O.P. Sahni, Solan V. ACIT, Chandigarh

ITA 512/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73447 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-01-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 15-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARRY RICKY
• Keywords: Unexplained cash credit; Search and seizure; Loose papers; Document seized; Deemed to accrue or arise in india; Documents seized
• Section: 143(3); 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.868 /CHD/2013 ASSESSMENT YEAR : 2006-07 ITA NO.416/CHD/2013 ASSESSMENT YEAR : 2008-09 & ITA NOS.511 & 512/CHD/2013 ASSESSMENT YEARS : 2009-10 & 2010-11 O.P.SAHNI VS. THE A.C.I.T., PROP. AMIT APARTMENTS, CENTRAL CIRCLE II, NEAR SAINIK REST HOUSE, CHANDIGARH. SHIMLA. PAN: APYPS9025G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARRY RICKY RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 21.01.2014 DATE OF PRONOUNCEMENT : 30.01.2014 O R D E R PER SUSHMA CHOWLA, J.M. : THE BUNCH OF FOUR APPEALS BY THE SAME ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS) (CENTRAL), GURGAON DATED 14.6.2013 AND 14.2.2013 RELATING TO A SSESSMENT YEARS 2006-07, 2008-09, 2009-10 AND 2010-11 RESPECTIVELY PASSED UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1 961 (IN SHORT THE ACT). 2 2. THE BUNCH OF APPEALS RELATING TO THE SAME ASSESS EE THOUGH AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-T AX (APPEALS)(CENTRAL), GURGAON 14.6.2013 AND 14.2.2013 RESPECTIVELY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE IN ITA NO.868/CHD/2013 HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOM E TAX (APPEALS)(CENTRAL), GURGAON IS DEFECTIVE BOTH IN LA W AND FACTS OF THE CASE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ( CENTRAL), GURGAON IS NOT JUSTIFIED IN UPHOLDING THE ADDITION MADE BY THE LD. ASSESSING OFFICER OF A SUM OF RS.15,40,287/- U/S 68 OF THE I.T. ACT 1 961, OUT OF THE SEIZED DOCUMENTS, AS THE APPELLANT HAS ACTUALLY NOT RECEIV ED THIS AMOUNT. THE SAID ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) (CENTRAL), GURGAON IS NOT JUSTIFIED IN UPHOLDING THE ADDITION MADE BY THE LD. ASSESSING OFFICER OF A SUM OF RS.4,95,000/- U/S 68 OF THE I.T. ACT 1961 OUT OF THE SEIZED DOCUMENTS. THE SAID ADDITION IS UNCALLED FOR AND DE SERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) (CENTR AL), GURGAON IS NOT JUSTIFIED IN UPHOLDING THE ABOVE SAID ADDITIONS MADE BY THE LD., ASSESSING OFFICER AS EVEN OTHERWISE THE ABOVE SA ID AMOUNTS O RS.15,40,287/- AND RS.4,95,000/- ARE COVERED BY THE AMOUNT SURRENDERED AND DISCLOSED AS PER THE SURRENDER STATEMENT RECORD ED U/S 132(4) DURING THE COURSE OF SEARCH AND SEIZURE BEING EARNED FROM BUSINESS ACTIVITIES. HENCE, THE SAID ADDITION IS UNCALLED FOR AND DESERV ES TO BE DELETED. 5. ANY OTHER GROUND WHICH MAY BE TAKEN WITH THE PE RMISSION OF THE HON'BLE TRIBUNAL AT THE TIME OF HEARING. 4. THE BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT WERE CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE ON 11.9.2009. DU RING THE COURSE OF SEARCH AND SEIZURE OPERATION, CERTAIN DOCUMENTS WE RE FOUND AND SEIZED. THE ASSESSEE HAD MADE SURRENDER OF ADDITIONAL INCOM E OF RS.3 CRORES 3 DURING THE COURSE OF SEARCH, WHICH IN TURN WAS DIST RIBUTED OVER DIFFERENT YEARS, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AS PER THE DETAILS AVAILABLE IN THE ASSESSMENT ORDER. THE ASSESSEE WA S ASKED TO EXPLAIN THE NATURE OF ENTRIES ON THE VARIOUS DOCUMENTS FOUND AN D SEIZED DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER REJECTING THE EXPLANATION OF THE ASSESSEE IN RESPECT OF VARIOUS DOCUMENTS MADE ADDIT ION IN THE RESPECTIVE ASSESSMENT YEARS TO WHICH THE SAID DOCUMENTS RELATE D. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND SOME OF THE DOCUMENTS FOUND DURING THE COURSE WERE IN RELATION TO THE PROPERTIE S SOLD/PURCHASED BY THE ASSESSEE. WE SHALL DEAL WITH THE ADDITION IN T HE RESPECTIVE YEARS IN THE PARAS HEREINBELOW. 5. THE ASSESSEE IN APPEAL IN ITA NO.868/CHD/2013 RE LATING TO ASSESSMENT YEAR 2006-07 IS AGGRIEVED BY TWO ADDITIO NS I.E. SUM OF RS.15,40,287/- AND RS.4,95,000/-, BOTH MADE UNDER S ECTION 68 OF THE ACT. THE ASSESSEE BY WAY OF GROUND NO.4 HAD RAISED AN AL TERNATE ISSUE THAT THERE WAS NO JUSTIFICATION IN THE ADDITION AS THE S AID AMOUNT WAS COVERED BY THE SURRENDERED AMOUNT. 6. THE FIRST ADDITION OF RS.15,40,287/- IS IN RELAT ION TO DOCUMENT A-2 PAGE 12 & 13, PARTY-A-1 SEIZED FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE. PAGE NOS.12 AND 13 WAS SCANNED AND REPRO DUCED BELOW PARA 5 OF THE ASSESSMENT ORDER. PAGE NO.12 IS THE COPY OF ACCOUNT OF OPEN PLAN FROM THE WOOLWICH. AT PAGE NO.13 THE NAME OF THE B ENEFICIARY IS MENTIONED AS THAT OF THE ASSESSEE AND IS IN RESPECT OF ADVICE OF GBP 19939 EQUIVALENT TO INR RS.15,40,287/-. THE EXPLAN ATION OF THE ASSESSEE IN THIS REGARD WAS THAT IT HAD RECEIVED AN ADVANCE OF RS.8,26,180/- FROM ONE SHRI P.S.BHAMRA ON 1.3.2005 AND THEREAFTER NO AMOUNT HAD BEEN RECEIVED FROM THE SAID PURCHASER. AS REGARDS PAYMENT OF RS.15,40,287/-, IT WAS SUBMITTED THAT THE SAID P AYMENT HAD NOT BEEN 4 RECEIVED TILL DATE. IT WAS FURTHER CONTENDED BY TH E ASSESSEE BEFORE THE ASSESSING OFFICER THAT BECAUSE OF THE DISPUTED PAYM ENT, THE POSSESSION OF THE FLAT HAD ALSO NOT BEEN GIVEN. IT WAS FURTHE R PLEADED BY THE ASSESSEE THAT THE SAME COULD BE VERIFIED FROM THE S ENDERS BANK. REJECTING THE PLEA OF THE ASSESSEE, THE ASSESSING O FFICER SHOW CAUSED THE ASSESSEE TO EXPLAIN AS TO WHY SAID RECEIPT OF RS.15 ,40,287/- SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT, AS THE DOCUMENTS FOUND FROM THE POSSESSION OF THE ASSESSEE REFLECTED THE ASSESSEE TO BE THE BENEFICIARY AND FURTHER TRANSFER OF THE SAID AMOUNT ON 30.8.2005. THE ASSESSING OFFICER FURTHER OBSERVED THAT AS PER SECTION 292C OF THE ACT, THE ONUS WAS UPON THE ASSESSEE THA T THE SAID DOCUMENTS AND ENTRIES MENTIONED THEREIN DID NOT BELONG TO HIM . AS THE ASSESSEE FAILED TO PROVE THAT THE PAYMENT OF RS.15,40,287/- WAS NOT RECEIVED BY HIM, THE SAME WAS TREATED AS UNEXPLAINED CASH CREDI T UNDER SECTION 68 OF THE ACT AND ADDITION OF THE SAME WAS MADE IN THE H ANDS OF THE ASSESSEE. 7. THE CIT (APPEALS) NOTED THAT THE SAID MR.P.S.BHA MRA HAD ADVANCED ANOTHER RS.10 LACS DURING THE COURSE OF APPELLATE P ROCEEDINGS AND SUM OF RS.18,26,180/- WAS LYING WITH THE ASSESSEE. IT WAS ADMITTED BY THE CIT (APPEALS) THAT THE FLATS BOOKED BY THE SAID PERSON WERE STILL IN THE POSSESSION OF THE ASSESSEE. HOWEVER, AS THE ASSESS EE HAD FAILED TO FURNISH ANY EVIDENCE OF NON-RECEIPT OF THE AMOUNT I N DISPUTE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS UPHELD. 8. THE ASSESSEE IS IN APPEAL AGAINST THE SAME. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT THAT THE ADDITION HAD BEEN MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF LOOSE DOCUMENTS FOUND DURING THE COURSE OF SEARCH WHICH COULD NOT BE SAID TO BE BOOKS OF ACCOU NT FOR THE PURPOSE OF SECTION 68 OF THE ACT. THE LEARNED A.R. FOR THE AS SESSEE PLACED RELIANCE 5 ON S.P.GOYAL VS. DCIT [82 ITD 85 (MUM)(TM)] AND S.K .GUPTA VS. DCIT [(1999) 63 TTJ (DEL) 532]. 9. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T IN VIEW OF THE PROVISIONS OF SECTION 292C OF THE ACT WHICH ARE TO BE APPLIED TO THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS FOUND DURING TH E COURSE OF SEARCH, THE CONTENTS OF THE SAID DOCUMENTS ARE TO BE HELD T O BE TRUE. IT WAS FURTHER POINTED OUT BY THE LEARNED D.R. FOR THE REV ENUE THAT BOTH BEFORE THE ASSESSING OFFICER AND THE CIT (APPEALS) VARIOUS OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE BUT THE ASSESSEE FAILED TO FILE ANY EVIDENCE AND IN VIEW THEREOF, THERE IS NO MERIT IN THE PLEA OF T HE ASSESSEE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE FACTS OF THE PRESENT CASE, SEARCH AND SEIZURE O PERATION WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 11.9.2009. DURING THE COURSE OF SEARCH, VARIOUS DOCUMENTS WERE FOUND AND SEIZED AND THE ADDITIONS IN THE YEARS UNDER APPEAL ARE BASED ON SUCH DOCUMENTS SEIZ ED DURING THE COURSE OF SEARCH FROM THE PREMISES OF THE ASSESSEE. THE F IRST ASPECT OF THE ISSUE IS THE PRESUMPTION RAISED UNDER THE PROVISIONS OF S ECTION 292C OF THE ACT. IN VIEW OF THE DOCUMENTS BEING FOUND FROM THE POSSESSION OF THE ASSESSEE, THERE IS PRESUMPTION THAT THE SAID DOCUME NTS RELATE TO THE ASSESSEE UNLESS THE ASSESSEE BY WAY OF CONCRETE EVI DENCE ESTABLISHES THAT THE SAME DOES NOT BELONG TO IT. THE ONUS IN THIS R EGARD IS UPON THE ASSESSEE TO PROVE. HOWEVER, THE SAID PRESUMPTION U NDER SECTION 292C OF THE ACT IS AVAILABLE TO THE REVENUE FOR THE LIMITED PURPOSE OF SEARCH AND SEIZURE PROCEEDINGS BUT THE SAME CANNOT HAVE THE EF FECT OF PRESUMING THAT THE ENTRIES IN THE SEIZED DOCUMENTS REFLECT TH E INCOME OF THE ASSESSEE WHICH HAS NOT BEEN DISCLOSED BY THE ASSESS EE. IN THE FACTS OF THE PRESENT CASE, DURING THE COURSE OF SEARCH, DOC UMENTS A-2 PAGE 12 & 13, PARTY-A-1 WERE SEIZED FROM THE PREMISES OF THE ASSESSEE AND THE SAID 6 DOCUMENTS ARE SCANNED AND REPRODUCED UNDER PARA 5 O F THE ASSESSMENT ORDER. PAGE 13 IS THE ADVICE OF FOREIGN REMITTANCE MADE BY SHRI P.S.BHAMRA. THE PERUSAL OF THE SAID ADVICE REFLE CTS THAT THE BENEFICIARY OF THE PAYMENT OF RS.15,40,287/- WAS TH E ASSESSEE BEFORE US. THE SAID ADVICE IS DATED 31.8.2005 AND FALLS WITHIN THE FINANCIAL YEAR 2005-06. THE ASSESSING OFFICER IN VIEW OF THE SAID DOCUMENTS REQUISITIONED THE ASSESSEE TO EXPLAIN AS TO WHY THE SAID RECEIPTS OF RS.15,40,287/- SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. 11. THE PROVISIONS OF SECTION 68 OF THE ACT PROVIDE THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE AS SESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND WHERE THE ASSESSEE OFFERS NO EXPLANATION ABOUT ITS NATURE AND SOURCE, OR THE EXPLANATION OFFERED BY TH E ASSESSEE IS NOT SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICE R, THEN THE SAID SUM MAY BE CHARGED TO INCOME TAX AS INCOME OF THE ASSES SEE OF THAT PREVIOUS YEAR. THE PROVISIONS OF SECTION 68 OF THE ACT ARE APPLICABLE TO SUM WHICH IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE DOCUMENTS FOUND FROM THE POSSESSION OF THE ASSESSEE IN THE INSTANT CASE REFLECTS TRANSACTION OF RS.15,40,287/-, WHICH ADMIT TEDLY HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE CLAIM OF THE ASSESSEE IS THAT THOUGH THE SAID DOCUMENTS WERE FOU ND FROM HIS POSSESSION BUT THE ASSESSEE HAD NOT RECEIVED ANY AM OUNT FROM SHRI P.S.BHAMRA WHO IS THE ISSUER OF THE SAID DOCUMENTS. THE ASSESSEE ADMITTEDLY HAD RECEIVED ADVANCE OF RS.8,26,180/- ON 1.3.2005 FROM SHRI P.S.BHAMRA AGAINST BOOKING OF THE FLAT BUT THEREAFT ER HAD NOT RECEIVED ANY SUM FROM THE SAID PERSON TILL THE CLOSE OF THE ASSESSMENT PROCEEDINGS. HOWEVER, DURING THE APPELLATE PROCEED INGS THE ASSESSEE HAD CLAIMED TO HAVE RECEIVED ANOTHER SUM OF RS.10 L ACS FROM THE SAID 7 PERSON BUT BECAUSE OF THE DISPUTE OF THE PAYMENT OF RS.15,40,287/-, THE POSSESSION OF THREE FLATS BOOKED BY SHRI P.S.BHAMRA WAS NOT HANDED OVER TO THE SAID PERSON. 12. THE ISSUE ARISING IN THE PRESENT APPEAL WHETHER IN VIEW OF THE ASSESSEE NOT FURNISHING THE REQUISITE INFORMATION O F HAVING NOT RECEIVED SUM OF RS.15,40,287/-, THE SAID AMOUNT IS INCLUDED IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT UNDER SECTION 6 8 OF THE ACT. AS POINTED OUT BY US IN THE PARAS HEREINABOVE, THE PRO VISIONS OF SECTION 68 OF THE ACT ARE APPLICABLE TO ANY SUM CREDITED IN TH E BOOKS OF ACCOUNT OF THE ASSESSEE, AGAINST WHICH THE ASSESSEE HAS FAILED TO OFFER ANY EXPLANATION OR THE EXPLANATION OFFERED BY THE ASSES SEE IS UNSATISFACTORY IN THE OPINION OF THE ASSESSING OFFICER, THEN SUCH SUM IS THE DEEMED INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CA SH CREDIT IN THE BOOKS OF ACCOUNT UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. IN THE FACTS OF THE CASE BEFORE US, THE ASSESSEE WAS FOUND TO BE IN POSSESSION OF LOOSE DOCUMENTS WHICH WERE SEIZED DURING THE COURSE OF SEARCH OPERATION CARRIED OUT AT THE PREMISES OF THE ASSESSEE. THE E NTRIES OF SUCH LOOSE DOCUMENTS WERE TREATED AS DEEMED INCOME OF THE ASSE SSEE BEING UNEXPLAINED UNDER SECTION 68 OF THE ACT. 13. IN THE TOTALITY OF THE CIRCUMSTANCES, WHERE THE ADDITION IS LINKED TO LOOSE DOCUMENTS FOUND FROM THE POSSESSION OF THE AS SESSEE, WHICH TRANSACTION IN TURN WAS NOT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, WE FIND NO MERIT IN INVOKING OF THE PROVI SIONS OF SECTION 68 OF THE ACT. THE SAID PROVISIONS ARE APPLICABLE IN CAS ES WHERE A SUM IS FOUND CREDITED TO THE BOOKS OF ACCOUNT OF THE ASSES SEE AND THE ASSESSEE EITHER OFFERS NO EXPLANATION OR HAS FAILED TO OFFER PROPER EXPLANATION, IN RESPECT OF THE SAID SUM OF MONEY, THEN THE SAID SUM S ARE TO BE TREATED AS INCOME OF THE ASSESSEE BY THE ASSESSING OFFICER. IN THE TOTALITY OF THE 8 FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO MER IT IN INVOKING OF PROVISIONS OF SECTION 68 OF THE ACT IN THE PRESENT CASE WHERE LOOSE DOCUMENTS WERE FOUND FROM THE POSSESSION OF THE ASS ESSEE EVIDENCING TRANSACTION WHICH HAVE NOT BEEN ENTERED IN THE BOOK S OF ACCOUNT OF THE ASSESSEE. ACCORDINGLY, WE DELETE THE ADDITION OF R S.15,40,287/- MADE UNDER SECTION 68 OF THE ACT. THE GROUND OF APPEAL NO.2 RAISED BY THE ASSESSEE IS THUS ALLOWED. 14. THE SECOND ISSUE RAISED IN THE PRESENT APPEAL I S AGAINST THE ADDITION OF RS.4,95,000/- AGAIN MADE UNDER SECTION 68 OF THE ACT. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE DOCU MENT A-2, PAGES 44 TO 46 , PARTY-A-I WERE SEIZED FROM THE RESIDENTIAL PRE MISES OF THE ASSESSEE. THE SAID DOCUMENTS RELATE TO AN AGREEMENT DATED 27. 8.2005 FOR SALE OF 2 BHK FLAT AT 4 TH FLOOR IN B BLOCK OF AMIT APARTMENTS FOR CONSIDERAT ION OF RS.13 LACS TO ONE SHRI SHAM LAL SHARMA. THE ADVAN CE OF RS.1 LAC WAS PAID IN CASH ON 6.6.2005 FOR THE SAID FLAT. FURTHE R DOCUMENT AT PAGE 44 MARKED AS ANNEXURE A-2 WAS IN HAND WRITTEN PAGE AND HAD CONTAINED DETAILS OF PAYMENT RECEIVED FROM SHRI SHAM LAL SHAR MA AND SMT.SUSHMA SHARMA. THE SAID DOCUMENTS ARE SCANNED AND REPRODU CED BY THE ASSESSING OFFICER UNDER PARA 6 OF THE ASSESSMENT O RDER. AS PER THE SAID DOCUMENTS THE PAYMENTS WERE RECEIVED BOTH IN CASH A ND IN CHEQUE AND THE TOTAL AMOUNT OF CASH RECEIVED AS PER THE SAID D OCUMENTS WERE RS.6.45 LACS. THE ASSESSEE WAS ASKED TO FILE COPY OF THE C ONVEYANCE DEED AND ALSO RECONCILE THE TRANSACTION RECORDED ON THESE DO CUMENT WITH THE REGULAR BOOKS OF ACCOUNT. IN RESPONSE, THE ASSESSE E FILED COPY OF SALE DEED AND ALSO ADMITTED THAT THE AMOUNT RECEIVED AGA INST THE SAID FLAT WAS RECORDED IN THE BOOKS OF ACCOUNT. HOWEVER, ALL THE RELATED TRANSACTIONS WERE NOT REFLECTED IN THE BOOKS OF ACCOUNT. THE AS SESSING OFFICER NOTED THAT THE CONVEYANCE DEED DATED 21.12.2005 REFLECTED PAYMENT OF RS.14 9 LACS I.E. CHEQUE PAYMENT OF RS.12.50 LACS AND CASH PAYMENT OF RS.1.50 LACS. THE ASSESSING OFFICER THUS HELD THAT THE ASS ESSEE HAD RECEIVED RS.4,95,000/- OUT SIDE THE BOOKS OF ACCOUNT AND THE SAME WERE TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . THE CIT (APPEALS) UPHELD THE ORDER OF THE ASSESSING OFFICER REJECTING THE PLEA OF THE ASSESSEE IN THIS REGARD. 15. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT T HAT THE PERUSAL OF THE SAID LOOSE DOCUMENTS WOULD REFLECT THAT AGAINST THE FIGURE OF CASH, THERE IS MENTION TO BE CHECKED AND IT WAS FURTHER POINTED OUT BY THE LEARNED A.R. FOR THE ASSESSEE THAT NO ADDITION COUL D BE MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE ABOVE DOCUMENTS AS THE CASH, IF ANY, WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF ALLIED E XPENDITURE. 16. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANC E ON THE ORDER OF THE AUTHORITIES BELOW AND POINTED OUT THAT THE ENTR IES ON THE SAID DOCUMENTS CLEARLY REFLECTED THE ASSESSEE TO HAVE RE CEIVED CASH OVER AND ABOVE THE RECORDED PAYMENTS IN THE BOOKS OF ACCOUNT AND THE SAME MERITS TO BE INCLUDED IN THE HANDS OF THE ASSESSEE. 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PERUSAL OF THE SEIZED DOCUMENTS REFLECTS THE TRANSA CTION OF THE ASSESSEE WITH SMT.SUSHMA SHARMA AND SHRI SHAM LAL SHARMA, WH O ADMITTEDLY HAD BOUGHT THE FLAT FROM THE ASSESSEE IN AMIT APARTMENT S. THE DOCUMENTS REFLECT THAT IN ADDITION TO CHEQUE PAYMENT OF RS.12 .50 LACS, THERE WAS CASH PAYMENT OF RS.6 LACS TOTALING TO RS.18.50 LACS . THE ASSESSEE ADMITTEDLY IN ITS BOOKS OF ACCOUNT HAS REFLECTED PA YMENT OF RS.14 LACS I.E. CHEQUE PAYMENT OF RS.12.50 LACS AND CASH PAYM ENT OF RS.1.50 LACS. IN ADDITION, THE ASSESSEE HAD RECEIVED CASH OF RS.4 5,000/- BEING HALF SHARE OF THE COST OF PAPERS OF RS.90,000/- AS PER T HE NOTINGS ON THE SAID 10 PAGE. THE TOTAL CASH PAYMENT RECEIVED BY THE ASSE SSEE WAS THUS RS.6.45 LACS OUT OF WHICH THE ASSESSEE HAD ACCOUNTED FOR RS .1.50 LACS. FURTHER SUM OF RS.45,000/- WAS FOR THE PURCHASE OF PAPERS A ND THE SAME CANNOT BE ADDED AS INCOME OF THE ASSESSEE. HOWEVER, THE B ALANCE AMOUNT OF RS.4.50 LACS WHICH HAS NOT BEEN REFLECTED BY THE AS SESSEE AS PART OF THE SALE CONSIDERATION IN HIS BOOKS OF ACCOUNT, IS TO B E ADDED AS INCOME OF THE ASSESSEE IN THE INSTANT ASSESSMENT YEAR. WE F IND NO MERIT IN THE PLEA OF THE ASSESSEE THAT IN FRONT OF THE FIGURE OF CASH OF RS.6 LACS, THERE IS MENTION TO BE CHECKED. THE PERUSAL OF THE DOC UMENTS ON THE REVERSE SIDE ALSO REFLECTS MENTION OF RS.12,500/- + RS.600 0/- TOTALING TO RS.18,500/-, WHICH TOTALED TO THE FIGURES OF THE TR ANSACTION UNDERTAKEN BY THE ASSESSEE, CLEARLY REFLECT THAT THE ASSESSEE HAD FAILED TO ACCOUNT FOR SUM OF RS.4.50 LACS IN ITS BOOKS OF ACCOUNT. T HE SAID SUM IS TO BE INCLUDED AS INCOME OF THE ASSESSEE. UPHOLDING THE ORDER OF THE CIT (APPEALS), WE DISMISS GROUND NO.3 RAISED BY THE ASS ESSEE. 18. NOW COMING TO THE PLEA OF THE ASSESSEE THAT BOT H THE ABOVE SAID AMOUNTS WERE INCLUDED IN THE SURRENDER OF RS.3 CROR ES. WE FIND NO MERIT IN THE SAID PLEA OF THE ASSESSEE AS THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS ONLY DECLARED ADDITIONAL INCOME O F RS.45,000/- IN RELATION TO THE LAND AT SALOGRA AND THE SAME CANNOT OFFSET ADDITION MADE IN THE HANDS OF THE ASSESSEE. REJECTING THE SAME, WE DISMISS THE GROUND NO.4 RAISED BY THE ASSESSEE. 19. THE ASSESSEE IN ITA NO.416/CHD/2013 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (I) THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS), GURGAON IS DEFECTIVE BOTH IN LAW AND FACTS OF THE CASE. (II) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GURGAON IS NOT JUSTIFIED IN UP HOLDING THE ADDITION OF RS.12,50,000 ON ACCOUNT OF CASH CREDIT U/S 68 OF TH E I.T. ACT WHEN NO SUCH 11 AMOUNT WAS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORDED IN THE BOOKS OF ACCOUNT. EVEN OTHERWISE THE SAME IS COVERED UNDER T HE SURRENDERED AMOUNT VIDE SURRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DE LETED BEING MADE MERELY ON SURMISES AND CONJECTURES. (III) THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GURGAON IS NOT JUSTIFIED IN UP HOLDING THE ADDITION OF RS.6,00,000 ON ACCOUNT OF CASH CREDIT U/S 68 OF THE I.T. ACT WHEN NO SUCH AMOUNT WAS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORD ED IN THE BOOKS OF ACCOUNT. EVEN OTHERWISE THE SAME IS COVERED UNDER THE SURREN DERED AMOUNT VIDE SURRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. (IV) ANY OTHER GROUND WHICH MAY BE TAKEN WITH THE PERMISSION OF THE HON'BLE TRIBUNAL AT THE TIME OF HEARING. 20. BOTH THE ISSUES RAISED BY THE ASSESSEE IN THE G ROUNDS OF ARE AGAINST THE ADDITION MADE UNDER SECTION 68 OF THE A CT AMOUNTING TO RS.12,50,000/- AND RS.6 LACS. IN THE GROUNDS OF AP PEAL RAISED BY THE ASSESSEE, THE ALTERNATE PLEAS HAVE BEEN RAISED; ONE AGAINST THE ADDITION MADE IN THE HANDS OF THE ASSESSEE AND THE SECOND AG AINST THE SAID AMOUNT BEING COVERED UNDER THE SURRENDERED AMOUNT. THE TO TAL ADDITION MADE IN THE HANDS OF THE ASSESSEE IS RS.18,50,000/-. THE P ERUSAL OF THE ASSESSMENT ORDER REFLECTS THAT FOR THE YEAR UNDER A PPEAL I.E. ASSESSMENT YEAR 2008-09, THE ASSESSEE HAD DECLARED ADDITIONAL INCOME OF RS.2,77,000/- ONLY ON ACCOUNT OF LAND AT CHAMBAGHAT INCLUSIVE OF STAMP DUTY. THE ADDITIONAL INCOME OFFERED BY THE ASSESSE E BEING FOR SPECIFIC PURPOSE AND OF SUCH A LOWER VALUE CANNOT OFFSET THE ADDITION OF RS.18,50,000/- MADE IN THE HANDS OF THE ASSESSEE. THE ALTERNATE PLEA RAISED BY THE ASSESSEE IN THIS REGARD THUS DISMISSE D. 21. NOW COMING TO THE FACTS OF THE CASE AS IN THE E ARLIER YEARS, DURING THE YEAR UNDER CONSIDERATION ALSO CERTAIN DOCUMENTS WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPER ATIONS AT THE PREMISES OF THE ASSESSEE. THE FIRST ADDITION OF RS.12,50,00 0/- IS IN RELATION TO DOCUMENT A-1, PAGE 47, PARTY-A-1 SEIZED FROM THE RE SIDENTIAL PREMISES 12 OF THE ASSESSEE. THE SAID DOCUMENTS ARE SCANNED AN D REPRODUCED UNDER PARA 5 OF THE ASSESSMENT ORDER. THE DOCUMENT AT PA GE 47 SEIZED FROM THE PREMISES OF THE ASSESSEE WAS A HAND WRITTEN DOCUMEN T CONTAINING DETAILS OF PAYMENT OF RS.16,50,000/-, AS PER THE ASSESSING OFFICER RECEIVED DATE-WISE. AS PER THE ASSESSING OFFICER, THE YEAR- WISE BREAK-UP OF THE RECEIPT WAS RS.12,50,000/- IN FINANCIAL YEAR 2007-0 8 AND RS.4 LACS IN THE FINANCIAL YEAR 2008-09. THE EXPLANATION OF THE ASS ESSEE WITH REGARD TO THE SAID DOCUMENT WAS THAT IT WAS ONLY A TENTATIVE PAYMENT SCHEDULE OF PAYMENT TO BE RECEIVED AGAINST SOME FLATS AND REFLE CTED CALCULATION ON ROUGH PAPER DURING THE COURSE OF BUSINESS OF THE AS SESSEE. THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE A SSESSEE AS THE DATES AS WELL AS RECEIPTS, AGAINST SUCH DATES WERE MENTIONED ON THE DOCUMENT AND ALSO THE FACT THAT THE SAID DOCUMENT WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. THE RECEIPTS RECORDED ON THE SAID DOCUME NTS WERE TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . THE ADDITION OF RS.12,50,000/- WAS MADE IN THE HANDS OF THE ASSESSE E. 22. SIMILARLY ANOTHER DOCUMENT A-1, PAGE 48, PARTY- A-1 WAS SEIZED FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE, WHIC H WAS HAND WRITTEN DOCUMENT CONTAINING DETAILS OF PAYMENT DATE-WISE TO TALING TO RS.14 LACS AND CASH OF RS.40,000/-. THE EXPLANATION OF THE AS SESSEE WITH REGARD TO THE SAID DOCUMENT WAS REJECTED AND IT WAS TREATED A S UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. THE ADDITION O F RS.6 LACS WAS MADE BEING RELATABLE TO THE YEAR UNDER CONSIDERATION. F URTHER THE SAID DOCUMENT REFLECTED RECEIPT OF RS.4 LACS RELATABLE T O THE FINANCIAL YEAR 2008-09 AND RS.4,40,000/- TO THE FINANCIAL YEAR 200 9-2010. BOTH THE ADDITIONS WERE UPHELD BY THE CIT (APPEALS). 13 23. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT T HAT THE PERUSAL OF THE SAID DOCUMENT FOUND FROM THE POSSESSION OF THE ASSESSEE, WHICH IN TURN WERE REPRODUCED UNDER PARA 5 OF THE ASSESSMENT ORDER WOULD REFLECT THAT NO MENTION OF ANY PARTY, NO NAME AND NO PARTIC ULARS OF RECEIPT ARE AVAILABLE ON THE SAID DOCUMENT. IT ALSO DOES NOT R EFLECT WHETHER IT IS SALE OR PURCHASE UNDERTAKEN BY THE ASSESSEE AND THO UGH IT DOES MENTION DATES AND CERTAIN AMOUNTS IN FRONT OF THE SAID DATE S. AT BEST, THE SAID DOCUMENT IS DUMB DOCUMENT AND NO CREDENCE COULD BE PLACED ON THE SAID DOCUMENT. RELIANCE WAS PLACED ON THE ORDER OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF JAGDAMBA RICE MILLS VS. ACIT [67 TTJ (CHD) 838, ON THE DECISION OF THE HON'BLE DELHI HIG H COURT IN CIT VS. GIRISH CHAUDHARY [296 ITR 619 (DEL)] AND CIT VS. S. M.AGGARWAL [293 ITR 43 (DEL)]. 24. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANC E ON THE ORDERS OF THE AUTHORITIES BELOW. 25. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING VIDE GROUND NOS.2 AND 3 RAISED BY THE ASSESSEE ARE IN RELATION TO THE NOTINGS ON THE LOOSE DOCUMENTS FOUN D FROM THE PREMISES OF THE ASSESSEE DURING THE COURSE OF SEARCH. THE F IRST DOCUMENT IS DOCUMENT-1, PAGE 47, PARTY-A-1 SEIZED FROM THE RESI DENTIAL ENTRIES AS FOLLOWS: DATE RECEIPTS 15.09.2007 RS. 50,000/- 17.06.2008 RS.1,00,000/- 29.02.2008 RS.3,00,000/- 02.11.2007 RS.4,00,000/- 16.03.2008 RS.4,00,000/- 23.10.2008 RS.4,00,000/- RS.16,50,000/- 14 26. THE PERUSAL OF THE SAID DOCUMENT, WHICH IS SCAN NED AND REPRODUCED UNDER PARA 5 OF THE ASSESSMENT ORDER REFLECTS THAT THERE IS NO MENTION OF NAME OF ANY PARTY ON THE SAID PAGE. NO NAME IS MEN TIONED ON THE SAID DOCUMENT, NOR IT IS CLEAR WHETHER THE SAID NOTINGS ON THE DOCUMENT RELATED TO RECEIPT OF MONEY BY THE ASSESSEE OR ANY OTHER PERSON OR PAYMENT OF ANY MONEY BY ASSESSEE OR ANY OTHER PERSO N. ADMITTEDLY, UNDER THE PROVISIONS OF SECTION 292C OF THE ACT, TH E PRESUMPTION IS THAT THE DOCUMENT FOUND FROM THE POSSESSION OF THE ASSES SEE DURING THE COURSE OF SEARCH BELONGS TO THE ASSESSEE AND THE EN TRIES ON THE SAID DOCUMENT RELATE TO THE ASSESSEE. HOWEVER, THE ENTR IES OF ANY DOCUMENT SHOULD GIVE A SENSIBLE PICTURE OF THE TRANSACTION U NDERTAKEN BY THE ASSESSEE AND IN THE ABSENCE OF THE SAME, THE SAID D OCUMENT, AT BEST, WOULD BE A DUMB DOCUMENT. THE PERUSAL OF PAGE 47 OF THE DOCUMENT- A-1 FOUND FROM THE POSSESSION OF THE ASSESSEE REFLE CTED CERTAIN DATES AND CERTAIN AMOUNTS TOTALING TO RS.16,50,000/- AND THE YEAR-WISE BREAK-UP OF THE AMOUNTS WERE RS.12,50,000/- RELATABLE TO ASSESS MENT YEAR 2008-09 AND RS.4 LACS RELATABLE TO ASSESSMENT YEAR 2009-10. HOWEVER, THE PERUSAL OF THE AFORESAID DOCUMENT DOES NOT REFLECT WHETHER THE AMOUNTS HAVE BEEN RECEIVED BY THE ASSESSEE FROM ANY PERSON WHATSOEVER OR THE SAME REFLECT THE AMOUNTS TO BE RECEIVED BY THE ASSE SSEE DURING THE COURSE OF CARRYING ON ITS BUSINESS. THUS IN THE AB SENCE OF ANY NAME/NAMES ON THE SAID DOCUMENT AND IT NOT BEING CL EAR WHETHER THE DOCUMENT RELATED TO ANY SALE OR PURCHASE OF ANY PRO PERTY BY THE ASSESSEE, THE SCRAMBLING ON THE SAID LOOSE DOCUMENT CANNOT BE ATTRIBUTED TO THE ASSESSEE AND ADDITION BE MADE IN THE HANDS O F THE ASSESSEE AS UNEXPLAINED CASH CREDIT UNDER THE PROVISIONS OF SEC TION 68 OF THE ACT. WE HOLD THAT THE SAID DOCUMENT FOUND FROM THE POSSE SSION OF THE ASSESSEE WAS A DUMB DOCUMENT AND NO ADDITION COULD BE MADE IN THE 15 HANDS OF THE ASSESSEE ON THE BASIS OF SUCH DOCUMENT EITHER DURING THE ASSESSMENT YEAR 2008-09 OR IN THE SUCCEEDING ASSESS MENT YEAR. 27. SIMILARLY, THE DOCUMENT-A-1, PAGE 48, PARTY-A-1 SEIZED FROM THE PREMISES OF THE ASSESSEE REFLECT CERTAIN AMOUNTS AN D DATES THEREIN IS IN THE NATURE OF DUMB DOCUMENT AS IT DOES NOT REFLECT ANY NAME OF ANY PARTY AND/OR IT RELATES TO ANY SALE OR PURCHASE OF ANY PR OPERTY BY THE ASSESSEE OR ANY OTHER PERSON WHATSOEVER. MERELY BECAUSE THE ASSESSEE HAD NOT RECONCILED THE SAID FIGURE AS THE DOCUMENT SEIZED F ROM THE PREMISES OF THE ASSESSEE WAS A DUMB DOCUMENT, DOES NOT MERIT AD DITION IN THE HANDS OF THE ASSESSEE BEING UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. THE ASSESSING OFFICER IN THE INSTANT YEAR HAD MADE ADDITION OF RS.6 LACS IN THE HAND OF THE ASSESSEE AND IN ASSESS MENT YEAR 2009-10 HAD MADE ADDITION OF RS.4 LACS AND THEREAFTER IN 2010-1 1 ADDITION OF RS.4,50,000/- WAS MADE IN THE HANDS OF THE ASSESSEE . IN VIEW OF OUR REASONING IN PARA HEREINABOVE WE FIND NO MERIT IN T HE AFORESAID ADDITION IN THE HANDS OF THE ASSESSEE AND THE SAME IS DIRECT ED TO BE DELETED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 28. IN ITA NO.511/CHD/2013, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (I) THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), GURGAON IS DEFECTIVE BOTH IN LAW AND FACTS OF THE CASE. (II) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GURGAON IS NOT JUSTIFIED IN UP HOLDING THE ADDITION OF RS. 4,00,000 ON THE BASIS OF HAND WRITTEN DOCUMENT (PAG E 47) ON ACCOUNT OF CASH CREDIT U/S 68 OF THE I.T. ACT WHEN NO SUCH AMOUNT W AS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORDED IN THE BOOKS OF ACCOUNT. EVEN OTHERWISE THE SAME IS COVERED UNDER THE SURRENDERED AMOUNT VIDE SURRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. TH IS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SUR MISES AND CONJECTURES. 16 (III) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GURGAON WAS NOT JUSTIFIED IN U PHOLDING THE ADDITION OF RS.4,00,000 MADE BY THE A.O. ON THE BASIS OF HAND W RITTEN DOCUMENT (PAGE 48) ON ACCOUNT OF CASH CREDIT U/S 68 OF THE I.T. ACT WH EN NO SUCH AMOUNT WAS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORDED IN THE B OOKS OF ACCOUNT. EVEN OTHERWISE THE SAME IS COVERED UNDER THE SURRENDERED AMOUNT VIDE SURRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. (IV) ANY OTHER GROUND WHICH MAY BE TAKEN WITH THE P ERMISSION OF THE HON'BLE TRIBUNAL AT THE TIME OF HEARING. 30. THE ISSUES RAISED IN THE PRESENT APPEAL ARE AGA INST THE ADDITION OF RS.4 LACS ON THE BASIS OF ONE DOCUMENT AS REFERRED TO IN ASSESSMENT YEAR 2008-09. WE HAVE ALREADY ADJUDICATED THE ISSUE IN I TA NO.416/CHD/2013 AND THE ADDITION IN THE HANDS OF THE ASSESSEE IN TH E INSTANT YEAR HAS BEEN MADE ON THE BASIS OF DOCUMENTS REFERRED TO BY THE A SSESSING OFFICER IN ASSESSMENT YEAR 2008-09 AS IT CONTAINED THE DETAILS OF ENTRIES RELATING TO DIFFERENT YEARS. IN LINE WITH OUR REASONING IN TH E PARAS HEREINABOVE WHILE DECIDING THE APPEAL IN ITA NO.416/CHD/2013 RE LATING TO ASSESSMENT YEAR 2008-09 WE FIND NO MERIT IN THE ADD ITION MADE BY THE ASSESSEE ON THE BASIS OF THE SCRAMBLING ON PAPER WH ICH IS A DUMB DOCUMENTS. ACCORDINGLY, WE DIRECT THE ASSESSING OF FICER TO DELETE THE ADDITIONS OF RS.4 LACS PLUS RS.4 LACS IN ASSESSMENT YEAR 2009-10. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 31. IN VIEW OF OUR ALLOWING THE APPEAL OF THE ASSES SEE ON MERITS WE ARE NOT ADJUDICATING THE ALTERNATE ISSUE RAISED BY THE ASSESSEE WITH REGARD TO THE SAID AMOUNTS BEING PART OF THE SURRENDER MADE B Y THE ASSESSEE. 32. NOW COMING TO ITA NO.512/CHD/2013 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (I) THAT THE ORDER OF THE LEARNED COMMISSIONER OF I NCOME TAX(APPEALS), GURGAON IS DEFECTIVE BOTH IN LAW AND FACTS OF THE CASE. 17 (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX(APPEALS) GURGAON IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS. 13,00,000 U/S 69B OF THE L.T. ACT WHEN NO SUCH AMOU NT WAS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORDED IN THE BOOKS OF ACCO UNT. EVEN OTHERWISE THE SAME IS COVERED UNDER THE SURRENDERED AMOUNT VIDE S URRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. (III) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX(APPEALS) GURGAON IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.4,00,000 ON ACCOUNT OF CASH CREDIT U/S 68 OF THE L.T. ACT WH EN NO SUCH AMOUNT WAS EITHER RECEIVED BY THE ASSESSEE OR FOUND RECORDED IN THE B OOKS OF ACCOUNT. EVEN OTHERWISE THE SAME IS COVERED UNDER THE SURRENDERED AMOUNT VIDE SURRENDER LETTER AND STATEMENT RECORDED U/S 132(4) DURING THE COURSE OF SEARCH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED BEING MADE MERELY ON SURMISES AND CONJECTURES. (IV) THAT ANY OTHER GROUND WHICH MAY BE TAKEN WITH THE PERMISSION OF THE HON'BLE TRIBUNAL AT THE TIME OF HEARING. 33. THE GROUND NO.3 RAISED BY THE ASSESSEE IS AGAIN ST THE ADDITION OF RS.4 LACS BASED ON THE LOOSE DOCUMENTS FOUND AND AS REFERRED TO IN ITA NO.416/CHD/2013. IN VIEW OF OUR REASONING IN THE S AID APPEAL, WE FIND NO MERIT IN THE SAID ADDITION IN THE HANDS OF THE A SSESSEE AND THE SAME IS DIRECTED TO BE DELETED. 34. THE ISSUE IN GROUND NO.2 RAISED BY THE ASSESSEE IS AGAINST THE ADDITION OF RS.13 LACS UNDER SECTION 69B OF THE ACT . 35. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH PROCEEDINGS AT THE PREMISES OF THE ASSESSEE, SURREN DER OF RS.3 CRORES WAS MADE BY THE ASSESSEE AND BREAK-UP OF SURRENDERED IN COME RELATING TO ASSESSMENT YEAR 2010-11 WAS RS.1.55 CRORES I.E. ON ACCOUNT OF CASH AND STOCKS SURRENDERED. DURING THE COURSE OF SEARCH, DOCUMENT-A-1, PAGE 4 TO 6, PARTY-A-1 WAS SEIZED FROM THE RESIDENTIAL PRE MISES OF THE ASSESSEE. PAGES 1 AND 2 OF THE SEIZED DOCUMENT WERE AN AGREEM ENT DATED 25.9.2009 BETWEEN SHRI RAJAN BHALLA AND SHRI SAJAN BHALLA AND THE ASSESSEE FOR SALE OF 2BHK FLAT IN G-BLOCK IN AMIT APARTMENTS FOR CONSIDERATION OF 13 18 LACS. AS PER THE SAID AGREEMENT THE ENTIRE SALE CO NSIDERATION RECEIVED FROM THE PARTY OF RS.13 LACS WAS PAID BACK IN CASH BY THE ASSESSEE. THE ASSESSEE WAS ASKED TO FURNISH THE COPY OF SALE DEED AND RECONCILE THE TRANSACTION WITH HIS BOOKS OF ACCOUNT. THE EXPLANA TION OF THE ASSESSEE IN THIS REGARD WAS AS UNDER: IT IS HEREBY SUBMITTED AGREEMENT DATED 21.05.2009 WAS CANCELLED WHICH WAS CROSSED COPIES ALREADY WITH YOU. THEREFORE NO TRANSACTION OF RS.1 3.00 LACS WAS MADE. IT IS FURTHER SUBMITTED THAT THIS FLAT CONSISTING OF TWO BED ROOMS AT G BLOCK AT AMIT APARTMENT OF SH.RAJAN BHALLA AND SH.SAJAN BHALLA SO LD TO SH.SUKHMINDER SINGH BAINS AS PER THEIR SALE DEED OF FLAT NO.F-3, BLOCK G OF DATED 7.10.2009. 36. THE PLEA OF THE ASSESSEE THAT THE SAID DOCUMENT WAS CANCELLED AND CROSSED AND WAS NOT ACCEPTED BY THE ASSESSING OFFIC ER AND THE ENTIRE CONSIDERATION OF RS.13 LACS ALLEGEDLY PAID BY THE A SSESSEE TOWARDS PURCHASE OF SAID FLAT WAS TREATED AS UNEXPLAINED IN VESTMENT UNDER SECTION 69B OF THE ACT AND WAS ADDED AS INCOME OF T HE ASSESSEE. THE CIT (APPEALS) UPHELD THE ADDITION MADE BY THE ASSES SING OFFICER. 37. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT T HAT BOTH SHRI RAJAN BHALLA AND SHRI SAJAN BHALLA HAD SOLD THEIR FLAT TO ONE SHRI SUKHMINDER SINGH BAINS AND SALE DEED WAS EXECUTED BETWEEN THE TWO FOR CONSIDERATION OF RS.15 LACS AS PER THE REGISTERED S ALE DEED PLACED AT PAGES 17 TO 27 OF THE PAPER BOOK. IT WAS VEHEMENTL Y STRESSED BY THE LEARNED A.R. FOR THE ASSESSEE THAT THE SAID FLAT, W HICH WAS ORIGINALLY SOLD BY THE ASSESSEE WAS NEVER PURCHASED BACK BY THE ASS ESSEE AND HENCE THERE WAS NO MERIT IN THE AFORESAID ADDITION. 38. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANC E ON THE ORDERS OF THE AUTHORITIES BELOW. 19 39. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. DURING THE COURSE OF SEARCH OPERATION AT THE PREMIS ES OF THE ASSESSEE, AN AGREEMENT TO SALE DATED 21.5.2009 BETWEEN SHRI RAJA N BHALLA AND SHRI SAJAN BHALLA AND THE ASSESSEE WAS FOUND. THE SAID AGREEMENT WAS FOR SALE OF FLAT BY THE ASSESSEE AND WAS CANCELLED. TH E ASSESSING OFFICER ALLEGED THAT THE ENTIRE SALE CONSIDERATION OF RS.13 LACS RECEIVED BY THE ASSESSEE FROM THEM WAS PAID BACK IN CASH BY SHRI O. P.SAHNI. THE EXPLANATION OF THE ASSESSEE, ON THE OTHER HAND, WAS THAT THOUGH IT HAD SOLD ONE FLAT TO SHRI RAJAN BHALLA AND SHRI SAJAN B HALLA, BUT THEREAFTER THE SAID FLAT WAS SOLD BY THEM TO A THIRD PARTY AND NOT TO THE ASSESSEE. THE ASSESSEE HAS PLACED ON RECORD COPY OF SALE DEED FOR A TOTAL CONSIDERATION OF RS.15 LACS UNDER WHICH SALE DEED H AS BEEN EXECUTED BETWEEN SHRI RAJAN BHALLA, SHRI SAJAN BHALLA AND SH RI SUKHMINDER SINGH, WHO IN TURN HAD PAID THE SAID AMOUNT OF RS.1 5 LACS BY WAY OF DIFFERENT CHEQUES AS MENTIONED IN SALE DEED. COPY OF THE SALE DEED IS PLACED AT PAGES 17 TO 27 OF THE PAPER BOOK. IN VIE W OF THE SAID REGISTERED DOCUMENT OF SALE EXECUTED BETWEEN SHRI R AJAN BHALLA AND SHRI SAJAN BHALLA, VENDOR AND SHRI SUKHMINDER SINGH , VENDEE IN RESPECT OF THE SAID FLAT AND THE SALE CONSIDERATION HAVING PAID BY THE VENDEE IN CHEQUE, WE FIND NO MERIT IN THE ORDER OF THE ASSESS ING OFFICER UNDER WHICH IT HAS BEEN ALLEGED THAT THE SALE CONSIDERATI ON OF RS.13 LACS RECEIVED FROM SHRI RAJAN BHALLA AND SHRI SAJAN BHAL LA HAS BEEN PAID BACK BY THE ASSESSEE IN CASH. IN THE ABSENCE OF AN Y DOCUMENTS TO THE CONTRARY AND IN VIEW OF THE EVIDENCE FILED BY THE A SSESSEE WE REVERSE THE ORDER OF THE CIT (APPEALS) IN THIS REGARD AND DIRECT THE ASSESSING 20 OFFICER TO ALLOW RELIEF OF RS.13 LACS. THE GROUND S OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 40. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NOS.868,416 & 511/CHD/2013 ARE PARTLY ALLOWED AND IN ITA NO.512/C HD/2013 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH JANUARY, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH