Sh. Kashmir Singh Malhi, Phagwara V. The The Income-tax Officer, Phagwara

ITA 46/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8843 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: SSH SUDHIR SEHGAL; PIYUSH BANSAL
• Keywords: Source of fund; Additional evidence; Corroborative evidences; Assessment record; Onus to prove
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.46(ASR)/2014 ASSESSMENT YEAR:2010-11 PAN: AKRPM4 174C SH. KASHMIR SINGH MALHI, VS. INCOME TAX OFFICER, ADVOCATE, CIVIL COURTS, WARD-2, PHILLAUR. PHILLAUR. (APPELLANT) (RESPONDENT) APPELLANT BY:S/SH. SUDHIR SEHGAL & PIYUSH BANSAL, CA RESPONDENT BY: SH. S.S. KANWAL, DR DATE OF HEARING:10/02/2016 DATE OF PRONOUNCEMENT: 25/02/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2010-11 AGAINST THE LD. CIT(A)S ACTION OF CONFIRMING THE A DDITION OF RS.30,40,200/- OUT OF TOTAL ADDITION OF RS.40,31,20 0/- MADE BY THE AO UNDER SECTION 69A OF THE ACT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N INDIVIDUAL WHO EARNS HIS LIVELIHOOD FROM THE PROFESSION OF A LAWYE R. THE ASSESSEE FILED HIS INCOME TAX RETURN FOR THE YEAR UNDER CONSIDERAT ION ON 26.11.2010 DECLARING THEREIN AN INCOME OF RS.4,33,580/-. HOWEV ER, THE ASSESSMENT IN THIS CASE WAS COMPLETED VIDE ORDER U/S 143(3) OF THE INCOME TAX ACT, ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 2 1961 ON 05.03.2013 AT AN ASSESSED INCOME OF RS.44,4 5,480/-. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER M ADE AN ADDITION OF RS.40,31,200/- TO THE RETURNED INCOME OF THE ASSESS EE, WHICH, ACCORDING TO THE ASSESSING OFFICER, REPRESENTS THE UNEXPLAINE D CASH DEPOSITS INTO THE BANK ACCOUNTS OF THE ASSESSEE MAINTAINED BY HIM WITH VARIOUS BANKS. 3. THE AO OBSERVED AS FOLLOWS: IN THIS CASE RETURN OF INCOME WAS FILED ON 26.11.2 010 DECLARING INCOME OF RS. 4,33,580/-. THE SAME WAS PR OCESSED U/S 143(1) OF THE INCOME-TAX ACT. LATER ON THIS CAS E WAS SELECTED FOR SCRUTINY MANUALLY WITH THE PRIOR APPRO VAL OF THE WORTHY ADDI.COMMISSIONER OF INCOME-TAX, PHAGWARA RA NGE. PHAGWARA AND NOTICE UNDER SECTION 143(2) WAS ISSUED ON 23.09.2011 WHICH WAS SERVED UPON THE ASSESSEE ON 26.09.2011. SUBSEQUENTLY NOTICES U/S 142(0/143(2) O F THE INCOME-TAX ACT ALONGWITH QUESTIONNAIRE WERE ISSUED ON 24/25.05.2012 AND SENT THROUGH POST. NOW WITH THE C HANGE IN THE HOLDER OF THE OFFICE FRESH NOTICE U/S 142(1) AND 143(2) OF THE IT. ACT WERE ISSUED ON 06.07.2012. IN RESPONSE TO THESE NOTICES, SH. PIYUSH BANSAL,C.A. ATTENDED THE ASSESS MENT PROCEEDINGS FROM TIME TO TIME. REQUIRED INFORMATION S HAVE BEEN FURNISHED WHICH HAVE BEEN PLACED ON THE RECORD . THE ASSESSEE DERIVED INCOME FROM PROFESSION. DURING ASS ESSMENT PROCEEDING, THE FOLLOWING ISSUES EMERGED:- 2. DURING THE SAID YEAR, THE ASSESSEE DEPOSITED CAS H ON VARIOUS DALES AT RS. 11,48,700/- INTO HIS SAVING AC COUNT 63101504447 WITH ICLCL BANK LTD., G.T. ROAD, PHAGWA RA, RS. 28,60,100/- IN PUNJAB NATIONAL BANK, ALTA GORAYA A/ C NO. 26203 AND RS. 2,90,000/- IN PUNJAB AND SIND BANK, JALANDHAR A/C NO. 8620. THE ASSESSEE WAS ASKED TO E XPLAIN THE SOURCES OF CASH CREDIT ENTRIES OF THE SAID ACCO UNTS. IN RESPONSE TO THIS QUERY, THE ASSESSEES COUNSEL FILE D WRITTEN SUBMISSION STATING THAT CASH DEPOSITS IN THE ACCOUN TS ARE FROM THE SALE PROCEEDS OF HIS PROPERLY NO. 964 AT URBAN ESTATE, PHAGWARA AND HIS PROFESSIONAL RECEIPTS. THE PLOT ME ASURING 8 MARLAS WAS ALLOTTED BY PUDA DURING THE FINANCIAL YE AR 2007- 08FOR RS. 18,13,163/- AND SPENT RS. 25,03,000/- ON ITS CONSTRUCTION. THIS CONSTRUCTED HOUSE WAS SOLD FOR R S. 45,58,205/- TO MRS. GURDIP KAUR W/O MR. RESHAM SING H, VILL. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 3 RURKEE, PATTI KHERA TEHSIL PHILLAUR VIDE AGREEMENT DATED 02.05.2009. THE ASSESSEE FILED CERTIFIED COPY OF AD VANCE AGREEMEN T, COPY OF ALLOTMENT LETTER DATED 09.06.20 10 ISSUED BY THE PUDA IN FAVOUR OF MRS. GURDEEP KAUR, COPY OF AFFIDAVITS AND COPY OF IDENTITY BOND. AS PER CERTIFIED COPY OF ADVANCE AGREEMENT, THE ASS ESSEE WOULD RECEIVE THE PAYMENT IN THE FOLLOWING INSTALLM ENTS: - ADVANCE RECEIVED:- RS. 3 LACS FROM 7.05.2009 TO 10.05.2009 RS. 4.5 LACS FROM 16.05.2009 TO 21.05.2009 RS. 5 LACS FROM 06.06.2009 TO 04.06.2009 RS. 13 LACS FROM 21.07.2009 TO 25.07.2009 RS. 13 LACS FROM 15.10.2009 TO 20.10.2009 RS. 4 LACS FROM 10.01.2010 TO 16.01.2010 RS.50,000/- BALANCE RS. 2,58,2057- WILL BE PAID BY THE BUYER DIRECTLY TO PUD A ON ISSUE OF ALLOTMEN T LETTER IN HER NAME. THE ASSESSES WAS ASKED VIDE THIS OFFICE L ETTER DATED 10.10.2012 TO PRODUCE THE FOLLOWING DOCUMENTS OTHERWISE WHOLE CASH CREDIT ENTRIES IN HIS BANK ACC OUNT WILL BE TREATED AS UNEXPLAINED INCOME EARNED DURING THE SAID YEAR :- I. A COPY OF BANK ACCOUNT STATEMENT OF SMT. GURDIP KA UR (PURCHASER) II.ORIGINAL AGREEMENT MADE WITH THE PUR CHASER. HI. COPY OF PASSPORT OF SMT. GURDIP KAUR. IV. INTIMATE THE SOURCE OF INCOME OF SMT. GURDIP KAUR. V. DETAIL AND SOURCES OF EACH DEBIT AND CREDIT ENTRY OF THE SAID BANK ACCOUNT STA TEMENT. IN RESPONSE TO THIS LETTER, THE A.R. OF THE ASSESSE E FILED WRITTEN SUBMISSION ON 10.12.2012 IN WHICH STATED THAT :- THE ASSESSEE COULD NOT OBTAIN THE COPY OF INDIVIDUA L BANK ACCOUNT OF THE BUYER MRS. GURDIP KAUR. HOWEVER, THE RE IS A JOINT ACCOUNT OF SMT. GURDIP KAUR W/O KEWAL SINGH W ITH HIS BROTHER MR. PIARA SINGH AND NEPHEW MR. HAH KRIS HA N WITH CAPITAL LOCAL AREA BANK LTD. HOWEVER, THE ASSESSEE HAS REQUESTED THE RELATIVES OF THE BUYER TO GET A COPY OF BANK PASSBOOK OF MRS. GURDIP KAUR. II ORIGINAL AGREEMENT IS NOT AVAILABLE WITH THE ASSESSEE AS THE ORIGINAL IS ALWAYS KEPT BY THE BUYER AND THE SE LLER KEEPS THE PHOTOCOPY. III. THE ASSESSEE HAS REQUESTED THE RELATIVES OF TH E BUYER TO GET A COPY OF PASSPORT OF MRS. GURDIP JFFAUR FROM E NGLAND. TO WHICH MR. HAH KRISHAN, NEPHEW OF THE BUYER HAS ASSU RED ASSESSEE THAT THEY WILL GET THE SAME FROM MRS. GURD IP KAUR. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 4 IV. THE ASSESSEE HAS REQUESTED THE BUYER MRS. GURDI P KAUR THROUGH E- MAIL TO SEND US THE SOURCE OF PAYMENT AS -WELL AS AN AFFIDAVIT FROM HER SIDE REGARDING THE PURCHASE O FPROPERTY FROM US. IT HAS BEEN ASSURED BY HER SON IN RETURN M AIL THAT HIS MOTHER IS OUT OF STATION RIGHT NOW AND WILL BE BACK BEFORE CHRITSMAS AND THEN THEY WILL SEND US THE REQUISITE DOCUMENTS. THE ASSESSEE STATED THAT THE DOCUMENTS REQUESTED FR OM THE BUYER WILL BE SUBMITTED TO YOUR GOODSELF AS SOON AS THE SAME ARE RECEIVED BY THE ASSESSEE. THE ASSESSEE IS REGUL ARLY FOLLOWING UP WITH THEM FOR THE PURPOSE. THE A.R. OF THE ASSESSEE FILED AN AFFIDAVIT OF SH. HARI KRISHAN (NEPHEW) S/O SH. PIARA SINGH RESIDENT OF VILLAGE RU RKI TEHSIL PHILLAUR DISTT. JALANDHAR. SH. HARI KRISHAN LAND IS THE REAL SISTER OF HIS FATHER SH. PIARA SINGH AND SHE PURCHA SED ONE HOUSE NO. 964, URBAN ESTATE, PHAGWARA FROM SH. KASH MIR SINGH MALHI S/O SH. AJIT SINGH OF URBAN ESTATE, PHA GWARA FOR RS.45.58.000/- ON THE BASIS OF AGREEMENT DATED 02.0 5.2009. THE PAYMENT WAS MADE AS PER THE AGREEMENT DATED 02.05.2009. SOME OF THE PAYMENT WAS MADE BY HER AND MOST OF THE PAYMENT WAS MADE BY HIM(HARI KRISHAN) WHENEV ER SHE USED TO SEND THE MONEY TO HIM AS PER THE TERMS OF T HE AGREEMENT AND THEREAFTER HE USED TO PAY THE SAME TO ABOVE SAID SH. KASHMIR SINGH MALHI. AGAIN, NOTICE U/S 142(1) OF THE I.TAX ACT ALONGWITH LETTER WAS ISSUED TO THE ASSESSEE ON 22.02.2013 FIXING THE CAS E FOR HEARING ON 27.02.2013 VIDE WHICH HE WAS ASKED TO PR ODUCE THE ALL INFORMATION/DOCUMENTS AS ALREADY CALLED FOR VIDE THIS OFFICE LETTER DATED 10.12.2012 OTHERWISE CASE WOULD BE DECIDED ON MERITS. IN RESPONSE TO THIS LETTER, THE A.R. OF THE ASSESSEE FILED WRITTEN SUBMISSION ALONGWITH JOINT A CCOUNT BANK STATEMENT AND COPY OF ONE PAGE OF THE PASSPORT OF THE PURCHASER AND STATED THAT 'MRS. GURDIP KAUR (PURCHA SER) IS AN NRI RESIDING IN ENGLAND. HER SOURCE OF INCOME AT EN GLAND WILL BE BEST KNOWN TO HER AND IS NOT KNOWN TO ASSESSEE. THERE IS NO QUESTION ABOUT THE FINANCIAL CAPACITY OF AN NRI. FURTHER, MR. HARI KRISHAN, NEPHEW OF THE BUYER HAS ALSO CONF IRMED IN HIS AFFIDAVIT THAT SOME PAYMENTS WERE MADE BY MRS. GURDIP KAUR AND MOST OF THE PAYMENTS WERE MADE BY HIM OUT OF THE MONEY SENT BY MRS. GURDIP KAUR TO HIM, AS PER THE T ERMS OF THE AGREEMENT ', 1 HAVE GONE THROUGH THE ALL SUBMISSIONS FILED BY TH E ASSESSEE AND HIS COUNSEL AND NOTICED THE FOLLOWING DISCREPAN CIES:- ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 5 THE ALLEGED ADVANCE AGREEMENT WAS MADE BETWEEN SH. KASHMIR SINGH MALHI AND MRS. GURDIP KAUR (PURCHASER ) ON 02.05.2009. A PERUSAL OF THE PHOTOCOPY OF THE PASSP ORT OF THE PURCHASER MRS. GURDIP KAUIFAS FILED BY THE ASSESSEE ) SHOWS THAT SHE CAME TO INDIA IN THE MONTH OF JULY 2009. S HE COULD NO( HAVE PUT HER SIGNATURE ON THE SAID AGREEMENT ON 02.05.2009 WHEN SHE WAS NOT IN INDIA. SO IT CLEARLY SHOWS THAT THIS ALLEGED AGREEMENT IS FAKE AND PREPARED BY THE ASSESSEE TO JUSTIFY THE SOURCES OF CASH CREDIT ENTR EIS RELATING TO THE YEAR UNDER CONSIDERATION IN HIS BANK ACCOUNT S STATEMENT OUT OF HIS OWN UNDISCLOSED INCOME. SINCE SHE WAS NOT IN INDIA ON 02.05.2009. I.E. ON THE DATE OF AGR EEMENT, AS FILED BY THE ASSESSEE. THEREFORE, NO RELIANCE CAN B E PLACED ON THE SAID AGREEMENT. COPY OF ADVANCE AGREEMENT MADE BETWEEN SH. KASHMIR SINGH MALHI AND MRS. GURDIP KAU R ( PURCHASER ) ON 02.05.2009 IS PART OF THE ASSESSMENT ORDER AS 'ANNEXURE A' II. SH. HARI KRISHAN S/O SH. PIARA SINGH FILED AN AFFIDAVIT IN WHICH STATED ON OATH THAT THE SAID HOUSE WAS PURCHA SED BY HIS AUNT MRS. GURDEEP KAUR FOR ABOUT RS5.58,000/- O N THE BASIS OF AGREEMENT DATED 02.05.2009. THE PAYMENTS W ERE MADE AS PER GREEMENT. SOME OF THE PAYMENT WAS MADE BY HER AND MOST OF THE PAYMENTS WERE MADE BY HIM WHENE VER SHE USED TO SEND THE MONEY TO ME AS PER THE TERMS O F THE AGREEMENT AND .THEREAFTER I USED TO PAY THE SAME TO ABOVE SAID KASHMIR SINGH MALHI. ON 10.01.2010 THE AST PAY MENT WAS PAID BY HIM AND AFTER THAT SOME OF THE AMOUNT W AS PAID TO PUD A DIRECTLY BY HIM AS PER THE TERMS OF THE AG REEMENT. IN THE ABOVE SAID AFFIDAVIT SH. HARI KRISHAN HAS NOT M ENTIONED ANY AMOUNT AND (LATE OF PAYMENTS MADE BY HIM SO THI S AFFIDAVIT IS INCOMPLETE AND NOT RELIABLE. MOREOVER , ADVANCE AGREEMENT IS ALSO FAKE AS EXPLAINED ABOVE. DESPITE GIVEN FURTHER OPPORTUNITIES, THE ASSESSEE WAS NOT ABLE TO LEAD ANY EVIDENCE IN THIS REGARD. III. COPY OF JOINT BANK ACCOUNT STATEMENT OF SMT. G URDIP KAUR WITH HIS BROTHER AND NEPHEW) BEARING NO. 0122000021 80 WITH CAPITAL LOCAL AREA BANK LIMITED, RURKEE TEHSIL PHILLAUR WAS FILED BY THE A.R. OF THE ASSESSEE ON 27.02.2013 . IN THIS STATEMENT, DEBIT AND CREDIT ENTRIES DO NOT TALLY WI TH THE INSTALMENTS, CLAIMED TO BE PAID BY MRS. GURDIP KAUR OR SH. HARI KRISHAN (NEPHEW OF THE PURCHASER) TO THE ASSES SEE. MOREOVER, NO EVIDENCE REGARDING RECEIPT OF THE SAID AMOUNT BY SH. HARI KRISHAN FROM MRS. GURDIP KAUR HAS BEEN FIL ED. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 6 IV. THE ASSESSEE HAS NOT LED ANY EVIDENCE IN RESPEC T OF HIS CLAIM THAT ANY ADVANCE, EITHER IN CASH OR THROUGH B ANK ACCOUNT, FOR SALE OF PROPERTY WAS RECEIVED IN THE Y EAR UNDER CONSIDERATION. AFTER CONSIDERING THE ABOVE FACTS AND INFORMATION F ILED BY THE ASSESSEE, IT IS NOTICED THAT PROPERLY IN QUESTION W AS TRANSFERRED TO THE PURCHASER (GURDIP KAUR) BY THE P UDA ON 09,06.2010 RELEVANT TO THE ASSTT YEAR 2011-12. MRS. GURDIP KAUR (PURCHASER) WAS NOT IN INDIA ON THE DATE OF AD VANCE AGREEMENT I.E. 02.05.2009 AND THE ASSESSEE HAS PREP ARED A FAKE AGREEMENT TO EXPLAIN THE SOURCES OF CASH DEPOS ITS IN HIS SAVING BANK ACCOUNT STATEMENTS WITH THE SAID TRANSA CTION WITHOUT ANY SUPPORTING EVIDENCE. THE SUBMISSIONS FILED BY THE ASSESSEE ARE HIS AFTER THOUGHT ONLY AND HE IS MAKIN G THE EFFORTS TO JUSTIFY THE SOURCES OF ALL CASH DEPOSITS MADE DURING THE YEAR 2009-10 RELEVANT TO THE ASSTT. YEAR 2010-1 1 IN THE SHELTER OF THIS DEAL BUT HE COULD NOT PROVE THAT HE RECEIVED THE PAYMENTS ON THE DATES AS MENTIONED IN THE ADVANCE AGREEMENT (WHICH ITSELF IS NOT RELIABLE AS STATED A BOVE), WHAT PAYMENTS RECEIVED FROM THE PURCHASER MRS. GURDIP KA UR AND WHAT PAYMENTS RECEIVED FROM SH. HARI KRISHAN (NEPHE W) OF THE PURCHASER. FURTHER. SH. HARI KRISHAN (NEPHEW ) COULD NOT PROVE THAT HOW MUCH AMOUNT WAS RECEIVED FROM MRS. G URDIP KAUR AND HOW MUCH AMOUNT WAS PAID TO SH. KASHMIR SI NGH MALHI. THE ONUS TO EXPLAIN THESE FACTS/DEPOSITS LIE S SQUARELY ON THE ASSESSEE. IN VIEW OF ABOVE DISCUSSION, I AM SATISFIED THAT AL L CASH DEPOSITS IN THESE BANKS ARE UNEXPLAINED INCOME OF T HE ASSESSEE. HOWEVER, IN THE INTEREST OF NATURAL JUSTI CE, CASH FLOW STATEMENT, IN RESPECT OF CASH ENTRIES IN HIS BANK A CCOUNTS, HAS BEEN PREPARED TO IDENTIFY THE PEAK CASH BALANCE, DU RING THE YEAR, WHICH IS REPRODUCED AS UNDER:- ICICI BANK LTD. ACCOUNT NO. 504447 DATE DEBIT C RED IT BALANCE 25.04.2009 - 12,200/- 12200/- 9.5.2009 - 4,22,000/- 4,34,200/- 19.05.2009 - 5,00,000/- 9,34,200/- (A) 29.5.2009 2,50,000/- - 6,84,200/- 1.6.2009 6,00,000/- - 84,200/- ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 7 22.6.2009 20,000/- - 64,200/- 26.6.2009 10,000/- - 54,200/- 29.06.2010 10,000/- - 44,200/- 1.07.2009 10,000/- - 34,200/- 25.07.2009 - 1,70,000/- 2,04,200/- 5.09.2009 25,000/- - 1,79,200/- 17.09.2009 74,000/- - 1,05,200/- 21.09.2009 7,000/- - 98,200/- 26.10.2009 3,500/- - 94,700/- 30.11.2009 - 12,000/- 1,06,700/- 29.12 2009 - 8,000/- 1,14,700/- 25.01.2010 - 12,500/- 1,27,200/- 27.02.2010 - 12,000/- 1,39,200/- P. N.B ACCOUNT NO. 26203 DATE DEBIT C RED IT BALANCE 1.06.2009 - 12,87,000/- 12,87,000/- 22.07.2009 - 10,90,000/- 23.77.000/- 22.08.2009 - 30,000/- 24,07,000/- 20.10.2009 - 50,000/- 24,57,000/- 24.10.2009 - 3,50.000/- 28,07,000/- (B) 26.10.2009 1,00,000/- - 27,07,000/- 19.11.2009 1,10,000/ - 25,97,000/ - IN THE ABOVE CASH FLOW STATEMENTS PEAK CASH BALANCE COMES AS UNDER:-ICICI BANK LTD. AS ON 19.05.2009(A)RS. 9. 34,200/- P.N.B AS ON 24.10.2009 (B) RS .28,07,000/- PB. & SIND BANK AS ON 2.05.2009 (C) RS.2, 90,000/- TOTAL PEAK CASH BALANCE:- RS.40,31,200/- THEREFORE, THE SAID PEAK CASH BALANCE OF RS. 40,31, 200/- IS TREATED AS HIS [EXPLAINED INCOME AND ADDED IN HIS R ETURNED INCOME IN VIEW OF SECTION 69A OF THE INCOME-TAX ACT . PENALTY PROCEEDINGS U/S 271(1 )(C) OF THE ACT HAVE BEEN INI TIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 8 4. VIDE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CI T(A), THE ASSESSEE STATED AS FOLLOWS: WITH REGARD TO ABOVE MENTIONED APPEAL, IT IS RESPEC TFULLY SUBMITTED THAT THE ASSESSEE IS AN ADVOCATE BY PROFE SSION, PRACTICING AT CIVIL COURTS, PHILLAUR AND JALANDHAR. FOR THE AY 2010 - 2011, THE ASSESSEE HAS FILED HIS RETURN OF I NCOME ON 26.11.2011 DECLARING INCOME OF RS.4,33,580/-. THE A SSESSEE DERIVES INCOME FROM THE PROFESSION OF LAWYER. DURING THE RELEVANT YEAR THE ASSESSEE HAS SOLD A HO USE NO. 964 AT URBAN ESTATE, PHAGWARA MEASURING 8 MARIAS FO R ? 45,58,205/- TO ONE MRS. GURDIP KAUR, THEN RESIDENT OF VILLAGE RURKEE, PATTI KHERA, TEHSIL PHILLAUR VIDE AGREEMENT DATED 02.05.2009. COPY OF THE AGREEMENT ENTERED INTO, BET WEEN BOTH THE PARTIES IS ATTACHED AT PAGE NO. 20 OF THE PAPER BOOK. THE AGREEMENT IS DULY SIGNED BY BOTH THE BUYER AND SELL ER IN THE PRESENCE OF TWO WITNESSES ON A STAMPED PAPER. FURTH ER IT IS PERTINENT TO MENTION HERE THAT THE COPY OF THE AGRE EMENT WAS ATTESTED BY THE NOTORY PUBLIC ON 02.05.2009. DESPIT E OF THE PERSONAL SIGNATURES OF THE BUYER IN THE PRESENCE OF TWO WITNESS AND ATTESTATION BY THE NOTARY ON THE SAME D ATE, THE LEARNED A O DECLARED THAT THE BUYER WAS NOT PRESENT IN INDIA ON THAT DATE AND TERMED THIS AGREEMENT AS FAKE, WHI CH IS ABSOLUTELY AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE. BOTH THE BUYER AND SELLER, IN TERMS OF AGREEMENT DA TED 02.05.2009, ACTED HONESTLY. AS PER THE TERMS OF AGR EEMENT THE ASSESSEE (BEING THE SELLER OF PROPERLY) RECEIVED TH E PAYMENT FROM MRS. GURDIP KAUR THROUGH ONE MR. HARI KRISHAN, WHO IS THE NEPHEW OF BUYER MRS. GURDIP KAUR, FROM TIME TO TIME. AFFIDAVIT OF MR. HARI KRISHAN IS ATTACHED AT PANE NO. 45 OF THE PAPER BOOK. THE ASSESSEE RECEIVED THE PAYMENT IN CA SH FROM THE SELLER AND DEPOSITED THE SAME IN HIS BANK ACCOU NTS. COPIES OF BANK STATEMENTS ARE ATTACHED AT PAGE NO. 3 TO 11 OF THE PAPER BOOK. BOTH THE PARTIES MOVED FURTHER TO G ET THE PROPERTY TRANSFERRED IN THE NAME OF BUYER MRS. GURD IP KAUR. THEY STARTED THE PROCESS OF TRANSFER. FOR THIS PURP OSE, BOTH THE ASSESSEE AND BUYER SUBMITTED THE REQUIRED AFFIDAVIT S, INDEMNITY BONDS AND OTHER DOCUMENTS AS PER THE REQU IREMENT OF PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY (PUDA). ALL THE AFFIDAVITS / INDEMNITY BONDS AS REQUIRED BY THE PUDA WERE DULY EXECUTED AND GOT ATTESTED BEFORE THE EXEC UTIVE MAGISTRATE AT PHILLAUR ON THE DATES SPECIFIED THERE IN. COPIES OF ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 9 ALL THESE AFFIDAVITS AND INDEMNITY BONDS ARE ATTACH ED AT PASE NO. 24 TO 32 OF THE PAPER BOOK. THE LEARNED AO HAS ERRED BOTH IN LAW AND FACTS IN I GNORING THE TWO AFFIDAVITS AS WELL AS THE INDEMNITY BONDS S UBMITTED BY THE BUYER MRS. GURDIP KAUR, BY PERSONALLY APPEAR ING BEFORE THE EXECUTIVE MAGISTRATE. IT MAY BE NOTED HE RE THAT ON THE AFFIDAVITS OF THE BUYER, HER PHOTOGRAPH IS THER E AND ON THE INDEMNITY BOND SUBMITTED BY THE BUYER, PHOTOGRAPHS OF BUYER, SELLER AND THE ATTESTING WITNESS ARE THERE. THESE PHOTOGRAPHS WERE CLICKED BY THE DUTY CLERK IN THE P RESENCE OF THE EXECUTIVE MAGISTRATE. THE EXECUTIVE MAGISTRATE HAS SPECIFICALLY CERTIFIED ON THE BACK OF ALL THESE DOC UMENTS THAT 'THE ABOVE PERSON APPEARED AND DEPOSED BEFORE ME'. THE WORDING OF ALL THESE DOCUMENTS CLEARLY STA TE THAT THE SAID MRS. GURDIP KAUR IS BUYING THE PROPERTY AT 964 , URBAN ESTATE, PHAGWARCI. DESPITE OF THESE FACTS, THE LEAR NED AO IGNORED THESE VITAL DOCUMENTS AND DOUBTED THE IDENT ITY AS WELL AS GENUINENESS OF THE TRANSACTION. WHEN THE EX ECUTIVE MAGISTRATE IS SPECIFICALLY IDENTIFYING THE BUYER, W HAT ELSE THE SELLER CAN DO TO PROVE THE IDENTITY OR GENUINENESS OF THE BUYER? IN ITO V SURESH KALMADI [1988] 32 TTJ(PUNE) TM 300 IT WAS HELD THAT WHERE IDENTITY OF CREDITOR IS ESTABLISHED AND ENTRY SHOWN TO BE NOT FICTITIOUS, THE BURDEN SHIFTS ON TO THE DEPARTMENT TO SHOW AS TO WHY THE ENTRY STILL REPRES ENTED THE SUPPRESSED INCOME OF THE ASSESSEE. THE PROCESS OF TRANSFERRED OF ALLOTMENT LETTER OF A PROPERTY IN PUDA TAKES LONG TIME. THE WHOLE PROCESS IS AS UNDER : 1. WHEN A PROPERTY IS TO BE TRANSFERRED ON THE BASI S OF ALLOTMENT LETTER, THE SELLETER HAS TO APPY FOR NO D UES CERTIFICATE FROM THE PUDA AUTHORITY, WHICH NORMALLY TAKES ABOUT TWO MONTH FROM THE DATE OF APPLICATION. IN THE CASE OF RE-ALLOTMENT, AS IN THE PRESENT CASE, THERE IS ALWAYS SOME DUES O F THE PUDA TOWARDS ALLOTTEE. THIS LINGERS ON THE PROCESS. 2. AFTER GETTING THE NO DUES CERTIFICATE, THE SELLER HAS TO APPLY IN THE OFFICE OF PUDA FOR NO OBJECTION CERTIFICATE REG ARDING THE SALE OF THAT PROPERTY AND THIS PROCESS ALSO TAKES A BOUT TWO TO THREE MONTHS. 3. IF THE SALE IS ON THE BASIS OF RE-ALLOTMENT LETTER, THE. SELLER HAS TO DEPOSIT THE ORIGINAL ALLOTMENT LETTER IN HIS FAV OUR ISSUED BY THE PUDA AUTHORITIES. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 10 4. AFTER GETTING BOTH THE ABOVE MENTIONED CERTIFICATE S AND SUBMISSION OF RE-ALLOTMENT LETTER, THE PROCESS OF T RANSFER OFPROPERTY STARTS. 5. THE REQUIRED AFFIDAVITS, INDEMNITY BONDS AND VARIO US UNDERTAKINGS AS MENTIONED ABOVE ARE SUBMITTED AND T HERE- AFTER AS IN THE PRESENT CASE, THE RE-ALLOTMENT LETT ER OF THE CONCERNED PROPERTY IS ISSUED IN FAVOUR OF THE BUYER . THIS WHOLE PROCESS OF ISSUANCE OF RE-ALLOTMENT LETTER IN THE FAVOUR OF THE RE-ALLOTTEE TAKES AROUND SIX MONTHS AFTER SUBMI SSION OF ALL THE DOCUMENTS REGARDING TRANSFER MENTIONED ABOVE. T HAT BEFORE STARTING THE ABOVE SAID WHOLE PROCESS OF TRA NSFER, BOTH THE PARTIES HAVE TO ENTER AN AGREEMENT TO SELL, AS IN THE PRESENT CASE, REGARDING THE MODE OF PAYMENT. IN THE NORMAL PARLANCE, A SELLER WILL GIVE THE ABOVE MENTIONED PR OCEDURAL DOCUMENTS LIKE AFFIDAVIT ETC, ONLY AFTER RECEIVING THE INITIAL MONEY FROM THE BUYER. THIS WHOLE PROCESS OF RE-ALLO TMENT IS BEYOND THE CONTROL OF THE PARTIES TO THE AGREEMENT. IT IS A PROCESS OF PUDA OFFICE THAT HOW MUCH TIME IT TAKES. THIS MAY GO FROM ONE FINANCIAL YEAR TO THE NEXT FINANCIAL YE AR, AS IN THE PRESENT CASE. THE AO GOT NO AUTHORITY TO CHALLENGE THE GENUINENES S OF THE TRANSACTION AND STATING THAT THIS TRANSACTION BELON G TO NEXT YEAR AFTER IGNORING ALL THE VITAL DOCUMENTS. THE AO HAS CATEGORICALLY MENTIONED AT PAGE NO. 4 OF THE IMPUGNED ORDER, THAT THE ASSESSEE HAS NOT DISCHARGE D THE ONUS TO PROVE THE TRANSACTION. IT IS RESPECTFULLY S UBMITTED THAT THE ASSESSEE HAS CLEARLY PROVED THE IDENTITY AND TH E GENUINENESS OF THE BUYER AS WELL AS THE TRANSACTION . WHILE COMING TO THIS CONCLUSION, THE LEARNED AO HAS WRONG LY IGNORED ALL THE DOCUMENTS SUBMITTED. HE IS ONLY ASKING FOR THE SOURCE OF THE BUYER MRS. GURDIP KAUR. I. E. HE WANTS THE S OURCE OF SOURCE FROM THE ASSESSEE. RELIANCE IS BEING PLACED ON THE CASE OF CIT, ORISSA . V/S. ORISSA CORPORATION (P) LTD. 159ITR 078 (SC), HERE T HE HON HIE SUPREME COURT HAS CLEARLY HELD THAT WHERE THE ASSES SEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDIT ORS, THE ONUS U/S 68 HAS BEEN DISCHARGED. AS PER SECTION 68, THE ASSESSEE IS REQUIRED TO GIVE SOURCE OF HIS CASH CRE DIT AND HE CAN-NOT BE ASKED THE SOURCE OF SOURCE. EVIDENCE AVA ILABLE ON RECORD CANNOT BE IGNORED AND MERE SUSPICION CANNOT FORM BASIS OF ADDITION OF CASH CREDIT AS INCOME OF ASSESSEE. COPY OF THE ORDER OF HON 'BLE APEX COURT IS ATTACHED AT PAGE NO 51 TO 57 OF THE PAPER BOOK. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 11 THE ORDER OF THE LEARNED AO IS BASED ON MERE CONJEC TURE AND SURMISES AND IS AGAINST THE LAW AND FACTS OF THE CA SE. WHILE MAKING HIS MIND, HE IGNORED THE FACT THAT THE IDENT ITY OF THE BUYER HAS BEEN ESTABLISHED. HE ALSO IGNORED THAT TH E TRANSACTION OF SALE CONSIDERATION AS WELL AS THE TR ANSFER OF PROPERTY. HE IGNORED THAT THE PROPERLY IN QUESTION HAS ACTUALLY BEEN TRANSFERRED FROM THE NAME OF THE SELLER, TO TH E NAME OF THE BUYER. COPY OF RE-ALLOTMENT LETTER ISSUED IN TH E NAME OF BUYER MRS. GURDIP KAUR, WHO HAS BECOME THE OWNER OF THE SAID PROPERTY AFTER FOLLOWING THE WHOLE PROCESS AS PRESCRIBED BY PUD A FOR TRANSFER. IN THGFORAY OF IGNORING ALL THE FACTS, THE AO ALSO IGNORED THE AFFIDAVIT SUBMITTED BY MR. HAH KRISHAN, NEPHEW OF T HE BUYER (MRS. GURDIP KAUR), REGARDING THE MODE OF PAYMENT O F THE SALE CONSIDERATION. COPY OF THE AFFIDAVIT FROM MR. HARI KRISHAN IS ATTACHED AT PAGE NO. VJP OF THE PAPER BOOK. MR. HAR I KRISHAN HAS CLEARLY MENTIONED IN THE AFFIDAVIT THAT THE PRO PERTY IN QUESTION AT 964, URBAN ESTATE, PHAGWARA, HAS BEEN PURCHASED BY HIS AUNTY. HE HAS ALSO MENTIONED THAT THE SALE CONSIDERATION WAS ABOUT RS. 45,58,000/-, ON THE BAS IS OF AGREEMENT DATED 02.05.2009. HE FURTHER MENTIONED THAT 'THE PAYMENT WAS MADE AS PER THE AGREEMENT. SOME OF THE PAYMENT WAS MADE BY HER AND MOST OF THE PAYMENT WAS MADE BY ME WHENEVER SHE USED TO SEND THE MONEY TO ME AS PER THE TERMS OF AGREEMENT AND THEREAFTER I USED TO PAY THE SAME TO ABOVE SAID KASHMIR SINGH MALHI. ON 10.01.2010, THE LAST PAYMENT WAS PAID BY ME AND AFTER THAT SOME OF THE AMOUNT WAS PAID TO PUDA DIRECTLY BY ME AS PER THE TERMS OF THE AGREEMENT'. THE LEARNED AO DID NOT BOTHER TO ASK ANY THING FROM THE DEPONENT MR. HAH KRISHAN, WHO HAS GIVEN THIS STATEM ENT ON OATH. THE LEARNED AO TOTALLY IGNORED HIS INVOLVEMEN T IN THE TRANSACTION. DURING THE COURSE OF PROCEEDINGS THE A O HAS NOT ASKED ANYTHING ABOUT MR. HAH KRISHAN BUT IN HIS ORD ER HE HAS MENTIONED THAT MR. HAH KRISHAN HAS NOT MENTIONED AN Y DATE OR AMOUNT IN HIS AFFIDAVIT. SO THIS AFFIDAVIT IS IN COMPLETE AND NOT RELIABLE. BUT THE AO HAS IGNORED THAT MR. HAH K RISHAN IN THE PARA 2 OF HIS AFFIDAVIT CLEARLY MENTIONED THAT THE PAYMENT WAS MADE AS PER THE TERMS OF AGREEMENT DATED 02.05 .2009. ON THESE FACTS THE AO CAN-NOT HELD THAT THE AGREEME NT DATED 02.05.2009 IS FAKE AND THAT THE TRANSACTION IS NOT GENUINE. RELIANCE IS PLACED ON THE DECISION OF HON'BLE APEX COURT, IN THE CASE OF MEIITA PARIKLI & CO. V. COMMISSIONER OF INCOME-TAX, ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 12 BOMBAY 1956 TAXPUB(DT) 0171 (SC) :(1956) 030ITR 018 1, THE HON'BLE SUPREME COURT JOS OBSERVED THAT: 'IT HAS TO BE NOTED, HOWEVER, THAT BEYOND THESE CAL CULATIONS OF FIGURES, NO FURTHER SCRUTINY WAS MADE BY THE MADE B Y THE INCOME-TAX OFFICER OR THE APPELLATE ASSISTANT COMMI SSIONER OF THE ENTRIES IN THE CASH BOOK OF THE APPELLANTS. THE CASH BOOK OF THE APPELLANTS WAS ACCEPTED AND THE ENTRIES THER EIN WERE NOT CHALLENGED. NO FURTHER DOCUMENTS OR VOUCHERS IN RELATION TO THOSE ENTIES WERE CALLED FOR, NOR WAS THE PRESEN CE OF THE DEPONENTS OF THE THREE AFFIDAVITS CONSIDERED NECESS ARY BY EITHER PARTY. THE APPELLANTS TOOK IT THAT THE AFFID AVITS OF THESE PARTIES WERE ENOUGH AND NEITHER THE APPELLATE ASSIS TANT COMMISSIONER, NOR THE INCOME-TAX OFFICER, WHO WAS P RESENT AT THE HEARING OF THE APPEAL BEFORE THE APPELLATE ASSI STANT COMMISSIONER, CONSIDERED IT NECESSARY TO CALL FOR T HEM IN ORDER TO CROSS-EXAMINE THEM WITH REFERENCE TO THE S TATEMENTS MADE BY THEM IN THEIR AFFIDAVITS. UNDER THESE CIRCU MSTANCES IT WAS NOT OPEN TO THE REVENUE TO CHALLENGE THE CORREC TNESS OF THE CASH ENTRIES OR THE STATEMENTS MADE BY THOSE DE PONENTS IN THEIR AFFIDAVITS .' COPY OF THE ORDER OF HON'BLE APEX COURT IS ATTACHED AT PAGE NO 58 TO 63 OF THE PAPER BOOK. THE AO BY IGNORING THE TRANSACTION OF SALE OF PROPE RTY, TREATED THE SUM DEPOSITED IN THE BANK ACCOUNT OF THE ASSESS EE AS UNEXPLAINED INCOME U/S 69A OF THE INCOME TAX ACT, 1 961. SECTION 69A IS BEING REPRODUCED AS UNDER: 69A. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FO UND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINT AINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFE RS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISIT ION OF THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE , OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION O F THE ASSESSING OFFICER, SATISFACTORY, THE MONEY AND THE VALUE OF THE BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YE AR.' THE PRECONDITIONS FOR THE APPLICABILITY OF SECTION 69A TO ANY CASE ARE AS UNDER: 1. THERE SHOULD BE SOME MONEY, BULLION, JEWELLERY O R OTHER VALUABLE ARTICLE WHICH IS FOUND; ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 13 2. AND SUCH MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSES SEE. HERE IN THE PRESENT CASE, THERE IS NOTHING FOUND BY THE AO. THE WORDFOUND HAS WIDE IMPLICATIONS. THE DICTIONARY MEA NING OF WORD FOUND HAVING BEING DISCOVERED BY CHANCE OR UNEXPECTEDLY. I PARTICULAR. HERE IN THE PRESENT CASE THE LEARNED AO HAS NOT FOUND SOMETHING, THE MONEY WAS A LREADY IN THE BANK ACCOUNTS OF THE ASSESSEE. FURTHER ALL THES E BANK ACCOUNTS WERE DULY RECORDED IN THE BOOKS OF ACCOUNT S OF THE ASSESSEE AN .IRE ALSO DISCLOSED IN THE INCOME TAX R ETURN OF THE ASSESSEE. THESE FACTS DEARLY INDICATE THAT SECTION 69A IS NOT APPLICABLE TO THE CASE OF ASSESSEE. IN NUT SHELL, THE PROCESS OF TRANSFER OF THE PROPER LY IS AS PER THE PROCEDURE OF PUD A WHICH WAS DULY ADOPTED AND NOTHI NG IS WRONG IN THAT PROCESS. THE PROPERTY IS DULY TRANSFE RRED FROM THE NAME OF THE SELLER TO THE BUYER AFTER RECEIVING THE AGREED SALE CONSIDERATION, THE ASSESSEE HAS DULY DISCHARGED HIS ONUS TO PROVE THE IDENTITY OF THE BUYER AND ALSO THE GENUIN ENESS OF THE TRANSACTION. IN VIEW OF THE ABOVE SUBMISSION, IT IS PRAYED THAT THE ORDER OF AO MAKING THE ADDITION OF RS. 40,31,200/- BE SET ASIDE AND RETURNED INCOME MAY BE ACCEPTED. 5. THE LD. CIT(A) ASKED FOR A REMAND REPORT FROM T HE AO. 6. THE AO IN HIS REMAND REPORT STATED AS FOLLOWS: KINDLY REFER TO YOUR OFFICE LETTER NO. CIT(A)/JAL./ 1052 DATED 06.09.2013 ALONGWITH COPY OF THE SUBMISSION FILED B Y THE ASSESSEE ON THE SUBJECT CITED ABOVE. 2. IN THIS CONNECTION, IT IS SUBMITTED THAT SH. KAS HMIR SINGH MALHI, ADVOCATE SOLD HIS PROPERTY NO. 964 AT URBAN ESTATE PHAGWARA TO SMT. GURDIP KAUR W/O SH. KEWAL SINGH VILL.RURKEE PATTI KHERA TEHSIL PHILLAUR. THE JALAND HAR DEVELOPMENT AUTHORITY HAS INTIMATED VIDE ITS OFFICE LETTER NO.4877 DATED 30.09.2013 THAT SH. KASHMIR SINGH MAL HI APPLIED FOR TRANSFER THE SAID PROPERLY IN THE NAME OF SMT. GURDIP KAUR W/O SH. KEWAL SINGH ON 11.01.2010. THIS PROPERTY WAS TRANSFERRED IN THE NAME OF SMT. GURDIP KAUR ON 09.06.2010. 3. AT PRESENT THE ABOVE SAID PROPERTY HAS BEEN LET OUT TO THE STUDENTS OF LOVELY \ PROFESSIONAL UNIVERSITY AS PG. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 14 4. SUMMON/LETTER ISSUED TO SH. ILARI KRISHAN (NEPHEW OF SMT. GURDIP KAUR) S/O SH. PIARA SINGH VJLL. RURKI TEHSIL PHILLAUR ON 16.09.2013 AND 04.10.2013 VIDE WHICH HE WAS REQUES TED TO FURNISH THE RESIDENTIAL ADDRESS OF SMT. GURDIP KAUR . IN RESPONSE TO THIS LETTER, SH. PIYIISH BONSAI,C.A. FI LED REPLY ON 21.10.2013 ALONGWITH COPY IF PASSPORT SHOWING HER A DDRESS AT BIRMINGHAM AND STATED THAT SHE IS NON-RESIDENT. SINCE PURCHASER STATUS IS NON-RESIDENT, INFORMATION IS BE ING FORWARDED TO THE DEPUTY DIRECTOR OF INCOME-TAX (INT ERNATIONAL TAXATION ), CHANDIGARH FOR FURTHER ACTION. 5. THE BRIEF FACTS OF THE CASE ARE :- DURING THE SAID YEAR, THE ASSESSEE DEPOSITED CASH O N VARIOUS DATES AT RS. 11,48,700/-INTO HIS SAVING ACCOUNT 632 101504447 WITH ICICI BANK LTD., G.T.ROAD, PHAGWARA,RS.28,60,1 00/- IN PUNJAB NATIONAL BANK, ATTA, GORAYA A/C NO.26203 AND RS.2,9 0,000/- IN PUNJAB & SIND BANK, JALANDHAR A/C NO.8620. THE ASSE SSEE WAS ASKEDTO EXPLAIN THE SOURCES OF CASH CREDIT ENTRIES OF THE SAID ACCOUNTS. IN RESPONSE TO THISQUERY, THE ASSESSEE'S COUNSEL FILED WRITTEN SUBMISSION STATING THAT SOURCES OF CASH DEP OSITS ARE FROM THE SALE PROCEEDS OF HIS PROPERTY NO. 964 AT URBAN ESTATE, PHAGWARA AND HIS PROFESSIONAL RECEIPTS ALONGWITH CO PY OF ADVANCE AGREEMENT MADE BETWEEN THE ASSESSEE AND THE PURCHAS ER SMT. GURDIP KAITR ON 02.05.2009. AS PER THIS AGREEMENT T HE ASSESSEE WOULD RECEIVE THE PAYMENT IN THE FOLLOWING INSTALME NTS:- ADVANCE RECEIVED:- RS. 3 LACS FROM 7.05.2009 TO 10.05.2009 RS. 4.5 LACS FROM 16.05.2009 TO 21.05.2009 RS. 5 LACS FROM 06.06.2009 TO 04.06.2009 RS.13 LACS FROM 21.07.2009 TO 25.07,2009 RS.13 LACS FROM 15.10.2009 TO 20.10.2009 RS.4 LACS FROM 10.01.2010 TO 16.01.2010 RS.50,000/- BALANCE RS.2,58,205/- WILL BE PAID BY THE BUYER DIRECTLY TO PUD A ON ISSUE OF ALLOTMENT L ETTER IN HER NAME. DURING ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THIS AGREEMENT WAS DULY SIGNED BY THE ASSESSEE AND SMT. GURDIP KAU R (PURCHASER) BUT PHOTOCOPY OF THE PASSPORT OF SMT.GURDIP KAUR SH OWS THAT SHE CAME TO INDIA IN THE MONTH OF JULY,2009. IT IS CLEA R THAT ON THE DATE OF AGREEMENT SHE WAS NOT IN INDIA. SO THIS ALLEGED AGREEMENT IS FAKE AND PREPARED BY THE ASSESSEE TO JUSTIFY THE SOURCES OF CASH CREDIT ENTRIES RELATING TO THE YEAR UNDER CONSIDERATION IN HIS BANK ACCOUNTS STATEMENTS OUT OF HIS OWN UNDISCLOSED INCOME. SECONDLY, THE COUNSEL FOR THE ASSESSEE FILED AN AFF IDAVIT OF SH. HARI KRISHAN S/O SH. PIARA SINGH IN WHICH STATED THAT HI S AUNT SMT. GURDIP KAUR PURCHASED PROPERTY NO. 964 AT URBAN EST ATE, ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 15 PHAGWARA FOR RS. 45,58,000/- AND PAYMENTS WERE MADE AS PER AGREEMENT DATED 02.05.2009. SOME OF THE PAYMENTS WE RE MADE BY HER AND MOST OF THE PAYMENTS WERE MADE BY HIM WHENE VER SHE USED TO SEND THE MONEY TO ME AND THEREAFTER, I USED TO PAY THE SAME TO THE SELLER SH. KASHMIR SINGH. IT IS PERTINE NT TO MENTION THAT IN THE ABOVE SAID AFFIDAVIT NEITHER MENTIONED THE A MOUNT PAID NOR MENTIONED THE DATE OF PAYMENTS BY HIM. THIRDLY, AS PER COPY OF ADVANCE AGREEMENT DATED 02. 05.2009, PURCHASER HUSBAND NAME IS SH. RESHAM SINGH BUT AS P ER RECORDS OF JALANDHAR DEVELOPMENT AUTHORITY HER HUSBAND NAME IS SH. KEWAL SINGH. THUS THE ASSESSEE FAILED TO FURNISH THE SOURCES OF CASH CREDIT ENTIRES IN THE BANK ACCOUNT STATEMENTS WHEN ONUS ON THE ASS ESSEE TO EXPLAIN THE SOURCES OF EACH CASH CREDIT ENTRY INTO HIS SAVING ACCOUNT. KEEPING IN VIEW THE ABOVE FACTS, SUBMISSION FILED B Y THE ASSESSEE BEFORE YOUR GOODSELF IS NOT RELIABLE AND MAY BE REJ ECTED. ASSESSMENT RECORDS OF THE ASSESSEE FOR THE ASSTT. YEAR 2010 -1 1 IN ONE VOLUME IS ENCLOSED HEREWITH. 7. THE ASSESSEE IN HIS COUNTER COMMENTS TO THE AO S REMAND REPORT SUBMITTED THAT CIT(A) PAGE 15 PARA 6.,3 TO PA GE 18 PARA 6.4. THE SUBMISSIONS OF THE ASSESSEE ON THE COMMENTS OF THE AO MADE VIDE OFFICE LETTER NO. ITO/WARD-2/2013 - 14/10 67 ARE AS UNDER: - 1. DURING THE RELEVANT YEAR THE ASSESSEE HAS SOLD A HOUSE NO. 964 AT URBAN ESTATE, PHAGWARA MEASURING 8 MARIAS FO R 45,58,205/- TO ONE MRS. GURDIP KAUR, THEN RESIDENT OF VILLAGE RURKEE, PATTI KHERA, TEHSIL PHILLAUR VIDE AGREEMENT DATED 02.05.2009. COPY OF THE AGREEMENT ENTERED INTO, BET WEEN BOTH THE PARTIES IS ATTACHED AT PAGE NO. 20 OF THE PAPER BOOK. THE AGREEMENT IS DULY SIGNED BY BOTH THE BUYER AND SELL ER IN THE PRESENCE OF TWO WITNESSES ON A STAMPED PAPER. FURTH ER IT IS PERTINENT TO MENTION HERE THAT THE COPY OF THE AGRE EMENT WAS ATTESTED BY THE NOTARY PUBLIC ON 02.05.2009. DESPIT E OF THE PERSONAL SIGNATURES OF THE BUYER IN THE PRESENCE OF TWO WITNESS AND ATTESTATION BY THE NOTARY ON THE SAME D ATE, THE LEARNED AO DECLARED THAT THE BUYER WAS NOT PRESENT IN INDIA ON THAT DATE AND TERMED THIS AGREEMENT AS FAKE, WHI CH IS ABSOLUTELY AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 16 THE LEARNED AO IN THE PARA 2 OF HIS LETTER HAS CLEA RLY MENTIONED THAT 'THE JALANDHAR DEVELOPMENT AUTHORITY HAS INTIMATED VIDE ITS OFFICE LETTER NO. 4877 DATED 30J )9.2013 THAT SH. KASHMIR SINGH MALHI APPLIED FOR THE TRANSFER TH E SAID PROPERTY IN THE NAME OF SMT. GURDIP KAUR W/O SH. KE WAL SINGH ON 11.01.2010. THIS PROPERTY WAS TRANSFERRED IN THE NAME OF SMT. GURDIP KAUR ON 09.06.2010 SINCE THE PROPERTY HAS ALREADY BEEN TRANSFERRED, T HERE IS NO ISSUE OF THE AGREEMENT BEING FAKE. BOTH THE BUYER AND SELLER, IN TERMS OF AGREEMENT DA TED 02.05.2009, ACTED HONESTLY. AS PER THE TERMS OF AGREEMENT THE ASSESSEE (BEING THE SELLER OF PROPERTY) RECEIVED TH E PAYMENT FROM MRS. GNRDIP KAUR THROUGH ONE MR. HAH KRISHAN, WHO IS THE NEPHEW OF BUYER MRS. GURDIP KAUR, FROM TIME TO TIME. AFFIDAVIT OF MR. HAH KRISHAN IS ATTACHED AT PANE NO , 45 OF THE PAPER BOOK. THE ASSESSEE RECEIVED THE PAYMENT IN CA SH FROM THE SELLER AND DEPOSITED THE SAME IN HIS BANK ACCOU NTS. COPIES OF BANK STATEMENTS ARE ATTACHED AT PAGE NO. 3 TO 11 OF THE PAPER BOOK. BOTH THE PARTIES MOVED FURTHER TO G ET THE PROPERTY TRANSFERRED IN THE NAME OF BUYER MRS. GURD IP KAUR. THEY STARTED THE PROCESS OF TRANSFER. FOR THIS PURP OSE, BOTH THE ASSESSEE AND BUYER SUBMITTED THE REQUIRED AFFIDAVIT S, INDEMNITY BONDS AND OTHER DOCUMENTS AS PER THE REQU IREMENT OF PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY (PUDA). ALL THE AFFIDAVITS / INDEMNITY BONDS AS REQUIRED BY THE PUD A WERE DULY EXECUTED AND GOT ATTESTED BEFORE THE EXEC UTIVE MAGISTRATE AT PHILLAUR ON THE DATES SPECIFIED THERE IN. COPIES OF ALL THESE AFFIDAVITS AND INDEMNITY BONDS ARE ATTACH ED AT PAGE NO. 24 TO 32 OF THE PAPER BOOK. THE LEARNED AO HAS ERRED BOTH IN LAW AND FACTS IN I GNORING THE TWO AFFIDAVITS AS WELL AS THE INDEMNITY BONDS S UBMITTED BY THE BUYER MRS. GURDIP KAUR, BY PERSONALLY APPEAR ING BEFORE THE EXECUTIVE MAGISTRATE. IT MAY BE NOTED HE RE THAT ON THE AFFIDAVITS OF THE BUYER, HER PHOTOGRAPH IS THER E AND ON THE INDEMNITY BOND SUBMITTED BY THE BUYER, PHOTOGRAPHS OF BUYER, SELLER AND THE ATTESTING WITNESS ARE THERE. THESE PHOTOGRAPHS WERE CLICKED BY THE DUTY CLERK IN THE P RESENCE OF THE EXECUTIVE MAGISTRATE. THE EXECUTIVE MAGISTRATE HAS SPECIFICALLY CERTIFIED ON THE BACK OF ALL THESE DOC UMENTS THAT ' THE ABOVE PERSON APPEARED AND DEPOSED BEFORE ME'. THE WORDING OF ALL THESE DOCUMENTS CLEARLY STA TE THAT THE SAID MRS. GURDIP KAUR IS BUYING THE PROPERTY AT 964, URBAN ESTATE, PHAGWARA. DESPITE OF THESE FACTS, THE LEARN ED AO IGNORED THESE VITAL DOCUMENTS AND DOUBTED THE IDENT ITY AS WELL AS GENUINENESS OF THE TRANSACTION. WHEN THE EX ECUTIVE ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 17 MAGISTRATE IS SPECIFICALLY IDENTIFYING THE BUYER, W HAT ELSE THE SELLER CAN DO TO PROVE THE IDENTITY OR GENUINENESS OF THE BUYER? FURTHERMORE MR. HARI KRISHAN, THE NEPHEW OF THE BUY ER MRS. GURDIP KAUR, HAS APPEARED IN PERSON BEFORE THE FLON 'BLE CIT (A) AND WAS EXAMINED. HE CATEGORICALLY STATED BEFOR E THE FLON'BLE CIT (A) THAT THE IMPUGNED HE HAS MADE THE PAYMENTS TO THE ASSESSEE ON VARIOUS OCCASIONS AS PER THE TER MS OF THE AGREEMENT DATED 02.05.2009. BEFORE SUBMITTING HIS COMMENTS VIDE HIS OFFICE LETT ER DATED 22.10.2013, THE LEARNED AO ALSO EXAMINED HAH KRISHA N AND HERE AGAIN HE CLEARLY MENTIONED THAT HE HAS MADE TH E PAYMENTS TO THE ASSESSEE ON VARIOUS OCCASIONS AS PE R THE TERMS OF THE AGREEMENT DATED 02.05.2009. JALANDHAR DEVELOPMENT AUTHORITY HAS CLEARLY MENTION ED THAT PRESENTLY THE PROPERTY IS IN THE NAME OF MRS. GURDI P KAUR AND IS ACCEPTED BY THE LEARNED AO. ON THE ONE HAND, THE LEARNED AO IS ACCEPTING THE FACT THAT THE PROPERTY HAS BEEN SOLD BY THE ASSESSEE MR. KASHMIR SINGH MALHI TO THE BUYER MRS. GURDIP KAUR BUT ON THE OTHER HAND HE IS REITERATING THAT T HE AGREEMENT IS FAKE. 2. THE LEARNED AO HAS MENTIONED IN HIS COMMENTS THAT MR. HARI KRISHAN HAS NOT MENTIONED IN HIS AFFIDAVIT ABO UT THE AMOUNT PAID OR DATE OF PAYMENT. COPY OF THE AFFIDAVIT FROM MR. HARI KRISHAN IS ATTA CHED AT BASE NO 45 OF THE PAPER BOOK. MR. HARI KRISHAN HAS CLEARLY MENTIONED IN THE AFFIDAVIT THAT THE PROPERLY IN QUE STION AT 964, URBAN ESTATE, PHAGWARA, HAS BEEN PURCHASED BY HIS A UNTY ON THE BASIS OF AGREEMENT DATED 02.05.2009. HE HAS ALSO MENTIONED THAT THE SALE CONSIDERATION WAS ABOUT RS. 45,58,000/-, HE FURTHER MENTIONED THAT 'TIIE PAYMEN T WAS MADE AS PER THE AGREEMENT. SOME OF THE PA YMENT WAS MADE B Y HER AND MOST OF THE PA YMENT WAS MADE BY ME WHENEVER SHE USED TO SEND THE MONEY TO ME AS PER THE TERMS OF AGREEMENT AND THEREAFTER I USED TO PAY THE SAME TO ABOVE SAID KASHMIR SINGH MALHI. ON 10.01.2010, THE LAST PAYMENT WAS PAID BY ME AND AFTER THAT SOME OF THE AMOUNT WAS PAID TO PUD A DIRECTLY BY ME AS PER THE TERMS OF THE AGREEMENT' ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 18 HE HAS CLEARLY STATED THAT THE PAYMENT HAS BEEN MAD E AS PER THE TERMS OF THE AGREEMENT DATED 02.05.2009. HE HAS MENTIONED THE FULL SALE CONSIDERATION ALSO. HE ALSO CLEARLY STATED THAT THE LAST PAYMENT WAS MADE ON 10.01.201: 0. MOREOVER MR. HARI KRISHAN HAS ACCEPTED THE FACT OF PURCHASE OF TRANSACTION AND THE PAYMENT TO THE ASSESSEE BOTH BEFORE AO AND HON'BIE CIT (A). 3. THE NAME OF THE HUSBAND OF MRS. GURDIP KAUR IS MR. KEWAI SINGH. MENTIONING OF THE SAME AS RESHAM SINGH IN THE AGREEMENT IS AN INADVERTENT MISTAKE. ALL OTHER DOCUMENTS INCLUDING A HE AFFIDAVITS OF GURDIP KAUR, HER INDEMNITY BONDS BEFORE THE EXECUTIVE MAGISTRATE, AF FIDAVIT OF HARI KRISHAN AND THE LETTER FROM JDA CLEARLY IND ICATES THAT THE GURDIP KAUR IS THE B UYER OF THE PROPERLY. ALL THESE THINGS CLEAR THE FACT THAT THE ASSESSEE H AS SOLD HIS PROPERLY TO MRS. GURDIP KAUR. RECEIVED THE PAYMENT AND DEPOSITED THE SAME IN HIS BANK ACCOUNT. THE PROCESS OF TRANSFERRED OF THE PROPERTY IS AS PER THE PROCEDURE OF PUDA WHICH WAS DULY ADOPTED AND NOTHING IS WRONG IN THAT PROCESS. THE PROPERTY IS DULY TRANSFERRED FROM THE NAME OF THE SELLER TO THE B UY ER AFTER RECEIVING THE AGREED SA LE CONSIDERATION, THE ASSESSEE HAS DULY DISCHARGED HIS ONUS TO PROVE THE IDENTITY OF THE BUYER AND ALSO THE GENUIN ENESS OF THE TRANSACTION. THE AO BY IGNORING THE TRANSACTION OF SALE OF PROPE RTY, TREATED THE SUM DEPOSITED IN THE BANK ACCOUNT OF THE ASSESS EE AS UNEXPLAINED INCOME U/S 69A OF THE INCOME TAX ACT, 1 961. IN VIEW OF THE ABOVE SUBMISSION, IT IS PRAYED THAT THE ORDER OF AO MAKING THE ADDITION OF RS. 40,31,200/- BE SET AS IDE AND RETURNED INCOME MAY BE ACCEPTED. 8. THE LD. CIT(A) CONFIRMED THE ADDITION TO THE EXT ENT OF RS.30,40,200/- OBSERVING AS FOLLOWS: 6.4 I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSESSING OFFICER AS MADE IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT. I HAVE ALSO CONSIDERED THE WRITTEN S UBMISSIONS OF THE ASSESSEE AS WELL AS HIS COUNTER COMMENTS. I HAV E FURTHER ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 19 CONSIDERED THE VARIOUS JUDICIAL PRONOUNCEMENTS RELI ED UPON BY THE ASSESSEE AND THE OTHER MATERIAL BROUGHT ON RECO RD. 6.5. ON CAREFUL CONSIDERATION OF THE ASSESSMENT ORDER A S WELL AS THE ASSESSMENT RECORDS, IT HAS BEEN NOTICED THAT THE ASSESSING OFFICER NOTICED HUGE CASH DEPOSITS IN VAR IOUS BANK ACCOUNTS OF THE ASSESSEE MAINTAINED BY HIM WITH ICI CI BANK, PUNJAB NATIONAL BANK & PUNJAB & SIND BANK. THE ASSE SSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASKED THE ASSESSEE TO PROVE THE SOURCE OF CASH DEPOSITS INTO THE BANK ACCOUNTS MAINTAINED BY HIM WITH PUNJAB & SIND BANK, PUNJAB NATIONAL BANK & ICICI BANK. IN RESPONSE THERETO, TH E ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE SOURCE OF CASH DEPOSITS IN VARIOUS BANK ACCOUNTS OF THE ASSES SEE IS THE SALE PROCEEDS OF THE RESIDENTIAL HOUSE LOCATED AT P LOT NO. 964, URBAN ESTATE, PHAGWARA WHICH HAS BEEN SOLD BY HIM T O SMT. GURDEEP KAUR A RESIDENT OF U.K. AS WELL AS OUT OF H IS PROFESSIONAL RECEIPTS. IT HAS ALSO BEEN SUBMITTED THAT THE ENTIR E SALE PROCEEDS IN RESPECT OF THE SALE OF RESIDENTIAL HOUSE LOCATED AT PLOT NO. 964, URBAN ESTATE, PHAGWARA WERE STATED TO BE RECEIVED I N CASH FROM SMT. GURDEEP KAUR. WHEN ASKED BY THE ASSESSING OFFI CER TO PROVE HIS CLAIM REGARDING RECEIPT OF CASH WITH DOCU MENTARY EVIDENCE, THE ASSESSEE PRODUCED A COPY OF AGREEMENT TO SELL ALLEGEDLY ENTERED INTO BETWEEN THE ASSESSEE AND SMT . GURDEEP KAUR DATED 02.05.2009 ACCORDING TO WHICH THE ASSESS EE AGREED TO SELL H.NO.964, URBAN ESTATE, PHAGWARA TO SMT. GU RDEEP KAUR OF VILLAGE RURKI PRESENTLY RESIDING IN U.K. FOR A C ONSIDERATION OF RS.45,58,205/- AND THE PURCHASER HAS ALSO GIVEN AN AMOUNT OF RS.3,00,000/- TO THE ASSESSEE ON 02.05.2009 I.E. AT THE TIME OF EXECUTING THE AGREEMENT TO SELL. AS PER THE AGREEME NT TO SELL DATED 02.05.2009, THE BALANCE SALE CONSIDERATION WA S AGREED TO BE PAID BY THE PURCHASER TO THE ASSESSEE AS UNDER:- FROM 07.05.2009 TO 10.05.2009 RS.4,50,000/- FROM 16.05.2009 TO 21.05.2009 RS.5,00,000/- FROM 06.06.2009 TO 04.06.2009 RS.13,00,000/- FROM 21.07.2009 TO 25.07.2009 RS.13,00,000/- FROM 15.10.2009 TO 20.10.2009 RS.4,00,000/- FROM 10.01.2009 TO 16.01.2009 RS. 50,000/- BALANCE AMOUNT AGREED TO BE PAID RS.2,58,205/- WHEN PROPERTY WILL BE TRANSFERRED BY PUDA IN THE NAME OF PURCHASER. 6.6 AS THE PURCHASER OF THE PROPERTY IS STATED TO B E A RESIDENT OF U. K., THE ASSESSING OFFICER AGAIN ASKED THE ASSESS EE TO FURNISH DATE WISE DETAILS WITH REGARD TO CASH RECEIVED FROM SMT. GURDEEP ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 20 KAUR WHO IS STATED TO BE AN NRI AND A RESIDENT OF U .K. THE ASSESSING OFFICER FURTHER ASKED THE ASSESSEE TO FIL E COPY OF BANK ACCOUNT OF SMT. GURDEEP KAUR, TO PRODUCE ORIGINAL A GREEMENT TO SELL TO PRODUCE COPY OF PASSPORT OF SMT. GURDEEP KA UR, DETAILS REGARDING SOURCES OF INCOME OF SMT. GURDEEP KAUR, D ETAILS REGARDING SOURCES OF INCOME OF SMT. GURDEEP KAUR. THE ASSESSEE VIDE HIS SUBMISSIONS DATED 10.12.2012 ASSU RED THAT THE REQUISITE INFORMATION WILL BE FURNISHED AS SOON AS IT IS RECEIVED FROM THE PURCHASER. AT THIS OCCASION, THE ASSESSEE HAS ALSO FILED COPY OF ANOTHER AFFIDAVIT EXECUTED BY ON E SHRI HARI KRISHAN OF VILLAGE RURKEE WHO IS STATED TO BE NEPHE W OF SMT. GURDEEP KAUR DATED 04.12.2012 VIDE WHICH SH. HARI K RISHAN HAS DEPOSED AS UNDER:- I, HARI KRISHAN SON OF PIARA SINGH, RESIDENT OF VIL LAGE RURKI, TEHSIL PHILLAUR, DISTT. JALANDHAR DO HEREBY SOLEMNL Y AFFIRM AND DECLARE ON OATH AS UNDER: 1. THAT GURDEEP KAUR WIFE OF KEWAL SINGH RESIDING IN ENGLAND IS THE REAL SISTER OF MY FATHER PIARA SINGH . SHE PURCHASED ONE HOUSE NO. 964, URBAN ESTATE, PHAGWARA , FROM ONE KASHMIR SINGH MALHI SON OF AJIT SINGH OF U RBAN ESTATE, PHAGWARA. 2. THAT THE SAID HOUSE WAS PURCHASED BY MY AUNT GUR DEEP KAUR FOR ABOUT RS. 45,58,000/- (RS. FORTY FIVE LACS FIFTY EIGHT THOUSANDS) ON THE BASIS OF AGREEMENT DATED 02. 05.2 009. THE PAYMENT WAS MADE AS PER THE AGREEMENT. SOME OF THE PAYMENT WAS MADE BY HER AND MOST OF THE PAYMENT WAS MADE BY ME WHENEVER SHE USED TO SEND THE MONEY TO M E AS PER THE TERMS OF THE AGREEMENT AND THEREAFTER I USE D TO PAY THE SAME TO ABOVE SAID KASHMIR SINGH MALHI. ON 10.0 1.2010, THE LAST PAYMENT WAS PAID BY ME AND AFTER THAT SOME OF THE AMOUNT WAS PAID TO PUDA DIRECTLY BY ME AS PER THE T ERMS OF THE AGREEMENT. THAT NOW THE RE-ALLOTMENT LETTER HAS BEEN ISSUED BY JDA IN THE NAME OF GURDEEP KAUR. SD/- SH. HARI KRISHAN DEPONENT VERIFICATION VERIFIED THAT THE CONTENTS OF THE ABOVESAID AFFIDAV IT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND NOTHING HAS BEEN CONCEALED THEREIN. VERIFIED AT PHILLAUR DATED: 04.12.2012 SD/- ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 21 SH. HARI KRISHAN DEPONENT 6.1 FROM THE PERUSAL OF CONTENTS OF THE AFFIDAVIT F ILED BY SHRI HARI KRISHAN, IT WAS NOTICED BY THE ASSESSING OFFIC ER THAT SH. HARI KRISHAN IN THE AFFIDAVIT HAS STATED THAT HE US ED TO PAY THE AMOUNT IN CASH TO THE ASSESSEE AFTER RECEIVING IT FROM HIS AUNT SMT. GURDEEP KAUR. IT HAS ALSO BEEN STATED BY SH. HARI KRISHAN THAT SOME PAYMENTS HAVE DIRECTLY BEEN GIVEN BY SMT. GURDEEP KAUR TO THE ASSESSEE BUT MOST OF THE CASH P AYMENTS HAVE BEEN PASSED ONTO THE ASSESSEE THROUGH HIM. WHE N ASKED BY THE ASSESSING OFFICER TO TELL THE DETAILS OF AMOUNTS HANDED OVER BY HIM TO THE ASSESSEE ON EACH OCCASION , SHRI HARI KRISHAN STATED THAT THE AMOUNTS HAVE BEEN HAND ED OVER TO THE ASSESSEE AS PER TERMS AND CONDITIONS OF THE AGREEMENT DATED 02.05.2009 WITHOUT GIVING ANY DETAILS OF CASH GIVEN BY HIM OR SMT. GURDEEP KAUR. IT HAS AGAIN BEEN SUBMITT ED BY SHRI HARI KRISHAN BEFORE THE ASSESSING OFFICER THAT THE PAYMENTS WERE MADE TO THE ASSESSEE AS AND WHEN HE RECEIVED THE AMOUNTS FROM HIS AUNT. ACCORDING TO TH E ASSESSING OFFICER, SH. HARI KRISHAN FAILED TO TELL AS TO HOW AND FROM WHOM HE RECEIVED THE PAYMENTS SENT TO HIM BY SMT. GURDEEP KAUR AND WHAT IS THE MODE OF SENDING THE CA SH PAYMENTS BY SMT. GURDEEP KAUR TO HIM. THE INFORMATI ON DESIRED BY THE ASSESSING OFFICER I.E. COPY OF BANK ACCOUNT OF SMT. GURDEEP KAUR, COMPLETE COPY OF HER PASSPORT AN D MODE OF SENDING MONEY TO SH. HARI KRISHAN ETC. HAS ALSO NOT BEEN FURNISHED EXCEPT COPY OF ONLY ONE PAGE OF THE PASSP ORT OF SMT. GURDEEP KAUR. ACCORDING TO THE ASSESSING OFFICER IT WAS NOT ESTABLISHED BY THE ASSESSEE THAT AT THE TIME OF EXE CUTING THE AGREEMENT TO SELL THE PURCHASER WAS IN INDIA AND FU RTHER FROM THE INFORMATION PROVIDED BY THE ASSESSEE IT COULD O NLY BE SAID THAT PURCHASER WAS IN INDIA ONLY IN THE MONTH OF JU LY, 2009. THE ASSESSING, THEREFORE, TREATED THE AGREEMENT TO SELL A FAKE DOCUMENT AND MADE THE ADDITION OF RS.40,31,200/-, REPRESENTING PEAK AMOUNT OF DEPOSITS, TO THE RETURN ED INCOME OF THE ASSESSEE. 6.7 ON THE OTHER HAND, THE ASSESSEE HAS HEAVILY REL IED UPON THE AGREEMENT TO SELL DATED 02.05.2009, AFFIDAVIT F ILED BY SHRI HARI KRISHAN AND COPIES OF AFFIDAVIT AND IDENTITY B OND EXECUTED BY SMT. GURDEEP KAUR BEFORE THE EXECUTIVE MAGISTRATE PHILLAUR. APART FROM THIS, THE ASSESSEE ALSO RELIED ON THE FOLLOWING JUDICIAL PRONOUNCEMENT. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 22 (A) MEHTA PARILCH & CO. VS CIT, BOMBAY (1956) 030 ITR 181 (SC). (B) CIT, ORISSA VS. ORISSA CORPORATION (P) LIMITED 159 ITR 078 (SC). (C) ITO VS. SURESH KALMADI (1988) 32 TTJ (PUNE) TM 300 . IT HAS BEEN VEHEMENTLY ARGUED BY THE ASSESSEE THAT HE HAS EXPLAINED ALL THE CASH DEPOSITS INTO HIS BANK ACCOU NT WITH THE HELP OF AGREEMENT TO SELL DATED 02.05.2009 SUPPORTE D BY AFFIDAVIT OF SHRI HARI KRISHAN DATED 04.12.2012. 6.8 AFTER CAREFULLY CONSIDERING THE ASSESSMENT ORD ER, REMAND REPORT, WRITTEN SUBMISSIONS OF THE ASSESSEE, HIS COUNTER COMMENTS AS WELL AS OTHER MATERIAL BROUGHT ON RECORD, I AM OF THE OPINION THAT THE ASSESSEE HAS TOTALLY F AILED TO THE SOURCES OF CASH DEPOSITS INTO HIS VARIOUS BANK NEIT HER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOR DURING THE COURSE OF APPELLATE PROCEEDINGS COULD ADDUCE ANY EVIDENCE WHI CH WILL PROVE THAT THE PURCHASER OF PROPERTY SMT. GURDEEP K AUR WAS IN INDIA ON THE DATE OF EXECUTING AGREEMENT TO SELL DATED 02.05.2009 WHICH IS THE MAIN BONE OF CONTENTION. TH E SIGNATURES ON THE AGREEMENT TO' SELL DATED 02.05.20 09 SUPPOSEDLY OF SMT. GURDEEP KAUR DO NOT MATCH WITH H ER SIGNATURES ON AFFIDAVIT AND INDEMNITY BOND DATED 24 .07.2009 EXECUTED BEFORE THE EXECUTIVE MAGISTRATE PHILLAUR. COPY OF BANK ACCOUNT OF SMT. GURDEEP KAUR HAS ALSO NOT BEEN PRODUCED TO PROVE HER CREDITWORTHINESS. NOT ONLY TH IS, SMT. GURDEEP KAUR HAS NEVER CONFIRMED THE CONTENTS OF AF FIDAVIT DATED 04.12.2012 FILED BY SH. HARI KRISHAN. NO DOUB T THAT THE PROPERTY HAS BEEN TRANSFERRED BY PUDA IN THE NAME O F SMT. GURDEEP KAUR BUT THIS FACT WILL ITSELF NOT PROVE TH AT THE CASH DEPOSITS HAVE BEEN MADE OUT OF SALE PROCEEDS OF THE PROPERTY UNLESS AND UNTIL IT IS PROVED THAT THE AGREEMENT T O SELL IS GENUINE AND PAYMENTS HAVE ACTUALLY BEEN GIVEN BY SM T. GURDIP KAUR TO THE ASSESSEE. I FAIL TO UNDERSTAND T HAT AS TO HOW A THIRD PERSON (SH. HARI KRISHAN) WHO IS NOT A PARTY EITHER TO PURCHASE OR TO SELL CAN DEPOSE THAT HE HA S MADE PAYMENTS TO THE SELLER ON BEHALF OF SMT. GURDEEP KA UR UNLESS AND UNTIL HIS VERSION IS CONFIRMED BY EITHER SMT. G URDEEP KAUR OR BY ANY OTHER DOCUMENTARY EVIDENCE. TJADASSESSE E VEHEMENTLY FAILED TO PRODUCE ANY DOCUMENTARY EVIDEN CE EITHER IN THE FORM OF BANK ACCOUNT OF THE PURCHASER OR ANY OTHER DOCUMENTARY EVIDENCE WHICH WILL PROVE THAT SM T. GURDEEP KAUR HAS ACTUALLY PAID THE AMOUNTS TO THE A SSESSEE ON THE RESPECTIVE DATES EITHER HERSELF OR THROUGH A NY OTHER PERSON. THE AFFIDAVIT FILED BY SH. HARI KRISHAN DAT ED ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 23 04.12.2012 HAS NO EVIDENTIARY VALUE IN THE EYES OF LAW AS THE CONTENTS OF THE AFFIDAVIT ARE NOT CONFIRMED BY SMT . GURDEEP KAUR WHO IS THE ACTUAL BENEFICIARY. IT IS UNBELIEVA BLE THAT THE PAYMENTS HAVE BEEN SENT BY SMT. GURDEEP KAUR FROM U .K. TO SH. HARI KRISHAN IN CASH. THE CONTENTS OF THE AGREE MENT TO SELL DATED ARE ALSO UNUSUAL AS THE DATES OF PAYMENTS IN THE AGREEMENT HAVE BEEN STATED IN A FASHION JUST TO EXP LAIN THE CASH DEPOSITS IN THE VARIOUS BANK ACCOUNTS. IN MY O PINION, EXECUTION OF AGREEMENT TO SELL DATED 02.05.2012 ARE ALSO APPEARS TO BE FAKE AS THE SIGNATURES OF SMT. GURDEE P KAUR ON IT ARE ENTIRELY DIFFERENT FROM HER SIGNATURES ON OT HER DOCUMENTS, IS JUST AN AFTERTHOUGHT. 6.9 IN THESE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE ASSESSEE HAS ABSOLUTELY FAI LED TO EXPLAIN THE CASH DEPOSITS IN HIS BANK ACCOUNTS WITH ANY AUTHENTIC DOCUMENTARY EVIDENCE. THE AGREEMENT TO SE LL ON WHICH THE ASSESSEE HEAVILY RELIED UPON APPEARS TO B E FAKE IN VIEW OF THE DISCUSSION IN PRECEDING PARAGRAPHS. THE ASSESSEE HAS ALSO NOT PRODUCED ANY DOCUMENTARY EVIDENCE TO P ROVE THE CREDIT WORTHINESS OF SMT. GURDEEP KAUR. NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROVE THAT AT THE TIME OF EXEC UTING THE BURDEN HEAVILY LIES ON THE ASSESSEE TO PROVE THE SO URCES OF CASH DEPOSIT IN HIS VARIOUS BANK ACCOUNTS SUPPORTED BY ANY AUTHENTIC DOCUMENTARY EVIDENCE AND IN MY CONSIDERED OPINION THE BURDEN WHICH SQUARELY LIES ON HIM HAS NOT BEEN DISCHARGED. IN VIEW OF THESE FACTS, I HOLD THAT THE ASSESSING OFFICER IS JUSTIFIED IN TREATING THE CASH DEPOSITS IN VARIOUS BANK ACCOUNTS OF THE ASSESSEE AS UNEXPLAINED. THE J UDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE HAVE ENT IRELY DIFFERENT FACTS THAN THAT OF THE FACTS OF THE CASE OF THE ASSESSEE. THE FACTS OF THE CASES RELIED UPON ARE DISTINGUISHABLE. HOWEVER, I AM OF THE OPINION THAT THE ASSESSING OFFICER HAS NOT WORKED OUT THE PEAK AMOUN T OF DEPOSITS CORRECTLY. WHILE WORKING OUT THE PEAK, THE ASSESSING OFFICER SHOULD HAVE TAKEN INTO ACCOUNT ALL THE THRE E BANK ACCOUNTS OF THE ASSESSEE TOGETHER AS THE WITHDRAWAL S MADE FROM ONE ACCOUNT CAN BE DEPOSITED IN OTHER AND VICE VERSA. THE PEAK AMOUNT OF DEPOSIT IS, THEREFORE, WORKED OU T AS UNDER:- DATE PARTICULARS WITHDRAWAL( R S.) DEPOSIT(RS.) BA!ANCE(RS.) ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 24 25.04.09 ICICI BANK A/C NO.504447 - 12,200 12,200 02.05.09 PUNJAB & SIND BANK A/C NO. SB-2/8620 - 2,90,000 3,02,200 09.05.09 ICICI BANK A/C NO.504447 - 4,22,000 7,24,200 19.05.09 -DO- - 5,00,000 12,24,200 22.05.09 PUNJAB & SIND BANK A/C NO. SB-2/8620 50,000 - 11,74,200 29.05.09 ICICI BANK A/C NO.504447 2,50,000 - 9,24,200 01.06.09 -DO- 6,00,000 - 3,24,200 01.06.09 PNB A/C NO.26203 - 12,87,000 16,11,200 02.06.09 TO PUNJAB & SIND BANK A/C - 29,000 16,40,200 PAGE 24 0-,. 06.09 NO. SB-2/8620 18.06.09 PUNJAB & SIND BANK A/C NO. SB-2/8620 1,00,000 - 15,40,200 22.06.09 ICICI BANK A/C NO.504447 20,000 - 15,20,200 24.06.09 PUNJAB & SIND BANK A/C NO. SB-2/8620 24,000 - 14,96,200 26.06.09 01.07.09 TO ICICI BANK A/C NO.504447 30,000 - 14,66,200 05.06.09 NO.SB-2/8620 ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 25 18.06.09 PUNJAB & SIND BANK A/C NO. SB-2/8620 10,000 - 15,40,200 22.07.09 PNB A/C NO.26203 - 10,90,000 25,46,200 25.07.09 ICICI BANK A/C NO.504447 - 1,70,000 27,16,200 22.08.09 PNB A/C NO.26203 - 30,000 27,46,200 05.09.09 21.09.09 TO ICICI BANK A/C NO.504447 1,06,000 - 26,40,200 20.10.09 24.10.09 TO PNB A/C NO.26203 - 4,00,000 30,40,200 26.10.09 -DO- 1,00,000 - 29,40,200 26.10.09 ICICI BANK A/C NO.504447 3,500 - 29,36,700 19.11.09 PNB A/C NO.26203 1,10,000 - 28,26,700 30.11.09 29.12.09 TO ICICI BANK A/C NO.504447 - 20,000 28,46,700 11.01.10 PNB A/C NO.26203 - 53,100 28,99,800 25.01.10 TO 27.02.10 ICCI BANK A/C NO.504447 - 24,500 29,24,300 IN VIEW OF THE ABOVE STATED FACTS, THE ADDITION MAD E BY THE ASSESSING OFFICER IS REDUCED FROM RS.40,31,200/- TO RS.30,40,200/-. THE ASSESSEE WILL THUS GET AN RELIE F RS.9,91,000/-. IN THE RESULT, GROUNDS OF APPEAL NO. 2 TO 7 TAKEN BY THE ASSESSEE ARE PARTLY ALLOWED. 9. BEFORE US, THE ASSESSEE HAS CHALLENGED THE AFORE SAID ACTION OF THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE HAS AD DRESSED ARGUMENTS. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 26 A BRIEF SYNOPSIS HAS ALSO BEEN FILED. IT HAS BEEN SUBMITTED THAT THE ASSESSEE OWNED HOUSE NO.964, URBAN ESTATE, PHAGWARA , FOR WHICH, THE PLOT WAS ALLOTTED TO HIM AND LATER ON, HE CARRIED OUT THE CONSTRUCTION, WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT AS PER EV IDENCE AT PAGE 37 TO 38 OF THE PAPER BOOK. FURTHER, THE RESIDENTIAL H OUSE WAS SOLD, FOR WHICH, THERE WAS APPROVAL AND ISSUANCE OF FRESH ALL OTMENT LETTER IN FAVOUR OF SMT. GURDEEP KAUR, THE PURCHASER, AS PER EVIDENCE AT PB 21 TO 24. THE AFFIDAVIT OF SMT. GURDEEP KAUR IS PLACED AT PB 27 & 28. THE PURCHASER HAS FURNISHED INDEMNITY BOND AND AFFIDAVI T DULY ATTESTED BEFORE THE EXECUTIVE MAGISTRATE ON 24.07.2009, WHE N SMT. GURDEEP KAUR PERSONALLY APPEARED BEFORE THE EXECUTIVE MAGI STRATE AND THE PROPERTY STANDS TRANSFERRED TO SMT. GURDEEP KAUR LA TER ON, WHICH HAS NOT BEEN DENIED OR DOUBTED BY THE DEPARTMENT. AS RE GARDS THE FACT THAT SMT. GURDEEP KAUR WAS IN INDIA ON THE DATE OF EXECU TING THE AGREEMENT ON 02.05.2009 IS AGAIN IRRELEVANT, SINCE THE FACT T HAT THE PROPERTY WAS TRANSFERRED AND SOLD TO SMT. GURDEEP KAUR HAS NOT B EEN DOUBTED BY THE AO AND THE LD. CIT(A) AND SMT. GURDEEP KAUR IS NOT RELATED TO THE ASSESSEE AND AGAINST THE SALE OF PROPERTY, THE PAYM ENT HAD BEEN RECEIVED BY THE ASSESSEE AND, WHICH HAS BEEN RECEIVED, AS PE R THE AFFIDAVIT OF HER NEPHEW, SH. HARI KRISHAN, PLACED AT PB 45 AND THAT HE WAS REPRESENTING ON BEHALF OF SMT. GURDEEP KAUR, IS FURTHER PROVED FROM HIS JOINT BANK ACCOUNT IN INDIA WITH SMT. GURDEEP KAUR, COPY OF WHICH IS PLACED AT PB 49 TO 50. IN THE AFFIDAVIT, SH. HARI KRISHAN HAS E MPHATICALLY STATED ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 27 ABOUT THE AGREEMENT DATED 02.05.2009 AND THE LAST P AYMENT TO PUDA DIRECTLY ON 10.01.2010 AND THE CASH PAYMENT HAS BEE N RECONCILED WITH THE DATES GIVEN IN THE AGREEMENT AND WITH THE DEPOS ITS IN THE BANK ACCOUNT OF THE ASSESSEE. EVEN THE ASSESSING OFFICER VERIFIED THE FACT FROM JDA AUTHORITIES DURING REMAND PROCEEDINGS THAT THE PROPERTY STANDS TRANSFERRED IN THE NAME OF SMT. GURDEEP KAUR. 9.1 IT SS FURTHER STATED THAT THE ASSESSEE WAS NOT REQUIRED TO PROVE WHETHER SMT. GURDEEP KAUR WAS IN INDIA AS ON THE DA TE OF EXECUTION OF AGREEMENT ON 02.05.2009, BUT IT WAS A FACT THAT THE AMOUNT HAD BEEN RECEIVED BY THE ASSESSEE ON THE SALE OF THE PROPERT Y. IF THE PROPERTY HAD BEEN SOLD, THE PAYMENT MUST HAVE BEEN RECEIVED AND THE AO HAD NOT BEEN ABLE TO IDENTIFY ANY OTHER SOURCE OF THE ASSES SEE, SINCE HIS PROFESSIONAL RECEIPTS HAD BEEN ACCEPTED AND NO ADV ERSE VIEW HAD BEEN TAKEN BY THE AO AND THE LD. CIT(A). THE AUTHORITI ES BELOW ARE DOUBTING ON PRESUMPTION THAT THE SIGNATURES OF SMT. GURDEEP KAUR ON THE AGREEMENT DID NOT MATCH WITH THOSE ON THE DOCUMENTS FURNISHED BY HER WHILE APPEARING BEFORE THE EXECUTIVE MAGISTRATE, PH ILLAUR. SH. HARI KRISHAN THE NEPHEW OF SMT. GURDEEP KAUR HAD CONFIRM ED ABOUT THAT AGREEMENT AND IN ORDER TO FURTHER SUBSTANTIATE THE FACT, IT WAS STATED THAT PROCEEDINGS AGAINST SMT. GURDEEP KAUR REGARDIN G THE SALE OF PROPERTY HAD BEEN INITIATED BY ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) BY WAY OF A LETTER DATED 3 1.01.2014, TO WHICH, SMT. GURDEEP KAUR, VIDE LETTER DATED 22.02.2014, RE PLIED AND CONFIRMED ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 28 THE AGREEMENT, DATED 02.05.2009 AND ALSO THE COPY O F THE PASSPORT HAD BEEN ENCLOSED BY HER TO THE SAID OFFICER. IT WAS ACCORDINGLY SUBMITTED THAT THE SAID EVIDENCE GOES TO PROVE THE CASE OF THE ASSESSEE DIRECTLY AND, THEREFORE, BY WAY OF SEPARATE APPLICATION, DAT ED 24.11.2014, THE ASSESSEE HAS MADE A REQUEST FOR ADMISSION OF SUCH A DDITIONAL EVIDENCE. 9.2. IT WAS FURTHER SUBMITTED THAT IT WAS NOT A CAS E OF CASH CREDIT WHERE THE CREDITWORTHINESS IS REQUIRED TO BE PROVED AT AL L, SINCE THE ASSESSEE IS CONCERNED ABOUT THE GOOD REALIZABLE VALUE OF HIS PR OPERTY AND THE ASSESSEE WAS NOT REQUIRED TO KEEP TRACK OF THE PUR CHASER, ONCE THE DEAL WAS OVER. SMT. GURDEEP KAUR HAD CONFIRMED THE AGR EEMENT TO SELL DATED 02.05.2009, WHICH WAS GENUINE AND BY VIRTUE OF THAT ONLY, THE PROPERTY HAD BEEN TRANSFERRED BY PUDA, WHICH HAD BE EN ACCEPTED BY THE DEPARTMENT AND ONCE THE PROPERTY HAD BEEN TRANSFERR ED, THE AGREEMENT HAD BEEN CONFIRMED AND THE PAYMENT HAD BEEN RECEIVE D AS PER THE TERMS OF THE AGREEMENT AND FOR WHICH, THE PAYMENT HAD BEE N DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, NOTHING MORE WAS REQ UIRED TO BE PROVED. ONE CANNOT EXECUTE THE AGREEMENT TO SELL THE PROPER TY WITHOUT CONSIDERATION, PARTICULARLY WHEN SMT. GURDEEP KAUR WAS NOT A RELATIVE OF THE ASSESSEE. SH. HARI KRISHAN IS HER NEPHEW, WHIC H HAS CONFIRMED BY THE JOINT BANK ACCOUNT OF SH. HARI KRISHAN WITH SMT . GURDEEP KAUR AND FURTHER, SH. HARI KRISHAN HAD THE POWER OF ATTORNEY FOR SOME OTHER PROPERTIES ALSO, THEREFORE, HE HAD CONFIRMED THE SA ME BY PRESENTING ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 29 HIMSELF BEFORE THE AO. NOW, SINCE SMT. GURDEEP KAU R HAS CONFIRMED THE TRANSACTION, NOTHING REMAINS TO BE PROVED. 9.3. IN THE LETTER, SMT. GURDEEP KAUR HAD CONFIRME D TO THE DEPARTMENT DURING HER PROCEEDINGS THAT THE CASH PAYMENTS WERE MADE AS PER TERMS OF THE AGREEMENT, DATED 02.05.2009 TO THE TUNE OF R S.43 LACS AND THE BALANCE PAYMENT OF RS.2,58,205/- HAD BEEN MADE DIRE CTLY TO PUDA AND, THUS, NOTHING REMAINS TO BE PROVED. THE ASSESSEE IS NOT REQUIRED TO PROVE THE SOURCE OF CASH GIVEN BY SMT. GURDEEP KAUR, AS T HIS IS NOT THE REQUIREMENT OF LAW. FROM THE AFFIDAVIT FURNISHED NO W AND EARLIER ALSO, IT HAS BEEN CONFIRMED THAT SMT. GURDEEP KAUR IS NOW T HE OWNER OF THE PROPERTY, WHICH HAS BEEN TRANSFERRED BY THE ASSESSE E AND THAT FACT HAS BEEN DOUBTED BY THE AO/CIT(A) AND, THUS, THE CONTE NTS OF THE AFFIDAVIT HAVE ALSO BEEN CONFIRMED BY SMT. GURDEEP KAUR. 9.4. IT WAS SUBMITTED THAT FROM THE ABOVE SUBMISSIO NS, IT WAS PROVED THAT THE FINDING OF THE LD. CIT(A) IN PARA 6.9 ABOU T THE CREDIT WORTHINESS, SIGNATURES REGARDING CONFIRMATION OF SALE WERE NOT REQUIRED EARLIER, BUT STILL THAT HAS BEEN CONFIRMED BY WAY OF EVIDENCE NO W BEING FURNISHED, THE ONUS UPON THE ASSESSEE STANDS DISCHARGED AND RE LIANCE IS BEING PLACED ON THE JUDGMENT AS REPORTED IN THE CASE OF C IT VS. DAULAT RAM RAWATMULL AS REPORTED IN 87 ITR 349 AND NOW, LAYS U PON THE DEPARTMENT TO PROVE IT OTHERWISE. BUT THE DEPARTMENT HAVING AC CEPTED THE TRANSFER OF THE PROPERTY AND THE FACT THAT SMT. GURDEEP KAUR IS NOT A RELATIVE OF THE ASSESSEE AND THE ASSESSEE WAS NOT REQUIRED TO PROV E THE SOURCE FROM ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 30 WHERE THE NRI HAS GIVEN MONEY, THE SUSTAINING OF T HE ADDITION OF RS.30,40,200/- IS AGAINST THE FACTS AND CIRCUMSTANC ES OF THE CASE AND, THEREFORE, THAT DESERVES TO BE DELETED. IT WAS FUR THER PRAYED THAT THE ORDER OF THE LD. CIT(A) IS NOT SUSTAINABLE AT ALL S INCE THE LD. CIT(A) HAS IGNORED THE DOCUMENTARY EVIDENCES FILED BY THE ASSE SSEE. 10. ON THE OTHER HAND, THE LD. DR RELIED ON THE AO S ORDER. IT WAS CONTENDED THAT CASH OF ABOUT RS.40,31,000/- WAS FOU ND DEPOSITED. THE ONUS WAS ON THE ASSESSEE TO PROVE THE SOURCE THEREO F. IT WAS CONTENDED THAT AS PER SECTION 69A OF THE ACT, WHERE ANY MONE Y IS FOUND TO BE IN THE OWNERSHIP OF THE ASSESSEE AND SUCH MONEY IS NO T RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY THE ASSESSE E FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, OR THE EXPLANA TION OFFERED BY HIM IS NOT, IN THE OPINION OF THE AO, SATISFACTORY, THE M ONEY MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE. IT WAS CONTENDED THA T IN THE PRESENT CASE, THE SAID ONUS OF THE ASSESSEE HAS NOT BEEN DISCHAR GED. IT WAS SUBMITTED THAT AS ON 02.05.2009, THE ALLEGED DATE OF THE AGRE EMENT BETWEEN THE ASSESSEE AND SMT. GURDEEP KAUR, SHE WAS NOT IN INDI A AND THAT THEREFORE, THE AO HAS CORRECTLY HELD THE AGREEMENT TO BE A FABRICATED ONE, PARTICULARLY WHEN THE OBSERVATION OF THE AO THAT TH E SIGNATURES OF SMT. GURDEEP KAUR ON THE AGREEMENT ARE ENTIRELY DIFFEREN T FROM HER SIGNATURES ON THE OTHER DOCUMENTS, DOES NOT STAND DISPROVED. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 31 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. CIT(A) CONFIRMED THE A CTION TO THE EXTENT OF RS.30,40,200/- BY HOLDING THAT THE ASSESSEE HAD FAI LED TO EXPLAIN THE CASH DEPOSITS IN HIS BANK ACCOUNT. FOR ARRIVING AT THIS CONCLUSION, THE FIRST OBSERVATION OF THE LD. CIT(A) IS THAT THE ASS ESSEE COULD NOT, EITHER IN THE ASSESSMENT PROCEEDINGS, OR IN THE FIRST APPELLA TE PROCEEDINGS, PROVE THAT THE PURCHASER OF THE PROPERTY, SMT. GURDEEP KA UR WAS IN INDIA ON 02.05.2009, I.E., THE ALLEGED DATE OF EXECUTION OF THE AGREEMENT TO SELL. IN THIS REGARD, FIRSTLY, AS RIGHTLY CONTENDED ON BEHA LF OF THE ASSESSEE, THE CONSTRUCTION OVER THE PLOT ALLOTTED TO THE ASSESSEE HAS NOT BEEN DISPUTED BY THE DEPARTMENT. APROPOS THE CONSTRUCTION OF THE HOUSE, THE APPROVAL WAS GRANTED, WHICH ALSO HAS NOT BEEN QUESTIONED. TH EN, SMT. GURDEEP KAUR FILED AN AFFIDAVIT APB 27-28), THEREIN, SHE HA S CATEGORICALLY STATED, INTER-ALIA, THAT I HAVE AGREED TO PURCHASE/GET TR ANSFERRED PLOT AT COMMERCIAL SITE NUMBER 964 SITUATED IN SECTOR/PHASE -1 AT URBAN ESTATE, PHAGWARA FROM ITS OWNER SH. KASHMIR SINGH MALHI SON OF AJIT SINGH, R/O 948 URBAN ESTATE, PHAGWARA THRUGH HIS GPA/SPA SH.__ ____ (IF APPLICABLE). 12. THIS AFFIDAVIT STANDS ATTESTED BY THE EXECUTIV E MAGISTRATE, PHILLAUR. SMT. GURDEEP KAUR ALSO APPEARED BEFORE TH E EXECUTIVE MAGISTRATE. THE HOUSE WAS DULY TRANSFERRED IN THE N AME OF SMT. GURDEEP KAUR. THESE FACTS HAVE ALSO NOT BEEN DISPUTED AND T HE LD. CIT(A) HAS MERELY DISREGARDED THE SAID AFFIDAVIT OF SMT. GURD EEP KAUR. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 32 13. SH. HARI KRISHAN, NEPHEW OF SMT. GURDEEP KAUR, WHO USED TO RECEIVE THE MONEY FROM SMT. GURDEEP KAUR AND HAND I T OVER TO THE ASSESSEE, FILED HIS AFFIDAVIT AT APB-45, DEPOSED T HAT HE HAD BEEN REPRESENTING SMT. GURDEEP KAUR. HIS BANK ACCOUNT , WHICH WAS AN ACCOUNT (APB 49-50) HELD JOINTLY BY HIM ALONGWITH S MT. GURDEEP KAUR, ALSO SUPPORTS THIS CONTENTION. 14. IN HIS AFORESAID AFFIDAVIT, SH. HARI KRISHAN H AS MADE THE FOLLOWING DEPOSITION (APB45): 1. THAT GURDEEP KAUR WIFE OF KEWAL SINGH RESIDING IN ENGLAND IS THE REAL SISTER OF MY FATHER PIARA SINGH. SHE P URCHASED ONE HOUSE NO. 964, URBAN ESTATE, PHAGWARA, FROM ONE KASHMIR SINGH MALHI SON OF AJIT SINGH OF URBAN ESTA TE, PHAGWARA. 2. THAT THE SAID HOUSE WAS PURCHASED BY MY AUNT GU RDEEP KAUR FOR ABOUT RS.45,58,000/- (RS. FORTY FIVE LACS FIFTY EIGHT THOUSANDS) ON THE BASIS OF AGREEMENT DATED 02.05.2009. THE PAYMENT WAS MADE AS PER THE AGREEM ENT. SOME OF THE PAYMENT WAS MADE BY HER AND MOST OF THE PAYMENT WAS MADE BY ME WHENEVER SHE USED TO SEND T HE MONEY TO ME AS PER THE TERMS OF THE AGREEMENT AND THEREAFTER I USED TO PAY THE SAME TO ABOVE SAID KA SHMIR SINGH MALHI. ON 10.01.2010, THE LAST PAYMENT WAS P AID BY ME AND AFTER THAT SOME OF THE AMOUNT WAS PAID TO P UDA DIRECTLY BY ME AS PER THE TERMS OF THE AGREEMENT. 3. THAT NOW THE RE-ALLOTMENT OF LETTER HAS BEEN ISS UED BY JDA IN THE NAME OF GURDEEP KAUR. 15. THIS AFFIDAVIT HAS ALSO NOT BEEN PROVED TO BE F ALSE. THE FACTUM OF PAYMENT FOR THE HOUSE BY GURDEEP KAUR TO THE ASSESS EE STANDS SUBSTANTIATED THEREBY. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 33 16. FURTHERMORE, DURING THE REMAND PROCEEDINGS, IT WAS VERIFIED BY THE AO FROM THE JDA AUTHORITY THAT THE HOUSE STOOD TRANSFERRED IN THE NAME OF GURDEEP KAUR. 17. THEN, THE TAXING AUTHORITIES HAVE ALSO NOT BROU GHT ON RECORD ANYTHING TO SHOW THAT THERE WAS ANY OTHER SOURCE OF INCOME OF THE ASSESSEE. THE PROFESSIONAL RECEIPTS WERE ACCEPTED. THE DOCUMENTS REGARDING THE SALE OF THE HOUSE DID NOT STAND DISP ROVED. THE AGREEMENT IN QUESTION HAS NOT BEEN SHOWN AS NOT HAVING BEEN A CTED UPON. 18. FURTHER, IN THE REMAND REPORT, THE AO STATED A S FOLLOWS: 2. IN THIS CONNECTION, IT IS SUBMITTED THAT SH. KAS HMIR SINGH MALHI, ADVOCATE SOLD HIS PROPERTY NO. 964 AT URBAN ESTATE PHAGWARA TO SMT. GURDIP KAUR W/O SH. KEWAL SINGH VILL.RURKEE PATTI KHERA TEHSIL PHILLAUR. THE JALAND HAR DEVELOPMENT AUTHORITY HAS INTIMATED VIDE ITS OFFICE LETTER NO.4877 DATED 30.09.2013 THAT SH. KASHMIR SINGH MAL HI APPLIED FOR TRANSFER THE SAID PROPERLY IN THE NAME OF SMT. GURDIP KAUR W/O SH. KEWAL SINGH ON 11.01.2010. THIS PROPERTY WAS TRANSFERRED IN THE NAME OF SMT. GURDIP KAUR ON 09.06.2010. 19. THEN, IN HER INCOME-TAX PROCEEDINGS BEFORE THE ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION), CHANDIGARH, WHICH PROCEEDINGS WERE IN RESPECT OF THE SAME AMOUNT OF RS.45,58,205 /-, GURDEEP KAUR CONFIRMED VIDE LETTER DATED 22.02.2014, THAT THE PA YMENT HAD BEEN MADE TO THE ASSESSEE IN CASH ON VARIOUS DATES, AS PER TH E TERMS OF THE AGREEMENT DATED 02.05.2009. THE RELEVANT CONTENTS O F THIS LETTER ARE AS FOLLOWS: 1. THE HOUSE NO.964 SITUATED AT URBAN ESTATE, PHA GWARA WAS PURCHASED BY ME FROM MR. KASHMIR SINGH MALHI, AD VOCATE, ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 34 CIVIL COURTS, PHILLAUR FOR RS.45,58,205/- VIDE OUR AGREEMENT DATED 02.05.2009. 2. THE PAYMENT TO MR. KASHMIR SINGH MALHI WERE MADE IN CASH ON THE VARIOUS DATES AS PER THE TERMS OF AGREEMENT DATED 02.05.2009. AS PER THE TERMS OF OUR AGREEMENT, OUT OF THIS SUM OF RS.45,58,205/-, A SUM OF RS.43,00,000/- WAS PAID TO MR. KASHMIR SINGH MALHI ON VARIOUS DATES AND BALANC E OF RS.2,58,205/- WAS PAID BY ME DIRECTLY TO PUDA. 20. THE AFORESAID LETTER HAS BEEN SOUGHT TO BE PROD UCED AS ADDITIONAL EVIDENCE. THE ORDER OF THE LD. CIT(A) IS DATED 16.1 2.2013, WHEREAS THE AFORESAID LETTER IS OF 22.02.2014. THEREFORE, IT B EING NOT IN EXISTENCE AS ON THE DATE OF THE PASSING OF THE IMPUGNED ORDER, O BVIOUSLY, IT COULD NOT HAVE BEEN PRODUCED BY THE ASSESSEE BEFORE THE LD. C IT(A), MUCH LESS DURING THE ASSESSMENT PROCEEDINGS. THIS LETTER, AS THE ABOVE CONTENTS THEREOF SHOW, IS DIRECTLY RELATED AND IS VERY RELE VANT, TO THE DISPUTE AT HAND AND, THEREFORE, IT IS NECESSARY FOR THE ADJUD ICATION THEREOF. AS SUCH, THE SAME IS TAKEN AS EVIDENCE. THIS LETTER, I T IS SEEN, WAS IN RESPONSE TO THE REQUISITION OF INFORMATION U/S 133( 6) OF THE ACT, AS DESIRED BY THE DIT (INTERNATIONAL TAXATION), CHANDI GARH. 21. THE LD. CIT(A) HAS NEXT OBSERVED THAT THE ALLEG ED SIGNATURES OF SMT. GURMEET KAUR ON THE AGREEMENT TO SELL DATED 2.5.200 9 DID NOT MATCH WITH HER SIGNATURES ON THE AFFIDAVIT AND INDEMNITY BOND DATED 24.07.2009 EXECUTED BEFORE THE EXECUTIVE MAGISTRATE . IN THIS REGARD, FIRSTLY, THE LD. CIT(A) IS NOT A HAND-WRITING EXPER T. IN CASE HE DOUBTED THE SIGNATURES OF SMT. GURMEET KAUR ON THE AGREEMENT TO SELL, THE PROPER COURSE AVAILABLE FOR HIM WAS TO REFER THE SAME TO A QUALIFIED HAND- WRITING EXPERT, TO ASCERTAIN THE ACTUAL POSITION. T HIS, HOWEVER, WAS NOT ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 35 DONE. HOWEVER, AS DISCUSSED, SH. HARI KRISHAN, NEPH EW OF SMT. GURMEET KAUR CONFIRMED THAT THE AGREEMENT HAD DULY BEEN EXE CUTED. ALSO, IN THE INCOME TAX PROCEEDINGS OF SMT. GURMEET KAUR BEFORE DIT (INTERNATIONAL TAXATION), BY WAY OF HER AFORESAID LETTER/REPLY DAT ED 22.02.2014, SMT. GURMEET KAUR HERSELF CONFIRMED THE AGREEMENT. THERE FORE, THIS OBSERVATION OF THE LD. CIT(A) IS ALSO NOT SUSTAINAB LE. 22. THE LD. CIT(A) FURTHER OBSERVED THAT THE BANK A CCOUNT OF SMT. GURMEET KAUR HAD NOT BEEN PRODUCED AND SO, HER CRED ITWORTHINESS DID NOT STAND PROVED; AND THAT SMT. GURMEET KAUR HAD N OT CONFIRMED THE CONTENTS OF THE AFFIDAVIT OF SH. HARI KRISHAN. IN T HIS REGARD, AS RIGHTLY CONTENDED ON BEHALF OF THE ASSESSEE, IT IS IN A CAS E OF CASH CREDIT WHERE CREDITWORTHINESS REQUIRES TO BE PROVED, WHICH IS NO T THE POSITION HEREIN. THE ASSESSEE SOLD THE HOUSE TO SMT. GURMEET KAUR A ND RECEIVED THE PAYMENT FOR THE SAME. IT IS THIS TRANSACTION, WHIC H IS IN QUESTION IN THE PRESENT CASE. MOREOVER, TO REITERATE, SMT. GURMEET KAUR HAS ADMITTED HAVING PURCHASED THE HOUSE AND HAVING MADE THE PAYM ENT THEREFOR. 23. IT HAS ALSO BEEN OBSERVED BY THE LD. CIT(A) THA T EVEN IF THE PROPERTY WAS TRANSFERRED TO PUDA IN THE NAME OF SMT. GURMEET KAUR, THIS FACT BY ITSELF DOES NOT PROVE THAT THE CASH DEPOSITS HAD BE EN MADE OUT OF THE SALE PROCEEDS OF THE PROPERTY, WITHOUT PROVING THAT THE AGREEMENT TO SELL WAS GENUINE AND THAT THE PAYMENTS HAD ACTUALLY BEEN MAD E; AND THAT THE DEPOSITION OF SH. HARI KRISHAN WAS NOT AT ALL CREDI T-WORTHY, AS HE WAS BUT A THIRD PERSON TO THE TRANSACTION OF SALE OF HO USE BY THE ASSESSEE TO ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 36 SMT. GURMEET KAUR AND SMT. GURMEET KAUR HAD NOT CON FIRMED THE VERSION OF SH. HARI KRISHAN THAT HE, I.E., SH. HARI KRISHAN HAD MADE PAYMENTS TO THE ASSESSEE/SELLER ON BEHALF OF SMT. G URMEET KAUR PURCHASER; AND THAT NO OTHER DOCUMENTARY EVIDENCE H AD ALSO BEEN BROUGHT IN THIS REGARD. HERE, AS SEEN, SMT. GURMEET KAUR HAS, IN NO UNCERTAIN TERMS, ADMITTED OF THE TRANSACTION OF PUR CHASE OF HOUSE FROM THE ASSESSEE IN THE PROCEEDINGS BEFORE THE DIT (INT ERNATIONAL TAXATION), CHANDIGARH, THEREBY AFFIRMING THE AGREEMENT. THE AG REEMENT, EVEN OTHERWISE, DOES NOT STAND PROVED TO BE A SHAM DOCUM ENT. IT REMAINS UNDISPUTED THAT SMT. GURMEET KAUR WAS RESIDING IN T HE U.K. AT THE RELEVANT TIME. IT REMAINS UNDISPUTED THAT SH. HARI KRISHAN IS HER NEPHEW. IT REMAINS UNDISPUTED THAT SH. HARI KRISHAN WAS HANDLING THE MATTER REGARDING PAYMENT OF THE PURCHASE PRICE OF T HE HOUSE AND WAS MAKING PAYMENT TO THE ASSESSEE ON BEHALF OF SMT. GU RMEET KAUR. PUDA HAS TRANSFERRED THE HOUSE IN THE NAME OF SMT. GURME ET KAUR, WHICH FACT HAS EARNED THE LD. CIT(A)S ACCEPTANCE. THIS TRANSF ER BY PUDA UNILATERALLY RATIFIED THE AGREEMENT DATED 24.07.20 09, I.E., THE AGREEMENT IN QUESTION. SEEING THE ENTIRE PICTURE , NOTHING A DVERSE CAN BE INFERRED FROM THE TRANSACTION, WHICH ITSELF DOES NOT STAND D ISPROVED. NOW, OBVIOUSLY, THE TRANSFER OF THE HOUSE IN FAVOUR OF S MT. GURMEET KAUR ALSO AFFIRMED THE FACTUM OF THE PAYMENT HAVING BEEN MADE BY SMT. GURMEET KAUR AND RECEIVED BY THE ASSESSEE, AS PER THE TERMS OF THE AGREEMENT. SMT. GURMEET KAUR HAS NOT BEEN SHOWN TO BE A RELATI VE OF THE ASSESSEE ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 37 AND THERE IS NO ASSUMPTION GOING THAT THE AGREEMENT WAS EXECUTED SANS CONSIDERATION. THE FACTUM OF SH. HARI KRISHAN BEING THE NEPHEW OF SMT. GURMEET KAUR ALSO STANDS CONFIRMED BY THE ADMISSION OF SMT. GURDEEP KAUR IN THIS REGARD AND THE FACT THAT SH. HARI KRIS HAN AND SMT. GURMEET KAUR WERE HOLDING A JOINT BANK ACCOUNT. SMT. GURME ET KAUR HAD EXECUTED A POWER OF ATTORNEY IN FAVOUR OF SH. HARI KRISHAN REGARDING HER SOME OTHER PROPERTIES ALSO, WHICH FACT, AS PUTFORWA RD BY SH. HARI KRISHAN BEFORE THE AO, WAS NEVER DENIED BY SMT. GUR MEET KAUR, WHICH CONFIRMS THE TRANSACTION BEFORE THE DIT (INTERNATI ONAL TAXATION). IN THIS CASE, AGAIN, THERE IS NO FORCE IN THE OBSERVATION O F THE LD. CIT(A). 24. THE NEXT OBJECTION OF THE LD. CIT(A) IS THAT TH E ASSESSEE HAS FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE, EITHER IN THE FORM OF BANK ACCOUNT OF THE PURCHASER, OR ANY OTHER DOCUMENTARY EVIDENCE , WHICH WOULD GO TO PROVE THAT SMT. GURMEET KAUR HAD ACTUALLY MADE THE PAYMENT TO THE ASSESSEE ON THE RESPECTIVE DATES, EITHER HERSELF, O R THROUGH ANY OTHER PERSON. IN THIS REGARD, FIRST OF ALL, THE AGREEMENT TO SELL DATED 2.5.2009 MAKES POINTED MENTION SPECIFIC OF DATES ON WHICH T HE PAYMENTS WERE TO BE MADE. AT THIS JUNCTURE, IT WOULD NOT BE OUT OF PLACE TO REPRODUCE HEREIN THE ENGLISH TRANSLATION OF THE SAID AGREEMEN T TO SELL, A COPY WHEREOF HAS BEEN FILED BEFORE US: AGREEMENT TO SELL KASHMIR SINGH MALHI SON OF AJIT SINGH, RESIDENT OF 548 URBAN ESTATE, PHAGWARA- OF THE FIRST PART. GURDEEP KAUR WIFE OF RESHAM SINGH, RESIDENT OF ENGL AND NOW AT RURKI, TEHSIL PHILLAUR- OF THE SECOND PART. ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 38 THE PROPERTY BEARING PLOT NO. 964 IN WHICH BUILDING /KOTHI IS CONSTRUCTED HAS BEEN ALLOTTED TO THE FIRST PART BY PUDA AND SOME REMAINING AMOUNT OUT OF THE INSTALLMENTS IS PAYABLE TO PUDA. NOW THE FIRST PARTY HAS AGREED TO SELL THE ABOVESAID KO THI/BUILDING FOR AN AMOUNT OF RS.4558205/- TO THE SECOND PARTY. TODAY F IRST PARTY HAS RECEIVED AN AMOUNT OF RS.300000/-(RS. THREE LACS) I N CASH FROM THE SECOND PARTY AS EARNEST MONEY AND THE REST OF THE A MOUNT WAS AGREED TO BE PAID BY THE SECOND PARTY AS UNDER: 1) RS. 450000/- BETWEEN 07.05.2009 TO 10.05.2009, 2) RS.500000/- BETWEEN 16.05.2009 TO 21.05.2009, 3) RS.1300000/- BETWEEN 06.06.2009 TO 04.06.09, 4) RS.1300000/- BETWEEN 21.07.2009 TO 23.07.2009, 5) RS.400000/- BETWEEN 15.10.2009 TO 20.10.2009 6) RS.50000/- BETWEEN 10.01.2010 TO 16.01.2010 AND THE BALANCE CONSIDERATION WOULD BE PAID BY THE SECOND PARTY AFTER THE ALLOTMENT LETTER FROM THE OFFICE OF PUDA FOR TRANSFER IN FAVOUR OF PARTY NO.2 AND THE PARTY NO.2 WOULD PAY T HE REMAINING AMOUNT TO THE OFFICE OF PUDA PERSONALLY. IF THE SEC OND PARTY FAILED TO PAY THE AMOUNT AS PER THE TERMS AND CONDITIONS STAT ED ABOVE THEN THE AMOUNT PAID BY SECOND PARTY WOULD STAND FORFEIT ED AND THE AGREEMENT 'WOULD BE TREATED AS CANCELLED. IF THE FI RST PARTY FAILED TO COMPLY WITH THE TERMS AND CONDITIONS AND IN THAT CA SE THE SECOND PARTY WOULD BE ENTITLED TO GET THE SPECIFIC PERFORM ANCE DONE FROM THE CIVIL COURT, HENCE THIS AGREEMENT DATED 02.05.2009 IS EXECUTED AS EVIDENCE. 25. IN HER LETTER BEFORE THE DIT (INTERNATIONAL TAX ATION), CHANDIGARH, SMT. GURMEET KAUR HAS CONFIRMED HAVING MADE CASH PA YMENT TO THE TUNE OF RS.43 LAKHS, AS PER THE TERMS OF THE AGREEM ENT DATED 2.5.2009 AND THAT THE BALANCE PAYMENT OF RS.2,58,205/- HAD BEEN MADE DIRECTLY TO PUDA. ACCORDINGLY, THIS OBSERVATION OF THE LD. C IT(A) ALSO DOES NOT HOLD WATER. 26. THE LD. CIT(A) HAS ALSO REMARKED THAT THE AFFID AVIT DATED 4.12.2012, FILED BY SH. HARI KRISHAN, HAD NO EVIDEN TIARY VALUE, AS CONTENTS THEREOF WERE NOT CONFIRMED BY SMT. GURMEET KAUR, THE ACTUAL ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 39 BENEFICIARY AND IT WAS UNBELIEVABLE THAT THE PAYMEN TS HAD BEEN SENT BY SMT. GURMEET KAUR FROM THE U.K. TO SH. HARI KISHAN IN CASH. THIS OBSERVATION OF THE LD. CIT(A) ALSO GETS NULLIFIED B Y THE CONDUCT OF SMT. GURMEET KAUR IN UNEQUIVOCALLY CONFIRMING THE TRANSA CTION, WHEREBY SHE ADMITTED OF HAVING MADE ALL THE PAYMENTS TO THE AS SESSEE AND TO PUDA. PUDA, AS NOTED, DULY TRANSFERRED THE HOUSE IN FAV OUR OF SMT. GURMEET KAUR, INDICATING THAT THERE WAS NO ISSUE WITH REGAR D TO PAYMENT TO PUDA AT THE HANDS OF SMT. GURMEET KAUR. THAT BEING SO, T HE VERY QUESTION OF SH. HARI KRISHAN BEING A CONDUIT SO FAR AS REGARDS THE PAYMENTS MADE BY SMT. GURMEET KAUR TO THE ASSESSEE BECOMES OTIOS E AND REDUNDANT, PARTICULARLY IN THE FACE OF THE CATEGORICAL ADMISS ION OF THE TRANSACTION BY SMT. GURMEET KAUR AND NOTHING CONTRARY ESTABLISHED HAVING COME ON RECORD. 27. THE LD. CIT(A) ALSO TAKES OBJECTION TO THE MENT ION OF SPECIFIC DATES OF PAYMENTS IN THE AGREEMENT AND HAS OBSERVED THAT THIS WAS UNUSUAL AND THE DATES WERE STATED IN A PASSION TO EXPLAIN C ASH DEPOSITS IN THE VARIOUS BANK ACCOUNTS. HERE ALSO, IT IS A CASE OF N ET PICKING, IN AS MUCH AS, FIRSTLY, THERE IS NOTHING UNUSUAL ABOUT THE ME NTION OF VARIOUS DATES AND PAYMENTS IN THE AGREEMENT. IT IS JUST THAT THE PARTIES TO THE AGREEMENT WERE PARTICULAR IN THIS REGARD AND THEY D ID NOT WANT TO LEAVE ANYTHING TO CHANCE. IT WAS, THEREFORE, THAT A SCHED ULE OF PAYMENTS BY WAY OF SPECIFIC DATES, WAS REDUCED INTO WRITING AND MADE A PART OF THE AGREEMENT TO SELL. THIS, IN FACT, RATHER GOES IN FA VOUR OF THE ASSESSEE AND ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 40 NOT AT ALL AGAINST HIM. TO REITERATE, THE AGREEMENT HAS NOT BEEN PROVED TO BE A FORGED OR FABRICATED OR SHAMDOCUMENT. SMT. GUR MEET KAUR HAS CONFIRMED HAVING MADE PAYMENTS TO THE TUNE OF RS.43 LAKHS TO THE ASSESSEE. THE BALANCE PAYMENT OF RS.2,58,205/- WAS STATED TO HAVE BEEN PAID DIRECTLY TO PUDA. THE ASSESSEE HANDED OVE R THE POSSESSION OF THE HOUSE. PUDA HAS TRANSFERRED THE HOUSE IN FAVOU R OF SMT. GURMEET KAUR. THIS OBSERVATION OF THE LD. CIT(A), THEREFORE , ALSO DOES NOT MERIT ACCEPTANCE. IT IS JUST THAT THE LD. CIT(A) HAS READ THE FACTS TO BE LEADING TO A PARTICULAR COURSE, I.E., THAT THE DATES OF PAYMENTS WERE INCORPORATED IN THE AGREEMENT JUST TO EXPLAIN CASH DEPOSITS IN V ARIOUS BANK ACCOUNTS. 28. THE LAST OBSERVATION OF THE LD. CIT(A) IS THAT THE AGREEMENT TO SELL, WHICH APPEARS TO BE FAKE, SINCE THE SIGNATURES OF S MT. GURMEET KAUR ON IT WERE ENTIRELY DIFFERENT FROM HER SIGNATURES ON O THER DOCUMENTS IS JUST AN AFTERTHOUGHT. THE ISSUE OF VERACITY OF THE SIGNA TURES OF SMT. GURMEET KAUR ON THE AGREEMENT TO SELL STANDS ADDRESSED BY US IN THE FOREGOING PORTION OF THIS ORDER. MOREOVER, SHE HAS HERSELF AC CEPTED THE AGREEMENT TO BE A VALID AGREEMENT. THUS, ON THIS COUNT, THE A GREEMENT CANNOT BE SAID TO BE A FAKE DOCUMENT, IN THE ABSENCE OF ANY OTHER EVIDENCE HAVING BEEN BROUGHT ON RECORD TO PROVE IT TO BE FAKE. AS S UCH, THIS AGREEMENT CANNOT AT ALL BE TERMED TO BE AN AFTER-THOUGHT. 29. SO, LOOKED AT FROM ANY ANGLE, THE TRANSACTION O F SALE OF HOUSE BY THE ASSESSEE TO SMT. GURMEET KAUR REMAINS UNHINGED AND STANDS WELL ESTABLISHED. THE GRIEVANCE OF THE ASSESSEE IN THIS REGARD IS JUSTIFIED. THE ITA NO.46(ASR)/2014 ASSESSMENT YEAR: 2010-11 41 ORDER OF THE LD. CIT(A) IS NOT SUSTAINABLE IN THE E YE OF LAW, AS DISCUSSED, BEING A RESULT OF MERE SURMISES AND CONJECTURES, WI THOUT ANY EVIDENCE BROUGHT ON RECORD AGAINST THE ASSESSEE. THE SAME I S, HENCE, REVERSED. THE ADDITION OF RS.30,40,200/- IS, AS SUCH, DELETED . 30. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/02/2 016 SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 25/02/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE: SH. KASHMIR SINGH MALHI, PHILLAUR 2. THE ITO, WARD-2, PHAGWARA 3. THE CIT(A), JLR 4. THE CIT, JLR 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.