JAYESH D. GORAGANDHI, MUMBAI V. ITO 25(2) ), MUMBAI

ITA 4835/MUM/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75362 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 05-11-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 21-08-2009
• Court: TRIBUNAL
• Department Lawyers: B; S D SRIVASTAV
• Keywords: Capital asset; Business income; Loose papers; Principle of natural justice
• Section: 133A; 69

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO. 4835/M/2009 (AY: 2003 - 2004) SHRI JAYESH D. GORAGANDHI, PROP. M/S. D.G. BUILDER, A - 1, JAYESH APATS., CHANDAVARKAR LANE, BORIVALI (W), MUMBAI 400 092. / VS. ITO - 25(2)(1), MUMBAI 400 051. ./I.T.A. NO. 4290/M/2009 (AY: 2003 - 2004) ITO - 25(2)(1), MUMBAI 400 051. / VS. SHRI JAYESH D. GORAGANDHI, PROP. M/S. D.G. BUILDER, A - 1, JAYESH APATS., CHANDAVARKAR LANE, BORIVALI (W),MUMBAI 400 092. ./ PAN : AAKPG 1389 C ( / APPELLANT) .. ( / RESPONDENT ) ./I.T.A. NO. 5245/M/2007 (AY: 2003 - 2004) ITO - 25(2)(1), MUMBAI 400 051. / VS. M/S. KRUPA BUILDERS, D - 4, JAY VIJAY, OFF. L.T.RD, BORIVALI (W), MUMBAI 400 092. ./ PAN : AAEFK 2865 K ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI SUBHASH S. SHETTY & MR. PRAKASH JHUNJHUNWALA / REVENUE BY : SHRI S.D. SRIVASTAV & B. PANDA / DATE OF HEARING : 28. 11 .2013 / DATE OF PRONOUNCEMENT : 22. 01.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE THREE APPEALS UNDER CO NSIDERATION. ITA NO.4835/M/2009 AND ITA NO.4290/M /2009 ARE THE CROSS APPEALS IN THE CASE OF SHRI JAYESH D. GORAGANDHI FOR THE ASSESSMENT YEAR 2003 - 2004. THE THIRD APPEAL ITA NO.5245/M/2007 IS FILED BY M/S. KRUPA BUILDERS, WHICH IS CONNECTED BY VIRTUE OF THE IMPOUNDED PAPERS GATHERED BY THE REVENUE DURING THE SURVEY ACTION ON SHRI JAYESH D. GORAGANDHI, WHO IS A 2 PROPRIETOR IN ANOTHER CONCERN NAMED M/S. D.G. BUILDERS. SHRI JAYESH D. GORAGANDHI, THE PROPRIETOR OF M/S. D.G. BUILDERS IS THE SELLER OF THE PROPERTY AND M/S. KRUPA BUILDERS IS THE BUYER OF THE SAME. T HE IMPOUNDED PAPERS ESTABLISH THE CONNECTIVITY . CONSIDERING THE SAME , ALL THESE APPEALS ARE CLUBBED FOR ADJUDICATION BY THIS COMPOSITE ORDER. 2. BRIEFLY STATED RELEVANT FACTS OF THE SE CASE S ARE THAT SRI JEYESH GOREGANDHI IS THE PROPRIETOR OF M/ D G BUILDE RS AND M/S KRUPA BUILDERS OF MR TARUN PATEL & ORS IS THE BUILDERS. T HERE WAS A SURVEY ACTION U/S 133A OF THE ACT ON 3.2.2006 AT THE PREMISES OF SHRI JAYESH D. GOR AGANDHI OF M/S. D.G. BUILDERS. THE SAID ACTION RESULTED IN IMPOUNDING OF CERTAIN INCRIMINATING DOCUMENTS OF WHICH THE PAPERS CONTAINING THE DISCUSSION BETWEEN SHRI JAYESH D. GORAGANDHI, THE SELLER AND MR. TARUN PATEL AND OTHERS OF M/S. KRUPA BUILDERS, THE BUYER ARE RELEVANT AND RELIED HEAVILY BY THE AOS IN BOTH THE ASSESSMENTS . THE SE PAPER SUGGEST CLEARLY THAT THE DISCUSSION S BETWEEN THE JEYESH GOREGANDHI AND TARUN PATEL & ORS OF KRUPA BUILDERS TOOK PLACED ON 25.6.2002 AT 12 NOON . AS PER THESE PAPERS, ASSESSEE WAS TO SELL A PIECE OF LAND OF CLEAR AREA OF 4180.07 SQ.FT AND TDR/FSI OF 13971.52 SQ.FT . TOTAL CONSIDERATION INVOLVED IS 2.65 CRS OUT OF WHICH THE CASH PORTION IS RS. 1,22,95,600/ - @ RS. 605/ - PER SQ.FT AND THE CHEQUE PAYMENTS OF RS. 1,42,04,000/ - @ 700/ - PER SQ.FT. THESE PAPERS ALSO MENTIONED THAT A TOKEN AMOUNT OF RS. 1,11,001/ - WAS PAID ON 25.6.2002. 80% OF RS. 2.65 CRS WAS TO BE PAID PROGRESSIVELY BEFORE SIGNING THE AGRE EMENT. ONUS IS CLEARING THE TDRS WAS ON THE SHRI JAYESH D. GORAGANDHI OF M/S. D.G. BUILDERS, WHICH HAS THE RESPONSIBILITY OF INCURRING THE EXPENSES AND OTHER FEES TOO . RELEVANT PAGES ARE SCANNED AND INSERTED IN THE LATER PARAGRAPHS OF THIS ORDER FOR SAKE OF COMPLETENESS AND READY REFERENCE. FURTHER, IT IS ALSO NOTICED ON PAGE 8 OF THE IMPOUNDED PAPERS, WHICH IS DATED 29.6.2002, CERTAIN COPIES OF THE CONVEYANCE DEED, A GREEMENT OF SALE, POWER OF ATTORNEY WERE ALSO FORWARDED TO MR. TARUN PATEL OF M/S. KRUPA BUILDERS AS PER THEIR REQUEST . DURING THE ASSESSMENT PROCEEDINGS, AO NOTED THAT THE JEYESH GOREGANDHI OF D G BUILDERS HAS NOT OFFERED ANY INCOME FOR THE AY 2003 - 04 A ND REFLECTED IMPUGNED RECEIPTS AS ADVANCES UNDER CURRENT LIABILITIES IN THE BOOKS RELEVANT FOR THE AY 2004 - 05. NO INCOME OFFERED BY THE ASSESSES IN THESE YEARS. BASING ON THESE PAPERS AFTER CONDUCTING ENQUIRIES, AO 3 PROPOSED TO MAKE ADDITION U/S 69 OF THE A CT RECOGNIZING THE WHOLE OF THE INCOME OF RS. 2,69,16,970/ - IN THE YEAR UNDER CONSIDERATION. KRUPA BUILDERS OBJECTED TO THE SAME BY MENTIONING THAT HE WAS NEITHER A PARTY TO THE SAID DISCUSSION AND CRITICIZED THE PAPERS STATING THAT THEY DID NOT BEAR THE I NITIALS OF THE PARTNERS OF THE FIRM. ON THE OTHER HAND, SHRI JAYESH D. GORAGANDHI, DID NOT SUBMIT /FILE ANY OBJECTIONS TO THE AO . PARA 9.2 OF THE APPEAL ITA NO.4835/M/2009 IS RELEVANT IN THIS REGARD. FINALLY, THE AO NOTICED THAT THE PROJECT COMMENCED VI DE COMMENCEMENT CERTIFICATE DATED 11. 2.2003 AND SUBSTANTIAL AMOUNTS WERE RECEIVED BY THE END OF THE RELEVANT FY. THEREFORE, AO RECOGNIZED THE SAID SALE CONSIDERATION OF RS. 2.65 CRS AS INCOME OF SHRI JAYESH D. GORAGANDHI, THE SELLER OF THE PLOT OF LAND AN D TDRS AND THE ASSESSMENT WAS COMPLETED IN THE HANDS OF SHRI JAYESH D. GORAGANDHI DETERMING THE ASSESSED INCOME @ RS. 2,69,16,970/ - AGAINST THE RETURNED INCOME OF RS. 4,16,972/ - FOR THE AY 2003 - 2004 . IN ADDITION, IN THE HANDS OF M/S. KRUPA BUILDERS. AO MAD E ADDITIONS OF RS. 1,22,95,600/ - , ALLEGED CASH PAYMENTS TO SHRI JAYESH D. GORAGANDHI AS INCOME OF KRU PA BUILDERS FOR THE AY 2003 - 2004 . 3. DURING THE FIRST APPELLATE PROCEEDINGS, M/S. KRUPA BUILDERS SUBMITTED THAT THE ADDITION OF RS. 1,22,95,600/ - IS UNCALL ED FOR IN HIS HANDS MERELY BASED ON THE IMPOUNDED PAPERS FOUND DURING THE SURVEY U/S 133A OF THE ACT ON SHRI JAYESH D. GORAGANDHI, THE SELLER OF THE PROPERTY. SUCH PAPERS ARE NOT IMPOUNDED FROM THE PREMISES OF THE ASSESSEE AND THEREFORE, THE ADDITION S ARE NOT SUSTAINABLE . THEY DENIED HAVING SUCH DISCUSSIONS WITH SHRI JAYESH D. GORAGANDHI ON THESE LINES . THE CIT (A) EXAMINED THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE IMPOUNDED PAPERS AND EXTRACTED CERTAIN QUESTIONS AND ANSWERS EMANATING FROM THE STATEMENT MADE DURING THE SURVEY ACTION . EVENTUALLY , CIT(A) GRANTED RELIEF TO THE ASSESSEE, M/S. KRUPA BUILDERS QUA THE CASH PAYMENT OF RS. 1,22,95,600/ - . IN THE PROCESS, CIT (A) APPRECIATED THE ASSESSEES SUBMISSION THAT THE SAID LOOSE PAPERS DID NOT MATCH IN FIGURES QUA THE FINAL REGISTERED DEEDS DATED 8.10.2003 I.E., NEARLY A GAP OF 1 YEARS WHEN COUNTED FROM 25.6.2002 (AY 2003 - 04) . CIT (A) ALSO EXAMINED THE BOOKS OF ACCOUNTS OF M/S. KRUPA BUILDERS AND FOUND THAT THE PAYMENT OF RS. 1,11,001/ - , WHICH CLEARLY APPEARED ON THE SAID IMPOUNDED DOCUMENTS, WAS NOT FOUND RECORDED IN THE ACCOUNTED BOOKS OF ACCOUNTS. HOWEVER, THE LOGIC OF THE CIT(A) IN SEARCHING 4 FOR THE SAID UNACCOUNTED CASH TRANSACTION IN THE REGU LAR BOOKS OF THE ASSESSEE IS NOT DISCERNABLE. FINALLY, CIT(A) HELD THAT SUCH PAPERS WHICH ARE NOT DULY SIGNED, HAVE NO VALIDITY AND RELIED ON VARIOUS DECISIONS . CIT (A) CONSIDERED TH E ASSESSEES SUBMISSIONS THAT THE DEAL NEVER MATERIALIZED AND F INALLY, SHE RELIED ON CERTAIN DECISIONS CITED BY THE ASSESSEE BEFORE GRANTING COMPLETE RELIEF TO M/S. KRUPA BUILDERS AS PER THE DISCUSSION GIVEN IN PARA 5.9 OF THE IMPUGNED ORDER, WHICH READS AS UNDER: 5.9. ON THE BASIS OF ABOVE, IT IS CLEAR THAT THE LOOSE PAPERS FO UND IN THE SURVEY PROCEEDINGS AT THE PREMISES OF THIRD PARTY ARE NOT RELIABLE LOOSE PAPERS. THEY DID NOT BEAR SIGNATURE OF ANY OF THE PARTY. THEY DENIED BY BOTH THE PARTIES. THE CONTENTS MENTIONED IN THE LOOSE PAPERS DO NOT MATCH WITH ANY OF THE TRANSACTION TOOK PLACE SUBSEQUENTLY AFTER 1 YEARS . THE DECISIONS MENTIONED ABOVE DIRECTLY APPLY TO THE FACTS OF THE CASE OF THE APPELLANT. IN VIEW OF THE ABOVE, ADDITION MADE BY THE AO IS DELETED AND THE APPEAL STANDS ALLOWED ON THIS PO INT. 3.1. FURTHER, IN THE CASE OF SHRI JAYESH D. GORAGANDHI AND IN CONNECTION WITH THE ADDITION OF RS. 2.65 CRS (ROUNDED OFF TO NEAREST LAKHS) (RS. 1,22,95,600/ - CASH PAYMENT AND RS.1,42,04,400/ - CHEQUE PAYMENT), THE ASSESSEE SUBMITTED THAT HE RECEIVED AN ADVANCE OF RS. 1,32,50,000/ - OVER THE YEAR AND REFLECTED IN THE BOOKS OF ACCOUNT IN THE AY 2004 - 2005 AND THEREFORE, THE ADDITION OF RS. 2.65 CRORES IS UNCALLED FOR. REFERRING TO THE SUM OF RS 1,42,04,400/ - SHOWING REFLECTED IN THE BOOKS FOR THE AY 2004 - 05, IT IS THE OBJECTION OF THE ASSESSEE THAT THE SAID ADDITION IN THE YEAR 2003 - 2004 IS UNSUSTAINABLE IN LAW . TH IS AMOUNTS REFERRED TO THE CHEQUE PAYMENTS RECEIVED FROM M/S. KRUPA BUILDERS OF MR. TARUN PATEL & ORS IN COMPLIANCE OF THE AGREEMENT BETWEEN M/ S. KRUPA BUILDERS AND THE M/S. D.G. BUILDERS, DATED 8.10.2003 FOR SALE OF 4198.07 SQ.FT AND 23740 SQ.FT TDS. THE DETAILS OF THESE PAYMENTS ARE PROVIDED IN A TABULAR FORM ON PAGE 3 OF THE IMPUGNED ORDER WHICH IS AS UNDER: 5 3.2. THE ABOVE TABLE SUGGESTS THAT THE ASSESSEE RECEIVED RS. 1,32,50,000/ - FOR THE AY 2003 - 2004 AND THE BALANCE OF RS. 29,12,977/ - WAS RECEIVED IN THE AY 2004 - 2005. THIS INCLUDES INDIRECT PAYMENT OF RS. 17,50,000/ - PAID DIRECTLY TO M/S. BHOOMI BUILDEERS, THE ORIGINAL TDS OWNER. IT WA S SUBMITTED THAT THESE RECEIPTS OF RS. 1,61,62,977/ - (I.E., RS. 1,32,50,000/ - + RS. 29,12,977/ - ) IS TAXABLE IN THE AY 2004 - 05 AND NOT IN THE AY 2003 - 04 AS DONE BY THE AO. CIT (A) WROTE A LETTER TO M/S. KRUPA BUILDERS ON 13.2.2009 FOR WANT OF CONFIRMATIO N OF THE ABOVE AND ALSO TO FIND OUT THE CORRECT YEAR OF COMMENCEMENT OF THE PROJECT AND OTHER RELEVANT DETAILS . IN REPLY, M/S. KRUPA BUILDERS MENTIONED THAT THE IMPUGNED PROPERTIES (I.E., LAND + TDR) WERE PURCHASED VIDE AGREEMENT DATED 8.10.2003 FOR A SUM OF RS. 1,61,62,977/ - FROM M/S. D.G. BUILDERS. IT ALSO CON TAINS THE FACT THAT THE IMPUGNED PROJECT COMMENCED ON 15.10.2002 AFTER TAKING POSSESSION OF THE LAND WIT H CLEAR FSI ON OCTOBER, 2002. THE CIT (A) CONSIDERED THE ABOVE AND OPINED THAT SHRI JAYESH D. GORAGANDHI DELIBERATELY EXECUTED THE AGREEMENT ON 8.10.2003 TO SUIT THEIR CONVENIENCE THOUGH THE LAND WITH CLEAR FSI WAS ACTUALLY SOLD DURING THE FY RELEVANT TO THE AY 2003 - 2004. CIT (A) MADE AVAILABLE THE SAID REPLY LETTER OF M/S. KRUPA BUILDERS TO SHRI JAYESH D. GORAGANDHI AS PER THE PRINCIPLES OF NATURAL JUSTICE AND CALLED FOR OBJECTION IF ANY . FINALLY, AS PER THE DISCUSSION GIVEN IN PARA 3.12 OF THE 6 IMPUGNED ORDER IN THE CASE OF SHRI JAYESH D. GORAGANDHI, CIT (A) CATEGORICALLY MENTIONED THAT M/S. KRUP A BUILDERS COMMENC ED THE CONSTRUCTION ON 15.10.2002 BASED ON THE COMMENCEMENT CERTIFICATE BY BMC DATED 14.10.2002. SUBSEQUENTLY, BMC ISSUED COMMENCED CERTIFICATE FOR STILT AND 1 ST FLOOR ON 13.1.2003. AFTER DISCUSSING THE FACTS, CIT (A) DIRECTED THE AO TO TAX THE BUSINESS INCOME FROM SALE OF CLEAR FSI AND TDR DURING THE PERIOD RELEVANT TO THE AY 2003 - 2004 INSTEAD OF AY 2004 - 2005 AS OFFERED BY THE ASSESSEE. SHE ALSO MENTIONED THAT ACTUAL SALE CONSIDERATION ACCRUED TO THE ASSESSEE IS RS. 1,61,62,977/ - INSTE AD OF RS. 1,42,04,400/ - . SHE GRANTED FULL RELIEF SO FAR AS THE CASH PAYMENTS OF RS 1.22 CRORES IS CONCERNED. IN THE PROCESS, THE LOOSE PAPERS IMPOUNDED BY THE REVENUE WERE NOT CONSIDERED CREDIBLE DOCUMENTS BY THE CIT (A). 4. AGGRIEVED WITH THE ABOVE DEC ISIONS OF THE CIT (A) IN BOTH THE CASES, WHICH ARE PARTIES TO THE TRANSACTION, THE REVENUE AS WELL AS THE ASSESSEES FILED THE PRESENT THREE APPEALS BEFORE THE TRIBUNAL. TO ELABORATE, REVENUE AGGRIEVED WITH THE ORDER OF THE CIT (A) IN THE CASE OF M/S. KRUPA BUILDERS FOR DELETING THE ADDITION OF RS. 1,22,95,600/ - ALLEGED TO HAVE BEEN PAID BY THE BUYER OF THE PROPERTIES. FURTHER, THE REVENUE IS AGGRIEVED WITH THE ORDER OF THE CIT (A) IN THE CASE OF SHRI JAYESH D. GORAGANDHI FOR DELETING THE CASH PAYMENTS RECE IVED BY THE ASSESSEE. ON THE OTHER HAND, THE ASSESSEE IS ALSO AGGRIEVED WITH THE ORDER OF THE CIT (A) IN THE CASE OF SHRI JAYESH D. GORAGANDHI FOR CONFIRMING THE AOS CONCLUSION IN BRINGING THE AMOUNT OF RS. 1,61,62,977/ - IN THE AY 2003 - 2004 INSTEAD OF 20 04 - 2005 SHOWN AS CURRENT LIABILITIES BING ADVANCED RECEIVED IN THE BALANCE SHEET OF THE ASSESSEE. BEFORE THE TRIBUNAL 5 . SRI S D SRIVATSAVA, LD DR FOR THE REVENUE NARRATED THE ABOVE FACTS OF THE CASE AND HE IS CRITICAL OF THE CONCLUSIONS OF THE CIT (A) IN BOTH THE SETS OF THE ORDERS INVOLVING SRI JAYESH GOREGANDHI AND KRUPA BUILDERS . REFERRING TO THE RELIEF GRANT BY THE CIT(A) TO BOTH THESE AS SESSES, CIT - DR PUT FORWARDED VARIOUS ARGUMENTS. SOME OF THE IMPORTANT ARGUMENTS MADE BY THE LD DR ARE : (I) C REDIBILITY OF THE IMPOUNDED DOCUMENTS : THE SAID DOCUMENTS ARE CREDIBLE FOR THE REASONS THAT THE PARTICULARS OF THE ASSETS TALLY, FIGURES IN SQUIRE F EET AND THE IN RUPEES TALLY QUA THE RATE PER UNIT AREA TALLY, DATE OF THE DISCUSSION BEING EARLIER TO THE DATE OF 7 COMMENCEMENT CERTAIFICATE BY BMC TALLY ETC. THE PROPERTIES AND THE GUIDELINES MENTIONED IN THE IMPOUNDED PAPERS TALLY WITH THE ONES MENTIONED IN THE REGISTERED AGREEMENT DATED 8.10.2003. (II) DECISIONS ARE ACTED UPON: THE IMPUGNED DISCUSSION HELD ON 25.6.2002 IS CLAIMED TO HAVE BEEN ACTED UPON WHICH IS EVIDENT FROM THE FACT THAT THE SAME IS NOT E WAS SENT TO SRI TAR UN PATEL, WHO PAID A SUM OF RS 1,11,001/ - TO SHRI JAYESH D. GORAGANDHI. IT IS EVIDENT FROM THE FACT OF THE SAID DOCUMENTS. THE COMMENCEMENT CERTIFICATE ISSUED BY THE BMC WITH REGARD TO THE LAND AS WELL AS THE TDRS CONFIRMS THE DATES AS WELL AS GIVING EFFE CT TO THE FINDINGS GIVEN ON THE IMPUGNED INCRIMINATING MATERIAL. IN CONNECTION WITH THE SAID TOKEN PAYMENT BY SIR PATEL, LD DR EXPRESSED HIS SURPRISE AT THE LOGIC OF THE CIT (A) IN LOOKING FOR CONCERNED ENTRIES FOR RS. 1,11,001/ - IN THE REGULAR BOOKS OF ACCOUNTS OF THE CONCERNED PARTIES AND IT IS A SHOCKING. THE DEALS OF THIS NATURE ALWAYS INVOLVE THE PAYMENT OF CASH WHICH IS NOT NEW TO THE IMPUGNED TRANSACTIONS, THEREFORE, THE MAR KED PRACTICE IS IN TUNE WITH THE MINUTES OF THE DISCUSSION GIVEN ON THE IMP UGNED MATERIAL. THEREFORE, THE SAID PAPERS ARE CREDIBLE AND DEPENDABLE FOR MAKING ADDITIONS. (III) DISCHARGE OF ONUS: THESE PAPERS WERE FOUND IN THE PREMISES OF SHRI JAYESH D. GORAGANDHI IMPLICATING M/S. KRUPA BUILDERS (MR. TARUN PATEL) AND IN THAT CASE, THE ONUS IS ON THEM TO DISCHARGE THAT THE IMPUGNED TRANSACTIONS ARE EXCEPTIONS TO THE RULE AND DID NOT INVOLVE CASH PAYMENTS , WHICH IS A RULE IN THIS LINE OF BUSINESS TRANSACTIONS . ELABORATING ON TH E IMPUGNED PRACTICE OF CASH PAYMENTS IN THE MATTERS RELATI NG TO THE LAND/TDRS DEALS, LD CIT - DR SUBMITTED THAT SUCH PAYMENTS IS A RULE. EVIDENCES ARE RARELY AVAILABLE TO THE REVENUE TO SUGGEST THE CASH PAYMENTS AS RELEVANT DEALS ARE DONE PRIVATELY AND SECRETLY. LD DR SUBMITS THAT THE IMPUGNED PAPERS WERE IMPOUNDE D BY THE REVENUE UNDER SUCH SECRET AND PECULIAR CIRCUMSTANCES, THE SHOULD NOT BE DISCREDITED AND REJECTED ON FLIMSY REASONS AS DONE BY THE CIT(A). (IV) SO FAR AS THE COMPLETION OF THE PROJECT AND YEAR OF TAXABILITY OF THE INCOME IN THE AY 2003 - 2004 IS CONCERNED , LD DR RELIED ON THE ORDER OF THE CIT (A). THUS, LD DR SUBMITTED FOR CONFIRMING OF THE ADDITION OF RS. 1,22,95,600/ - IN THE HANDS OF M/S. KRUPA BUILDERS, THE BUYER OF THE PROPERTIES AND ALSO IN THE HANDS OF SHRI JAYESH D. GORAGANDHI OF M/S. D.G. BUILDERS, THE SELLER OF THE PROPERTY. 8 6 . ON THE OTHER HAND, SHRI SHETTY , LD COUNSEL FOR THE ASSESSEE HEAVILY RELIED ON THE WRITTEN SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. THE WRITTEN SUBMISSION FILED IN THE CASE OF SHRI JAYESH D. GORAGANDHI AND THE GIST OF THE SAME INCLUDES THE REQUEST FOR REJECTING THE IMPUGNED INCRIMINATING MATERIAL AND DISOWNING OF THE SAME BY THE PARTIES AS DUMB DOCUMENTS . WRITTEN SUBMISSIONS ALSO MAKE A REFERENCE TO THE AOS FA ILURE IN DISCHARGING THE ONUS. THERE IS A REFE RENCE TO THE FACT OF ENTERING INTO THE AGREEMENT WITH A GAP OF 1 YEARS, THEREFORE THE LOOSE PAPERS HAVE NO SIGNIFICANCE. FURTHER, HE ALSO RELIED ON THE ORDERS OF THE CIT (A) IN BOTH THE CASES. WITH REGARD TO THE SAID ADDITIONS MADE BY THE AO IT WAS SUBM ITTED THAT THE SAME HAS BEEN MADE ON THE BASIS OF ASSUMPTION AND SURMISES. FINALLY, LD COUNSEL REQUESTED FOR CONFIRMING THE DELETIONS OF CASH PORTION OF RS. 1,22,95,600/ - . HE ALSO TOOK OBJECTION TO THE FACT THAT THE CIT (A) CONFIRMED THE ADDITIONS IN THE AY 2003 - 200 4 IGNORING THE ENTRIES IN BOOKS OF ENTRIES. DECISION OF THE TRIBUNAL 7 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AND THE PAPERS FILED BEFORE US. WE HAVE ALSO GONE THROUGH THE COPIES OF THE AGREEMENTS AS WELL AS THE IMPUGNED INCRIMINATING MATERIAL WHICH IS THE SUBJECT MATTER OF DESPITE. FURTHER, WE HAVE EXAMINED THE DECISIONS CI TED BY THE LD AR I.E., (I) ORDER OF THE ITAT, HYDERABAD IN THE CASE OF DCIT VS. C.K. YADAV [2011] 46 SOT 250 (HYD.); (II) DECISIO N OF THE ITAT, CHANDIGARH BENCH IN THE CASE OF ITO VS DR. R.L. NARANG VIDE ITA. NOS.981 & 982 (CHD) OF 2005; (III) ORDER OF THE ITAT MUMBAI IN THE CASE OF HARISH DAULATRAM INNANI VS. DCIT [2008] 24 SOT 541 (MUM.) AND OTHERS. LD COUNSEL RELIED ON THE SAID JUDGMENTS FOR THE PROPOSITIONS THAT THAT (I) THE ADDITIONS CANNOT BE MADE BASED ON THE LOOSE PAPERS BEARING ESTIMATIONS AND PLANNING AND (II) UNSIGNED DOCUMENTS HAS NONE EVIDENTIARY VALUE. BEFORE GOING INTO THE MERITS OF THE ARGUMENTS OF THE PARTIES, WE F IND IT RELEVANT TO EXAMINE THE IMPUGNED IMPOUNDED PAPERS AND THE SAME ARE SCANNED AND INSERTED HERE AS UNDER: 9 10 8. THE ABOVE PAPERS READ WITH THE CONTENTS THEREIN BELONG TO THE ASSESSEES UNDER CONSIDERATION. IT IS UNDERSTANDABLE WHY THE ASSESSEE DENIED THE CONTENTS OF THE PAPERS. PAYMENT IN CASH WHICH IS UNACCOUNTED IS THE PROBLEM AREAS FOR THEM. HOWEVER, THE EXPRESSIONS U SED ABOVE SUCH AS TOTAL LUMP SUM SETTLED, AGREE TO BE PREPARED, RS RS 1,11,001/ - PAID ON 25.6.02 , CASH (RS.605), CHEQUE (RS.700) ETC, SUGGEST THAT THEY ARE MENTIONED IN PAST TENSE GRAMMATICALLY AND FURTHER SUGGEST THE INTENTIONS OF THE PARTIES Q UA THE DEFINITE INVOLVEMENT OF THE CASH PAYMENTS BY KRUPA BUILDERS TO JEYESH GOREGANDHI IN CONNECTION WITH THE PURCHASE OF PLOT OF LAND AND THE TDRS . 9. FURTHER, T HE PAPERS IN QUESTION ARE UNDISPUTED LY IMPOUNDED DURING THE SURVEY ACTION U/S 133A OF THE A CT FROM THE PREMISES OF SRI JEYESH GORAGANDHI , THE SELLER OF THELAND AND THE TDRS . HE HAS NOT EXPRESSLY DENIED THEIR GENUINENESS OR THE CONTENTS OF THEREON. IN FACT, MR GOREGANDHI HAS NOT FILED ANY EXPLANATION BEFORE THE AO . THE CONTENTS OF THE SAME ARE SE LF EXPLANATORY. AS PER THESE DOCUMENTS, SRI GORAGANDHI POSSESSES CERTAIN CAPITAL ASSETS IE PLOT OF LAND AND THE TDRS AND TH EY ARE AGREED TO THE SOLD TO KRU PA BUILDERS FOR A CONSIDERATION SPECIFIED THEREIN. THE CONSIDERATION IS PAID OR PAYABLE BOTH IN CASH AND CHEQUE @ THE RATE OF RS 605 AND RS 700/ - RESPECTIVELY. AS PER THE DOCUMENT, TH E CASH PAYABLE BY THE BUYER (KRU PA BUILDERS) WORKS OUT TO RS 1,22,95,600. A SUM OF RS 1,11 ,001/ - WAS ALREADY PAID ON 11 25.9. 02 AND 80% OF THE CONSIDERATION IS REQUIRED TO BE PAID BEFORE THE REGISTRATION. OF COURSE, IT DOES NOT CONTAIN THE SIGNATURES OF THE PARTIES TOOK PART IN THE DISCUSSION ON THAT DAY. ON THESE DOCUMENTS, THE DISPUTE BETWEEN SRI GOREGANDHI AND KRIPA BUILDERS ON ONE SIDE AND THE REVENUE ON THE OTHER IS THAT THESE ARE MERE DISCUSSIONS AND THE DECISIONS SPECIFIED THEREON ARE NOT GIVEN EFFECT. AO REJECTED THE SAME AND MADE THE ADDITION OF RS 1.22 CRORES IN THE HANDS OF THE PAYER IE KRIPA BUILDERS AND THE RECEIVER IE JEYESH GORAGANDHI OF D G BUILDERS. CIT(A) GRAN TED RELIEF TO THE ASSESSES ACCEPTING THE VERSIONS OF THE ASSESSES. BEFORE US, IT IS THE PRAYER OF THE ASSESSES THAT THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEES ARE NOT SUSTAINABLE. HENCE, THE CIT(A) DECISION IN GRANTING RELIEF TO THE ASSESSEE SHOULD N OT BE DISTURBED. FURTHER TO ELABORATE THE ABOVE, THE STAND OF THE M/S KRIPA BUILDERS IN PART ICULAR IS THAT THE SAID PAPERS BELONG TO THE SELLER (IE THIRD PARTY) OF THE PLOT AND THE TDRS AND IT DOES NOT BELONG TO THE ASSESSEE. THEREFORE, THE SAID DOCUMENTS SHOULD NOT BE USED AGAINST THE ASSESSEE FOR MAKING ADDITIONS OF RS 1,22,95,600 AS CASH PAYMENTS MADE BY THE ASSESSEE TO SRI JEYESH GORE GANDHI, THE PROPRIETOR OF DG BUILDERS. THE SAID DOCUMENT CONSTITUTES A DUMB DOCUMENT /NOT CREDIBLE ONES SO FAR AS THE ASSE SSES ARE CONCERNED. AO REJECTED THE SAME. HOWEVER, CIT(A) AGREES WITH THE SAID STAND OF THE ASSESSEE ON CASH PORTION OF THE TRANSACTION AND GRANTED RELIEF TO BOTH THE ASSESSEES . TO SUBSTANTIATE THE RELIEF, SHOCKINGLY , CIT(A) HELD THAT THE SAID CASH ENTRIES ARE NOT FOUND IN THE REGULAR BOOKS OF ACCOUNTS OF THE ASSESSEES. 10. PER CONTRA , THE CASE OF THE REVENUE IS THAT THE CIT(A) DUMPED INTO THE DUST - BEAN THE CRUCIAL GUIDELINES VIDE THESE IMPOUNDED PAPERS, DRAWN OUT IN THE SAID DOCUMENTS BY BOTH THE PARTIES AFTER PROLONGED DISCUSSIONS THAT TOOK PLACE TILL THE 12 NOON ON 25 TH JUNE 2002. IN THE PROCESS, LD CIT(A) RELIED ON AN UNSUSTAINABLE REASONING SUCH AS UNSIGNED DOCUMENTS, MINUTES ARE NOT GIVEN EFFECT TO, FIGURES MENTIONED IN THE FINAL REGISTERED DEEDS ARE DIFFERENT, CASH PAYMENTS ARE NOT FOUND IN THE REGULAR BOOKS ETC. DESCRIBING HER DECISION AS PERVERSE, LD DR ATTEMPTS TO DEMONSTRATE HOW THE SAID ENTRIES IN THE DOCUMENTS ARE UNAMBIGUOUS, SELF EXPLANATORY, FULL MEANING AND MESSAGE, HOW THEY ARE ALREADY GI VEN EFFECT, HOW THEY ARE CREDIBLE & RELIABLE FOR MAKING ADDITIONS IN THE HANDS OF KRUPA BUILDERS, THE CASH 12 PAYER AND THE JEYESH GOREGANDHI, THE RECEIVER. LD DR IS HIGHLY CRITICAL OF THE FINDING OF THE CIT(A) WHO IGNORED VARIOUS SETTLED PRINCIPLES IN MATTER S RELATING TO (I) INCRIMINATING MATERIALS AND (II) THE ONUS ISSUES . DRAWING OUR ATTENTION TO THE SAID INCRIMINATING DOCUMENTS IN GENERAL AND THE EXPRESSIONS PAID RS 1,11,001/ - , LD DR MENTIONED THAT THE EXPRESSION PAID IN PAST TENSE GRAMMATICALLY AND TH E SAID CANNOT BE READ AS NOT PAID. WHEN THE SAID SUM IS CATEGORICALLY SPECIFIED TO HAVE BEEN PAID ON 25 .6.2002 , BY NO INTERPRETATION OF THESE EXPRESSIONS, THE SAME AMOUNT CANNOT BE TREATED AS NOT PAID BY THE BUYER TO JEYESH GORAGANDHI THE SELLER OF THE PROPERTY. MR GOREGANDHI HAS ADEQUATE REASON TO RECEIVE THE CASH, WHICH IS ALMOST A RULE IN THESE MATTERS OF LAND DEALS . HE ALSO DREW OUR ATTENTION TO THE PAYMENT SCHEDULES TABULATED ABOVE QUA THE CONTENTS OF THE IMPOUNDED PAPERS, SRI S D SRIVASTHAVA, LD CIT - DR FOR THE REVENUE DEMONSTRATED THAT AN AMOUNT OF RS. 1.5 CR IS DEMANDED FOR IMMEDIATE PAYMENT BY SRI JAYESH GOREGANDHI. IN ADDITION TO THE SAID TOKEN PAYMENT PAID OF RS. 1,11,001/ - , KRUPA BUILDERS STARTED PAYMENT THE CHEQUE PAYMENTS R IGHT FROM JULY 2002. IN FACT, THE MONTH OF JULY 2002 REGISTERED PAYMENT OF NEARLY RS 50 LAKHS, A SUBSTANTIAL PAYMENT OF THE AGREED AMOUNTS. AS PER DR, THE CASH PORTION OF R S 1.22 CR PAYABLE TO JAYESH GORA GANDH IS PAID AS PER THE MINUTES DRAWN BY THEM. NO R EASON ARE MADE OUT BY THE ASSESSES THAT THE SAID MINUTES ARE AMENDED SUBSEQUENTLY AND THERE IS NO ELEMENT OF CASH PAYMENTS IN THIS LAND/TDRS DEALS. AS PER LD DR, CIT(A)S ATTEMPT TO GRANT RELIEF TO THE ASSESSEE HOLDING THAT THE SAID AMOUNTS ARE NOT ACCOU NTED IN THE BOOKS OF ACCOUNT MUST CONSTITUTE A PERVERS ITY. HE REASONED HOW THE ALLEGED UNACCOUNTED CASH PAYMENTS ARE FOUND ACCOUNTED IN THE REGULAR BOOKS OF ACCOUNTS OF THE ASSESSEE AND WHY IS SHE LOOKING FOR THESE OBVIOUSLY UNACCOUNTED ENTRIES IN THE R EGULAR BOOKS OF ASSESSES. 11. DELAY OF ONE AND HALF YEAR IN FINALIZING AGREEMENT DIFFERENCES IF ANY IN FIGURES WITH THAT OF THE IMPOUNDED MATERIAL : O THER ARGUMENTS OF THE ASSESSES (KRU PA BUILDERS AND JEYESH GORAGANDHI) REVOLVE AROUND THE DISCREPANCIES QUA THE PARTICULAR IN THE AREA OF THE FSI AND THE LAND AREAS ON ONE SIDE AND THE DELAY OF ONE AND HALF YEAR. IT WAS ARGUED BY LD AR FOR THE ASSESSEES THAT THERE IS DIFFERENCE IN TIME AS WELL AS THE FIGURES OF AREAS AND FSI MENTIONED IN THE 13 IMPOUNDED PAPERS AND THE ACTUAL FIGURES FIGURED ON THE REGISTERED DOCUMENTS. THEREFORE, THE IMPOUNDED PAPERS SHOULD BE IGNORED AS NOT CREDIBLE ONES . THESE ARE MATTERS OF FACT AND THERE ARE ALWAYS SUCH MARGINAL DIFFERENCES IN SUCH MATTERS. THEREFORE, SO LONG AS THE PRINCIPLES ARE NOT DEVIATED, IN OUR OPINION, THE DEVIATION IF ANY IN FIGURES, IF ANY, WHICH ARE MATTER OF FACTS, SHOULD NOT CONTRIBUTE ANY DISCREDIT TO THE SAID DOCUMENTS. OF COURSE, THE AO IS UNDER OBLIGATION TO CONSIDER ONLY SUCH FINALIZED FIGURES RELATING TO AREA, W HATEVER ARE THE FINAL FIGURES OF AREAS MENTI ONED IN THE REGISTERED DOCUMENT. THEREFORE, I N OUR OPINION, SUCH DIFFERENCES IN FIGURES OF AREA OF SQ FT/FSI/TDRS DO NOT ALTER THE BROA D PRINCIPLES REACHED BY THE PARTIES IN THE DISCUSSION ON THE 25. 6.2002 . T HERE IS NO EVIDENCE BROUGHT IN BY THE PARTIES TO DEMONSTRATE THE SAID DISCUSSION/ MINUTES UNDERWENT AMENDMENTS. CONSIDERING THE FACT THE ASSESSEE HAVE BEEN FINALLY GIVEN EFFECT TO THE GUIDELINES OF THE DISCUSSION, THERE IS NO REASON TO REJECT THE BROAD PRINCIPLES AGREED UP ON BY THE PARTIES ON 25.6.02 ON THE IMPUGNED ISSUE OF CASH PAYMENTS IN PARTICULAR. PAPERS SHOU LD BE CONSIDERED AS WHOLE: LD DR BROUGHT TO OUR ATTENTION THE FACT THAT THE CHEQUE PAYMENTS @ RS 700/ - FOR SQ FT WHICH IS MENTIONED IN THE INCRIMINATING DOCUMENTS ARE ACCOUNTED IN THE BOOKS AND EXPECTEDLY, THE CASH PAYMENTS @RS 605 /SQ FT IS MENTIONED IN T HEM. ONE CANNOT ACCEPT THESE PAPERS AS GENUINE FOR CHEQUE PAYMENTS AND NOT FOR CASH PAYMENTS. IN THIS CONTEXT, RELYING ON THE SET LEGAL PRINCIPLES, SRI SD SRIVASTHAVA REASONED THAT THE INCRIMINATING DOCUMENTS OF THIS KIND SHOULD BE EITHER ACCEPTED OR REJE CTED IN FULL AND THEY CANNOT BE ACCEPTED IN PART. IF THE CHEQUE PAYMENTS ARE GENUINE AND SO ARE THE CASH PAYMENTS ON EQUAL FOOTING. THEREFORE, THE CASH PAYMENTS BY THE BUYER TO SRI JEYESH GORAGANDHI ARE GENUINE. THEREFORE, LD DR SUBMITS FOR REVERSING THE ORDERS OF THE CIT(A) AND RESTORING THE ORDERS OF THE AO. WE FIND MERIT IN THE ARGUMENTS OF LD DR. 12. ON THE ISSUE OF ONUS , WE FIND THAT THE IMPUGNED DOCUMENTS ARE UNDISPUTEDLY FOUND IN THE PREMISES OF SRI JEYESH GORAGANDHI. THE OWNERSHIP OF THE SAME ARE UNDISPUTED AND THE SAME ACCEPTED BY SRI GORAGANDHI IN THE STATEMENT TAKEN ON OATH ON THE DAY OF SURVEY. HOWEVER, IT IS THE REPLY OF THE DEPONENT THAT THE SAID DECISIONS ARE NOT GIVEN EFFECT. THE SAID REPLY IS UNDERSTANDABLE AS NO PERSON SHALL 14 PROVIDE INCRIMINATING STATEMENT AGAINST HIMSELF. HOWEVER, IT IS UNDISPUTED FACT THAT, WHEN THE CERTAIN INCRIMINATING DOCUMENTS ARE IMPOU NDED FROM HIS POSSESSION, INITIAL ONUS IS CERTAINLY ON HIM AND NOT ON THE REVENUE. THE SAME IS NOT DISCHARGED SUC CESSFULLY. AT THE SAME TIME, KRU PA BUILDERS CANNOT WRIGGLE OUT OF THE SAME AND DISOWN THE TRANSACTION WHO IS INEXTRICABLY CONNECTED TO THE IMP UGNED TRANSACTION IN THE CAPACITY OF THE PAYER. GENUINENESS OF THE D OCUMENTS , THE PARTIES INVOLVED IN THE TRANSACTIONS, THE SIGNIFICANT OF THE CONTENTS THEREIN , ASSUME EXTREME IMPORTANCE AND THE DETA ILS OF THE PREMISES , FROM WHERE THEY ARE IMPOUNDED , WHETH ER THIRD PARTY OR OTHERWISE, BECOME S SECONDARY. THESE LITIGIOUS ISSUES DO NOT OVERRIDE THE SIGNIFICANCE OF THE CONTENTS OF THE INCRIMINATING DOCUMENTS. IN OUR OPINION, THE ONUS IS ON M/S KRU PA BUILDERS TOO TO PROVIDE EXPLANATION ABOUT THE INCRIMINATING TR ANSACTIONS. THEY HAVE NOT PROVIDED ANY EVIDENCE TO DEMONSTRATE THAT THEY ARE NOT PARTY TO THE DISCUSSION AND THEY HAVE NOT RECEIVED THE DOCUMENT S DULY FORWARDED BY JAYESH GORA GANDHI ON 29 TH JUNE, 2002. IF THEY ARE NOT PARTY TO THE DISCUSSION, WHY DID WANT A COPY OF THE MINUTES AND THE RELATED LINK DOCUMENTS SPECIFIED ABOVE. THE FACT THE DEAL IS FINALLY STRUCK AND THE PAYMENTS ARE SUBSEQUENTLY MADE BY M/S KRUPA BUILDERS INDICATES THE GENUINENESS OF THE IMPOUNDED DOCUMENTS QUA THE DEVELOPER OF LAND. IN ANY C ASE, IT IS NOT THEIR CASE TO DISOWN THESE DOCUMENTS, BUT THEIR ARGUMENT IS THAT THE GUIDELINES OF THE LAND/TDR DEALS ARE NOT IMPLEMENTED. HENCE, WE REJECT THE ARGUMENTS OF M/S KRUPA BUILDERS AND JAYESH GOR A GANDHI AND THAT OF LD COUNSEL FOR THEM AND DISAPP ROVE THE FINDINGS OF THE CIT(A) ON THE CREDIBILITY OF THE DOCUMENTS IN GENERAL AND UNACCOUNTED CASH PAYMENTS IN PARTICULAR. 13 . CASH PAYMENTS IN LAND/TDRS DEALS - RULE VS EXCEPTION : GENERALLY , IN LAND OR TDR RELATED TRANSACTIONS, THE MAKING OF CASH PAYMENT TO THE LAND/ TDR OWNERS IS NECESSARY PART OF THE COMMERCIAL TRANSACTIONS. IT IS ALMOST A RULE IN THIS LINE OF BUSINESS TRANSACTIONS. HOWEVER, IT IS AN EXCEPTION THAT THERE ARE SUCH TRANSACTIO NS WITHOUT CASH PAYMENTS. THE PRESENT CASE IS CERTAINLY NOT AN EXCEPTION. THE INCRIMINATING DOCUMENTS, WHICH CLEARLY MENTIONS THE FACTS AND FIGURES TO ASCERTAIN THE EXTENT OF CASH PER UNIT AREA AND SHOWING THE COMPUTATION OF THE GROSS CASH AMOUNTS FOR THE WHOLE OF THE TRANSACTIONS, CONFIRM THE ABOVE RULE OF PAYMENT OF CASH IN MATTERS OF THE LAND/TDR DEALS. THE ONUS IS ON THE ASSESSES TO 15 DEMONSTRATE THAT THEY FALL IN THE EXCEPTIONS AND IT IS NOT DEMONSTRATED IN THESE CASES. THEREFORE, WE AFFIRM THE ARGUMENT S OF LD DR AND THE CONCLUSIONS DRAWN BY THE AO THE ASSESSMENTS OF BO TH JEYESH GOREGANDHI AND THE KRU PA BUILDERS. 14. WE HAVE ANALYZED THE PAYMENT SCHEDULES INCORPORATED IN THE ORDERS OF THE REVENUE AND FIND THAT THE IMPUGNED MINUTES OF THE DISCUSSION SETTL ED ON 25.6.02 ARE GIVEN EFFECT. KRUPA BUILDERS STARTED MAKING CHEQUE PAYMENTS RIGHT FROM 27 TH JULY 2002 ONWARDS IE A FTER A MONTH GAP. OF COURSE TOKE N CASH PAYMENT OF RS 1,11,001 WAS ALREADY PAID ON 25 TH JUNE 02 ITSELF. THUS IT IS A CASE OF GIVING EFFECT TO THE MINUTES DRAWN ON 25.6.02. THEY HAVE NOT WAITED TILL THE FORMAL AGREEMENT IS REACHED ON 8.10.2003. IN TUNE WITH THE POLICY OF PROGRESSIVE PAYMENT RESTRICTED TO 80% BEFORE THE REGISTRATION , ALMOST ENTIRE CHEQUE PAYME NT IS MADE BEFORE THE SAID DATE OF REGISTRATION. CONSIDERING THE OVERALL GAMUT OF THE FACTS SURROUNDING THE TRANSACTIONS, WE FIND NO REASON AS TO WHY KRUPA BUILDERS HAS NOT PAID THE CASH PORTION TO JAYESH GOREGANDHI OF D G BUILDERS. IN THIS REGARD, WE RELY ON THE PRINCIPLES OF PROBABILITY TOO, WHICH IS RELEVANT FOR THE MATTERS RELATING TO INCOME TAX ISSUE. THEREFORE, IN PRINCIPLE, WE CONFIRM THE DECISION OF THE AOS IN BOTH THE CASES OF ASSESSMENT. IT IS SHOCKING TO NOTICE CIT(A) IS SEARCHING FOR SUCH UNACC OUNTED CASH ENTRIES IN THE REGULAR BOOKS OF ACCOUNTS AND GRANTED RELIEF TO THE ASSESSES. 15 . HOW THE CITED JUDGMENTS/DECISIONS ARE DISTINGUISHABLE: LD AR FILED VARIOUS COPIES OF THE JUDGMENTS IN SUPPORT OF THE ARGUMENTS THAT THE IMPUGNED IMPOUNDED PAPERS ARE NOT CREDIBLE ON THE GROUNDS THAT THEY ARE UNSIGNED OR THEY ARE IMPUGNED FROM THE THIRD PARTY ETC. ON PERUSAL OF THE SAME WE FIND THAT THESE DECISIONS ARE RELEVANT FOR THE FACTUAL MATRIX O F DIFFERENCE CASES AND NOT TO THE FACTS OF THE PRESENT CASES. IN THE PRESENT CASES OF JEYESH GORAGANDHI AND KRUPA BUILDERS, THE ABOVE EXTRACTED DOCUMENTS ARE OF EXTREME SIGNIFICANCE. THEY SIGNIFY THE DEEP I NTENT OF THE PARTIES TO THE ARRANGEMENT. IN PRINCI PLE, THE SAID INTENT IS IMPLEMENTED OR PART PERFO R MED AS EVIDENT BOTH FROM THE VERY PAYMENT OF RS 1,11,001/ - ON 25.6.02, THE DATE OF DISCUSSION AS WELL AS THE PAYMENTS BY CHEQUES ON 24.7.2002. THE EXPRESSION PAID CANNOT BE INTERPRETED AS NOT PAID OR P AYABLE. IN ANY CASE, THE ONUS IS ON THE ASSESSEES, WHO FAILED TO DISCHARGE. IN THIS CASE, THE ARGUMENTS ON THE UNSIGNED NATURE OF THE DOCUMENTS IS NOT RELEVANT CONSIDERING THE 16 FACT THE DECISION ON THE DOCUMENTS ARE IMPLEMENTED /PERFORMED RIGHT FROM THE VER Y DATE. WHEN SOME OF THE DECISIONS ARE TRULY IMPLEMENTED, IN OUR OPINION, THERE IS NO REASON TO DOUBT THE OTHERS RELATING TO THE CASH PAYMENTS. 16 . IN PRINCIPLE AND IN SUMMARY , WE APPROVE THE ARGUMENTS OF THE LD DR AND DISMISS THE ARGUMENTS OF THE OTHER S IDE FOR BOTH THE ASSESSES IE JAYESH GORAGANDHI AND KRUPA BUILDERS . ACCORDINGLY, A O S CONCLUSIONS ON THE ADDITION OF CASH PAYMENTS ARE CONFIRMED IN BOTH THE CASES. IT IS UNFORTUNATE THE CIT(A) WAS SEARCHING FOR RELEVANT UNACCOUNTED CASH ENTRIES IN THE REGULAR BOOKS OF ACCOUNT BEFORE THE RELIEF IS GRANTED ON THE SAID CASH PAYMENTS ISSUES. HOW THE UNACCOUNTED ENTRIES ARE FOUND IN THE REGULAR BOOKS? FURTHER, REGARDING T HE THIRD PARTIES RELATED ARGUMENTS, WE FIND THEY ARE NOT SUSTAINABLE AS RIGHTLY THE DOCUMENTS ARE IMPOUNDED FROM THE POSSESSION OF THE SELLER, WHO CONTROLS THE TRANSACTIONS AT THE TIME ENTRY INTO THE TRANSACTIONS. THERE IS EVIDENCE TO DEMONSTRATE THAT THE KRUPA BUILDERS CONFIRMS THE SAME AS EVIDENT FROM THE CONDUCT OF CALLING FOR THE COPIES OF THE AFOREMENTIONED SUPPORTING AND LINK DOCUMENTS. REGARDING RECOGNIZING THE INCOME, THE ISSUE AGGRIEVED BY THE ASSESSEE IN THE APPEAL, W E FIND THE ASSESSEES HAVE NOT RECOGNIZED ANY INCOME EITHER IN AY 2003 - 04 OR IN AY 2004 - 05 AS THE ADVANCES RECEIVED ARE SHOWN AS LIABILITIES ONLY . HOWEVER, THE CIT(A) TAXED WHOLE OF IT IN THE AY 2003 - 04 AFTER MAKING CORRESPONDING WITH THE CONCERNED ASSESSEE S AND AFTER PROVIDING REASONS FOR DOING SO. CONSIDERING THE DETAILS GARNERED BY THE CIT(A), IN OUR OPINION, THE FINDINGS OF THE CIT(A) DO NOT CALL FOR ANY CHANGES. 1 7 . IN THE RESULT, THE APPEALS OF THE REVENUE IN THE CASES OF M/S KRU PA BUILDERS AND SRI JA YESH GORAGANDHI ARE ALLOWED . APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED I N THE OPEN COURT ON THE 22 ND DAY OF JANUARY, 2014. SD/ - SD/ - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 22 .1 .2014 . . ./ OKK , SR. PS 17 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI