I.T.O.-3(1), Gwalior V. Sh. Sanjay Rajoria, Gwalior

ITA 377/AGR/2011

• Counselvise Citation: 37720314 RSA 2011
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Document seized
• Section: 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 379/AGRA/2011 ASSTT. YEAR : 2005-06 INCOME-TAX OFFICER, VS. M/S. RAJORIA CONSTRUCTIO N, 3(1), GWALIOR. 8, SHOPPING COMPLEX, KHERAPATI ROAD, GWALIOR. (PAN : AAFFR 2740 F) ITA NO. 377/AGRA/2011 ASSTT. YEAR : 2005-06 INCOME-TAX OFFICER, VS. SHRI SANJAY RAJORIA, 3(1), GWALIOR. 8, SHOPPING COMPLEX, KHERAPATI ROAD, GWALIOR. (PAN : AEQPR 2276 F) ITA NO. 378/AGRA/2011 ASSTT. YEAR : 2005-06 INCOME-TAX OFFICER, VS. M/S. RAJORIA RECREATION PARK & 3(1), GWALIOR. RESORTS, 8, SHOPPING COMPLEX, KHERAPATI ROAD, GWALIOR. (PAN : AAGFR 8231 G) (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 21.06.2012 DATE OF PRONOUNCEMENT OF ORDER : 22.06.2012 ITA NO. 379 377 & 378/AGRA/2011 2 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF ALL THE DEPARTMENTAL A PPEALS FILED BY THE REVENUE ON THE IDENTICAL ISSUE. 2. WE HAVE HEARD THE LD. DR AND PERUSED THE FINDING S OF THE AUTHORITIES BELOW. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE DE SPITE SERVICE OF NOTICE. THE SERVICE REPORT FURNISHED BY THE REVENUE DEPARTMENT IS AVAILABLE ON RECORD. THE ASSESSEES ARE, THEREFORE, PROCEEDED EXPARTE. ALL TH E DEPARTMENTAL APPEALS ARE DECIDED AS UNDER : ITA NO. 379/AGRA/2011 (M/S. RAJORIA CONSTRUCTION): 3. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD.CIT(A) GWALIOR DATED 04.07.2011 FOR THE ASSESSMENT YEAR 20 05-06, CHALLENGING THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.1, 21,37,148/- ON ACCOUNT OF SALE OF PROPERTY. 4. THE BRIEF FACTS OF THE CASE, AS NOTED IN THE IMP UGNED ORDER, ARE THAT DURING THE COURSE OF SEARCH OPERATIONS ON 28.03.2008 AND P OST SEARCH PROCEEDINGS IN THE CASE OF MASTERMIND CLASSES GROUP OF CASES, GWALIOR, A LOOSE PAPER SEIZED AS ANNEXURE BS-01, PAGE 182 MENTIONING PAYMENT OF RS.1 ,30,00,000/-, OUT OF WHICH ITA NO. 379 377 & 378/AGRA/2011 3 THE ASSESSEE FIRM HAS RECEIVED RS.65,00,000/-, HAS BEEN FOUND FROM THE RESIDENTIAL PREMISES OF MRS. POONAM GUPTA. SINCE THE ASSESSEE H AS DECLARED PROFIT OF RS.1,37,148/- ONLY ON THE SALE OF PROPERTY AS PER I TS RETURN FILED, THEREFORE, NOTICE U/S. 148 OF THE IT ACT WAS ISSUED BY RECORDING THE REASONS THAT THE INCOME TO THE EXTENT OF RS.65,00,000/- HAS ESCAPED ASSESSMENT. TH E ASSESSEES SUBMISSION THAT THE LAND IN QUESTION HAS BEEN SOLD FOR RS.10,00,000 /- OUT OF WHICH THE PROFIT HAS BEEN EARNED AND DECLARED, HAS NOT BEEN ACCEPTED BY THE AO AND FURTHER THE ENTIRE AMOUNT OF SALE CONSIDERATION OF RS.1,30,00,000/- HA S BEEN TREATED TO HAVE BEEN RECEIVED BY THE ASSESSEE THOUGH AS PER THE SEIZED D OCUMENTS, AMOUNT OF RS.42,00,000/- HAS BEEN RECEIVED BY RAJORIA RECREAT ION PARK AND RESORTS, RS.13,00,000/- BY SHRI SANJAY RAJORIA AND RS.65,00, 000/- IN CASH WITHOUT MENTIONING ANY NAME. THE AO ACCORDINGLY PROCEEDED T O COMPUTE THE PROFITS EARNED ON THE PROPERTY AS PER THE DOCUMENT SEIZED A ND THE AMOUNT MENTIONED THEREIN AFTER GIVING CREDIT OF THE AMOUNT ALREADY D ECLARED BY THE ASSESSEE. 4.1 THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSIONS OF THE ASSESSEE IS INCORPORATED IN THE IMPUGNED ORDER IN WHICH THE ASSESSEE EXPLAINED THE ISSUE OF SALE OF LAND SITUAT ED AT SIROLE AND IT WAS SUBMITTED THAT THE DETAILS MENTIONED IN THE SEIZED PAPER HAVE NOT BEEN CONFRONTED TO THE ASSESSEE FOR APPRECIATION OF THE FACTS AND THE AO H AS ERRED IN MAKING ADDITION ITA NO. 379 377 & 378/AGRA/2011 4 IGNORING THE AMOUNT MENTIONED IN THE REGISTERED SAL E DEEDS AND THE AMOUNTS MENTIONED IN THE REGULAR BOOKS OF ACCOUNT. IT WAS S UBMITTED THAT THE SEIZED PAPER BS-1 PAGE 182 DID NOT DISCLOSE ANYTHING AND NO ENQU IRY HAVE BEEN MADE FOR THE SAME. IT IS NOT A PAPER CAPABLE OF BEING ASSESSED B ECAUSE IT DID NOT MENTION EITHER THE AMOUNT PAID OR RECEIVED. IT WAS SUBMITTED THAT THE PROPERTY WAS AUCTIONED AT LESSER VALUE BY THE GOVERNMENT AND THE SEIZED PAPER IS UNSIGNED AND UNDATED AND ROUGH JOTTINGS. THEREFORE, NO ADDITION COULD BE MAD E. IT WAS SUBMITTED THAT THE STATEMENT OF SHRI SANJAY RAJORIA WAS RECORDED ON 11 .11.2008 BY INVESTIGATION WING AND DID NOT SUPPORT THE CASE OF THE REVENUE. T HE LD. CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE AND APPRAISAL OF THE SE IZED DOCUMENT, DELETED THE ENTIRE ADDITION. THE LD. CIT(A) ALSO FOLLOWED HIS ORDER IN THE CASE OF SMT. POONAM GUPTA DATED 22.02.2011 FOR THE PURPOSE OF DELETING THE AD DITION. THE FINDINGS OF THE LD. CIT(A) IN PARA 4 OF THE IMPUGNED ORDER ARE REPRODUC ED AS UNDER : 4. APPELLANTS SUBMISSIONS ALONG WITH ASSESSMENT O RDER HAVE BEEN CONSIDERED CAREFULLY. THE SEIZED DOCUMENT I.E., ANN EXURE BS-01, PAGE 182 ALONG WITH APPRAISAL REPORT IN THE CASE OF MAST ERMIND GROUP OF CASES HAVE ALSO BEEN PERUSED. THE SAID DOCUMENT HAS ALSO BEEN SHOWN TO THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS. IT IS FOUND UNSIGNED, UNDATED AND DEFINITELY APPEARS TO B E ROUGH JOTTINGS. IT MENTIONS CERTAIN AMOUNTS IN CASH (RS.65 LACS), IN N AME OF SANJAY (RS.13 LACS), R.C. (RS.10 LACS) AND R.R.P.S. (RS.42 LACS), TOTAL OF WHICH HAS BEEN ADDED BY THE AO AS UNDISCLOSED SALE CONSIDERATION IN THE HANDS OF THE APPELLANT. AO HAS FAILED TO BRING ANY OTHER ADVERSE MATERIAL ON RECORD PROVING THAT MRS. POONAM GUPTA, THE PURCHASER AND ONE OF THE DIRECTORS IN M/S. MASTERMIND GROUP O F CASES HAS ITA NO. 379 377 & 378/AGRA/2011 5 INDEED MADE PAYMENT IN RESPECT OF THIS SEIZED DOCUM ENT ESPECIALLY WHEN THIS FACT HAS BEEN DENIED BY BOTH THE PARTIES UNDER CONSIDERATION. THE SAID PROPERTY HAS BEEN PURCHASED IN PARTS AT RS.1,50,000/- AND RS.4,54,000/- VIDE REGISTRATION D EED DATED 06.08.2001 AND 03.08.2001 BY THE APPELLANT. STATEME NT OF SHRI SANJAY RAJORIA HAS ALSO BEEN RECORDED BY ADIT (INVESTIGATI ON WING), GWALIOR ON 11.11.2008 WHO HAS SUBMITTED AND AGAIN R EITERATED BY WAY OF AN AFFIDAVIT ALONG WITH THAT OF ANOTHER PART NER, VIZ. SHRI LAXMI NARAIN SHARMA THE FACT OF RECEIPT OF RS.10 LACS AS SALE CONSIDERATION OF THE SAID LAND. AO HAS PROCEEDED TO MAKE THE ADDI TION UNDER APPEAL SOLELY ON THE ASSUMPTION MENTIONED IN THE APPRAISAL REPORT (PAGE32) THAT SINCE SHRI SANJAY RAJORIA HAS INVESTED LARGE A MOUNTS ON THE DEVELOPMENT OF THIS PROPERTY, NO PRUDENT PERSON WIL L SELL THE LAND AT A LOSS IN A BOOMING PROPERTY MARKET AS THE PERIOD OF 2002 TO 2007 HAS SEEN SUBSTANTIAL INCREASE IN PROPERTY PRICES. NO AM OUNT OF THIS ALLEGED INVESTMENT MADE BY THE APPELLANT FIRM OR IT S PARTNERS HAS BEEN MENTIONED BY THE AO NOR THERE IS ANY EVIDENCE ON RE CORD FOR THE SAME. ADDITION IN THE HANDS OF THE APPELLANT FIRM H AS BEEN MADE ON THE BASIS OF A LOOSE PAPER FOUND FROM THE PREMISES OF A THIRD PARTY WITHOUT AFFORDING ANY OPPORTUNITY OF CROSS EXAMINAT ION TO THE APPELLANT NOR ANY INDEPENDENT VERIFICATION DONE BY THE AO. IT IS PERTINENT TO MENTION HERE THAT DOCUMENTS REGARDING GOVERNMENT AUCTION OF THE SAID PROPERTY IN THE YEAR 2006 FIXIN G ITS PRICE AT RS.27 LACS HAVE ALSO BEEN FOUND AND SEIZED DURING THE COU RSE OF SEARCH OPERATIONS IN MARSTERMIND GROUP. THEREFORE, THE PRE SUMPTION HOLDS THAT WHATEVER IS STATED ON THE REGISTERED DEED IS C ORRECT UNLESS THE CONTRARY IS PROVED BY CREDIBLE EVIDENCE WHICH HAS N OT BEEN DONE BY THE AO. IT IS A SETTLED POSITION OF LAW THAT THE SL IPS OR LOOSE SHEETS DO NOT FALL WITHIN THE PURVIEW OF 'BOOK'. AN ENTRY IN BOOKS OF ACCOUNTS, MAINTAINED IN THE REGULAR COURSE OF BUSINESS, IS RE LEVANT TO BE CONSIDERED IN RESPECT OF TRANSACTIONS REFLECTED THE REBY, BUT IS NOT CONCLUSIVELY DECISIVE THEREOF OR OF THE MATTER CONT AINED THEREIN OR LIABILITY REFLECTED THEREBY, AND MUCH LESS SO AN EN TRY IN A LOOSE SHEET, THAT TOO FOUND FROM THE POSSESSION OF A THIRD PARTY , WHICH IS OF A STILL FEEBLE NATURE. NO LIABILITY CAN BE FASTENED ON THE APPELLANT NOR CAN AN ADDITION BE MADE ON THE BASIS OF FEW JOTTINGS/ ENTR IES IN A LOOSE SHEET WITHOUT THERE BEING SOME FURTHER TRUSTWORTHY/ RELIA BLE CORROBORATIVE EVIDENCE LENDING CREDENCE TO SUCH AN ENTRY. DURING THE COURSE OF APPEAL PROCEEDINGS THE APPELLANT HAS ALSO SUBMITTED DOCUMENTARY EVIDENCE, AS ASKED FOR, SHOWING THAT THE LAND UNDER CONSIDERATION IS ITA NO. 379 377 & 378/AGRA/2011 6 DISPUTED FOR WHICH NOTIFICATION FOR ACQUISITION BY GDA (GWALIOR DEVELOPMENT AUTHORITY) HAS BEEN ISSUED AND ACCORDIN GLY PERMISSION FOR CONSTRUCTION/ DEVELOPMENT HAS NOT BEEN GRANTED BY TOWN AND COUNTRY PLANNING DEPARTMENT. AS PER THE MAP AND LET TER OF THE T&C PLANNING DEPARTMENT, THE SAID PIECE OF LAND IS FOUN D TO BE LAND LOCKED AND THERE IS NO PASSAGE/ APPROACH TO THE SAME. ACCO RDINGLY, THE APPELLANT HAS SOLD THE LAND FOR RS.10 LACS VIDE SAL E DEED DATED 20.08.2004 AS AGAINST RS.35,10,000/- DETERMINED BY THE REGISTRAR FOR STAMP DUTY PURPOSES. ON THE BASIS OF FACTS ABOVE AND AFTER PERUSAL OF SU BMISSIONS, AO IS NOT FOUND JUSTIFIED IN MAKING ADDITION OF RS. 1,21,37,148/- BY TAKING THE SALE VALUE OF THE LAND AT RS.1,30,00,000 /- IN THE HANDS OF THE APPELLANT SOLELY ON THE BASIS OF ONE LOOSE SHEE T OF PAPER FOUND FROM THE PREMISES OF A THIRD PARTY. ACCORDINGLY, AD DITION OF RS.1,21,37,148/- IS, HEREBY, DELETED. SIMILAR VIEW HAS BEEN HELD BY ME IN CASE OF SMT. POONAM GUPTA VIDE ORDER DATED 22.02 .2011 IN APPEAL NO. 376/IT/09- 10/GWL. 5. AFTER HEARING THE CONTENTION OF THE LD. DR, WHO HAS MAINLY RELIED UPON THE ORDER OF THE AO, WE ARE OF THE VIEW THAT THE ISSUE IS ALREADY DECIDED IN THE CASE OF SMT. POONAM GUPTA IN ITA NO. 156/AGRA/2011 DATED 23 .03.2012 AND THE TRIBUNAL ON IDENTICAL FACTS DISMISSED THE DEPARTMENTAL APPEA L. THE ENTIRE ORDER OF THE TRIBUNAL IN THE CASE OF SMT. POONAM GUPTA IN PARAS 10 TO 12 ARE REPRODUCED AS UNDER : 10. ON GROUND NO.2, THE REVENUE CHALLENGED THE ORD ER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.1,20,00,000/- MADE BY T HE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PLOT AT SIROLE. THE AO NO TED THAT THE ASSESSEE IS STATED TO HAVE PURCHASED A LAND AT VILLAGE SIROLE SITUATED AT CITY CENTRE, GWALIOR DURING THE ASSESSMENT YEAR UNDER APPEAL VIDE SALE DEED DAT ED 20.08.2004 FOR A SALE CONSIDERATION OF RS.10,00,000/-. ON EXAMINATION OF THE CONTENTS OF SALE DEED, IT WAS NOTICED THAT THE REGISTRAR HAS CHARGED THE STAM P DUTY ON THE BASIS OF MARKET ITA NO. 379 377 & 378/AGRA/2011 7 VALUE OF THE PROPERTY DETERMINED AT RS. 35,10,000/- . WHILE EXAMINING PAGE NO. 182 OF THE SEIZED MATERIAL OF BS-1, IT WAS FOUND THAT P AYMENTS WERE MADE TO THE SELLER AMOUNTING TO RS.1,30,00,000/-. THE ASSESSEE WAS ASK ED TO EXPLAIN THE CONTENTS OF THE SEIZED PAPER, BUT NO SATISFACTORY EXPLANATION W AS SUBMITTED. THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE VALUE OF PROPERTY SHOULD N OT BE TAKEN AT RS.1,30,00,000/- AND ADDITION OF RS.1,20,00,000/- SHOULD NOT BE MADE BEING THE PAYMENT MADE TO THE SELLER OF THE PROPERTY FROM THE UNDISCLOSED SOU RCES. THE AO, ACCORDINGLY, MADE THE ADDITION. IT WAS SUBMITTED BEFORE THE LD. CIT(A ) THAT FROM THE PERUSAL OF THE SEIZED PAPER, IT MAY BE SEEN THAT THE PAPER IS NOT CAPABLE OF BEING ASSESSED, IN AS MUCH AS, IT DID NOT MENTION EITHER THE AMOUNT PAID OR RECEIVED, IF PAID, AS PRESUMED BY THE AO, ON WHICH DATE IT WAS PAID AND A GAINST WHAT CONSIDERATION, THE AMOUNT WAS PAID ? THE AO MERELY MADE ADDITION C ONSIDERING THE PAYMENT MADE OVER AND ABOVE THE AMOUNT MENTIONED IN THE SAL E DEED. IT WAS FURTHER SUBMITTED THAT IT IS A MATTER FACT, WHICH CAN BE VE RIFIED FROM THE RECORDS OF THE INVESTIGATION WING THAT IMMEDIATELY AFTER THE SEARC H, THE SELLER WAS PUT TO NOTICE AND HIS STATEMENT WAS RECORDED BY THE INVESTIGATION WING, WHICH IS NOT REFERRED TO IN THE ASSESSMENT ORDER, IN WHICH THE SELLER HAS CO NFIRMED THAT NO PRICE/PAYMENT OVER AND ABOVE WHAT IS MENTIONED IN THE REGISTERED SALE DEED HAS BEEN RECEIVED BY HIM. NO ACTION HAS BEEN TAKEN IN THE CASE OF THE SE LLER. IT WAS, THEREFORE, EXPLAINED THAT ADDITION IS MADE WITHOUT ANY BASIS. IT WAS ALS O EXPLAINED THAT PROPERTY WAS PUT TO AUCTION BY THE STATE GOVERNMENT, WHO VALUED THE SAME JUST FOR RS.27,00,000/-, WHICH TOOK PLACE AFTER THREE YEARS OF PURCHASE BY THE ASSESSEE. THE DETAILED EVIDENCES IN THIS REGARD WERE ALSO FURNISH ED. IT WAS, THEREFORE, SUBMITTED THAT WHEN THE VALUE OF AUCTION AFTER THREE YEARS OF THE PURCHASE WAS RS.27,00,000/- , IT COULD NOT BE RS.1,30,00,000/- THREE YEARS PRIO R TO THAT. IT WAS, THEREFORE, SUBMITTED THAT THE ADDITION IS MADE WITHOUT ANY BAS IS. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE AND THE MATERIAL ON RECORD, DELETED THE ADDITION. HIS FINDINGS IN PARA 4.2 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 4.2 APPELLANTS SUBMISSION ALONGWITH ASSESSMENT ORD ER HAVE BEEN CONSIDERED CAREFULLY. SEIZED DOCUMENT ON WHICH A.O. HAS RELIED TO MAKE THE SAID ADDITION HAS ALSO BEEN PERUSED. POST SEARCH ENQUIRY RECORDS OF THE INVESTIGATION WING HAVE ALSO BEEN CA LLED FOR AND SEEN IN RESPECT OF APPELLANTS SUBMISSIONS REGARDING STA TEMENT OF SHRI SANJAY RAJORIA, THE SELLER OF THE SAID PROPERTY. ON PERUSAL, SUBMISSIONS OF THE APPELLANT ARE FOUND ACCEPTABLE. THE SEIZED DOCUMENT. I.E. PAGE 182, BS-01 IS UNSIGNED AND UNDA TED AND DEFINITELY APPEARS TO BE ROUGH JOTTINGS. IT MENTIONS CERTAIN A MOUNTS IN CASH, IN NAME OF SHRI SANJAY, R.C. AND RRPS, TOTAL OF WHICH HAS BEEN ADDED BY THE A.O. AS UNDISCLOSED INVESTMENT OF THE APPELL ANT. THOUGH THE ITA NO. 379 377 & 378/AGRA/2011 8 PRESUMPTION EMBEDDED U/S 132(4) IS AVAILABLE TO THE A.O; HOWEVER IT IS ALSO REBUTTABLE AND THE ONUS IS ON THE A.O. TO P ROVE THAT THE APPELLANT HAS INDEED MADE/RECEIVED PAYMENT IN RESPE CT OF THIS SEIZED DOCUMENT, IF DENIED BY THE APPELLANT. IN FACT, DOCU MENT REGARDING GOVT. AUCTION OF THE SAID PROPERTY IN THE YEAR 2006 FIXING ITS PRICE AT RS. 27,00,000/- HAVE ALSO BEEN FOUND AND SEIZED DUR ING THE COURSE OF SEARCH OPERATIONS. THE SAID PROPERTY HAS BEEN PURCH ASED IN PARTS AT RS. 1,50,000/- AND RS. 4,54,000/- VIDE REGD. DEEDS DATED 6.8.2001 AND 3.8.2001 BY M/S. RAJORIA CONSTRUCTIONS, WHO IS THE SELLER OF THE PROPERTY TO THE APPELLANT. AS PER APPRAISAL REPORT, STATEMENT OF SHRI SANJAY RAJORIA HAS BEEN RECORDED ON 11.11.2008 BY T HE INVESTIGATION WING. AS PER ITS RETURNS, M/S. SANJAY RAJORIA CONST RUCTIONS HAS SHOWN TO HAVE RECEIVED RS. 10,00,000/- AS SALE CONS IDERATION OF THE LAND. A.O. HAS PROCEEDED TO MAKE THE ADDITION UNDER APPEAL SOLELY ON THE PRESUMPTION MENTIONED IN THE APPRAISAL REPORT ( PG. 32) THAT SINCE HE I.E. SHRI SANJAY RAJORIA HAS INVESTED LARGE AMOU NTS ON THE DEVELOPMENT OF THIS PROPERTY, NO PRUDENT PERSON WIL L SELL THE LAND AT A LOSS IN BOOMING PROPERTY MARKET AS THE PERIOD OF 20 02 TO 2007 HAS SEEN SUBSTANTIAL INCREASE IN THE PROPERTY PRICES. F URTHER, SHRI SANJAY RAJORIA MUST HAVE RECEIVED SOME CONSIDERATION TO VA CATE THE SAID PROPERTY. AO HAS NOT BROUGHT ANY MATERIAL ON RECORD FOUND DURING THE COURSE OF SEARCH OR POST SEARCH ENQUIRY OR ASSESSME NT PROCEEDINGS TO SHOW THAT THE APPELLANT HAS INDEED PAID THE AMOUNT OF RS. 1,30,00,000/- TO THE SELLER. IT IS AGAIN REITERATED THAT IN SEARCH RELATED ASSESSMENT THERE IS NO SCOPE FOR PRESUMPTIONS AND P ROBABILITIES. THE AO HAS SIMPLY RELIED SOLELY ON THE SEIZED DOCUMENT WITHOUT MAKING ANY EFFORT FOR FURTHER ENQUIRY ESPECIALLY WHEN IT I S NOT FOUND TO BE IN HER HAND WRITING AND ITS CONTENTS HAVE BEEN DENIED BY THE APPELLANT AND THE SELLER ALIKE. IT HAS BEEN HELD BY HONBLE G UJRAT HIGH COURT IN CASE OF USHAKANT N. PATEL VS. CIT (2006) 282 ITR 55 3 (GUJ) THAT SECTION 132(4A) (III) DOES NOT NECESSARILY RAISE A PRESUMPTION QUA THE PERSON SEARCHED OR FORM WHOSE POSSESSION THE BOOKS ARE FOUND, EVEN IF PRESUMPTION AVAILABLE UNDER SECTION 132(4A) CAN BE RAISED AGAINST THE ASSESSEE. THE PREREQUISITE CONDITIONS OF SECTIO N 69 HAVE TO BE SATISFIED AND CANNOT BE PRESUMED TO HAVE BEEN ESTAB LISHED ON THE BASIS OF SECTION 132(4A). BEFORE PROVISIONS OF SECT ION 69A CAN BE APPLIED, THE APPELLANT SHOULD BE FOUND TO BE OWNER OF MONEY, BILLION OR JEWELLERY FOUND IN HER POSSESSION WHICH ARE NOT RECORDED IN HER BOOKS OF ACCOUNTS. SECTION 69A IS NOT FOUND APPLICA BLE IN CASE OF POSSESSION OF LOOSE SLIPS/PAPERS AND NOT OF ANY VAL UABLE ARTICLES OR ITA NO. 379 377 & 378/AGRA/2011 9 THINGS. IT IS A SETTLED POSITION OF LAW THAT THE SL IPS OR LOOSE SHEETS DO NOT FALL WITHIN THE PURVIEW OF BOOK. AN ENTRY IN BO OKS OF ACCOUNTS, MAINTAINED IN THE REGULAR COURSE OF BUSINESS, IS RE LEVANT TO BE CONSIDERED IN RESPECT OF TRANSITIONS REFLECTED THER EBY, BUT IS NOT CONCLUSIVELY DECISIVE THEREOF OR OF THE MATTER CONT AINED THEREIN OR LIABILITY REFLECTED THEREBY, AND MUCH LESS SO AND E NTRY IN A LOOSE SHEET WHICH IS OF A STILL FEEBLE NATURE. NO LIABILITY CAN BE FASTENED ON THE APPELLANT NOR CAN AND ADDITION BE MADE OF THE BASIS OF FEW JOTTINGS/ENTRIES IN A LOOSE SHEET WITHOUT THERE BEI NG SOME FURTHER TRUSTWORTHY/RELIABLE CORROBORATIVE EVIDENCE LENDING CREDENCE TO SUCH AND ENTRY. VIEWED AS ABOVE, IN THE INSTANT CASE, AP ART FORM SOME ENTRIES IN A LOOSE SHEET, THERE IS NOT AND IOTA OF EVIDENCE ON RECORDS SUPPORTIVE OF THE FINDING ARRIVED AT BY THE AO TO F ASTEN THE LIABILITY ON THE APPELLANT IN RESPECT OF THE PAYMENT OF THE AMOU NTS MENTION IN LOOSE SHEET. ON THE BASIS OF FACTS ABOVE AND DISCUSSION MADE, A O IS NOT FUND JUSTIFIED IN MAKING HUGE ADDITION OF RS. 1,20,00,00 0/- ON THE BASIS OF ROUGH ENTRIES MADE IN THE SEIZED DOCUMENT WITHOUT B RINGING ON RECORD ANY OTHER CORROBORATIVE EVIDENCE. ACCORDINGLY, ADDI TION OF RS. 1,20,00,000/- MADE IS, HEREBY DELETED. 11. THE LD. DR RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT THE SEIZED PAPER ITSELF SPEAKS AGAINST THE ASSESSEE. THEREFORE , THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. ON THE OTHER HAND, THE LD. CO UNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE L D. CIT(A) PERUSED THE SEIZED DOCUMENT AND ALSO FOUND THAT DURING THE POST SEARCH ENQUIRY, THE STATEMENT OF SELLER OF THE PROPERTY SHRI SANJAY RAJORIA WAS RECO RDED BY THE INVESTIGATION WING. THE LD. CIT(A) FOUND THAT SEIZED DOCUMENT WAS UNSIG NED AND UNDATED AND APPEARS TO BE ROUGH JOTTINGS. IT CONTAINED CERTAIN AMOUNTS IN CASH IN THE NAME OF SHRI SANJAY, RC AND RRPS. THE LD. CIT(A) ALSO FOUND THAT THE DOCUMENTS OF GOVERNMENT AUCTION OF THE PROPERTY IN THE YEAR 2006 FIXING THE PRICE AT RS.27,00,000/- WAS ALSO FOUND IN SEARCH. THE APPRAI SAL REPORT CONTAINED STATEMENT OF SHRI SANJAY RAJORIA RECORDED BY THE INVESTIGATIO N WING WHO HAS SHOWN TO HAVE RECEIVED RS.10,00,000/- AS SALE CONSIDERATION OF TH E LAND. THE LD. CIT(A), THEREFORE, NOTED THAT THE AO HAS NOT BROUGHT ANY MA TERIAL ON RECORD OR FOUND DURING THE POST SEARCH ENQUIRIES TO SHOW THAT THE A SSESSEE HAS MADE PAYMENT OF RS.1,30,00,000/- TO THE SELLER. THE LD. CIT(A) FURT HER NOTED THAT ADDITION CANNOT BE ITA NO. 379 377 & 378/AGRA/2011 10 MADE MERELY ON PRESUMPTION AND PROBABILITIES IN THE CASES RELATED TO SEARCH. THE LD. CIT(A) ALSO FOUND THAT CONTENTS OF THE DOCUMENT HAVE BEEN DENIED BY THE ASSESSEE AS WELL AS THE SELLER OF THE PROPERTY. THE REFORE, NO LIABILITY CAN BE FASTENED AGAINST THE ASSESSEE FOR THE PURPOSE OF MA KING ADDITION ON THE BASIS OF FEW JOTTINGS WITHOUT BRINGING ANY CORROBORATIVE AND TRUSTWORTHY EVIDENCE ON RECORD. THE FINDING OF FACT RECORDED BY THE LD. CIT (A) HAS NOT BEEN REBUTTED THROUGH ANY EVIDENCE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED COPY OF THE SEIZED PAPER IN QUESTION, ON EXAMINATION OF WHI CH, WE FIND THAT THE LD. CIT(A) PROPERLY APPRECIATED THE CONTENTS OF THE SEIZED PAP ER FOR ARRIVING AT THE JUST DECISION IN THE MATTER. SINCE THE AO HAS NOT BROUGH T ANY EVIDENCE ON RECORD THAT THE ASSESSEE MADE PAYMENT OF RS.1,30,00,000/- TO TH E SELLER AND NO COGENT AND RELIABLE CORROBORATIVE EVIDENCE HAVE BEEN FILED ON RECORD, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD . CIT(A). THE FINDING OF FACT RECORDED BY THE LD. CIT(A) SUPPORT THE CONTENTION O F THE LD. COUNSEL FOR THE ASSESSEE THAT IT IS NOT A FIT CASE FOR TAKING A CON TRARY VIEW WHAT HAS ALREADY BEEN TAKEN BY THE LD. CIT(A). ACCORDINGLY, WE DO NOT FIN D ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE DEPARTMENTAL APPEAL IS, ACCORDINGLY, DISMISSED ON THIS GROUND AS WELL. AS A RESULT, THE DEPARTMENTAL APPEA L IS DISMISSED. 5.1 CONSIDERING THE ABOVE, WE FIND THAT THE ISSUE I S COVERED AGAINST THE REVENUE BY ORDER OF ITAT, AGRA BENCH IN THE CASE OF SMT. PO ONAM GUPTA (SUPRA). THEREFORE, THE DEPARTMENTAL APPEAL HAS NO MERIT AND IS ACCORDINGLY DISMISSED. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMISSED. ITA NO. 377/AGRA/2011 & 378/AGRA/2011 (SHRI SANJAY RAJORIA & M/S. RAJORIA RECREATION PART & RESORTS) 6. BOTH THE DEPARTMENTAL APPEALS ARE DIRECTED AGAIN ST THE ORDER OF LD. CIT(A), GWALIOR DATED 04.07.2011 FOR THE ASSESSMENT YEAR 20 05-06, CHALLENGING THE DELETION OF ADDITION OF RS.13,00,000/- AND RS.52,00 ,000/- ON ACCOUNT OF SALE OF PROPERTY. THE FACTS ARE IDENTICAL AS HAVE BEEN NOTE D IN ITA NO. 379/AGRA/2011 ITA NO. 379 377 & 378/AGRA/2011 11 ABOVE IN THE CASE OF RAJORIA CONSTRUCTION. SUBSTANT IVE ASSESSMENT WAS MADE IN THE CASE OF RAJORIA CONSTRUCTION AND PROTECTIVE ASSESSM ENTS HAVE BEEN MADE AGAINST THE PRESENT ASSESSEES OF THE AFORESAID AMOUNTS UNDE R APPEAL. THE LD. CIT(A) FOLLOWING THE ORDER IN THE CASE OF M/S. RAJORIA CON STRUCTION, IN WHICH SUBSTANTIVE ADDITION HAS BEEN DELETED, DELETED THE PROTECTIVE A DDITIONS IN THE CASE OF THESE TWO ASSESSEES. SINCE WE HAVE DISMISSED THE DEPARTMENTAL APPEAL IN THE CASE OF RAJORIA CONSTRUCTION (SUPRA) IN ITA NO. 379/AGRA/2011, THER EFORE, PROTECTIVE ASSESSMENTS WOULD NOT SURVIVE IN THE CASES OF THESE TWO ASSESSE ES. ACCORDINGLY, BOTH THE DEPARTMENTAL APPEALS ARE DISMISSED. 7. IN THE RESULT, ALL THE THREE APPEALS FILED BY TH E REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY