M/s Shree Parshwanath Construction, Ujjain V. The ITO Circle-2(1), Ujjain

ITA 379/IND/2013

• Counselvise Citation: 37922714 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 28-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA; SRIKANT NAMDEO
• Assessee Lawyers: P M CHOUDHARY
• Keywords: Unexplained investment; Cost of acquisition; Initiation of penalty proceedings; Valuation report
• Section: 234B; 133(6); 69; 27; 54; 15; 92

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.379/IND/2013 A.Y. 2007-08 M/S. SHREE PARSHWANATH CONSTRUCTION, UJJAIN PAN ABGFS 0099 E :: APPELLANT VS ITO-2(1), UJJAIN :: RESPONDENT ASSESSEE BY SHRI P.M. CHOUDHARY REVENUE BY SHRI SRIKANT NAMDEO & SHRI R.A. VERMA DATE OF HEARING 29.4.2014 DATE OF PRONOUNCEMENT 18.7. 2014 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 28.3.2013 OF THE LD. FIRST APPELLATE AUTHORITY, UJJAIN. BROADLY FOLLOWING EFFECTIVE GROUNDS HAVE BEEN RAISED: 2 1. THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,18,75,000/- INVOKING THE PROVISIONS OF SECTION 69 OF THE I.T. ACT, 1961, ON THE BASIS OF ORAL STATEMENTS OF THE SELLERS IGNORING DOCUMENTARY EVIDENCE ASSUMING THAT THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE SELLER WAS ACTUALLY RECEIVED FROM THE ASSESSEE OVER AND ABOVE THE PRICE MENTIONED IN THE REGISTERED SALE DEED. 2. THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER ADOPTING THE LAND VALUE AT RS.11,50,000/- PER BIGHA, PURELY ON THE BASIS OF ASSUMPTION, SURMISES, RESULTING INTO THE IMPUGNED ADDITION, IGNORING THE VALUATION REPORT SUBMITTED BY THE ASSESSEE AND ALSO THE STAMP DUTY VALUATION MADE BY THE REGISTERING AUTHORITY. 3. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING CHARGING INTEREST U/S 234A & 234B OF THE ACT. 4. THE LD. CIT(A) ERRED IN LAW AND FACTS CONFIRMING THE ACTION OF INITIATING PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHRI P. M. CHOUDHARY, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI SRIKANT NAMDEO, LD. DR. THE CRUX OF ARGUMENTS ON BEHALF 3 OF THE ASSESSEE IS THAT THE ASSESSEE FIRM, CONSISTING OF FIVE PARTNERS, CAME INTO EXISTENCE ON 14.7.2006 TO CARRY BUSINESS OF TRADING OF PROPERTY, CONSTRUCTION OF PRO PERTY AND OTHER BUSINESS ACTIVITIES. THE ASSESSEE PURCHASED L AND IN GOYALA KHURD, UJJAIN FOR A CONSIDERATION OF RS.1,22,46,236/- INCLUDING REGISTRATION CHARGES AND FURTHER MADE EXPENDITURE ON SITE DEVELOPMENT AT RS.8,47,722/-. THE ASSESSEE EXECUTED FIVE REGISTRATIO N DEEDS IN RESPECT OF PURCHASE OF LAND, DECLARING TOTAL C OST AT RS.1,22,46,236/-. IT WAS CONTENDED BY THE LEARNED CO UNSEL FOR THE ASSESSEE THAT INFORMATION U/S 133(6) OF THE AC T WAS COLLECTED BY THE DEPARTMENT. THE ASSESSING OFFICER AS KED THE SELLERS TO PRODUCE THE BANK PASS BOOK, IN WHICH, SOME CASH WAS FOUND TO BE DEPOSITED. THE STATEMENTS OF THE SELLERS WERE RECORDED, AS PER WHICH, THEY TOLD THAT T HE CASH WAS RECEIVED FROM THE PURCHASER. MR. CHOUDHARY CONTENDED THAT ORAL STATEMENT HAS BEEN HEAVILY RELIED U PON 4 BY THE DEPARTMENT FOR MAKING THE ADDITION, MORE SPECIFICALLY WHEN THERE IS NO RELATION OF THE ASSESSEE WITH THE MONEY FOUND DEPOSITED IN CASH IN THE ACCOUNT OF T HE SELLER. THE LEARNED COUNSEL TOOK US TO VARIOUS PAGES O F THE PAPER BOOK. IT WAS EMPHATICALLY ARGUED THAT THOUGH THE SALE WAS MADE ON 27.7.2006, THE CASH WAS DEPOSITED THREE MONTHS THEREAFTER, THEREFORE, THE CASH HAS NO NEXUS WI TH THE PURCHASE OF THE PROPERTY. IT WAS POINTED OUT THAT SELLERS FILED THE RETURN IN DECEMBER, 2009 WHEN THEY WERE I N DIFFICULTY AND THE AFFIDAVITS OF THE SELLERS ARE DATED 31.12.2009. QUESTION WAS RAISED WHETHER SUCH ORAL STATEMENTS ARE ACCEPTABLE AS EVIDENCE AGAINST THE ASSESSEE AS BURDEN HAS NOT BEEN DISCHARGED BY THE DEPARTMENT. TH E LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO VARIOUS PAGES/QUESTIONS OF THE STATEMENT. IT WAS ARGUED THAT THE AGREEMENT TO SALE IS ON RECORD, THEREFORE, HO W IT CAN BE PRESUMED THAT THE PROPERTY WAS SOLD AT A DIFFERE NT 5 RATE OTHER THAN SHOWN IN THE REGISTERED DOCUMENTS. IT WAS PLEADED THAT THE ASSESSING OFFICER NEVER ASKED THE SE LLERS TO EXPLAIN THE MONEY WHICH WAS FOUND DEPOSITED IN THE IR ACCOUNTS. IN NUTSHELL, IT WAS CONTENDED THAT THE QUALITY OF MATERIAL FOR MAKING THE ADDITION IS NOT ENOUGH TO MAKE THE ADDITION EXCEPT THE STATEMENTS OF THE SELLERS. IT WAS EXPLAINED THAT THE SELLERS OF THE LAND THEMSELVES PURC HASED LAND AND ALLEGED THAT THE CASH WAS TAKEN FROM THE ASSESSEE. IT WAS POINTED OUT THAT THE SELLERS OF THE L AND NEVER REPLIED TO THE RELEVANT QUESTIONS, ASKED BY THE DEPARTMENT, BY SAYING DONT REMEMBER SIMPLY TO SAV E THEIR SKIN. IT WAS STRONGLY CONTENDED THAT WHEN CORNE RED BY THE DEPARTMENT, THE SELLERS OF THE LAND EVEN WENT TO THE EXTENT THAT THE AFFIDAVITS FILED BY THEM ARE WRONG WHER EAS ADDITION HAS BEEN MADE BY THE DEPARTMENT ON THE BASIS OF THE SAME AFFIDAVITS OF THE SELLERS, MEANING THEREBY, UNRELIABLE WITNESS HAS BEEN HEAVILY RELIED UPON. IT WAS 6 EXPLAINED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE STATEMENT/REPLY/AFFIDAVIT OF THE ASSESSEE IS ON RECORD, DENYING THE ALLEGATIONS MADE AGAINST THE ASSESSEE IN THE STATEMENTS OF THE SELLERS. THE LEARNED COUNSEL FOR TH E ASSESSEE ALSO RELIED UPON THE DECISIONS IN 323 ITR 58 8 (P&H), 32 ITD 494 (HYD), (1970) TLJ 20, 171 TAXMAN 1 98 (DEL), 71 DTR(JP-TRIBUNAL) 33, 282 ITR 259, 131 ITR 259 (SC), 82 ITR 259 (MAD), WHICH WAS AFFIRMED BY HON'BL E APEX COURT IN 294 ITR 49 (SC), 196 TAXMAN 415 (DEL) AND 250 ITR 484 (P&H). IT WAS PLEADED THAT THE SELLERS OF THE LAND ARE THEMSELVES TRADING IN LAND. ON THE OTHER HAND, THE LD. DR DEFENDED THE ADDITION BY SUBMITTING THAT THE ASSESSEE IS NOT A DEALER OF THE LAND AS HAS BEEN CLAIMED BY THE ASSESSEE. IT WAS POINTED OUT THAT VALUATION HAS BEEN DONE AT THE HIGHER RATE BY THE REGISTERING AUTHORITY AN D THE SELLER OF THE LAND IS 80 YEARS OLD. OUR ATTENTION WAS ALSO INVITED TO PAGE 46 OF THE PAPER BOOK. IN REPLY, THE L EARNED 7 COUNSEL FOR THE ASSESSEE CONTENDED THAT NO EVIDENCE H AS BEEN PRODUCED BY THE REVENUE TO ESTABLISH THAT CASH W AS ACTUALLY PAID BY THE ASSESSEE TO THE SELLERS OF THE LAND . 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE FIRM WAS CONSTITUTED BY THE REGISTERED PARTNERSHIP DEED DATED 14.7.2006. THE ASSESSEE IS A BUILDER/DEVELOPER OF LAND, PURCHASED LAND AT GOYALA KHURD, UJJAIN. THE ASSESSEE DECLARED NIL INCOME IN ITS RETURN, FILED ON 13.9.2007. THE ASSESSEE FIRM PRODUC ED FIVE REGISTERED SALE DEEDS OF PURCHASING OF LAND. THE ASSE SSING OFFICER CALLED INFORMATION U/S 133(6) OF THE ACT FROM THE SELLERS OF THE LAND AND RECORDED THEIR STATEMENTS U/S 131 OF THE ACT. AS PER THE REVENUE, THE SELLERS OF THE LAND CONFIRMED THAT THEY SOLD THE LAND TO THE ASSESSEE @RS.11,50,000/- PER BIGHA. ON THE BASIS OF THE STATEME NTS OF THE SELLERS, THE LD. ASSESSING OFFICER CAME TO TH E 8 CONCLUSION THAT THE ACTUAL SALE CONSIDERATION WAS RS.3,73,75,000/- AGAINST RS.1,05,00,000/-, SHOWN BY T HE ASSESSEE IN ITS BOOKS. THE LD. ASSESSING OFFICER ADDE D RS.2,18,75,000/- TO THE TAXABLE INCOME OF THE ASSESSE E U/S 69 OF THE ACT, TREATING THE AMOUNT AS UNEXPLAINED INVESTMENT VIDE ORDER DATED 31.12.2009. 2.2 THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A ) WHEREIN VIDE ORDER DATED 28.3.2013, THE ADDITION, MADE BY THE LD. ASSESSING OFFICER, WAS AFFIRMED. THE AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. NOW QUESTIO N ARISES, (A) WHETHER THE ORAL STATEMENT, TENDERED BY THE SELLERS OF THE LAND, IS SUFFICIENT TO MAKE THE ADDIT ION AND BE READ AS EVIDENCE AGAINST THE ASSESSEE (B) WHETHER ENOUGH MATERIAL HAS BEEN COLLECTED BY THE DEPARTMENT FOR MAKING THE ADDITION AND ALSO WHETHER BURDEN HAS BEEN DISCHARGED BY THE DEPARTMENT, MORE SPECIALLY WHEN THE CASH WAS FOUND DEPOSITED IN THE ACCOUNTS OF THE SELLERS OF TH E LAND. 9 2.3 NOW, WE SHALL DEAL WITH THESE QUESTIONS. SO FAR AS ACCEPTABILITY OF ORAL EVIDENCE IS CONCERNED, UNDER THE AFOREMENTIONED FACTS, UNDISPUTED SITUATION IS THAT THE CASH WAS FOUND DEPOSITED IN THE ACCOUNTS OF THE SELLERS O F THE LAND. WHEN CORNERED BY THE DEPARTMENT REGARDING DEPOS IT OF THE CASH, THE SELLERS OF THE LAND TENDERED THAT THE CASH WAS RECEIVED FROM THE ASSESSEE. AT THIS STAGE, IT IS N OT CLEAR TO WHOM SUCH CASH ACTUALLY BELONGS, MEANING THEREBY, TH E SELLERS AS WELL AS THE PURCHASER ARE UNDER SUSPICION. THEREFORE, IT CAN BE SAID ONE OF THEM IS TELLING LIE OR REAL TRUTH IS NOT OOZING OUT FROM BOTH SIDES, CONSEQUENTL Y, BOTH ARE ALLEGED ACCUSED AT THIS STAGE. SECTION 27 OF THE EVIDENCE ACT CLEARLY STATES THAT STATEMENT OF CO-ACCUSED CANNOT BE READ IN EVIDENCE AGAINST ANOTHER CO-ACCUSED UNLESS AND UNTIL IT IS CORROBORATED WITH INDEPENDENT MATERIAL. THE ADDITION HAS BEEN MADE BY THE DEPARTMENT ON THE BASIS OF STATEMENTS OF THE SELLERS TO THE EFFE CT THAT 10 UNDERHAND CASH WAS RECEIVED FROM THE ASSESSEE. ON THE OTHER HAND, THE PURCHASER OF THE LAND ALSO FILED REPLY/AFFIDAVIT EXPLAINING THAT NO UNDERHAND CASH WAS GIVEN TO THE SELLERS EXCEPT THE AMOUNT WHICH HAS BEEN MENTIONED IN THE REGISTERED SALE DEEDS. THERE WAS COU NTER CLAIMS/EXPLANATIONS FROM BOTH SIDES. DURING HEARING, T HE LEARNED COUNSEL FOR THE ASSESSEE EXPLAINED THAT THE ASSESSEE FIRM CAME INTO EXISTENCE ONLY ON 14.7.2006 WHEREAS THE MONEY WAS FOUND DEPOSITED IN THE ACCOUNTS OF THE SELLERS PRIOR TO THIS DATE AND EVEN IN THE YEAR 2 005, WHICH RAISES A SUSPICION, MORE SPECIFICALLY WHEN NO AGREEMENT TO SALE HAS BEEN BROUGHT ON RECORD BY THE REVENUE EVIDENCING THAT THE TRANSACTION WAS DONE AT DIFFERENT AMOUNT WHICH HAS BEEN SHOWN IN THE REGISTE RED SALE DEED. EVEN NO STATEMENT HAS BEEN RECORDED FROM TH E WITNESSES TO THE SALE DEED/TRANSACTION WHICH CLEARLY WEAKENS THE CASE OF THE DEPARTMENT. THE FIRST DEPOSIT 11 FOUND IN THE ACCOUNT OF THE SELLERS IS OF DECEMBER 2005 THEN ON 25.8.2006 AND THEREAFTER ON 14.10.2006. IT IS FURTHER NOTED THAT AFFIDAVITS OF SELLERS ARE DATED 31.12 .2009 WHICH IS CLEARLY AN AFTERTHOUGHT, MORE SPECIFICALLY WHE N THE DATE OF THE SALE OF THE LAND IS 27.7.2006. IT IS ALSO N OTED THAT THERE ARE ALSO DEPOSITS THREE MONTHS AFTERWARDS FRO M THE DATE OF THE REGISTRATION WHICH CLEARLY FALSIFIES TH E CLAIM OF THE SELLERS BECAUSE NORMALLY, NO MONEY IS TRANSACTED AFTER THE REGISTRATION OF THE SALE DEED EXCEPT THE CHE QUE WHICH HAS BEEN SHOWN IN THE REGISTERED DOCUMENTS. WE HAVE ALSO PERUSED THE SALE DEEDS DATED 24.8.2006, IN WHICH, RS.21 LACS HAS BEEN SHOWN AS SALE PRICE ALONG WI TH STAMP DUTY ETC. WORTH RS.2,20,000/-. AT PAGE 48 (PAPER BOOK), THERE IS A DESCRIPTION OF THE AMOUNT, GIVEN TO THE SELLERS, IN WHICH, CASH OF RS.3 LACS, GIVEN TO THE SE LLERS, HAS BEEN SPECIFICALLY MENTIONED. THE REGISTERED SALE DEED S ARE DULY SIGNED BY THE PARTIES AND WITNESSES. IT IS NOTEW ORTHY 12 THAT AT PAGE 52 OF THE PAPER BOOK, IT HAS BEEN SPECIFICAL LY MENTIONED THAT TOTAL SALE PRICE IS RS.21 LACS, WHICH HAS BEEN RECEIVED. THE RELEVANT PORTION OF THE STATEMENT IS REPRODUCED HEREUNDER: ;G FD FODZSRK O DZSRK DS E/; GQ, VUQCA/K DS VUQLKJ FODZSRK US VIUH MIJKSDR HKWFE VJKTH LOSZ DZEKAD 53@4 JDCK 1&460 GS0 YXKUH 18&90 ISLS DH FLFKR XZKE XKS;YK[KQNZ I- G- UA- 35 IJXUK O FTYK MTTSU ESA GSA FTLDH PRQZLHEK VKXS CRK;S VUQLKJ GS DKS FCY ,OT :I; S 21]00]000&00 V{KJH BDDHL YK[K :I;S 21]00]000&00 V{KJH BDDHL YK[K :I;S 21]00]000&00 V{KJH BDDHL YK[K :I;S 21]00]000&00 V{KJH BDDHL YK[K :I;S ESA DZSRK ESLLZ JH IKOZUKFK DULVDKU 87@2 FODZE EKXZ QZHXAT MTTSU }KJK HKKXHNK J EQDSKDQEKJ FIRK GHJKYKYTH JKDK FU- 18 U;KIQJK MTTSU DKS FODZ; DRBZ DJ FN;K GSA RFKK MIJKSDR DZSRK DS FGR ESA FUEUKUQLKJ FODZ;& I= DK LAIKNU DJRK GWA FD & 1 11 1- -- - ;G FD FODZSRK US FODZ; EWY; :I;S 21]00]000&00 V{KJH BDDHL ;G FD FODZSRK US FODZ; EWY; :I;S 21]00]000&00 V{KJH BDDHL ;G FD FODZSRK US FODZ; EWY; :I;S 21]00]000&00 V{KJH BDDHL ;G FD FODZSRK US FODZ; EWY; :I;S 21]00]000&00 V{KJH BDDHL YK[K :I;S DSZRK LS IWOZ ESA GH MIJ O.KZU VUQLKJ IZK IR DJ FY;K GS YK[K :I;S DSZRK LS IWOZ ESA GH MIJ O.KZU VUQLKJ IZK IR DJ FY;K GS YK[K :I;S DSZRK LS IWOZ ESA GH MIJ O.KZU VUQLKJ IZK IR DJ FY;K GS YK[K :I;S DSZRK LS IWOZ ESA GH MIJ O.KZU VUQLKJ IZK IR DJ FY;K GS VC FODZ; EWY; ISVS DKSBZ JDE YSUK 'KS'K UGHA GS HKF O'; ESA FODZ; VC FODZ; EWY; ISVS DKSBZ JDE YSUK 'KS'K UGHA GS HKF O'; ESA FODZ; VC FODZ; EWY; ISVS DKSBZ JDE YSUK 'KS'K UGHA GS HKF O'; ESA FODZ; VC FODZ; EWY; ISVS DKSBZ JDE YSUK 'KS'K UGHA GS HKF O'; ESA FODZ; EWY; DH DE IZKFIR ;K VIZKFI EWY; DH DE IZKFIR ;K VIZKFI EWY; DH DE IZKFIR ;K VIZKFI EWY; DH DE IZKFIR ;K VIZKFIR DS CKCR MTZ FD;K RKS O G XYR R DS CKCR MTZ FD;K RKS OG XYR R DS CKCR MTZ FD;K RKS OG XYR R DS CKCR MTZ FD;K RKS OG XYR EKUK TKOSXKA EKUK TKOSXKA EKUK TKOSXKA EKUK TKOSXKA 2.4 IF THE AFOREMENTIONED CONTENTS OF THE REGISTERED SALE DEED IS ANALYSED, IT CLEARLY STATES THAT AS PER THE EACH SALE DEED, THE SALE PRICE OF THE LAND IS RS.21 LACS ONLY AS HAS BEEN MENTIONED IN THE EARLIER PARTS OF THE SALE DEEDS AND FURTHER THIS IS THE ONLY AGREED SALE PRICE AND NOTHING HAS 13 REMAINED UNPAID, MEANING THEREBY, THE AGREED SALE PRICE IS THE AMOUNT WHICH HAS BEEN MENTIONED IN THE REGISTERE D DOCUMENTS AND SECONDLY, ON THE DATE OF REGISTRATION, NOTHING REMAINED UNPAID, THEREFORE, THE ASSESSEE IS NO T OBLIGED TO EXPLAIN THE CASH FOUND DEPOSITED IN THE ACC OUNTS OF THE SELLERS. THUS, THE STATEMENT TENDERED BY THE SELLERS LOSES ITS CREDIBILITY WHICH IS THE BASIS OF THE ADDI TION. 2.5 DURING HEARING, THE LD. DR ALSO POINTED OUT THAT E VEN AFTER THE REGISTRATION OF THE SALE DEEDS, SOME AMOUNT W AS FOUND DEPOSITED IN THE ACCOUNTS OF THE SELLERS, WHIC H IS UNBELIEVABLE AND BEYOND THE REACH OF HUMAN PROBABILIT IES. IN THESE CIRCUMSTANCES, THE ASSESSEE IS NOT EXPECTED TO EXPLAIN THE CASH WHICH WAS FOUND DEPOSITED/CREDITED IN THE ACCOUNT OF ANOTHER PERSON, HERE THE SELLERS. EVEN OTHERWISE, THERE ARE TWO SITUATIONS, ONE WHERE THE AM OUNT IS DULY MENTIONED IN THE REGISTERED DOCUMENTS WHICH IS DULY SIGNED/VERIFIED BY THE PURCHASER AS WELL AS SELLE RS AND 14 THE WITNESSES AND FURTHER ACKNOWLEDGED BY THE REGISTE RING AUTHORITY AND SECOND IS THE SITUATION WHICH IS BASED UP ON THE ORAL STATEMENT, FOR WHICH, THERE IS NO EVIDENCE, IN VIEW OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT PRESUMPTION CANNOT TAKE THE SHAPE OF EVIDENCE, HOWEVER STRONG IT MAY BE. THE ASSESSING OFFICER HAS NOT BROU GHT ON ANY EVIDENCE ON RECORD INTERLINKING THE RELATION OF T HE CASH DEPOSITED IN THE ACCOUNTS OF THE SELLERS THAT IT ACTUAL LY BELONGS TO THE PURCHASER. THE ADDITION, SO MADE, ON PRESUMPTION BASIS CANNOT STAND ON ITS LEGS. IT IS ALSO NOTEWORTHY THAT EVEN WHEN THE SELLERS FOUND THEMSEL VES CORNERED BY THE DEPARTMENT, THEY SAID THAT THEIR OWN AFFIDAVITS ARE WRONG. IN SUCH A SITUATION, THE STATEMENTS , TENDERED BY THE SELLERS, ARE CLEARLY UNDER THE SHADE OF DARK CLOUDS AND CANNOT BE APPRECIATED AS THE SOLE BASIS FOR MAKING THE ADDITION IN THE HANDS OF ANOTHER PERSON, HER E THE ASSESSEE. 15 2.6 SO FAR AS TO THE QUESTION WHETHER BURDEN HAS BEEN DISCHARGED BY THE DEPARTMENT FOR ESTABLISHING THE NEXU S WITH THE CASH FOUND DEPOSITED IN THE ACCOUNT OF ANOTHE R PERSON, HERE THE SELLER, IS CONCERNED, WE NOTE THAT NEITHER ANY AGREEMENT TO SALE HAS BEEN BROUGHT ON RECORD NOR TH E WITNESSES HAVE BEEN EXAMINED BY THE ASSESSING OFFICER . WHILE DELIBERATING UPON THE FIRST QUESTION, IT IS PR OVED BEYOND DOUBT THAT ADDITION HAS BEEN MADE MERELY ON THE BASIS OF STATEMENTS OF THE SELLERS. EVEN IN THE REGIS TERED SALE DEEDS, IT HAS BEEN DULY ACKNOWLEDGED BY THE SELLE RS THAT THEY ACTUALLY RECEIVED THE MONEY AS HAS BEEN MENTIONED IN THE DOCUMENTS AND NOTHING REMAINED TO BE PAID THEREAFTER, THEREFORE, THE NEXUS HAS NOT BEEN ESTABLISHED THAT THE CASH FOUND DEPOSITED IN THE ACCOUN TS OF THE SELLERS ACTUALLY BELONG TO THE ASSESSEE, THUS, FROM THIS ANGLE ALSO, THE ASSESSEE IS HAVING A GOOD CASE IN IT S FAVOUR. 16 2.7 WE ARE ALSO EXPECTED TO EXAMINE THE REPLY OF THE ASSESSEE (PAGES 14 TO 23 OF THE PAPER BOOK), ADDRESSED TO THE ITO, IN RESPONSE TO NOTICES, ISSUED TO THE ASSES SEE (PAGE 12 & 13 OF PAPER BOOK), IN WHICH, IT HAS BEEN SPECIFICALLY EXPLAINED THAT THE ASSESSEE HAS ALREADY DISCLOSED THE AMOUNTS INVESTED IN PURCHASE OF THE SAI D LAND INCLUDING THE COST OF ACQUISITION AT RS.1,22,46,2 36/- AND THE ALLEGATION, LEVELLED BY THE SELLERS, IS TOTALLY WRONG AND BASELESS. THE ASSESSEE ALSO FILED AFFIDAVIT IN SUPPOR T OF ITS REPLY, DULY SWORN BY ONE OF ITS PARTNERS NAMELY, SHRI MUKESH RANKA (PAGE 16 OF THE PAPER BOOK). IN THE SAID REPLY, IT HAS BEEN SPECIFICALLY EXPLAINED THAT THE RATE QUOTED BY THE ASSESSING OFFICER AT RS.11.50 LACS PER BIGHA I S NEITHER COMMENSURATE WITH THE MARKET PRICE OR WITH TH E STAMP DUTY VALUATION FIXED FOR THE SAID AREA. IN SUPPORT OF THIS REPLY, THE ASSESSEE ALSO ENCLOSED THE REPORT OF THE REGISTERED VALUER DETERMINING THE VALUE OF THE LAND WH ICH 17 WAS FOUND IN CONFORMITY WITH THE VALUE STATED IN THE S ALE DEEDS AND PAID BY THE PURCHASER. IT HAS BEEN ALSO CLAIME D THAT THE STATEMENTS TENDERED AT THE BACK OF THE ASSESSE E IS NOT SACROSANCT, MORE SPECIFICALLY WHEN THE AMOUNT MENTIONED IN THE REGISTERED SALE DEEDS WAS DULY CONFI RMED BEFORE THE REGISTERING AUTHORITIES. AS PER THE PROVI SION OF SECTION 54 OF THE TRANSFER OF PROPERTY ACT, ANY TANGIB LE IMMOVABLE PROPERTY FOR AN AMOUNT EXCEEDING RS.100 CAN BE TRANSACTED ONLY THROUGH A REGISTERED INSTRUMENT AND SINCE THE REGISTERED DOCUMENT IS DULY SIGNED BY THE PARTIES I.E. SELLERS AND THE PURCHASERS AND DULY WITNESSED BY INDEPENDENT PERSONS, THAT TOO, IN THE PRESENCE OF REGISTERING AUTHORITIES, THEREFORE, ORAL STATEMENT LO SES ITS CREDIBILITY, MORE SPECIFICALLY WHEN AT PAGES 2 & 3 OF EACH SALE DEED, THERE IS A RECEIPT/MENTIONING OF CONSIDERAT ION AMOUNT AGREED BETWEEN THE PARTIES. WHEN THE DOCUMENTS ARE REDUCED IN WRITING THEN PROVISION OF SECTION 91 & 92 OF 18 THE INDIAN EVIDENCE ACT EXPRESSLY BARS/PROHIBITS ACCEPTANCE OF ORAL EVIDENCE AGAINST SUCH DOCUMENTS, MORE SPECIFICALLY WHEN THE REGISTERED DOCUMENTS ARE DULY ADMITTED TO BE CORRECT BY BOTH THE PARTIES. THE ONLY ADMISSIBLE EVIDENCE REGARDING THE TERMS OF SUCH CONTRACT/AGREEMENT, AVAILABLE BEFORE US, IS THE REGISTER ED SALE DEED ITSELF, THEREFORE, THE ORAL EVIDENCE LOSES ITS CREDIBILITY IN VIEW OF SECTION 92 OF THE INDIAN EVID ENCE ACT. SECTION 54 OF THE TRANSFER OF THE PROPERTY ACT AND SE CTION 91 OF THE INDIAN EVIDENCE ACT CONJOINTLY SAYS THAT TH E PROOF ABOUT TERMS OF SUCH CONTRACT CAN ONLY BE ADDUCED BY ONL Y PLACING THE DOCUMENTS IN EVIDENCE AND NO OTHER EVIDEN CE EXCEPT THE DOCUMENT ITSELF IS ADMISSIBLE. 2.8 NOW, WE SHALL DEAL WITH THE ISSUE WITH THE HELP OF JUDICIAL PRONOUNCEMENTS, FOR WHICH, RATIO LAID DOWN BY HON'BLE ORISSA HIGH COURT IN THE CASE OF UMAKANTA DAS VS . PRADEEP KUMAR ROY (AIR) 1986 (ORI) 196 AND THE CASE O F 19 RAMCHANDRA BIHARILAL VS. MATHUR MOHAN NAYAK (AIR) 1964 (ORI) 239 THROW SOME LIGHT. IN THESE CASES, IT IS S ETTLED THAT ONCE THE EXECUTION OF THE SALE DEED IS PROVED, THE R ECITALS REGARDING PAYMENT OF CONSIDERATION ARE PRIMA FACIE PROOF OF IT AGAINST THE EXECUTANTS OR PERSONS CLAIMED UNDER IT. RELIANCE CAN ALSO BE PLACED IN THE CASES OF SUBRAMANIYAM VS. BHAVNA NARAYANA RAO (AIR) 1954 (ANDH) 17, NAGAIYA GOWDO VS. CHEGANNA GOWDO (AIR) 1957 (A.P.) 264, RAGHVENDRA RAO VS. VENKATASWAMI NAICKEN (AIR) 1930 (MAD) 251, BHAGWAN SINGH VS. BISHAMBARNATH (AIR) 1940 (PC) 114. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. P.V. KALYANSUNDARAM (2006) 282 ITR 259 (MAD) CLEARLY HELD THAT BURDEN IS ON THE REVENUE TO PROVE THAT PRIC E HAD BEEN UNDERSTATED. NEITHER ANY EFFECTIVE INQUIRY HAS BEE N MADE BY THE ASSESSING OFFICER NOR ANY EVIDENCE HAS BEE N BROUGHT ON RECORD EXCEPT CONFLICTING STATEMENTS OF S ELLER. IT WAS HELD THAT THE AMOUNT IS NOT ASSESSABLE AS UNDISCLOSED 20 INCOME. IN A VERY SIGNIFICANT CASE FROM HON'BLE P & H HIGH COURT IN PARAMJEET SINGH VS. ITO (2010) 323 ITR 588, THERE WAS AN ALLEGATION OF SALE OF LAND FROM UNDISCLOSED SOURCE S. SALE WAS MADE BY REGISTERED SALE DEED. THERE WAS ORAL EVIDENCE BY VENDORS THAT THEY HAD NOT RECEIVED ANY CONSIDERATION. IT WAS HELD THAT ORAL EVIDENCE IS NOT CONCLUSIVE AND THE AMOUNT SHOWN IN THE SALE DEED TO T HE INCOME OF THE ASSESSEE IS JUSTIFIED. THE RELEVANT POR TION OF THE ORDER IS REPRODUCED HEREUNDER: IT IS WELL KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENTS CONTAINS ALL THE TERM S AND CONDITIONS. SECTIONS 91 & 92 OF INDIAN EVIDENCE ACT, 1872 INCORPORATE THE PRINCIPLE. THE TRIBUNAL HELD THAT THE OSTENSIBLE SALE CONSIDERATION OF THE LAND DISCLOSED IN THE REGISTER ED SALE DEED DATED SEPTEMBER 24, 2002 DESERVED TO BE ADDED TO THE INCOME OF THE ASSESSEE. THE TRIBUNAL DISREGARDED THE STATEMENT MADE ON AFFIDAVIT BY THE VENDORS WHO WERE THE UNCLES OF THE ASSESSEE. THEY HAD STATED THAT NO SALE CONSIDERATION HAD PASSED HANDS AND THEY HAD RELINQUISHED THEIR SHARE IN THE LANDED PROPERTY. THE OBJECT OF EXECUTING THE SALE DEED WAS ONLY TO HANDOVER LANDED PROPERTY TO THE ASSESSEE. ON APPEAL TO THE HIGH COURT: 21 HELD, DISMISSING THE APPEAL THAT THE OSTENSIBLE SAL E CONSIDERATION DISCLOSED IN THE SALE DEED DATED SEPTEMBER 24, 2002, HAD TO BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THEREFORE, THE ORDER OF THE TRIBUNAL DID NOT SUFFER FROM ANY LEGAL INFIRMITY. THE AMOUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY THE VENDORS AND DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. 2.9 THE SUB & SUBSTANCE, OOZING OUT FROM THESE JUDIC IAL PRONOUNCEMENTS, IS THAT ORAL EVIDENCE IS NOT CONCLUSI VE FOR MAKING THE ADDITION AND THE VALUE MENTIONED IN THE REGISTERED DOCUMENTS IS HAVING MORE EVIDENTIARY VALUE. IN ANOTHER CASE OF CIT VS. SATENDER KUMAR, 250 ITR 484 (P&H) HELD THAT SINCE THERE WAS NO MATERIAL EVIDENCE TO ESTABLISH THAT ASSESSEE MADE INVESTMENT OVER AND ABOVE THAT RECORDED IN THE SALE DEED, THE TRIBUNAL WAS JUSTIF IED IN DELETING THE ADDITION MADE U/S 69 OF THE ACT. THE HO N'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DAYACHAND JAIN VAIDYA, 98 ITR 280 HELD THAT ONUS SHIFTS TO REVENU E IF THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE. IN TH E CASE OF CIT VS. N. SWAMI (2000) 241 ITR 363 (MAD), IT WAS 22 HELD THAT THE BURDEN OF SHOWING THAT THE ASSESSEE HAD UNDISCLOSED INCOME IS ON THE REVENUE. THE BURDEN CAN NOT BE SAID TO BE DISCHARGED BY MERELY REFERRING TO THE STATEMENT GIVEN BY A THIRD PARTY. IDENTICAL RATIO WAS LAID DOWN IN CIT VS. P.V. KALYANSUNDARAM, 164 TAXMAN 78 AND 294 ITR 49 (SC). THE HON'BLE RAJASTHAN HIGH COURT IN SMT. AMAR KUMAR SURANA VS. CIT, 89 TAXMAN 544 LAID DOWN THE RATIO THAT BURDEN IN ON THE REVENUE TO PROVE THAT REAL INVESTMENT EXCEEDED THE INVESTMENT SHOWN IN ACCOUNT BOOKS OF THE ASSESSEE. THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. DR. R.L. NARANG (ITA NO .981 & 982/CHD/2005, ORDER DATED 17.3.2008), IDENTICALLY H ELD THAT ORDINARILY, NO ADDITION IS WARRANTED ON THE BASIS O F STATEMENTS OF THIRD PARTY UNLESS THERE IS A CORROBORATI VE MATERIAL BY FOLLOWING THE DECISION IN THE CASE OF HEER ALAL RAMDAYAL VS. CIT (1980) 122 ITR 461 (P&H) WHEREIN IT WAS HELD THAT REGISTERED SALE DEED IS CONCLUSIVE EVIDENC E OF SALE 23 AS WELL AS SALE CONSIDERATION. IDENTICAL RATIO WAS LAID DOW N IN CIT VS. SMT. R.R. SOOD; 161 ITR 92 (BOM), RAMJIL AL TIWARI VS. VIJAY KUMAR & OTHERS (1970) JLJ (20), SUNI TA DHADA VS. DCIT; 148 TTJ (JP) 719, JAWAHAR BHAI ATMARAM HATHIWALA VS. ITO (2010) 128 TTJ (AHD) (UO) 36, ACIT V S. PRABHAT OIL MILLS; 52 TTJ (AHD) 533, CIT VS. ANUPAM KAPOOR; 299 ITR 179 (P&H). SHRI R.A. VERMA, LD. SR. D R, DURING CLARIFICATION, RELIED UPON THE DECISION FROM HON'BLE KERLA HIGH COURT IN CIT VS. G. ANAND RAJAN, 228 ITR 6 64 (KER) BY SUBMITTING THAT THE ADDITION WAS RIGHTLY MADE. IN REPLY, THE LEARNED COUNSEL FOR THE ASSESSEE CONTRADIC TED THE ASSERTION MADE BY THE LD. SR. DR BY SUBMITTING THAT TH E FACTS OF THIS CASE ARE NOT IDENTICAL. WE HAVE PERUSED T HIS ORDER WHEREIN THE ASSESSEE WAS A WHOLESALE DEALER IN LIQU OR SHOWED OPENING BALANCE OF RS.18,962/- AS ON 1.4.1980 AND SHOWED SALES OF RS.2,00,361/-. THE ASSESSING OFF ICER TAKING INTO CONSIDERATION THE BALANCE AND PROFIT MADE 24 ADDITION OF RS.1,72,761/- U/S 69 OF THE ACT. IT WAS H ELD THAT SINCE THERE WAS NO PURCHASE BETWEEN 1 ST APRIL TO 6 TH APRIL 1980, THERE COULD BE NO SALE. HOWEVER, THE ISS UE AND THE FACTS BEFORE US ARE ENTIRELY DIFFERENT. ANOTHER D ECISION RELIED UPON WAS BELA JUNEJA VS. CIT; 339 ITR 144 (DEL) WHEREIN ONE AGREEMENT WAS FOUND DURING SEARCH PROCEEDINGS THAT A PROPERTY WAS PURCHASED BY THE ASSESS EE FOR A CONSIDERATION OF RS.31 LACS WHICH WAS PAID IN INSTALMENTS WHEREAS THE SALE DEED WAS REGISTERED FOR RS .8 LACS ONLY AND RS.45,600/- WERE PAID TOWARDS COST OF STAM P PAPERS, THUS, IT WAS TREATED AS UNEXPLAINED INVESTMENT BY THE DEPARTMENT AND THE TRIBUNAL UPHELD THE ADDITION ON THE BASIS OF FACTUAL FINDING RECORDED BY THE REVENUE AUTHORITIES WHEREAS THE FACTS IN THE PRESENT APPEAL ARE ENTIRELY DIFFERENT, THEREFORE, THIS JUDICIAL PRONOUN CEMENT ALSO MAY NOT HELP THE REVENUE. ANOTHER DECISION RELI ED ON BY MR. VERMA IS UNIT CONSTRUCTION CO. LTD. VS. JCIT; 260 25 ITR 189 (CAL), IN THAT CASE ALSO, THE ADDITION U/S 69 & 69B OF THE ACT WAS MADE FOR COST OF CONSTRUCTION WHEREIN FACTS ARE DIFFERENT. 2.10 WE FURTHER NOTE THAT VIDE LETTER DATED 23 RD OCTOBER 2009 (PAGE 235 OF THE PAPER BOOK) THAT SHRI PRATAP SING H ANJANA, ADDRESSED TO THE ITO, IN RESPONSE TO INFORMATI ON SOUGHT U/S 133(6)(REFERENCE LETTER NO.ITO-2(1)/UJN/ 9- 10/3418 DATED 13.10.2009), DULY FURNISHED THE PASSBOO K (THE COPY OF WHICH IS ALSO AVAILABLE IN THE PAPER BOOK AT PAGE 246 TO 249) FOR THE PERIOD FROM 1.4.2005 TO 31. 3.2007 HIMSELF SAID THAT HE SOLD AGRICULTURAL LAND TO THE ASSESS EE FOR RS.21 LACS. LIKEWISE, SHRI BAHADUR SINGH ALSO THR OUGH HIS LETTER (PAGE 250 OF THE PAPER BOOK) CONFIRMED THAT HE SOLD THE AGRICULTURAL LAND TO THE ASSESSEE FOR RS.21 LAC S ALONG WITH HIS BANK PASSBOOK. LIKEWISE, SHRI VIKRAM SI NGH CONFIRMED OF SELLING LAND TO THE ASSESSEE FOR RS.21 L ACS (PAGE 257 TO 262 OF THE PAPER BOOK). SHRI BALU SINGH, VIDE 26 LETTER DATED 23.10.2009, IDENTICALLY, CONFIRMED OF SE LLING LAND FOR RS.21 LACS, WHICH WAS IN THE JOINT NAME WITH H IS MOTHER SMT. LEELA BAI (PAGE 262 TO 267 OF THE PAPER BOO K). SHRI MOTIRAM THROUGH IDENTICAL LETTER ALSO CONFIRMED AB OUT THE SALE DEED REGISTERED WITH THE OFFICE OF REGISTRAR AND COPY OF THE PASSBOOK (PAGES 268 TO 272 OF THE PAPER BO OK). SMT. LEELA BAI (PAGES 273 TO 276 OF THE PAPER BOOK) ALON G WITH BANK PASSBOOK CONFIRMED THAT THEY SOLD AN AGRICULTURAL LAND WHICH WAS IN JOINT NAME OF HIS SON BAL U SINGH FOR RS.21 LACS TO THE ASSESSEE. THE BANK PASSBOO KS OF THESE PERSONS HAVE DULY BEEN ANNEXED IN THE PAPER BOOK. IN THE REGISTERED SALE DEEDS, IDENTICAL AMOUNTS HAVE BEEN DULY MENTIONED ALONG WITH THE STAMP DUTY/OTHER DUTIES AND ALL THE SALE DEEDS ARE DULY SIGNED BY THE PAR TIES TO THE SALE DEEDS AND THE WITNESSES IN THE PRESENCE O F REGISTERING AUTHORITIES. HERE AT THIS STAGE, THERE ARE TWO VERSIONS, ONE IS AUTHENTICATED BY THE DOCUMENTARY 27 EVIDENCE/AFFIDAVITS AND ANOTHER VERSION IS MERELY THE STATEMENTS. 2.11 IF THIS ISSUE IS ANALYSED WITH ANOTHER ANGLE AS TO THE OWNERSHIP OF CASH FOUND IN THE ACCOUNTS THE SELLE R WHETHER THE ASSESSEE CAN BE HELD RESPONSIBLE, THAT TOO , ON THE BASIS OF STATEMENTS. THE LAW IS WELL-SETTLED THAT ONUS IS ON THE PERSON IN WHOSE POSSESSION OR ACCOUNT IT IS FOUND. FOR THIS PROPOSITION, WE ARE FORTIFIED BY THE DECISI ONS AND THE RATIO LAID DOWN IN CIT VS. KTMS MAHMOOD; 228 ITR 113 (MAD), ASHOK KUMAR VS. CIT; 160 ITR 497 (MP), SUKHRAM VS. ACIT; 285 ITR 256 (DEL), KANTILAL CHANDULAL & CO.; 136 ITR 889 (CAL), CHUHARMAL VS. CIT; 172 ITR 250 (SC) AND CIT VS. CHINNATHAMBAN; 292 ITR 682 (SC). 3. IF THE FACTS AVAILABLE ON RECORD AND THE ASSERTION MAD E BY THE LD. RESPECTIVE COUNSEL ARE KEPT IN JUXTAPOSITI ON WITH AFOREMENTIONED JUDICIAL PRONOUNCEMENTS, IT IS CLEARLY OOZING OUT THAT THE ASSESSING OFFICER HAS NOT DISCHAR GED 28 HIS ONUS INTERLINKING THE AMOUNT FOUND IN THE ACCOUNT S OF THE SELLERS EVIDENCING THAT IT ACTUALLY BELONGS TO THE ASSESSEE. IT IS ALSO ADMITTED FACT THAT THE SELLERS THEM SELVES PURCHASED PROPERTY, WHETHER THEY ARE DEALER IN LAND OR NOT, MAKES NO DIFFERENCE. NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE REVENUE THAT THE CASH ACTUALLY BELONGS TO THE ASSESSEE. RATHER HEAVY BURDEN LIES UPON THE SELLERS IN WHOSE ACCOUNTS, THE CASH WAS FOUND DEPOSITED. UNDER TH E PRESENT FACTS, IT IS SEEN THAT THE LD. ASSESSING OFFI CER MERELY BELIEVES THE ORAL STATEMENTS OF THE SELLERS AN D MORE SPECIFICALLY UNRELIABLE WITNESS HAS BEEN HEAVILY RELIED UPON. THE ASSESSEE THROUGH ITS PARTNER (PAGE 29 OF THE PAPER BOOK) HAS ALSO FILED AFFIDAVIT CONTRADICTING THE ALLEGATI ONS MADE AGAINST THE ASSESSEE AND THE STATEMENTS OF THE SELLERS. WHEREVER CASH HAS BEEN GIVEN TO THE SELLERS, IT HAS BEEN SPECIFICALLY ADMITTED IN THE AFFIDAVIT AS IS EVIDEN CED FROM PAGE 31 (BAHADUR SINGH RS.3 LACS ON 27.7.2006, RS .3 29 LACS ON THE SAME DATE TO LEELA BAI, RS.1 LAC ON 24.8.200 6 TO SHRI MOTI RAM, RS.1 LAC ON 24.8.2006 TO SHRI PRATAP SINGH AND RS.3 LACS ON 27.8.2006 TO SHRI VIKRAM SINGH) . ALL THE TRANSACTIONS MADE THROUGH CASH AND CHEQUE ARE DULY RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY ASSESSEE FIRM IN REGULAR COURSE OF ITS BUSINESS. THIS FACTUAL MATRIX, CONTAINED IN THE AFFIDAVIT OF THE ASSESSEE, HAS N OT BEEN CONTROVERTED BY THE REVENUE, THEREFORE, THERE IS NO REASON TO AFFIRM THE ADDITION, SO MADE, BY THE ASSESSIN G OFFICER. THE ASSESSING OFFICER IS MERELY TRYING TO CATCH THE STRAW IN WHIRLWINDS WITH THE HELP OF ORAL STATEMENTS OF THE SELLERS, IGNORING THE CONTENTS OF THE REGISTERED SAL E DEEDS, WHICH ARE DULY SIGNED BY THE ASSESSEE AS WELL AS THE SELLERS, IN THE PRESENCE OF THE WITNESSES AND THE RE GISTERING AUTHORITIES. IT IS NOTEWORTHY, AS ARGUED BY THE LEARNE D COUNSEL FOR THE ASSESSEE ALSO, THAT THE SALE WAS MADE ON 27.7.2006 WHEREAS THE CASH WAS DEPOSITED BY THE SELLER S IN 30 THEIR ACCOUNTS THREE MONTHS THEREAFTER. IT IS QUITE U NLIKELY THAT CASH IS GIVEN AFTER THE REGISTRATION OF THE PROPER TY. IT IS FURTHER NOTEWORTHY THAT SELLERS OF THE LAND FILED RET URN IN DECEMBER, 2009 AND SIGNED THE AFFIDAVIT ON 31.12.2009. THE RECEIPT OF CASH AND CHEQUE ARE DULY MENTIONED IN TH E SALE DEED, THEREFORE, IT IS UNBELIEVABLE THAT AFTER THE REGISTRATION OF THE PROPERTY IS MADE, THE CASH IS DEPO SITED THREE MONTHS THEREAFTER IN THE ACCOUNTS OF THE SELLER S. THEREFORE, HOW IT CAN BE PRESUMED THAT THE PROPERTY W AS SOLD AT A DIFFERENT RATE OTHER THAN SHOWN IN THE REGIST ERED DOCUMENTS. THE TOTALITY OF FACTS CLEARLY INDICATES THAT THE SOURCE HAS TO BE EXPLAINED BY THE SELLERS, IN WHOSE ACCOUNTS, THE MONEY WAS FOUND DEPOSITED AND NOT BY THE ASSESSEE. THEREFORE, THE ADDITION CLEARLY SEEMS TO BE MADE ON PRESUMPTIVE BASIS. THE MERE FACT THAT SOMEBODY MADE STATEMENT, BY ITSELF, CANNOT BE TREATED AS HAVING RESULT ED IN AN IRREBUTABLE PRESUMPTION AGAINST THE ASSESSEE. THE 31 BURDEN CANNOT BE DISCHARGED BY THE REVENUE BY MERELY REFERRING TO THE STATEMENT OF THE THIRD PARTY AND SUCH STATEMENT CANNOT BE THE SOLE FOUNDATION THAT THE ASSESSE E HAS DELIBERATELY SUPPRESSED THE INCOME. EVEN OTHERWIS E, IF THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE, THE O NUS SHIFTS TO THE REVENUE TO PROVE THE SAME WITH CORROBO RATING MATERIAL. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED IN THE PRECEDING PARAS, WE F IND NO JUSTIFICATION FOR MAKING A PRESUMPTIVE ADDITION BY THE ASSESSING OFFICER, MORE SPECIFICALLY, WHEN THE AGREED AMOUNTS EITHER PAID THROUGH CHEQUE OR CASH HAVE BEEN DULY MENTIONED IN THE RESPECTIVE SALE DEEDS AS IS EVI DENT FROM THE MATERIAL AVAILABLE ON RECORD, THEREFORE, THE ADDITION MADE BY THE LD. ASSESSING OFFICER INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT CANNOT BE SUSTAIN ED. 4. SO FAR AS CHARGING INTEREST U/S 234A & 234B OF THE ACT IS CONCERNED, IT IS CONSEQUENTIAL IN NATURE. 32 5. SO FAR AS INITIATION OF PENALTY PROCEEDINGS U/S 271( 1)(C) OF THE ACT IS CONCERNED, IT IS PREMATURE, THEREFORE, REQUIRES NO DELIBERATION FROM OUR SIDE. IN VIEW OF THESE FACTS AND JUDICIAL PRONOUNCEMENTS, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18.7.2014. SD/- SD/- (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.7.2014 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!