Texraj Reality Pvt.Ltd., Ahmedabad V. The Dy.CIT, (OSD), Circle-8, Ahmedabad

ITA 3520/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8119 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 15-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: G C PIPARA
• Keywords: Recovery proceedings; Income from undisclosed sources; Loose papers; Corroborative evidences; Retraction
• Section: 133A

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.3520/AHD/2015 / ASSTT. YEAR: 2011-2012 TEXRAJ REALTY P.LTD. 16, 4 TH FLOOR, AGRAWAL MALL S.G. HIGHWAY AHMEDABAD. PAN : AACCT 6305 L VS. DCIT (OSD), CIR.8 AMBAWADI AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI G.C. PIPARA, AR REVENUE BY : SHRI SURENDRAKUMAR, CIT-DR ! / DATE OF HEARING : 19/09/2017 '#$ ! / DATE OF PRONOUNCEMENT: 16/11/2017 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF ASSES SEE AGAINST ORDER OF LD.CIT(A)-4, AHMEDABAD DATED 14.10.2015 PA SSED FOR ASSTT.YEAR 2011-12. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING ADDITION OF RS.14.85 CRORES. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COM PANY WAS INCORPORATED ON 13.3.2007 WITH AN OBJECT TO CARRY O UT BUSINESS OF ITA NO.3520/AHD/2015 2 REAL ESTATE. IT HAS FILED ITS RETURN OF INCOME FOR THE ASSTT.YEAR 2011-12 ON 25.10.2012 DECLARING TOTAL LOSS OF RS.66 ,863/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSE SSMENT AND NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT W AS ISSUED ON 13.8.2013 WHICH WAS DULY SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THAT A SURVE Y UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMI SES OF THE ASSESSEE ON 23.11.2010. DURING THE COURSE OF SURVE Y A DIARY (LOOSE CHIT/NOTE BOOK) WAS FOUND AND IMPOUNDED. ST ATEMENT OF SHRI DEVEN R. PATEL WAS RECORDED. ACCORDING TO THE AO DIARY CONTAINS NARRATION EXHIBITING RECEIPT OF MONEY IN C ASH AMOUNTING TO RS.14.85 CRORES. THE DIRECTOR OF THE COMPANY, S HRI DEVEN R. PATEL HAS ADMITTED SUCH RECEIPTS AS UNACCOUNTED INC OME. HOWEVER, WHILE VERIFYING THE RETURNED INCOME, IT RE VEALED THAT SUCH INCOME HAS NOT BEEN SHOWN, AND THEREFORE, HE I SSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ASKING HIM TO EXPLAIN AS TO WHY THE ABOVE AMOUNT OF RS.14.85 CRORES SHOULD NOT BE ADDED TO TOTAL INCOME OF THE ASSESSEE. IN RESPONSE TO THE SHOW CA USE NOTICE THE ASSESSEE HAS FILED A LETTER DATED 13.1.2014. THE A O HAS REPRODUCED COPY OF THE LETTER IN THE ASSESSMENT ORD ER FROM PAGE NOS.2 TO 11. THEREAFTER, THE LD.AO HAS SUMMARIZED MAIN POINTS OF THE STAND TAKEN BY THE ASSESSEE IN ITS SUBMISSION. THE SUBMISSIONS/STAND POINT OF THE ASSESSEE AS CONSTRUE D BY THE AO READS AS UNDER: I). NO SUCH AMOUNT OF CASH OF RS. 14.85 CROR E HAS BEEN RECEIVED BY THE COMPANY AS THE LAND IN QUESTION WAS DISPUTED. II). IN THE STATEMENT OF SHRI DEVEN PATEL REC ORDED ON 24.11.2010 IT HAS BEEN STATED THAT WHAT IS BEING ME NTIONED IN THE SAID DAIRY IS RELATING TO LAND SITUATED AT V ATVA (VINZOL) ITA NO.3520/AHD/2015 3 AND THE SAID DIARY CONTAINS DETAILS OF LAND PURCHAS E/SALE TRANSACTIONS. WHEREAS FROM THE PERUSAL OF THE SAID DIARY IT IS SEEN THAT THERE ARE NO DETAILS OF PURCHASE/SALE TRA NSACTIONS. III). THE DETAILS IN THE DIARY RELATE TO THE CH EQUES WHICH HAVE BEEN RECEIVED GIVING THE DATE, AMOUNT & FROM T HE SAID CHEQUES HAVE BEEN RECEIVED AND THE HEADING PERTAINI NG TO CASH RECEIVED IS 'CASH RECEIVED BY MR. DEVEN PATEL' . THEREAFTER, UNDER THE SAID HEADING ONLY MONTH & AMO UNT IS MENTIONED. IV). THERE IS NO DATE TO STATE THAT ON WHAT DA TE THE IMPUGNED AMOUNT OF SO CALLED 'ON MONEY' HAS BEEN RECEIVED. V). THERE IS NO MENTION/INDICATION OF ANY NAM E, AREA OF LAND RATE AT WHICH SOLD SO AS TO DERIVE THE WORKING OF'ON MONEY'. VI). THE SAID LAND IS UNDER DISPUTE AND THE BOM BAY HIGH COURT VIDE ORDER DATED 21.10.2011 HAS DECLARED THE SALE AS VALID AND THUS PRIOR TO THAT THERE WAS NO REASON FO R COLLECTION OF 'ON MONEY' ON THE IMPUGNED LAND WHICH WAS UNDER DISPUTE RELATING TO THE ACQUISITION OF THE TITLE IN THE LAN D ITSELF. VII). THE ASSESSEE HAS RELIED ON VARIOUS CASE L AWS IN HIS SUPPORT WHEREIN IT HAS BEEN HELD THAT STATEMENT REC ORDED DURING THE COURSE OF SURVEY CANNOT BE MADE BASIS FO R ADDITION IN ASSESSMENT. 4. THE LD.AO MADE AN ANALYSIS OF NARRATIONS IN THE DIARY. HE OBSERVED THAT APART FROM CERTAIN ENTRIES RECORDED I N CASH, THERE WERE ENTRIES REPRESENTING CHEQUE PAYMENTS. HE MADE REFERENCE TO PAGE NO.2 WHEREIN DETAILS OF CHEQUE AMOUNTING TO RS.27 LAKHS PAID TO KUSUM OVERSEAS ARE WRITTEN. HE VERIFIED TH IS ENTRY WITH BANK ACCOUNT OF THE ASSESSEE AND OBSERVED THAT PAYM ENT OF RS.27 LAKHS WAS MADE BY THE ASSESSEE WHICH IS VERIFIABLE FROM THE BANK ACCOUNT. HE SCANNED COPIES OF THESE ENTRIES AS WEL L AS BANK STATEMENT ON PAGE NO.13 OF THE ASSESSMENT ORDER. I N A SIMILAR ITA NO.3520/AHD/2015 4 MANNER, HE HAS HIGHLIGHTED OTHER ENTRIES AND CROSS- VERIFIED THEM WITH THE BANK STATEMENT OF THE ASSESSEE. ON THE ST RENGTH OF THESE DETAILS HE CONSTRUED GENUINENESS OF ENTRIES M ENTIONED IN THE DIARY. HE FOUND THAT SINCE NARRATIONS REPRESEN TING CHEQUES ARE VERIFIABLE WITH THE BANK ACCOUNT OF THE ASSESSE E, IT SHOWED THAT ENTRIES IN DIARY ARE GENUINE AND CORRECT. THE REAFTER, HE MADE ANALYSIS OF OTHER ENTRIES AND ASSUMED THAT THESE AR E CASH RECEIVED BY THE ASSESSEE ON SALE OF VATVA LAND. FOR BUTTRES SING HIS CONTENTIONS, HE TOOK CORROBORATIVE SUPPORT FROM THE DISCLOSURE STATEMENT OF DIRECTOR, SHRI DEVEN R. PATEL. THE AO IN THIS WAY, DREW CONCLUSION THAT ASSESSEE INTENDED TO SELL LAND AT VATVA AND IN THAT PROCESS, IT HAS RECEIVED ON-MONEY IN CASH, WHICH HAS NOT BEEN ACCOUNTED FOR IN THE BOOKS. THIS HAS BEEN TRE ATED AS UNDISCLOSED INCOME. THE LD.AO IN THIS WAY HAS MADE ADDITION OF RS.14.85 CRORES. APPEAL TO THE LD.CIT(A) DID NOT B RING ANY RELIEF TO THE ASSESSEE. THE LD.CIT(A) HAS CONCURRED WITH THE AO AND CONFIRMED ADDITION. DISCUSSION MADE BY LD.CIT(A) R EADS AS UNDER: 8. THE SECOND AND THIRD GROUND OF APPEAL ARE AGAIN ST THE ADDITION OF RS.14.85 CRORES MADE BY THE AO CONSIDER ING THIS AMOUNT AS 'ON-MONEY' RECEIPT OF THE APPELLANT COMPA NY, WHICH HAS NOT BEEN DISCLOSED TO THE DEPARTMENT IN R EGULAR BOOKS OF ACCOUNTS. FACTS OF THE CASE IS THAT A SURV EY U/S 133A OF THE ACT WAS CONDUCTED ON THE BUSINESS PREMI SES OF THE APPELLANT ON 23-11-2010. DURING THE COURSE OF S URVEY, SOME DOCUMENTS WERE FOUND IN THE FORM OF DIARY, WHI CH SHOWS FIGURES OF RS.14.85 CRORES AND MENTIONED IN DETAIL IN THE ASSESSMENT ORDER BY THE AO. THE APPELLANT COMPA NY IS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF LAND AND ON ASKING QUESTION ABOUT THE NATURE OF THE AMOUNT MENT IONED IN THESE DOCUMENTS IN THE FORM OF DIARY, SHRI DEVEN RAMESHBHAI PATEL, DIRECTOR OF THE APPELLANT COMPANY STATED WHILE GIVING STATEMENT THAT THE DIARY (ROYAL BOOK) PERTAIN TO HIS COMPANY TEXRAJ REALTY PVT. LTD.' HE FURTHER STA TED THAT THE DIARY HAS BEEN WRITTEN BY HIM AND THE OTHER DIR ECTOR SHRI ITA NO.3520/AHD/2015 5 VISHNUBHAI PATEL. THE AMOUNT WRITTEN IN THE DIARY P ERTAINS TO THE PURCHASE & SALE OF LAND AT VATVA VINZOL. IN REP LY TO Q. NO.17, SHRI DEVAN RAMESHBHAI PATEL, DIRECTOR OF THE COMPANY FURTHER STATED THAT WHATEVER AMOUNT SHOWN A S RECEIVED THROUGH CHEQUES HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT OF THE COMPANY. THE CASH OF RS.7,80,00,000/ - RECEIVED BY SHRI DEVEN R. PATEL AND RS.7,05,00,0007 - RECEIVED BY SHRI VISHNUBHAI PATEL (TOTAL CASH RECEI PT OF RS.14,85,00,000/-) HAS NOT BEEN SHOWN IN COMPANY'S BOOKS OF ACCOUNTS. 8.1 IN REPLY TO Q. NO.18 OF THE STATEMENT, SHRI DEV EN R. PATEL STATED THAT THIS AMOUNT OF RS. 14.85 CRORES W AS RECEIVED IN CASH AS 'ON-MONEY' AGAINST THE LAND OF THE COMPANY AT VATVA VINZOL AND IT IS UNACCOUNTED & NOT SHOWN IN THE BOOKS OF ACCOUNTS OF THE COMPANY. HE CONFIRM ED THE SAME WHILE REPLYING TO Q. NO. 19 OF THE STATEMENT S AYING THAT THIS AMOUNT WAS RECEIVED AS PER ORAL AGREEMENT S AND AMOUNT THROUGH CHEQUES IS YET TO BE RECEIVED. IN RE PLY TO Q. NO. 20 OF THE STATEMENT, SHRI DEVEN R. PATEL, DIREC TOR OF THE COMPANY ADMITTED THIS RECEIPT OF RS.14.85 CRORES AS UNACCOUNTED INCOME OF THE FY 2010-11 (AY 2011-12) A ND SURRENDERED FOR TAXATION. HE ASSURED PAYMENT OF TAX ON THE SAID INCOME. HE REITERATED THESE FACTS WHILE REPLYI NG TO Q. NO.21 OF THE STATEMENT. STATEMENT OF THE VISHNUBHAI PATEL, ANOTHER DIRECTOR WAS RECORDED ON 24-11-2010 IN WHIC H HE CONFIRMED THE STATEMENT OF SHRI DEVEN R. PATEL AND STATED THAT HE TAKES FULL RESPONSIBILITY TO PAY TAX ON THE INCOME SURRENDERED. SHRI VISHNUBHAI PATEL WAS PRESENT THRO UGHOUT THE RECORDING OF STATEMENT OF SHRI DEVEN R. PATEL. ON THESE FACTS THE AO MADE THE ADDITIONS OF RS.14.85 CRORES ON THE BASIS OF DOCUMENTS FOUND DURING THE COURSE OF SURVE Y AND ADMITTED BY BOTH THE DIRECTORS OF THE COMPANY. THE AO DISCUSSED ALL THESE FACTS IN DETAIL IN THE ASSESSME NT ORDER AND PLACED RELEVANT PORTIONS OF THE DOCUMENTS FOUND & STATEMENT RECORDED BY SCANNING THE SAME & MADE PART OF THE ASSESSMENT ORDER. 8.2 IN THE WRITTEN SUBMISSIONS FILED BEFORE THE AO AND DURING APPELLATE PROCEEDINGS, THE APPELLANT OBJECTE D TO THE ADDITIONS MADE. THE SUBMISSIONS OF THE APPELLANT HA VE BEEN REPRODUCED IN FULL IN PARAS ABOVE. THE CONTENTIONS OF THE APPELLANT ARE SUMMARIZED UNDER THE FOLLOWING POINTS : ITA NO.3520/AHD/2015 6 I) THE APPELLANT CONTENDED THAT THIS DIARY W AS PREPARED BY SHRI DEVAN PATEL, DIRECTOR OF THE COMPANY, ON TH E REQUEST OF THE SURVEY PARTY STATING THAT IF HE PREPARES DET AILS LIKE THIS AND DISCLOSE CERTAIN AMOUNT, THE CASE OF THE COMPAN Y AS WELL AS INDIVIDUALS WILL BE CLOSED EASILY WITHOUT A NY TROUBLE AND UNDER THE WRONG IMPRESSION AND WITHOUT UNDERSTA NDING PROPERLY THE REPERCUSSION OF THIS ACT AND BOTH THE DIRECTORS AGREED TO THE DEMAND OF THE SURVEY PARTY. THE APPEL LANT STATED THAT THERE ARE SEVERAL ANOMALIES IN THE DIAR IES FOUND. II) SECOND CONTENTION IS THAT THE LAND UNDER CONSIDERATION FOR WHICH 'ON-MONEY' HAS BEEN STATED AS RECEIVED WAS UNDER LITIGATION AT VARIOUS LEVEL. THE RE WERE SEVERAL MATTERS PENDING BEFORE VARIOUS AUTHORITIES PERTAINING TO THIS LAND, AS THE LAND WAS OWNED BY SLM MANEKLAL INDUSTRIES LTD., WHICH WAS CLOSED DOWN. THEREFORE, NOBODY WILL PAY ADVANCE AMOUNT FOR THE LAND WHICH WAS RIDD LED WITH SEVERAL CASES BEFORE VARIOUS AUTHORITIES. ON THIS B ASIS, APPELLANT STATED THAT ON-MONEY WAS NOT RECEIVED AT ALL. III) THIRD CONTENTION OF THE APPELLANT IS THA T THE STATEMENT RECORDED IN PURSUANT TO SURVEY U/S 133A O F THE ACT DOES NOT EMPOWER IT AUTHORITY TO EXAMINE ANY PE RSON ON OATH. THEREFORE, THE STATEMENT RECORDED U/S 133A OF THE ACT HAS NO EVIDENTIARY VALUE AND ANY ADMISSION MADE DURING SUCH STATEMENT CANNOT BE MADE THE BASIS OF ADDITION . IN SUPPORT OF THIS CONTENTION, THE APPELLANT CITED SEV ERAL CASE LAWS. IV) THE APPELLANT'S DIRECTOR RETRACTED THE AB OVE STATEMENT, THEREFORE, STATEMENT SHOULD NOT BE RELIE D UPON. 8.3 REGARDING THE FIRST CONTENTION OF THE APPELLANT THAT THE DIARY WAS PREPARED DURING THE COURSE OF SURVEY PROC EEDINGS AT THE REQUEST OF SURVEY TEAM IS BEYOND IMAGINATION . IT CANNOT BE UNDERSTOOD I) WHY SURVEY TEAM REQUESTED F OR PREPARING OF SUCH DIARY II) WHY A PARTICULAR AMOUNT AND FOR THE PARTICULAR PERIOD WAS WRITTEN. THE APPELLANT IS SILENT ON THESE ISSUES. BOTH THE DIRECTORS OF THE APPELLANT T COMPANY WERE PRESENT DURING THE COURSE OF SURVEY. THE APPEL LANT PURCHASED LAND FROM SLM MANEKLAL LTD. T HROUGH DEBTS RECOVERY TRIBUNAL (DRT) FOR RS. 19, 22,53,098/- IN FY 2006-07. AS CONTENDED BY THE DIRECTORS OF THE COMPANY, THERE WERE CASES PENDING BEFORE AHMEDABAD CIVIL ITA NO.3520/AHD/2015 7 COURT AS WELL AS IN THE HON'BLE HIGH COURT OF BOMBAY AND THE LAND WAS PURCHASED AFTER OBTAINING CLEARANCE FROM A LL THESE AUTHORITIES. THESE FACTS SHOW THAT THE APPELLANT CO MPANY HAD TEAM OF ADVOCATES AT THEIR DISPOSAL TO REPRESEN T, AID & ADVICE ON VARIOUS MATTERS. THE PERSON OF SUCH STATU RE, WHO PURCHASE LAND WORTH RS.19.22 CRORES IN AY 2006-07 A ND HAVING EXPERIENCE OF DEALING WITH DIFFERENT AUTHORI TIES WITH THE HELP OF LEGAL LUMINARIES WILL COME UNDER PRESSU RE OF IT. AUTHORITIES TO PREPARE DIARY AND WRITE CONTENTS TO THE EXTENT OF RS.14.85 CRORES AS RECEIPT OF ON-MONEY IS BEYOND BELIEF OF ANY PRUDENT PERSON. IT CANNOT BE ACCEPTED THAT BOT H THE DIRECTORS COULD NOT UNDERSTAND REPERCUSSION OF SUC H ACT. THE TRUE FACTS ARE THAT THE DIARY WAS FOUND DURING THE COURSE OF SURVEY AND THE CONTENTS WERE EXPLAINED AND ADMITTED BY BOTH THE DIRECTORS. WHATEVER FACTS STATED AT THE TI ME OF INVESTIGATION ON THE SPOT ARE CONSIDERED TRUE & COR RECT AND THE FACTS NARRATED AFTER LONG TIME CAN ONLY BE CONS IDERED AS AFTERTHOUGHT TO CREATE CONFUSION AND EVADE LIABILIT Y OF PAYMENT OF TAX. THE APPELLANT TRIED TO DO THE SAME IN THIS CASE. IN REPLY TO Q.NO.14 OF THE STATEMENT, SHRI DE VEN R. PATEL, DIRECTOR OF THE APPELLANT COMPANY ADMITTED T HAT THE COMPANY INTRODUCED ITS OWN UNACCOUNTED MONEY TO THE EXTENT OF RS.5,35,65,000/- IN THE NAME OF TWO ENTIT IES NAMELY M/S JUPITER BUSINESS LTD. AND M/S SUDARSAN ENTERPRISE. THE DIRECTOR ADMITTED THIS AMOUNT AS UNACCOUNTED INCOME FOR THE AY 2008-09 AND SURRENDER ED THE SAME FOR TAXATION. BUT THE APPELLANT IS SILENT ON TH IS ISSUE. THESE FACTS PROVE THAT THE APPELLANT MADE FALSE ALL EGATION ABOUT THE PREPARATION OF THE DIARY DURING THE SURVE Y PROCEEDINGS. 8.4 REGARDING THE ANOMALIES IN THE CONTENTS OF THE DIARY AS STATED BY THE APPELLANT, IT IS FOR THE DIRECTORS OF THE COMPANY TO EXPLAIN THESE ANOMALIES. THE DIARY WAS FOUND AT THE PREMISE S OF THE APPELLANT, OWNED BY THE DIRECTORS AND CONTENTS WERE ADMITTED & EXPLAINED BY THE DIRECTORS OF THE COMPAN Y. THE ONUS IS UPON THEM TO EXPLAIN THE SO CALLED ANOMALIE S. WHEN THE PAYMENT SHOWN THROUGH CHEQUES AS MENTIONED IN T HOSE DIARIES ARE TRUE AND CORRECT AND SHOWN IN THE REGUL AR BOOKS OF THE APPELLANT, THE OTHER CONTENTS OF DIARY WAS A LSO CORRECT BY THE AO. AS PER PROVISIONS CONTAINED U/S 133A, SU RVEY PROCEEDINGS ARE APPROVED BY THE OFFICER OF JT. / AD DL. CIT RANK, WHO SUPERVISE SURVEY U/S 133A OF THE ACT CLOS ELY. THE ITA NO.3520/AHD/2015 8 APPELLANT FAILED TO SHOW ANY EVIDENCE THAT SUCH FAC TS WERE BROUGHT TO THE NOTICE OF HIGHER AUTHORITIES DURING THE COURSE OF SURVEY OR IMMEDIATELY AFTER THE SURVEY PROCEEDIN GS. THIS CONTENTION IS TAKEN BEFORE THE AO IN THE WRITTEN SU BMISSION DATED 13-01-2014, WHICH IS AFTER MORE THAN THREE YE ARS. THEREFORE, THE CONTENTION OF THE APPELLANT THAT THE DIARY WAS PREPARED AT THE REQUEST OF THE SURVEY PARTY IS NOTH ING BUT AN EFFORT TO EVADE TAX LIABILITY. THIS CONTENTION DESE RVES TO BE REJECTED FOR THE REASON GIVEN ABOVE, THEREFORE, IT IS REJECTED. 8.5 ABOUT THE SECOND CONTENTION THAT THE LAND WAS E NTANGLED WITH SEVERAL CASES BEFORE VARIOUS AUTHORITIES AND N OBODY WILL PAY ANY MONEY FOR SUCH LAND, IT IS A WELL KNOWN FAC T THAT SEVERAL LANDS ENTANGLED IN VARIOUS CASES ARE PURCHA SED BY THE BUYERS KEEPING IN MIND THE RISK ATTACHED AND PR OBABILITY OF WINING THE CASE. THE APPELLANT HAS ITSELF PURCHA SED THE SAME LAND FROM SLM MANEKLAL IND. LTD. FOR RS.19.22 CRORES, EVEN THOUGH SEVERAL CASES BEFORE VARIOUS AUTHORITIE S WERE PENDING. THIS CONTENTION OF THE APPELLANT IS IN CON TRADICTION OF ITS OWN ACT. THE APPELLANT CAN BUY A LAND WORTH ABOUT RS.20 CRORES EVEN THOUGH IT IS RIDDLED WITH SO MANY CASES, BUT OTHER CANNOT VENTURE INTO RISK IS NOT AN ACCEPT ABLE ARGUMENT. BUSINESSMAN SEES AN OPPORTUNITY IN SUCH MA TTERS AND TAKES RISK. HIGHER THE RISK, HIGHER THE PROFIT IS THE MANTRA OF BUSINESS. ULTIMATELY, THE LAND UNDER CONSI DERATION WAS GOT CLEARED FROM ALL THE AUTHORITIES, WHICH PRO VE THAT THERE WAS HIGH PROFITABILITY OF SUCCESS. THE INVEST OR IN REAL ESTATE EVALUATES THE PROS & CONS OF HIS INVESTMENT AND TAKES A CALCULATED RISK IN SUCH MATTERS. KEEPING IN VIEW THE DISCUSSION ABOVE, THE CONTENTION OF THE APPELLANT H AS NOT BEEN FOUND ACCEPTABLE, THEREFORE, IT IS REJECTED. 8.6 IN RESPECT OF THIRD CONTENTION THAT STATEMENT R ECORDED DURING THE COURSE F SURVEY U/S 133A OF THE ACT SHOU LD NOT BE RELIED UPON AND HAS NO EVIDENTIARY VALUE, WORTH MEN TIONING THAT IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY U/S 133 OF THE ACT, SHRI DEVEN PATEL, DIRECTOR OF T HE COMPANY MERELY STATED THE FACTS, WHICH HAVE BEEN PL ACED BEFORE HIM ON THE BASIS OF DOCUMENT FOUND DURING TH E COURSE OF SURVEY. THE STATEMENT IS SIMPLY EXPLAINING THE F ACTS MENTIONED IN THESE DOCUMENTS. ADMISSION OF UNDISCLO SED INCOME WAS NOT WITHOUT EVIDENCES BUT ON THE BASIS O F CLINCHING WRITTEN EVIDENCES. NAME OF THE APPELLANT COMPANY MENTIONED IN THE DIARY, AMOUNT WAS WRITTEN IN CLEAR FIGURES ITA NO.3520/AHD/2015 9 MONTHWISE AND THE AMOUNT ADMITTED AS RECEIVED BY BO TH THE DIRECTORS OF THE APPELLANT MENTIONED AS PAYMENT THR OUGH CHEQUES TALLIES WITH THE BANK ACCOUNTS OF THE APPEL LANT. THEREFORE, THE STATEMENT GIVEN BY THE DIRECTORS OF THE COMPANY IS NOTHING BUT STATING THE FACTS MENTIONED IN THE DOCUMENT FOUND DURING THE SURVEY. REGARDING THE VAR IOUS CASES LAWS CITED BY THE APPELLANT, THE FACTS OF THE APPELLANT'S CASE IS DISTINGUISHABLE FOR THE REASON THAT THE STA TEMENT HAS BEEN MADE ON THE BASIS OF WRITTEN EVIDENCES FOUND A ND THE ADDITIONS HAVE NOT BEEN MADE ONLY ON THE BASIS OF S TATEMENT RECORDED DURING THE SURVEY BY THE AO. EVEN IN ABSEN CE OF STATEMENT OF THE DIRECTORS OR DENIAL OF DIRECTORS A BOUT THESE CONTENTS, ADDITIONS MUST HAVE BEEN MADE BY THE AO B ECAUSE THE AMOUNT, MONTH & NAME OF THE RECIPIENT IS VERY C LEARLY MENTIONED IN THE DIARY. THEREFORE, THE CASE LAWS ME NTIONED BY THE APPELLANT ARE NOT RELEVANT TO THE APPELLANT' S CASE AS FACTS ARE NOT IDENTICAL. ONLY ON THE BASIS OF WRITT EN EVIDENCES FOUND DURING THE COURSE OF SURVEY, ADDITIONS MUST H AVE BEEN MADE. ADDITIONS WERE NOT MADE ONLY ON THE BASIS OF THE STATEMENT. 8.7 THE LAST CONTENTION IS THAT THE DIRECTOR OF THE APPELLANT COMPANY RETRACTED THE STATEMENT MAKING DISCLOSURE O F UNACCOUNTED INCOME OF RS.14.85 CRORES. IT IS IMPORT ANT TO MENTION THAT VIDE LETTER DATED 22-02-2012 I.E. ABOU T 15 MONTHS AFTER THE SURVEY, DIRECTOR OF THE COMPANY IN FORMED THE ACIT, CIR.8, AHMEDABAD, THE AO, STATING THAT TH EY ARE NOT ACCEPTING THE DISCLOSURE MADE. THIS LETTER WAS SIGNED BY SHRI DEVEN R. PATEL ONE OF THE DIRECTORS, WHEREAS C ONTENTS OF THE DIARY WERE STATED & CONFIRMED BY BOTH THE DIREC TORS DURING THE COURSE OF SURVEY. AT THE END OF THE STAT EMENT OF SHRI DEVEN R. PATEL, IT IS STATED THAT THIS STATEME NT IS GIVEN IN FULL SENSES, WITHOUT PRESSURE OF FEAR & FAVOUR A ND SIGNED AFTER UNDERSTANDING CONTENTS OF THE SAME. THE DIREC TOR OF THE COMPANY MADE DISCLOSURE IN STATEMENT RECORDED BEFOR E INCOME-TAX AUTHORITY AS PER PROVISION OF THE ACT BU T SO CALLED RETRACTION HAS BEEN FILED WITHOUT STATING TH E REASONS WHY IT IS BEING RETRACTED. AFFIDAVITS RETRACTING TH E DISCLOSURE WERE FILED ON 13-01-2014 I.E. AFTER MORE THAN THREE YEARS FROM THE DATE OF SURVEY. WHEN THE STATEMENT RECORDE D UNDER SOME LAW IS NOT TO BE RELIED UPON, AS PER CONTENTIO NS OF THE APPELLANT, THE RETRACTION FILED AFTER SUCH A LONG P ERIOD CANNOT BE CONSIDERED A BONAFIDE ACT. TO EVADE THE TAX LIAB ILITY, THE APPELLANT ADVANCED THE ARGUMENTS, WHICH ARE CONTRAD ICTORY ITA NO.3520/AHD/2015 10 TO ITS ON ARGUMENTS. KEEPING IN VIEW THE DISCUSSIO N MENTIONED ABOVE, THE CONTENTION OF THE APPELLANT DE SERVES TO BE REJECTED, THEREFORE IT IS REJECTED. 9. ON GOING THROUGH THE FACTS OF THE CASE AND DISCU SSION IN PARAS ABOVE, THE ADDITIONS MADE BY THE A ARE FOU ND JUSTIFIED. THEREFORE, ADDITIONS OF RS.14.85 CRORES ARE CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 5. WHILE IMPUGNING ORDERS OF THE REVENUE AUTHORITIE S, THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH WRITTEN SUBMISSIONS FILED BEFORE THE LD.CIT(A) WHICH HAS BEEN REPRODUCE D FROM PAGES 4 TO 38 OF THE CIT(A)S ORDER. HE POINTED OUT THAT THE ASSESSEE RAISED MULTI-FOLD CONTENTIONS BEFORE THE LD.CIT(A) DEMONSTRATING CIRCUMSTANCES AGAINST THE PROBABILITY ASSUMED BY TH E AO OF RECEIPT OF ON-MONEY. IN HIS FIRST FOLD OF CONTENTI ONS HE POINTED OUT THAT THE ASSESSEE-COMPANY WAS INCORPORATED TO ACQUI RE IMMOVABLE PROPERTIES, DEVELOP THE SAME AND THEREAFT ER RE-SALE OF SUCH DEVELOPED PROPERTY. IN ORDER TO BUTTRESS THIS PROPOSITION, THE ASSESSEE HAS FILED COPY OF MEMORANDUM OF ASSOCI ATION AND ARTICLES OF ASSOCIATION AS ANNEXURE-I BEFORE THE LD .CIT(A). ACCORDING TO THE LD.COUNSEL FOR THE ASSESSEE THIS B USINESS PROFILE WOULD CONTAIN THREE TYPES OF ACTIVITIES VIZ. (A) AC QUISITION OF IMMOVABLE PROPERTY, (B) DEVELOPMENT OF SUCH PROPERT Y AND MAKES IT READY FOR SALE TO EARN PROFIT, AND (C) SALE OF S UCH DEVELOPED IMMOVABLE PROPERTY. IN ORDER TO ACHIEVE ITS OBJECT S, THE ASSESSEE-COMPANY ENTERED INTO A DEED OF CONVEYANCE WITH SLM MANEKLAL INDUSTRIES LTD. ON 21-3-2007. UNDERSTANDIN G BETWEEN THE ASSESSEE AND SLM MANEKLAL INDUSTRIES WAS SUBJEC T TO VARIOUS CONDITIONS. THE LD.COUNSEL FOR THE ASSESSEE TOOK U S THROUGH COPY OF THE DEED AVAILABLE AT PAGE NO.74 TO 93 OF THE PA PER BOOK, AND DREW OUR ATTENTION TOWARDS CLAUSE (6) OF SUCH DEED. HE POINTED ITA NO.3520/AHD/2015 11 OUT THAT THE ASSESSEE AGREES TO DISCHARGE CLAIM OF SECURED CREDITORS AGAINST THE VENDOR. IT HAS TO DISCHARGE CLAIM OF WORKERS DUES RELATING TO PF, ESI, DEBENTURE HOLDER, SALES-T AX, EXCISE DUTY, MUNICIPAL TAX, PROPERTY TAX, ELECTRICITY DUES. THE ASSESSEE HAS MADE A PAYMENT OF RS.5,93,60,261/- ON 10/3/2007 AND 20/3/2007 BY WAY OF SIX DEMAND DRAFTS. THEY WERE G IVEN TO RECOVERY OFFICER OF THE DEBTS RECOVERY TRIBUNAL (DR T). HENCE, THE LAND PURCHASED BY THE ASSESSEE WAS SUBJECT TO V ARIOUS CONDITIONS. VENDOR WAS FACING RECOVERY PROCEEDINGS BEFORE THE DRT AND IT WAS AN OUT-OF-COURT SETTLEMENT FOR PURCH ASE OF THE LAND, WHICH WERE SUBJECT TO VARIOUS SUBSEQUENT LITI GATIONS. IN HIS NEXT FOLD OF SUBMISSIONS HE CONTENDED THAT CHARGE A GAINST THE ASSESSEE IS THAT DURING THE COURSE OF SURVEY A DIAR Y/LOOSE PAPERS WERE FOUND AND SEIZED WHICH CONTAINED DETAILS OF ON -MONEY RECEIVED BY THE DIRECTORS FOR SALE OF VATVA (VINZOL ) LAND. IN ORDER TO ESTABLISH GENUINENESS OF THE TRANSACTION MENTION ED IN THIS DIARY, THE LD.AO DIVIDED NARRATIONS IN TWO PARTS; ( A) NARRATIONS REPRESENTING CHEQUE ENTRIES, AND (B) NARRATIONS EXH IBITING CASH RECEIPTS RECEIVED BY THE ASSESSEE. THE LD.AO HAS ASSUMED THAT SINCE CHEQUE ENTRIES ARE VERIFIABLE WITH THE BANK S TATEMENT OF THE ASSESSEE, THEREFORE, OTHER PART OF THE ENTRIES MENT IONED IN THE DIARY ARE ALSO TO BE CONSTRUED AS CORRECT. IN ORDE R TO DEMOLISH THIS PLEA OF THE AO, THE LD.COUNSEL FOR THE ASSESSE E TOOK US THROUGH OBJECTIONS FILED BEFORE THE LD.AO AS WELL A S BEFORE THE LD.CIT(A). HE POINTED OUT THAT IN THE DIARY AGAINS T SO-CALLED ON- MONEY NO DATE HAS BEEN MENTIONED AND ONLY MONTH WAS MENTIONED AND NOT EVEN NAMES OF THE PERSONS FROM WH OM ALLEGED MONEY WAS TAKEN HAS BEEN MENTIONED. IT IS FURTHER SUBMITTED THAT THERE IS NO LOGIC FOR MAKING SIX ENTRIES IN A PARTICULAR MONTH ITA NO.3520/AHD/2015 12 WITHOUT ANY DATE AND THAT FROM APRIL TO SEPTEMBER, NOTINGS WERE IN SIMILAR FASHION AND STYLE WHICH IPSO FACTO DOUBT GENUNINESS AND CORRECTNESS OF THE ENTRIES SO MADE. IT IS SUBMITTE D THAT THE ALLEGED TRANSACTIONS ARE PERTAINED TO SIX MONTHS I. E. FROM APRIL TO SEPTEMBER, 2010, HOWEVER, LOOKING TO THE SIMILAR TY PES OF HAND- WRITING WITH SAME INK CREATES MORE QUESTIONS THAN A NSWERS. MANNER OF NOTING BY THESE TWO DIRECTORS ARE ALSO AP PEARS TO BE IDENTICAL. ALL THESE TRANSACTIONS ARE APPEARED TO BE WRITTEN ON THE SAME DAY, RATHER THAN IN DIFFERENT DATES AS DOUBTED BY THE REVENUE. SO-CALLED RECEIPT OF MONEY BY SHRI DEVEN PATEL AND VISHNUBHAI PATEL IS WITHOUT ANY CORROBORATIVE EVIDE NCE, AND IF THE ON-MONEY ASSUMED TO BE BELONGED TO THE ASSESSEE-COM PANY, THEN, THERE WAS NO NEED TO BE NOTED OF THE SAME TRA NSACTIONS BY TWO DIFFERENT DIRECTORS, WHICH ITSELF DOUBTS CORREC TNESS OF THE NOTING. THEREFORE, FINDING OF THE REVENUE AUTHORIT IES WITH REGARD TO THE TRANSACTIONS RECORDED IN THE DIARY IS DEVOID OF ANY MERIT. IT IS FURTHER AVERRED THAT THERE ARE DISPARITIES IN TH E FINDINGS OF THE REVENUE AUTHORITIES SO MUCH SO THAT THE LD.REVENUE AUTHORITIES REFERRED TO ONLY ONE DIARY FOUND DURING THE COURS E OF SEARCH AND THE ALLEGED ON-MONEY BEING MENTIONED AT RS.14,85,0 0,000/-. IN FACT THERE ARE TWO DIARIES AND THE ALLEGED AMOUN T WAS SUM TOTAL OF TWO DIARIES. THIS FACT DEMONSTRATES THAT DIARY WAS BEING PREPARED AFTER RECORDING OF THE STATEMENT. IT IS A LSO POINTED OUT THAT THE LOOSE PAPERS FOUND DURING THE COURSE OF SE ARCH DO NOT CORRELATE THE DETAILS MENTIONED IN THE DIARY AND VI CE-VERSA, AND THEREFORE, THEY HAVE NO EVIDENTIARY VALUE. IT IS F URTHER SUBMITTED THAT IN THE CASE OF SALE/PURCHASE OF IMMOVABLE PROP ERTY, IN NORMAL COURSE, WHERE ON-MONEY IS INVOLVED, SOME CHE QUE PAYMENT FOLLOWED BY ON-MONEY IS TO BE MADE IN ORDER TO ESTABLISH ITA NO.3520/AHD/2015 13 BUYERS LEGAL RIGHT TO PURCHASE THE PROPERTY. HOWE VER, IN THE INSTANT CASE, THE REVENUE AUTHORITIES FAILED TO EST ABLISH SOME KIND OF PAYMENT WAS MADE THROUGH CHEQUE DURING THE PERIO D APRIL 2010 TO SEPTEMBER, 2010, IN WHICH THE ALLEGED ON-MO NEY WAS RECEIVED, IN ORDER TO DEMOLISH THE CLAIM OF THE ASS ESSEE THAT NO SALE OF THE LAND BY THE COMPANY. THE STATEMENT MA DE BY SHRI DEVEN PATEL AND VISHNUBHAI PATEL HAS BEEN RETRACTED AS THE SAME ARE NOT SUPPORTED BY ANY SUPPORTING EVIDENCES. TH E FINDINGS OF THE REVENUE AUTHORITIES ARE BASED ON SOME PRESUMPTI ONS AND WITHOUT ANY CORROBORATIVE EVIDENCES. IT IS BEYOND O NES IMAGINATION THAT A PROPERTY WHICH IS SUBJECT TO VAR IOUS LITIGATIONS BEFORE HIGHER FORUMS, AND RIGHT, TITLE AND INTEREST THEREOF ARE IN DISPUTE, COULD BE PUT TO SALE. THERE WAS NO SUPPOR TING EVIDENCES TO ESTABLISH RECEIPT OF ON-MONEY EXCEPT STATEMENT O F TWO DIRECTORS, THAT TOO WAS RETRACTED SUBSEQUENTLY. TH EREFORE, IT IS PRAYED THAT FINDING OF THE LOWER AUTHORITIES THAT T HE ASSESSEE HAS SOLD THE PROPERTY IN QUESTION AND RECEIVED ON-MONEY IS BASED ON SOME MISTAKEN UNDERSTANDING OF FACTS ON RECORD AND LIABLE TO BE ANNULED. 6. ON THE OTHER HAND, THE LD.CIT-DR RELIED UPON THE ORDERS OF LD.REVENUE AUTHORITIES. HE SUBMITTED THAT IMMEDIAT ELY AFTER THE SURVEY, ASSESSEE HAS NOT FILED OBJECTION CONTENDING THERE IN THAT NO SUCH DIARY WAS FOUND RATHER IT WAS PREPARED ON T HE DIRECTION OF SURVEY PARTY. HE FURTHER CONTENDED THAT DIARY WAS FOUND SHOWING CASH RECEIPT AND THIS FACT WAS ACCEPTED BY THE DIRE CTOR. IN THE LIGHT OF THIS, NO OTHER EVIDENCE IS REQUIRED FOR HO LDING THAT ASSESSEE RECEIVED UNACCOUNTED MONEY. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. SOLITARY DISPUTE FOR OUR CON SIDERATION IS ITA NO.3520/AHD/2015 14 WHETHER SUFFICIENT EVIDENCE DIRECT OR CIRCUMSTANTIA L, IS BEING POSSESSED BY THE REVENUE TO HOLD THAT THE ASSESSEE HAD RECEIVED ON-MONEY IN CASH FOR SALE OF VATVA LAND. ANALYSIS OF RECORD WOULD INDICATE THAT THE LD.AO IS BASICALLY HARPING UPON T WO CIRCUMSTANCES, VIZ. (A) RECOVERY OF ALLEGED DIARY A T THE TIME OF SURVEY, AND (B) ADMISSION OF DIRECTOR IN THE STATEM ENT RECORDED UNDER SECTION 133A OF THE ACT AT THE TIME OF SURVEY . LET US EVALUATE BOTH THESE CIRCUMSTANCES IN THE LIGHT OF E XPLANATION GIVEN BY THE ASSESSEE. 8. FIRSTLY, WE DEAL WITH THE ALLEGED ADMISSION. DI RECTOR, SHRI DEVAN PATEL AND SHRI VISHNUBHAI PATEL HAVE FILED TH EIR AFFIDAVIT DURING THE COURSE OF ASSESSMENT PROCEEDINGS RETRACT ING DISCLOSURE MADE AT THE TIME OF SURVEY. COPIES OF THESE AFFIDA VITS ARE AVAILABLE ON PAGE NOS.191 TO 198 OF THE PAPER BOOK. SHRI DEVEN PATEL IN HIS AFFIDAVIT HAS ALLEGED THAT RECEIPT OF RS.7.80 CRORES IN CASH NOTED IN CERTAIN LOOSE PAPERS WAS NOT FOUND, R ATHER NOTING IN THE DIARY WAS MADE DURING THE COURSE OF SURVEY ONLY . HE MET WITH CHIEF COMMISSIONER ALSO AND APPRAISED HIM WHAT HAPP ENED DURING THE COURSE OF SURVEY. SINCE, WE HAVE TO FRAME PRIMA FACIE CASE ON THE BASIS OF CIRCUMSTANTIAL EVIDENCES, THEREFORE, I T IS NECESSARY TO TAKE NOTE OF THIS AFFIDAVIT WHICH HAS EXPLAINED THE POSITION OF ASSESSEE. IT READS AS UNDER: I, DEVAN R. PATEL, AGED ABOUT 40 YEARS RESIDING AT 11, SHYAM VIHAR BUNGLOW, THALTEJ, AHMEDABAD, DO SOLEMNLY STATE AND AFFIRM AS UNDER: 1. THAT I AM THE DIRECTOR IN TEXRAJ REALTY PV T. LTD., A COMPANY INCORPORATED ON 13TH MARCH 2007 AND I AM ON E OF THE INITIAL DIRECTOR IN THE SAID COMPANY. 2. THAT I LOOK AFTER THE COMPLETE BUSINESS OF THE COMPANY I.E. PERTAINING TO THE PURCHASE OF LAND FRO M SLM ITA NO.3520/AHD/2015 15 INDUSTRIES LTD., THE VARIOUS COURT MATTERS GOING ON IN THE SAID COMPANY RELATING TO THE SAID LAND. 3. A SURVEY WAS CONDUCTED BY THE INCOME TAX DEPART MENT IN THE BUSINESS PREMISES OF TEXRAJ REALTY PVT. LTD. SITUATED AT 16, 4TH FLOOR, AGRAWAL MALI, OPP. BHAGVAT VI DYAPITH, S.G. HIGHWAY, AHMEDABAD 380 061, ON 23/11/2010 IN T HE NOON. 4. DURING THE COURSE OF SURVEY ON 23/11/2010, AT TH E BUSINESS PREMISES NO MUCH INCRIMINATING DOCUMENTS W ERE FOUND BUT THE SURVEY PARTY PRESSURIZED US TO DISCLO SE CERTAIN UNACCOUNTED INCOME. DURING THE ENTIRE NIGHT OF 23/1 1/2010 NEGOTIATIONS WENT ON ABOUT THE MANNER AND METHOD OF DISCLOSURE AS NO INCRIMINATING DOCUMENTS WERE FOUND . FINALLY, IN THE EARLY MORNING ON 24/11/2010 I HAVE SURRENDERED AND STATED IN THE STATEMENT ABOUT THE R ECEIPT OF ON-MONEY OF RS. 14.85 CR. THOUGH NO SUCH ON-MONEY H AS BEEN RECEIVED BY THE COMPANY AND NO AMOUNT OF RS. 7 .80 CR. AS NOTED ON CERTAIN LOOSE PAPER DURING THE COUR SE OF SURVEY, HAS BEEN RECEIVED. THE NOTING IN THE DIARY WAS MADE DURING THE COURSE OF SURVEY ONLY. THE SAME WERE NOT FOUND RECORDED PRIOR TO THE SURVEY. 5. IT WAS ONLY AT THE INSTANCE OF THE SURVEY PARTY THAT THE SAID NOTE WAS PREPARED WHICH IS IN MY OWN HAND-WRIT ING. THE ENTIRE NOTING WERE PREPARED ON 23/11/2010-24/11/201 0 DURING THE COURSE OF SURVEY. 6. SINCE I WAS UNDER MENTAL TENSION AS LITIGATION W AS ALREADY GOING ON AGAINST THE PROPERTY PURCHASED BY US, HAVING INVESTED AN AMOUNT OF RS. 20 CR. AND WE WERE UNDER ACUTE FINANCIAL DIFFICULTIES AS HAVING INVESTED A S UBSTANTIAL AMOUNT WE WERE NOT ABLE TO DEVELOP AND SELL THE PRO PERTY. THEREFORE, IN ORDER TO GET THE SURVEY PROCEEDING CL OSED, I HAVE AGREED TO PREPARE THE SAID NOTE RELATING TO TH E RECEIPT OF CASH ON-THE ADVISE OF PARTY AND ACCORDINGLY, ADM ITTED THE SAME IN THE STATEMENT. 7. NO AMOUNT IN CASH HAS ACTUALLY BEEN RECEIVED B Y ME IN MY INDIVIDUAL CAPACITY OR AS A DIRECTOR OF THE COMP ANY. 8. THE NOTING RELATING TO THE CHEQUE RECEIVED IS ENTIRELY PERTAINING| TO THE LOAN TRANSACTION, WHICH HAS BEEN NOTED IN ITA NO.3520/AHD/2015 16 THE SAID DIARY DURING THE COURSE OF SURVEY ONLY ON THE ADVICE OF THE SURVEY PARTY SO THAT THE NOTING WILL LOOK GE NUINE. 9. I IMMEDIATELY, AFTER SURVEY, I, ALONG WITH MY OTHER DIRECTOR, SHRI VISHNUBHAI PATEL, HAVE MET THE -THE N CHIEF COMMISSIONER OF INCOME TAX, GUJARAT-I, SHRI D.S. R ASTOGI AND EXPLAINED HIM THE ENTIRE FACTS WHICH HAS TAKEN PALACE DURING THE COURSE OF SURVEY. HE THEN CALLED THE CON CERNED OFFICER AND THE JOINT COMMISSIONER, RANGE-8, AND WA RNED THEN NOT TO REPEAT SUCH INSTANCES IN FUTURE. WHATEVER STATED ABOVE IS TRUE AND CORRECT AND, NO P ART OF THE RELEVANT FACT HAS BEEN ELIMINATED OR HIDDEN. 9. SIMILAR AFFIDAVIT WAS FILED BY OTHER DIRECTOR WH ICH IS AVAILABLE ON THE RECORD. DURING THE COURSE OF HEARING, WE HA VE BEEN APPRAISED AS TO HOW STATEMENT RECORDED UNDER SECTIO N 133A HAS TO BE APPRECIATED. DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS VS. CIT, 263 ITR 101 (KER) WAS BROUGHT TO OUR NOTICE. SIMILARLY, PROPOSITION LAID DOWN IN THIS DECISION WAS APPROVED BY HONBLE APEX COURT IN THE CASE OF CIT VS. S. KHADAR KHAN & SONS, 25 TAXMANN.COM 413 WHERE IN THE HONBLE SUPREME COURT HAS UPHELD DECISION OF HONBL E MADRAS HIGH COURT WHICH HAS REFERRED JUDGMENT OF HONBLE K ERALA HIGH COURT. IN BOTH THESE CASES, IT HAS BEEN PROPOUNDED THAT SECTION 133A AUTHORIZES SURVEY TEAM TO RECORD STATEMENT, BU T SUCH AUTHORIZATION IS FOR RECORDING OF STATEMENT WITHOUT ADMINISTERING AN OATH AND STATEMENT RECORDED WITHOUT OATH HAS JUS T A CORROBORATIVE VALUE AS INFORMATION. IT IS NOT AN E VIDENCE PER SE . RELEVANT DISCUSSION MADE IN THE DECISION OF THE HON BLE KERALA HIGH COURT READS AS UNDER: 133A POWER OF SURVEY--(1) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, AN, I T AUTHORITY MAY ENTER : ITA NO.3520/AHD/2015 17 (A) ANY PLACE WITHIN THE LIMITS OF THE AREA ASSIGNE D TO HIM, OR (B) ANY PLACE OCCUPIED BY ANY PERSON IN RESPECT OF WHOM HE EXERCISES JURISDICTION, OR (C) ANY PLACE IN RESPECT OF WHICH HE IS AUTHORISED FOR THE PURPOSES OF THIS SECTION BY SUCH IT AUTHORITY, WHO IS ASSIGNED THE AREA WITHIN WHICH SUCH PLACE IS SITUAT ED OR WHO EXERCISES JURISDICTION IN RESPECT OF ANY PERSON OCC UPYING SUCH PLACE, AT WHICH A BUSINESS OR PROFESSION IS CA RRIED ON, WHETHER SUCH PLACE BE THE PRINCIPAL PLACE OR NOT OF SUCH BUSINESS OR PROFESSION, AND REQUIRE ANY PROPRIETOR, EMPLOYEE OR ANY OTHER PERSON WHO MAY AT THAT TIME AND PLACE BE ATTENDING IN ANY MANNER TO, OR HELPING IN, THE CARR YING ON OF SUCH BUSINESS OR PROFESSION-- (I) TO AFFORD HIM THE NECESSARY FACILITY TO INSPECT SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS HE MAY REQUIRE AND WHICH MAY BE AVAILABLE AT SUCH PLACE (II) TO AFFORD HIM THE NECESSARY FACILITY TO CHECK OR VERIFY THE CASH, STOCK OR OTHER VALUABLE ARTICLE OR THING WHIC H MAY BE FOUND THEREIN, AND (III) TO FURNISH SUCH INFORMATION AS HE MAY REQUIRE AS TO ANY MATTER WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT.' 11. THE PROVISION ALSO ENABLES THE IT AUTHORITY TO IMPOUND AND RETAIN IN HIS CUSTODY FOR SUCH PERIOD AS HE THI NKS OF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS INSPECTED BY HI M, PROVIDED THE AUTHORITY RECORDS HIS REASONS FOR DOIN G SO AND ALSO SHALL NOT RETAIN THE BOOKS OF ACCOUNT FOR A PE RIOD NOT EXCEEDING 15 DAYS. SECTION 133A(3)(III) ENABLES THE AUTHORITY TO RECORD THE STATEMENT OF ANY PERSON WHI CH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THE ACT. SECTION 133A HOWEVER, ENABLES THE IT AUTHORITY ONLY TO RECORD ANY STATEMENT OF ANY PERSON WHICH MAY BE USE FUL, BUT DOES NOT AUTHORIZE FOR TAKING ANY SWORN IN STAT EMENT. ON THE OTHER HAND, WE FIND THAT SUCH A POWER TO EXAMIN E A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUT HORISED OFFICER ONLY UNDER SECTION 132(4) OF THE IT ACT IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS, THE IT ACT, WHENEVE R IT THOUGHT FIT AND NECESSARY TO CONFER SUCH POWER TO E XAMINE A ITA NO.3520/AHD/2015 18 PERSON ON OATH, THE SAME HAS BEEN EXPRESSLY PROVIDE D WHEREAS SECTION 133A DOES NOT EMPOWER ANY ITO TO EXAMINE ANY PERSON ON OATH. THUS, IN CONTRA-DISTINC TION TO THE POWER UNDER SECTION 133A, SECTION 132(4) OF THE IT ACT ENABLES THE AUTHORISED OFFICER TO EXAMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE IT ACT. ON THE OTHER HAND, WHATEVER STATEMENT RECORDED UNDER SECTION 133A OF THE IT ACT IS NOT GIVEN ANY E VIDENTIARY VALUE OBVIOUSLY FOR THE REASON THAT THE OFFICER IS NOT AUTHORISED TO ADMINISTER OATH AND TO TAKE ANY SWORN IN STATEMENT WHICH ALONE HAS THE EVIDENTIARY VALUE AS CONTEMPLATED UNDER LAW. THEREFORE, THERE IS MUCH FO RCE IN THE ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLA NT THAT THE STATEMENT, ELICITED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE AND THE ITO WAS WELL AWARE OF THI S. 10. THUS, ALLEGED DISCLOSURE WAS RETRACTED BY DIREC TORS BY VIRTUE OF THE ABOVE AFFIDAVITS AND DISCLOSURE WAS A SIMPLICITOR AS INFORMATION. IN THE AFFIDAVIT THE ASSESSEE HAS LEV ELED SERIOUS ALLEGATIONS AGAINST SURVEY TEAM POINTING OUT THAT N O SUCH ENTRIES WERE FOUND AT THE TIME OF SURVEY. THEY WERE NOTED DURING THE COURSE OF SURVEY UNDER PRESSURE OF THE SURVEY TEAM. WHEN SUCH A COMPLAINT WAS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AND MORE SO WHEN THE CHIEF COMMISSIONE R WAS APPRAISED OF THIS FACT, THEN IT OUGHT TO HAVE BEEN INVESTIGATED AND TRUTH OUGHT TO HAVE BEEN DUG OUT. 11. THE SECOND SET OF CIRCUMSTANCES IS THAT NO DOUB T VATVA LAND WAS PURCHASED BY THE ASSESSEE FROM SNL MANEKLAL IND USTRIES, BUT IT WAS SUBJECT TO VARIOUS LITIGATIONS. THE ASSESSE E HAS BROUGHT TO THE NOTICE OF THE AO JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN COMPANY APPLICATION NO.1166 OF 2007. S IMILARLY, COPY OF ORDER DATED 21.10.2011 OF HONBLE BOMBAY HIG H COURT IN OFFICIAL LIQUIDATOR REPORT NO.356 OF 2010 AND COMPA NY APPLICATION NO.597 OF 2010 WERE ALSO BROUGHT TO HIS NOTICE. COPIES ITA NO.3520/AHD/2015 19 OF THESE ORDERS ARE PLACED ON PAGE NOS.115 TO 187 O F THE PAPER BOOK. THE ASSESSEE HAS BROUGHT TO THE NOTICE OF TH E LD.REVENUE AUTHORITIES OBSERVATION MADE BY THE HONBLE BOMBAY H IGH COURT AND SOME OF PARAGRAPHS ARE WORTH TO NOTE IN ORDER T O EVALUATE THAT THE LAND IN DISPUTE IS SUBJECT TO LITIGATION. THE ASSESSEE HAS MADE REFERENCE TO THE HONBLE BOMBAY HIGH COURTS OR DER IN PARA 32, 34, 35, 38 AND 43. THEY READ AS UNDER: '32 THEREFORE, A PRIVATE SALE TO BE TERMED AS BEING UNDER THE AEGIS OR CONTROL OR SUPERVISION IN TERMS OF THI S RULE, MUST SATISFY ALL THE REQUIREMENTS OF RULE 66. A PRIVATE SALE OF ATTACHED IMMOVABLE PROPERTIES IS PERMITTED ONLY IF THE REQUIREMENTS SPECIFIED BY THE RULE ARE COMPLIED WIT H AND NOT OTHERWISE. IN AN APPLICATION OF THE NATURE MADE BY THE COMPANY IN LIQUIDATION TO THE RECOVERY OFFICER SETT ING OUT WHATEVER ARRANGEMENT IT MAY HAVE ARRIVED AT WITH TH E BANK OR WITH M/S. TEX RAJ AND REFERRING TO ANY SALE TO M /S. TEX RAJ, THEREFORE, CANNOT BE TERMED AS AN APPLICATION FOR POSTPONEMENT OF SALE IN TERMS OF RULE 66. ONCE SUCH IS THE CONCLUSION, REACHED, THEN, TO MY MIND, THE PRIVATE SALE IN FAVOUR OF THE APPLICANT PURCHASER TEX RAJ CANNOT BE SAID TO BE COVERED BY RULE 66 OF SCHEDULE II WHICH IS REFER RED IN SECTION 29 OF THE RDB ACT, 1993. THEREFORE FAR FROM BEING A STATUTORY SALE, IT IS NOT EVEN A PRIVATE SALE PERMI TTED AND/OR RECOGNIZED UNDER THIS RULE SO AS TO GIVE ANY IMMUNI TY TO THE PURCHASER. TO MY MIND, IN THIS CASE, THE COMPANY IN LIQUIDATION AND THE PURCHASER HAVE CLEARLY BY-PASSE D THE COMPANY COURT AND THE OFFICIAL LIQUIDATOR AND BY A PRIVATE ARRANGEMENT DISPOSED OF AND ACQUIRED A VALUABLE IMM OVABLE PROPERTY OF THE COMPANY IN LIQUIDATION. MR. OZA, TH EREFORE, CANNOT CONTENT THAT THE SALE IN FAVOUR OF M/S. TEX RAJ IS VALID AND OUT OF THE PURVIEW OF COMPANIES ACT, 1956'. (EM PHASIS SUPPLIED) PARA NO. 34, 35 AND 38 OF THE SAID ORDER IS AS UNDE R '34] ONCE A CONCLUSION IS REACHED THAT THE SALE IN FAVOUR OF M/S. TEX RAJ IS ILLEGAL, THEN, ALL THAT R EMAINS FOR CONSIDERATION IS WHETHER THIS COURT SHOULD GRAN T THE REQUEST OF THE OFFICIAL LIQUIDATOR TO NULLIFY IT OR CONSIDER THE REQUEST MADE BY THE PURCHASER TO SAVE THE TRANSACTION'. ITA NO.3520/AHD/2015 20 '35] IN THAT CONTEXT, WHAT HAS BEEN ARGUED IS THAT THE SALE IS CONFIRMED IN MARCH AND JULY 2007 AND NONE HAVE COME FORWARD TO OBJECT TO THE SALE. THE CHAIN OF CIRCUMSTANCES WOULD INDICATE THAT THERE IS NO MALIC E AND THERE IS NO FRAUD. EVEN THE OFFICIAL LIQUIDATOR DOES NOT ALLEGE ANY SUCH THING. THERE IS NO ALLEGATION T HAT SALE IS NOT IN THE INTEREST OF THE SECURED CREDITOR S. THE ARGUMENT OF MR. OZA IS THAT ASSUMING THE SALE BY TH E COMPANY IN LIQUIDATION IS DISHONEST BUT THERE IS NO ALLEGATION THAT M/S. TEX RAJ HAD KNOWLEDGE OR WAS A PARTY TO THIS DISHONESTY OR FRAUD. WHAT THE COURT H AS BEFORE IT IS THE OFFICIAL LIQUIDATOR'S REPORT AND S OME ALLEGATIONS OF THE UNIONS BUT NOT INDIVIDUAL WORKMAN '. (EMPHASIS SUPPLIED) '38] NOW THE COMPANY UNDER LIQUIDATION HAS FILED AN AFFIDAVIT AND PARAS THEREOF HAVE BEEN REPRODUCED BY HE HEREINABOVE. THEREIN, THE DETAILS OF THE SALE IN FA VOUR OF TEX RAJ HAVE BEEN SET OUT AND THE STEPS IN PURSUANCE OF THE SAID SALE HAVE ALSO BEEN REFERRED. M/S. TEX RAJ HAS DEPOSITED RS. 10.59.43,855/- IN DR T AND IT IS STATED THAT ALL STATUTORY DUES HAVE BEEN PAID. THE CLAIMS OF ALL BANKS HAVE BEEN SETTLED. THE CLAI MS OF 1350 WORKERS HAVE BEEN SETTLED OUT OF 1600 WORKERS. THE COMPANY HAS ALSO SETTLED THE CLAIMS WITH THE WORKERS AND THE REPRESENTATIVES OF AUTHORIZED UNION S AND A REFERENCE IS MADE TO THE CONSENT TERMS WITH SAROODAY LABOUR UNION, REPRESENTING REMAINING 246 WORKERS AND THE SUMS PAID TO ALL SUCH WORKERS. THER E IS A REFERENCE IN PARA 8 OF THIS AFFIDAVIT TO THE PROV IDENT FUND DUES AND IN PARA 9 TO THE BANK DUES AND. THEREAFTER, IT IS STATED AS TO HOW THE CLAIMS OF TH E DEBENTURE HOLDERS HAVE BEEN SETTLED. A CHEQUE FOR R S. 45 LAKHS IN FAVOUR OF GIIC HAS ALSO BEEN REFERRED T O AS HAVING BEEN FORWARDED BY THE COMPANY IN LIQUIDATION . THUS, IT IS STATED THAT THE COMPANY AS SETTLED ALL ITS DUES. THEREFORE, IT IS STATED THAT 'THE COURT SHOUL D PASS APPROPRIATE ORDERS BUT NOT DECLARE THE SALE AS VOID . M/S. TEX RAJ HAS PLACED ON RECORD THE DE TAILS OF THE. PROCEEDINGS BEFORE THE DRT'. (EMPHASI S SUPPLIED) ITA NO.3520/AHD/2015 21 SOME OF THE OBSERVATION OF THE COURT IN PARA 43 (PA GE 62 & 63) IS AS UNDER: 32. THE EMPHASIS OF ARGUMENTS OF ALL PARTIES OPPOSI NG M/S.TEX RAJ WAS THAT THIS IS NOT A STATUTORY SALE O R A SALE IN TERMS OF RULE 66. I HAVE ALREADY DEALT WITH THAT ASPECT OF THE MATTER. ALL THAT IS THEN ARGUED IS TH AT 353 WORKMEN HAVE NOT ACCEPTED ANY PAYMENT, THEY ARE NOT PARTY TO ANY SETTLEMENT AND TODAY THERE IS COLLUSIO N BETWEEN THE COMPANY IN LIQUIDATION AND AUCTION PURCHASERS. THERE IS ALSO DOUBT RAISED ABOUT THE SETTLEMENT DATED 12TH APRIL 2007. SOME ARGUMENT IS RAISED ABOUT THE STAMP PAPER BEING NOT GENUINE. TO MY MIND, SOME SWEEPING ALLEGATIONS WITHOUT NECESSARY PROOF EITHER TO SHOW THAT THERE WAS A UNDER VALUATI ON OR THAT THE PROPERTY WAS SOLD AT THROW AWAY PRICE O R THAT THE WORKERS AND CREDITORS WERE DE- FRAUDED, CANNOT BE ACCEPTED. NEITHER THE SECURED CREDITORS V IZ., THE BANKS AND FINANCIAL INSTITUTIONS, SAVE AND EXCE PT GIIC ARE BEFORE THE COURT NOR THE OFFICIAL LIQUIDAT OR IS REFERRING TO ANY PARTICULARS AND PRODUCING ANY PROO F TO SHOW THAT FRAUD HAS BEEN PERPETRATED BY THE OFFICER S/ DIRECTORS OF COMPANY IN LIQUIDATION ACTING IN COLLU SION WITH M/S.TEX RAJ. 12. WE HAVE GONE THROUGH COMPLETE ORDER AVAILABLE O N THE PAPER BOOK AND FOUND THAT AT THE TIME OF SURVEY, LITIGATI ON WAS PENDING BEFORE THE HONBLE BOMBAY HIGH COURT IN COMPANY PETI TION BETWEEN VENDORS OF THE ASSESSEE VIS--VIS OTHER FIN ANCIAL INSTITUTIONS. RIGHTS IN THE LAND HAVE NOT BEEN CRY TSTALLIED IN FAVOUR OF THE ASSESSEE BEFORE THE HONBLE BOMBAY HIGH COURT . DECISION WAS PRONOUNCED ON 21.10.2011 WHEREAS SURVEY WAS CON DUCTED ON 23.11.2010. SIMILARLY, THE ASSESSEE HAS BROUGHT TO THE NOTICE OF THE AO THAT CIVIL COURT IN AHMEDABAD HAS ALSO GRANT ED STATUS QUO WITH RESPECT TO THE LAND ON AN APPLICATION FILED BY THE GIIC. IT HAS ITA NO.3520/AHD/2015 22 BROUGHT TO THE NOTICE OF THE AO ORDER OF THE CIVIL COURT DATED 6.9.2011 WHOSE COPY IS AVAILABLE ON PAGE NOS.188 TO 190 OF THE PAPER BOOK. THUS, THE ASSESSEE WAS NOT HAVING ABSO LUTE ALIENABLE RIGHTS IN THE LAND AT THE TIME OF SURVEY. 13. WE ALSO FIND THAT NAME OF ANY PURCHASER WAS NOT MENTIONED IN THE DIARY. IT IS HIGHLY IMPROBABLE THAT A SUM O F RS.14.85 CRORES WOULD BE GIVEN BY AN UNKNOWN PERSON TO THE ASSESSEE IN CASH FOR PURCHASE OF A LAND WITHOUT EXECUTING ANY DOCUMENTS. IT IS ALSO IMPROBABLE THAT ONLY CASH COMPONENTS WOULD BE GIVEN BY THE PROSPECTIVE BUYER OF THE LAND. NORMAL PRACTICE IS THAT WHEN AGREEMENT WOULD BE ENTERED INTO BETWEEN THE PARTIES , PART PAYMENT WOULD BE MADE THROUGH ACCOUNT PAYEE CHEQUE, AND OVER AND ABOVE THAT PART PAYMENT, SOMETHING MAY BE PAID IN CASH. ALL SUCH FACTORS ARE TOTALLY MISSING. INVESTIGATION WI NG OF THE DEPARTMENT COULD NOT LAY ITS HAND ON THE DETAILS OF ALLEGED PROSPECTIVE BUYERS WHO HAVE PAID THIS HUGE MONEY IN CASH. AS FAR AS CONTENTION OF THE AO IS THAT CERTAIN ENTRIES AVAILABLE IN THE DIARY SHOULD BE CROSS-VERIFIED WITH THE BANK DETAIL S OF THE ASSESSEE IS CONCERNED, ALL THESE ENTRIES ARE RELEVA NT TO THE PAYMENT MADE BY THE ASSESSEE, AND IF PAYMENTS ARE B EING MADE THROUGH ACCOUNT PAYEE CHEQUE, THEN THEY COULD BE RO UTED THROUGH REGULAR BOOKS, BECAUSE, THEY ARE EASILY VERIFIABLE THEN, WHY DIRECTORS WOULD NOT ENTER SUCH PAYMENT MADE THROUGH ACCOUNT PAYEE CHEQUE ON LOOSE PAPER. THIS CASE STRENGTHEN THE STAND OF THE ASSESSEE THAT IN ORDER TO PROJECT GENUINENESS O F THE DIARIES CERTAIN ENTRIES WHICH WERE MADE THROUGH ACCOUNT PAY EE CHEQUES WERE PICKED UP AND PUT IN THE DIARY. IT IS PERTINE NT TO OBSERVE THAT WHEN EXPLANATION OR A DEFENCE OF AN ASSESSEE B ASED ON NUMBER OF FACTS SUPPORTED BY EVIDENCE AND CIRCUMSTA NCES ITA NO.3520/AHD/2015 23 REQUIRED CONSIDERATION WHETHER EXPLANATION IS SOUND OR NOT MUST BE DETERMINED NOT BY CONSIDERING THE WEIGHT TO BE A TTACHED TO EACH SINGLE FACT IN ISOLATION BUT BY ASSESSING THE CUMULATIVE EFFECT OF ALL THE FACTS IN THEIR SETTING AS A WHOLE. IF W E MAKE AN ANALYSIS OF ALL THE FACTS IN THEIR SETTING AS A WHOLE, THEN IT WOULD REVEAL THAT REVENUE FAILED TO BRING CORROBORATIVE EVIDENCE ON R ECORD FOR DEMONSTRATING THE ALLEGED RECEIPT OF ON-MONEY BY TH E ASSESSEE. THE ASSESSEE WAS NOT HAVING ABSOLUTE ALIENABLE RIGH T IN THE LAND AT THE TIME OF SURVEY. IT WAS SUBJECT TO VARIOUS L ITIGATIONS, AND NO PRUDENT BUSINESSMAN WOULD PUT SUCH SUBSTANTIAL MONE Y AT A STAKE ON A PIECE OF LAND WHOSE TITLE IS IN DISPUTE. 14. WE FIND THAT THE LD.FIRST APPELLATE AUTHORITY, WHILE CONSIDERING THIS CONTENTION OF THE ASSESSEE HAS OBS ERVED THAT THE ASSESSEE ITSELF PURCHASED THE SAME LAND FROM SLM MA NEKLAL INDUSTRIES LTD. FOR A CONSIDERATION OF RS.19.22 COR ES, EVEN THOUGH SEVERAL CASES BEFORE VARIOUS AUTHORITIES WERE PENDI NG. IT IS PERTINENT TO OBSERVE THAT THE LD.CIT(A) HAS LOST SI GHT OF ABOUT THE VARIOUS NEGOTIATIONS UNDERTAKEN BY THE ASSESSEE WIT H THE FINANCIAL INSTITUTIONS AND PAYMENT MADE TO THESE INSTITUTIONS THROUGH DEBTS RECOVERY TRIBUNAL. IT WAS A DIRECT DEAL WITH SLM M ANEKLAL INDUSTRIES. THE REVENUE FAILED TO IDENTIFY PURCHAS ER WITH THE ASSESSEE. IT IS JUST ASSUMING THAT SOME CASH COMPO NENT MUST HAVE BEEN RECEIVED BY THE ASSESSEE. SIMILARLY, WHI LE REFERRING TO THE STATEMENT RECORDED UNDER SECTION 133A, THE LD.C IT(A) HAS OBSERVED THAT CORROBORATIVE EVIDENCE IN THE SHAPE O F DIARY WAS FOUND, AND THEREFORE, THIS STATEMENT EVEN IF CONSID ERED AS INFORMATION IS SUFFICIENT TO HOLD THAT THE ASSESS EE HAS RECEIVED ON-MONEY. WE HAVE PERUSED DISCUSSION MADE BY THE L D.CIT(A), BUT IT IS PERTINENT TO OBSERVE THAT THE LD.CIT(A) H AS FAILED TO ITA NO.3520/AHD/2015 24 APPRECIATE EVIDENTIARY VALUE OF THE ALLEGED DIARY, MORE SO WHEN THE ASSESSEE HAS LEVELED SERIOUS ALLEGATION AGAINST SURVEY TEAM ITSELF. IF WE APPRECIATE CHAIN OF CIRCUMSTANCES AB OUT EXISTENCE OF DIARY, THEN SUCH CIRCUMSTANCES CONSIDERED BY THE AO ARE NOT WORTHY OF CREDENCE. TAKING INTO CONSIDERATION FACT S OF THE CASE ON RECORD, WE ARE OF THE VIEW THAT REVENUE FAILED TO C OLLECT SUFFICIENT EVIDENCE FOR HOLDING THAT THE ASSESSEE HAS RECEIVED MONEY FOR SALE OF ALLEGED LAND. THEREFORE, WE ALLOW THE APPE AL OF THE ASSESSEE AND DELETE ADDITION OF RS.14.85 CRORES (RU PEES FOURTEEN CRORES EIGHT FIVE LAKHS). 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 16 TH NOVEMBER, 2017. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER