Dr. Naresh Mittal, Panchkula V. DCIT, Chandigarh

ITA 538/CHANDI/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1613 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: N K SAINI ITP
• Keywords: Unexplained investment; Document seized; Documents seized
• Section: 153A; 131; 132; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 538/CHD/2015 ASSESSMENT YEAR: 2009-10 DR. NARESH MITTAL, VS THE DCIT, HOUSE NO. 212, CENTRAL CIRCLE-II, SECTOR 6, CHANDIGARH. PANCHKULA. PAN: AEEPM077R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K.SAINI,ITP RESPONDENT BY : SHRI RAVI SARANGAL,CIT-DR DATE OF HEARING : 24.10.2016 DATE OF PRONOUNCEMENT : 04.11.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) OSD, GURGAON DATED 12.03.2015 FOR ASSESSMENT YEAR 2009-10, CHALLENGING THE UPHOLDING OF THE ADDITION OF RS. 50 LACS ON ACC OUNT OF UNEXPLAINED INVESTMENT UNDER SECTION 69B OF THE INCOME TAX ACT. 2. BRIEF FACTS OF THE CASE ARE THAT SEARCH & SEIZU RE OPERATION UNDER SECTION 132 OF THE ACT WAS CONDUCTE D ON 17.11.2010 IN DR. NARESH MITTAL GROUP OF CASES. 2 COPIES OF THE SEIZED DOCUMENTS WERE PROVIDED TO THE ASSESSEE. THE ASSESSEE FILED RETURN UNDER SECTION 153A OF THE ACT AND ATTENDED THE PROCEEDINGS BEFORE ASSESSING OFFICER TIME TO TIME AND FURNISHED THE INFORMATION CALLED FOR. THE ASSESSING OFFICER REFE RRED TO PAGE NO. 33 OF DOCUMENT A-3 SEIZED FROM HOUSE NO. 2 12 SECTOR 6, PANCHKULA. THIS DOCUMENT IS RECEIPT DATE D 23.10.2008 OF RS. 50 LACS AS ADVANCE BY SMT. METHLE SH SHARMA, W/O SHRI GEORGE HEATH, GPA OF SMT. UMA RANI , HOUSE NO. 1025 SECTOR 4, PANCHKULA FROM DR. NARESH MITTAL (ASSESSEE). THE SAID ADVANCE OF RS. 50 LACS HAS BEEN PAID BY ASSESSEE TOWARDS PURCHASE OF HOUSE NO. 53, SECTOR 6, PANCHKULA. AS PER SAID DOCUMENT, TOT AL CONSIDERATION OF THE SAID PROPERTY HAS BEEN FIXED A T RS. 4.50 CR. THE SCANNED COPY OF THE DOCUMENT HAS BEEN REPRODUCED AT PAGE 3 OF THE ASSESSMENT ORDER AND CO PY OF THE SAME IS ALSO FILED AT PAGE 7 OF THE PAPER BO OK. THIS DOCUMENT WAS CONFRONTED TO THE ASSESSEE AND RELEVANT EXTRACT OF HIS STATEMENT RECORDED UNDER SE CTION 132(4) ARE REPRODUCED IN THE ASSESSMENT ORDER IN WH ICH THE ASSESSEE AFTER SEEING THE RECEIPT EXPLAINED THA T THIS WAS ENTERED BY HIM ON BEHALF OF THE SHRI S.P.SINGLA , OWNER OF SINGLA CONSTRUCTION, WHO LIVES IN SECTOR 9 , PANCHKULA AND RS. 50 LACS ADVANCES WAS GIVEN BY HIM THROUGH HIS PERSON. THE AGREEMENT/DEAL WAS CANCELL ED AND MONEY WAS RECEIVED BACK. SUBSEQUENTLY, STATEME NT OF SHRI S.P.SINGLA, HOUSE NO. 499, SECTOR 9, PANCHK ULA WAS RECORDED UNDER SECTION 131 ON 01.12.2010. THE 3 STATEMENT GIVEN BY THE ASSESSEE REGARDING RECEIPT O F RS. 50 LACS AS APPEARING IN THE ABOVE SEIZED PAPER WAS CONFRONTED TO SHRI S.P.SINGLA. HE DENIED THAT HE H AD MADE THE PAYMENT OF RS. 50 LACS AS ADVANCE AND EVEN DENIED ASKING DR. MITTAL TO PAY ADVANCE FOR PURCHAS E OF THE ABOVE HOUSE ON HIS BEHALF. RELEVANT EXTRACT OF STATEMENT OF SHRI S.P.SINGLA HAVE BEEN REPRODUCED I N THE ASSESSMENT ORDER IN WHICH HE HAS DENIED TO HAVE PAID ANY ADVANCE FOR THE PROPERTY. HE HAS ALSO EXPLAINED THAT HE HAS NEVER ENTERED INTO ANY REAL E STATE TRANSACTION WITH DR. NARESH MITTAL, ASSESSEE AND HA S NOT PAID ANY MONEY TO HIM AND HE DISAGREED WITH THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURS E OF SEARCH. THE STATEMENT OF SHRI S.P.SINGLA WAS CONFRONTED TO THE ASSESSEE ON 16.12.2010 AND HIS STATEMENT WAS RECORDED ON OATH UNDER SECTION 131 OF THE ACT. RELEVANT EXTRACT OF HIS STATEMENT RECORDE D ON 16.12.2010 UNDER SECTION 131 HAVE BEEN REPRODUCED I N THE ASSESSMENT ORDER IN WHICH CLARIFICATION WAS SOU GHT FROM THE ASSESSEE BECAUSE SHRI S.P.SINGLA DENIED TO HAVE MADE ANY PAYMENT THROUGH HIM FOR PURCHASE OF T HE PROPERTY. THE ASSESSEE EXPLAINED THAT HE HAD PAID R S. 50 LACS AS ADVANCE TO SMT. METHLESH SHARMA ON BEHAL F OF THE SHRI S.P.SINGLA AS HE WANTED A 2 KANAL HOUSE IN SECTOR 6, PANCHKULA. HOWEVER, SAID DEAL COULD NOT MATERIALIZED AND MONEY WAS RETURNED BACK TO SHRI S.P.SINGLA. LATER ON, SHRI S.P.SINGLA PURCHASED AN OTHER HOUSE IN SECTOR 6. HE STATED THAT HE WILL PRODUCE 4 AFFIDAVIT FROM SMT. METHLESH SHARMA WHO IS PRESENTL Y IN LONDON AND KNEW THE FACTS VERY WELL. 3. THE ASSESSING OFFICER, IN VIEW OF THE ABOVE FACT S NOTED THAT EXPLANATION GIVEN BY ASSESSEE THAT ADVAN CE WAS GIVEN ON BEHALF OF THE SHRI S.P.SINGLA IS TOTAL LY FALSE AND IS NOT SUPPORTED BY ANY EVIDENCE BECAUSE SHRI S.P.SINGLA DENIED ANY DEAL THROUGH THE ASSESSEE. TH E ASSESSING OFFICER ALSO NOTED THAT WHETHER ADVANCE W AS GIVEN FROM HIS OWN SOURCE OR ON BEHALF OF THE SHRI S.P.SINGLA, THE ONUS WOULD BE ON ASSESSEE TO PROVE THE SOURCE OF RS. 50 LACS. 3(I) IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSES SEE WAS ASKED TO FURNISH THE INFORMATION REGARDING ; I) COMPLETE DETAILS OF TRANSACTION WITH SMT. METHLESH SHARMA II) COMPLETE ADDRESS, PAN AND ASSESSMENT DETAILS OF SMT. METHLESH SHARMA III) COPY OF ACCOUNT OF SMT. METHLESH SHARMA APPEARING IN YOUR BOOKS IV) COPY OF SALE DEED OF HOUSE NO. 53 SECTOR 6, PANCHKULA V) MODE OF PAYMENT MADE TO SMT. METHLESH SHARMA ALONGWITH SOURCE VI) COPY OF ACCOUNT SHRI S.P.SINGLA VII) REPLY ALONGWITH COMPLETE DOCUMENTS 5 3(II) THE ASSESSEE FILED A REPLY BEFORE ASSESSING O FFICER AND RELEVANT PORTION IS REPRODUCED IN THE ASSESSMEN T ORDER IN WHICH THE ASSESSEE EXPLAINED TO THE ABOVE QUERIES THAT THE SEIZED PAPER RELATES TO RECEIPT FO R ADVANCE CHEQUE ISSUED FOR UN-EXECUTED PURCHASE DEAL OF HOUSE NO. 53 SECTOR 6, PANCHKULA. THIS BEARER CHE QUE WAS HANDED OVER TO SMT. METHLESH SHARMA ON BEHALF O F THE SMT. UMA RANI WHO WAS STAYING OUTSIDE INDIA. D UE TO SOME DISPUTE ON THE PROPERTY, THE DEAL COULD NOT BE EXECUTED AND CHEQUE WAS DESTROYED IN THE PRESENCE O F BOTH THE PARTIES. DOCUMENT IS MERELY A PHOTO COPY OF THE RECEIPT GIVEN BY SMT. METHLESH SHARMA AS ORIGIN AL WAS ALSO DESTROYED IN THE PRESENCE OF BOTH PARTIES. FURTHER, THE CONFIRMATION IN THE FORM OF AFFIDAVIT OF SMT. METHLESH SHARMA HAS BEEN FILED FOR A.O.S REFERENCE . FURTHER, DEPARTMENT COULD ALSO VERIFY THE SAME FACT FROM OFFICE OF HARYANA URBAN DEVELOPMENT AUTHORITY THAT NO DEAL WAS EXECUTED ON THE SAID PROPERTY. 4. THE ASSESSING OFFICER ON PERUSAL OF THE SUBMISSIONS OF THE ASSESSEE, NOTED THAT ASSESSEE HA D COMPLETELY CHANGED HIS STANCE IN RESPECT OF SEIZED DOCUMENT. AT THE TIME OF SEARCH, HE HAS STATED THA T HE HAS ENTERED INTO DEAL ON BEHALF OF THE SHRI S.P.SIN GLA AND ADVANCE WAS GIVEN ON HIS BEHALF. HE HAS ALSO STATED THAT ON CANCELLATION OF DEAL, THE ENTIRE SUM OF RS. 50 LACS WAS RECEIVED BACK BUT IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAD COMPLETELY 6 CHANGED HIS STATEMENT AND TAKEN A PLEA THAT BEARER CHEQUE WAS HANDED OVER TO SMT. METHLESH SHARMA AND DUE TO SOME DISPUTE, THE DEAL WAS CANCELLED AND CHE QUE WAS DESTROYED. THE ASSESSING OFFICER DID NOT RELY UPON SUBMISSION OF THE ASSESSEE AND NOTED THAT RECEIPT O F RS. 50 LACS DID NOT MENTION THE CHEQUE NUMBER OR THE NA ME OF THE BANK ON WHICH CHEQUE WAS DRAWN, THEREFORE, I T WAS IMPLIED FROM THE PERUSAL OF THE DOCUMENT THAT TRANSACTION OF RS. 50 LACS WAS MADE IN CASH. SINCE THE ONUS UPON ASSESSEE HAS NOT BEEN DISCHARGED TO EXPLA IN SOURCE OF UNEXPLAINED INVESTMENT, SHOW CAUSE NOTICE WAS ISSUED AS TO WHY ADDITION BE NOT MADE. THE ASSESSEE HAS SUBMITTED BEFORE ASSESSING OFFICER THA T COPY OF THE RE-ALLOTMENT LETTER DATED 13.07.2011 OF THE PROPERTY IN QUESTION HAS BEEN ENCLOSED WHICH PROVES THAT SMT. UMA RNI HAS NOT SOLD THE PLOT TO THE ASSE SSEE. AFFIDAVIT OF SMT. METHLESH SHARMA AND SMT. UMA RANI HAVE BEEN FILED TO SUBSTANTIATE THE EXPLANATION OF THE ASSESSEE. THE ASSESSEE HAD MADE BEST EFFORTS AND F OUND THAT HE HAD ISSUED BEARER CHEQUE NO. 670821 FROM PUNJAB NATIONAL BANK AND SINCE DEAL WAS CANCELLED, SO CHEQUE WAS CANCELED AND WAS NOT DEBITED TO HIS BANK ACCOUNT. THE ASSESSING OFFICER, HOWEVER, DID NOT A CCEPT EXPLANATION OF THE ASSESSEE AND MADE THE ADDITION O F RS. 50 LACS TREATING IT TO BE UNEXPLAINED INVESTMENT UN DER SECTION 69B OF THE ACT. 7 5. THE SAID ADDITION WAS CHALLENGED BEFORE LD. CIT(APPEALS). THE ASSESSEE REITERATED THE SUBMISSI ONS MADE BEFORE AUTHORITIES BELOW AND IT WAS SUBMITTED THAT ADVANCE WAS GIVEN ON BEHALF OF THE SHRI S.P.SINGLA AND ON CANCELLATION OF DEAL, THE RECEIPT WAS CANCELLED AND DESTROYED. THE ASSESSEE SUBMITTED BEFORE ASSESSING OFFICER THAT BEARER CHEQUE NO. 670821 OF PUNJAB NATIONAL BANK WAS HANDED OVER TO SMT. METHLESH SHARMA. ON INQUIRY FROM ESTATE OFFICE, IT WAS FOUN D THAT CIVIL LITIGATION WAS PENDING OVER THE PROPERTY , THEREFORE, DEAL COULD NOT BE MATERIALIZED AND CHEQU E AND ORIGINAL RECEIPTS WERE DESTROYED. THE ASSESSEE FILED AFFIDAVIT OF SMT. METHLESH SHARMA, RECIPIENT AND SM T. UMA RANI, OWNER OF THE PROPERTY WHICH WAS VERIFIED BEFORE EXECUTIVE MAGISTRATE IN WHICH ENTIRE FACTS H AVE BEEN EXPLAINED. IT WAS, THEREFORE, FOREMOST DUTY O F THE ASSESSING OFFICER TO MAKE INQUIRIES FROM SMT. METHL ESH SHARMA, MR. SHARMA AND MR. CHANDER WHO ALL WERE PRESENT AT THE HOUSE OF SMT. METHLESH SHARMA AND HA D THE KNOWLEDGE OF THE NEGOTIATIONS DONE ON BEHALF OF THE SHRI S.P.SINGLA. SHRI S.P.SINGLA, LATER ON PURCHAS ED ANOTHER PROPERTY, WHICH FACT WOULD MAKE IT CLEAR TH AT IT WAS A DEAL DONE ON BEHALF OF THE SHRI S.P.SINGLA. ULTIMATELY PROPERTY WAS TRANSFERRED IN THE NAME OF SHRI BIR BHAN GOYAL ON 11.07.2011, THEREFORE, THERE WAS NO INVESTMENT IN PROPERTY BY THE ASSESSEE. IN THE ALT ERNATE CONTENTION, IT WAS SUBMITTED THAT ASSESSEE AND HIS FAMILY MEMBERS HAD SUFFICIENT CASH AVAILABLE ON THE 8 DATE OF RECEIPT, THEREFORE, ENTIRE ADDITION IS WHOL LY UNJUSTIFIED. 6. THE LD. CIT(APPEALS), HOWEVER, OBSERVED THAT THE RECIPIENT SMT. METHLESH SHARMA AS WELL AS ASSESSEE HAVE SIGNED THE RECEIPT IN QUESTION ADMITTING ADVAN CE PAYMENT OF RS. 50 LACS, SHRI S.P. SINGLA DENIED ANY TRANSACTION DONE BY THE ASSESSEE ON HIS BEHALF. ADVANCE WAS GIVEN IN CASH AS PER OBSERVATION OF THE ASSESSING OFFICER, THEREFORE, ASSESSEE FAILED TO EX PLAIN THE SOURCE OF RS. 50 LACS, THEREFORE, ADDITION WAS CONFIRMED AND APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 7. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS REFERRED TO SEVERAL DOCUMENTS FROM THE PAPER BOOK AND ALSO FILE D COPY OF CERTIFICATE FROM PUNJAB NATIONAL BANK AND B ANK STATEMENT AND SUBMITTED THAT ASSESSEE WAS NOT HAVIN G ANY SUFFICIENT BANK BALANCE IN HIS BANK ACCOUNT, THEREFORE, THERE IS NO QUESTION OF MAKING ANY UNDISCLOSED INVESTMENT IN PROPERTY. HE HAS SUBMITT ED THAT NO CASH HAS BEEN MENTIONED IN THE RECEIPT SEIZ ED BY THE DEPARTMENT WHICH IS MERELY A PHOTO COPY. THE ASSESSING OFFICER DID NOT MAKE ANY INQUIRY FROM SMT . METHLESH SHARMA AND SMT. UMA RNI ON FILING THEIR 9 AFFIDAVITS AND EVEN THEY HAVE NOT BEEN EXAMINED. T HE ASSESSING OFFICER ON MERE PRESUMPTION OBSERVED THAT ADVANCE PAYMENT WAS MADE IN CASH. NO EVIDENCE OF GIVING CASH WAS FOUND DURING THE COURSE OF SEARCH, THEREFORE, WHOLE ADDITION IS UNJUSTIFIED. 7(I) ON THE OTHER HAND, LD. DR RELIED UPON ORDERS O F THE AUTHORITIES BELOW AND SUBMITTED THAT HOW ASSESS EE HAS GIVEN CHEQUE WHEN HE WAS HAVING NO BALANCE IN H IS BANK ACCOUNT, THEREFORE, ASSESSEE FAILED TO EXPLAIN SOURCE OF THE INVESTMENT IN PROPERTY. SHRI SINGLA DENIED ANY INVOLVEMENT IN ANY DEAL, THEREFORE, ADDI TION WAS RIGHTLY MADE AGAINST THE ASSESSEE. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE RECEIP T IN QUESTION IS DATED 23.10.2008 WAS FOUND DURING TH E COURSE OF SEARCH FROM THE RESIDENCE OF THE ASSESSEE . IT IS PHOTO COPY WHICH IS REPRODUCED IN THE ASSESSMENT ORDER AT PAGE 3 AND COPY OF THE SAME IS ALSO FILED IN THE PAPER BOOK. THE RECEIPT SHOWS THAT ADVANCE OF RS. 50 LACS HAS BEEN PAID BY THE ASSESSEE FOR PURCHASE OF HOUSE NO. 53, SECTOR 6, PANCHKULA. IT IS SIGNED BY SMT. METHLESH SHARMA, AS GPA OF OWNER OF THE PROPERTY SM T. UMA RANI. IN THIS RECEIPT, THERE IS NO MENTION WHE THER ADVANCE WAS GIVEN AS CASH OR BY CHEQUE. ACCORDING TO THE ASSESSEE, TRANSACTION OF PURCHASE OF PROPERTY W AS ENTERED INTO BY ASSESSEE ON BEHALF OF THE SHRI S.P.SINGLA, WHO HAS, HOWEVER, DENIED ANY TRANSACTIO N 10 DONE BY HIM THROUGH ASSESSEE. WHEN THIS FACT WAS CONFRONTED TO THE ASSESSEE AT ASSESSMENT STAGE, THE STATEMENT OF THE ASSESSEE WAS FURTHER RECORDED UNDE R SECTION 131 OF THE ACT IN WHICH THE ASSESSEE FURTHE R EXPLAINED THAT ADVANCE WAS GIVEN ON BEHALF OF SHRI S.P.SINGLA, HOWEVER, WHEN DEAL COULD NOT BE MATERIALIZED, MONEY WAS RETURNED BACK TO SHRI S.P. SINGLA. THE ASSESSEE FURTHER EXPLAINED THAT HE WIL L PRODUCE AFFIDAVIT FROM SMT. METHLESH SHARMA WHO IS PRESENTLY IN LONDON AND KNOWS THE FACT VERY WELL. T HE ASSESSEE, LATER ON, FILED THE AFFIDAVITS OF SMT. ME THLESH SHARMA AS WELL AS SMT. UMA RANI BEFORE THE ASSESSIN G OFFICER. COPIES OF THEIR AFFIDAVITS ARE FILED IN T HE PAPER BOOK. BOTH THESE AFFIDAVITS HAVE BEEN SWORN BEFORE EXECUTIVE REGISTRAR, PANCHKULA. IN THE AFFIDAVIT OF SMT. METHLESH SHARMA, SHE HAS AFFIRMED THAT SMT. UMA RA NI REQUESTED HER TO FIND OUT GENUINE BUYER FOR SELLING HER PROPERTY NO. 53 SECTOR 6, PANCHKULA. SHE HAS REQUE STED SHRI CHANDER TO FIND OUT A GENUINE BUYER. MR. CHAN DER, DR. MITTAL AND MR. SHARMA CAME TO HER HOUSE SHOWING INTEREST IN PURCHASING THIS PROPERTY FOR THEIR FRIE ND MR. SINGLA. THE DEAL WAS MATERIALIZED FOR A FINAL CONSIDERATION OF RS. 4.5 CRORE BUT SMT. UMA RANI PU T A CONDITION THAT SHE MUST RECEIVE HANDSOME TOKEN AMOUNT. IT WAS DECIDED THAT PURCHASERS WILL HAND O VER A BEARER CHEQUE OF RS. 50 LACS SO AS TO CONVEY TO S MT. UMA RANI TO COME TO INDIA FOR EXECUTION OF THE SALE DEED. IT WAS ALSO CONFIRMED IN THE AFFIDAVIT THAT ON 11 23.10.2008 AGAINST THE BEARER CHEQUE, SHE HAS ISSUE D A RECEIPT UNDER HER SIGNATURE. LATER ON, FROM INQUIR IES FROM THE ESTATE OFFICE, HUDA, PANCHKULA, IT WAS FOU ND THAT THERE IS CIVIL LITIGATION PENDING OVER THE PRO PERTY, THEREFORE, PURCHASERS WERE NOT INTERESTED TO PURCHA SE IT. ACCORDINGLY, SHE TORN OFF THE BEARER CHEQUE AND THE ORIGINAL RECEIPT. 8(I) SIMILARLY, IN THE AFFIDAVIT OF SMT. UMA RANI , OWNER OF THE PROPERTY, SAME FACTS OF DEAL HAVE BEEN CONF IRMED AND IT IS ALSO CONFIRMED THAT ON 23.10.2008, AGAINS T THE BEARER CHEQUE, SMT. METHLESH SHARMA ISSUED THE RECE IPT AND BECAUSE CIVIL LITIGATION WAS PENDING, DEAL WAS CANCELLED AND SMT. METHLESH SHARMA TORN OFF BEARER CHEQUE AS WELL AS RECEIPT. THE ASSESSING OFFICER AFTER DENIAL OF SHRI S.P.SINGLA THAT HE DID NOT ENTER INT O ANY TRANSACTION OF GIVING ADVANCE THROUGH THE ASSESSEE, ASKED FOR INFORMATION FROM THE ASSESSEE ON SEVERAL POINTS NOTED ABOVE IN PARA 3(I) OF ORDER INCLUDING THE MODE OF PAYMENT MADE TO SMT. METHLESH SHARMA WITH THE SOURCE. IT IS, THEREFORE CLEAR THAT PRIOR TO SE EKING THIS INFORMATION FROM THE ASSESSEE, THE ASSESSING OFFICER WAS NOT SURE ABOUT THE AMOUNT OF ADVANCE MO NEY GIVEN EITHER THROUGH CASH OR THROUGH BEARER CHEQUE. AS IS NOTED ABOVE, THERE IS NO MENTION OF CASH OR BEAR ER CHEQUE IN THE RECEIPT SEIZED DURING THE COURSE OF S EARCH ISSUED BY SMT. METHLESH SHARMA. THE ASSESSEE, IN RESPONSE TO THE ABOVE QUERY OF THE ASSESSING OFFICE R, 12 EXPLAINED THAT BEARER CHEQUE OF RS. 50 LACS WAS HAN DED OVER TO SMT. METHLESH SHARMA AND WHEN DEAL COULD NO T BE MATERIALIZED DUE TO CIVIL LITIGATION PENDING FOR THE PROPERTY, ORIGINAL BEARER CHEQUE AND RECEIPT WERE DESTROYED THEREFORE, IN THE BACKGROUND OF THESE FA CTS AND EXPLANATION OF THE ASSESSEE AND ON FILING OF TH E AFFIDAVITS BY THE RECIPIENT SMT. METHLESH SHARMA AN D OWNER SMT. UMA RANI BEFORE ASSESSING OFFICER, IT WA S THE DUTY OF THE ASSESSING OFFICER TO MAKE INQUIRIES FROM THE RECIPIENT SMT. METHLESH SHARMA AND OWNER OF THE PROPERTY SMT.UMA RANI WITH REGARD TO MODE OF PAYMEN T, EXECUTION OF RECEIPT AND FINAL CANCELLATION OF THE TRANSACTION IN THE MATTER. THE ASSESSING OFFICER, HOWEVER, IN HIS WISDOM TO THE BEST REASONS KNOWN TO HIM, DID NOT MAKE ANY INQUIRY OR EXAMINED BOTH THE DEPONENTS SMT. METHLESH SHARMA AND SMT. UMA RANI WHO ARE THE MOST VITAL AND IMPORTANT WITNESSES TO T HROW LIGHT ON THE RELEVANT FACTS. THE AFFIDAVITS FILED BY BOTH THESE DEPONENTS ARE LIKE EXAMINATION-IN-CHIEF. THE ASSESSING OFFICER DID NOT CROSS EXAMINED BOTH THE DEPONENTS AT ASSESSMENT STAGE THEREFORE, AFFIDAVITS FILED BY SMT. METHLESH SHARMA AND SMT. UMA RANI REMAINED UN-REBUTTED AND UNCHALLENGED. THE CONTENTS OF THEI R AFFIDAVITS, THUS, ARE ADMISSIBLE IN EVIDENCE WHICH SUPPORT THE VERSION OF THE ASSESSEE THAT ASSESSEE G AVE A BEARER CHEQUE TO SMT. METHLESH SHARMA AND ON CANCELLATION OF THE DEAL, CHEQUE AND ORIGINAL RECEI PTS WERE TORN OFF. IT IS A GLARING ILLEGALITY AND IRRE GULARITY 13 IN THE INVESTIGATION CARRIED OUT BY THE ASSESSING O FFICER. NO EVIDENCE OF GIVING ANY CASH BY ASSESSEE TO SMT. METHLESH SHARMA WAS FUND DURING THE COURSE OF SEARC H OR AT ASSESSMENT STAGE. EVEN AUTHORIZED OFFICER IN SEARCH DID NOT FIND OUT WHETHER ADVANCE WAS THROUGH CASH. 9. IT MAY BE NOTED AGAIN THAT WHEN SHRI S.P.SINGLA DENIED ANY TRANSACTION DONE BY THE ASSESSEE ON HIS BEHALF AND ASSESSEE WAS REITERATING THE SAME FACTS AGAIN AND AGAIN AND EXPLAINED THAT BEARER CHEQUE WAS GIVE N TO SMT. METHLESH SHARMA, IT WAS BOUNDENED DUTY OF THE ASSESSING OFFICER TO MAKE INQUIRIES FROM THE RECIPI ENT SMT. METHLESH SHARMA AND OWNER SMT. UMA RANI. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER MERELY ON PRESUMPTION IMPLIED THAT CASH HAS BEEN GIVEN BY ASSESSEE AS PER THE RECEIPT WHICH FACT IS INCORRECT BECAUSE THERE IS NO MENTION OF ANY SUCH FACT IN THE RECEIPT FOUND DURING THE COURSE OF SEARCH IF ASSESS EE HAS GIVEN CASH AMOUNT OF RS. 50 LACS TO SMT. METHLE SH SHARMA. THE ASSESSEE ALSO PRODUCED COPIES OF THE C IVIL SUIT PENDING OVER THE PROPERTY IN QUESTION SHOWING DISPUTE PENDING OVER THE SAME PROPERTY AND ULTIMATE LY THE PROPERTY IS TRANSFERRED LATER ON IN FAVOUR OF S HRI BIR BHAN GOYAL. THEREFORE, IT IS PROVED ON RECORD THAT DUE TO LITIGATION OVER THE PROPERTY, DEAL WAS CANCELED AND BEARER CHEQUE WAS TORN OFF ALONGWITH THE ORIGINAL RECEIPT. THEREFORE, THERE IS NO QUESTION OF ASSESS EE 14 MAKING ANY INVESTMENT IN THE PROPERTY WHICH COULD B E TREATED AS UNEXPLAINED WITHIN THE MEANING OF SECTIO N 69B OF THE ACT. 9(I) THE LD. COUNSEL FOR THE ASSESSEE ALSO PRODUC ED ON RECORD CERTIFICATE FROM PUNJAB NATIONAL BANK, PANCH KULA IN WHICH IT IS AFFIRMED THAT CHEQUE BOOK BEARING NO . TKB 670801-670900 WAS ISSUED ON 23.09.2008 AND THAT CHEQUE NO. 670821 WAS NEVER PRESENTED FOR ENCASHMEN T. IT IS ALSO CONFIRMED THAT OUTSTANDING BALANCE ON 25.10.2008 WAS RS. 2,28,976/- AGAINST THE LIMIT OF RS. 8 LACS AND THIS FACT IS SUPPORTED BY BANK STATEMENT O F THE ASSESSEE. IT IS, THEREFORE, CLEAR THAT ON THE DATE OF HANDING OVER BEARER CHEQUE TO SMT. METHLESH SHARMA ON 23.102008, ASSESSEE WAS NOT HAVING ANY SUFFICIENT AMOUNT IN HIS BANK ACCOUNT SO AS TO MAKE ANY INVESTMENT IN PROPERTY. IN AFFIDAVIT OF SMT. METHL ESH SHARMA, SHE HAS ALSO NAMED ONE MR. CHANDER AND MR. SHARMA APART FROM ASSESSEE WHO HAVE CONDUCTED THE DEAL ON BEHALF OF THE MR. SINGLA. THE ASSESSING OF FICER, HOWEVER, DID NOT MAKE ANY ATTEMPT TO MAKE INQUIRIES FROM THESE PERSONS ALSO. 9(II) THE ASSESSEE ALSO PRODUCED SUFFICIENT MATER IAL ON RECORD TO SHOW THAT SHRI S.P.SINGLA ULTIMATELY PURCHASED DIFFERENT PROPERTY AFTER THIS TRANSACTION . THEREFORE, THE EVIDENCES AND MATERIAL ON RECORD CLE ARLY SUGGEST AND SUPPORT THE EXPLANATION OF THE ASSESSEE 15 THAT THE BEARER CHEQUE OF RS. 50 LACS WAS GIVEN TO SMT. METHLESH SHARMA WHICH WAS NOT ENCASHED AND LATER ON , ON CANCELLATION OF THE DEAL, BEARER CHEQUE AND ORIG INAL RECEIPTS WERE DESTROYED. THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND EVIDENCE ON RECORD CLEARLY PROVED THAT ASSESSEE ENTERED INTO THE TRANSACTION OF PURCH ASE OF PROPERTY ON BEHALF OF SHRI S.P.SINGLA WHO MIGHT HAVE DENIED THE SAME LATER ON AND BEARER CHEQUE WAS GIVE N FOR SHOWING INTEREST IN PURCHASE OF PROPERTY ON BEH ALF OF THE SHRI S.P.SINGLA. OTHERWISE, IF THE ASSESSEE WA NTED TO ENTER INTO THE DEAL TO PURCHASE PROPERTY IN QUES TION, FOR HIMSELF, HE WOULD NOT HAVE ISSUED BEARER CHEQUE FROM PUNJAB NATIONAL BANK ACCOUNT, PANCHKULA IN WHI CH THERE WERE NO SUFFICIENT FUNDS AVAILABLE TO THE ASS ESSEE. THE CIRCUMSTANCES THEREFORE, REVEALED THAT SINCE IT WAS A TRANSACTION DONE ON BEHALF OF THE OTHER, THE BEAR ER CHEQUE MIGHT HAVE BEEN GIVEN FOR SHOWING INTEREST I N PURCHASING THE PROPERTY. 10. WE MAY ALSO NOTE HERE THAT SINCE NO INVESTIGATI ONS HAVE BEEN CARRIED OUT IN RIGHT DIRECTIONS AND NO IN QUIRY HAVE BEEN MADE FROM SMT. METHLESH SHARMA AND SMT. UMA RANI AND BOTH OF THEM HAVE NOT BEEN CROSS- EXAMINED BY THE ASSESSING OFFICER ON FILING THEIR AFFIDAVITS, REVENUE FAILED TO PROVE THAT ASSESSEE M ADE ANY UNEXPLAINED INVESTMENT IN ANY PROPERTY. IN TH IS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT ASSESSE E HAS NOT MADE ANY UNEXPLAINED INVESTMENT IN PROPERTY IN A 16 SUM OF RS. 50 LACS SO AS TO ATTRACT PROVISIONS OF S ECTION 69B OF THE ACT. THERE IS NO JUSTIFICATION FOR THE AUTHORITIES BELOW TO SUSTAIN OR UPHOLD THE ADDITION OF RS. 50 LACS AGAINST THE ASSESSEE. WE, THEREFORE, SE T ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE TH E ADDITION OF RS. 50 LACS. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH NOVEMBER,2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD