ITO, New Delhi V. Shri S. Kumar, New Delhi

ITA 3721/DEL/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3772 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K P GANGULI
• Keywords: Income from undisclosed sources; Source of fund; Question of law; Corroborative evidences; Valuation report
• Section: 133A; 131

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH C, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3315/DEL./2013 ASSESSMENT YEAR: 2009-10 INCOME - TAX OFFICER, WARD 26(2), NEW DELHI. (APPELLANT) VS. SH. GURDEEP SINGH KOHLI, DE-86, TAGORE GARDEN, NEW DELHI PAN AAIPK3154B (RESPONDENT) ITA NO. 3316/DEL./2013 ASSESSMENT YEAR: 2009-10 INCOME - TAX OFFICER, WARD 26(2), NEW DELHI. (APPELLANT) VS. MRS. KULDEEP KAUR KOHLI, DE-86, TAGORE GARDEN, NEW DELHI PAN AAIPK3116B (RESPONDENT) ITA NO. 3721/DEL./2013 ASSESSMENT YEAR: 2009-10 INCOME - TAX OFFICER, WARD 26(1), NEW DELHI. (APPELLANT) VS. SH. S. KUMAR, PROP. S. KUMAR & CO. B-10/2, RING ROAD, RAJOURI GARDEN, NEW DELHI PAN AANPK2447G (RESPONDENT) REVENUE BY SH. ARUN KUMAR YADAV, SR. DR ASSESSEE S BY SH. K.P. GANGULI, ADVOCATE DATE OF HEARING 09.11.2017 DATE OF PRONOUNCEMENT 05 .02.2018 ITA NO. 3315, 3316 & 3721/DEL./2013 2 ORDER PER L.P. SAHU, A.M.: THESE APPEALS BY THE REVENUE IN THE CASES OF DIFFE RENT ASSESSEES ARE DIRECTED AGAINST SEPARATE ORDERS OF THE LD. CIT(A)- XXIV, NEW DELHI DATED 31.03.2013 FOR THE ASSESSMENT YEARS 2009-10 ON THE GROUND THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.67, 42,850/-, RS.67,42,850/- AND RS.41,52,041/- RESPECTIVELY IN APPEALS OF THE A BOVE THREE ASSESSEES EVEN WHEN THEY WERE GETTING ASSURED RETURN OF 12% OF RS. 95,67,850/-, RS.95,67,850/- AND RS.65,02,041/- RESPECTIVELY. 2. SINCE THE COMMON QUESTION OF LAW AND FACT IS INV OLVED IN ALL THESE APPEALS, THE SAME WERE HEARD TOGETHER AND WE ARE, T HEREFORE, DISPOSING OF THE SAME BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CON VENIENCE AND BREVITY. WE FIRST TAKE UP THE APPEAL OF GURDEEP SINGH KOHLI, TH E DECISION ON WHICH SHALL EQUALLY APPLY TO THE OTHER TWO APPEALS. 3. THE BRIEF FACTS OF THIS CASE ARE THAT THE ASSESS EE FILED ITS RETURN OF INCOME ON 01.07.2009 DECLARING TOTAL INCOME AT RS.1,23,010 /-, WHICH WAS PROCESSED U/S. 143(1) OF THE IT ACT. ON THE BASIS OF INFORMAT ION RECEIVED FROM ADIT(INV.) NEW DELHI , THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED TO THE ASSESSEE. ITA NO. 3315, 3316 & 3721/DEL./2013 3 4. THE ASSESSING OFFICER RECEIVED INFORMATION FROM ADIT(INV.) THAT DURING A SURVEY OPERATION CARRIED OUT BY INVESTIGATION WIN G OF INCOME-TAX U/S. 133A AT THE PREMISES OF M/S. AMR INFRASTRUCTURE LTD. AND M/S. ARN INFRASTRUCTURE INDIA PVT. LTD., CERTAIN DOCUMENTS WERE IMPOUNDED F ROM THE PREMISES OF ARN INFRASTRUCTURE INDIA PVT. LTD., ACCORDING TO WHICH IT WAS FOUND THAT COMMERCIAL SPACE BEARING NO. OF-10, MEASURING 1364 SQ. FT. OF- 2, MEASURING 1099.70 FT. AND OF-09 MEASURING 1363.72 SQ. FT. ON 1 ST FLOOR, TOWER A OF COMPLEX THE GLOBUS, GRATER NODIA, FOR WHICH THE ASSESSEE JOINT LY WITH HIS WIFE MRS. KULDEEP KOHLI, HAS PAID AN AMOUNT OF RS.56,50,000/- AS TOTAL CONSIDERATION WHEREAS THE BOOKING DETAILS AND OTHER DOCUMENTS IMP OUNDED DURING THE SURVEY SHOW THAT THE DEAL WAS ACTUALLY EXECUTED FOR A TOTAL CONSIDERATION OF RS.1,91,35,700/-. FROM THE DOCUMENTS, IT ALSO REVEA LED THAT THE PAYMENT OF RS.56,50,000/- WAS SHOWN TO HAVE BEEN MADE THROUGH CHEQUES AND A SPECIAL DISCOUNT OF RS.1,34,85,700/- WAS CLAIMED TO HAVE R ECEIVED SPECIAL DISCOUNT FROM THE DEVELOPERS AND ALSO ASSURED OF RETURN @ 12 % P.A. ON TOTAL CONSIDERATION OF RS.1,91,35,700/- W.E.F, JANUARY 20 10 WAS ALSO RECEIVED BY THE ASSESSEE. GIVEN THE ABOVE FACTS, THE ASSESSING OFFI CER INFERRED THAT AMOUNT OF RS.1,34,85,700/- WHICH WAS CLAIMED BY THE ASSESSEE AS SPECIAL DISCOUNT WAS NOTHING BUT CASH PAYMENT MADE BY THE ASSESSEE ALONG WITH HIS WIFE, MRS. ITA NO. 3315, 3316 & 3721/DEL./2013 4 KULDIP KAUR TO M/S AMR INFRASTRUCTURE/ARN INFRASTRU CTURE INDIA (P) LTD. IT WAS FURTHER OBSERVED BY THE AO THAT OVER AND ABOVE CASH PAYMENT MADE BY THE ASSESSEE ALONG WITH HIS WIFE ALSO STOOD STRENGT HENED FROM THE FACT THAT, 'ASSURED RETURN'@ 12% P.A. ON THE TOTAL CONSIDERATI ON OF RS.1,91,35,700/- WHICH WAS MENTIONED AS 'COMMITMENT CHARGES' WAS PAI D TO THE ASSESSEE FOR AN AMOUNT OF RS.68,200/-, RS. 68,200/- AND RS.54,98 5/- IN RESPECT OF THREE UNITS OF PROPERTIES MENTIONED ABOVE FOR ONE MONTH. THE TOTAL OF THESE AMOUNTS COMES TO RS.1,91,385/-, WHICH IS ABOUT 1% O F THE TOTAL CONSIDERATION OF RS. 1,91,35,700/- WHICH CLEARLY SHOWS THAT, ASSE SSEE MADE CASH PAYMENT OF RS.1,34,85,700/- ALONG WITH HIS WIFE SMT. KULDEEP K AUR, APART FROM PAYMENT MADE THROUGH CHEQUE OF RS.56,50,000/-. BASED UPON T HE ABOVE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IT WAS HELD BY THE AO TH AT THE ALLEGED SPECIAL DISCOUNT OF RS. 1,34,85,700/- ALONG WITH HIS WIFE C ANNOT BE RELIED UPON AS IT IS AGAINST THE PREVAILING POLICY OF GIVING DISCOUNT ON LY WITHIN THE RANGE OF 10- 15%, WHEREAS, ASSESSEE IS CLAIMING DISCOUNT @ 70.47 % OF THE TOTAL CONSIDERATION OF RS. 1,91,35,700/-. THEREFORE, KEEP ING INTO CONSIDERATION THE FACTS AND DOCUMENTS FOUND AT THE TIME OF SURVEY PRO CEEDINGS AT THE BUSINESS PREMISES OF THE BUILDERS, IT WAS HELD BY THE AO THA T AMOUNT OF RS.1,34,85,700/- WAS NOTHING BUT CASH PAYMENT MADE BY THE ASSESSEE ALONG WITH HIS WIFE TO M/S ARN INFRASTRUCTURE INDIA (P) L TD. FOR PURCHASE OF 3 SPACES ITA NO. 3315, 3316 & 3721/DEL./2013 5 MENTIONED ABOVE, WHICH WAS MADE BY THE ASSESSEE OUT OF HIS UNDISCLOSED SOURCES OF INCOME. THEREFORE, HE MADE ADDITION OF R S.67,42,850/- EACH IN THE HANDS OF THE ASSESSEE AND HIS WIFE. 5. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE MATERIAL ON RECORD AND DETAIL ED SUBMISSIONS OF THE ASSESSEE, DELETED THE ADDITION VIDE IMPUGNED ORDER. THE REASONS GIVEN FOR DELETION OF ADDITION BY THE LD. CIT(A) ARE SUMMARIZ ED AS UNDER : (I). THAT THE LD. CIT(A) IN APPEAL OF THE BUILDER/ DEVELOPER BEARING NO. 210/11-12 HAS OBSERVED THAT IMPOUNDED BOOKING SLIPS NOWHERE RECORD ANY AMOUNT RECEIVED OVER AND ABOVE THE ONE SHOWN IN THE MOU AND THAT STATEMENT OF DIRECTOR, SHRI NITIN REKHAN SURRENDERI NG RS.10.00 CRORES ON THIS ACCOUNT STOOD RETRACTED BEING NOT CORROBORATED BY A NY EVIDENCE FOUND DURING THE SURVEY AND THAT THERE WAS NO ADMISSION OF ANY C ASH RECEIPT EITHER BY THE DIRECTOR OR BY COMMISSION AGENT; (II). THAT THE ASSESSEE IN HIS STATEMENTS RECORDED IN PURSUANCE TO SUMMONS U/S. 131 ADMITTED THE PAYMENT OF ONLY RS.56.50 LACS JOINTLY WITH HIS WIFE TO THE BUILDER; (III). THAT THE FACT OF CASH PAYMENT AND CASH RECEI PT WAS NEITHER CONFIRMED BY THE APPELLANT, NOR BY THE COMPANY. MOREOVER, NO COR ROBORATIVE EVIDENCE OF THE SAME WAS BROUGHT ON RECORD BY THE AO. THE ADDIT ION OF RS.1,34,85,700/- IN THE HANDS OF THE APPELLANT SH.GURDEEP SINGH KOHL I AND HIS WIFE SMT.KULDEEP ITA NO. 3315, 3316 & 3721/DEL./2013 6 KAUR KOHLI ON A 50:50 BASIS WAS MADE ON THE BASIS O F THE ASSUMPTION THAT NOBODY GIVES A DISCOUNT OF 70% AND THAT THE SPECIAL DISCOUNT WAS NOTHING BUT CASH PAID BY THE APPELLANT TO THE COMPANY, OVER AND ABOVE THE CHEQUE PAYMENT. (IV). THE AO HAS BASED THE ADDITION ON THE GROUNDS OF THE SURVEY REPORT AND THE SURRENDER STATEMENT OF THE DIRECTOR OF THE DEVE LOPER COMPANY. THE LD. CIT(A) RELIED ON THE FOLLOWING DECISIONS FO R THE PROPOSITION THAT THE STATEMENTS RECORDED ON SURVEY HAVE NO EVIDENTIARY V ALUE AND THAT THE ADDITION MADE ON THE BASIS OF PRESUMPTION IS NOT SU STAINABLE: (I). CIT VS. S.KHADER KHAN SON (2008) 300 ITR 157 ( MAD.) (II). PAUL MATHEWS & SONS VS. CIT (2001) 263 ITR 10 1. (III). CIT VS. DHINGRA METAL WORKS 328 ITR 384 (DEL HI) (IV). RAJESH JAIN (10 TTJ 929) (V). CIT VS. SADHNA GUPTA IN ITA NO. 434/2012, DELI VERED ON 6 TH MARCH,2013. (DELHI HIGH COURT. (VI). CIT VS. SMT. SURAJ DEVI (2010) 328 ITR 604 (D ELHI), (VII). CIT VS. SMT. SHAKUNTLA DEVI (2009) 316 ITR 4 6 (DELHI). ON THE STRENGTH OF SOME OF THE ABOVE DECISIONS, THE LD. CIT(A) ALSO OBSERVED AS UNDER: ALTHOUGH THESE CASES PERTAIN TO ADDITIONS MADE BY THE AO ON THE BASIS OF VALUATION REPORT GIVEN BY THE DVO, THE HON'BLE COUR TS HAVE PROPOUNDED THE LAW THAT 'UNTIL THERE IS SOME OTHER EVIDENCE TO INDICAT E THAT EXTRA CONSIDERATION HAD FLOWED IN THE TRANSACTION OF PROPERTY, MERELY THE R EPORT OF THE DVO CANNOT FORM THE BASIS OF ANY ADDITION ON THE PART OF THE REVENU E.' THE BASIC IDEA IS THAT ADDITIONS CANNOT BE BASED ON ASSUMPTIONS AND SUPPOS ITIONS. THEY HAVE TO BE SUPPORTED BY OTHER CORROBORATIVE EVIDENCES, IN THE ABSENCE OF WHICH THE ADDITIONS MADE CANNOT BE SUSTAINED. IN VIEW OF THE ABOVE, THE ADDITION MADE BY THE AO IN THE INSTANT CASE IS HEREBY DELETED. ITA NO. 3315, 3316 & 3721/DEL./2013 7 6. THE LD. DR, RELYING ON THE ASSESSMENT ORDER, SUB MITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION W ITHOUT CONSIDERING THE AUTHENTICITY OF THE DISCOUNT ALLEGED TO HAVE BEEN R ECEIVED BY THE ASSESSEE WHICH REPRESENTS TO ABOUT 70% OF THE RATES OF PROPE RTIES DEALT WITH BY THE BUILDER AND THE ASSESSEE. IT WAS SUBMITTED THAT THE TOTAL DEAL OF THE THREE SPACES, MENTIONED ABOVE, WAS MADE FOR RS. 1,91,35,7 00/-, STOOD CORROBORATED BY THE BOOKINGS FORMS DULY MENTIONING THE NAMES, AD DRESS OF THE ASSESSEE, IMPOUNDED DURING THE COURSE OF SEARCH. IT WAS ALSO SUBMITTED THAT THE CASH PAYMENT OF RS.1,34,85,700/- ALSO STOOD CORROBORATED BY UNCONTROVERTED FACT THAT THE ASSESSEE HAD ADMITTED TO HAVE RECEIVED THE ASSURED RETURN @ 12% PER ANNUM ON THE TOTAL VALUE OF PROPERTY OF RS.1,91 ,35,700/- AS ALSO CLEARLY MENTIONED IN EACH OF THE BOOKING SLIPS RELATING TO PROPERTIES JOINTLY PURCHASED BY ASSESSEE & HIS WIFE UNDER THE NARRATION RETURN ON RS.68,18,600/- @ 12% RS.68200 P.M. W.E.F. JANURARY, 2010 (PB-11). IN VIEW OF THESE HARD FACTS, THE LD. ASSESSING OFFICER HAD RIGHTLY CONCLUDED THAT THE AS SESSEE HAD MADE CASH PAYMENT OF RS.1,34,85,700/- IN THE GARB OF ALLEGED DISCOUNT OUT OF HIS BOOKS OF ACCOUNTS AND RIGHTLY TREATED IT AS UNDISCLOSED INC OME OF THE ASSESSEE AND HIS WIFE, AS NO PLAUSIBLE EXPLANATION WAS GIVEN TO JUST IFY SUCH A DISCOUNT. ITA NO. 3315, 3316 & 3721/DEL./2013 8 7. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE RE ITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND RELIED ON THE OBSERV ATIONS OF THE LD. CIT(A). IT WAS FURTHER SUBMITTED THAT SINCE THE STATEMENTS GIV EN BY THE DIRECTOR OF BUILDER, SHRI NITIN REKHAN, SURRENDERING A SUM OF R S.10 CRORES ON THIS COUNT, STOOD RETRACTED AND THE LD. CIT(A) HAD DELETED THE ADDITION ON THE SAME ISSUE IN THEIR APPEAL, THERE REMAINS NO JUSTIFICATION TO INTERFERE WITH THE IMPUGNED ORDER IN THE CASE OF PRESENT ASSESSEE. HE HAS PLACE D RELIANCE ON THE DECISIONS RELIED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF ENTIRE MATERIAL AVAILABLE ON RECORD AND HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE LD. CIT(A) HAS MAINLY BASED HIS CONCLUSIONS ON THE FINDINGS REACHED BY TH E LD. CIT(A)-V, NEW DELHI IN APPEAL OF THE BUILDER, WHEREBY THE ADDITION MADE IN THAT CASE STOOD DELETED, AS NOTED ABOVE. NONE OF THE PARTIES BEFORE US POINT ED OUT TO THE BENCH AS TO ANY FURTHER APPEAL AGAINST SAID ORDER BEFORE THE HI GHER AUTHORITIES. THE CRUCIAL QUESTION IN THE INSTANT CASE WHICH WAS TO B E DECIDED BY THE LD. CIT(A) WAS WHETHER THE VOLUME OF DISCOUNT ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE REPRESENTING TO ABOUT 70% OF THE TOTAL VAL UE WAS JUSTIFIED OR NOT. IN THE FACTS OF THE PRESENT CASE, INCREDIBILITY OF SUC H A DISCOUNT LED THE ASSESSING ITA NO. 3315, 3316 & 3721/DEL./2013 9 OFFICER TO DRAW AN INFERENCE THAT THE ASSESSEE HAD MADE CASH PAYMENT TO THE BUILDER IN THE GARB OF IMPUGNED DISCOUNT OUT OF ITS BOOKS OF ACCOUNT. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT (I) S EVERAL BOOKING SLIPS(FORMS) ALONG WITH THE COPY OF MOUS WERE IMPOUNDED ON SURVE Y; (II) THAT THE BOOKING SLIPS(FORMS) INDICATED THE DETAILS OF NAME OF THE P ERSONS IN WHOSE FAVOUR THE PROPERTIES WERE BOOKED, AREA OF PROPERTY, RATE PER SQ. FT., TOTAL AMOUNT AND ALSO CONTAINED THE PAYMENT DETAILS, BALANCE AMOUNT AND THE DISCOUNTS GIVEN; (III) THAT THE IMPOUNDED BOOKING FORMS HAD ALSO A S PECIFIC MENTION OF ASSURED INTEREST @ 12% PAID ON THE TOTAL AMOUNT OF PROPERTY , I.E., 1,91,35,700/-; (IV) THAT THE TOTAL AMOUNT WHICH IS MENTIONED IN THE BOO KING FORMS. I.E., RS.1,91,35,700/- IS SUBSTANTIALLY HIGHER THAN THE A MOUNT OF RS.56,50,000/- MENTIONED IN THE RESPECTIVE MOUS ; (V) THAT THE REC EIPT OF ASSURED INTEREST @ 12% ON THE TOTAL AMOUNT OF PROPERTY, I.E., RS.1,91, 35,700/- STOOD ADMITTED BY THE ASSESSEE, AS ALSO REFLECTED FROM HIS BANK STATE MENTS, WHEREAS THE MOU WAS SIGNED BY THE ASSESSEE AT A COMPARATIVELY LOWER PRICE; AND THAT (VI) THERE IS NO EXPLANATION EITHER ON BEHALF OF THE BUILDER O R THE ASSESSEE AS TO HOW THE ASSESSEE WAS RECEIVING INTEREST @ 12% ON THE TOTAL AMOUNT OF RS.1,91,35,700/- MENTIONED IN THE IMPOUNDED BOOKING FORMS(SLIPS) WHEREAS THE MOU WAS SIGNED AT A VERY LOWER VALUE OF PROPERT Y AT RS.56,50,000/-. IT IS A THING OF COMMON PARLANCE THAT ANY INTEREST OR ASSUR ED RETURN IS USUALLY PAID ITA NO. 3315, 3316 & 3721/DEL./2013 10 ON THE TOTAL AMOUNT RECEIVED. IN THE INSTANT CASE T HE ASSESSEE HAS BEEN PAID INTEREST @ 12% ON THE TOTAL AMOUNT OF RS.1,91,35,70 0/-, WHICH IN ITSELF STANDS IN TESTIMONY OF THE FACT THAT THE TOTAL AMOUNT MENT IONED IN THE BOOKING SLIPS WAS THE FINAL AMOUNT PAID BY THE ASSESSEE AND THE R ECEIPT OF SUCH ASSURED INTEREST STOOD ADMITTED BY HIM. THE ASSESSEE IN THE INSTANT CASE HAS ADMITTED TO HAVE PAID RS.56,50,000/- AS SALE CONSIDERATION B Y WAY OF CHEQUE AND THEREFORE, THE REMAINING AMOUNT OF RS.1,34,85,700/- WAS TREATED AS PAYMENT BY ASSESSEE IN CASH OUT OF ITS BOOKS OF ACCOUNT. IT IS WORTHWHILE TO NOTE THAT NEITHER THE ASSESSEE NOR THE DEVELOPER COMPANY HAD GIVEN ANY PLAUSIBLE EXPLANATION TO JUSTIFY SUCH AN ENORMOUS DISCOUNT GI VEN BY THE BUILDER TO THE ASSESSEE. THE LD. CIT(A) HAS GIVEN RELIEF TO THE AS SESSEE STATING THAT THE ASSESSING OFFICER HAS ACTED MERELY ON ASSUMPTION OF CASH PAYMENT, AS THERE IS NO DIRECT EVIDENCE EITHER FOUND OR IMPOUNDED ON SUR VEY TO JUSTIFY ANY CASH PAYMENT. WE FIND THAT THE ASSESSING OFFICER IN THE INSTANT CASE HAS DRAWN AN INFERENCE REGARDING CASH PAYMENT OUT OF BOOKS ON TH E BASIS OF THE MATERIAL IMPOUNDED ON SURVEY AND ATTENDING CIRCUMSTANCES ON THE RECORD. IN THE UNDISPUTED FACTS LEADING TO THE PRESENT CASE AS NAR RATED ABOVE, THE CONCLUSION REACHED BY THE ASSESSING OFFICER CANNOT BE SAID TO BE BASED ON MERE SUSPICION, GOSSIP OR RUMOUR. IN OUR CONSIDERED OPIN ION, THE ASSESSING OFFICER COULD ACT ON DIRECT OR CIRCUMSTANTIAL EVIDENCE. IN SUCH TRANSACTIONS, IN OUR ITA NO. 3315, 3316 & 3721/DEL./2013 11 CONSIDERED OPINION, AVAILABILITY OF DIRECT EVIDENCE WOULD BE RARE. HOWEVER, IN THE PRESENT CASE, THE ASSESSING OFFICER HAS NOT INF ERRED THE CASH PAYMENT OUT OF BOOKS IN ISOLATION, BUT HAS REACHED ITS CONCLUSI ON ON THE BASIS OF STRONG CIRCUMSTANTIAL EVIDENCES FOUND DURING THE SURVEY AN D ENQUIRIES MADE BY INVESTIGATION WING. HONBLE APEX COURT IN THE CASE OF SUMATI DAYAL VS. COMMISSIONER OF INCOME TAX 214 ITR 801 (SC) HAS LAI D DOWN THAT MATTER HAS TO BE CONSIDERED IN THE LIGHT OF HUMAN PROBABILITIE S. THE HONBLE COURT ALSO IN THE CASE OF DURGA PRASAD MORE, 82 ITR 540 (SC) HAS HELD THAT SCIENCE HAS NOT YET INVENTED ANY INSTRUMENT TO TEST THE RELIABILITY OF THE EVIDENCE PLACED BEFORE A COURT OR TRIBUNAL. THEREFORE, THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES. IN THE PRESENT CASE, THE AMOUNT OF PROPERTY MENTIONED IN R ESPECTIVE MOU HAVE BEEN CONSIDERED WITH REFERENCE TO RECEIPT OF ASSURED INT EREST @ 12% ON THE TOTAL VALUE, AS MENTIONED IN THE IMPOUNDED BOOKING FORMS, WHICH ITSELF ALLUDES THAT THE ASSESSEE HAD MADE PAYMENT OF TOTAL AMOUNT EITHE R BY CHEQUE AND/OR CASH. SINCE, THE AMOUNT PAID BY CHEQUES WAS FOUND REFLECT ED IN THE BOOKS, THEREFORE, THE ASSESSING OFFICER TREATED THE AMOUNT NOT REFLEC TED IN BOOKS, AS PAYMENT IN CASH MADE OUT OF ITS UNDISCLOSED INCOME. THE LD. CI T(A) HAS NOT PROPERLY CONSIDERED THE FACT THAT THE ASSESSING OFFICER HAS TAKEN INTO ACCOUNT THE SURROUNDING CIRCUMSTANCES, COMMON KNOWLEDGE, ADMISS ION OF ASSESSEE ITA NO. 3315, 3316 & 3721/DEL./2013 12 REGARDING RECEIPT OF ASSURED INTEREST ON TOTAL VALU E OF PROPERTY AND SO ON AND HAD REACHED THE FINDING OF CASH PAYMENT ON THE BASI S OF APPRECIATION OF PECULIAR CIRCUMSTANCES TO DETECT THE UNDISCLOSED IN COME. IN OUR OPINION, THE OBVIOUS FACTS NEED NOT TO BE PROVED BY DIRECT EVIDE NCES, AS REQUIRED BY THE LD. CIT(A). 9. ONE MORE CRUCIAL FACT, WHICH WE FOUND FROM THE R ECORD IS THAT IN THE CASE OF THE RESPONDENT, SHRI S.KUMAR, THE TOTAL VALUE OF PROPERTY ALLOTTED TO HIM WAS RS.65,00,000/- AS MENTIONED IN THE IMPOUNDED BO OKING FORM(SLIP) AND PAYMENT BY CHEQUE HAS BEEN SHOWN OF ONLY RS.17,50,0 00/-, WHICH HAS BEEN STATED BY THE ASSESSEE TO BE SALE CONSIDERATION OF PROPERTY. HOWEVER, ALIKE ASSURED INTEREST PAYMENT @ 12% ON TOTAL VALUE OF PR OPERTY MENTIONED IN BOOKING FORM, THE MOU OF ENTERED WITH S. KUMAR (P B-3) ALSO CONTAINS THE FOLLOWING CLAUSE : THAT IN CASE THE WHOLE PROJECT IS ABANDONED MID WAY FOR ANY REASON, AND THE DEVELOPER IS FORCED TO CLOSE THE WHOLE PROJECT AND NOT TO ABLE TO GIVE THE DELIVERY OF UNIT TO THE ALLOTTEE THEN THE DEVEL OPER WILL RETURN TO ALLOTTEE AMOUNT OF RS.65,00,000/- AFTER DEDUCTING T HE ADMINISTRATIVE CHARGES IF ANY. FROM THE ABOVE CLAUSE, IT IS ABUNDANTLY CLEAR THAT THE RESPONDENT S. KUMAR HAD ALREADY PAID THE TOTAL AMOUNT OF RS.65,00,000/- BY WAY OF CHEQUES OR ITA NO. 3315, 3316 & 3721/DEL./2013 13 CASH, AND RETURN OF THIS TOTAL AMOUNT WAS UNDERTAKE N BY THE DEVELOPER ON FORCED CLOSURE OF PROJECT AS NOTED ABOVE. SUCH CLAU SE IS, HOWEVER, FOUND OMITTED IN THE MOUS OF THE RESPONDENTS, GURDEEP SIN GH KOHALI AND KULDEEP KAUR KOHLI. IN THE CASE OF S. KUMAR, WE ALSO FIND T HAT IN THE PHOTOCOPY OF BOOKING FORM(SLIP) (PB-9), THE TOTAL AMOUNT AND BAL ANCE AMOUNT HAS BEEN SHOWN AS RS.65,02,041/-, BUT THIS PHOTOCOPY CONTAIN S ONE MORE REMARK IN HANDWRITING THAT THE M.O.U. DOES NOT SPEAK ABOUT THE BALANCE PAYMENT . THIS HAND WRITTEN REMARKS CLEARLY APPEARS TO HAVE BEEN W RITTEN AFTER STICKING A STICKER ON THE BOOKING SLIP, PHOTOCOPY OF WHICH IS PLACED IN THE PAPER BOOK. IT APPEARS THAT THE ASSESSEE HAS TRIED TO JUSTIFY THE VALUE OF PROPERTY AS MENTIONED IN THE RESPECTIVE MOU BY WRITING THIS REM ARK AFTERWARDS, WHICH SHOWS THE CONDUCT OF THE ASSESSEE WELL. NO SUCH REM ARK IS FOUND ON OTHER BOOKING SLIPS IN THE CASES OF GURDEEP SINGH KOHALI AND KULDEEP KAUR KOHALI. THESE PECULIAR CIRCUMSTANCES FURTHER STRENGTHEN THE STAND TAKEN BY THE ASSESSING OFFICER. 10. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, AND K EEPING IN VIEW THE IDENTICAL FACTS INVOLVED IN ALL THESE APPEALS OF TH E REVENUE, WE DO NOT FIND NO GOOD REASON TO SUSTAIN THE IMPUGNED ORDERS, WHICH D ESERVE TO BE SET ASIDE. ITA NO. 3315, 3316 & 3721/DEL./2013 14 ACCORDINGLY, ALL THE THREE APPEALS OF THE REVENUE I N THE CASES OF DIFFERENT ASSESSEES ARE FOUND FIT TO BE ALLOWED. IN THE RESULT, THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH FEB., 2018. SD/- SD/- (H.S. SIDHU) (L.P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05.02.2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI