M/s R.P. Import & Export (P) Ltd., Mandi Gobindgarh V. Principal Commissioner of Income Tax, Ludhiana

ITA 421/CHANDI/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2592 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Depreciation; Income from undisclosed sources; Search and seizure; Document seized; Opportunity of being heard; Period of limitation; Question of law; Difference of opinion; Block assessment; Documents seized
• Section: 153A; 69; 263; 63; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 421/CHD/2015 ASSESSMENT YEAR: 2007-08 M/S R.P. IMPORT & EXPORT P.LTD., VS THE PRINCIPA L CIT, B.D. COMPLEX, NEAR RAM BHAWAN, (CENTRAL), G.T. ROAD, LUDHIANA. MANDI GOBINDGARH. PAN: AADCR7435A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI SUSHIL KUMAR DATE OF HEARING : 07.01.2016 DATE OF PRONOUNCEMENT : 15.01.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. PRINCIPAL, CIT(CENTRAL) LUDHIANA DATED 26.02.2015 FOR ASSESSMENT YEARS 2007-08 UNDER SECTI ON 263 OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ORIGINAL RETURN IN THIS CASE WAS FILED ON 31.10.2007 DECLARING NIL INCOME. THEREAFTER, A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT WAS CONDUCTED AT THE BUSINESS PREMIS ES OF THE ASSESSEE ON 30.06.2010. ACCORDINGLY, NOTICE UNDER SECTION 153A WAS ISSUED AND ASSESSEE AGAIN FI LED 2 RETURN OF INCOME AT NIL. THE DOCUMENTS PAGE NOS. 34- 35 OF ANNEXURE A-9 WAS SEIZED FROM THE OFFICE PREMI SES OF THE DIRECTOR OF M/S NARAIN & COMPANY. THE ASSESS ING OFFICER IN THIS REGARD HAS OBSERVED THAT AS PER DOCUMENTS AT PAGE 34-35 OF ANNEXURE A-9 SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WERE CONFRONTED TO THE ASSESSEE VIDE SHOW CAUSE DATED 20.02.2013 PROPOSING TO ADOPT THE PURCHASE OF LAND AT THE RATE OF RS.6,50,000/-PER BIGHA. THE ASSESSEE SUBMITTED, BEFORE THE ASSESSING OFFICER THE FOLLOWI NG ARGUMENTS VIDE HIS LETTER DATED 28.02.2013:- 'THIS IS WITH REFERENCE TO YOUR LETTER DATED 20/02/2013 REGARDING .TO ADOPT THE RATE OF LAND AT RS. 6,50,000/- PER BIGHA FOR THE LAND PURCHASED BY THE COMPANY IN THE YEAR UNDER ASSESSMENT. IN THIS REGARD WE SUBMIT AS UNDER: - AS REGARD THE JUSTIFICATION OF PAGES 34 & 35 OF ANNEXURE A-9 WITH REGARD TO THE PURCHASE OF LAND BY M/S R.P. EXPORT AND IMPORT PVT. LTD. HIS REGARD IT IS BEING SUBMITTED THAT THE APPLICANT COMPANY NAMELY M/S R.P. EXPORT & IMPORT PURCHASED A LAND OF 49 BIGHA SITUATED IN VILL. SALANI IN F.Y. 2006-07. THE TOTAL AMOUNT WAS PAID BY THE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATION DEED. COPY OF THE TITLE DEED ALSO FOUND AND SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH. THE SAID LAND PURCHASED BY THE COMPANY FROM VARIOUS PERSONS AND THE AMOUNT HAVE BEEN PAID BY THE COMPANY FROM THEIR REGULAR SOURCES. COPY OF THE TITLE DEED ALONG WITH SOURCES OF THE AMOUNT FROM 3 WHERE THE PAYMENTS HAVE ALREADY BEEN FILED DURING THE COURSE OF ASSESSMENT. DURING THE COURSE OF SEARCH ALSO NO ADVERSE MATERIAL OR ANY KIND OF ADVERSE PAPER HAVE BEEN FOUND FOR GIVING THE ANY KIND OF OWN MONEY. AS REGARD THE ONE OF THE AGREEMENT AS PER PAGES 34 & 35 OF ANNEXURE A-9 IT IS BEING SUBMITTED THAT THESE PAPER DOES NOT BELONG TO THE APPLICANT GROUP AND ALSO THERE IS NO NAME OF THE APPLICANT GROUP IN THIS AGREEMENT. THIS AGREEMENT ALSO INDICATES THAT THIS IS A CANCELLED AGREEMENT WHEREIN THERE ARE MANY CROSS HAVE BEEN MENTIONED IN THEREIN. IT IS PERTINENT TO MENTION HERE THAT THE SAID DOCUMENT I.E. PAGE 34 & 35 HAVE NOT BEEN CONFRONTED AT THE TIME OF SEARCH AND ALSO DURING THE POST SEARCH ENQUIRIES. THESE DOCUMENTS DOES NOT PERTAINS TO THE APPLICANT AND WE DO NOT KNOW FROM WHERE THIS DOCUMENT HAVE BEEN COME ON MY BUSINESS PREMISES. THEREFORE FROM THE ABOVE SAID FACTS AND CIRCUMSTANCES NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. MOREOVER WE WOULD ALSO LIKE TO MENTION THAT ON THE BASIS OF THIRD PARTY DOCUMENTS IN WHICH OUR COMPANY NAME OF THEIR DIRECTORS NAME IS NOT MENTIONED ANYWHERE AND THE DOCUMENTS IS A CROSSED DOCUMENTS AND EACH PAGE IS CROSSED AND CANCELLED. THE COMPANY RECORDED THE ACTUAL AMOUNT IN THE LAND ACCOUNT AS PAID TO THE PARTIES FROM WHOM THE LAND WAS PURCHASED. OUT OF WHICH 4 BIGHA 10 BISWA WAS PURCHASED FROM SH. SUMIT GUPTA S/O SH. BHOLA NATH AS PER THE TITLE DEED FOR RS. 5,62,500/-. THE DOCUMENT AS PER PAGE 34 & 35 IS BETWEEN THE THIRD PARTIES AND NO WHERE THE NAME OF COMPANY OR GROUP MEMBERS IS WRITTEN OR SIGNED BY ANY OF THE DIRECTOR OF GROUP MEMBER. IT IS ALSO PERTINENT TO MENTION THAT WE ALSO HAVE PURCHASED THE LAND FROM THE PERSONS OTHER THAN 4 MENTIONED IN PAGE NO.34 AND 35 OF ANNEXURE A9. MOREOVER THE CROSS DOCUMENTS WERE NOT CONFRONTED TO US DURING THE COURSE OF SEARCH AND POST SEARCH ENQUIRIES. THERE IS NO SIGN OF ANY DIRECTOR OR GROUP MEMBER ON THE PAGE NO. 34 &. 35.' 3. THE ASSESSING OFFICER AFTER CONSIDERING SUBMISSI ONS OF THE ASSESSEE OBSERVED THAT AS PER THE SEIZED DOCUMENT REFERRED TO ABOVE, THE AGREEMENT WAS FOR PURCHASED OF LAND BY SH. BHOLA NATH FROM SH. PAWAN KUMAR, SH. RAJINDER PURI AND SH. RAM MURTI AND THE LAND WAS ULTIMATELY TRANSFERRED TO SH. SUMIT GUPTA S/O SH. BHOLA NATH AT THE RATE OF RS. 1,25,000/- PER BI GHA WHEREAS THE RATE OF LAND AS PER AGREEMENT REFERRED TO WAS RS.6,50,000/- PER BIGHA. THE ASSESSING OFFICER, THEREFORE PROCEEDED TO CONCLUDE THAT THE ASSESSEE H AD PAID AN AMOUNT OF RS. 23,62,500/- FOR THE PURCHASE OF SAID LAND LEADING TO AN ADDITION THEREOF UNDER SECT ION 69B OF THE I.T. ACT 1961. 4. THE ASSESSMENT ORDER DATED 25.03.2013 WHEREBY ADDITION OF RS. 23,62,500/- WAS MADE, WAS CHALLENGE D BEFORE LD. CIT(APPEALS) AND ASSESSEE MADE DETAILED SUBMISSIONS EXPLAINING THEREIN THAT THE SEIZED DOCU MENT IS CANCELLED/CROSSED ALLEGED AGREEMENT RELATING TO SOME OTHER PARTY WITH WHICH ASSESSEE HAS NOTHING TO DO. THERE IS NO NAME OF THE ASSESSEE ON THE SEIZED PAPER AND NONE OF THE DIRECTORS ARE ALSO CONNECTED WITH THE SAME. TH E ASSESSEE PURCHASED 46 BIGHA 9 BISWA OF LAND FROM 5 DIFFERENT PERSONS AFTER MAKING WITHDRAWALS FROM THE BANK ACCOUNT. NO EVIDENCE WAS FOUND AGAINST THE ASSESSEE FOR MAKING ANY PAYMENT OVER AND ABOVE WHAT IS MENTIONED IN THE REGISTERED SALE DEED. THE SEIZED PAPER IS NOT CONFRONTED TO THE ASSESSEE. THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF RATE OF PURCHASE OF LA ND FROM SHRI SUMI GUPTA IN RESPECT OF 4 BIGHA AND 10 BISWAS OF LAND ONLY. THE ASSESSING OFFICER HAS ACCEPTED THE SALE CONSIDERATION AS MENTIONED IN THE OTHER SALE DEEDS IN RESPECT OF THE LAND PURCHASED FROM DIFFERENT PERSON S. THE LD. CIT(APPEALS) VIDE ORDER DATED 03.09.2013 DELETE D THE ENTIRE ADDITION AND ALLOWED THE APPEAL OF THE ASSES SEE. 4(I) THE LD. CIT(APPEALS) IN HIS FINDINGS OBSERVED THAT NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATION WITH REGARD TO ANY PAYMENT MADE OVER AND ABOVE WHAT IS RECORDED IN THE SALE DEED. IT WAS THE CANC ELLED DOCUMENT. THE REVENUE PREFERRED THE APPEAL BEFORE ITAT, CHANDIGARH BENCH ON THE SAME MATTER IN ISSUE IN ITA 1135/2013 ASSESSMENT YEAR 2007-08 AND THE TRIBUNAL VIDE ORDER DATED 12.12.2014 DISMISSED THE DEPARTMENTAL APPEAL. THE ORDER OF THE TRIBUNAL IS REPRODUCED AS UNDER : IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1135/CHD/2013 ASSESSMENT YEAR : 2007-08 6 THE D.C.I.T., VS. M/S R.P. IMPORT & EXPORT (P) LTD., CENTRAL CIRCLE III, G.T. ROAD, LUDHIANA. MANDI GOBINDGARH. PAN: AADCR7435A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MITTAL, DR RESPONDENT BY : SHRI SUDHIR SEHGAL DATE OF HEARING : 09.12.2014 DATE OF PRONOUNCEMENT : 12.12.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, LUDHIANA DATED 3.9.2013 FOR ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUND OF APPEAL : 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.23,62,500/- MADE ON ACCOU NT OF UNEXPLAINED INVESTMENT BY THE ASSESSEE COMPANY I N THE PURCHASE OF LAND, IGNORING THE FACT THAT THE CO PY OF AGREEMENT WAS SEIZED FROM THE SISTER CONCERN OF THE ASSESSEE WHICH SHOWS THE RATE OF LAND WAS @ RS.6,50,000/- PER BIGHA INSTEAD RS. 1,25,000/- PER BIGHA DECLARED IN THE REGISTRATION DEED. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSING OFFICER IN MAKING THE ADDITION OF RS.23,62,500/- BEFORE THE LEARNED CIT (APPEALS) BEING UNEXPLAINED INVESTMENT UNDER SECTION 69B OF THE ACT. THE ASSESSING OFFICER IN THIS REGARD HAS OBSERVED THAT AS PER DOCUMENTS AT PAGE 34-35 OF ANNEXURE A-L SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WERE CONFRONTED TO THE ASSESSEE VIDE SHOW CAUSE DATED 20.02.2013 PROPOSING TO ADOPT THE PURCHASE OF LAND AT THE RATE OF RS.6,50, 000/-PER BIGHA. THE ASSESSEE SUBMITTED, BEFORE THE ASSESSING OFFICER THE FOLLOWING ARGUMENTS VIDE HIS LETTER DAT ED 28.02.2013:- 7 'THIS IS WITH REFERENCE TO YOUR LETTER DATED 20/02/2013 REGARDING .TO ADOPT THE RATE OF LAND AT RS. 6,50,000/- PER BIGHA FOR THE LAND PURCHASED BY THE COMPANY IN THE YEAR UNDER ASSESSMENT. IN THIS REGARD WE SUBMIT AS UNDER: - AS REGARD THE JUSTIFICATION OF PAGES 34 & 35 OF ANNEXURE A-9 WITH REGARD TO THE PURCHASE OF LAND BY M/S R.P. EXPORT AND IMPORT PVT. LTD. HIS REGARD IT IS BEING SUBMITTED THAT THE APPLICANT COMPANY NAMELY M/S R.P. EXPORT & IMPORT PURCHASED A LAND OF 49 BIGHA SITUATED IN VILL. SALANI IN F.Y. 2006-07. THE TOTAL AMOUNT WAS PAID BY THE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATION DEED. COPY OF THE TITLE DEED ALSO FOUND AND SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH. THE SAID LAND PURCHASED BY THE COMPANY FROM VARIOUS PERSONS AND THE AMOUNT HAVE BEEN PAID BY THE COMPANY FROM THEIR REGULAR SOURCES. COPY OF THE TITLE DEED ALONGWITH SOURCES OF THE AMOUNT FROM WHERE THE PAYMENTS HAVE ALREADY BEEN FILED DURING THE COURSE OF ASSESSMENT. DURING THE COURSE OF SEARCH ALSO NO ADVERSE MATERIAL OR ANY KIND OF ADVERSE PAPER HAVE BEEN FOUND FOR GIVING THE ANY KIND OF OWN MONEY. AS REGARD THE ONE OF THE AGREEMENT AS PER PAGES 34 & 35 OF ANNEXURE A-9 IT IS BEING SUBMITTED THAT THESE PAPER DOES NOT BELONG TO THE APPLICANT GROUP AND ALSO THERE IS NO NAME OF THE APPLICANT GROUP IN THIS AGREEMENT. THIS AGREEMENT ALSO INDICATES THAT THIS IS A CANCELLED AGREEMENT WHEREIN THERE ARE MANY CROSS HAVE BEEN MENTIONED IN THEREIN. IT IS PERTINENT TO MENTION HERE THAT THE SAID DOCUMENT I.E. PAGE 34 & 35 HAVE NOT BEEN CONFRONTED AT THE TIME OF SEARCH AND ALSO DURING THE POST SEARCH ENQUIRIES. THESE DOCUMENTS DOES NOT PERTAINS TO THE APPLICANT AND WE DO NOT KNOW FROM WHERE THIS DOCUMENT HAVE BEEN COME ON MY BUSINESS PREMISES. THEREFORE FROM THE ABOVE SAID FACTS AND CIRCUMSTANCES NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. MOREOVER WE WOULD ALSO LIKE TO MENTION THAT ON THE BASIS OF THIRD PARTY DOCUMENTS IN WHICH OUR COMPANY NAME OF THEIR DIRECTORS NAME IS NOT MENTIONED ANYWHERE AND THE DOCUMENTS IS A CROSSED DOCUMENTS AND EACH PAGE IS CROSSED AND CANCELLED. THE COMPANY RECORDED THE ACTUAL AMOUNT IN THE LAND ACCOUNT AS PAID TO THE PARTIES FROM WHOM THE LAND WAS PURCHASED. OUT OF WHICH 4 BIGHA 10 BISWA WAS PURCHASED FROM SH. SUMIT GUPTA S/O SH. BHOLA NATH AS PER THE TITLE DEED FOR RS. 5,62,500/-. 8 THE DOCUMENT AS PER PAGE 34 & 35 IS BETWEEN THE THIRD PARTIES AND NO WHERE THE NAME OF COMPANY OR GROUP MEMBERS IS WRITTEN OR SIGNED BY ANY OF THE DIRECTOR OF GROUP MEMBER. IT IS ALSO PERTINENT TO MENTION THAT WE ALSO HAVE PURCHASED THE LAND FROM THE PERSONS OTHER THAN MENTIONED IN PAGE NO.34 AND 35 OF ANNEXURE A9. MOREOVER THE CROSS DOCUMENTS WERE NOT CONFRONTED TO US DURING THE COURSE OF SEARCH AND POST SEARCH ENQUIRIES. THERE IS NO SIGN OF ANY DIRECTOR OR GROUP MEMBER ON THE PAGE NO. 34 &. 35.' 4. THE ASSESSING OFFICER AFTER CONSIDERING SUBMISSIONS OF THE APPELLANT OBSERVED THAT AS PER THE SEIZED DOCUMENT REFERRED TO ABOVE, THE AGREEMENT WAS FOR PURCHASED OF LAND BY SH. BHOLA NATH FROM SH. PAWAN KUMAR, SH. RAJINDER PURI AND SH. RAM MURTI AND THE LAND WAS ULTIMATELY TRANSFERRED TO SH. SUMIT GUPTA S/O SH. BHOLA NATH AT THE RATE OF RS. 1,25,000/- PER BIGHA WHEREAS THE RATE OF LAND AS PER AGREEMENT REFERRED TO WAS RS.6,50,000/- PER BIGHA. THE ASSESSING OFFICER, THEREFORE PROCEEDED TO CONCLUDE THAT THE ASSESSEE HAD PAID AN AMOUNT OF RS. 23,62,500/- FOR THE PURCHASE OF SAID LAND LEADING TO AN ADDITION THEREO F UNDER SECTION 69B OF THE I.T. ACT 1961. 5. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LEARNED CIT (APPEALS) AND THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED IN THE APPELLATE ORDER, WHICH READS AS UNDER : 'THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGIN G THE ADDITION OF RS.23,62,500/- U/S 69B OF THE INCOME TA X ACT, 1961. THE BRIEF FACTS OF THE CASE ARE THAT THERE WA S SEARCH AND SEIZURE OPERATION U/S 132 ON 30.06.2010 AND DUR ING THE COURSE OF SEARCH AND SEIZURE, ONE CANCELLED/CROSSED ALLEGED AGREEMENT RELATING TO SOME OTHER PARTY WITH WHICH T HE ASSESSEE HAS NOTHING TO DO WAS FOUND AND IN THIS AGREEMENT, THERE IS NO NAME OF THE ASSESSEE I.E. R. P. IMPORT AND EXPORT PVT. LTD. OR ITS DIRECTORS AS- PER COPY OF THE AGREEMENT BEING ENCLOSED HEREWITH AND NEITHER THE A SSESSEE HAD PURCHASED THE LAND FROM SH. BHOLA NATH. THE ASS ESSING OFFICER HAS CONCLUDED THAT SINCE THE AGREEMENT IS O F THE SAME AREA AND THE ASSESSEE MUST HAS APPLIED TO SAME RATE AS MENTIONED IN THAT AGREEMENT ON THE PURCHASE OF LAND BY THE COMPANY FROM SHRI SUMIT GUPTA ONLY. THE SEQUENCE OF EVENTS AND THE FACTS OF THE CASE AR E AS UNDER: - 9 I. THE ASSESSEE HAD PURCHASED 46 BIGHA 9 BISWA OF LAND FROM THE FOLLOWING PERSONS:- SL.NO. NAME OF THE PERSON AREA AMOUNT 1. MUNISH KUMAR S/O SH.SUBHASH KUMAR, SALANI MANDI GOBINDGARH, HARISH KUMAR S/O RAM PURTI VILLAGE SALANY TEHSIL AMLOH. 6 BIGHA 15,00,000.00 2. RAM MURTI S/O SH.RAGHU NATH, RAJINDER PURI S/O HARI DEV PURI PAWAN KUMAR S/O MADAN GOPAL WARD NO.11, MANDI GOBINDGARH 10 BIGHA 13,75,000.00 3. DILBAG RAI S/O BABU RAM UMESH KUMAR S/O JAGDISH RAI RAMESH KRISHAN S/O KISHAN LAL, WARD NO.7, MANI GOBINDGARH 13 BIGHA 10 BISWA 18,42,500.00 4. RAJINDER PURI S/O HARI DEV PURI PREM CHAND S/O RAM MURTI DEEPAK KUMAR S/O RAM MURTI PAWAN KUMAR S/O MADAN GOPAL MANDI GOBINDGARH 12 BIGHA 9 BISWA 15,56,500.00 5. SUMIT GUPTA S/O BHOLA NATH NEAR POST OFFICE G.T. ROAD SETH WALA, MOHALA KHANNA 4 BIGHA 10 BISWA 5,62,500.00 TOTAL 46 BIGHA 9 BISWA 68,36,500.00 II. THE PAYMENT OF THE CONSIDERATION FOR THE PURCHASE OF LAND WAS MADE IN CASH WITHDRAWAL FROM THE BANK ACCOUNT OF THE COMPANY. III. DURING THE COURSE OF SEARCH, NO EVIDENCE OR AN Y PAPER HAVE BEEN FOUND RELATING TO ABOVE CONSIDERATION AND EVEN NO EVIDENCE OF ANY PAYMENT HAVING BEEN MADE OVER AND ABOVE THE CONSIDERATION AS MENTIONED IN THE REGISTRATION DEED HAD BEEN FOUND. IV. THE SAID CROSSED/CANCELLED AGREEMENT WAS NEITHER CONFRONTED DURING THE COURSE OF SEARCH OR DURING POST SEARCH ENQUIRIES. V. THERE IS NO EVIDENCE WORTH THE NAME OR ANY OTHER EVIDENTIARY VALUE THAT THE ASSESSEE HAD MADE ANY PAYMENT OVER AND ABOVE THE REGISTRATION CONSIDERATION. VI. THE STATEMENT OF SH. BHOLA NATH, WHO IS NEITHER A SELLER TO THE SAID LAND WAS RECORDED BY T HE ASSESSING OFFICER, WHO IS ONE OF THE PARTY TO THE 10 SEIZED/CANCELLED AGREEMENT HAD NOT STATED ANYTHING ABOUT ANY LINK OR CONNECTION WITH THE ASSESSEE COMPANY OR ITS DIRECTORS NOR HE HAD STATED HAVING RECEIVED ANY PAYMENT OVER AND ABOVE THE CONSIDERATION. VII. THE ASSESSEE HAD NO LINK OR CONNECTION OR ANY RELATION WITH SH. BHOLA NATH AND WITH SH. SUMIT GUPTA, FROM WHOM THE ASSESSEE HAD PURCHASED THE LAND IN QUESTION. VIII. THE ASSESSING OFFICER HAD MADE THE BASIS OF APPLICATION OF RATE OF PURCHASE OF LAND FROM SH. SUMIT GUPTA IN RESPECT OF 4 BIGHA & 10 BISWA OF LAND ONLY. THE ASSESSING OFFICER HAS ACCEPTED THE SALE CONSIDERATION AS MENTIONED IN THE REGISTRATION DEED IN RESPECT OF LAND PURCHASED IN THE SAME AREA FROM SH. MUNISH KUMAR. SH. RAM MURTI. SH. DILBAG RAI AND SH. RAIINDER PURI AND THE AREA IS ADLOININQ THE SAME AREA AND, THEREFORE, THE RELIANCE BY THE ASSESSING OFFICER ON THE SEIZED/CANCELLED AGREEMENT NOT RELATING TO THE ASSESSEE CONCERNED AND FROM WHOM EVEN NO LAND WAS PURCHASED AND HAD MADE THE ADDITION WITHOUT ANY REASON OR SUBSTANCE. THE ASSESSING OFFICER HAS ACCEPTED THE CONSIDERATION IN RESPECT OF THE PURCHASES OF LAND FROM OTHER PERSONS IN THE SAME AREA. IX. THE HON'BLE SUPREME COURT IN THE CASE OF SH. K.P. VARGHESE AS REPORTED IN 131 ITR 597 HAS HELD THAT AMOUNT MENTIONED IN THE REGISTERED SALE DEED HAS TO BE TAKEN INTO CONSIDERATION UNTIL OR UNLESS SOME OTHER EVIDENCE IS FOUND THAT ANY CONSIDERATION HAS BEEN PASSED OVER AND ABOVE THE REGISTERED CONSIDERATION. THE RATE OF THE LAND ALSO DEPENDS UPON MANY FACTORS AND, AS SUCH, THE WHOLE BASIS OF MAKING THE ADDITION BY THE ASSESSING OFFICER IS CONTRADICTORY IN THE SENSE THAT THE ASSESSING OFFIC ER HAS ACCEPTED THE CONSIDERATION AS MENTIONED IN REGISTERED DEED IN RESPECT OF LAND PURCHASED FROM SARVASHRI MUNISH KUMAR, RAM MURTI, DILBAG RAI AND SH. RAJINDER PURI AND THERE IS NO REASON NOT TO ACCEPT THE SAME CONSIDERATION OF THE LAND PURCHASED FROM SH. SUMIT GUPTA. BESIDES, THAT THE FOLLOWING FACTS NEED TO BE TAKEN INTO CONSIDERATION: A. THE SALE DEED HAS NOT BEEN CHALLENGED IN THE SENSE THAT IT HAS NOT BEEN OBTAINED BY ANY FRAUD. B. THERE IS NO EVIDENCE THAT THE SELLER OF PLOT HA D RECEIVED ANY CONSIDERATION OVER AND ABOVE THE REGISTERED CONSIDERATION AND NEITHER ANY EVIDENCE 11 HAS BEEN FOUND DURING THE COURSE OF SEARCH, WHICH WAS CARRIED OUT AT NUMBER OF PLACES. C. THERE IS NO EVIDENCE THAT THERE WAS ANY PHYSICAL MOVEMENT OF MONEY FROM THE PURCHASER TO SELLER. D. THE SELLER HAD DISCHARGED THE ONUS BY ADDUCING IN EVIDENCE THAT THE SALE HAD BEEN EXECUTED AS PER REGISTERED CONSIDERATION AND THERE IS NO EVIDENCE OF PAYMENT OVER AND ABOVE THE SALE CONSIDERATION. E. THE VALIDITY OF SALE DEED AND ITS GENUINENESS HAS NOT BEEN CHALLENGED. F. IT IS A WELL ESTABLISHED PROPOSITION THAT DIRECT DOCUMENTARY EVIDENCE, IN THE SHAPE OF VALIDL Y EXECUTED SALE DEED ,IF PITTED AGAINST THE MERE OR AL EVIDENCE, THE DOCUMENTARY EVIDENCE WOULD CERTAIN PREVAIL. THIS VIEW IS SUPPORTED BY THE HON'BLE SUPREME COURT, IN THE CASE OF MOTORS AND GENERAL STORES (P) LTD. (1967) 6 6 ITR 692 (SC),WHEREIN IT HAS BEEN HELD AS UNDER: DEPRECIATION BALANCING CHARGE PRESENCE OF MONEY CONSIDERATION IS ESSENTIAL ELEMENT IN TRANSACTION OF SALE AND WHERE CONSIDERATION IS NOT MONEY BUT SOME OTHER VALUABLE CONSIDERATION IT MAY BE EXCHANGE OR BARTER BUT NOT SALEASSESSEE TRANSFERRED CINEMA THEATRE FOR RS. 1,20,000 IN EXCHANGE OF SHARES OF A SUGAR MILL OF EQUIVALENT AMOUNT TRANSACTION IS NOT SALE AND SECOND PROVISO TO S. 10(2)(VII) IS NOT ATTRACTED.' G. THE ASSESSING OFFICER HAS ACCEPTED THE SALE ON THE BASIS OF REGISTERED SALE DOCUMENT, BUT HAS NOT ACCEPTED THE SALE CONSIDERATION. THUS, THE ASSESSIN G OFFICER DISREGARDED THE VALID DOCUMENTARY EVIDENCE AND HAD UNDERTAKEN THE EXERCISE OF REWRITING OF THE SALE DEED AND SUBSTITUTING THE SALE CONSIDERATION WHICH HE CANNOT DO. H. SIMILARLY, THE RELIANCE IS BEING PLACED ON THE JUDGMENT OF PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V/S CHANDNI BHOCHAR (2010) 323 ITR 510, IN WHICH, IT HAS BEEN HELD AS UNDER: 'CAPITAL GAINS COMPUTATION ACTUAL SALE CONSIDERATION VIS-A-VIS VALUE TAKEN BY STAMP DUTY AUTHORITIES THERE IS CATEGORICAL FINDING RECORDED BY THE CIT(A) THAT VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF THE STATE GOVERNMENT FOR THE PURPOSE O F PAYMENT OF STAMP DUTY IN RESPECT OF LAND OR BUILDIN G CANNOT BE TAKEN AS SALE CONSIDERATION RECEIVED FOR THE PURPOSE OF S. 48 TRIBUNAL RIGHTLY HELD THAT 12 VALUATION DONE BY ANY STATE AGENCY FOR THE PURPOSE OF STAMP DUTY WOULD NOT IPSO FACTO SUBSTITUTE THE ACTUAL SALE CONSIDERATION AS BEING PASSED ON TO THE SELLER BY THE PURCHASER IN THE ABSENCE OF ANY ADMISSIBLE EVIDENCE AO IS OBLIGED TO BRING ON RECORD POSITIVE EVIDENCE SUPPORTING THE PRICE ASSESSED BY THE STATE GOVERNMENT FOR THE PURPOSE OF STAMP DUTY CIT(A) AND THE TRIBUNAL HAVE ACCEPTED SALE CONSIDERATION DEPICTED IN SALE DEED ASSESSEE HAS DISCHARGED THE BURDEN OF PROVING THE SALE CONSIDERATION AS PROJECTED IN THE SALE DEED NO SUBSTANTIAL QUESTION OF LAW ARISES CIT VS. SMT. RA J KUMARIVIMLA DEVI (2005) 279 ITR 360 (ALL) CONCURRED WITH' I. THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V/S SATINDER KUMAR (2001) 250 ITR 484 HAS CLEARLY HELD THAT THE ASSESSING OFFICER IS NOT COMPETENT TO MAKE ADDITION IN ABSENCE OF CREDIBLE EVIDENCE, IN RESPECT OF INVESTMENT MADE OVER AND ABOVE THE CONSIDERATION RECORDED, IN THE SALE DEED. THE HEAD NOTE OF THE DECISION IS REPRODUCED HEREUNDER: APPEAL TO HIGH COURT - SUBSTANTIAL QUESTION OF LAW - SEARCH AND SEIZURE - ADDITIONS TO INCOME - INCOME FROM UNDISCLOSED SOURCES - NO MATERIAL EVIDENCE TO ESTABLISH THAT ASSESSEE MADE INVESTMENT OVER AND ABOVE THAT RECORDED IN SALE DEED - TRIBUNAL DELETIN G ADDITIONS MADE SECTION 69 - JUSTIFIED - NO QUESTION OF LAW ARISES - INCOME TAX ACT, 1961 SS. 69, 260A.' J. SIMILARLY, RELIANCE IS BEING PLACED ON THE FOLLO WING JUDGMENT OF CIT V/S SMT. NILOFER I. SINGH, IN WHICH , IT HAS BEEN HELD AS UNDER: 'CAPITAL GAINSCOMPUTATIONFULL VALUE OF CONSIDERATIONEXPRESSION 'FULL VALUE OF CONSIDERATION' USED IN S. 48 DOES NOT HAVE ANY REFERENCE TO THE MARKET VALUE BUT ONLY TO THE CONSIDERATION REFERRED TO IN THE SALE DEEDS AS THE SALE PRICE OF THE ASSETS WHICH HAVE BEEN TRANSFERREDCIT VS. GILLANDERS ARBUTHNOT & CO. 1973 CTR (SC) 136 : (1973) 87 ITR 407 (SC) AND CIT VS. GEORGE HENDERSON & CO. LTD. (1967) 66 ITR 622 (SC) FOLLOWED.' K. CIT V/S GILLANDERS ARBUTHNOT & CO. (1973) 87 ITR 407 (SC), WHEREIN, IT HAS BEEN HELD AS UNDER: 'CAPITAL GAINS - FULL VALUE OF THE CONSIDERATION IN SALE - WHERE FIRST PROVISO TO S. 12B(2) NOT ATTRACT ED, FULL VALUE MEANS SALE PRICE ACTUALLY RECEIVED.' 13 I. LASTLY, WE RELY TO THE JUDGMENT OF M/S RAJDEEP BUILDERS V/S ACIT, CIRCLE, SHIMLA OF ITAT, CHANDIGARH BENCH, CHANDIGAH, IN WHICH ON SIMILAR FACTS AND AFTER DETAILED ANALYSIS OF VARIOUS JUDGMENTS INCLUDING PUNJAB &. HARYANA HIGH COURT, IT HAS BEEN HELD THAT THE SALE CONSIDERATION AS PER REGISTERED DOCUMENT HAS TO BE TAKEN INTO CONSIDERATION, WHILE DELIVERING THE ABOVE JUDGMENT, THE HON'BLE BENCH HAS RELIED UPON THE ABOVE JUDGMENTS AS WELL AND AS SUCH, THE VERY BASIS AND MAKING THE ADDITION IS FAULTY.' 4. RELIANCE IS ALSO BEING PLACED IN THE FOLLOWING JUDGMENTS:- A. INCOME TAX OFFICER VS M/S NEW P. GRAND RESORTS ITA NO.526/CHD/2009, ITAT, CHANDIGARH BENCH, CHANDIGARH B. ACIT VS RUPEN KAUSHAL IN ITA NO. 866/CHD/2009,ITAT, BENCH, CHANDIGARH BENCH, CHANDIGARH. IN VIEW OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE ADDITION AS MADE BY THE ASSESSING OFFICER DESERVES TO BE DELETED AND OBLIGE. 6. THE LEARNED CIT (APPEALS) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND MATERIAL ON RECORD DELETED THE ADDITION. THE FINDINGS OF THE LEARNED CIT (APPEALS) IN PARA 4 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 4. I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. THE ASSESSING OFFICER HAS RELIED UPON A COPY OF AGREEMENT TO SELL SEIZED DURING THE COURSE OF SEARCH OPERATION WHICH ON THE FACE OF IT HAS BEEN CANCELLED BY MARKING CROSS WHICH SHOWS THAT THE SAID AGREEMENT HAD NOT BEEN PROCEEDED WITH AS RECORDED. SECONDLY THE AGREEMENT IN QUESTION DOES NOT HAVE ANY IDENTIFICATION OF THE LAND PROPOSED TO BE SOLD. THIS MEANS THAT ONLY A GENERAL AREA OF VILLAGE HAS BEEN WRITTEN AND NO SPECIFIC PROPERTY IN THE SAID VILLAGE HAS BEEN IDENTIFIED IN THE AGREEMENT TO SELL. THE NAME OF THE BUYER AND THE SELLER IS SPECIFIED AND THE PROPOSED SALE CONSIDERATION HAS ALSO BEEN RECORDED AS RIGHTLY OBSERVED BY THE ASSESSING OFFICER, BUT IN THE ABSENCE OF THE MOST IMPORTANT FACTOR I.E. PROPERTY TO BE BOUGHT OR SOLD BEING NOT IDENTIFY, THE AGREEMENT DOES NOT LEND CREDENCE 14 TO THE REST OF THE MATTER. THE ASSESSEE IS NEITHER BUYER NOR SELLER OF THE SAID OF THE UNIDENTIFIED PIECE OF THE PROPERTY AS PER AGREEMENT TO SELL AND IN THE GIVEN FACTS ARE CIRCUMSTANCES OF THE CASE AS HIGHLIGHTED ABOVE, IT IS HIGHLY IN PROPER TO ADOPT THE SALE CONSIDERATION ON THE BASIS OF THIS AGREEMENT TO SELL. IT IS ALSO SEEN THAT THE APPELLANT HAD PURCHASED THE FOLLOWING REAL ESTATE MEASURING 46 BIGHA 9 BISWA OF LAND FROM THE FOLLOWING PERSONS:- SL.NO. NAME OF THE PERSON AREA AMOUNT 1. MUNISH KUMAR S/O SH.SUBHASH KUMAR, SALANI MANDI GOBINDGARH, HARISH KUMAR S/O RAM PURTI VILLAGE SALANY TEHSIL AMLOH. 6 BIGHA 15,00,000.00 2. RAM MURTI S/O SH.RAGHU NATH, RAJINDER PURI S/O HARI DEV PURI PAWAN KUMAR S/O MADAN GOPAL WARD NO.11, MANDI GOBINDGARH 10 BIGHA 13,75,000.00 3. DILBAG RAI S/O BABU RAM UMESH KUMAR S/O JAGDISH RAI RAMESH KRISHAN S/O KISHAN LAL, WARD NO.7, MANI GOBINDGARH 13 BIGHA 10 BISWA 18,42,500.00 4. RAJINDER PURI S/O HARI DEV PURI PREM CHAND S/O RAM MURTI DEEPAK KUMAR S/O RAM MURTI PAWAN KUMAR S/O MADAN GOPAL MANDI GOBINDGARH 12 BIGHA 9 BISWA 15,56,500.00 NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATION FROM THE ASSESSEE WHICH WITH REGARD TO ANY UNACCOUNTED PAYMENT INVOLVED IN THE PURCHASE OF AFOREMENTIONED PROPERTIES. IT IS ALSO A MATTER OF FACT THAT STATEMENT OF SH. BHOLA NATH WHO IS ONE OF THE PARTY TO THE SEIZED/CANCELLED AGREEMENT TO SELL AND HE HAS NOT STATED ANY LINK OR CONNECTION WITH THE ASSESSEE COMPANY. IT IS FURTHER SEEN THAT THE ASSESSING OFFICER HAD APPLIED SAID PURCHASE RATE ON THE BASIS OF AGREEMENT TO SELL ONL Y IN RESPECT OF 4 BIGHA & 10 BISWA OF LAND AND THE SALE CONSIDERATION IN RESPECT OF REST OF THE PURCHASES MADE IN THE SAME AREA HAS BEEN ACCEPTED AS PER THE REGISTERED DEED. THE RELIANCE PLACED BY THE ASSESSING OFFICER ON THE AGREEMENT TO SELL WHIC H IS CANCELLED AS ON THE DATE OF SEIZURE AND DOES NOT RECORD THE PROPERTY TO BE PURCHASED OR SOLD, IS MISPLACED AND NOT WARRANTED. THE SALE CONSIDERATION AS RECORDED IN THE REGISTERED DEED CA N BE SUBSTITUTED BY ANOTHER HIGHER FIGURE ONLY WHEN THERE IS SPECIFIC EVIDENCE DIRECT OR CIRCUMSTANTIAL TO CONTRADICT THE SAME. THE HON'BLE APEX COURT IN THE 15 CASE OF K.P. VARGHESE 131 ITR 597 IS DIRECTLY ON TH E ISSUE. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S SATINDER KUMAR (2001) 250 ITR 484 HAS ALSO CLEARLY HELD THAT THE ASSESSING OFFICER WA S NOT COMPETENT TO MAKE ADDITION IN ABSENCE OF CREDIBLE EVIDENCE, IN RESPECT OF INVESTMENT MADE OVER AND ABOVE CONSIDERATION RECORDED, IN THE SALE DEED. THE EVIDENCE RELIED UPON BY THE ASSESSING OFFICER IN THE FORM OF AGREEMENT TO SELL, BECAUSE O F VARIOUS SHORT COMINGS HIGHLIGHTED ABOVE, CANNOT BE SAID TO BE CREDIBLE SO AS TO BE TAKEN AS THE BASIS OF SUBSTITUTING THE SALE CONSIDERATION AS RECORDED IN THE REGISTERED DEED. IN THE CIRCUMSTANCES THE ADDITION MADE BY THE ASSESSING OFFICER IS DIRECTED TO BE DELETED. IN THE RESULT APPEAL IS ALLOWED. 7. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE ASSESSING OFFICER HAS RELIED UPON THE COPY OF THE AGREEMENT TO SELL SEIZED DURING THE COURSE OF SEARCH OPERATION, WHICH HAS ADMITTEDLY BEEN CANCELLED BY THE PARTIES BY MARKING CROSS ON THE SAME. IT IS ALSO ADMITTED FACT THAT THE SAID AGREEMENT IN QUESTION DID NOT HAVE ANY PROPER IDENTIFICATION OF THE LAND PROPOSED TO BE SOLD. N O SPECIFIC PROPERTY IS MENTIONED IN THE SAID AGREEMEN T FOR THE PURPOSE OF SALE. NO EVIDENCE HAS BEEN BROUGHT ON RECORD IF THE SAID AGREEMENT TO SELL WAS ACTED UPON BY THE CONCERNED PARTIES. THE SELLER TO THE AGREEMENT TO SELL OR THE WITNESSES TO THE AGREEMENT TO SELL HAVE NOT BEEN EXAMINED EITHER BY THE SEARCH PARTY OR THE ASSESSING OFFICER. THE ASSESSEE IS ADMITTEDLY NOT PARTY TO THE AGREEMENT T O SELL IN QUESTION AND NONE OF THE PERSONS RELATED TO THE ASSESSEE COMPANY ALSO CONNECTED WITH THE SAID AGREEMENT IN QUESTION. NO EVIDENCE HAS BEEN FOUND DURING THE COURSE OF SEARCH TO PROVE IF ANY OVER AN D ABOVE CONSIDERATION HAVE BEEN PAID IN RESPECT OF ANY PROPERTY PURCHASED BY THE ASSESSEE. DURING THE COURSE OF SEARCH ALSO, NO ADVERSE MATERIAL WAS FOUND AGAINST THE ASSESSEE TO JUSTIFY ANY UNACCOUNTED INVESTMENT MADE IN ANY PROPERTY. SINCE THE AGREEMENT IN QUESTION IS CANCELLED DOCUMENT AND DID NOT RELATE TO THE ASSESSEE DIRECTL Y OR INDIRECTLY, THEREFORE, THE ASSESSING OFFICER HAS MERELY INFERRED THAT THE ASSESSEE MIGHT HAVE PAID SOME MORE CONSIDERATION OVER AND ABOVE WHAT IS STATED IN THE REGISTERED DOCUMENTS. IT WAS MERELY THE SUSPICION OF THE ASSESSING OFFICER TO MAKE ADDITION AGAINST THE ASSESSEE. HOWEVER, IT IS WEL L SETTLED LAW THAT SUSPICION, WHATSOEVER MAY BE STRONG, CANNOT TAKE PLACE OF LEGAL PROOF. IN THE ABSENCE OF ANY ADVERSE MATERIAL AGAINST THE 16 ASSESSEE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE IN THE ORDER OF THE LEARNED CIT (APPEALS) IN DELETING THE ADDITION. THE DEPARTMENTAL APPEAL THUS, HAS NO MERIT AND IS LIABLE TO BE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF DECEMBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 TH DECEMBER, 2014 5. THE LD. PRINCIPAL CIT (CENTRAL) LUDHIANA, AFTER PASSING OF THE ORDER BY ITAT DATED 12.12.2014 ISSUE D A SHOW CAUSE NOTICE TO THE ASSESSEE UNDER SECTION 2 63 OF THE INCOME TAX ACT DATED 08.01.2015 STATING THE SAM E FACTS AND NOTED THAT DOCUMENT PAGE NO. 34-35 OF ANN EXURE A-9 WAS SEIZED FROM M/S NARAIN & COMPANY WHICH IS S ALE AGREEMENT OF THE LAND BETWEEN SHRI RAJINDER PURI & OTHERS AND SHRI BHOLA NATH. THE ASSESSING OFFICER MADE AD DITION OF RS. 23,62,500/- IN RESPECT OF 4 BIGHA 10 BISWA PURCHASED BY THE ASSESSEE FROM ONE SHRI SUMIT GUPTA . HOWEVER, NO ADDITION IN RESPECT OF REMAINING LAND I .E. ABOUT 44 BIGHA HAS BEEN MADE BY THE ASSESSING OFFIC ER EVEN THOUGH, LAND IS PART OF 49 BIGHA IN THE SAME V ILLAGE WHICH IS EVIDENT FROM THE SEIZED PAPER. THE PCIT A LSO NOTED IN THE SHOW CAUSE NOTICE THAT COPY OF THE SAM E AGREEMENT WHICH IS NOT CANCELLED AND IS ATTESTED BY NOTARY PUBLIC, HAS BEEN RECEIVED FROM INDEPENDENT SOURCES IN THE COURSE OF ASSESSMENT PROCEEDINGS. THIS DOCUMENT SUPPLEMENT THE SHORTCOMINGS IN THE SEIZED DOCUMENT AND 17 AUTHENTICITY OF THIS DOCUMENT WAS REQUIRED TO BE EX AMINED AND ADDITION OF RS. 2,31,00,000/- WAS REQUIRED TO B E MADE FOR ENTIRE PROPERTY. SINCE THE COPY OF THE AGREEME NT IN QUESTION WAS RECEIVED FROM THE INDEPENDENT SOURCES AND IT IS NOT EXAMINED BY THE ASSESSING OFFICER, THEREFORE , ORDER OF THE ASSESSING OFFICER DATED 25.03.2013 WAS CONSI DERED ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. 6. THE ASSESSEE SUBMITTED BEFORE LD. PRINCIPAL CIT (CENTRAL) THAT SAME SEIZED PAPER WAS CONSIDERED BY THE ASSESSING OFFICER AT ASSESSMENT STAGE AND LD. CIT(A PPEALS) HAVE DELETED THE ENTIRE ADDITION AND THE TRIBUNAL A LSO DISMISSED DEPARTMENTAL APPEAL. THEREFORE, NO ACTIO N CAN BE TAKEN UNDER SECTION 263 OF THE INCOME TAX ACT ON THE SAME MATTER IN ISSUE. THE PCIT, HOWEVER, DID NOT A CCEPT CONTENTION OF THE ASSESSEE AND FOUND THAT NO ADDITI ON OF THE REMAINING LAND I.E. ABOUT 44 BIGHA HAS BEEN MAD E BY THE ASSESSING OFFICER WHICH IS FORMING PART OF THE SAME VILLAGE AND ADDITION IS REQUIRED TO BE MADE OF RS. 2,31,00,000/-. COPY OF THE SEIZED DOCUMENT WHICH I S NOT CANCELLED, HAS BEEN RECEIVED FROM INDEPENDENT SOURC ES. AUTHENTICITY AND CORRECTNESS OF THE SAME HAS NOT BE EN EXAMINED BY THE ASSESSING OFFICER. THEREFORE, ORIG INAL ASSESSMENT ORDER WAS SET ASIDE AND ASSESSING OFFICE R WAS DIRECTED TO MAKE THE ASSESSMENT AFRESH DENOVO. 7. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT. THE LD. C OUNSEL 18 FOR THE ASSESSEE REFERRED TO PB-1 WHICH IS SHOW CAU SE NOTICE ISSUED BY ASSESSING OFFICER AT ASSESSMENT ST AGE AND AT SR.NO. 37, ASSESSING OFFICER ASKED THE EXPLA NATION OF THE ASSESSEE WITH REGARD TO PURCHASE OF LAND OF 49 BIGHA IN MANDI GOBINDGARH AND ALSO CALLED FOR THE D ETAILS OF THE LANDS PURCHASED THROUGH REGISTERED SALE DEED S. PB-6 IS REPLY OF THE ASSESSEE BEFORE ASSESSING OFFI CER IN WHICH ASSESSEE EXPLAINED THAT LAND OF 49 BIGHA SITU ATED AT VILLAGE SALANI WAS PURCHASED BY ASSESSEE AND TOTAL AMOUNT PAID BY ASSESSEE COMPANY TO THE BUYERS AMOUNTING TO RS. 68,36,500/- AS PER THE REGISTRATION DEED, COPIES OF THE DOCUMENTS WERE ALSO FILED AND DETAILS OF THE PERSON S FROM WHOM PROPERTIES HAVE BEEN PURCHASED WAS ALSO EXPLAI NED. THE ASSESSEE ALSO EXPLAINED THE SEIZED PAPER IN QUE STION DID NOT BELONG TO THE ASSESSEE AND EVEN NO NAME OF THE ASSESSEE HAS BEEN MENTIONED IN THE SAME SEIZED DOCUMENT. SINCE THE SEIZED DOCUMENT ALSO INDICATES THAT IT IS CANCELLED AGREEMENT AND IT DID NOT BELONG TO THE ASSESSEE, THEREFORE, NO ADDITION COULD BE MADE ON T HE BASIS OF THE SAME. PB-10 IS LAND ACCOUNT SHOWING PURCHASE OF LAND FOR RS. 68,36,500/-. PB-11-58 ARE REGISTERED SALE DEEDS AND PB-39 BELONG TO SHRI SUMI T GUPTA. PB-61-62 IS THE SEIZED PAPER IN QUESTION WHI CH IS CANCELLED DOCUMENT AS WAS FOUND DURING THE COURSE O F SEARCH. HE HAS SUBMITTED THAT ON THE SAME MATTER I N ISSUE, LD. CIT(APPEALS) DELETED THE ENTIRE ADDITION VIDE ORDER DATED 03.09.2013 AND THE ORDER OF THE LD. CIT(APPEALS) HAS BEEN CONFIRMED BY THE ITAT CHANDIG ARH 19 BY DISMISSING DEPARTMENTAL APPEAL VIDE ORDER DATED 12.12.2014 (SUPRA). THE LD. COUNSEL FOR THE ASSESS EE, THEREFORE, SUBMITTED THAT SINCE SEIZED DOCUMENT DID NOT BELONG TO THE ASSESSEE AND SAME IS REFERRED TO BY T HE LD. PCIT IN THE ORDER UNDER SECTION 263 OF THE ACT, THE REFORE, LD. PCIT, ON THE SAME MATTER IN ISSUE SHOULD NOT BE LIEVE COPY OF THE SAME SEIZED PAPER. SINCE CANCELLED SEI ZED PAPER WAS RECOVERED DURING THE COURSE OF SEARCH, THEREFORE, COPY OF THE SAME HAS NO RELEVANCE, MORE SO WHEN SAME DID NOT RELATE TO THE ASSESSEE. THE ASSE SSING OFFICER EXAMINED THE ENTIRE ISSUE AT ASSESSMENT STA GE AND TOOK ONE OF THE POSSIBLE VIEW BASED ON THE SAME SEI ZED DOCUMENT THEREFORE, ON MERE DIFFERENCE OF OPINION, PCIT SHOULD NOT HAVE RESORTED TO ACTION UNDER SECTION 26 3 OF THE ACT. HE HAS FURTHER SUBMITTED THAT THE SAME IS SUE, PRIOR TO THE PROCEEDINGS UNDER SECTION 263 OF THE A CT HAVE BEEN EXAMINED BY THE LD. CIT(APPEALS) AND THE ITAT CHANDIGARH BENCH, THEREFORE, ORDER OF THE ASSESSING OFFICER MERGED WITH THE ORDER OF THE APPELLATE AUTH ORITIES AND AS SUCH, PRINCIPAL CIT HAS NO JURISDICTION TO I NVOKE PROCEEDINGS UNDER SECTION 263 OF THE ACT. 7(I) ON THE OTHER HAND, LD. DR RELIED UPON IMPUGNED ORDER AND SUBMITTED THAT COPY OF THE SAME SEIZED PA PER IS RELEVANT AND ASSESSING OFFICER MERELY MADE ADDITION ON THE BASIS OF 4 BIGHA. FINDINGS OF ITAT ALSO SHOW T HAT ASSESSING OFFICER DID NOT MAKE INDEPENDENT ENQUIRY. UN- CANCELLED COPY OF THE SEIZED PAPER IS NOT PART OF T HE RECORD 20 OF THE ASSESSING OFFICER, HOWEVER, SAME IS MENTIONE D IN THE SCRUTINY PROCEEDINGS FOR MAKING REFERENCE FOR INITIATING PROCEEDINGS UNDER SECTION 263 OF THE INC OME TAX ACT. THE LD. DR, THEREFORE, SUBMITTED THAT THE ORD ER OF THE ASSESSING OFFICER WAS RIGHTLY HELD TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE BECAU SE ASSESSING OFFICER SHOULD HAVE MADE ENTIRE ADDITION INCLUDING 44 BIGHA OF THE LAND PURCHASED IN THE SAM E VILLAGE. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS. SECTION 2 63 OF THE INCOME TAX ACT READS AS UNDER : 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MA Y CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY TH E [ASSESSING] OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE A N OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MA DE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THER EON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSE SSMENT AND DIRECTING A FRESH ASSESSMENT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN ORDER PASSED [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT CO MMISSIONER [OR DEPUTY COMMISSIONER] OR THE INCOME-TAX OFFICER ON THE BASIS OF THE DIRECTIONS ISSUED BY THE [JOINT] COMMISSION ER UNDER SECTION 144A ; (II) AN ORDER MADE BY THE [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHAL F UNDER SECTION 120 ; (B) 'RECORD' [SHALL INCLUDE AND SHALL BE DEEMED AL WAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UN DER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER; 21 (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER O F ANY APPEAL [FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1 988], THE POWERS OF THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER UNDER THIS SUB- SECTION SHALL EXTEND [AND SHALL BE DEEMED ALWAYS T O HAVE EXTENDED] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERE D AND DECIDED IN SUCH APPEAL.] [(2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSE QUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING OR DIRECTION CONTAIN ED IN AN ORDER OF THE APPELLATE TRIBUNAL, [NATIONAL TAX TRIBUNAL,] TH E HIGH COURT OR THE SUPREME COURT. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2), THE TIME TAKEN IN GIVI NG AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. 9. SECTION 263(1) EXPLANATION (C) PROVIDES THAT WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AN D PASSED BY THE ASSESSING OFFICER HAD BEEN SUBJECT MA TTER OF ANY APPEAL FILED ON OR BEFORE OR AFTER FIRST DAT E OF JUNE, 1988, POWERS OF THE COMMISSIONER UNDER THIS S UB- SECTION SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. IT WOULD, THEREFORE, SHOW THAT IF A MATTER IN ISSUE HAS BEEN CONSIDERED IN AP PEAL AND DECIDED BY THE APPELLATE AUTHORITIES, THE SAME COULD NOT BE SUBJECT MATTER OF REVISION UNDER SECTION 263 OF THE INCOME TAX ACT. IT IS NO EXPLAINED WHEN ORIGIN AL SEIZED DOCUMENT HAS ALREADY BEEN CONSIDERED BY THE APPELLATE AUTHORITIES AGAINST THE REVENUE, HOW THE COPY OF THE SAME IS ADMISSIBLE IN EVIDENCE IN SUBSEQUENT 22 REVISION PROCEEDINGS UNDER SECTION 263 OF THE INCOM E TAX ACT. 10. HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE O F CIT VS SHALIMAR HOUSING & FINANCE LTD. 320 ITR 157 HELD AS UNDER : A SEARCH WAS CONDUCTED IN THE ASSESSEE'S GROUP AND A BLOCK ASSESSMENT WAS PASSED WITH SEVERAL ADDITIONS AGAINST THE ASSESSEE. THE COMMISSIONER (APPEALS) ALLOWED THE APPEAL OF THE ASSESSEE IN PAR T. THE ASSESSEE AND THE DEPARTMENT PREFERRED APPEALS WHICH WERE PENDING DISPOSAL BEFORE THE TRIBUNAL. MEANWHILE, THE COMMISSIONER UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961, REVISED THE ORDER OF THE ASSESSING OFFICER ON THE GROUNDS THAT (I) FROM THE PROJECT-WISE ANALYSIS IT WAS PERCEPTIBLE THAT WORK- IN- PROGRESS AS PER THE SEIZED DOCUMENTS AMOUNTED TO RS . 26,83,97,827 AS AGAINST RS. 8,42,62,301 AS ARRIVED AT BY THE ASSESSEE WHICH RESULTED IN UNDERVALUATION OF THE WORK-IN-PROGRESS TO THE EXTENT OF RS. 18.41 CRORES; (II) THAT ONE OF THE DIRECTORS OF THE ASSES SEE HAD ADMITTED TO HAVE RECEIVED SALARY AND PERQUISITE S WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE; (III) THAT THE ASSESSING OFFICER IN THE INDIVIDUAL CASE OF THE DIRECTORS HAD HELD THAT EACH DIRECTOR HAD BEEN PAID SALARY AND PERQUISITES TO TH E TUNE OF RS. 84,000 BUT, WHILE FRAMING THE ASSESSMEN T OF THE ASSESSEE, SALARY AND PERQUISITES OF ONLY ONE DIRECTOR WERE ADDED TO THE INCOME OF THE ASSESSEE; AND (IV) THAT DURING THE ASSESSMENT PROCEEDINGS OF INS BANK, WHICH WAS RUN BY THE ASSESSEE, IT COULD NOT EXPLAIN THE DEPOSIT OF RS. 79,40,246 AND, THEREFORE, THE ADDITION OF THE AMOUNT WAS MADE IN T HE CASE OF THE BANK ON PROTECTIVE BASIS WITH THE FINDI NG THAT THE ADDITION SHOULD BE CONSIDERED ON SUBSTANTI VE 23 BASIS IN THE HANDS OF VARIOUS DEPOSITORS AND ALSO PROTECTIVE ADDITION SHOULD BE MADE IN THE HANDS OF THE ASSESSEE BUT IT WAS NOT CONSIDERED BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT OF T HE ASSESSEE. THE TRIBUNAL HELD THAT THE ACTION OF THE COMMISSIONER WAS NOT JUSTIFIED. ON APPEAL: HELD , DISMISSING THE APPEAL, THAT THE TRIBUNAL HAD ADVERTED TO THE FACTUAL, POSITION IN A DETAILED MAN NER, HAD APPRECIATED THOSE ISSUES THAT HAD BEEN TAKEN UP BY THE COMMISSIONER WHILE EXERCISING JURISDICTION UNDER SEC: 263 AND HELD THAT THE FACETS HAD BEEN DEALT WITH BY THE COMMISSIONER (APPEALS) AND, THEREFORE, BY VIRTUE OF CLAUSE (C) OF SECTION 263(1 ) THE COMMISSIONER WAS NOT COMPETENT TO ASSUME JURISDICTION AND DIRECT REASSESSMENT. THE ORDER OF THE TRIBUNAL WAS JUSTIFIED. 10(I) THE AFORESAID JUDGEMENT HAS BEEN CONFIRMED B Y HON'BLE SUPREME COURT BY DISMISSING THE SLP OF THE DEPARTMENT REPORTED IN 322 ITR (STATUTES)-14 IN THE NAME OF CIT VS SHALIMAR HOUSING & FINANCE LTD. 11. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE PROVISIONS CONTAINED UNDER SECTION 263(1) EXPLANATI ON (C) OF THE INCOME TAX ACT AND THE JUDGEMENT ABOVE, IT IS CLEAR THAT LD. PRINCIPAL CIT HAS EXCEEDED HIS JURIS DICTION UNDER SECTION 263 OF THE ACT. SINCE THE SAME SEIZE D DOCUMENT HAS BEEN CONSIDERED BY ASSESSING OFFICER W HO MADE THE ADDITION AGAINST THE ASSESSEE WHICH REMAIN ED SUBJECT MATTER IN APPEAL BEFORE LD. CIT(APPEALS) AN D ADDITION HAS BEEN DELETED, WOULD CLEARLY SHOW THAT THE MATTER IN ISSUE REMAINED IN SUBJECT MATTER IN APPEA L 24 BEFORE LD. CIT(APPEALS) PRIOR TO INITIATION OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. NOT ONLY THIS, WHEN THE DEPARTMENT HAS PREFERRED APPEAL BEFORE TRIBUNAL, TRIBUNAL ALSO DISMISSED THE DEPARTMENTAL APPEAL VIDE ORDER DATED 12.12.2014 (SUPRA). THE TRIBUNAL IN THE FINDING HAS SPECIFICALLY OBSERVED T HAT ASSESSEE IS NOT PARTY TO THE AGREEMENT TO SELL IN QUESTION AND NONE OF THE PERSONS RELATING TO THE ASSESSEE COMPANY ALSO CONNECTED WITH THE SAID AGREEMENT IN QUESTION. IT WAS ALSO NOTED THAT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO P ROVE IF ANY OVER AND ABOVE CONSIDERATION HAVE BEEN PAID IN RESPECT OF ANY PROPERTY PURCHASED BY THE ASSESSEE COMPANY. EVEN DURING THE COURSE OF SEARCH, NO ADVE RSE MATERIAL WAS FOUND AGAINST THE ASSESSEE. IT WAS AL SO NOTED THAT SINCE AGREEMENT IN QUESTION IS CANCELLED DOCUMENT AND DID NOT RELATE TO THE ASSESSEE DIRECTL Y OR INDIRECTLY, THEREFORE, ASSESSING OFFICER HAS MERELY INFERRED THAT ASSESSEE MIGHT HAVE PAID SOME MORE CONSIDERATION OVER AND ABOVE WHAT IS STATED IN THE REGISTERED DOCUMENT. THE DEPARTMENTAL APPEAL WAS DISMISSED BECAUSE THE ADDITION WAS FOUND TO HAVE BE EN MADE MERELY ON SUSPICION. 12. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KULWANT RAI 291 ITR 36 HELD AS UNDER : HELD, DISMISSING THE APPEAL (I) THAT ADMITTEDLY TH E ASSESSEE HAD NOT SIGNED THE AGREEMENT IN QUESTION 25 AND SINCE HE HAD NOT SIGNED THE AGREEMENT, NO LIABILITY COULD BE ATTRACTED QUA THAT AGREEMENT TOWARDS HIM SINCE HE WAS NOT A PARTY TO THE AGREEMENT TILL HE HAD SIGNED THE AGREEMENT. THE MERE FACT THAT THIS AGREEMENT WAS FOUND IN THE POSSESSION OF THE ASSESSEE DID NOT LEAD ANYWHERE. THUS, THE ADDITION OF RS. 17,00,892/- MADE BY THE ASSESSING OFFICER BY WAY OF HALF SHARE OF THE ASSESSEE IN THE EARNEST MONEY WAS BASED ON SURMISES AND GUESS WORK ONLY AND WAS LIABLE TO BE DELETED. 13. SINCE THE SEIZED DOCUMENT PAGE NO. 34-35 OF ANNEXURE A-9 SEIZED FROM THE OFFICE PREMISES OF M/S NARAIN & COMPANY WAS NOT EXECUTED BY THE ASSESSEE COMPANY AND DID NOT RELATE TO THE ASSESSEE COMPANY AT ALL, THEREFORE, WHERE IS THE QUESTION OF MAKING ANY ADDITION AGAINST THE ASSESSEE EVEN IN RESPECT OF TH E BALANCE LAND OF 44 BIGHA AS IS NOTED IN THE IMPUGNE D ORDER. THE ASSESSING OFFICER, AT THE ASSESSMENT ST AGE HAS EXAMINED THE ISSUE IN DETAIL AND ASSESSEE ALSO FILED DETAILED REPLY BEFORE ASSESSING OFFICER IN RESPECT OF THE ENTIRE PROPERTY SO PURCHASED AND ALSO MADE A DETAIL ED REPLY ON THE SEIZED PAPER, THEREFORE, IT CAN NOT BE SAID THAT ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE I N DETAIL. THEREFORE, WHEN PRIOR TO THE INITIATION OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT, MATTER IN ISSUE HAS BEEN EXAMINED BY THE APPELLATE AUTHORITIE S I.E. LD. CIT(APPEALS) AND ITAT CHANDIGARH BENCH ON THE BASIS OF THE SEIZED DOCUMENT, THEREFORE, PRINCIPAL CIT WAS NOT COMPETENT TO ASSUME JURISDICTION UNDER SECT ION 26 263 OF THE ACT AND DIRECT THE RE-ASSESSMENT IN THE MATTER. THE DECISION IN THE CASE OF SHALIMAR HOUSI NG & FINANCE LTD. (SUPRA) SQUARELY APPLY IN FAVOUR OF TH E ASSESSEE. 14. THE CIT WAS SWAYED BY THE COPY OF THE SEIZED DOCUMENT WHICH, ACCORDING TO HIM WAS RECEIVED FROM INDEPENDENT SOURCES. IT WOULD, THEREFORE, CLEARLY SHOW THAT THE COPY OF THE SAID AGREEMENT WHICH IS REFERR ED TO BY LD. PRINCIPAL CIT WAS NOT SEIZED DURING THE COUR SE OF SEARCH. THEREFORE, HOW THIS COULD BE RELEVANT IN PROCEEDINGS UNDER SECTION 153A OF THE ACT, WAS NOT AT ALL EXPLAINED. IT IS ADMITTED FACT THAT DURING THE COURSE OF SEARCH, THE SEIZED PAPER AS WAS RECOVERED, WAS A CANCELLED/CROSSED DOCUMENT. THEREFORE, THERE IS NO QUESTION OF CONSIDERING SAME AGAINST THE ASSESSEE, THAT TOO WHEN THE SAME IS NOT SIGNED BY THE ASSESSEE COMPANY. FURTHER MORE WHEN THE ORIGINAL SEIZED DOCUMENT PAGE 34-35 OF ANNEXURE A-9 WAS CONSIDERED AND DISCUSSED IN DETAIL AND IT IS HELD BY THE APPEL LATE AUTHORITIES THAT NO ADDITION COULD BE MADE ON THE B ASIS OF THE SAME CANCELLED DOCUMENT AGAINST THE ASSESSEE , THERE IS NO QUESTION OF CONSIDERING THE SAME AGAINS T THE ASSESSEE ON THE BASIS OF COPY OF THE SAME SEIZED DOCUMENT. WHEN THE MATTER IN ISSUE HAS ALREADY BEEN EXAMINED BY THE APPELLATE AUTHORITIES, PRIOR TO PROCEEDINGS UNDER SECTION 263 OF THE ACT, THE LD. PRINCIPAL CIT SHOULD NOT HAVE RESORTED TO THE PRESE NT 27 PROCEEDINGS UNDER SECTION 263. WHEN THE ORDER OF T HE ASSESSING OFFICER IS MERGED WITH THE ORDERS OF THE APPELLATE AUTHORITIES, THEREFORE, PROCEEDINGS UNDER SECTION 263 OF THE ACT ON THE SAME MATTER IN ISSUE COULD NOT BE RESORTED TO IN VIEW OF THE EXPLANATION (C) O F SUB SECTION (1) OF SECTION 263 OF THE ACT. WE MAY ALSO REFER TO THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN TH E CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT 243 ITR 83 WHEREIN IT WAS HELD AS UNDER : EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME- TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. 15. IN THIS CASE, THE ASSESSING OFFICER EXAMINED TH E SEIZED DOCUMENT AT ASSESSMENT STAGE AND HIS ORDER H AS BEEN SET ASIDE BY THE APPELLATE AUTHORITIES, THEREF ORE, THERE IS NO QUESTION OF CONSIDERING HIS ORDER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. IN THIS CASE, WHEN THE SEIZED DOCUMENT IT SELF WAS NOT RELIED UPON BY THE APPELLATE AUTHORITIES, T HE COPY OF THE SAME AGREEMENT AS WAS RECEIVED THROUGH 28 INDEPENDENT SOURCES, AS STATED BY THE LD. PRINCIPAL CIT WOULD NOT MAKE ANY DIFFERENCE IN FAVOUR OF THE REVE NUE. 16. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THE PROCEEDINGS UNDER SECTION 263 OF THE ACT A RE CLEARLY BEYOND THE COMPETENCE OF LD. PRINCIPAL CIT AND WHOLE PROCEEDINGS ARE UNJUSTIFIED AND UNREASONABLE. THEREFORE, THE IMPUGNED ORDER COULD NOT BE SUSTAINE D IN LAW. WE, ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER UNDER SECTION 263 OF THE ACT AND QUASH THE SAME. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH JANUARY, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD