ARUNA SANKHLA, Jaipur V. DCIT, Jaipur

ITA 483/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1870 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 05-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DR DHK
• Keywords: Bogus Share capital; Gift; Search and seizure; Question of law; Deemed dividend
• Section: 143(3); 153A; 131; 68; 132; 10; 92; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH HKKXPUN] YS[KK LNL; ,O JH DQY HKKJR] U;KF;D L NL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHAR AT, JM VK;DJ VIHY LA-@ ITA NO. 483/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2005-06 SMT. ARUNA SANKHLA A-3, MOTI LAL ATAL ROAD, JAIPUR CUKE VS. THE DCIT CENTRAL CIRCLE 1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AGBPS 3591 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI RAJEEV SOGANI, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI VARINDER MEHTA, CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07/09/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 1 /12/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-4, JAIPUR DATED 30-03-2016 FOR THE ASSESSMEN T YEAR 2005-06 RAISING FOLLOWING GROUNDS. 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE SEARCH PROCEEDINGS CONDUCTED U/S 132 IS PATENTLY ILLEGAL A ND CONSEQUENTLY THE ASSESSMENT MADE U/S 153A IS ILLEGAL, WITHOUT ANY BA SIS AND BEYOND SCOPE. RELIEF MAY PLEASE BE GRANTED BY HOLDING THE SEARCH PROCEEDINGS ILLEGAL AND CONSEQUENTLY QUASHING THE ASSESSMENT PR OCEEDING U/S 153A BEING VOID AND AB INITO. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 6,12,500/- U/S 69 OF ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 2 THE I.T. ACT, 1961. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE CASE OF THE ASSESSEE. REL IEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 6,12,5 00/- 2.1 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 1.HENCE, THE SAME IS DISMISS ED BEING NOT PRESSED. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.3.2 I HAVE DULY CONSIDERED THE ASSESSEES SUBMISSION AND ALSO CAREFULLY GONE THROUGH THE ASSESSMENT ORDER. I HAVE ALSO TAKEN A NOTE OF FACTUAL MATRIX OF THE CASE AS WELL APPLICABLE CASE LAWS RELIED UPON BY THE ASSESSEE. HERE IN THIS CASE AO HAS MADE A ADDITION OF RS. 6,12,500/- U/S 69 OF THE ACT. IT IS SUBMITTED THAT SH. RAMCHANDER S/O LAXMANLALJAT AND GOPALLAL JAT S/O LAXMANLAL JAT FROM WHOM, ASSESSEE AND SMT. ARUNA SANKHALA ( WIFE OF SRI MAHAVIRSANKHALA ) JOINTLY PURCHASED THE LAND AT VILLAGE KHATWARA ON 01-12-2004 FOR RS. 4,25,000/-, EACH HAS GIVEN CONTRADICTORY STATEMENT. SH. RAMCHANDER HAS CATEGOR ICALLY STATED THAT THIS LAND WAS SOLD BY HIM AND HIS BROTHER GOPALLAL JAT T O ASSESSEE AND ARUNASANKHLA FOR RS. 8,50,000/- AND THE ENTIRE AMOUNT IS RECEIVED BY CHEQUE. HE AFFIRMED THAT NO AMOUNT WAS RECEIVED IN CASH AND THIS IS ALSO STATED BY HIM BEFORE ACB. HOWEVER HIS BROTHER GOPAL LAL JAT STATED THAT APART FROM CHEQUE OF RS 8,50,000/-, HE ALSO RECEIVE D RS. 10,00,000/- IN CASH. BEFORE ACB HE HAS STATED TO HAVE RECEIVED RS. 11,25,000 IN CASH BUT IN THE SWORN STATEMENT MADE BEFORE THE AO, HE S TATED THAT THIS AMOUNT IS INCORRECT. FURTHER, IN CROSS EXAMINATION HE STAT ED THAT HE DOES NOT KNOW ARUNA SHANKLA AND PRATIMA SANKHLA. HE ACCEPTED THAT HE HAS NO EVIDENCE FOR RECEIPT OF EXTRA CONSIDERATION OF RS. 10,00,000 /-. AS THE ASSESSEE ALONG WITH SMT. PRATIMASANKHLA WIF E OF SH ASHOK KR SANKHLA HAS PURCHASED AGRICULTURE LAND DUR ING THE YEAR. FURTHER IN SUMMONS ISSUED U/S 131 OF THE ACT AND TH E SWORN STATEMENTS OF SELLERS WERE RECORDED AND THE ASSESSE E ALSO CROSS EXAMINED THESE SELLERS. OUT OF THESE FOUR SELLERS, TWO SELLERS NAMELY SH. RAM CHANDRA AND SHGOPALLAL ACCEPTED RECEIPT OF OWN MONEY OF RS. 11,12,500/-. THE ASSESSEE BEING ONE HALF OWNER, IN THESE LANDS, AO MADE ADDITION OF RS. 6,12,500/- U/S 69AOF THE ACT. ON SIMILAR FACTS IN ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 3 CASE OF SMT. PRATIMA SANKHLA IN AY 2005-06 (ITA NO. 866/2011-12) ADDITION OF RS. 6,12,500/- ( 1,12,500 + 10,00,000/2 = 6,12,500) HAS BEEN SUSTAINED. 3.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION SUSTAINED BY THE LD. CIT(A) FO R WHICH THE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION . 3. SUBMISSIONS 3.1 IN A CASE OF COMPLETED ASSESSMENT, NO ADDITION CAN BE MADE, IN AN ASSESSMENT U/S 153A, WITHOUT FINDING INCRIMINATING MATERIAL DU RING SEARCH. 3.1.I IN THE INSTANT CASE, SEARCH WAS CARRIED ON AGAINST THE ASSESSEE ON 23-07- 2009, ON WHICH DATE, THE ASSESSMENT FOR A.Y. 2005-0 6 STOOD COMPLETED VIDE ORDER U/S 143(3), DATED 30-03-2007 [PB-1-6] 3.1.II DURING THE COURSE OF SEARCH, NO INCRIMINATING DOCUM ENT WAS FOUND INDICATING ANY PAYMENT OF ON-MONEY . STATEMENTS U/S 161 OF CRPC BEFORE ACB, THAT TOO, IN THE CASE OF ANOTHER PERSON CANNOT BE TREATED AS INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. SIMILAR IS THE POSITION OF STATEMENTS RECORDED U/S 131 DURING ASSE SSMENT PROCEEDINGS. 3.1.III NO ADDITION CAN BE MADE U/S 153A IN RESPECT OF A CO NCLUDED ASSESSMENT WHERE NO INCRIMINATING MATERIAL WAS FOUND DURING SE ARCH IN RESPECT OF THE ADDITION MADE. 3.1.IV RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRONOU NCEMENTS:- 3.1.IV.A CHETAN DAS LACHMAN DAS (2012) 211 TAXMAN 61 (DEL-HC ) IN THIS CASE, HONBLE DELHI HIGH COURT UNDERSCORED THE NEED FOR THE DEPARTMENT TO HAVE UNEARTHED MATERIAL DURING SE ARCH JUSTIFYING THE ASSESSMENT SOUGHT TO BE MADE, IN THE FOLLOWING WORDS 'SECTION 153A (1) (B) PROVIDES FOR THE ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME OF THE SIX ASSESSM ENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 4 PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. TO RE PEAT, THERE IS NO CONDITION IN THIS SECTION THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH OR OTHER POST SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153 A CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UN DER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL' 3.1.IV.B KUARELE PAPERS MILLS P. LTD., ITA NO. 369 OF 2015 ( DELHI HC) RECENTLY, VIDE ITS ORDER DATED 6.07.2015,HONBLE DE LHI HIGH COURT, IN THE CASE OF KUARELE PAPERS MILLS P. LTD. (SUPRA), DECLINED TO FRAME A QUESTION OF LAW IN A CASE WHERE , IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BEING FOUND DURING TH E SEARCH UNDER SECTION 132 OF THE ACT, THE REVENUE SOUGHT TO JUSTI FY INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT AND MAKE AN ADDITION UNDER SECTION 68 OF THE ACT ON BOGUS SHARE CAPITAL GAIN. THE ORDER OF THE CIT(A), AFFIRMED BY THE ITAT, DELETING THE ADDITION, WAS NOT INTERFERED WITH. 3.1.IV.C CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) L TD. [2015] 374 ITR 645 (BOMBAY HC) IN THIS CASE THE QUESTION ADDRESSED BY THE HONBLE BOMBAY HIGH COURT WAS WHETHER THE SCOPE OF ASSESSMENT UNDER SEC TION 153A ENCOMPASSES ADDITIONS, NOT BASED ON ANY INCRIMINATI NG MATERIAL FOUND DURING THE COURSE OF SEARCH? IT WAS HELD THAT NO ADDITION COULD BE MADE IN RESPECT OF THE ASSESSMENTS THAT HA D BECOME FINAL IN THE EVENT NO INCRIMINATING MATERIAL WAS FO UND DURING SEARCH. HONBLE BOMBAY HIGH COURT RELIED ON THE EARLIER DEC ISION IN MURLI AGRO PRODUCTS LTD. AND DISCUSSED THE SCOPE AND AMBIT OF THE PROCEEDINGS FOR ASSESSMENT AND REASSESSMENT OF TOTAL INCOME UNDER SECTION 153A (1) OF THE ACT AND THE PROVISOS THERETO. ONE OF THE SPECIFIC PLEAS TAKEN BY THE ASSESSEE WAS THAT I F NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF AN ISSUE THEN NO ADDITION IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ASSESSMENT UNDER SECTIONS 153AAND 153C. IT WAS OBSERVED THAT THE ASSESSMENT OR REASSESSMENT UNDER SECTION 153A ARISES ONLY WHEN A SEARCH HAS BEEN INITIATED AND CO NDUCTED AND, THEREFORE, 'SUCH AN ASSESSMENT HAS A VITAL LINK WITH THE ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 5 INITIATION AND CONDUCT OF THE SEARCH.' THE COURT THEN REPRODUCED AND AFFIRMED THE DECISION OF THE SPECIAL BENCH OF T HE ITAT IN ALL CARGO GLOBAL LOGISTICS LTD. 137 ITD 287 (MUM.) (SB) AND ANSWERED THE QUESTION AS REGARDS THE SCOPE OF THE A SSESSMENT OF TOTAL INCOME AS UNDER: '53WE ARE OF THE VIEW THAT FOR ANSWERING THIS QUES TION, GUIDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1) . IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSES SMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOO KS OF ACCOUNT OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO ACCOUNT WH ILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL INCOME UNDER TH E AFORESAID PROVISION. SIMILAR POSITION WILL OBTAIN IN A CASE W HERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF SEARCH. IN OTHER WORDS, HARMONIOUS INTERPRETATIO N WILL PRODUCE THE FOLLOWING RESULTS: (A) INSOFAR AS PENDING ASSES SMENTS ARE CONCERNED, THE JURISDICTION TO MAKE ORIGINAL ASSESS MENT AND ASSESSMENT U/S 153A MERGE INTO ONE AND ONLY ONE ASS ESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MADE SEPARATELY ON TH E BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXIST ING OR BROUGHT ON THE RECORD OF THE AO, (B) IN RESPECT OF NON-ABAT ED ASSESSMENTS, THE ASSESSMENT WILL BE MADE ON THE BASIS OF BOOKS O F ACCOUNT OR OTHER DOCUMENTS NOT PRODUCED IN THE COURSE OF ORIGI NAL ASSESSMENT BUT FOUND IN THE COURSE OF SEARCH, AND U NDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVERED IN THE CO URSE OF SEARCH.. ULTIMATELY IN CONTINENTAL WAREHOUSING (SUPRA), THE HONBLE BOMBAY HIGH COURT ANSWERED THE QUESTION FRAMED BY IT AS UNDER: (A) IN ASSESSMENTS THAT ARE ABATED, THE AO RETAIN S THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON H IM UNDER SECTION L53AFOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY; (B) IN OTHER CASES, IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSME NT UNDER SECTION 153A WILL BE MADE ON THE BASIS OF INCRIMINA TING MATERIAL, WHICH IN THE CONTEXT OF RELEVANT PROVISIONS MEANS (I) BOOKS OF ACCOUNT, OTHER DOCUMENTS, FOUND IN THE COURSE OF SE ARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (II) ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 6 UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH 3.1.V IN THE CASE OF KABUL CHAWLA [2016] 380 ITR 573 (DELHI), HONBLE DELHI HIGH COURT OBSERVED THAT AS ON THE DATE OF THE SEARCH, NO ASSESSMENT PROCEEDINGS WERE PENDING FOR AYS 2002-03, 2005-06 A ND 2006-07. FOR THE SAID AYS, ASSESSMENTS HAD ALREADY BEEN MADE UND ER SECTION 143(1) OF THE ACT . FURTHER HONBLE DELHI HIGH COURT SUMMARIZING THE LEGAL POSITION QUA ASSESSMENTS UNDER SECTION 153A HELD AS UNDER:- ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITION S SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THA T THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WI TH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY O N THE BASIS OF SEIZED MATERIAL.. . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASI S OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005-06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED 3.1.VI FOR THE ABOVE LEGAL PROPOSITION, RELIANCE IS ALSO P LACED ON THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT OF RAJASTHAN IN THE CASE OF JAI STEEL INDIA 259 CTR 281 (HC) (RAJASTHAN) .THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN JAI STEEL (INDIA) (SUPRA) INVOLVED A CASE WHERE CERTAIN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS THAT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT WERE FOUND IN THE COURSE OF SEARCH. IT WAS HELD WHERE UNDISCLOSED INCOME OR UNDISCLOSED PR OPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE TOTAL INCOME UNDE R SECTION 153A OF THE ACT. THE COURT THEN EXPLAINED AS UNDER: '..22. IN THE FIRM OPINION OF THIS COURT FROM THE P LAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 7 INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDE R SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND A BATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UND ER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MAD E; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCO ME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE C OMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESS MENT CAN BE MADE... THE ARGUMENT OF THE REVENUE THAT THE AO WAS FREE TO DISTURB INCOME DEHORS THE INCRIMINATING MATERIAL WHILE MAKING ASSE SSMENT UNDER SECTION153A OF THE ACT WAS SPECIFICALLY REJECTED BY THE COURT ON THE GROUND THAT IT WAS 'NOT BORNE OUT FROM THE SCHEME O F THE SAID PROVISION' WHICH WAS IN THE CONTEXT OF SEARCH AND/OR REQUISITI ON. THE COURT ALSO EXPLAINED THE PURPORT OF THE WORDS 'ASSESS' AND 'RE ASSESS', WHICH HAVE BEEN FOUND AT MORE THAN ONE PLACE IN SECTION 153A OF THE ACT AS UNDER: '..26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE TH AT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTA L INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSM ENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE W ORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSES S HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT A BATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETA TION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONL Y BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH OR REQUISITION OF DOCUMENTS...' 3.1.VII THE LEGAL ISSUE OF SCOPE OF ASSESSMENT U/S 153A/153 C IS COVERED IN FAVOUR OF THE APPELLANT BY A RECENT JUDGMENT OF THE HONBL E ITAT JAIPUR BENCH VIDE ORDER IN M/S JADAU JEWELLERS & MANUFACTURERS PVT. LTD. VS. A CIT, CENTRAL CIRCLE-2, JAIPUR, DATED 14.12.2015 IN ITA N O. 686/JP/2014 FOR A.Y. 2008-09. ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 8 IN THE ABOVE CASE NO INCRIMINATING DOCUMENTS WERE F OUND DURING THE COURSE OF SEARCH, WHICH HAD ANY RELEVANCE TO THE AD DITIONS MADE IN ASSESSMENT U/S 153A. THE ARGUMENT BEFORE THE LD. CI T(A) THAT ASSESSMENT STOOD COMPLETED AND WAS NOT ABATED BECAUSE THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) HAD EXPIRED, WAS REJECTED BY THE LD. CIT(A) PLACING RELIANCE ON THE JUDGMENT OF HONBLE APEX COURT IN T HE CASE OF ASSISTANT COMMISSIONER OF INCOME-TAX V/S RAJESH JHAVERI STOCK BROKERS (P.) LTD. [2007] 291 ITR 500 (SC). THE ORDER OF THE LD. CIT(A) ON ABOVE ISSUE WAS REVERSED BY THE HONBLE ITAT BY HOLDING AS UNDE R AT PARA 6 PG 26-27 OF THE ORDER (REPRODUCED BELOW FOR THE SAKE OF CONV ENIENCE): 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THIS CASE THE RETURN U/S 139(1) WAS FILED ON 30/09/2008 AS PER LAW FOR THE YEAR UND ER CONSIDERATION. THE ASSESSING OFFICER COULD ISSUE NOTICE BY 30/09/2009 U/S 143(2). IN THIS CASE, SEARCH WAS CONDUCTED ON 06/5/2010. THEREAFTER THE ASSESSING OFFICER ISSUED NOTICE ON 16/09/2011 U/S 153A READ W ITH SECTION 43(2) OF THE ACT. DURING THE COURSE OF SEARCH, NO INCRIMINAT ING DOCUMENTS WERE FOUND. THEREFORE, NO NOTICE CAN BE ISSUED U/S 153A READ WITH SECTION 143(3) OF THE ACT BECAUSE NO PROCEEDING WAS PENDING BEFORE THE ASSESSING OFFICER, WHICH HAS ABATED FOR ISSUE OF NO TICE ON THE DATE OF INITIATION OF SEARCH. VARIOUS CASE LAWS REFERRED BY THE ASSESSEE INCLUDING HONBLE JURISDICTIONAL HIGH COURT DECISION IN THE C ASE OF JAI STEEL (INDIA) VS. ACIT (SUPRA) ARE SQUARELY APPLICABLE ON THE CAS E OF THE ASSESSEE. THUS, ON TECHNICAL GROUND, THE ASSESSEES APPEAL SU CCEEDS AND ORDER PASSED U/S 153A READ WITH SECTION 143(3) OF THE ACT IS HELD VOID AB INITIO. 3.1.VIII RATIO LAID DOWN IN THE ABOVE JUDGMENT WAS FOLLOWED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GURINDER SINGH BAWA (2016) 386 ITR 0483 (BOM), IN WHICH IT WAS HELD THAT:- HEAD NOTES : SEARCH AND SEIZUREGIFTS AND DIVIDENDSDELETION O F ADDITIONSFOR AY 2005-06, RESPONDENT- ASSESSEE FILE D HIS RETURN OF INCOME DECLARING INCOME OF RS.9.61 LAKHSRETURN OF INCOME AS FILED BY ASSESSEE WAS PROCESSED U/S.143(1)ADMITTEDLY, NO NO TICE U/S.143(2) HAD BEEN ISSUEDTHEREAFTER SEARCH WAS CONDUCTED ON ASSE SSEE U/S. 132 CONSEQUENT THERETO, PROCEEDINGS U/S.153A WERE INITI ATEDDURING ASSESSMENT PROCEEDINGS FOR A.Y. 2005-06, AO ADDED A MOUNT OF RS.93.72 LAKHS (DECLARED AS GIFTS) AS BEING COVERED BY SECTI ON 68 AND AMOUNT OF ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 9 RS.43.67 LAKHS (ACCUMULATED PROFITS OF LENDOR) OUT OF RS.1.5 CRORES RECEIVED AS LOAN FROM ONE K.P. DEVELOPERS PVT. LTD. AS DEEMED DIVIDEND U/S.2(22)(E)ASSESSEE WAS SHAREHOLDER IN M/S K.P. D EVELOPERS (P) LTD AFORESAID ADDITIONS WERE REFLECTED IN ASSESSMENT OR DER PASSED U/S.143(3) R/W 153A DETERMINED ASSESSEE'S TOTAL INCOME AT RS.1 .47 CRORESCIT(A) HELD THAT ADDITION OF AMOUNT OF RS.43.67 LAKHS AS D EEMED DIVIDEND HAD TO BE DELETEDON GROUND THAT THERE WERE NO ACCUMULATED PROFITS AVAILABLE WITH M/S K.P. DEVELOPERS (P) LTD. TO DISTRIBUTE AMO NGST ITS SHAREHOLDERSHOWEVER, SO FAR AS ADDITION IN RESPECT OF UNEXPLAINED GIFTS AGGREGATING TO RS.93.70 LAKHS WAS CONCERNED, CIT(A) DID NOT DISTURB FINDING OF AOTRIBUNAL HELD THAT NO INCRIMINATING M ATERIAL WAS FOUND DURING COURSE OF SEARCHREVENUE VERY FAIRLY STATED THAT DECISION OF SPECIAL BENCH OF TRIBUNAL IN AL-CARGO GLOBAL LOGIST ICS LTD. WAS SUBJECT MATTER OF CHALLENGE BEFORE THIS COURT AS PART OF GR OUP OF APPEALS DISPOSED OF AS CIT VS. CONTINENTAL WAREHOUSING CORPORATION ( NHAVA SHEVA) LTD., UPHELD VIEW OF SPECIAL BENCH OF TRIBUNAL IN AL- CAR GO GLOBAL LOGISTICS LTDHELD, IN VIEW OF THE ABOVE, ON ISSUE OF JURISDI CTION ITSELF ISSUE STANDS CONCLUDED AGAINST REVENUE BY DECISION OF THIS COURT IN CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (SUPRA) REVENUE MADE NO GRIEVANCE WITH REGARD TO ORDER OF TRIBUNAL HOLDING THAT IN LAW PROCEEDINGS U/S. 153A WERE WITHOUT JURISDICTIONTHI S IN VIEW OF FACT THAT NO ASSESSMENT WERE PENDING, SO AS TO ABATE NOR ANY INCRIMINATING EVIDENCE WAS FOUNDGRIEVANCE OF REVENUE WAS ONLY WI TH REGARD TO FINDING IN ORDER ON MERITS OF INDIVIDUAL CLAIM REGA RDING GIFTS AND DEEMED DIVIDENDHOWEVER ONCE IT WAS NOT DISPUTED BY REVENU E THAT DECISION OF THIS COURT IN CONTINENTAL WAREHOUSING CORPORATION ( NHAVA SHEVA) LTD. (SUPRA) WOULD APPLY TO PRESENT FACTS AND ALSO THAT THERE WERE NO ASSESSMENTS PENDING ON TIME OF INITIATION OF PROCEE DINGS U/S. 153A OCCASION TO CONSIDER ISSUES RAISED ON MERITS IN PRO POSED QUESTIONS BECAME ACADEMICIN ABOVE VIEW, QUESTIONS AS FRAMED IN PRESENT FACTS BEING ACADEMIC IN NATURE, DID NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAWTHUS NOT BE ENTERTAINEDACCORDINGLY, APPEAL WAS DISMISSED. 3.2 THE PURCHASE TRANSACTION IS EVIDENCED BY DULY EXECU TED AND REGISTERED DEED. NO EVIDENCE CONTRARY TO SAID REGISTERED DOCUMENT IS ACCEPTABLE AS IS LAID DOWN IN SECTION 91 & 92 OF THE EVIDENCE ACT, 1872. ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 10 3.2.I SECTION 91 OF INDIAN EVIDENCE ACT, 1872 PROVIDES THAT WHEN THE TERMS OF A CONTRACT, OR OF A GRANT, OR OF ANY OTHER DISPOSITION OF PROPERTY, HAVE BEEN REDUCED TO THE FORM OF A DOCUME NT, AND IN ALL CASES IN WHICH ANY MATTER IS REQUIRED BY LAW TO BE REDUCED TO THE FORM OF A DOCUMENT, NO EVIDENCE SHALL BE GIVEN IN PROOF OF THE TERMS OF SUCH CONTRACT, GRANT OR OTHER DISPOSITION OF PROPERTY, O R OF SUCH MATTER, EXCEPT THE DOCUMENT ITSELF, OR SECONDARY EVIDENCE O F ITS CONTENTS IN CASES IN WHICH SECONDARY EVIDENCE IS ADMISSIBLE UND ER THE PROVISIONS HERE IN BEFORE CONTAINED. 3.2.II SECTION 92 OF INDIAN EVIDENCE ACT, 1872 PROVIDES THAT WHEN THE TERMS OF ANY SUCH CONTRACT, GRANT OR OTHER DISPOSIT ION OF PROPERTY, OR ANY MATTER REQUIRED TO THE FORM OF A DOCUMENT, HAVE BEEN PROVED ACCORDING TO THE SEC. 91, NO EVIDENCE OF ANY ORAL A GREEMENT OR STATEMENT SHALL BE ADMITTED, AS BETWEEN THE PARTIES TO ANY SUCH INSTRUMENT OR THEIR REPRESENTATIVES IN INTEREST, FO R THE PURPOSE OF CONTRADICTING, VARYING ADDING TO OR SUBTRACTING FRO M, ITS TERMS. 3.2.III THE LAHORE HIGH COURT IN DIVANSINGH VS. GURBACHAN SINGH AND OTHERS AIR 1932 LAHORE 276 HELD THAT IN CASE OF A SALE, OTHER EVIDENCE OF THE TRANSACTION, THAN THE DEED ITSELF I S BARRED BY THE PROVISIONS OF SECTION 91 OF THE EVIDENCE ACT. 3.2.IV THE MYSORE HIGH COURT IN DODDAMALLAPPA V. GANGAPPA AIR 1962 MYSORE 44 HELD 'WHEN A SALE DEED HAS BEEN EXECUTED AND REGISTERED IN RESPECT OF CERTAIN IMMOVABLE PROPERTIES, IN A SU IT FOR POSSESSION BY THE VENDEE IT IS NOT OPEN TO THE VENDOR TO LET IN O RAL EVIDENCE TO SHOW THAT THE TERMS OF THE CONTRACT BETWEEN THE PARTIES WERE DIFFERENT OR WERE AT VARIANCE WITH THE TERMS CONTAINED IN THE RE GISTERED DOCUMENT.' 3.2.V THE KERALA HIGH COURT IN LEELAMMA AMBIKAKUMARI AND ANOTHER VS. NARAYANAN RAMAKRISHNAN AIR 1992 KERALA 115 AT 1 19 HELD THAT 'SECTION 91 AND 92 OF THE EVIDENCE ACT IS A COMPLET E BAR FOR ANY PARTY TO SET UP A CASE THAT THE CONSIDERATION FOR S ALE IS MORE THAN WHAT IS MENTIONED IN THE CONVEYANCE OR IN THE CONTRACT. IN THE PRESENT CASE THE PLAINTIFF HAS NO CASE THAT THE CONSIDERATION ME NTIONED IN THE DOCUMENT WAS NOT PAID, OR THAT THERE WAS ANY FAILUR E OF CONSIDERATION OR THAT THE CONSIDERATION AGREED TO BETWEEN THE PAR TIES WAS OF A DIFFERENT KIND THAN WHAT WAS MENTIONED IN THE DOCUM ENT. THE DEFINITE CASE OF THE PLAINTIFF IS THAT THE REAL CONSIDERATIO N FOR THE SALE WAS RS.16,000/- WHERE AS THE CONVEYANCE SHOWS THE CONSI DERATION TO BE RS.10,000/-. IN VIEW OF THE PROVISIONS CONTAINED IN SEC.91 AND 92 OF THE ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 11 EVIDENCE ACT, THE PLAINTIFF IS NOT ENTITLED TO PLEA D SUCH A CASE, NOR HE IS ENTITLED TO ADDUCE EVIDENCE IN SUPPORT OF THE SAME. ' 3.2.VI THE HON'BLE SUPREME COURT IN M/S. FEBRIL GASOSA VS. LAB OUR COMMISSIONER AND OTHERS AIR 1997 (S.C.) 954 AT 958 HAS HELD THAT .. A WRITTEN SETTLEMENT ARRIVED AT BETWEEN THE PARTIES COULD NOT, THEREFORE, BE VARIED OR MODIFIED EXCEPT BY A WRITTE N SETTLEMENT OR BY A WRITTEN MEMORANDUM DULY SIGNED BY THE PARTIES INCOR PORATING THE TERMS OF THE SO- CALLED UNDERSTANDING. SEC.92 OF TH E INDIAN EVIDENCE ACT, 1872 ALSO LAYS DOWN THAT WHEN THE TERMS OF ANY CONTRACT, GRANT OR SETTLEMENT, AS ARE REQUIRED BY LAW TO BE REDUCED TO THE FORM OF A DOCUMENT, HAVE BEEN PROVED AS PER THE PROVISIONS OF SEC.91 OF THE EVIDENCE ACT, NO EVIDENCE OF ANY ORAL AGREEMENT OR SETTLEMENT SHALL BE ADMITTED AS BETWEEN THE PARTIES TO ANY SUCH INSTRUM ENT OR THEIR REPRESENTATIVES IN INTEREST FOR THE PURPOSE OF CONT RADICTING VARYING ADDING TO OR SUBTRACTING FROM ITS TERMS...' 3.2.VII HYDERABAD BENCH OF ITAT IN SMT. K. NARASAMMA VS. ITO (1990) 32 ITD 494 HELD THAT 'ANY EVIDENCE STOOD PRECLUDED BY VIRTUE OF PROVISIONS OF SECTIONS 91 AND 92 OF THE INDIAN EVID ENCE ACT, 1872, ACCORDING TO WHICH, WHEN THE TERMS OF ANY DISPOSITI ON OF PROPERTY, ETC., HAVE BEEN REDUCED TO THE FORM OF A DOCUMENT, NO EVI DENCE SHALL BE GIVEN IN PROOF OF THE TERMS OF SUCH DISPOSITION OF PROPERTY EXCEPT THE DOCUMENT ITSELF. THIS BEING THE POSITION, ON FACTS AND IN LAW, NO WEIGHT COULD BE GIVEN TO THE STATEMENT OF B TO PROVE THAT AN AMOUNT OF RS. 3.5 LAKHS AND NOT RS. 3 LAKHS PASSED ON FROM B TO THE A SSESSEE AS SALE CONSIDERATION. 3.2.VIII THE DEED IS A SYNTHESIS OF INTENTIONS OF PARTIES TO AN AGREEMENT AND AS THE DEED SPECIFICALLY PROVIDES THAT THE SELLER HAS RECEIVED CERTAIN AMOUNT ON THE SALE OF THE PROPERTY, THE MERE FACT T HE PURCHASER CLAIMED ADDITIONAL AMOUNT BEING INCURRED ON THE PROPERTY IN THE STATEMENT RECORDED ON OATH, IS NOT ADMISSIBLE AS EVIDENCE IN LAW. RELIANCE IS PLACED ON THE JUDGMENT OF THE HON`BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PARAMJIT SINGH (2010) 323 ITR 588 IN WHICH THE HONBLE COURT HELD THAT WE HAVE THOUGHTFULLY CONSIDERED THE SUBMISSIONS MADE BY THE LEARNED COUNSEL AND ARE OF THE VIEW THAT THEY DO NOT WARRANT ACCEPTANCE. THERE IS WELL-KNOWN PRIN CIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENT CONTAINS A LL THE TERMS AND CONDITIONS. SECS. 91 AND 92 OF THE INDIAN EVIDENCE ACT, 1872 (FOR BREVITY 'THE 1872 ACT') INCORPORATE THE AFORESAID P RINCIPLE. ACCORDING TO S. 91 OF THE ACT WHEN TERMS OF A CONTRACT, GRANT OR OTHER DISPOSITION ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 12 OF PROPERTY HAVE BEEN REDUCED TO THE FORM OF A DOCU MENT THEN NO EVIDENCE IS PERMISSIBLE TO BE GIVEN IN PROOF OF ANY SUCH TERM OR SUCH GRANT OR DISPOSITION OF THE PROPERTY EXCEPT THE DOC UMENT ITSELF OR THE SECONDARY EVIDENCE THEREOF. ACCORDING TO S. 92 OF T HE 1872 ACT ONCE THE DOCUMENT IS TENDERED IN EVIDENCE AND PROVED AS PER THE REQUIREMENTS OF S. 91 THEN NO EVIDENCE OF ANY ORAL AGREEMENT OR STATEMENT WOULD BE ADMISSIBLE AS BETWEEN THE PARTIE S TO ANY SUCH INSTRUMENT FOR THE PURPOSES OF CONTRADICTING, VARYI NG, ADDING TO OR SUBTRACTING FROM ITS TERMS. 3.2.IX THE HON`BLE JAIPUR BENCH WAS SEIZED OF THE LEGAL ISSUE OF IMPACT OF SEC. 91 & 92 OF THE INDIAN EVIDENCE ACT, 1872 IN TH E CASE OF SUNITA DHADDA VS. DEPUTY COMMISSIONER OF INCOME TAX (2012) 148 TTJ (JP) 719 AND SHRI GHANSHYAM DAS AGARWAL VS. ITO ITA NO. 1161/JP/2010. THE HON`BLE JAIPUR BENCH, FOLLOWING THE PUNJAB & HARYANA HIGH COURT JUDGEMENT IN PARAMJIT SINGH VS. ITO, 323 ITR 588 , IN THE SAID CASE, HELD THAT NO OTHER/ ORAL EVIDE NCE IS ADMISSIBLE AGAINST THE REGISTERED SALE DEED. 3.2.X HONBLE ITAT JAIPUR BENCH IN THE CASE OF SHRI GHANSHYAM DAS AGARWAL (SUPRA) ALSO HELD THAT IT IS ALSO A TRITE LAW THAT WITNESS MAY LIE BUT DOCUMENTS DO NOT. IN THE FACE OF DOCUMENTAR Y EVIDENCE ON RECORD, ORAL EVIDENCE IS NOT ENTITLED TO ANY WEIGHT . THIS FINDS SUPPORT FROM THE JUDGMENT RENDERED BY THE HONBLE APEX COUR T IN THE CASE OF BEHARI LAL MURARKA AND ORS. AIR 1978 SC 300: 1978 ( 1) SCC 109.. 3.2.XI HONBLE ITAT JAIPUR BENCH IN THE CASE OF SHRI SHARAD U. MISHRA ITA NO. 467/JP/2011 HAD ALSO FOLLOWED THE DECISION OF COORDINATE BENCH IN THE CASE OF SHRI GHANSHYAM DAS AGARWAL (SUPRA). 3.3 IT IS IMPORTANT TO NOTE THAT OUT OF ALL THE FIVE PE RSONS, MENTIONED AT PAGE 8 OF THE ASSESSMENT ORDER, WHO HAD ADMITTED RECEIPT OF ON-MONEY BEFORE ACB, ONLY TWO PERSONS, OUT OF THE FIVE PERSONS, ADMITTED THE SAME BEFORE LD.AO U/S 131. SH. GOPAL LAL JAT CHANGED THE AMOUNT OF ON MONEY . NO EVIDENCE OF ON- MONEY RECEIPT WAS PRODUCED BY THESE SO CALLED RECIPIENTS OF ON MONEY NOR LD. AO HAS BROUGHT ANY SUCH EVIDENCE ON RECORD. BOTH TH E PERSONS HAVE ADMITTED THAT THEY DONT KNOW SMT. ARUNA SANKHLA AND THAT TH E MONEY WAS NOT PAID BY HER BUT WAS PAID BY SOME THIRD PERSON. IT IS WORTHW HILE TO NOTE THAT, FOR THE LAND AT S.NO. 2 OF THE CHART AT PAGE 8 OF AO ORDER, THERE WERE TWO JOINT SELLERS I.E. SH. RAMCHANDER S/O LAXMAN JAT & SH. GO PAL LAL JAT S/O LAXMAN JAT. ONLY SH. GOPAL JAT HAS ADMITTED THE RECEIPT OF ON-MONEY AND THERE IS NO ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 13 ADMISSION OF SUCH RECEIPT OF ON-MONEY BY THE OTHER JOINT SELLER I.E. SH. RAMCHANDER. 3.3.I EVEN ORAL EVIDENCES ARE INCONSISTENT AND SHAKY, AND THEREFORE, NO ADDITION IS JUSTIFIED ON THE BASIS OF THESE EVIDENC ES. THE WITNESSES HAVE ADMITTED RECEIPT OF ON-MONEY U/S 161 OF CRPC BUT ALL OF THEM HAVE NOT SO ADMITTED BEFORE LD. AO U/S 131. SH. GOPAL LAL JA T S/O LAXMAN JAT ADMITTED RECEIPT OF ON-MONEY AMOUNTING TO 11,25,000 BEFORE ACB BUT BEFORE AO, THE AMOUNT ADMITTED WAS RS. 10,00,000. 3.3.II A WITNESS WHO INDULGES IN DOUBLE TALK IS A SHIFTY WITNESS . HIS TESTIMONY IS NOT RELIABLE. HE IS NOT A TRUSTWORTHY WITNESS AS IT IS DIFFICULT FOR THE COURT TO COME TO ANY CONCLUSION O N WHICH OCCASION THE WITNESS TOLD THE TRUTH ON WHICH OCCASION HE DID NOT . SUCH STATEMENT, WHETHER GIVEN BY WAY OF AN ORAL STATEMENT IN AN AFF IDAVIT OR IN HIS EXAMINATION, HAS LITTLE EVIDENTIARY VALUE. THIS WAS HELD BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF EASTERN COMMERCIAL ENTERPRISES [1994] 210 ITR 103 (CAL). IN THIS CASE, INITIALLY, THE WITNESS STATED THAT ALL SALES WERE GENUINE BUT SUBS EQUENTLY HE CHANGED HIS STAND BEFORE THE ASSESSING OFFICER CLAIMING THA T THE SALES WERE GENUINE AND HE RECEIVED PAYMENTS BY ACCOUNT PAYEE C HEQUE. HIS STATEMENT WAS NOT BELIEVED AS HE WAS FOUND TO BE A SHIFTY WITNESS. HONBLE CALCUTTA HIGH COURT OBSERVED AS UNDER:- .WE HAVE CONSIDERED THE CONTESTING CONTENTIONS OF THE PARTIES. IT IS TRUE THAT SHRI SUKLA HAS PROVED TO BE A SHIFTY PERS ON AS A WITNESS. AT THE EARLIER STAGES, HE CLAIMED ALL HIS SALES TO BE GENUINE BUT BEFORE THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE, HE D ISOWNED THE SALES SPECIFICALLY MADE TO THE ASSESSEE. THIS STATEMENT C AN AT THE WORST SHOW THAT SHRI SUKLA IS NOT A TRUSTWORTHY WITNESS AND LI TTLE VALUE CAN BE ATTACHED TO WHAT HE STATED EITHER IN HIS AFFIDAVITS OR IN HIS EXAMINATION BY THE ASSESSING OFFICER. HIS CONDUCT NEUTRALISES H IS VALUE AS A WITNESS. A MAN INDULGING IN DOUBLE-SPEAKING CANNOT BE SAID BY ANY MEANS A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH OCCASION HE WAS TRUTHFUL. IF SHRI SUKLA IS NEUTRALI SED AS A WITNESS WHAT REMAINS IS THE ACCOUNTS, VOUCHERS, CHALLANS, BANK A CCOUNTS, ETC 3.3.III IF A PERSON CHANGES HIS STATEMENT FROM TIME TO TIME THEN THE OTHER PARTY SHOULD NOT SUFFER FROM THE ACT OF THAT PERSON WHO MALA FIDELY CHANGES HIS VERSION. EVIDENTIARY VALUE OF SUCH STATEMENT IS SUSPECT AND CANNOT BE RELIED UPON AS HELD BY THE HONBLE ITAT DELHI BENCH IN THE CASE OF AMARJIT SINGH BAKSHI (HUF) [2003] 86 ITD 13 (DELHI) (TM). ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 14 3.4 THE ASSESSEE WAS SEARCHED BY THE DEPARTMENT ON 23.0 7.2009. HOWEVER, NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURS E OF SEARCH, WHICH COULD SLIGHTLY ESTABLISH THE ASSESSEE HAVING PAID ON-MONEY TO SHRI GOPAL LAL JAT AND SHRI RAMCHANDER. THIS IN ITSELF PROVES THE FACT BEYOND DOUBT THAT TH E ASSESSEE NEVER INDULGED IN ANY ON-MONEY TRANSACTIONS. IN VIEW OF THE ABOVE SUBMISSIONS, ADDITIONS U/S 69 MADE BY THE LD. AO AND CONFIRMED BY THE LD. CIT(A) MAY PLEASE BE DELETED. 3.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A) 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE CASE AS PER THE AO IS THAT THAT THE ASSESSEE HAS PURCHASED THE FOLLOWING LANDS DURING T HE ASSESSMENT YEAR AS MENTIONED AGAINST EACH LAND. THE ANTI CORRUPTION BUREAU, GOVT. OF RAJASTHAN, JAIPUR HAS MADE THEIR ENQUIRIES IN THE CASE OF SHRI MAHAVEER SINGH SANKHLA. DURING THE INVESTIGATION IN THE ABOV E MENTIONED CASE, THE ACB RECORDED THE STATEMENT OF THE SELLERS U/S 161 O F CR.P.C. IN THE ABOVE STATEMENTS THE SELLERS HAVE CATEGORICALLY ADMITTED THE FACT THAT ON-MONEY AS STATED IN THE CHART GIVEN BELOW WAS PAID IN ADDI TION TO PURCHASE CONSIDERATION, AS SHOWN IN THE AGREEMENT. S.N. DETAILS OF AGRICULTURAL LAND PURCHASED NAMEOF SELLERS DATE OF PURCHASE (PERTAINING TO A.Y.) PURCHASE CONSIDERATION AS SHOWN IN THE AGREEMENT AMOUNT OF ON- MONEY PAID 1. VILLAGE FAGODIAWALA RAMCHANDER S/O SURJARAM JAT 22-06-2004 A.Y. 2005-06 RS. 62,500/- (TOTAL REGISTRYAMOUNT RS. 1,25,000/- RS. 1,12,500 ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 15 IN JOINT NAME WITH ARUNA) 2. VILLAGE KHATWARA RAMCHANDER S/O LAXMAN JAT AND GOPAL LAL S/O LAXMAN JAT 04-12-2004 A.Y. 2005-06 RS. 4,25,000 RS. 11,25,000 3. VILLAGE KHATWARA GOGARAM S/O VALLABHA JAT 31/05/2004 A.Y. 2005-06 RS. 17,50,000 RS. 31,50,000 4. VILLAGE KHATWARA HANUMAN SAHAI PUROHIT S/O RAM SAHAI 08/12/2004 RS. 1304000/- (TWO REGISTRIES OF RS. 609000 AND 695000 RS. 31,96,000 IN VIEW OF THE ABOVE, A SHOW CAUSE WAS ISSUED TO THE ASSESSEE REQUIRING HER TO EXPLAIN THE ABOVE MENTIONED UNDISCLOSED INVE STMENT. THE AO ALSO ISSUED THE SUMMONS U/S 131 OF THE ACT TO THE SELLER S. THE STATEMENT OF THE SELLERS WERE RECORDED AND ON DEMAND OF THE ASSESSEE , THE ASSESSEE WAS ALLOWED TO CROSS EXAMINE THE ABOVE MENTIONED SELLER S. DURING THE COURE OF STATEMENT AS WELL AS CROSS EXAMINATION, SHRI RAM CHANDRA S/O SHRI SURJARAM JAT ACCEPTED THE FACT OF RECEIVING ON-MONE Y PAYMENT OF RS. 1,12,500/- AND SHRI GOPAL LAL JAT S/O SHRI LAXMAN J AT ALSO ACCEPTED TO RECEIVE AN ON-MONEY PAYMENT OF RS. 10,00,000/-. TAK ING INTO CONSIDERATION THE ABOVE FACTS, THE AO OBSERVED THAT THE ASSESSEE HAD PAID AN AMOUNT OF RS. 6,12,500/- (RS. 1,12,500 PLUS 5,00 ,000 [10,00,000/2] BECAUSE IT WAS IN THE NAME OF ARUNA & PRATIMA ON-MO NEY TO THE SELLER OUT ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 16 OF HER UNDISCLOSED SOURCES. THEREFORE, THE AO ADDED THE AMOUNT OF RS. 6,12,500/- TO THE TOTAL INCOME OF THE ASSESSEE U/S 69 OF THE ACT WHICH IN FIRST APPEAL WAS CONFIRMED BY THE LD. CIT(A) BY OBS ERVING AS UNDER:- AS THE ASSESSEE ALONG WITH SMT. PRATIMASANKHLA WIF E OF SH ASHOK KR SANKHLA HAS PURCHASED AGRICULTURE LAND DUR ING THE YEAR. FURTHER IN SUMMONS ISSUED U/S 131 OF THE ACT AND THE SWORN STATEMENTS OF SELLERS WERE RECORDED AND THE ASSESSEE ALSO CROSS EXAMINED THESE SELLERS. OUT OF THESE FOUR SELLERS, TWO SELLERS NAMELY SH. RAM CHAN DRA AND SHGOPALLAL ACCEPTED RECEIPT OF OWN MONEY OF RS. 11,12,500/-. T HE ASSESSEE BEING ONE HALF OWNER, IN THESE LANDS, AO MADE ADDITION OF RS. 6,12,500/- U/S 69AOF THE ACT. ON SIMILAR FACTS IN CASE OF SMT. PRATIMA S ANKHLA IN AY 2005-06 (ITA NO. 866/2011-12) ADDITION OF RS. 6,12,500/- ( 1,12,500 + 10,00,000/2 = 6,12,500) HAS BEEN SUSTAINED. TAKING INTO CONSIDERATION THE ABOVE FACTS AND CIRCU MSTANCES OF THE CASE, WE CONCUR WITH THE FINDINGS OF THE LD. CIT(A) ON TH IS ISSUE. THUS GROUND NO. 2 OF THE ASSESSEE IS DISMISSED. 4.0 IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 1-12-2017. SD/- SD/- DQY HKKJR HKKXPUN (KUL BHARAT) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 1/12/ 2017 ITA NO. 483/JP/2016 SMT. ARUNA SANKHLA VS DCIT, CENTR AL CIRCLE-1, JAIPUR 17 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. ARUNA SANKHLA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CENTRAL CIRCLE-1 , JAIP UR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 483/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR