Habitat Royale Projects Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 377/DEL/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6558 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 27-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IPS BINDRA
• Keywords: Sale consideration of property below Jantri Value; Income from undisclosed sources; Opportunity of cross examination; Tangible material; Third party statement; Block assessment
• Section: 50C; 133A; 153A; 260A; 132; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NOS. 377 & 378/DEL/2012 A.YRS. : 2008-09 & 2009-10 M/S HABITAT ROYALE PROJECTS PVT. LTD., 2, GOLDEN GATE, WESTEND GREEN, RAJOKARI, NEW DELHI 110 038 (PAN: AABCH4891A) VS. ACIT, CC-22, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ANIL KUMAR GUPTA, CA DEPARTMENT BY : SH. I.P.S. BINDRA, CIT(DR) ORDER PER H.S. SIDHU : JM THE ASSESSEE HAS FILED 02 APPEALS AGAINST THE SEPA RATE IMPUGNED ORDERS OF LD. CIT(A)-III, NEW DELHI PERTAINING TO ASSESSMENT YEA RS 2008-09 & 2009-10. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 377/DEL/2012 ( AY 2008-09). 2. THE GROUNDS RAISED IN ASSESSEES ITA NO. 377/DE L/2012 (AY 2008-09) READ AS UNDER:- 2 1) THE LEARNED CIT ( APPEALS) HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 15 LACS (FIFTEEN LACS) IN THE HANDS OF THE ASSESSEE AS UNACCOUNTED INCOME FROM OR RECEIPT DURING THE YEAR UNDER CONSIDERATION ON SALE OF PROP ERTY ES 095 NIRVANA COUNTRY SOUTH CITY-II, GURGAON. 2) THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN L AW AND ON THE FACTS OF THE CASE IN APPRECIATING THAT THERE IS NO CORROBORATING EVIDENCE OF THE FIGURE OF RS 15 LACS MENTIONED ON THE LOOSE PAPER VIS A VIS OTHER DOCUMENTS. 3) THE LD CIT (APPEALS) HAS GROSSLY ERRED IN LAW AN D ON THE FACTS OF THE CASE IN APPLYING SEC. 292C OF THE INCOME TA X ACT MERELY BECAUSE SOME PAPERS WERE FOUND FROM THE PREMISES OF THE ASSESSEE WHILE IGNORING VITAL FACTS AND CONTENTIONS AND EVE N WHEN ASSESSEE HAS SUCCESSFULLY REBUTTED THE PRESUMPTION. 4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DEMAND , SUPPLEMENT OR RAISE FRESH GROUNDS OF APPEAL, IF CONSIDERED EXPEDI ENT AND ADVISABLE AT THE TIME OF HEARING OF APPEAL. IT IS PRAYED THAT THE APPELLANT APPEAL BE ALLOWED. 3. THE GROUNDS RAISED IN ASSESSEES ITA NO. 378/D EL/2012 (AY 2009-10) READ AS UNDER:- 1) THE LEARNED CIT ( APPEALS) HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 82 LACS IN THE HANDS OF THE ASSESSEE AS UNACCOUNTED INCOME FROM OR RECEI PT DURING THE YEAR UNDER CONSIDERATION ON SALE OF PROPERTY ES 095 NIRV ANA COUNTRY SOUTH CITY-II, GURGAON. 2) THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN L AW AND ON THE FACTS OF THE CASE IN APPRECIATING THAT THERE IS NO CORROBORATING EVIDENCE 3 OF THE FIGURE OF RS 82 LACS MENTIONED ON THE LOOSE PAPER VIS A VIS OTHER DOCUMENTS. 3) THE LD CIT (APPEALS) HAS GROSSLY ERRED IN LAW AN D ON THE FACTS OF THE CASE IN APPLYING SEC. 292C OF THE INCOME TA X ACT MERELY BECAUSE SOME PAPERS WERE FOUND FROM THE PREMISES OF THE ASSESSEE WHILE IGNORING VITAL FACTS AND CONTENTIONS AND EVE N WHEN ASSESSEE HAS SUCCESSFULLY REBUTTED THE PRESUMPTION. 4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DEMAND , SUPPLEMENT OR RAISE FRESH GROUNDS OF APPEAL, IF CONSIDERED EXPEDI ENT AND ADVISABLE AT THE TIME OF HEARING OF APPEAL. IT IS PRAYED THAT THE APPELLANT APPEAL BE ALLOWED. ITA NO. 377/DEL/2012 (2008-09) HABITAT ROYALE PRO JECTS PVT. LTD. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH A ND SEIZURE U/S. 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS ACT) WAS CARRI ED OUT ON 6.11.2008 IN NIMITAYA GROUP OF CASES / COMPANIES IN WHICH THERE IS SUB GR OUP THAT IS KHINDA GROUP. A SEARCH WARRANT WAS ISSUED AND EXECUTED IN THE NAME OF THE ASSESSEE COMPANY ALSO. IN VIEW OF THE SAME, NOTICE U/S. 153A WAS ISSUED ON 8. 7.2009 AND IN RESPONSE THERETO ASSESSEE FILED ITS RETURN ON 16.11.2009 DECLARING T OTAL INCOME OF RS. NIL. NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT AND U/S. 14 2(1) OF THE I.T. ACT, 1961 ALONGWITH DETAILED QUESTIONNAIRE ISSUED ON 12.8.2010 AND THE ASSESSEES AR ATTENDED THE PROCEEDINGS AND FILED THE SUBMISSIONS FROM TIME TO TIME AS CALLED FOR. THEREAFTER, THE AO ASSESSED THE INCOME OF THE ASSESSEE AT RS. 6,93, 00,000/- U/S. 153A/143(3) OF THE I.T. ACT, 1961 BY MAKING THE ADDITION OF RS. 6,78,0 0,000/- ON ACCOUNT OF UNACCOUNTED 4 INVESTMENT IN DLF PROPERTIES AND RS. 15 LACS ON ACC OUNT OF SALE OF COMPANY AT E-95 VIDE HIS ORDER DATED 31.12.2010. 5. AGGRIEVED BY THE AFORESAID ORDER OF THE ASSESS ING OFFICER DATED 31.12.2010, ASSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPEL LATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 29.11.2011 HAS PARTLY ALLOWED THE APPE AL OF THE ASSESSEE AND CONFIRMED THE ADDITION 15 LACS ON ACCOUNT OF UNACCOUNTED INCO ME OR RECEIPT DURING THE YEAR UNDER CONSIDERATION ON SALE OF PROPERTY ES 095 NIRV ANA COUNTRY SOUTH CITY-II, GURGAON. 6. AGGRIEVED WITH THE IMPUGNED ORDER OF THE LD. CIT (A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE STATED THAT LD. CIT(A) WAS ERRED IN CONFIRMING THE ADDITION OF RS. 15 LACS IN THE HANDS OF THE ASSESSEE OF THE ASSESSEE AS UNACCOUNTED INCOME OR RECEIPT DURING TH E YEAR UNDER CONSIDERATION ON SALE OF PROPERTY ES 095 NIRVANA COUNTRY SOUTH CITY- II, GURGAON. HE FURTHER STATED THAT THERE IS NO CORROBORATING EVIDENCE OF THE FIGU RE OF RS 15 LACS MENTIONED ON THE LOOSE PAPER VIS A VIS OTHER DOCUMENTS. HE FURTHER STATED THAT LD. CIT (APPEALS) HAS ALSO ERRED IN APPLYING SEC. 292C OF THE INCOME TA X ACT, 1961 MERELY BECAUSE SOME PAPERS WERE FOUND FROM THE PREMISES OF THE ASSESSEE WHILE IGNORING VITAL FACTS AND CONTENTIONS AND EVEN WHEN ASSESSEE HAS SUCCESSFULLY REBUTTED THE PRESUMPTION. IN SUPPORT OF HIS ABOVE SAID CONTENTIONS, HE STATED TH AT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE VARIOUS DECISIONS OF THE HO NBLE HIGH COURT OF DELHI AND THE COORDINATE BENCHES OF THE ITAT AND ACCORDINGLY HE R ELIED UPON THE FOLLOWING DECISIONS:- - VATIKA LANDBASE PVT. LTD. 383 IT 320 (ITA NO. 6 70/2014 DATED 26.2.2016)- DELHI HIGH COURT. 5 - M/S DELCO INDIA PVT. LTD. (ITA NO. 116/2016) DAT ED 10.2.2016 DELHI HIGH COURT. - P. KOTESHWARA RAO ORDER DATED 12.8.2016 OF THE IT AT, VISAKHAPATNAM (ITA NO. 251 & 252VIZAG/2012 (AYRS. 2 007-08 & 2008-09) - K.V LAKSHMI SAVITRI DEVI VS. ACIT (2012) 148 TTJ 157, ITAT HYDERABAD BENCHES. - HONBLE A.P. HIGH COURT IN THE CASE OF K LAKSHMI SAVITRI DEVI (SUPRA) IN ITA NO. 563 OF 2011 HAS UPHELD THE ORDER OF THE TRIBUNAL. - CBI VS. VC SHUKLA (1998) 3 SCC 410) - CIT VS. PV KALYANSUNDARAM (294 ITR 49) - CIT VS. GIRISH CHAUDHARY (2008) 296 ITR 619 (DELH I) DELHI HIGH COURT. - ACIT VS. SHARAD CHAUDHARY (2014) 165 TTJ 0145) (D ELHI) - SUNITA DHADDA VS. DCIT (2012) 71 DTR 0033 JAIPUR 7.1 ON THE OTHER HAND, LD. CIT(DR) RELIED UPON TH E ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS PASSED A WELL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE AND THE SAME MAY BE UPHELD. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND THE CASE LAWS CITED BY THE LD. COUNSEL OF THE ASSESSEE. WE FIND THAT ASSESSEE HAS SOLD PROPERTY NO. ES95, B LOCK R & T NIRVANA COUNTRY, SOUTH CITY -II, GURGAON DURING FY 2008-09 FOR RS. 6 0 LACS. IT HAS NOT MADE ANY SALES DURING THE FY 2007-08 AND THAT ALL THE PAYMENT AGAI NST SALE OF THIS PROPERTY HAS BEEN 6 RECEIVED THROUGH CHEQUES AND THAT NO OTHER AMOUNT H AS BEEN RECEIVED BY THE ASSESSEE IN CASH AGAINST THE SALES CONSIDERATION OF THIS PRO PERTY. THE DETAILS MENTIONED ON THE RIGHT SIDE OF PAGE 4 OF ANNEXURE A-I OF PARTY G- 3 ARE SEEM TO BE SOME ROUGH WORKING AND IT IS NOT CLEAR FROM THE DETAILS WHETHE R THESE ARE FOR PURCHASE /SALE/INVESTMENT IN THE PROPERTY ES -95. IT ALSO S EEMS THAT THESE ARE SOME WRONGLY MENTIONED FIGURES NOTED BY SOMEBODY. IN THE DETAILS BELOW 'CHQ', FIGURE OF 15,700,000.00 IS MENTIONED. AS PER RECORD, THERE IS NO REFERENCE OF ANY CASH PAYMENT ON THESE DETAILS AND ALSO THERE IS NO REFERENCE OF ANY PAYMENT RECEIVED OR PAID IN CASH ON THESE DETAILS. THEREFORE, THE ALLEGATION MADE BY AO THAT A CASH PAYMENT OF RS 97 LACS HAS BEEN MADE RECEIVED AGAINST THIS PROPERTY & OUT OF WHICH RS 15 LACS HAS BEEN PAID REED DURING THE FINANCIAL YEAR 2007-08 IS BASE D ON MERE CONJECTURE & SURMISES. THAT THE CHART DOES NOT REVEAL ANY SUCH TRANSACTION DATES/AMOUNT PERTAINING TO ANY YEAR. THIS IS SIMPLY A DUMB DOCUMENT. THERE IS NO O THER MATERIAL ON RECORD OTHER THAN THIS LOOSE PAPER TO CORROBORATE THE STAND OF THE DE PARTMENT. WE FIND THAT SINCE ASSESSEE HAS NOT RECEIVED PAID ANY AMOUNT IN CASH A GAINST THE SALE OF THE ABOVE PROPERTY, NO UNEXPLAINED AND UNACCOUNTED INCOME FRO M UNACCOUNTED SOURCES CAN BE ATTACHED TO THE ASSESSEE WITH RESPECT TO ABOVE TRAN SACTION. THEREFORE, THE PRESUMPTION U/S. 292C OF THE ACT IS A REBUTTAL PRESUMPTION. T HE PRESUMPTION AS ENVISAGED IN SECTION 292C IS LIMITED TO THE CORRECTNESS OF THE D OCUMENTS FOUND AT THE TIME OF SEARCH OR SURVEY, BUT THAT PRESUMPTION HAS NOT BEEN EXTEND ED BY THE STATUTE TO BE PRESUMED TO BE THE INCOME OF THE ASSESSEE. IN VIEW OF THE AF ORESAID DISCUSSIONS, WE FIND CONSIDERABLE COGENCY IN THE ASSESSEES COUNSEL SUBM ISSIONS THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE FOLLOWING DECISIONS:- 7 8.1 IN THE CASE OF VATIKA LANDBASE PVT. LTD. 383 IT 320 (ITA NO. 670/2014 DATED 26.2.2016)- DELHI HIGH COURT HAS ADJUDICATED AS UNDER:- IN THE PRESENT APPEAL, THE REVENUE URGED THE FOLLOW ING QUESTIONS: '1. WHETHER ON THE FACTS A D CIRCUMSTANCES OF THE C ASE, THE INCOME TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW IN DELETING T HE ADDITION OF RS. 25,40,36,454 OUT OF THE TOTAL ADDITION OF RS. 31,01 ,09,834 MADE BY THE AO ON ACCOUNT OF UNDISCLOSED RECEIPT (FROM SALE OF SPACE FLATS IN VATIKA TRIANGLE? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE INCOME TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW IN DELETING O F RS. 11.49,55,096 (I.E. RS. 11,34,05,096 PLUS RS. 15.50,000) OUT OF T HE TOTAL ADDITION OF RS. 13,84,20.000 MADE BY THE AD ON ACCOUNT OF UNDISCLOS ED INCOME NOT DECLARED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT? 3. WHETHER ON THE (ACTS AND CIRCUMSTANCES OF THE CA SE, THE INCOME TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW IN DELETING T HE ADDITION OF RS. 1,04,39,000 MADE BY THE AO ON ACCOUNT OF ACCOMMODAT ION ENTRIES TAKEN BY THE ASSESSEE? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE ORDER OF THE ITAT IS NOT PERVERSE AS IT HAS FAILED TO CONSIDER T HAT IN THIS CASE, THE AO MADE THE ADDITION ON THE BASIS OF THE RELEVANT SEAR CHED MATERIAL GATHERED FROM THE ASSESSEE DURING THE COURSE OF THE SEARCH P ROCEEDINGS?' 29. HOWEVER, BY AN ORDER DATED 20 TH MAY 2015 THE ONLY QUESTION THAT WAS FRAMED FOR CONSIDERATION BY THE ITAT WAS AS UND ER: 'DID THE ITAT 8 FALL INTO ERROR IN HOLDING THAT THE ADDITION OF RS. 5,60,73,380 WAS UNSUSTAINABLE IN LAW IN THE CIRCUMSTANCES 0 THE CAS E?' 30. CONSEQUENTLY, AS THE PRESENT APPEAL BY THE REV ENUE WAS CONCERNED, ITS SCOPE IS CONFINED TO THE QUESTION FRAMED VIZ., THE SUSTAIN ABILITY OF THE DELETION BY THE ITAT OF THE ADDITIONS MADE BY THE A O AS SUSTAINED BY THE CIT(A) OF RS. 5,60,73,380/- PERTAINING TO THE S ALE OF FLATS ON THE SECOND AND THIRD FLOOR OF VT. 40. TURNING TO THE CASE ON HAND, THE DOCUMENT RECOV ERED FROM THE FILE IN THE COMPUTER OF MR. AWASTHI, FORMS THE BASIS OF THE ADDITION MADE BY THE AO, WHICH WAS FURTHER REDUCED BY THE CIT (A). T HIS WAS IN THE FORM OF A COMPUTER PRINT OUT OF THREE SHEETS WHICH WERE UNSIGNED AND UNDATED. THE FIRST SHEET WAS TITLED 'CASH- IN-FLOW DETAIL FOR THE REVENUE', THE NEXT WAS TITLED 'REVENUE DETAILS' AND THE THIRD WAS TITLED 'VATIKA TRIANGLE, GUARGAON.' THE NOTES TO THE DOCUMENTS ARE INDICATIVE OF THEIR BEING PROJECTIONS. NOTING (I) STATES THAT 'IT IS PR ESUMED THAT THE BUILDING WILL BE COMPLETED AND FULLY LET OUT IN THE MONTH OF NOVEMBER 2002.' ANOTHER NOTE STATES 'FURTHER, THE SALE OF THE BUILD ING WILL TOOK PLACE OVER A PERIOD OF NINE MONTHS.' ADMITTEDLY, AS ON TH E DATE OF THE SEARCH THE CONSTRUCTION WAS STILL IN PROGRESS. FLATS UP TO THE FOURTH FLOOR HAD BEEN SOLD. THE VIEW TAKEN BY THE ITAT THAT MERE FAC T THAT THE PRINT OUT STATES THAT THE FLATS ON SECOND AND THIRD FLOOR HAV E BEEN SOLD, DOES NOT NECESSARILY MEAN THAT THEY WERE SOLD AT THE RATES I NDICATED THEREIN IS DEFINITELY A PLAUSIBLE VIEW TO TAKE. 9 41. CONSIDERING THAT THE DOCUMENT WAS RECOVERED FRO M THE COMPUTER OF MR. SUNIL AWASTHI, HE OUGHT TO HAVE BEEN SUMMONED T O EXPLAIN THE RATES OF SALE SHOWN THEREIN FOR THE FLATS ON DIFFERENT FL OORS. IN FACT, THE ASSESSEE DID MAKE A REQUEST FOR HIS CROSS-EXAMINATI ON. THE OTHER POSSIBILITY WAS TO EXAMINE THE PURCHASERS OF THE FL ATS AS THEY WOULD HAVE CONFIRMED THE PRICE PAID BY THEM AND HOW MUCH OF IT WAS IN CHEQUE AND WHAT EXTENT IN CASH. HOWEVER, THAT TOO WAS NOT DONE . .. 43. THE REVENUE HAS NOT BEEN ABLE TO COUNTER THE SU BMISSION OF THE ASSESSEE THAT THERE ARE ANOMALIES IN THE FIGURES ME NTIONED IN SHEET NOS. 3 AND 4 OF THE SAID DOCUMENT. 45. AS POINTED OUT IN COMMISSIONER O{INCOME TAX V. S.M AGGARWAL (SUPRA) THE SAID DOCUMENT CAN AT BEST BE TERMED AS A 'DUMB' DOCUMENT WHICH IN THE ABSENCE O{INDEPENDENT CORROBORATION CO ULD NOT POSSIBLY HAVE BEEN RELIED UPON AS A SUBSTANTIVE PIECE OF EVI DENCE TO DETERMINE THE ACTUAL RATES AT WHICH THE FLATS WERE SOLD. FURT HER AS POINTED OUT IN COMMISSIONER OF INCOME TAX V. D.K. GUPTA (SUPRA) ME RELY BECAUSE THERE ARE NOTINGS OF FIGURES ON SLIPS OF PAPER, IT DID NOT MEAN THAT THOSE TRANSACTIONS ACTUALLY TOOK PLACE. LIKEWISE IN COMMI SSIONER OF INCOME GIRISH CHAUDHARY (SUPRA), THE COURT TERMED A LOOSE SHEET CONTAINING SOME NOTINGS OF FIGURES AS A 'DUMB DOCUMENT' SINCE THERE WAS NO MATERIAL TO SHOW AS TO ON WHAT BASIS THE AO HAD RE ACHED A CONCLUSION 10 THAT THE FIGURE '48' OCCURRING IN ONE OF THEM WAS T O BE READ AS RS. 48 LAKHS. 46. IN THE PRESENT CASE, THERE WAS AGAIN NO MATERIA L ON THE BASIS OF WHICH THE AO COULD HAVE APPLIED A STANDARD RATE OF RS 4,8 00 PER SQ FT FOR ALL THE FLOORS OF VT. IT WAS ALSO NOT OPEN TO THE AO TO DRAW AN INFERENCE ON THE BASIS OF THE PROJECTION IN THE DOCUMENT, PARTIC ULARLY WHEN THE ASSESSEE OFFERED A PLAUSIBLE EXPLANATION FOR THE DO CUMENT. THE BURDEN SHIFTED TO THE REVENUE TO SHOW, ON THE BASIS OF SOM E RELIABLE AND TANGIBLE MATERIAL, HOW RATE AT WHICH THE FLATS ON T HE SECOND AND THIRD FLOORS OF VT WAS HIGHER THAN THAT DICTATED IN THE S ALES REGISTER OR THE SALE DEEDS THEMSELVES. 47. IN THE CIRCUMSTANCES, THE COURT IS OF THE VIEW THAT THE ITAT WAS JUSTIFIED IN COMING TO THE CONCLUSION THAT THE ADDI TION OF RS. 5,60,73,380 MADE BY THE CIT (A) WAS NOT SUSTAINABLE IN LAW. 48. FOR THE AFOREMENTIONED REASONS, THE QUESTION FR AMED BY THE COURT IS ANSWERED IN THE NEGATIVE, I.E., IN FAVOUR OF THE AS SESSEE AND AGAINST THE REVENUE. 8.2 IN THE CASE OF M/S DELCO INDIA PVT. LTD. (ITA NO. 116/2016) DATED 10.2.2016 DELHI HIGH COURT HAS HELD AS UNDER:- SECTION 292C OF THE ACT, INTER ALIA, PROVIDES THAT WHERE ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS ARE FOUND IN POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF SEARCH UNDER SECTION 132 OR SURVEY UNDER SECTION 133A OF THE ACT, IT MAY BE PRESUMED THAT SU CH BOOKS OR 11 DOCUMENTS BELONG TO SUCH PERSON. UNDISPUTEDLY, SUCH PRESUMPTION IS REBUTTABLE. IT IS NOT DISPUTED THAT THE ASSESSEE HA D CLEARLY DENIED HAVING ANY DEALING WITH M/S SMRIDHI SPONGE LIMITED AND HAD ALSO FILED AN AFFIDAVIT TO THAT EFFECT. THE ITAT FOUND, AS A MATT ER OF FACT, THAT THE ASSESSEE ON ITS PART HAD MADE THE NECESSARY ENQUIRI ES AND ALSO PROVIDED FINAL ACCOUNTS OF M/S SMRIDHI SPONGE LIMITED; CONFI RMATION FROM THE DIRECTOR OF M/S SMRIDHI SPONGE LIMITED; DETAILS OF THE BANK ACCOUNTS; FINAL ACCOUNTS; DIRECTOR' S REPORT; PAN NUMBER ETC. WHICH SUFFICIENTLY DISCHARGED THE BURDEN CAST ON THE ASSESSEE. THE ITA T ALSO FOUND THAT THE ASSESSEE HAD PROVIDED THE NECESSARY INFORMATION FOR THE AO TO MAKE THE REQUISITE ENQUIRIES FROM M/S SMRIDHI LIMITED AS WELL AS M/S GALAX EX ORTS PVT. LTD. IN OUR VIEW NO INTERFERENCE WITH THE ORDER OF THE ITAT IS CALLED FOR UNDER SECTION 260A OF THE ACT SINCE T HE FINDINGS OF THE ITAT ARE ESSENTIALLY FACTUAL. FURTHER, WE FIND NO I NFIRMITY WITH THE FINDINGS RETURNED BY THE ITAT AND IN ANY EVENT THE SAME CANNOT BE HELD TO BE PERVERSE BY ANY STRETCH. 8.3 IN THE CASE OF P. KOTESHWARA RAO ORDER DATED 12 .8.2016 OF THE ITAT, VISAKHAPATNAM (ITA NO. 251 & 252VIZAG/2012 (AYRS. 2 007-08 & 2008-09), THE ITAT HAS OBSERVED AS UNDER:- 11. THE ONLY ISSUE THAT CAME UP FOR OUR CONSIDERATI ON IS WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE SEIZED DOC UMENTS INDICATE EXCHANGE OF ON MONEY BETWEEN THE PARTIES. ADMITTEDL Y, IN THE ASSESSEE'S CASE THERE WAS NO SEARCH. THE SEIZED DOCUMENT FOUND DURING THE COURSE OF SEARCH IN THE PREMISES OF M/S. M.V.V. BUILDERS, IS A LOOSE SHEET 12 WHEREIN CERTAIN FINANCIAL TRANSACTIONS WERE RECORDE D IN THE NAME OF THE ASSESSEE. THOUGH, SRI M.V.V. SATYANARAYANA STATED T HAT HE HAD PAID A SUM OFRS.50 LAKHS AND RS.25 LAKHS IN THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2007-08 & 2008-09, TO SRI P. KOTESW ARA RAO TOWARDS LAND DISPUTE SETTLEMENT, NOWHERE IT IS STATED THAT HE HAD PAID ON MONEY TO THE ASSESSEE TOWARDS PURCHASE OF SITE. THE ASSES SEE RIGHT FROM THE BEGINNING STATED THAT HE HAD NOT RECEIVED ANY ON MO NEY FROM M/S. M.V.V. BUILDERS TOWARDS SALE OF SITE. BESIDES, LOOS E SHEETS FOUND IN THE PREMISES OF M/S. M.V.V. BUILDERS, THE A.O. DOES NOT HAVE ANY OTHER DOCUMENT TO SHOW THAT THE ASSESSEE HAS RECEIVED ON MONEY FROM THE PURCHASER. THE A.O. HAS NOT MADE OUT ANY ATTEMPT TO FIND OUT SOME RELIABLE COGENT MATERIAL EVIDENCE ON RECORD TO SUPP ORT HIS FINDINGS OR TO CORROBORATE THE STATEMENT OF THE PURCHASER. THE AS SESSEE DENIED HAVING RECEIVED ANY ON MONEY OVER AND ABOVE WHAT WAS STATE D IN THE SALE DEED. THE ASSESSEE RIGHTLY CLAIMED THAT THE SALE TRANSACT ION HAS BEEN COMPLETED ON 7.6.2006. THE SALE TRANSACTION HAS BEE N COMPLETED BY WAY OF REGISTERED SALE AGREEMENT-CUM-GPA. THE ASSESSEE HAS RECEIVED FULL CONSIDERATION AS ON THE DATE OF REGISTRATION OF DOC UMENT AND HANDED OVER THE POSSESSION OF THE PROPERTY TO THE BUYERS. THE A LLEGATION OF THE A.O. IS THAT THE PURCHASER HAS PAID ON MONEY TO THE ASSE SSEE IN THE FINANCIAL YEARS RELEVANT TO ASSESSMENT YEAR 2007-08 AND 2008- 09 WHICH IS ALMOST ONE YEAR AFTER SALE IS COMPLETED. WE FURTHER NOTICE D THAT TOTAL CONSIDERATION HAS BEEN PAID THROUGH PROPER BANKING CHANNEL. IT WAS NOT 13 A CASE OF A.O. THAT THE VALUE SHOWN IN THE SALE DEE D IS NOT REAL VALUE OF THE PROPERTY, BECAUSE THE VALUE DECLARED IN THE SAL E DEED IS THE MARKET VALUE OF THE PROPERTY, FIXED BY THE STATE GOVERNMEN T AUTHORITIES FOR DETERMINING STAMP DUTY PURPOSE. FURTHER, THERE IS N O EVIDENCE WITH THE A.O. TO SHOW THAT THERE IS A UNDER VALUATION OF PRO PERTY AND PROVISIONS OF SECTION SOC OF THE ACT IS INVOKED WHILE COMPLETI NG THE ASSESSMENT. THE A.O. MERELY ACTED UPON THE STATEMENT GIVEN BY T HE THIRD PARTY WHICH WAS TOTALLY DENIED BY THE ASSESSEE. IT IS A S ETTLED POSITION OF LAW THAT UNLESS STATEMENT IS TESTED UNDER CROSS EXAMINA TION, THE SAME CANNOT BE CONSIDERED AS EVIDENCE AGAINST THE ASSESSEE. THE A.O. USED THE ADMISSION OF PARTNERS OF PURCHASER FIRM MADE U/S 13 (4) OF THE ACT IN THEIR CASE AGAINST THE ASSESSEE, BUT FAILED TO NOTE THAT ADMISSION OF OTHER PARTIES CANNOT BE CONSIDERED AS CONCLUSIVE EVIDENCE AGAINST THE ASSESSEE, UNLESS THERE IS A CORROBORATIVE EVIDENCE ON RECORD, BECAUSE THE MAKER OF STATEMENT CAN BIND HIMSELF, BUT HOW HE BIND OTHERS FROM HIS STATEMENT WITHOUT THERE BEING ANY FURTHER EVIDENCE ON RECORD. 12. IN THE PRESENT CASE ON HAND. EXCEPT LOOSE SHEET FOUND IN THE PREMISES OF M/S. M V V BUILDERS AND ADMISSION MADE BY THE TH IRD PARTY IN THEIR ASSESSMENT PROCEEDINGS. THERE IS NO OTHER EVIDENCE ON RECORD TO PROVE THAT ON MONEY IS PAID TO THE ASSESSEE TOWARDS PURCH ASE OF SITE. WE FURTHER NOTICED THAT SRI M V V SATYANARAYANA. WHILE DEPOSING BEFORE THE INVESTIGATING OFFICER HAS STATED THAT HE HAS PAID M ONEY TO SRI P. KOTESWARA RAO TOWARDS SETTLEMENT OF LAND DISPUTES. BUT NOWHERE STATED 14 THAT HE HAD PAID ON MONEY TO THE ASSESSEE TOWARDS P URCHASE OF VENKOJIPALEM SITE. THE AO WITHOUT BRINGING ON RECO RD AN EVIDENCE TO PROVE THAT ON MONEY IS EXCHANGED BETWEEN THE PARTIE S. 13 .. MERELY HARPING UPON LOOSE SHEET AND THIRD PARTY STA TEMENT, WHICH CANNOT BE CONSIDERED AS CONCLUSIVE EVIDENCE AGAINST THE AS SESSEE TO BRING ON MONEY TO TAX AS UNDISCLOSED INCOME. THE A.O. IS REQ UIRED TO BRING FURTHER EVIDENCE ON RECORD TO SHOW THAT ACTUAL MONE Y IS EXCHANGED BETWEEN THE PARTIES, BUT LITERALLY FAILED TO DO SO. THE AO DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO VALUE OF THE PR OPERTY, INSTEAD MERELY RELIED UPON STATEMENT GIVEN BY THE PURCHASE OF THE PROPERTY WHICH IS NOT COVERED. FURTHER, THERE IS NO EVIDENCE WITH THE A.O . THAT MONEY HAS BEEN EXCHANGED BETWEEN PURCHASER AND SELLER. THEREF ORE, WE ARE OF THE VIEW THAT THE A. 0. IS NOT CORRECT IN MAKING ADDITI ONS TOWARDS ON MONEY WITHOUT THERE BEING ANY EVIDENCE TO SHOW THAT THE A SSESSEE HAS RECEIVED ANV MONEY OVER AND ABOVE WHAT WAS STATED IN THE SAL E DEED. 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO APPLYING THE RATIOS OF THE JUDGEMENTS CITED ABOVE, WE ARE OF THE VIEW THAT THE A.O. IS NOT CORRECT IN COMING TO THE CONCL USION THAT ON MONEY EXCHANGED BETWEEN THE PARTIES BASED ON A LOOSE SHEE T FOUND IN THE PREMISES OF A THIRD PARTY AND ALSO STATEMENT GIVEN BY A THIRD PERSON. TO SUSTAIN THE ADDITION, THE A.O. SHOULD HAVE TAKEN AN INDEPENDENT ENQUIRY 15 ABOUT THE VALUE OF THE PROPERTY AND ASCERTAIN WHETH ER ANY UNDER VALUATION IS DONE, IF SO WHAT IS THE CORRECT VALUE OF THE PROPERTY. FURTHER, THE A.O. FAILED TO BRING ANY EVIDENCE TO SUPPORT HI S FINDINGS THAT THERE IS ON-MONEY PAYMENT OVER AND ABOVE WHAT IS STATED IN T HE SALE DEED. IN THE ABSENCE OF PROPER ENQUIRY AND SUFFICIENT EVIDENCES, WE FIND NO REASONS TO CONFIRM THE ADDITIONS MADE BY THE A.O. THE CIT(A ) WITHOUT APPRECIATING FACTS, SIMPLY UPHELD ADDITIONS MADE BY THE A.O. HENCE, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) AND DIRECT THE A.O. TO DELETE THE ADDITIONS MADE TOWARDS ALLEGED ON MONEY FOR THE ASS ESSMENT YEARS 2007-08 & 2008-09. 18. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NOS. 251 &252IVIZAG/2012 ARE ALLOWED. 8.4 IN THE CASE OF K.V LAKSHMI SAVITRI DEVI VS. ACI T (2012) 148 TTJ 157, ITAT HYDERABAD BENCHES HAS HELD AS UNDER:- 'ADMITTEDLY THERE WAS NO SEARCH ACTION IN THE CASE OF THE ASSESSEE. IT IS A LOOSE SLIP CONTAINING CERTAIN ENTRIES RECORDING THE PAYMENT WHICH WAS FOUND AT THE PREMISES OF CRK. IT DOES NOT CONTAIN E ITHER DATE OF PAYMENT OR NAME OF THE PERSON WHO HAS MADE THE PAYMENT. ACC ORDING TO THE DEPARTMENT, CRK DENOTES C RADHA KRISHNA KUMAR AND K RK DENOTES K. RAJANI KUMARI. HOWEVER, NO NAME OF THE ASSESSEE WAS FOUND IN THE LOUSE SHEET. THE PROPERTY WAS PURCHASED FROM P W/C CRK FOR A DISCLOSED CONSIDERATION OF PS. 65 LAKHS BV THE ASSE SSEE. THE PROPERTY HAS BEEN REGISTERED AND THE SALE DEED WAS EXECUTED FOR A CONSIDERATION OF PS. 651AKHS ON 21ST AUG., 2006 WHICH CONSIDERATION HAS BEEN ACCEPTED BY 16 THE STATE REGISTRATION AUTHORITIES. FURTHER NOTHING WAS BROUGHT ON RECORD TO SHOW THAT THERE WAS ANY INVOKING OF S. 50C WHILE COMPLETING THE ASSESSMENT IN THE CASE OF THE SELLER. THERE IS NO E VIDENCE OTHER THAN THE SEIZED MATERIAL MARKED AS 'A/CRK104' WHERE RELEVANT ENTRIES ARE MADE AT RS. 1,65,00,000. THE SEIZED MATERIAL WAS NOT FOU ND AT THE PREMISES OF THE ASSESSEE AND THERE IS NO CORROBORATIVE MATERIAL TO SUGGEST THAT THE ASSESSEE HAS ACTUALLY PAID RS. 1.65 CRORES TOWARDS PURCHASE CONSIDERATION OF THE PROPERTY, THE ASSESSEE AND HER BROTHER CATEGORICALLY DENIED THE PAYMENT OF ANY MONEY OVER AND ABOVE RS. 65 LAKHS. THE AO PLACED RELIANCE ON THE STATEMENT OF 5, WHO IS A TH IRD PARTY, THE EVIDENCE BROUGHT ON RECORD BY THE DEPARTMENT IS NOT ENOUGH T O FASTEN ADDITIONAL TAX LIABILITY ON THE ASSESSEE. AS SEEN FROM THE ABO VE DOCUMENT THIS IS JUST A HANDWRITTEN LOOSE DOCUMENT AND THE HANDWRITI NG IS ALSO NOT OF THE ASSESSEE AND THE LOOSE DOCUMENT WAS FOUND AT THE P REMISES OF A THIRD PARTY. THE BURDEN ON THE DEPARTMENT TO PROVE CONCLU SIVELY THAT THE LOOSE DOCUMENT BELONGS TO THE ASSESSEE. THERE IS NO PRESUMPTION IN LAW THAT THE ASSESSEE HAS ACTUALLY PAID RS. 1651AKHS TO WARDS PURCHASE OF THE PROPERTY. THE UNDISCLOSED INCOME IN THIS CASE IS TO BE COMPUTED BY THE AO ON THE BASIS OF THE AVAILABLE MATERIAL ON RECORD . IT SHOULD NOT BE BASED ON CONJECTURES AND SURMISES. AS OF NOW, THE M ATERIAL CONSIDERED BY THE AO FOR MAKING THE ADDITION OF RS. 1 CRORE IS SEIZED MATERIAL MARKED A 'A/CRK104' AND THE STATEMENT OF 5. THIS L OOSE SHEET FOUND AT THE PREMISES OF CRK IS NOT ENOUGH MATERIAL TO SUSTA IN THIS ADDITION. THE 17 SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH A ND THE STATEMENT RECORDED ARE SOME PIECE OF EVIDENCE TO MAKE THE ADD ITION. THE AD HAS TO ESTABLISH THE LINK BETWEEN THE SEIZED MATERIAL A ND OTHER BOOKS OF ACCOUNT TO THE ASSESSEE. THE SEIZED MATERIAL AND ST ATEMENT OF CRK CANNOT BE CONCLUSIVE EVIDENCE TO MAKE THIS ADDITION . THE ENTIRE CASE HEREIN IS DEPENDING UPON THE RULE OF EVIDENCE. THER E IS NO CONCLUSIVE PRESUMPTION TO SAY THAT ACTUAL CONSIDERATION PASSED ON BETWEEN THE PARTIES IS ACTUALLY RS. 165LAKHS. THE ASSESSEE AS W ELL AS HER BROTHER STATED IN THEIR RESPECTIVE STATEMENTS THAT THE CONS IDERATION PASSED BETWEEN THE PARTIES IS ONLY RS. 65LAKHS. IN SPITE O F THIS THE AO PROCEEDED TO CONCLUDE THAT THE SEIZED MATERIAL IS C ONCLUSIVELY REFLECTING THE PAYMENT OF CONSIDERATION AT RS. 165LAKHS. THE D EPARTMENT HEREIN IS REQUIRED TO ESTABLISH THE NEXUS OF THE SEIZED MATER IAL TO THE ASSESSEE. AS STATED EARLIER THERE IS NO DATE AND NAME OF THE ASS ESSEE. THE ALLEGATION OF THE DEPARTMENT IS THAT THE SEIZED MATERIAL DENOTES THE PAYMENT MADE BY THE ASSESSEE TO THE PURCHASER FOR PURCHASE OF THE P ROPERTY. HOWEVER, NO SUCH NARRATION OR NAME OF THE ASSESSEE WAS FOUND IN THE SEIZED MATERIAL. THE DEPARTMENT IS NOT ABLE TO UNEARTH ANY DOCUMENT OR MATERIAL OR ANY CORROBORATIVE MATERIAL TO SHOW THAT THE ASSESSEE HE REIN ACTUALLY PAID PS. 1651AKHS FOR PURCHASE OF THE PROPERTY. THE DEPARTME NT HAS NOT BROUGHT ON RECORD THE DATE ON WHICH THE PAYMENT WAS MADE AN D THE SOURCE FROM WHICH II IS PAID AND/OR ANY DETAILS OF BANK ACCOUNT FROM WHERE THE CASH WAS WITHDRAWN. WITHOUT ANY OF THESE DETAILS, THE DE PARTMENT HAS TAKEN A 18 VIEW THAT THE ASSESSEE HAS PAID PS. 1651AKHS FOR PU RCHASE OF THE PROPERTY. THE DEPARTMENT CANNOT DRAW INFERENCE ON T HE BASIS OF SUSPICION, CONJECTURES AND SURMISES. SUSPICION, HOW EVER STRONG CANNOT TAKE PLACE OF MATERIAL IN SUPPORT OF THE FINDING FR OM THE AO. THE AO SHOULD ACT IN A JUDICIAL MANNER, PROCEED WITH JUDIC IAL SPIRIT AND COME TO A JUDICIAL CONCLUSION. THE AO IS REQUIRED TO ACT FA IRLY AS A REASONABLE PERSON AND NOT ARBITRARILY AND CAPRICIOUSLY. THE AS SESSMENT MADE SHOULD HAVE ENOUGH MATERIAL AND IT SHOULD STAND ON ITS OWN LEGS. THE BASIS FOR ADDITION CANNOT BE ONLY THE LOOSE SHEET OR A THIRD PARTY STATEMENT IN THE ABSENCE OF THE CORROBORATIVE MATERIAL AND/OR CIRCUM STANTIAL EVIDENCE, THE ADDITION CANNOT BE SUSTAINED THUS, NO ADDITION CAN BE MADE ON A DUMB DOCUMENT AND NOTING ON LOOSE SHEET. IT SHOULD BE SU PPORTED BY THE EVIDENCE ON RECORD AND THE EVIDENCE ON RECORD IS NO T SUFFICIENT TO SUPPORT THE REVENUE'S ACTION. IN A BLOCK ASSESSMENT UNDISCLOSED INCOME HAS TO BE DETERMINED OR THE .BASIS OF THE MATERIAL AND EVIDENCE DETECTED IN THE COURSE OF THE SEARCH ACTION. THE CIRCUMSTANC ES SURROUNDING THE CASE ARE NOT STRONG ENOUGH TO JUSTIFY THE ADDITION MADE BY THE DEPARTMENT. THE BURDEN OF PROVING THE ACTUAL CONSI DERATION IN THE PURCHASE OF PROPERTY IS ON THE REVENUE. CONSIDERING THE ENTIRE FACTS OF THE CASE, THE REVENUE HAS FAILED TO DISCHARGE ITS D UTY, INSTEAD MADE UP A CASE ON SURMISES AND CONJECTURES WHICH CANNOT BE AL LOWED. UNDER THESE CIRCUMSTANCES, THERE IS NO REASON TO CONFIRM THE AD DITION OF RS. 100 LAKHS TOWARDS ON-MONEY PAYMENT. ACCORDINGLY, THE AD DITION OF RS. 100 19 LAKHS IS DELETED. CIT VS. P. V. KALYANASUNDARAM (2 006) 203 CTR (MAD) 449: (2006) 282ITR 259 (MAD) RELIED ON. 8.4.1 THE HONBLE A.P. HIGH COURT IN THE CASE OF K LAKSHMI SAVITRI DEVI (SUPRA) IN ITA NO. 563 OF 2011 HAS UPHELD THE ORDER OF THE TRI BUNAL. 'WE ARE OF THE VIEW THAT THE TRIBUNAL HAS RIGHTLY H ELD THAT THE REGISTERED DOCUMENT DT. 21.8.2006 UNDER WHICH THE RESPONDENT P URCHASED THE ABOVE PROPERTY SHOWED THAT ONLY RS.65. 00 LAKHS WAS PAID TO THE VENDOR BY THE RESPONDENT: THAT THERE WAS NO EVIDENCE TO SH OW THAT THE RESPONDENT HAD PAID RS.L. 00 CRORE IN CASH ALSO TO THE VENDOR; THAT NO PRESUMPTION OF SUCH PAYMENT OF RS.1.00 CRORE IN CAS H CAN BE DRAWN ON THE BASIS OF AN ENTRY FOUND IN A DIARY LOOSE SHEET IN THE PREMISES OF C. RADHA KRISHNA KUMAR WHICH IS NOT IN THE RESPONDENTS HANDWRITING AND WHICH DID NOT CONTAIN THE NAME OF THE RESPONDENT OR ANY DATE OF PAYMENT OR THE NAME OF THE PERSON WHO MADE THE PAYM ENT. IT RIGHTLY HELD THAT THE REVENUE FAILED TO ESTABLISH THE NEXUS OF THE SEIZED MATERIAL TO THE RESPONDENT AND HAD DRAWN INFERENCES BASED ON SUSPICION, CONJECTURES AND SURMISES WHICH CANNOT TAKE THE PLAC E OF PROOF. WE ALSO AGREE WITH THE TRIBUNAL THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF THE PR OPERTY PURCHASED AND THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IN T HE PURCHASE OF THE PROPERTY IS ON THE REVENUE AND IT HAD FAILED TO DIS CHARGE THE SAID BURDEN. 8.5 IN THE CASE OF CBI VS. VC SHUKLA (1998) 3 SCC 4 10) IT HAS BEEN HELD THAT THE LOOSE SHEETS OF PAPER CANNOT BE CONSIDERED TO BE BO OKS. 20 8.6 IN THE CASE OF CIT VS. PV KALYANSUNDARAM (294 I TR 49) IT HAS BEEN OBSERVED AS UNDER:- 'NOTINGS ON THE LOOSE PIECES O{PAPER ON THE BASIS O F WHICH THE INITIAL SUSPICION WITH REGARD TO THE UNDER VALUATION HAD BE EN RAISED WERE VAGUE AND COULD NOT BE RELIED UPON AS IT APPEARED THAT TH E TOTAL AREA WITH RESPECT TO THE SALE DEED AND THAT REFLECTED IN THE LOOSE SHEET WAS DISCREPANT. IT WAS ALSO OBSERVED THAT AS PER THE GU IDELINES FOR REGISTRATION THE FAIR VALUE FOR REGISTRATION ON THE RELEVANT DAT E WAS RS.244 TO RS.400 PER SQ. FT. AND THE SALE CONSIDERATION FOR RS.850/- PER SQ. FT. CLAIMED BY THE REVENUE WAS UNREALISTIC AND IGNORED THE GROUND SITUATION. 8.7 IN THE CASE OF CIT VS. GIRISH CHAUDHARY (2008) 296 ITR 619 (DELHI) DELHI HIGH COURT HAS HELD AS UNDER:- THAT THE REVENUE HAS TO PROVE THE UNDISCLOSED INCO ME BEYOND DOUBT. FURTHER IT WAS HELD THAT THE DOCUMENT SHOULD BE A S PEAKING ONE AND IT SHOULD CONTAIN NARRATION IN RESPECT OF VARIOUS FIGU RES NOTED THEREIN. OTHERWISE THE SAME SHOULD BE CONSIDERED AS DUMB DOC UMENT ON WHICH RELIANCE COULD NOT PLACED UPON. 9. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS A ND RESPECTFULLY FOLLOWING THE PRECEDENTS AS AFORESAID, WE DELETE THE ADDITION IN DISPUTE AND ALLOW THE GROUNDS RAISED BY THE ASSESSEE. 10. AS REGARDS THE ITA NO. 378/DEL/2012 (AY 2009-10 ) IS CONCERNED, FOLLOWING THE CONSISTENT VIEW AS TAKEN BY US IN ITA NO. 377/D EL/2012 (AY 2008-09) AS AFORESAID, THE ITA NO. 378/DEL/2012 (AY 2009-10) ALSO STANDS ALLOWED. 21 11. IN THE RESULT, BOTH THE ASSESSEE APPEALS STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2016. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 29/11/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES