMENT YEAR: 2010-11 SHRI JAGPREET SINGH, VS THE ITO, B-XXIX/51/1, WARD V(2), DABA ROAD, LUDHIANA. G.T.ROAD, LUDHIANA. PAN: ANHPS0591C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR RESPONDENT BY : SHRI SUSHIL KUMAR DATE OF HEARING : 08.12.2015 DATE OF PRONOUNCEMENT : 22.12.2015 2 O R D E R PER BHAVNESH SAINI,JM THIS ORDER SHALL DISPOSE OFF ALL THE ABOVE APPEALS FILED BY DIFFERENT ASSESSEES AGAINST DIFFERENT ORDE RS OF LD. CIT(APPEALS)-II LUDHIANA FOR ASSESSMENT YEAR 20 10- 11. SINCE ISSUE IS SAME, THEREFORE, ALL APPEALS WER E HEARD TOGETHER AND WE DISPOSE OFF THE SAME THROUGH COMMON CONSOLIDATED ORDER. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. SINCE FACTS ARE SAME, THEREFORE, WE TAKE UP THE APPEALS FOR THE PURPOSE OF DISPOSAL ON THE BASIS OF THE FACTS CONSI DERED IN ITA 343/2014. ITA 343/2014 3. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-II LUDHIANA DATED 28.02.2 014 FOR ASSESSMENT YEAR 2010-11 CHALLENGING THE ADDITIO N OF RS. 65 LACS ON ACCOUNT OF ALLEGED EXTRA AMOUNT PAID IN CASH FOR PURCHASE OF 1/3 RD SHARE OF PROPERTY NO. 13J, SARABHA NAGAR, LUDHIANA. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.1,76,060/-. 3 THE ASSESSEE'S MAIN SOURCE OF INCOME IS SALARY UNDE R THE HEAD INCOME FROM SALARY AND SAVING INTEREST F ROM BANK AND OTHER INTEREST FROM SHAHPURI GROUP OF INDUSTRY UNDER THE HEAD INCOME FROM OTHER SOURCES . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE ASSESSEE HAS PURCHASED HOUSE NO. 13J , SARABHA NAGAR, LUDHIANA MEASURING 166.66 SQ. YARD F OR CONSIDERATION OF RS. 22 LACS. THE ASSESSING OFFICE R ASKED FOR THE EXPLANATION OF THE ASSESSEE AND ISSUE D SHOW CAUSE NOTICE WHICH IS REPRODUCED IN THE ASSESSMENT ORDER IN WHICH THE ASSESSING OFFICER NOT ED THAT AS PER INFORMATION, ASSESSEE HAS PURCHASED HOU SE NO. 13-J, SARABHA NAGAR, LUDHIANA MEASURING 166.66 SQ.YDS. (1/3 RD SHARE OF 50 SQ. YDS.) FOR CONSIDERATION OF RS. 22 LACS IN ASSESSMENT YEAR UNDER APPEAL. IT WA S BROUGHT TO THE KNOWLEDGE OF THE ASSESSEE THAT INFORMATION WAS RECEIVED THAT A CASH OF RS. 2 CR HA S BEEN SEIZED BY THE POLICE AUTHORITIES FROM THE FACT ORY OF M/S SAGAR ENGINEERING WORKS, LUDHIANA. BY VIRTUE OF AUTHORIZATION UNDER SUB-SECTION (1) OF SECTION 132A OF THE INCOME TAX ACT WAS ISSUED IN THIS CASE AND STATEMENT OF SHRI JASWANT SINGH, PROPRIETOR OF M/S SAGAR ENGINEERING WORKS, LUDHIANA WAS RECORDED ON OATH DURING THE COURSE OF OPERATION UNDER SECTION 132A OF THE ACT ON 07.04.2010. IT WAS STATED BY SHRI JA SWANT SINGH THAT PROPERTY NO. 13-J, SARABHA NAGAR, LUDHIA NA WAS SOLD FOR A CONSIDERATION OF RS. 2.66 CR AND THA T A SUM OF RS. 2 CR WAS RECEIVED IN CASH AND BALANCE 4 AMOUNT OF RS. 66 LACS WAS RECEIVED BY WAY OF CHEQUE IN FAVOUR OF HIM AND HIS SON SHRI RAHUL. IT WAS FURTH ER STATED THAT REGISTRY IN RESPECT OF PROPERTY IN QUES TION HAS BEEN DONE FOR A CONSIDERATION OF RS. 66 LACS BU T THE ACTUAL RECEIPT OF THE AMOUNT WAS RS. 2.66 CR. IT W AS STATED THAT RELEVANT ENTRIES HAVE BEEN MADE IN THEI R BOOKS OF ACCOUNT AND RESPECTIVE TAX SHALL BE PAID I N DUE COURSE. THE HOUSE IN QUESTION IS JOINT PROPERTY IN THE NAME OF SHRI JASWANT SINGH AND HIS SON SHRI RAHUL W ITH SHARE OF 3:1 AND THAT DUE CAPITAL GAIN FROM THE SAL E OF PROPERTY WILL BE PAID BY THEM. ON PERUSAL OF THE CONVEYANCE DEED, IT CAME TO THE NOTICE THAT PROPERT Y WAS PURCHASED BY SHRI SIMARDEEP SINGH AND HIS TWO OTHER BROTHERS SHRI AMANDEEP SINGH AND SHRI JAGPREE T SINGH, OTHER ASSESSEES IN THE PRESENT APPEALS. 5. SHRI JASWANT SINGH AND SHRI RAHUL FILED THEIR RETURN OF INCOME FOR ASSESSMENT YEAR UNDER APPEAL I .E. 2010-11 WHEREIN THEY HAVE DECLARED INCOME UNDER THE HEAD SHORT TERM CAPITAL GAIN AT RS. 1.53 CR AND RS. 52,12,500/- FROM SALE OF PROPERTY IN QUESTION BY DECLARING SALE CONSIDERATION AT RS.2.66 CR AND PAID DUE TAX ON CAPITAL GAIN ACCORDINGLY. 6. IN VIEW OF THE STATEMENT GIVEN BY SHRI JASWANT SINGH AND ALL THE MORE, THE CORROBORATIVE EVIDENCE IN THE FORM OF INCOME TAX RETURN FILED BY SHRI JASWANT SINGH AND SHRI RAHUL WHEREIN TOTAL CAPITAL GAIN HAS BEEN SHOWN IN THE RETURN OF INCOME ON SALE 5 CONSIDERATION OF RS. 2.66 CR, THE ASSESSING OFFICER CONSIDERED THAT ASSESSEE HAS MADE INVESTMENT OF RS. 88,66,666/- BEING 1/3 RD OF THE TOTAL CONSIDERATION OF RS.2.66 CR OUT OF WHICH ASSESSEE HAS PAID RS. 22 LA CS AFTER WITHDRAWALS MADE BY ASSESSEE FROM THE BANK, ASSESSEE WAS REQUESTED TO FURNISH SOURCE OF THE BAL ANCE AMOUNT OF RS. 66,66,666/- ALONG WITH DOCUMENTARY EVIDENCE FOR PURCHASE OF THE PROPERTY IN QUESTION. 7. THE ASSESSEE SUBMITTED WRITTEN REPLY BEFORE ASSESSING OFFICER WHICH IS REPRODUCED IN THE ASSESS MENT ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT HE HAS NOT PAID ANY EXTRA MONEY FOR PURCHASE OF RESIDE NTIAL PROPERTY IN QUESTION EXCEPT THE AMOUNT MENTIONED IN THE SALE DEED. THE STATEMENT OF SHRI JASWANT SINGH AND SHRI RAHUL ON THE BASIS OF WHICH NOTICE HAVE BE EN ISSUED, IS NOT A TRUE STATEMENT. THE ASSESSEE PURC HASED THE PROPERTY ON 09.03.2010 WHEREAS THE CASH WAS SEI ZED ON 07.04.2010, THEREFORE, IT IS CLEAR THAT CASH WAS SEIZED AFTER 30 DAYS FROM THE DATE OF PURCHASE AND IT APPEARS IN-PRACTICAL THAT SUCH HUGE MONEY WAS KEPT IN THE FACTORY PREMISES FOR SUCH A LONG TIME HIDDEN IN MACHINES RECOVERED BY THE POLICE. BOTH OF THEM HAV E GIVEN THIS STATEMENT IN ORDER TO SAVE EXCISE DUTY A ND SALES TAX. BOTH OF THEM DID NOT HAVE ANY EVIDENCE TO PROVE THAT ANY EXTRA MONEY HAS BEEN PAID BY THE ASSESSEE TO THEM. THE INCOME TAX RETURN FILED BY T HEM IS NOT CORROBORATIVE EVIDENCE AS THIRD PARTY IS FRE E TO FILE 6 ANY RETURN IN THEIR OWN MANNER. THE PROPERTY IN DISPUTE WAS PURCHASED BY SHRI JASWANT SINGH AND SHR I RAHUL IN MARCH,2008 AND JULY,2008 FOR RS. 55.50 LAC S AND IT IS PRACTICALLY IMPOSSIBLE THAT VALUE OF THE PROPERTY HAS INCREASED FROM RS. 55.50 LACS TO RS. 2 .66 CR IN TWO YEARS. COPY OF THE PURCHASE DEED OF SHRI JASWANT SINGH WAS FILED. THE ASSESSEE REQUESTED THE ADIT VIDE LETTER DATED 26.04.2010 TO SUPPLY COPY OF STATEMENTS OF SHRI JASWANT SINGH AND SHRI RAHUL AND TO ALLOW OPPORTUNITY TO CROSS-EXAMINE BOTH OF THEM BUT TILL DATE, COPIES OF THEIR STATEMENTS RECORDED BY ADIT H AVE NOT BEEN PROVIDED TO ASSESSEE AND NO OPPORTUNITY HA VE BEEN GIVEN TO CROSS-EXAMINE THEM. THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO SUPPLY COPY OF T HE FULL STATEMENT, BALANCE SHEET OF SHRI JASWANT SINGH AND SHRI RAHUL SAGAR ALONGWITH COPY OF FIR LODGED WITH THE POLICE BY THEM FOR THEFT OF MONEY FROM THE FACTORY. NO ADDITION COULD BE MADE ON THE BASIS OF THIRD PARTY STATEMENT. 7(I) THE ASSESSEE RELIED UPON DECISION OF THE HON'B LE SUPREME COURT IN THE CASE OF P.V. KALYANASUNDARAM 1 64 TAXMAN 78 WHEREIN IT WAS HELD THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT OF VENDOR. THE ASSESSEE ALSO RELIED UPON SEVERAL OTHER DECISIONS O N THE PROPOSITION THAT WHEN THERE IS NO MATERIAL TO PROVE THAT ANY ADDITIONAL INVESTMENT HAVE BEEN MADE OVER THE S ALE DEED, ADDITION WOULD BE UNJUSTIFIED. THE ASSESSEE ALSO 7 RELIED UPON DECISION OF THE HON'BLE PUNJAB & HARYAN A HIGH COURT IN THE CASE OF PARAMJIT SINGH V ITO 323 ITR 588 IN WHICH IT WAS HELD THAT, THERE IS WELL KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE DOCUMENT CONTAINS ALL THE TERMS AND CONDITIONS. T HE ASSESSEE ALSO RELIED UPON DECISION OF HON'BLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF HARPAL SINGH 169 TAXMAN 90 WHEREIN IT HAS BEEN HELD THAT, SINCE THE RE IS NO MATERIAL OR EVIDENCE TO CONCLUDE THAT ASSESSE E HAS PAID A CONSIDERATION OVER AND ABOVE THE AMOUNT MENTIONED IN THE REGISTERED SALE DEED, NO ADDITION CAN BE MADE. IT WAS ALSO SUBMITTED THAT SINCE NO DOCUMENTS HAVE BEEN SUPPLIED TO THE ASSESSEE ALONGW ITH STATEMENTS OF SHRI JASWANT SINGH AND SHRI RAHUL, THEREFORE, SAME CANNOT BE READ AGAINST THE ASSESSEE IN EVIDENCE AND NO ADDITION CAN BE MADE. 8. THE ASSESSING OFFICER IN ORDER TO VERIFY THE SAL E TRANSACTION, ISSUED SUMMONS UNDER SECTION 131 ON 15.11.2012 TO THE SELLER SHRI JASWANT SINGH. SHRI JASWANT SINGH ATTENDED PROCEEDINGS BEFORE ASSESSING OFFICER ON 04.12.2012 AND HIS STATEMENT WAS RECORDE D. RELEVANT PART OF THE STATEMENT IS REPRODUCED IN THE ASSESSMENT ORDER IN WHICH SHRI JASWANT SINGH STATED THAT PROPERTY IN QUESTION WAS SOLD BY THREE REGISTRIES O N 10.03.2010 TO ALL ABOVE THREE ASSESSEES. THE REGIS TRATION AMOUNT WAS RS. 22 LACS ALONGWITH A SUM OF RS. 67 LA CS ETC. WERE RECEIVED IN CASH. THEREFORE, TOTAL CONSID ERATION 8 WAS RECEIVED AT RS. 2.66 CR OUT OF WHICH REGISTRATI ON AMOUNT OF RS. 66 LACS WAS RECEIVED AND CASH OF RS. 2 CR WAS RECEIVED. THE SHORT TERM CAPITAL GAIN WAS SHOW N ON WHICH TAX HAS BEEN DEPOSITED ON THE ENTIRE SALE CONSIDERATION, DETAILS OF WHICH ARE ALSO NOTED IN T HE BOOKS OF ACCOUNT. THE COUNSEL FOR ASSESSEE WAS, THEREFOR E, ASKED TO PRODUCE THE ASSESSEE ON 12.12.2012 TO CROS S- EXAMINE STATEMENT OF SHRI JASWANT SINGH, SELLER OF THE PROPERTY RECORDED ON 04.12.2012. THE ASSESSEE FILED A REPLY ON 13.12.2012 IN WHICH THE ASSESSEE HAS REFER RED TO HIS EARLIER LETTER DATED 16.11.2012 AND EXPLAINED T HAT THE DOCUMENTS ASKED FOR BY THE ASSESSEE HAVE NOT BEEN SUPPLIED THEREFORE, IT IS NOT POSSIBLE TO CROSS-EXA MINE THE SAID PERSON WITHOUT THE DOCUMENTS SUPPLIED TO US. THE ASSESSING OFFICER AGAIN ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO ATTEND THE PROCEEDINGS ON 24.12.2012 INTIMATING THE SAME FACTS AND DIRECTED THE ASSESSEE TO CROSS EXAMINE THE STATEMENT OF SHRI JASWANT SINGH W HICH IS TO BE UTILIZED AGAINST THE ASSESSEE DURING THE COMPLETION OF THE ASSESSMENT PROCEEDINGS. THE ASSES SING OFFICER IN THE SAID LETTER ALSO STATED THAT AS REGA RDS THE REQUEST OF THE ASSESSEE REGARDING SUPPLY OF THE ACC OUNTS STATEMENTS, BALANCE SHEET OF SHRI JASWANT SINGH AND SHRI RAHUL, COPY OF THE FIR LODGED BY THEM IS NOT ACCEDE D TO. THE ASSESSEE WAS, THEREFORE, DIRECTED TO CROSS EXAM INE THE STATEMENT OF THE SELLER ON 24.12.2012. THE ASSESSE E AGAIN FILED A REPLY BEFORE ASSESSING OFFICER ON 27.12.201 2 AND REITERATED THE SAME FACTS THAT ASSESSEE DEMANDED CO PY OF 9 STATEMENT OF SHRI RAHUL AND SHRI JASWANT SINGH RECO RDED BY ADIT AT THE TIME OF SEARCH IN THEIR FACTORY PREM ISES IN APRIL, 2010 WHICH HAVE NOT BEEN SUPPLIED TILL DATE. THE ASSESSEE ALSO EXPLAINED THAT SINCE COPY OF THE BANK STATEMENT, BALANCE SHEET AND FIR LODGED BY SHRI JAS WANT SINGH HAVE NOT BEEN SUPPLIED TO THE ASSESSEE, THERE FORE, WITHOUT ANY DOCUMENTS, ASSESSEE COULD NOT CROSS EXA MINE THE CONCERNED PERSON. IT IS EXPLAINED THAT THE STO RY OF RECEIPT OF CASH ON SALE OF PROPERTY IS FABRICATED B ECAUSE THE CASH WAS RECOVERED BY THE POLICE WHICH WAS HIDD EN IN THE MACHINES IN THE FACTORY PREMISES. THE PROPERTY WAS SOLD ON 10.03.2010, 12.03.2010 AND 15.03.2010 WHERE AS CASH WAS RECOVERED ON 07.04.2010 BY THE POLICE AND THE THEORY EXPLAINED BY THEM WAS NOT SUPPORTED BY ANY EVIDENCE. IT WAS EXPLAINED THAT DEPARTMENT IS TRYI NG TO TAX THE SAID CASH WITHOUT ANY EVIDENCE IN THE HANDS OF THE ASSESSEE. THESE TWO YEARS BEFORE PURCHASE VALUE OF THE PROPERTY WOULD NOT ENHANCE TO THAT MUCH EXORBITANT AMOUNT. IN THE ABSENCE OF ANY RELEVANT DOCUMENT SUPPLIED TO ASSESSEE, THE CROSS EXAMINATION IS NOT POSSIBLE. THE ASSESSING OFFICER DID NOT ACCEPT CON TENTION OF THE ASSESSEE BECAUSE THE SELLERS SHRI JASWANT SI NGH AND HIS SON SHRI RAHUL HAVE SHOWN SHORT TERM CAPITA L GAIN IN THEIR RETURN OF INCOME AND PAID THE TAXES. THE SELLERS HAVE ACCOUNTED SALE CONSIDERATION IN THEIR BOOKS OF ACCOUNT. THE SELLER HAS GIVEN STATEMENT AGAINST TH E ASSESSEE WHICH WAS NOT CROSS EXAMINED. THE ASSESSI NG OFFICER, THEREFORE, PLACING RELIANCE UPON DECISION OF THE 10 HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHASHI KIRAN VS CIT (ITA 129 OF 2010 (O&M) DATED 13.08.2010 MADE THE ADDITION OF RS. 65 LACS IN THE HANDS OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ADDIT ION BEFORE LD. CIT(APPEALS) AND HIS WRITTEN SUBMISSION IS REPRODUCED IN THE APPELLATE ORDER. HOWEVER, THE LD . CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE. 9. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFER RED TO PB-89 WHICH IS FIR LODGED BY SHRI JASWANT SINGH WITH THE POLICE IN WHICH HE HAS MADE CONTRADICTORY STATEMENTS TO THE POLICE AUTHORITIES. THIS STATEME NT WAS MADE ON 05.04.2010 WHEN FIR WAS LODGED REGARDIN G THEFT OF THE CASH. THE STATEMENT WAS RECORDED ON 07.04.2010 BY ADIT (INVESTIGATION) UNDER SECTION 13 2A OF THE INCOME TAX ACT WHICH WAS NEVER SUPPLIED TO T HE ASSESSEE TILL DATE. PB-9 IS EXPLANATION GIVEN BEFO RE LD. CIT(APPEALS) EXPLAINING THEREIN THAT ASSESSEE MADE A REQUEST TO ADIT FOR SUPPLY OF THE COPY OF STATEMENT OF SHRI JASWANT SINGH AND SHRI RAHUL RECORDED BY INVESTIGATION WING AND TO ALLOW THEIR CROSS EXAMINA TION BUT REQUEST OF THE ASSESSEE WAS NOT ALLOWED EVEN AF TER COMPLETION OF THE ASSESSMENT. THE ASSESSEE ALSO AS KED FOR THE COPY OF THE STATEMENTS RECORDED BY ADIT (INVESTIGATION) OF SHRI JASWANT SINGH, COPY OF THE BANK STATEMENT AND BALANCE SHEET OF SHRI JASWANT SINGH W ITH COPY OF THE FIR LODGED WITH THE POLICE, COPY OF THE CASH BOOK OF SHRI JASWANT SINGH WAS ALSO ASKED FOR BUT N ONE 11 OF THE DOCUMENTS HAVE BEEN SUPPLIED TO THE ASSESSEE AT ANY STAGE. EVEN LD. CIT(APPEALS), WITHOUT ANY REAS ONS CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN NO T SUPPLYING THESE DOCUMENTS TO THE ASSESSEE. SINCE N O DOCUMENTS WERE SUPPLIED TO THE ASSESSEE AT ANY STAG E, THEREFORE, ASSESSEE HAS BEEN MAKING REQUEST TO ALLO W CROSS EXAMINATION TO THE STATEMENT OF SHRI JASWANT SINGH AFTER PROVIDING THE NECESSARY DOCUMENTS. THEREFORE, THERE IS NO REFUSAL ON THE PART OF THE A SSESSEE TO CROSS-EXAMINE THE STATEMENT OF SHRI JASWANT SING H. PB-24 IS THE REPLY TO THE LD. CIT(APPEALS). SAME F ACTS WERE AGAIN EXPLAINED IN WHICH ALSO IT WAS STATED TH AT SINCE NECESSARY DOCUMENTS WERE NOT SUPPLIED TO THE ASSESSEE, THEREFORE, NO PURPOSEFUL AND FRUITFUL CRO SS EXAMINATION OF SHRI JASWANT SINGH COULD HAVE BEEN DONE IN THE MATTER. THE ASSESSEE WAS NEVER CONVEYE D ANY REFUSAL TO SUPPLY THESE DOCUMENTS AT ASSESSMENT STAGE. PB-86 IS SUMMON UNDER SECTION 131 ISSUED TO SHRI JASWANT SINGH IN THE CASE OF SHRI JAGPREET SIN GH FOR HIS APPEARANCE AND RECORDING OF HIS STATEMENT B UT HE DID NOT APPEAR BEFORE ASSESSING OFFICER. 9(I) SIMILAR IS THE SUMMON UNDER SECTION 131 TO SHR I JASWANT SINGH (PB-87) IN THE CASE OF SHRI JAGPREET SINGH BUT SHRI JASWANT SINGH DID NOT APPEAR BEFORE ASSESSING OFFICER FOR RECORDING OF HIS STATEMENT. PB-88 IS LETTER TO SHRI JAGPREET SINGH TO CROSS-EXAMINE S HRI JASWANT SINGH BUT SHRI JASWANT SINGH DID NOT APPEAR 12 BEFORE ASSESSING OFFICER FOR CROSS-EXAMINATION. PB -41 IS REPLY IN WHICH IT WAS EXPLAINED THAT SHRI JASWAN T SINGH WAS ONLY 1/4 TH CO-OWNER OF THE PROPERTY WHEREAS IS SON SHRI RAHUL WAS OWNER OF BALANCE 3/4 TH SHARE OF THE PROPERTY BUT STATEMENT OF SHRI RAHUL WHO HAD A SUBSTANTIAL SHARE IN THE PROPERTY WAS NOT RECORDED BY THE ASSESSING OFFICER AND HE WAS NOT PRODUCED FOR C ROSS EXAMINATION ON BEHALF OF THE ASSESSEE. PB-42 AND 4 3 ARE SAME REPLY TO THE LD. CIT(APPEALS) IN WHICH COP Y OF THE REGISTERED DEED DATED 04.01.2010 EXECUTED BETWE EN SMT. PUJA AS SELLER AND SHRI AMIT AGGARWAL IN RESPE CT OF PROPERTY SITUATED AT 59-K SARABHA NAGAR, LUDHIANA W AS FILED TO SHOW THAT RATES IN SAME AREA ARE SAME AND IN THE SALE DEED EXECUTED IN FAVOUR OF THE ASSESSEE WE RE REASONABLE. COPY OF THE SALE DEED OF SAME PROPERTY AT SARABHA NAGAR IS FILED AT PAGE 44-45 OF THE PAPER B OOK. SINCE IN COMPARABLE CASE, MORE OR LESS SIMILAR SALE CONSIDERATION HAS BEEN MENTIONED, THEREFORE, THIS EVIDENCE SHOULD HAVE BEEN CONSIDERED BY THE AUTHORI TIES BELOW. PB-83 IS THE AFFIDAVIT OF SHRI INDER MOHAN SINGH WHO WAS WITNESS TO THE SALE DEED EXECUTED IN FAVOUR OF THE ASSESSEE BY SHRI JASWANT SINGH AND SHRI RAHUL I N WHICH HE HAS CONFIRMED THAT THE SALE CONSIDERATION WAS PAID BY CHEQUE ONLY AND NO AMOUNT WAS PAID IN CASH OVER AND ABOVE WHAT IS STATED IN THE SALE DEED. THE ASSESSING OFFICER, HOWEVER, DID NOT EXAMINE SHRI IN DER MOHAN SINGH AT ASSESSMENT STAGE AS WELL AS LD. CIT(APPEALS) DID NOT TAKE INTO CONSIDERATION HIS 13 AFFIDAVIT. THEREFORE, THE DECISION IN THE CASE OF SHASHI KIRAN V CIT (SUPRA) RELIED UPON BY AUTHORITIES BELO W IS CLEARLY DISTINGUISHABLE ON FACTS. 9(II) THE LD. COUNSEL FOR THE ASSESSEE FURTHER SU BMITTED THAT SHRI JASWANT SINGH DID NOT PAY ANY TAX ON TIME AND SINCE CASH WAS SEIZED IN RESPONSE TO PROCEEDINGS UN DER SECTION 132A OF THE ACT, THEREFORE, PROCEEDINGS UND ER SECTION 153A WOULD HAVE BEEN INITIATED AGAINST SHRI JASWANT SINGH. THEREFORE, DETAILS IN HIS CASE WERE RELEVANT FOR THE PURPOSE OF HIS CROSS-EXAMINATION I N EFFECTIVE MANNER. SINCE SHRI JASWANT SINGH PAID TA X IF ANY AFTER THE SEARCH, THEREFORE, IT CREATES A DOUBT IN THE STORY SET UP BY SHRI JASWANT SINGH. NO DOCUMENT WA S RECOVERED DURING PROCEEDINGS UNDER SECTION 132A OF THE ACT TO PROVE IF ASSESSEE PAID ANY CASH OVER AND ABO VE WHAT IS RECORDED IN THE SALE DEED. SINCE ALL DOCUM ENTS OF SHRI JASWANT SINGH HAVE NOT BEEN SUPPLIED TO THE ASSESSEE, THEREFORE, ASSESSEE WAS JUSTIFIED IN ASKI NG FOR DEFERRING THE CROSS-EXAMINATION OF SHRI JASWANT SIN GH BECAUSE NO FRUITFUL CROSS-EXAMINATION OF SHRI JASWA NT SINGH COULD HAVE BEEN DONE ON BEHALF OF THE ASSESSE E. HE HAS REFERRED TO THE ORDER OF ITAT CHANDIGARH BEN CH IN THE CASE OF SHRI TARSEM SINGH (PB-I) ON THE PROPOSITION THAT NATURAL JUSTICE IS A POTENT WEAPO N FOR SECURING SUBSTANTIVE JUSTICE WHICH IS NOT FETTERED BY TECHNICALITIES, GRAMMATICAL PEDANTRY OR LOGICAL PREVARICATION. 14 9(III) HE HAS FURTHER THAT SHRI JASWANT SINGH DI D NOT APPEAR BEFORE ASSESSING OFFICER AT ANY POINT OF TIM E AFTER ISSUE OF SUMMONS UNDER SECTION 131 FOR THE PURPOSE OF CROSS-EXAMINING HIM AT THE ASSESSMENT STAGE. THE LD. COUNSEL FOR THE ASSESSEE FILED COPI ES OF THE NOTICES ISSUED TO SHRI JASWANT SINGH ALONGWITH CERTIFIED COPIES OF THE ORDER-SHEET TO SHOW THAT TH E ORDER-SHEET DO NOT DISCLOSE/RECORD PRESENCE OF SHRI JASWANT SINGH BEFORE ASSESSING OFFICER AT ASSESSMEN T STAGE PROVING HIS AVAILABILITY AT ASSESSMENT STAGE FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE HE HAS , THEREFORE, SUBMITTED THAT ONCE SHRI JASWANT SINGH D ID NOT APPEAR BEFORE ASSESSING OFFICER ON THE APPOINTE D DATE FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSE E, WHERE IS THE QUESTION OF REFUSING TO CROSS-EXAMINE SHRI JASWANT SINGH ON BEHALF OF THE ASSESSEE THAT TOO WITHOUT SUPPLYING REQUIRED DOCUMENTS. THE LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT RELEVANCE OF THE DOCUMENTS TO BE SUPPLIED TO THE ASSESSEE SHOULD BE LEFT TO THE DISCRETION OF ASSESSEE FOR THE PURPOSE OF DE CIDING AS TO WHICH OF THE DOCUMENT IS RELEVANT FOR THE PUR POSE OF CROSS-EXAMINATION. SINCE NO ADVANCE TAX HAVE BE EN PAID BY SHRI JASWANT SINGH AND HE DID NOT INCLUDE H IS INCOME IN DISPUTE IN REGULAR COURSE OF BUSINESS, THEREFORE, HIS STATEMENT WAS WHOLLY DOUBTFUL. HE H AS MADE SURRENDER OF OTHER INCOMES ALSO SO HE WAS INVOLVED IN MANY OTHER ACTIVITIES. IT IS NOT CLEAR WHETHER HE ENTERED CASH IN THE BOOKS OF ACCOUNT OR 15 BANK ACCOUNTS. ORAL EVIDENCE SHOULD NOT BE ALLOWED TO BE GIVEN AS AGAINST THE CONTENTS OF REGISTERED SALE DEEDS AND RELIED UPON DECISION OF THE HON'BLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF PARAMJIT SINGH VS ITO 323 ITR 588. HE HAS SUBMITTED THAT DOCUMENTARY EVIDENCES ON RECORD CLEARLY SHOW THAT SHRI JASWANT SINGH MANIPULATED THE ENTIRE STORY IN ORDER TO SAVE EXCISE TAX AND SALES TAX. IN THE ABSENCE OF ANY RELIABLE EVIDENCE ON RECORD TO PROVE ASSESSEE PAID ANY AMOUNT IN CASH OVER AND ABOVE WHAT IS RECORDED IN T HE REGISTERED SALE DEED WOULD CLEARLY PROVE THAT ADDIT ION IS WHOLLY UNJUSTIFIED IN THE HANDS OF THE ASSESSEE. 10. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. HE HAS SUBMITTED THAT CASH WAS FOUND FROM SHRI JASWANT SINGH ON WHICH HE HAS PAID TAXES AND INCLUDED THE AMOUNT OF CAPITAL GAIN IN HI S RETURN OF INCOME, THEREFORE, ADDITION IS JUSTIFIED IN THE HANDS OF THE ASSESSEE. SHRI JASWANT SINGH ALSO MAD E STATEMENT AGAINST THE ASSESSEE THAT HE RECEIVED CAS H FROM ASSESSEE OVER AND ABOVE WHAT IS RECORDED IN TH E SALE DEED. THE ASSESSING OFFICER GAVE OPPORTUNITY TO CROSS-EXAMINE SHRI JASWANT SINGH BUT ASSESSEE FILED REPLY BEFORE ASSESSING OFFICER ASKING FOR CERTAIN DOCUMENTS BUT DID NOT CROSS-EXAMINE THE STATEMENT O F SHRI JASWANT SINGH. THE ASSESSEE CANNOT REFUSE TO CROSS-EXAMINE SHRI JASWANT SINGH MERELY BECAUSE COPIES OF THE DOCUMENTS HAVE NOT BEEN SUPPLIED TO T HE 16 ASSESSEE. THE ASSESSING OFFICER AGAIN GAVE OPPORTU NITY TO CROSS-EXAMINE STATEMENT OF SHRI JASWANT SINGH, AGAIN ASSESSEE FILED A LETTER BEFORE ASSESSING OFFI CER AND DID NOT CROSS-EXAMINE SHRI JASWANT SINGH AT ASSESSM ENT STAGE. THE ASSESSEE HAS NOT PROVIDED ANY EVIDENCE TO DISBELIEVE THE CASE OF THE ASSESSING OFFICER. NO COMPLAINT HAS BEEN MADE BY ASSESSEE AGAINST SHRI JASWANT SINGH. NON CROSS-EXAMINATION TO THE STATEM ENT OF SHRI JASWANT SINGH CLEARLY PROVES THE CASE OF TH E ASSESSING OFFICER. THE LD. DR RELIED UPON ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF SMT. BIMLA RANI DAT ED 09.07.2012 AND DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHASHI KIRAN VS CIT (SUPR A). THE LD. DR ALSO PRODUCED COPY OF THE STATEMENT OF S HRI JASWANT SINGH RECORDED BY ADIT AT OPERATION UNDER SECTION 132A STAGE AND LATER ON RECORDED BY A.O. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PARAMJIT SINGH VS ITO 323 ITR 588 HELD AS UNDER : IT IS A WELL KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENTS CONTAIN ALL THE TERMS AND CONDITIONS. SECTIONS 91 AND 92 OF THE INDIAN EVIDENCE ACT, 1872 INCORPORATE THE PRINCIPLE. THE TRIBUNAL HELD THAT THE OSTENSIBLE SALE CONSIDERATION OF THE LAND DISCLOSED IN THE REGISTER ED SALE DEED DATED SEPTEMBER 24, 2002 ADDED TO THE INCOME OF THE ASSESSEE. THE TRIBUNAL DISREGARDED TH E STATEMENT MADE ON AFFIDAVIT BY THE VENDORS WHO WERE THE UNCLES OF THE ASSESSEE. THEY HAD STATED THAT N O SALE CONSIDERATION HAD PASSED HANDS AND THEY HAD 17 RELINQUISHED THEIR SHARE IN THE LANDED PROPERTY. TH E OBJECT OF EXECUTING THE SALE DEED WAS ONLY TO HAND OVER LANDED PROPERTY TO THE ASSESSEE. ON APPEAL TO THE HIGH COURT : HELD, DISMISSING THE APPEAL, THAT THE OSTENSIBLE SALE CONSIDERATION DISCLOSED IN THE SALE DEED DATED SEPTEMBER 24, 2002, HAD TO BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THEREFORE, THE ORDER OF THE TRIBUNAL DID NOT SUFFER FROM ANY LEGAL INFIRMITY. THE AMOUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY THE VENDORS AN D DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. 11(I) THE ITAT CHANDIGARH BENCH IN THE CASE OF RAJDEEP BUILDERS VS ACIT 52 SOT 62 HELD AS UNDER : 9. IN THE PRESENT CASE, THE AO AS WELL AS THE CIT(A), PROCEEDED TO DRAW INFERENCES AGAINST THE ASSESSEE, ON THE BASIS OF INVALID STATEMENT OF SHRI SUBHASH SHARMA, WHICH WAS RECORDED ON 3.9.2004, IGNORING THE RETRACTION MADE BY HIM IN THE CROSS- EXAMINATION, CONDUCTED ON 7.11.2006. IT IS, FURTHE R CONSEQUENT TO HIGHLIGHT THAT BOTH THE AO AND CIT(A) , COMPLETELY DISREGARDED THE SALE DEED, EXECUTED BY THE PARTIES VOLUNTARILY, WHICH CONTAINS RS.9 LACS A S SALE CONSIDERATION. AS DISCUSSED ABOVE, ORAL EVIDENCES CANNOT DISPLACE THE DIRECT DOCUMENTARY EVIDENCE, IN THE SHAPE OF SALE DEED CONTAINING SPECIFIC SALE CONSIDERATION OF RS. 9 LACS. THIS VI EW IS DULY SUPPORTED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PARAMJIT SINGH (SUPRA), CHANDNI BHOCHAR. 9(1) THE QUESTION IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE 18 KERALA HIGH COURT IN THE CASE OF CIT V SMT. K.C.AGNES & OTHERS (2003) 262 ITR 354 (KERALA), WHEREIN THE HON'BLE HIGH COURT HELD THAT WHEN A DOCUMENT SHOWS FIXED PRICE, THERE WILL BE A PRESUMPTION THAT, THAT IS CORRECT PRICE AGREED UPON BY THE PARTIES. IT IS NOT NECESSARY THAT THE PRICE STATED IN THE AGREEMENT WILL BE THE PRICE SHOWN IN THE SALE DEED. SOMETIMES, IT MY BE HIGHER AND SOMETIMES IT MAY BE LOWER. SOMETIMES, INTENTIONALLY A LESSER VALUE MAY BE SHOWN IN THE SALE DEED. EVEN IF IT IS ASSUMED TO BE SO, UNLESS IT IS PROVED THAT THE AGREEMENT WAS ACTED UPON AND UNLESS THE AMOUNT STATED IN THE AGREEMENT WAS PAID FOR SALE, THE COURT CANNOT COME TO THE CONCLUSION THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. IN THIS CASE, APPEAL OF THE REVENUE WAS DISMISSED. IT IS SEEN THAT THE HON'BLE HIGH COURT HAS GONE A STEP AHEAD AND EVEN CONSIDERED THE EXISTENCE OF BOTH THE AGREEMENT TO SELL AND THE SALE DEED AND UPHELD THE VALIDITY AND SANCTITY OF THE SALE DEED. 10. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSIONS AND HAVING REGARD TO THE DIRECT DECISIO NS OF THE HON'BLE TRIBUNALS, INCLUDING THAT OF CHANDIGARH TRIBUNAL, VARIOUS HIGH COURTS AND THE HON'BLE SUPREME COURT, IN THE MATTER, WE HOLD THAT THE SALE CONSIDERATION SPECIFIED IN THE IMPUGNED SA LE DEED CANNOT BE SUBSTITUTED, ON THE BASIS OF MERE OR AL EVIDENCES. THEREFORE, THE IMPUGNED ADDITION UPHELD BY THE CIT(A), IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 12. IT IS ADMITTED FACT THAT AS PER THE REGISTERED SALE DEED IN FAVOUR OF THE ASSESSEE EXECUTED BY SHRI JASWANT SINGH, THE ASSESSEE PAID SALE CONSIDERATION OF 19 RS. 22 LACS BY CHEQUE. THE ASSESSING OFFICER GOT INFORMATION ABOUT PAYMENT OF CASH OVER AND ABOVE WH AT IS RECORDED IN THE SALE DEED THROUGH THE ADIT (INVESTIGATION) WHO IN TURN HAVE RECEIVED INFORMATI ON FROM THE POLICE AUTHORITY AFTER SEIZURE OF THE CASH . THE ASSESSING OFFICER IN THE NOTICE ISSUED TO THE ASSES SEE HAS REFERRED TO THE INFORMATION RECEIVED FROM THE P OLICE AUTHORITIES AS WELL AS STATEMENT OF SHRI JASWANT SI NGH RECORDED UNDER SECTION 132A ON 07.04.2010. THEREFO RE, ASSESSING OFFICER HAS PLACED RELIANCE UPON THE STATEMENT OF SHRI JASWANT SINGH RECORDED ON 07.04.2010 DURING THE PROCEEDINGS UNDER SECTION 132 A OF THE ACT. THE ASSESSEE, TIME AND AGAIN REQUESTED THE ASSESSING OFFICER AS WELL AS ADIT (INVESTIGATION) T O SUPPLY THE STATEMENT OF SHRI JASWANT SINGH RECORDED ON 07.04.2010 AND TO ALLOW CROSS-EXAMINE HIM ON BEHALF OF THE ASSESSEE BUT THE STATEMENT OF SHRI JASWANT SING H RECORDED ON 07.04.2010 WAS NEVER SUPPLIED TO THE ASSESSEE. EVEN ASSESSEE WAS NOT ALLOWED TO CROSS- EXAMINE SHRI JASWANT SINGH ON HIS INITIAL STATEMENT RECORDED ON 07.04.2010 BY ADIT (INVESTIGATION). THE ASSESSING OFFICER REFUSED TO SUPPLY SUCH STATEMENT TO THE ASSESSEE BECAUSE HE DID NOT ACCEDE TO THE REQUE ST OF THE ASSESSEE. SIMILARLY, ADIT (INVESTIGATION) D ID NOT TAKE ANY ACTION IN THE MATTER BY PROVIDING COPY OF THE STATEMENT RECORDED OF SHRI JASWANT SINGH ON 07.04.2010 AND ALSO DID NOT ALLOW CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE OF SUCH STATEMENT. THE SAME 20 FACTS WERE PLEADED BEFORE LD. CIT(APPEALS). THE LD . CIT(APPEALS), INSTEAD OF APPRECIATING THE ISSUE IN PROPER PERSPECTIVE HAS OBSERVED IN THE IMPUGNED ORD ER THAT, AS SUCH IT WAS NOT INCUMBENT UPON THE ASSESS ING OFFICER TO PROVIDE A COPY OF THE DOCUMENTS/STATEMEN TS NOT RELIED UPON BY ASSESSING OFFICER TO ARRIVE AT T HIS CONCLUSION. THE LD. CIT(APPEALS) ALSO OBSERVED TH AT NO OTHER STATEMENT HAS BEEN RELIED UPON BY ASSESSING OFFICER TO DECIDE THE ISSUE INCLUDING THE STATEMENT RECORDED BY ADIT. THE LD. CIT(APPEALS), THUS, JUST IFIED ACTION OF THE ASSESSING OFFICER IN REFUSING TO SUPP LY INITIAL STATEMENT RECORDED BY ADIT (INVESTIGATION). WHEN THE ASSESSING OFFICER HAS REFERRED TO THE STATEMENT OF SHRI JASWANT SINGH RECORDED BY ADIT IN CALLING FOR EXPLANATION OF ASSESSEE, THERE WERE NO REASONS FOR THE ADIT OR ASSESSING OFFICER TO REFUSE TO SUPPLY SUCH STATEMENT TO THE ASSESSEE FOR HIS BETTE R REPRESENTATION BEFORE ASSESSING OFFICER. THE ASSES SING OFFICER, LATER ON RECORDED THE STATEMENT OF SHRI JA SWANT SINGH AT ASSESSMENT STAGE ON 04.12.2012. THEREFORE, THERE WAS A JUST REASON FOR THE ASSESSEE TO ASK FOR THE COPY OF SUCH STATEMENT FOR THE PURPOSE OF CROSS- EXAMINATION OF THE STATEMENT OF SHRI JASWANT SINGH. THUS, THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN JUS TIFYING THE ACTION OF THE ASSESSING OFFICER IN NOT SUPPLYIN G COPY OF THE STATEMENT OF SHRI JASWANT SINGH TO THE ASSESSEE RECORDED BY ADIT. ACTIONS OF THE AUTHORIT IES BELOW IN THIS REGARD ARE WHOLLY UNJUSTIFIED. 21 13. SINCE THE SALE CONSIDERATION IS RECORDED IN THE SALE DEED REGISTERED BETWEEN ASSESSEE AND SHRI JASWANT SINGH AND HIS SON SHRI RAHUL, THEREFORE, ASSESSING OFFICER IS TRYING TO RELY UPON ORAL STATEMENT OF SH RI JASWANT SINGH AGAINST THE REGISTERED DOCUMENTS. THEREFORE, ASSESSEE WAS JUSTIFIED IN ASKING FOR ALL RELEVANT DOCUMENTS WHICH HAVE BEEN RECOVERED/RECEIV ED FROM SHRI JASWANT SINGH FOR THE PURPOSE OF PROPER CROSS-EXAMINATION OF THE ORAL STATEMENT OF SHRI JAS WANT SINGH. THE ASSESSEE ASKED FOR COPY OF THE FIR LODG ED BY SHRI JASWANT SINGH ON 05.04.2010. THIS DOCUMENT IS NOT SUPPLIED TO THE ASSESSEE. NOW, BOTH THE PAR TIES HAVE FILED COPY OF THE FIR ON RECORD LODGED BY SHRI JASWANT SINGH BEFORE POLICE ON 05.04.2010. IN THE STATEMENT OF SHRI JASWANT SINGH TO THE POLICE (PB-8 9) HE HAS STATED THAT THEY USE TO KEEP THEIR ENTIRE M ONEY IN THE GEAR BOX TYPE IRON CHEST FOR THE PURCHASE/SA LE OF MATERIALS, WHICH IS PLACED INSIDE THE FACTORY PREMI SES FROM WHICH HE AND HIS SON RAHUL USED THE MONEY WHENEVER REQUIRED. AT ABOUT 11.30 IN THE MORNING, WHEN HE WAS IN HIS FACTORY ON A USUAL ROUND, HE NOT ICED THAT GEAR BOX TYPE IRON CHEST WHICH WAS PLACED AT T HE ORIGINAL PLACE, WAS DISLOCATED AND LYING OPEN AND M ONEY PLACED IN IT WAS ALSO MISSING. HE INVESTIGATED ABO UT THE SAME BUT COULD NOT FIND IT. THE MONEY WAS, THEREFORE, STOLEN BY SOME PERSON FROM THE GEAR BOX TYPE IRON CHEST AND HE EXPLAINED THAT HE WOULD INTIMATE THE EXACT AMOUNT STOLEN AFTER WORKING OUT ITS DETAILS. ON 22 GOING THROUGH THE CONTENTS OF THE FIR LODGED BY SHR I JASWANT SINGH, THERE APPEARS SOME GLARING FEATURES IN HIS STATEMENT TO DISBELIEVE THE ENTIRE CASE SET UP BY THE AUTHORITIES BELOW. IF SHRI JASWANT SINGH HAS RECEIV ED ENTIRE SALE CONSIDERATION THROUGH BANKING CHANNEL A S WELL AS CASH FROM THE ASSESSEE AND OTHERS ON SALE O F THE PROPERTY AND IT WAS RECORDED IN THE BOOKS OF ACCOUN T AND LATER ON PAID THE TAX THEREON AS CAPITAL GAIN T AX, WHERE WAS THE QUESTION OF CONCEALING THE CASH AMOUN T IN THE GEAR BOX TYPE IRON CHEST IN THE FACTORY PREM ISES. WHEN CHEQUE AMOUNT IS CREDITED IN THE BANK ACCOUNT OF SHRI JASWANT SINGH, THE HUGE CASH OF RS. 2 CRORES COULD ALSO BE DEPOSITED IN THE BANK ACCOUNT FOR SAF E CUSTODY. HOWEVER, NO EXPLANATION IN THIS REGARD HA S BEEN GIVEN. THE PROPERTY IN QUESTION WAS SOLD THRO UGH THREE REGISTRIES ON 10 TH 12 TH AND 15 TH MARCH, 2010 AND THE THEFT HAD TAKEN PLACE ON 05.04.2010. SHRI JASW ANT SINGH WAS NOT EVEN AWARE OF THE FACT AS TO HOW MUCH CASH AMOUNT HAS BEEN STOLEN FROM HIS GEAR BOX LYING IN THE FACTORY. THE CONDUCT OF SHRI JASWANT SINGH WAS WHOLLY SUSPICIOUS AND DOUBTFUL. FURTHER, IN HIS FI R, HE HAS STATED THAT ASSESSEE USED TO KEEP ENTIRE MONEY IN GEAR BOX TYPE IRON CHEST FOR THE PURPOSE OF PURCHASE/SALE OF MATERIAL. THE SALE AND PURCHASE O F MATERIAL IS CONNECTED WITH THE BUSINESS ACTIVITY OF SHRI JASWANT SINGH. IT HAS NO CONNECTION WITH THE CAPIT AL GAIN TAXES. IN THE FIR, HE SEEMS TO EXPLAIN THAT T HE MONEY SO STOLEN FROM HIS FACTORY BELONGS TO HIS 23 BUSINESS ACTIVITIES WHICH FACT ITSELF WAS INCORRECT BECAUSE HE DID NOT EXPLAIN IN THE FIR THAT THE STOL EN MONEY WAS RECEIVED FROM ASSESSEE AND OTHERS ON SALE OF THE PROPERTY IN QUESTION. THEREFORE, WHEN AT INITI AL STAGE A DIFFERENT STORY IS SET UP IN THE FIR, ASSES SEE WAS JUSTIFIED IN ASKING COPY OF THE STATEMENT OF SH RI JASBIR SINGH AND FIR LODGED WITH THE POLICE FOR THE PURPOSE OF CROSS-EXAMINING THE STATEMENT OF SHRI JASWANT SINGH RECORDED LATER ON BY THE ASSESSING OFFICER AT ASSESSMENT STAGE. THE ASSESSING OFFICER CANNOT THUS, DICTATE ABOUT THE RELEVANCE OF THE DOCUMENT FOR THE PURPOSE OF CROSS-EXAMINATION AFFOR DED TO THE ASSESSEE IN RESPECT OF STATEMENT OF SHRI JAS WANT SINGH. THE AUTHORITIES BELOW WERE, THEREFORE, NOT JUSTIFIED IN REFUSING TO SUPPLY THESE DOCUMENTS TO THE ASSESSEE. 14. THE ASSESSEE FURTHER ASKED FOR A COPY OF BANK STATEMENT OF SHRI JASWANT SINGH, HIS BALANCE SHEET AND COPY OF HIS CASH BOOK. SINCE THE CASE OF SHRI JASW ANT SINGH WOULD HAVE ALSO BEEN REOPENED IN PROCEEDINGS UNDER SECTION 153A OF THE INCOME TAX ACT, ON REQUISITION ISSUED UNDER SECTION 132A THEREFORE, AL L THESE DOCUMENTS MUST BE IN CUSTODY AND POSSESSION O F THE REVENUE DEPARTMENT OR OTHERWISE ALSO SHRI JASWA NT SINGH COULD HAVE BEEN ASKED TO PROVIDE COPY OF HIS BANK STATEMENT, HIS BALANCE SHEET AND CASH BOOK IN ORDER TO PROVE THE ENTRIES MADE IN THE BANK ACCOUNT , 24 BOOKS OF ACCOUNT OR BALANCE SHEET TO PROVE THAT SHR I JASBIR SINGH HAS RECEIVED GENUINELY THE CASH AMOUNT OVER AND ABOVE WHAT IS RECORDED IN THE SALE DEED. HOWEVER, THESE DOCUMENTS HAVE NOT BEEN DELIBERATELY SUPPLIED TO THE ASSESSEE FOR THE PURPOSE OF CROSS- EXAMINING THE STATEMENT OF SHRI JASBIR SINGH. SINC E CASH WAS STOLEN FROM THE FACTORY PREMISES OF SHRI JASWANT SINGH ON 05.04.2010, THERE IS NO QUESTION O F MAKING ANY DEPOSIT OF CASH IN THE BANK ACCOUNT OF S HRI JASWANT SINGH AT THE EARLIEST OPPORTUNITY AFTER SAL E OF THE PROPERTY. HOW THE ENTRIES HAVE BEEN MADE IN TH E CASH BOOK OF RECEIPT OF CASH WAS ALSO TO BE EXPLAIN ED BY SHRI JASWANT SINGH AND HOW THE TREATMENT IS GIVEN I N THE BALANCE SHEET OF CAPITAL GAIN TAXES WAS ALSO NECESSARY FOR THE ASSESSEE TO MEANINGFULLY CROSS- EXAMINE THE STATEMENT OF SHRI JASWANT SINGH. SINCE CAPITAL GAIN TAX ALLEGED TO HAVE ARISEN IN CASE OF SHRI JASWANT SINGH AND HIS SON, IT IS NOT EXPLAINED WHET HER THE PROPERTY IN QUESTION WAS A BUSINESS PROPERTY OR IT WAS THEIR PERSONAL PROPERTY. IF IT WAS PERSONAL PR OPERTY OF THESE TWO PERSONS, THERE WAS NO QUESTION OF MAKI NG ANY ENTRY IN THE BOOKS OF ACCOUNT OF BUSINESS OF TH E ASSESSEE OR IN THE BALANCE SHEET. CASH SEIZED BY P OLICE AND BY INCOME TAX AUTHORITIES UNDER SECTION 132A OF IT ACT SHOWS CASH SO STOLEN WAS NOT RECORDED IN REGULA R BOOKS OF ACCOUNT OF SHRI JASWANT SINGH. THESE POINT S WOULD CLEARLY INDICATE THAT ASSESSEE WAS JUSTIFIED IN ASKING FOR COPY OF THE BANK STATEMENT OF SHRI JASWA NT 25 SINGH, HIS BALANCE SHEET AND COPY OF THE CASH BOOK IN ORDER TO EFFECTIVELY CROSS-EXAMINE THE STATEMENT OF SHRI JASWANT SINGH. NEITHER SHRI JASWANT SINGH HAS SUPPLIED THESE DOCUMENTS NOR THE ASSESSING OFFICER HAS PROVIDED THESE DOCUMENTS TO THE ASSESSEE, THEREFORE , THERE WAS A JUSTIFICATION FOR THE ASSESSEE TO ASK F OR THESE DOCUMENTS BEFORE CROSS-EXAMINING THE STATEMEN T OF SHRI JASWANT SINGH. THESE FACTS SHOW THAT THESE DOCUMENTS WERE RELEVANT FOR THE PURPOSE OF CROSS- EXAMINING THE ORAL STATEMENT OF SHRI JASWANT SINGH WHO HAS LEVELLED ALLEGATION AGAINST THE ASSESSEE. HOWEVER, NONE OF THESE DOCUMENTS HAVE BEEN DELIBERATELY SUPPLIED BY THE ASSESSING OFFICER TO ASSESSEE. THUS, LD. CIT(APPEALS) WAS NOT JUSTIFIED IN MAKING OBSERVATION AGAINST THE ASSESSEE AND JUSTIFY ING THE ACTION OF THE ASSESSING OFFICER IN NOT SUPPLYIN G THESE DOCUMENTS TO THE ASSESSEE. THUS, THERE WAS REASON FOR THE ASSESSEE NOT TO CROSS-EXAMINE SHRI JASWANT SINGH IN THE ABSENCE OF SUPPLY OF THESE RELEVANT DOCUMENTS TO THE ASSESSEE. THUS, ASSESSEE HAS A REASON FOR ASKING FOR DEFERMENT OF THE CROSS- EXAMINATION OF STATEMENT OF SHRI JASWANT SINGH ON T HE BASIS OF NON-SUPPLY OF THESE DOCUMENTS TO THE ASSES SEE. NOT PROVIDING RELEVANT DOCUMENTS AS STATED ABOVE TO THE ASSESSEE WOULD AMOUNTS TO DENIAL OF CROSS EXAMINATI ON TO THE STATEMENT OF SHRI JASWANT SINGH. 26 15. IT IS ALSO EXPLAINED THAT NO ADVANCE TAX HAS BE EN PAID BY SHRI JASWANT SINGH WHICH FACT IS ALSO CLEAR FROM HIS STATEMENT RECORDED ON 07.04.2010 BY THE AD IT, COPY OF WHICH IS NOW PLACED ON RECORD BY LD. DR, IN WHICH HE HAS STATED THAT HE WOULD PAY THE TAX IN DU E COURSE, MEANING THEREBY THAT SHRI JASWANT SINGH DID NOT PAY ANY ADVANCE TAX ON RECEIPT OF CAPITAL GAIN ON THE ENTIRE MONEY IN QUESTION. THEREFORE, ASSESSEE'S CONTENTION IS APPROPRIATE THAT IN ORDER TO AVOID SA LE TAX AND EXCISE TAX, SHRI JASWANT SINGH ON THEFT OF THE CASH STOLEN, MAKE OUT A CASE AGAINST THE ASSESSEE O F RECEIPT OF CASH AMOUNT OVER AND ABOVE WHAT IS RECOR DED IN THE SALE DEED. NO AGREEMENT TO SELL HAS BEEN FO UND OR BROUGHT ON RECORD. WE FIND THAT WITNESS TO THE SALE DEED SHRI INDER MOHAN SINGH FILED HIS AFFIDAVIT BEF ORE ASSESSING OFFICER AFFIRMING THEREIN THAT SALE CONSIDERATION OF RS. 22 LACS MENTIONED N THE SALE D EED WAS PAID BY CHEQUE BY ASSESSEE TO THE SELLER AND NO CASH AMOUNT WAS PAID OVER AND ABOVE WHAT IS RECORDE D IN THE SALE DEED. THE ASSESSING OFFICER DID NOT CR OSS- EXAMINE THE DEPONENT OF THE AFFIDAVIT AND EVEN LD. CIT(APPEALS) DID NOT TAKE COGNIZANCE OF THE SAME. I T MAY ALSO BE POINTED OUT HERE THAT WHATEVER STATEMEN TS WERE RECORDED BY ADIT (INVESTIGATION) OR BY ASSESSI NG OFFICER, NO QUESTIONS HAVE BEEN ASKED TO HIM AS TO WHY HE HAS AGREED FOR MENTIONING LESSER SALE CONSIDERAT ION IN THE SALE DEED. 27 16. THE LD. COUNSEL FOR THE ASSESSEE FILED COPIES O F THE ORDER-SHEET SUPPLIED TO HIM IN THE CASE OF ASSESSEE SHRI SIMMARDEEP SINGH AND POINTED OUT THAT ON APPOINTED DATE ON 12.12.2012 AND 24.12.2012 WHEN SHRI JASWANT SINGH WAS DIRECTED TO APPEAR BEFORE ASSESSING OFFIC ER FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE, HI S PRESENCE HAS NOT BEEN RECORDED BY ASSESSING OFFICER IN THE ORDER-SHEET. IT WOULD MEAN THAT LD. COUNSEL F OR THE ASSESSEE IS JUSTIFIED IN CONTENDING THAT SHRI JASWA NT SINGH DID NOT APPEAR BEFORE ASSESSING OFFICER AT ASSESSMENT STAGE ON APPOINTED DATE FOR CROSS- EXAMINATION ON BEHALF OF THE ASSESSEE. THEREFORE, WHATEVER STATEMENTS WERE RECORDED BY ADIT (INVESTIGATION) OR ASSESSING OFFICER AT ASSESSMENT STAGE, HAVE BEEN RECORDED AT THE BACK OF THE ASSESSEE AND CANNOT BE READ IN EVIDENCE AGAINST THE ASSESSEE. T HE LD. DR WAS ALSO DIRECTED TO PLACE ON RECORD ENTIRE COPIES OF THE ORDER-SHEETS IN ALL THE CASES TO PROV E PRESENCE OF SHRI JASWANT SINGH RECORDED BY ASSESSIN G OFFICER FOR THE PURPOSE OF CROSS-EXAMINATION ON BEH ALF OF THE ASSESSEE. THE LD. DR PRODUCED THE COPIES OF ORDER SHEETS IN ALL THE CASES WHICH DID NOT REVEAL IF SHRI JASWANT SINGH APPEARED BEFORE ASSESSING OFFICER ON APPOINTED DATE FOR CROSS-EXAMINATION ON BEHALF OF T HE ASSESSEE. THUS, REVENUE FAILED TO PROVE THAT EVEN IF ASSESSEE DID NOT CROSS-EXAMINE HIM WITHOUT THE DOCUMENTS BUT THE ASSESSING OFFICER NEVER PRODUCED SHRI JASWANT SINGH BEFORE ASSESSEE AT ASSESSMENT ST AGE 28 FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE. T HUS, ASSESSING OFFICER FAILED TO PRODUCE SHRI JASWANT SI NGH FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE AT ASSESSMENT STAGE. THEREFORE, WHATEVER HIS STATEMENT WAS RECORDED AT THE BACK OF THE ASSESSEE, WOULD NOT BE ADMISSIBLE IN EVIDENCE AGAINST THE ASSESSEE DESPITE THE FACT THAT ASSESSEE WAS, TIME AND AGAIN ASKING FOR SUPPLY OF MATERIAL DOCUMENTS FOR THE PURPOSE OF MAK ING THE CROSS-EXAMINATION TO THE STATEMENT OF SHRI JASW ANT SINGH. IT CLEARLY VIOLATES THE PRINCIPLE OF NATURA L JUSTICE AND SUCH FACT WOULD BE TREATED AS ADVERSE I N NATURE AGAINST THE REVENUE. 17. IT WOULD, THEREFORE, PROVE THAT CONTENTION OF ASSESSEE IS CORRECT THAT SHRI JASWANT SINGH NEVER M ADE AVAILABLE HIMSELF AT ASSESSMENT STAGE FOR CROSS- EXAMINATION ON BEHALF OF THE ASSESSEE, THEREFORE, T HERE IS NO QUESTION OF REFUSING TO CROSS-EXAMINE SHRI JASWANT SINGH ON BEHALF OF THE ASSESSEE. 18. THE ASSESSEE FURTHER CONTENDED THAT SHRI JASWAN T SINGH AND HIS SON PURCHASED THE PROPERTY IN QUESTIO N TWO YEARS BACK FOR A SUM OF RS. 55.50 LACS. HOWEVE R, SHRI JASWANT SINGH IN HIS STATEMENT STATED THAT PROPERTY WAS SOLD FOR RS. 2.66 CR. IT IS DIFFICULT TO BELIEVE THE STATEMENT OF SHRI JASWANT SINGH THAT WI THIN TWO YEARS, THE PROPERTY WOULD FETCH CONSIDERATION F IVE TIMES MORE. THIS FACT IS ALSO NOT EXPLAINED. THE 29 ASSESSEE ALSO FILED COPY OF ANOTHER SALE DEED OF TH E SAME AREA EXECUTED BETWEEN SMT. PUJA AND SHRI AMIT AGGARWAL IN THE PAPER BOOK WHICH WAS ALSO FILED BEF ORE LD. CIT(APPEALS) TO SHOW THAT SIMILAR CONSIDERATION HAVE BEEN MENTIONED IN THE SALE DEED OF OTHER PARTIES OF THE SAME AREA. NO ADVERSE COMMENT HAVE BEEN GIVEN BY L D. CIT(APPEALS) ON THE SAME. IT WOULD, THEREFORE, PRO VE THAT THE SALE CONSIDERATION RECORDED IN THE SALE DE ED EXECUTED IN FAVOUR OF THE ASSESSEE WAS REASONABLE A ND APPROPRIATE. FURTHER, THE SUBSTANTIAL SHARE IN THE PROPERTY IN DISPUTE BELONGS TO SHRI RAHUL, SON OF S HRI JASWANT SINGH BUT NEITHER ADIT NOR ASSESSING OFFICE R HAS RECORDED HIS STATEMENT NOR FIND OUT THE CORRECT SALE CONSIDERATION OF THE PROPERTY IN QUESTION. HE WAS ALSO NOT PRODUCED FOR CROSS-EXAMINATION ON BEHALF OF THE ASSESSEE. THE COMPARABLE CASE WOULD SUPPORT EXPLANATION OF ASSESSEE THAT PROBABLE VALUE OF THE PROPERTY ON THE DATE IN QUESTION WAS REASONABLE AND NEGATE THEORY OF CASH PAYMENT. 19. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE WAS JUSTIFICATION FOR THE ASSESSEE NOT TO CROSS-EXAMINE THE STATEMENT OF SHRI JASWANT SINGH BECAUSE ASSESSING OFFICER HAS FAILED TO PROVIDE ALL THE REQUIRED AND RELEVANT DOCUMENTS TO THE ASSESSEE IN ORDER TO ALLO W PROPER AND MEANINGFUL CROSS-EXAMINATION ON BEHALF O F THE ASSESSEE. THUS, NO ADVERSE VIEW COULD BE TAKEN 30 AGAINST THE ASSESSEE FOR THE PURPOSE OF MAKING TH ADDITION. FURTHER, SHRI JASWANT SINGH CANNOT BE ALLOWED TO MAKE ORAL STATEMENT AGAINST THE CONTENTS OF DOCUMENTS RECORDED IN THE REGISTERED SALE DEED BETW EEN THE PARTIES. NO INDEPENDENT EVIDENCE HAS BEEN BROU GHT ON RECORD TO PROVE THAT ASSESSEE HAS MADE CASH PAYMENT TO SHRI JASWANT SINGH AND OTHERS OVER AND ABOVE WHAT IS RECORDED IN THE SALE DEED. THUS, THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN HOLDING THA T SINCE SHRI JASWANT SINGH HAS PAID CAPITAL GAIN TAX ON THE ENTIRE SALE CONSIDERATION AND SAME HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT AND HIS STATEMENT IS NOT CROSS-EXAMINED BY THE ASSESSEE, THEREFORE, ADDI TION COULD BE MADE AGAINST THE ASSESSEE. THESE OBSERVATIONS AGAINST THE ASSESSEE ARE WHOLLY UNJUST IFIED AND ARE LIABLE TO BE SET ASIDE. THE DECISION RELIE D UPON BY LD. DR IN THE CASE OF SMT. BIMLA RANI (SUPRA) AN D SHASHI KIRAN (SUPRA) ARE, THEREFORE, DISTINGUISHABL E ON FACTS. 20. IN THE LIGHT OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION OF RS. 65 LACS N THE HANDS OF THE ASSESSEE. WE, ACCORDINGLY, SET AS IDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ADDI TION OF RS. 65 LAKS. 21. IN THE RESULT, ITA 343/2014 IS ALLOWED. ITA 442/2015 AND 670/2015 31 22. BOTH THE APPEALS BY OTHER ASSESSEES ARE DIRECTE D AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS)-II LUD HIANA DATED 31.03.2015 AND 10.06.2015 FOR ASSESSMENT YEAR 2010-11 CHALLENGING THE ADDITION OF RS. 67 LACS AND RS. 68 LACS RESPECTIVELY ON ACCOUNT OF ALLEGED EXTRA AM OUNT PAID IN CASH TO THE SELLER OF THE PROPERTY. 23. LD. REPRESENTATIVES OF BOTH THE PARTIES SUBMITT ED THAT THE ISSUE IS SAME AS HAVE BEEN CONSIDERED IN T HE CASE OF OTHER CO-OWNER ASSESSEE SHRI SIMMARDEEP SIN GH (SUPRA). THEREFORE, FOLLOWING THE ORDER IN THE CA SE OF SHRI SIMMARDEEP SINGH (SUPRA) WE SET ASIDE THE ORDE RS OF AUTHORITIES BELOW AND DELETE BOTH THE ADDITIONS. 24. IN THE RESULT, BOTH THE APPEALS OF ASSESSEES IN ITA 442/2015 AND 670/215 ARE ALLOWED. 25. IN THE RESULT, ALL THE THREE APPEALS OF DIFFERE NT ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND DECEMBER,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD