ITO, Panchkula V. Sh. Jagpal Singh, Panchkula

ITA 542/CHANDI/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8991 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: YOGESH MONGA
• Keywords: Unexplained cash credit; Unexplained investment; Business income; Loose papers; Opportunity of being heard; Additional evidence; Cost of acquisition; Assessment record
• Section: 133A; 153A; 133(6)

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. 542/CHD/2015 ASSESSMENT YEAR: 2006-07 THE ITO, VS SHRI JAGPAL SINGH, WARD 2, H.NO. 851, SECTOR 11, PANCHKULA . PANCHKULA. PAN: AXAPS8356G & ITA NO. 565/CHD/2015 ASSESSMENT YEAR: 2006-07 SHRI JAGPAL SINGH, VS THE ADDL. CIT, H.NO. 851, SECTOR 11, PANCHKULA RANGE, PANCHKULA. PANCHKULA. PAN: AXAPS8356G (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI S.K.MITTAL ASSESSEE BY : SHRI AJAY JAIN & SHRI YOGESH MONGA DATE OF HEARING : 02.11.2016 DATE OF PRONOUNCEMENT : 09.11.2016 O R D E R PER BHAVNESH SAINI,JM BOTH THE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) PANCHKULA DATED 30.03.201 5 FOR ASSESSMENT YEAR 2006-07. 2 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL ON RECORD. LD. REPRESENTAT IVES OF BOTH THE PARTIES SUBMITTED THAT THE MAJOR ISSUES HAVE ALREADY BEEN ADJUDICATED BY ITAT CHANDIGARH BENCH I N THE CONNECTED MATTERS OF ITO VS SHRI BIMAL SURI AND ACIT VS SHRI SHEKHAR CHAWLA IN ITA NOS. 664/2011 AN D 680/2011 OF ASSESSMENT YEAR 2006-07 VIDE ORDER DATE D 20.09.2016, COPY OF THE SAME IS FILED ON RECORD. I T IS, THEREFORE, SUBMITTED THAT THREE ISSUES ARE COVERED BY ORDER IN THE CASE OF SHRI BIMAL SURI (SUPRA). IN T HE BACKGROUND OF THESE FACTS, WE PROCEED TO DECIDE THE CROSS APPEALS AS UNDER. ITA 565/2015 ( ASSESSEE'S APPEAL) 3. GROUND NOS. 1 AND 8 ARE GENERAL AND NEED NO ADJUDICATION. 4. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO. 7 WITH REGARD TO ADDITION OF RS. 1,76,67 0/-. THIS GROUND IS DISMISSED AS NOT PRESSED. 5. GROUND NOS. 2, 4 AND 5 ARE CONNECTED MATTERS AND READ AS UNDER : 2 . THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMIN G THE ADDITION OF RS. 1,12,04,166/- ON ACCOUNT OF UNEXPLAINED INVESTM ENT IN PURCHASE OF 25 KANAL 10 MARLA LAND AT LOHGARH ON THE BASIS OF PHOT OCOPIES OF FORGED DOCUMENTS FOUND FROM THE THIRD PARTY PREMISES AND W ITHOUT MAKING ANY INQUIRY. THE ID CIT(A) HAS ALSO ERRED IN IGNORING T HE REGISTERED SALE DEED. 3 4 THAT THE LEARNED CIT (A) HAS WRONGLY U PHELD THE ADDITION OF RS. 1,44,50,000/- ON ACCOUNT OF PROFIT EARNED ON SALE OF LAND OF 25 KANAL 10 MARLAS AT LOHGARH TO M/S PARSHAV COLONISERS & CO NSULTANTS PVT. LTD. WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HA S NOT SOLD ANY LAND TO M/S PARSHAV COLONISERS & CONSULTANTS PVT. LTD. AND ALSO ERRED BY MAKING ADDITION ON THE BASIS OF PHOTOCOPIES OF FORGED DOCU MENTS FOUND FROM THE THIRD PARTY PREMISES AND WITHOUT MAKING ANY INQUIRY FROM ANY PARTIES. 5 THAT THE LEARNED CIT(A) HAS UPHELD ADDITION OF RS. 19,40,278/- ON ACCOUNT OF PROFIT EARNED ON SALE OF LAND OF 25 K ANAL 10 MARLAS AT LOHGARH TO M/S GEE CITY BUILDERS PVT. LTD. ON THE B ASIS OF PHOTOCOPIES OF FORGED DOCUMENTS FOUND FROM THE THIRD PARTY PREM ISES AND WITHOUT MAKING ANY INQUIRY FROM ANY PARTIES AND ALSO ERRED BY IGNORING THE REGISTERED SALE DEED. 6. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY OPERATION UNDER SECTION 133A OF THE ACT WAS CONDUCT ED AT THE BUSINESS PREMISES OF M/S CHANDIGARH OVERSEAS PVT. LTD., CHANDIGARH AND ITS SISTER CONCERNS. DURI NG THE COURSE OF SURVEY, CERTAIN LOOSE PAPERS, COPIES OF THE AGREEMENTS AND OTHER DOCUMENTS WERE FOUND AND IMPOUNDED. THE IMPORTANT IMPOUNDED DOCUMENTS WHICH WERE CONSIDERED FOR ASSESSMENT OF INCOME ARE AS UND ER : I) AGREEMENT TO SELL DATED 29.01.2005 II) BACKSIDE OF PAGE 2 OF THE AGREEMENT TO SELL DATED 29.01.2005. III) REGISTERED SALE DEED FOR 8 KANAL 10 MARLA IV) AGREEMENT TO SELL DATED 19.04.2005 V) AGREEMENT TO SELL DATED 29.06.2005 4 7. ON PERUSAL OF THESE DOCUMENTS, IT WAS FOUND THAT ASSESSEE WAS IN SOME OR OTHER WAY RELATED TO VARIOU S PAPERS FOUND DURING THE COURSE OF SURVEY. THE ASSES SING OFFICER MADE THE ABOVE ADDITIONS ON THE BASIS OF PH OTO COPIES OF THE AGREEMENT FOUND FROM THE PREMISES OF M/S CHANDIGARH OVERSEAS PVT.LTD. AND TO ITS SISTER CONC ERNS. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER EXAMINED THE DOCUMENTS. ONE OF T HE IMPOUNDED DOCUMENT IS AGREEMENT TO SELL DATED 29.01.2005 EXECUTED BETWEEN THE SELLERS (I) SMT. PUSHPINDER KAUR (II) SHRI GURTEJ SINGH (III) PREETP AL SINGH AND THE BUYERS; (I) SHRI GULSHAN RAI (II) SHR I JAGPAL SINGH (ASSESSEE) AND (III) SHRI BIMAL SURI. OTHER DOCUMENTS NOTED ABOVE WERE CONSIDERED TO DETERMINE PROFIT EARNED ON SALE OF LANDS. ALL ISSUES ARE SAM E IN CASES OF ASSESSEES, SHRI BIMAL SURI AND SHRI SHEKHA R CHAWLA. 9. ALL THE ABOVE GROUND NOS. 2, 4 AND 5 ARE CONNECT ED WITH THE IMPOUNDED DOCUMENTS FOUND DURING THE COURS E OF SURVEY. LD. REPRESENTATIVES OF BOTH OF THE PART IES SUBMITTED THAT FACTS AND ISSUES ARE IDENTICAL AS HA VE BEEN CONSIDERED BY ITAT CHANDIGARH BENCH IN THE CAS ES OF SHRI BIMAL SURI AND SHRI SHEKHAR CHAWLA (SUPRA) VIDE ORDER DATED 20.09.2016. COPY OF THE ORDER IS PLACE D ON RECORD. THE FACTS AND FINDINGS IN THE CASE OF SHRI BIMAL 5 SURI (SUPRA) IN PARAS 3 TO 32 OF THE ORDER READ AS UNDER: ITA NO. 664/CHD/2011 ( BIMAL SURI ) 3. THE REVENUE HAS FILED THE PRESENT APPEAL ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF T HE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,12,04,166/- ON ACCOUNT OF INVESTME NT IN PURCHASE OF LAND OF 25K 10M AT LOHAGARH MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE (BEING L/3 RD SHARE) ON THE BASIS OF SAID AGREEMENT ON ACCOUNT OF UNEXPLAINED SOURCES OF INVESTMENT IN THE SAID PRO PERTY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDI TION OF RS.1,44,50,000/- ON ACCOUNT OF PROFIT ON SALE OF LAND OF 25K 10M AT LOHAGARH TO M/S PARSAV COLONIZERS & CONSULTANTS (P) LTD. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF PROFIT ON SALE OF LAND, THE ASSESSEE HAVING I/3 RD SHARE IN SUCH PROFIT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS.19,65,625/- ON ACCOUNT OF PROFIT ON SALE OF L AND TO M/S GEE CITY BUILDERS (P) LTD. MEASURING 8K 10M I.E . L/3 RD TO TOTAL LAND OF 25K 10M). 4. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDUCTED BY RANGE-4, CHANDIGARH AT THE BUSINESS PREMISES OF CHANDIGARH OVERSEAS PRIVATE LIMITED AND ITS SISTER CONCERNS. DURING THE COURSE OF SURVEY, CERTAIN LOOSE PAPERS, PHOTOCOPIES OF AGREEMENT AND INCRIMINATING DOCUMENTS WERE FOUND AND IMPOUNDED FROM THE BUSINESS PREMISES OF CHANDIGARH OVERSEAS PRIVATE LIMITED AND FROM THE EXAMINATION OF THESE DOCUMENTS, IT WAS FOUND THAT THE ASSESSEE WAS ALSO 6 PARTY TO VARIOUS AGREEMENTS FOUND DURING THE COURSE OF SURVEY. THE ASSESSING OFFICER MADE THE ABOVE ADDITIONS ON THE BASIS OF PHOTOCOPIES OF THE AGREEMENT FOUND FROM THE PREMISES OF CHANDIGARH OVERSEAS PRIVATE LIMITED. THE DETAILS OF DOCUMENTS HAVE BEEN MENTIONED IN THE IMPUGNED ORDER AS BELOW : I) AGREEMENT TO SELL DATED 29.1.2005. II) BACKSIDE OF PAGE 2 OF THE AGREEMENT TO SELL DATED 29.1.2005. III) REGISTERED SALE DEED FOR 8 KANAL 10 MARLAS. IV) AGREEMENT TO SELL DATED 19.4.2005. V) AGREEMENT TO SELL DATED 29.6.2005. 5. THE GROUND NO.1 RAISED BY THE REVENUE IS GENERAL AND NEEDS NO ADJUDICATION. 6. ON GROUND NO.2, THE ASSESSING OFFICER MADE ADDITION OF RS.1,12,04,166/-. 7. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT ON E OF THE IMPOUNDED DOCUMENT IS AN AGREEMENT TO SELL DATED 29.1.2005 EXECUTED BETWEEN THE SELLERS 1. SMT.PUSHPINDER KAUR, W/O SH. DIDAR SINGH. 2. SHRI GURTEJ SINGH, S/O SHRI DIDAR SINGH. 3. SHRI PRITIPAL SINGH, S/O SHRI DIDAR SINGH, R/O 44, EXT. GURU TEG BAHADUR NAGAR, JALANDHAR. AND THE BUYERS 1. SHRI GULSHAN RAI. 2. SHRI JAGPAL SINGH. 7 3. SH. BIMAL SURI (THE ASSESSEE). 8. AS PER THIS AGREEMENT, THE SELLER HAD AGREED TO SELL LAND 25 KANALS 10 MARLAS SITUATED AT VILLAGE LOHGARH AT THE RATE OF RS.1,18,00,000/- PER ACRE TO THE BUYERS. THE ASSESSEE IS THE ONE OF THE BUYER AND TOTAL CONSIDERATION COMES TO RS.3,76,12,500/-. THE ASSESSING OFFICER ALSO NOTICED FROM THE BACKSID E OF AGREEMENT TO SELL THAT THE SELLERS HAVE RECEIVED AN AMOUNT OF RS.2,62,50,000/- UPTO 15.06.2005. THE ASSESSING OFFICER FURTHER, NOTICED FROM THE REGISTERED SALE DEED THAT THE SELLERS HAVE SOLD L/3 RD SHARE OF 25 KANAL 10 MARLA I.E. 8 KANAL 10 MARLAS T O S/SHRI JAGPAL SINGH, GULSHAN RAI, SHEKHAR CHAWLA AND BIMAL SURI (ASSESSEE) FOR RS.42.50 LACS ONLY. THE DEED WAS REGISTERED IN THE NAME OF BUYER IN TWO PARTS, ONE HALF IN THE NAME OF S/SHRI GULSHAN RAI SATIJA, JAGPAL SINGH AND BIMAL SURI AND REMAINING ONE HALF IN THE NAME OF SHRI SHEKHAR CHAWLA ON 17.06.2005. THE ASSESSING OFFICER OBSERVED THAT THERE IS A HUGE DIFFERENCE IN VALUE SHOWN IN THE REGISTERED SALE DEED AND AGREEMENT TO SELL AND MADE ADDITION OF RS.1,12,04,166/-. THE ASSESSING OFFICER REPRODUCED THE ASSESSEE'S EXPLANATION IN PARA 4 OF THE ASSESSMENT ORDER BUT DID NOT ACCEPT THE EXPLANATION OF ASSESSEE THAT THE PROPERTY WAS PURCHASED BY THEM AT THROW AWAY PRICE IN VIEW OF CASH RECEIPTS OF RS.2,62,50,000/- MENTIONED IN IMPOUNDED DOCUMENTS AND CASH RECEIPTS OF RS.2.10 CRORES MENTIONED ON THE BACK SIDE OF PAGE 2 OF THE AGREEMENT TO SELL. 9. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSING OFFICER PRODUCED DOCUMENT NOS.18 & 19 OF ANNEXURE B2, PAGE 33 OF ANNEXURE BL, ON WHICH RELIANCE WAS PLACED BY THE DEPARTMENT WHILE MAKING ADDITION OF UNEXPLAINED INVESTMENT IN LAND AT 8 VILLAGE LOHGARH. THE COPIES OF DOCUMENTS WERE SUPPLIED TO THE COUNSEL OF THE ASSESSEE AND HE CLEARLY DENIED THAT THESE DOCUMENTS ARE FORGED DOCUMENTS AND NOT RELATED TO THE ASSESSEE AND HE ALSO STRONGLY ARGUED THAT THESE DOCUMENTS ARE THE PHOTOCOPIES AND NOT FOUND FROM THE ASSESSEES PREMISES. FURTHER, HE ALSO EXPLAINED THE INCONSISTENCY IN THE ABOVE DOCUMENTS AS BELOW: 10. THESE DOCUMENTS ARE NOT IN ANY WAY RELATED TO ASSESSEE AND THESE WERE FORGED DOCUMENTS AND THE ASSESSEE HAS NOT EXECUTED DOCUMENT NOS.18 & 19. MOREOVER, FROM THE PERUSAL OF PHOTOCOPIES OF DOCUMENTS, IT IS CLEAR THAT THE AGREEMENT IS NOT ON STAMP PAPER AND SIGNATURE OF ALL PARTIES TO AGREEMENT ARE MISSING. WE ALSO SUBMIT THAT PART OF CONTENTS MENTIONED IN PAGE 33 O F ANNEXURE BL HAS BEEN COPIED ON DOCUMENT NO.19 OF ANNEXURE B2 AND, THEREFORE, IT IS CLEAR THAT SOMEON E HAS FORGED THE CONTENTS AND PREPARED DOCUMENT NOS.18 & 19. FURTHER, IT WAS NOT FOUND FROM THE PREMISES OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT EXAMINED ANY PARTY TO THE AGREEMENT AND NO ENQUIRY HAS BEEN CONDUCTED. FURTHER THE ASSESSEE AND OTHER BUYERS HAVE PURCHASED ONLY 8 KANAL & 3 MARLAS OUT OF TOTAL LAND MEASURING 25 KANALS & 10 MARLAS AND ASSESSEE IS NOT AWARE ABOUT THE BALANCE LAND SOLD BY MRS. PUSHPINDER & OTHERS AND CONSIDERATION RECEIVED BY SELLERS. FURTHER THE ASSESSING OFFICER HAS NOT SUPPLIED THE COPIES OF RETURNS OF SELLERS. FURTHER THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS ALREADY EXPLAINED THAT THE ASSESSEE AND OTHER 2 PERSONS, NAMELY S/SHRI JAGPAL SINGH AND BIMAL SURI HAD AGREED TO PURCHASE 25 KANALS 11 MARLAS LAND FOR CONSIDERATION OF RS.1.20 CRORE AND PAID BIANA OF RS.40 LACS AND THE ASSESSEE AND OTHER 2 PERSONS 9 COULD NOT ARRANGE MONEY AND AGREED TO PURCHASE ONLY 1/3 SHARE OF LAND FOR CONSIDERATION OF RS.41.2 5 LAKHS IN ORDER TO SAVE HIS ORIGINAL BIANA. THE ASSESSING OFFICER IS ONLY RELYING ON PHOTOCOPIES OF FORGED DOCUMENTS, WHICH WERE FOUND FROM THE PREMISES OF THIRD PARTY. 11. THAT THE ASSESSEE HAD NEVER EXECUTED ANY AGREEMENT TO SELL DATED 29.1.2005 FOR PURCHASE OF 25 KANALS 18 MARLAS @ RS.1.18 CRORES PER ACRE FOR THE TOTAL CONSIDERATION OF RS.3,76,00,000/-. HOWEVER, THE ASSESSEE HAS ENTERED INTO AGREEMENT TO SELL FOR THE PURCHASE OF 25 KANALS 18 MARLAS FOR THE TOTAL CONSIDERATION OF RS.1.20 CRORES WITH MRS. PUSHPINDER KAUR, S/SHRI GURTEJ SINGH & PRITPAL SINGH. UNDER THE SAID AGREEMENT TO SELL, I.E. FOR TOTAL CONSIDERATION OF RS.1.20 CRORES, THE ASSESSEE ALONG WITH OTHER PERSONS, NAMELY, S/SHRI JAGPAL SINGH AND GULSHAN RAI SATIJA. THE ASSESSEE AND OTHER TWO PERSONS HAS PAID TOTAL SUM OF RS.40 LACS IN EQUAL PROPORTION AS ON 29.01.2005. THE ASSESSING OFFICER HAS MADE ADDITION OF RS.1,12,04,166/- ON THE BASIS OF FORGED PHOTOCOPY OF AGREEMENT OF TOTAL CONSIDERATION OF RS.3,76,00,000/-, WHICH THE ASSESSEE AND TWO OTHER PERSONS HAS NEVER EXECUTED. IT WAS FURTHER SUBMITTED THAT THE PHOTOCOPIES OF TH E DOCUMENTS WERE NOT FOUND AT THE PREMISES OF ASSESSEE AND IT WAS FOUND DURING THE COURSE OF SURVEY CONDUCTED AT THE PREMISES OF THIRD PARTY, I.E., NOT PARTY TO THE AGREEMENT. FURTHER, THE ASSESSING OFFICER COLLECTED THE EVIDENCE AT THE BAC K OF ASSESSEE AND NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO CROSS EXAMINE THE PERSONS WITH WHOM THE ALLEGED AGREEMENT WAS ENTERED INTO. THE ASSESSEE HAD ALREADY DENIED THE CONTENTS OF AGREEMENT ON THE BASIS OF WHICH THE ADDITION WAS MADE. THE ASSESSING OFFICER HAD NOT MADE ANY 10 ENQUIRY FROM ANY OF THE PARTIES TO VERIFY THE TRUTH . THE ASSESSEEE ALONGWITH OTHER TWO PERSONS TO THE AGREEMENT HAS PAID IN PREVIOUS FINANCIAL YEAR 2004- 05 RS.40 LACS IN CASH AGAINST THE TOTAL CONSIDERATI ON OF RS.1.20 CRORES AND DUE TO FINANCIAL CONSTRAINT, IT WAS BEYOND THE CONTROL OF ASSESSEE AND OTHER TWO PARTIES TO FULFILL THE BALANCE CONSIDERATION OF RS. 80 LACS AND THEY OFFERED MR. SHEKHAR CHAWLA TO TAKE 50% SHARE OF THE DEAL. THE ASSESSEE AND OTHER PERSONS TO THE AGREEMENT COULD NOT PAY THE BALANCE SUM AS PER TERMS OF AGREEMENT AND THE SELLER AGREED TO SELL L/3 RD OF LAND IN THE NAME OF ASSESSEE AS WELL AS OTHER PERSONS TO THE AGREEMENT. SO, THE LAND CONSISTING OF 8 KANALS 10 MARLAS WAS REGISTERED IN THE NAME OF S/SHRI GULSHAN RAI, JAGPAL SINGH & BIMAL SURI (HAVING 50% SHARE) AND SHRI SHEKHAR CHAWLA (HAVING 50% SHARE) FOR THE TOTAL SALES CONSIDERATION OF RS.42,50,000/-. THE REGISTERED SALE DEED FOR THE SAME WAS EXECUTED AS ON 17.06.2005. THE COPY OF THE REGISTRATION DEED IS ENCLOSED HEREWITH FOR YOUR KIND REFERENCE. THE REST OF AREA OF LAND I.E. 2/3 RD OF THE TOTAL LAND WAS NOT SOLD TO ASSESSEE AND THE ASSESSEE IS NOT AWARE OF THE FACTS TO WHOM AND AT WHAT RATE THE SAID REST OF LAND WAS SOLD. THE ASSESSING OFFICER MENTIONED THAT THE SELLERS HAD FILED THEIR RETURNS OF INCOME WITH DCIT JALANDHAR SHOWING THE SALE CONSIDERATION RECEIVED BY THEM AT RS.3.76 CRORE. IN THIS REGARD, THIS FACT WAS NEVER CONFRONTED TO ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND MOREOVER THE ASSESSEE HAD PURCHASED VERY SMALL SHARE IN TOTAL LAND AND WAS NOT AWARE ABOUT THE REST OF LAND SOLD BY SELLERS AND NOWHERE IT IS MENTIONED THAT TH E ASSESSEE HAS PAID MORE AMOUNT THAN SHOWN IN REGISTERED SALE DEED. FURTHER, THE COUNSEL ARGUED THAT THE PRESUMPTION IS ONLY WITH REGARD TO THE PERSON FROM WHOSE POSSESSION AND CONTROL THE BOOKS 11 OF ACCOUNTS AND DOCUMENTS ARE FOUND. MOREOVER, THIS PRESUMPTION IS REBUTTABLE PRESUMPTION. THE PRESUMPTION WITH RESPECT OF PHOTOCOPY OF DOCUMENTS FOUND FROM THE THIRD PARTIES PREMISES COULD NOT BE MADE AGAINST ASSESSEE. 12. THE ASSESSEE ALONG WITH TWO OTHER PERSONS HAD PURCHASED LAND MEASURING 4 KANALS 5 MARLAS FOR CONSIDERATION OF RS.21.25 LAKHS THROUGH REGISTERED SALE DEED. THE COUNSEL ALSO PLACED RELIANCE ON THE JUDGMENT OF KERALA HIGH COURT IN TH E CASE OF CIT VS. SMT. K.C. AGNES 128 TAXMANN 848 (KERALA). THE AMOUNT STATED IN THE SALE DEED CANNO T BE IGNORED ON THE BASIS OF AGREEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACTUALLY PAID. ON THE BASIS OF AGREEMENT TO SELL, I T CANNOT BE CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. 13. THE COUNSEL OF ASSESSEE ALSO PLACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM, 282 ITR 259 CONCLUDING THAT IN ABSENCE OF ANY INDEPENDENT ENQUIRY, ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION TOWARDS PURCHASE CONSIDERATION OF LAND MERELY ON THE BASIS OF STATEMENT OF SELLER, WH O GAVE CONFLICTING STATEMENTS. HE ALSO STATED THAT TH AT THE HON'BLE SUPREME COURT AFFIRMED THE DECISION OF MADRAS HIGH COURT QUOTED SUPRA. 14. THE COUNSEL ALSO PLACED RELIANCE ON FOLLOWING JUDGEMENTS :- - RAM SAROOP SAINI, HUF VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AT 12 15 SOT 470 (DEL). IN THIS CASE THE HON'BLE TRIBUNAL CONCLUDED AS UNDER: - MOOSA S MADHA & AZAM S MADHA VS CIT REPORTED IN 89 ITR 65(SC). - PRARTHANA CONSTRUCTION P LTD VS DCIT 70TTJ 122. - CIT VS RAM KUMAR 163 TAXMAN 253 (P&H) - 19 TTJ 546, 77 TTJ (MUMBAI)(TM) (1) , 59TTJ 574. 15. THE LEARNED CIT (APPEALS) CONSIDERING THE MATERIAL ON RECORD DELETED THE ENTIRE ADDITION. HI S FINDINGS IN PARAS 20 TO 23 OF THE IMPUGNED ORDER AR E REPRODUCED AS UNDER : (A) THE INCRIMINATING DOCUMENTS WERE NOT FOUND FROM THE ASSESSEES PREMISES AS THESE DOCUMENTS WERE FOUND F ROM CHANDIGARH OVERSEAS PRIVATE LIMITED & THE ASSESSING OFFICER HAS NOT PROVED ANY CONNECTION WITH THE APPE LLANT & THEREFORE ONUS WAS ON THE DEPARTMENT TO PROVE THAT THESE DOCUMENT BELONG TO APPELLANT. (B) THE DOCUMENTS FOUND ARE ONLY PHOTOCOPIES & NO O RIGINAL DOCUMENTS WERE FOUND & AS SUPREME COURT DECISION IN CASE OF MOOSA S MADHA & AZAM S MADHA VS CIT 89 ITR 65(SC) THE PHOTOCOPIES HAVE LITTLE EVIDENTIARY VALU E. (C) THE SURVEY TEAM & ASSESSING OFFICER HAS NOT MAD E ANY ENQUIRY FROM THE SELLERS , BUYERS PARARSAV COLONISE RS & CONSULTANT LIMITED & GEE CITY BUILDERS PVT LIMITED WITH RESPECT TO PURCHASE OF ANY LAND FROM THE APPEL LANT OR FROM THE ORIGINAL SELLERS DIRECTLY AND CONSIDERA TION PAID BY APPELLANT & OTHER BUYERS & SIMPLY RECORDED THE 13 STATEMENT OF APPELLANT DURING COURSE OF ASSESSMENT PROCEEDINGS . (D) THE ASSESSING OFFICER RELIED ON THE RETURN OF I NCOME FILED BY THE BUYERS & THERE WERE NO DETAILS WITH RESPECT TO SALE CONSIDERATION RECEIVED FROM ORIGINAL BUYERS & NEW BUYERS & DURING THE COURSE OF APPELLATE PROCEEDINGS NO SUCH RETURNS WERE PRODUCED. (E) THE APPELLANT & OTHER BUYERS HAD NOT PURCHASED THE ENTIRE LAND AS SHOWN IN AGREEMENT TO SELL DATED 29- 01- 2005 & EVEN IN REGISTERED SALE DEED 1/3 SHARE OF TO TAL LAND WAS PURCHASED BY ORIGINAL BUYERS & OTHER PARTY & THEREFORE IT IS CLEAR THAT THEY HAD NOT ACTED UPON THE AGREEMENT TO SELL DATED 29-01-2005. (E) THE AGREEMENT RELIED UPON BY AO I.E. DOCUMENT N O 18 & 19 OF ANNEXURE B 2 IS NOT ON STAMP PAPER & SIGNA TURE OF ALL PARTIES TO AGREEMENT ARE MISSING & MOREOVER DOCUMENT NO 33 OF ANNEXURE B L(AGREEMENT)IS ON THE STAMP PAPER FOR SALE OF SAME LAND & NO CONSIDERATIO N WAS MENTIONED ON THIS DOCUMENT. (F) THE PART OF CONTENTS MENTIONED IN PAGE 33 OF ANNEXURE BL HAS BEEN COPIED ON DOCUMENT NO 19 OF ANNEXURE B2 & THEREFORE PROBABILITY OF FORGING TH E CONTENTS TO PREPARE DOCUMENT NO. 18 & 19 CANNOT BE ENTIRELY RULED OUT. 21 FURTHER THE ITAT, I DELHI BENCH JUDGMENT IN CAS E OF RAM SAROOP SAINI, HUF VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AT 15 SOT 470 (DEL) HAS DEALT T HE CASE RELATING TO AGREEMENT TO SELL, STATEMENT & UNDERSTA TEMENT OF 14 SALE CONSIDERATION CASE. IN THIS CASE THE HON'BLE T RIBUNAL CONCLUDED AS UNDER: IN THE ABSENCE OF ANY MATERIAL, UNDERSTATEMENT OF S ALE CONSIDERATION COULD NOT BE IMPLIED IN RESPECT OF CE RTAIN TRANSACTIONS OF SALE OF LAND MERELY ON THE BASIS OF UNVERIFIED STATEMENT OF A PROPERTY AGENT AND COPIES OF AGREEME NTS TO SELL RELATING TO SOME OTHER TRANSACTIONS; UNDERSTATEMENT OF SALE CONSIDERATION CANNOT BE SAID TO HAVE BEEN ESTABLISH ED EVEN IN RESPECT OF THOSE TRANSACTIONS IN RELATION TO WHICH AO WAS IN POSSESSION OF COPIES OF AGREEMENT TO SELL WHICH DIS CLOSED HIGHER SALE CONSIDERATION AS THE PURCHASERS HAVE NO T SIGNED ON THE FIRST PAGE OF THE DOCUMENTS, REQUISIT E COURT FEE STAMP IS NOT AFFIXED, AO DID NOT POSSESS THE OR IGINALS AND THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CROSS -EXAMINE THE PROPERTY AGENT WHO HAD ALLEGEDLY MADE AN ADVERS E STATEMENT AND, THEREFORE, NO ADDITION CAN BE SUSTAI NED. ' 22 IN VIEW OF ABOVE DISCUSSION & JUDGEMENT GIVEN B Y KERALA HIGH COURT REPORTED AT 128 TAXMAN 848. AMOUN T STATED IN THE SALE DEED CAN NOT BE IGNORED ON THE BASIS OF AGREEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACT UALLY PAID. ON THE BASIS OF AGREEMENT TO SELL IT CAN NOT BE CON CLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT & ALSO PLACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM 282 ITR 259 (AFFIRMED BY SUPREME COURT) CONCLUDED THAT IN ABSENCE OF ANY IND EPENDENT ENQUIRY, AO WAS NOT JUSTIFIED IN MAKING ADDITION TO WARDS PURCHASE CONSIDERATION OF LAND. 23. THE ADDITION SO MADE IS THEREFORE DELETED, ALLO WING ASSESSEE'S APPEAL ON THIS GROUND. 15 16. ON GROUND NO.3, THE ASSESSING OFFICER MADE ADDITION OF RS.1,44,50,000/-. THE ASSESSING OFFICER ALSO NOTICED THAT THE DOCUMENT NOS.15 AND 16 OF ANNEXURE B-2 IS AN AGREEMENT TO SELL DATED 19.04.2005 OF THE SAME LAND I.E. 25 KANAL 10 MARLAS AND AS PER THESE DOCUMENTS, THE LAND HAS BEEN FURTHER AGREED TO BE SOLD TO M/S PARSAV COLONISERS AND CONSULTANTS PVT. LTD. AT A RATE OF 2,54,00,000/ - PER ACRE AND ALSO NOTICED THAT IT IS MENTIONED IN T HE AGREEMENT THAT AN AMOUNT OF RS.75.00 LACS HAD BEEN PAID AS ADVANCE MONEY BY PARSAV COLONISERS, DIRECTOR SHRI SHEKHER CHAWLA, WHICH INCLUDES RS.3.00 LACS BY CHEQUE NO.165251 OF ANDHRA BANK AND RS.72.00 LACS BY CASH. THIS IS ALSO MENTIONED THAT AN AMOUNT OF RS.25 LACS WILL BE PAID BY 15.4.2005 AND THE DATE OF REGISTRY HAD BEEN FIXED ON 15.6.2005. 17. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, INFORMATION WAS CALLED UNDER SECTION 133(6) OF THE ACT FROM ANDHRA BANK, SECTOR 34-A, CHANDIGARH BRANCH. IT WAS CONFIRMED FROM THE INFORMATION RECEIVED THAT THE CH. NO.165251 HAD BEEN ISSUED IN FAVOUR OF SMT.PUSHPINDER KAUR (SELLER) BY DEBIT TO THE ACCOUNT OF M/S PARSAV COLONISERS. IT ESTABLISHE D BEYOND DOUBT THAT THE AGREEMENT TO SELL IN QUESTION WAS CORRECT AND THE ENTIRE AMOUNT OF CONSIDERATION AT RS.8,09,62,500/- PROVED. 18. THUS THE SELLERS I.E. S/SHRI GULSHAN RAI SATIJA, JAGPAL SINGH AND BIMAL SURI HAVE EARNED PROFIT ON SALE OF THIS LAND AS BELOW:- SALE CONSIDERATION AS PER AGREEMENT TO SELL @ RS. 2,54,000 PER ACRE 8K 10 M TO M/S PARSAV COLONISERS THROUGH ITS MANAGING DIRECTOR SH. SHEKHAR CHAWLA 8,09,62,500/- LESS: COST OF ACQUISITION AS MENTIONED IN PARA A(-) 3,76,12,500/- 16 PROFIT 4,33,50,000/- 1/3 RD SHARE OF THE ASSESSEE 1,44,50,000/- 19. THE ASSESSING OFFICER MAINLY RELIED UPON THE IMPOUNDED DOCUMENT NOS.15 & 16 OF ANNEXURE B2 FOUND FROM THE PREMISES OF THIRD PARTY. THE COUNSEL DURING THE COURSE OF APPELLATE PROCEEDINGS SUBMITTED THAT THE ASSESSEE HAD NOT ENTERED INTO ANY AGREEMENT DATED 19.4.2005 AND THAT THESE DOCUMENTS WERE FORGED & BOGUS AND WERE NOT FOUND FROM THE PREMISES OF ASSESSEE. FURTHER THE DEPARTMENT DID NOT MAKE ANY ENQUIRY FROM M/S PARSAV COLONISERS & CONSULTANT LIMITED TO KNOW THE TRUTH. 20. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE COUNSEL OF ASSESSEE SUBMITTED THAT M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. HAD NOT PURCHASED ANY LAND AT LOHGARH FROM THE ASSESSEE & OTHER TWO PERSONS TILL DATE AND THEREFORE, THE QUESTION OF PROFIT ON SALE OF LAND A T LOHGARH TO M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. DOES NOT ARISE. THE DEPARTMENT RELIED UPO N THE AGREEMENT AND FROM THE PARA-C OF ASSESSING OFFICERS ORDER, IT IS CLEAR THAT THE DEPARTMENT HA S CALCULATED THE PROFIT ONLY ON THE BASIS OF AGREEMEN T WITHOUT ASCERTAINING THE FACT THAT WHETHER THE LAND IN QUESTION WAS ACTUALLY SOLD TO M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD OR NOT. THE ASSESSEE HEREBY UNDERTOOK THAT NO LAND AT LOHGARH WAS EVER SOLD TO M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. THERE IS NO EVIDENCE WITH T HE DEPARTMENT THAT THE LAND WAS ACTUALLY PURCHASED BY M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. FROM THE ASSESSEE. FURTHER, IT WAS SUBMITTED THAT 17 THE ASSESSEE HAD NOT SOLD ANY LAND AT LOHGARH TO PARSHAV COLONIZERS AND CONSULTANTS PVT. LTD. TILL DATE AND THEREFORE, THE QUESTION OF PROFIT ON SALE OF LAND DOES NOT ARISE. WITHOUT PREJUDICE TO AFORESAID SUBMISSIONS, THE ASSESSEE SUBMITTED THAT THE PROFIT ON SALE OF LAND CAN ONLY BE DETERMINED AFTER COMPLETION OF SALE TRANSACTION AND NOT ONLY ON THE BASIS OF ADVANCE. FURTHER THE ASSESSING OFFICER RELIED UPON THE PAYMENT RECEIVED FROM THE PARSHAV COLONIZERS & CONSULTANTS PRIVATE LIMITED AND THERE IS NO RELATION BETWEEN PAYMENT RECEIVED AND TERMS & CONDITION OF AGREEMENT RELIED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER RELIED UPON PHOTOCOPY OF FORGED & BOGUS DOCUMENTS WHICH DO NOT RELATE TO ASSESSEE AND NOT EXECUTED BY ASSESSEE AND WHICH WERE COLLECTED AT THE BACK OF ASSESSE FROM THE PREMISES OF THIRD PARTIES NOT RELATED TO ASSESSEE. FURTHER THE ASSESSING OFFICER HAD NOT MADE ANY INQUIRY FROM ORIGINAL SELLERS, BUYERS & COMPANIES TO KNOW THE TRUTH. FURTHER THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM PARSHAV COLONISER CONSULTANTS PRIVATE LIMITED TO KNOW THE TRUTH AND PURCHASE CONSIDERATION PAID IF ANY TO ASSESSEE AND OTHER ALLEGED OWNERS. THE ASSESSEE HAS NOT SOLD ANY LAND TO PARSHAV COLONISERS CONSULTANTS PRIVATE LIMITED AND, THEREFORE, QUESTION OF PROFIT DOES NOT ARISE. 21. THE LEARNED CIT (APPEALS), HOWEVER, DELETED THE ENTIRE ADDITION. HIS FINDINGS IN PARA 11 OF THE ORDER ARE REPRODUCED AS UNDER: 11 I HAVE GONE THROUGH THE ASSESSMENT ORDER & SUBMISSION MADE BY APPELLANT & IT IS CLEAR THAT THE AO HAS CALCULATED THE PROFIT ON THE BASIS OF PHOTOCOPIES O F AGREEMENT TO SELL WITHOUT ASCERTAINING THE FACT WHETHER THE D EAL HAS MATURED OR NOT. IN THE ASSESSMENT ORDER IN PARA 5 I T IS MENTIONED 18 ADVANCE HAS BEEN GIVEN & DATE OF REGISTRY HAS BEEN FIXED ON 15- 06-2005 & IT IS SHOCKING THAT NO EFFORT WAS MADE TO KNOW THE COMPLETION OF TRANSACTION & SIMPLY ON THE FACT THAT CHEQUE OF RS 3 ISSUED IN FAVOUR OF PUSHPINDER KAUR HAS BEEN ISSU ED BY DEBITING THE ACCOUNT OF PARSAV COLONISERS ADDITION HAS BEEN MADE. THE ASSESSING OFFICER HAS NOT BROUGHT ANY MAT ERIAL ON RECORD TO PROVE SALE OF LAND TO PARSAV COLONISERS & CONSULTANT PRIVATE LIMITED & IN VIEW OF MY OBSERVATION IN RESP ECT OF PHOTOCOPIES OF DOCUMENT , IMPOUNDED FROM THIRD PART Y PREMISES, ABSENCE OF ENQUIRY IN PRECEDING PARAS THERE IS NO J USTIFICATION TO SUSTAIN THE ADDITION ON ACCOUNT OF SALE OF LAND TO PARSAV COLONISERS & CONSULTANT PRIVATE LIMITED. THE ADDITI ON SO MADE IS DELETED, ALLOWING ASSESSEE'S PLEA ON THIS GROUND . 22. ON GROUND NO.4, THE ASSESSING OFFICER MADE ADDITION OF RS.19,65,625/-. THE ASSESSING OFFICER ALSO OBSERVED FROM THE IMPOUNDED DOCUMENTS 23-30 OF ANNEXURE B-2 THAT ON THE BACK SIDE OF DOCUMENT NO. 30 AN AMOUNT OF RS.1,30,01,100/- HAS BEEN RECEIVED AS ADVANCE MONEY BY S/SHRI GULSHAN RAI, JAGPAL SINGH, BIMAL SURI (ASSESSEE) & SHEKHAR CHAWLA. 23. AS PER DETAILS AVAILABLE ON BACK SIDE OF DOCUMENT NO.30 OF ANNEXURE B:2, AN AMOUNT OF RS.22,00,000/- BY CHEQUE HAS BEEN RECEIVED BY SHRI SHEKHAR CHAWLA, AN AMOUNT OF RS.22,00,000/- BY CHEQUE HAS BEEN RECEIVED BY THE SELLER, I.E. PARTY NO.2 AND ANOTHER AMOUNT OF RS.85,00,000/- BY CHEQUES HAS BEEN RECEIVED BY THE PARTY NO.1 AND ANOTHER AMOUNT OF RS.1,01,000/- HAS BEEN RECEIVED IN CASH BY PARTY NO.1. IT IS ALSO MENTIONED THAT ORIGINAL OWNER I.E. SMT. PUSHPINDER KAUR AND OTHER WOULD GET LAND REGISTERED IN THE NAME OF PARTY NO.3 . AS PER POINT NO. 28 OF THIS AGREEMENT, TOTAL SALE CONSIDERATION OF THE LAND HAS BEEN FIXED @ OF 19 RS.3,65,00,000/- PER ACRE. THE TOTAL VALUE OF THE LAND THUS COMES TO RS.11,58,87,500/-. AS PER POINT 27 OF THIS AGREEMENT, PARTY NO.1 AND 2 ARE BOUND TO GET ADDITIONAL LAND MEASURING 2500 SQUARE YARDS ARRANGED AND TRANSFERRED ON THE SAME RATE I.E. RS.3.65 LAC PER ACRE AND GET IT REGISTERED IN THE NAME OF PARTY NO.3 WITHIN SIX MONTHS IRRESPECTIVE O F THE RATE AT WHICH THE LAND IS ARRANGED FROM THE ORIGINAL OWNER. THIS ADDITIONAL LAND IS ADJOINING TO THE MAIN LAND PURCHASED BY PARTY NO.3. AFTER THAT ADDITIONAL PAYMENT OF RS.1.59 LACS WILL BE MADE BY PARTY NO.3 AS PARTY PAYMENT WITHIN SEVEN DAYS FROM THE DATE OF EXECUTION OF SALE DEED PERTAINING TO LA ND MEASURING 2500 SQUARE YARDS. THE AGREEMENT DATED 29.6.2005 WITH GEE CITY CONSULTANT PVT. LD. EXTREMELY IMPORTANT AND CAN BE TAKEN AS TRUE AND ONE THAT WAS ACTED UPON. ITS AUTHENTICITY IS PROVED BY THE FOLLOWING FACTS:- THIS AGREEMENT CONTAINS REFERENCE TO THE ORIGINAL AGREEMENT TO SELL DATED 29.01.2005 AND ITS TERMS AND CONDITIONS THAT THE BUYERS S/SHRI GULSHAN RAI, JAGPAL SINGH & BIMAL SURI CAN HAVE THE LAND REGISTERED IN THEIR OWN NAME OR IN ANY OTHER NAME. THIS INDEED WAS THE INTENTION OF THE BUYERS, THE ASSESSEE BEING ONE OF THEM, TO FURTHER SELL THE LAND AT PROFIT WITHOUT GETTING IT REGISTERED IN ITS OWN NAME. THIS WAS A COMMON OCCURRENCE AROUND THE PERIOD WHEN PRICES OF REAL ESTATE WERE ESCALATING BY THE DAY IN THE AREAS AROUND ZIRAKPUR AND THERE WAS A FRANTIC GROWTH OF RESIDENTIAL COMMERCIAL ESTATES IN THE AREA BY PRIVATE BUILDERS. 20 IT REFERS TO THE AGREEMENT DATED 20.04.2005 WITH PARSAV COLONISERS. IT HAS REFERENCE TO THE REGISTERED SALE DEED DATED 17.06.2005 OF L/3 RD SHARE OF 25 KANALS 10 MARLAS (8 KANAL 10 MARLAS). IN THIS CONNECTION, IT IS PERTINENT TO MENTION THAT OUT OF 25K 10 MARLAS OF LAND, THIS SALE DEED WAS REGISTERED ON 17.06.2005 IN THE NAME OF S/SHRI BIMAL SURI, JAGPAL SINGH & GULSHAN RAI, SHARE AND THE REMAINING SHARE IN THE NAME OF SHRI SHEKHAR CHAWLA. IN OTHER WORDS, THE ASSESSEE SHRI BIMAL SURI WAS HAVING L/6 TH SHARE IN THIS LAND MEASURING 8 KANAL 10 MARLAS, WHICH WAS AS PER THE AGREEMENT DATED 29.06.2005, WAS SOLD TO GEE CITY CONSULTANTS P. LTD. THE COST PRICE OF THIS LAND WAS @ RS.2,54,00,000/- PER ACRE WHICH COMES TO RS.2,69,00,000/- ADOPTED AS PER THE AGREEMENT DATED 19.04.2005. THE SALE PRICE OF THIS LAND COMES TO RS.3,87,81,250/- CALCULATED @ RS.3.65 CRORES PER ACRE AS PER THE AGREEMENT DATED 29.06.2005. 24. IN VIEW OF THIS, THE PROFIT ON SALE OF THIS LAND MEASURING 8 KANAL 10 MARLAS IS CALCULATED AS UNDER:- SALE CONSIDERATION @ RS. 3.65 CRORES PER ACRE 3,87,81,250/- COST PRICE @ RS. 2.54 CRORES PER ACRE 2,69,87,500/- SHORT TERM CAPITAL GAIN 1,17,93,750/- ASSESSEE' S SHARE (L/6 TH ) 19,65,625/- 25. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ADDITION ON THE 21 BASIS OF TRIPARTITE AGREEMENT (AS MENTIONED IN ORDE R) AMONG GEE CITY BUILDERS PVT. LTD., PARSHAV COLONIZERS AND CONSULTANTS PVT. LTD. AND SHEKHAR CHAWLA AND GULSHAN RAI & OTHERS, WHICH WAS NEVER EXECUTED BY THE ASSESSEE. FURTHER, NO SUCH DOCUMENTS WERE PROCURED FROM THE PREMISES OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM GEE CITY BUILDERS PVT. LTD, AND BY RELYING ON THE PHOTOCOPY OF DOCUMENTS WHICH WAS NOT EXECUTED BY ASSESSEE AND MADE ADDITION WITHOUT ANY ENQUIRY FROM GEE CITY BUILDERS PVT. LTD. FURTHE R IN PHOTOCOPY, ALL PARTIES TO AGREEMENT HAVE NOT SIGNED AND, THEREFORE, IT CAN NOT BE RELIED UPON. T HE COUNSEL ALSO PLACED RELIANCE UPON THE JURISDICTIONA L HIGH COURT JUDGEMENT IN CASE OF CIT VS RAM KUMAR 163 TAXMAN 253. IN THIS CASE, IT WAS HELD THAT ASSESSING OFFICER DID NOT RECOVER THE DOCUMENTS FRO M THE POSSESSION OF ASSESSEE NOR THE ASSESSEE CONFRONTED WITH THE SEIZED MATERIAL. 26. THE LEARNED CIT (APPEALS), HOWEVER, DELETED THE ENTIRE ADDITION. HIS FINDINGS IN PARAS 28 AND 29 OF HIS ORDER ARE REPRODUCED AS UNDER : 28. IN VIEW OF ABOVE DISCUSSION & JUDGEMENT GIVEN BY KERALA HIGH COURT REPORTED AT 128 TAXMAN 848. AMOUNT STATED IN THE SALE DEED CAN NOT BE IGNORED ON THE BASIS OF AGREEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACTUALLY PAID. ON THE BASIS OF AGREEMENT TO SELL IT CAN NOT BE CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT & ALSO PLACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM, 282 ITR 259( AFFIRMED BY SUPREME COURT) CONCLUDED THAT IN ABSENCE 22 OF ANY INDEPENDENT ENQUIRY, AO WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF PROFIT ON SALE OF LAND TO M/S GEE CITY BUILDERS PRIVATE LIMITED. 29. IN VIEW OF THE ABOVE DISCUSSION, THE PLEA ON THIS GROUND IS ACCEPTED, DELETING THE ADDITION SO MADE. 27. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES. THE LEARNED D.R. REFERRED TO PAPER BOOK FILED BY THE DEPARTMENT IN WHICH COPIES OF THE AGREEMENTS TO SELL IN QUESTION HAVE BEEN FILED. THE LEARNED D.R. SUBMITTED THAT EVEN IF TH ESE ARE COPIES OF THE ORIGINAL AGREEMENT TO SELL, BUT COPIES OF THE SALE AGREEMENT BEING SECONDARY EVIDENCE ARE ADMISSIBLE UNDER THE EVIDENCE ACT. THE LEARNED D.R. REFERRED TO SECTIONS 63, 64 AND 65 OF THE EVIDENCE ACT. THE LEARNED D.R. SUBMITTED THAT ON THE PHOTOCOPY OF THE AGREEMENT TO SELL, THE RE ARE SIGNATURE OF THE ASSESSEE IN WHICH IT WAS PROVIDED THAT SALE DEED CAN BE EXECUTED IN THE NAME OF ANY PERSON. THE LEARNED D.R. SUBMITTED THAT THE CIT (APPEALS) SHOULD NOT HAVE DELETED ALL THE ABOVE ADDITIONS. 28. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT NO AGREEMENT TO SELL OR ANY INCRIMINATING DOCUMENT WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. THESE WERE FOUND FROM THE THIRD PARTY, I.E. M/S CHANDIGARH OVERSEAS PRIVATE LIMITED. NO ORIGINAL DOCUMENT WAS FOUND OR RECOVERED DURING THE COURSE OF SURVEY OR LATER ON. THEREFORE, PHOTOCOPY OF THE ORIGINAL IS NOT ADMISSIBLE AS EVIDENCE AND RELIED UPON UNREPORTED DECISION OF DELHI HIGH COURT IN THE 23 CASE OF CIT VS. MOORTI DEVI IN ITA NO.979/2010 DATED 20.9.2010, IN WHICH DEPARTMENTAL APPEAL WAS DISMISSED OBSERVING THAT THE ORIGINAL DOCUMENTS WERE NEVER CONFRONTED TO THE ASSESSEE AND NOTHING HAS BEEN BROUGHT ON RECORD AS TO WHAT HAPPENED TO THE ORIGINAL DOCUMENTS. THERE IS NO MATERIAL EVEN TO INDICATE THAT PHOTOCOPIES ARE THE COPIES OF THE ORIGINAL DOCUMENTS. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT NO ENQUIRY WAS CONDUCTED FROM ANY PARTY, I.E. BUYER OR SELLER TO T HE AGREEMENT TO SELL. IN THE CASE OF ONE OF THE BUYE RS, M/S GEE CITY BUILDERS PRIVATE LIMITED, THE ASSESSING OFFICER PASSED ORDER UNDER SECTION 153A R.W.S. 143(3)) OF THE ACT FOR ASSESSMENT YEAR 2006- 07 BUT NO ADDITION HAVE BEEN MADE IN THIS CASE. THE COPY OF THE ASSESSMENT ORDER DATED 31.12.2010 IS PLACED ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE PARTIES HAVE NOT SIGNED ANY AGREEMENT, THEREFORE, ADDITIONS HAVE BEEN RIGHTLY DELETED BY THE LEARNED CIT (APPEALS). 29. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT SURVEY WAS CONDUCTED AT THE PREMISES OF CHANDIGARH OVERSEAS PRIVATE LIMITED AND ITS SISTER CONCERNS AND DURING THE COURSE OF SURVEY, CERTAIN LOOSE PAPERS INCLUDING COPIES OF AGREEMENT TO SELL IN QUESTION WERE IMPOUNDED. THUS, NO AGREEMENT TO SELL OR ANY INCRIMINATING DOCUMENTS WERE FOUND FROM THE POSSESSION OF THE ASSESSEE. THERE IS NO RECOVERY OF ANY INCRIMINATIN G DOCUMENT FROM THE POWER AND POSSESSION OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE ANY CONNECTION OF THE ASSESSEE WITH THESE DOCUMENTS/AGREEMENT TO SELL. THE ASSESSING OFFICER WANTED TO RELY UPON TH E PHOTOCOPIES OF THE AGREEMENT TO SELL IN QUESTION. THEREFORE, THE ONUS WOULD BE UPON THE ASSESSING 24 OFFICER TO PROVE THAT THE DOCUMENTS FOUND DURING TH E COURSE OF SURVEY FROM THIRD PARTY, BELONGED TO THE ASSESSEE. THE ORIGINAL OF THE PHOTOCOPIES WERE NEVER RECOVERED IN SURVEY PROCEEDINGS OR IN POST SURVEY PROCEEDINGS. THE DOCUMENTS FOUND ARE ONLY PHOTOCOPIES AND NO ORIGINAL DOCUMENTS WERE FOUND. THEREFORE, PHOTOCOPIES OF THE DOCUMENTS WOULD HAVE LITTLE EVIDENTIARY VALUE. IT IS ALSO ADMITTED FACT THAT THE SURVEY PARTY AS WELL AS ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM ANY SELLER OR BUYER, M/S PARSAV COLONISERS AND CONSULTANTS PRIVATE LIMITED AND M/S GEE CITY BUILDERS PRIVATE LIMITED WITH RESPECT TO SALE/PURCHASE OF ANY LAND FROM THE ASSESSEE OR FROM ANY ORIGINAL SELLERS DIRECTLY OR INDIRECTLY. NO MATERIAL HAVE BEEN BROUGHT ON RECOR D IF THE ASSESSEE WAS CONNECTED WITH ANY DEAL AS ALLEGED IN THE PHOTOCOPIES OF THE AGREEMENT TO SELL . NO DETAILS OF ANY SALE CONSIDERATION OR ACTUAL AMOUNT RECEIVED OR PAID BY THE ASSESSEE HAVE BEEN BROUGHT ON RECORD. NO EVIDENCE HAVE BEEN BROUGHT ON RECORD IF AGREEMENTS TO SELL IN QUESTION WERE ACTED UPON BY THE PARTIES. THE AGREEMENT TO SELL DATED 29.1.2005 IS NOT ON ANY STAMP PAPER. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MURTI DEVI (SUPRA) WHILE DISMISSING DEPARTMENTAL APPEAL REFERRED TO THE FINDINGS OF THE TRIBUNAL IN WHICH IT WAS HELD THAT THE PHOTOCOPIES OF THE DOCUMENTS HAVE VERY LITTLE EVIDENTIARY VALUE AND IN THE ABSENCE OF ORIGINAL DOCUMENTS, PHOTOCOPIES OF THE DOCUMENTS ARE NOT ADMISSIBLE AND CANNOT BE THE BASIS FOR MAKING ADDITION. IT IS, THEREFORE, A FAC T THAT NO ORIGINAL AGREEMENTS TO SELL WERE FOUND FROM ANY PERSON AND ORIGINAL DOCUMENTS WERE NEVER CONFRONTED TO THE ASSESSEE. THEREFORE, THERE IS NO QUESTION OF PREPARING COPIES FROM THE ORIGINAL AGREEMENT TO SELL. THEREFORE, PHOTOCOPIES OF THE AGREEMENT TO SELL CANNOT BE COMPARED WITH ORIGINAL 25 DOCUMENTS. RELIANCE OF THE LEARNED D.R. THUS ON SECTIONS 63, 64 AND 65 OF THE EVIDENCE ACT IS CLEAR LY MISPLACED. THERE WAS THUS NO BASIS TO MAKE ANY ADDITION AGAINST THE ASSESSEE ON ACCOUNT OF INVESTMENT OR EARNING ANY PROFITS OUT OF ANY SALE TRANSACTION ALLEGED TO HAVE BEEN RECORDED IN THE AGREEMENT TO SELL. SINCE THE DOCUMENTS WERE IMPOUNDED FROM THIRD PARTY AND NO ENQUIRY HAVE BEEN MADE FROM THEM OR FROM ANY PARTY RELATED TO THE AGREEMENT TO SELL, THEREFORE, THERE WAS NO JUSTIFICATION TO MAKE ANY ADDITION AGAINST THE ASSESSEE ON THE BASIS OF SUCH AGREEMENT TO SELL. EVEN IN THE CASE OF M/S GEE CITY BUILDERS PRIVATE LIMITED, THE ASSESSING OFFICER PASSED REGULAR ASSESSMENT ORDER UNDER SECTION 153A R.W.S. 143(3)) OF THE ACT BUT NO ADDITION HAVE BEEN MADE IN THIS CASE. THE LEARNED CIT (APPEALS) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD CORRECTLY DELETED THE ADDITIONS. 30. CONSIDERING THE ABOVE DISCUSSION AND TOTALITY OF FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPEALS) IN DELETING ALL THE ABOVE THREE ADDITIONS . 31. THE DEPARTMENTAL APPEAL HAS NO MERIT, THE SAME IS ACCORDINGLY, DISMISSED ON ALL THE GROUNDS. 32. THE DEPARTMENTAL APPEAL IS DISMISSED. 10. LD. REPRESENTATIVES OF BOTH THE PARTIES, THEREF ORE, SUBMITTED THAT THESE GROUNDS ARE COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN T HE CASE OF SHRI BIMAL SURI (SUPRA). WE FIND THAT ISSU E AND FACTS ARE IDENTICAL IN THE CASE OF THE ASSESSEE AS HAVE 26 BEEN CONSIDERED IN THE CASE OF SHRI BIMAL SURI (SUP RA) IN WHICH LD. CIT(A) DELETED ALL THESE ADDITIONS AND TRIBUNAL DISMISSED DEPARTMENTAL APPEAL ON SAME FACT S. FOLLOWING THE ORDER IN THE CASE OF SHRI BIMAL SURI (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BEL OW AND DELETE ALL THE ADDITIONS. GROUND NOS. 2, 4 AND 5 O F APPEAL OF THE ASSESSEE ARE ALLOWED. 11. ON GROUND NO. 3, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 1,07,084/- ON ACCOUNT OF INVESTMENT IN REGISTRATION OF PURCHASE DEED. DURING THE ASSESSME NT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT 1/3 RD SHARE OF THE LAND WAS GOT REGISTERED ON 17.06.2005 AT RS. 42,50,000/- BY THE THREE ORIGINAL BUYERS ( SH ARE) AND SHRI SHEKHAR CHAWLA, DIRECTOR, PARSHAV COLONISE RS ( SHARE). IN ADDITION TO SALE CONSIDERATION, RS. 3,82,500/- AND RS. 10,000/- WERE PAID TOWARDS STAMP DUTY AND REGISTRATION FEES RESPECTIVELY BY THE BUYE RS. THE ASSESSING OFFICER COMPUTED ASSESSEE'S 1/6 TH SHARE IN THE INVESTMENT (1/3 RD OF ) AS UNDER : I) ADDL. INVESTMENT IN LAND RS. 2,50,000/- (RS. 42,50,000/- - RS.40 LACS) II) STAMP DUTY RS.3,82,500/- III) REGISTRATION FEE RS. 10,000/- -------------------- RS. 6,42,500/- IV) 1/6 TH SHARE OF ASSESSEE RS. 1,07,084/- 12. IT WAS NOTED THAT SINCE THE ASSESSEE WAS UNABLE TO SHOW ANY CORRESPONDING WITHDRAWAL OF THE AMOUNT EIT HER OUT OF HIS BANK ACCOUNTS OR IN CASH BOOK, ASSESSING 27 OFFICER MADE THE ADDITION OF RS. 1,07,084/- ON ACCO UNT OF UNACCOUNTED INVESTMENT FOR REGISTRATION OF LAND. 13. DURING THE APPELLATE PROCEEDINGS, ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS IGNORED TH E FACT THAT SUM OF RS. 42,50,000/- HAS BEEN PAID THRO UGH ACCOUNT PAYEE CHEQUES.ONLY STAMP DUTY AND REGISTRAT ION FEES HAVE BEEN PAID IN CASH, THEREFORE, WHOLE ADDIT ION IS UNJUSTIFIED. FURTHER, IN THE REMAND PROCEEDINGS, IT WAS SUBMITTED BEFORE ASSESSING OFFICER THAT COST OF THE LAND INCLUDING REGISTRATION EXPENSES HAVE BEEN REFLECTED IN THE BOOKS OF ACCOUNT, THEREFORE, NO UNDISCLOSED INVESTMENTS HAVE BEEN SHOWN. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. 14. AFTER CONSIDERING RIVAL SUBMISSIONS, WE ARE OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER. THE EXPLANATION OF THE ASSESSEE THAT RS. 42,50,000/- HAVE BEEN PAID THROUGH BANKING CHANNEL AND OTHER EXPENSES ARE REFLECTED IN THE BOO KS OF ACCOUNT, HAVE NOT BEEN ADJUDICATED BY THE LD. CIT(APPEALS) THROUGH ANY SPEAKING ORDER. THE LD. CIT(APPEALS), HAS NOT GIVEN ANY FINDING OF FACT ON THE SAME. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMIT TED THAT ASSESSEE HAS SHOWN INVESTMENT ON THESE ITEMS O F HIS SHARE I.E. 1/6 TH , THEREFORE, ADDITION IS WHOLLY UNJUSTIFIED. HOWEVER, THESE CONTENTIONS OF THE ASS ESSEE HAVE NOT BEEN ADJUDICATED BY THE AUTHORITIES BELOW. WE, 28 THEREFORE, SET ASIDE THE ORDERS OF AUTHORITIES BELO W AND RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THIS ISSUE BY GIVING REASONA BLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSING OFFICER SHALL PASS SPEAKING ORDER ON THE BASIS OF MATERIAL PRODUCED ON RECORD BY THE ASSESSE E. THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. 15. ON GROUND NO. 6, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 24,83,333/- ON ACCOUNT OF UNEXPLAINED BANK CREDITS. THE REVENUE ON GROUND NO. 2 CHALLENGED TH E ORDER OF LD. CIT(APPEALS) IN DELETING THE ADDITION. DURING ASSESSMENT PROCEEDINGS, ASSESSING OFFICER NO TED THAT ASSESSEE SHRI JAGPAL SINGH, SHRI GULSHAN RAI SATIJA AND SHRI BIMAL SURI HAVE JOINT BANK ACCOUNT WITH ANDHRA BANK SECTOR 34, CHANDIGARH. THE INFORMATION ABOUT THE ACCOUNT WAS CALLED UNDER SECTION 133(6) O F THE ACT AND ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE CASH DEPOSITED ON VARIOUS DATES IN THE BANK ACCOUNT , DETAILS OF WHICH ARE NOTED IN THE IMPUGNED ORDER IN A SUM OF RS. 74,50,000/-. SINCE ASSESSEE DID NOT FUR NISH ANY EXPLANATION ABOUT THE CREDITS, THEREFORE, SAME WERE CONSIDERED AS UNEXPLAINED CASH CREDITS AND 1/3 RD SHARE OF THE CREDIT I.E. RS. 24,83,333/- WAS ADDED TO THE RETURNED INCOME OF THE ASSESSEE. 16. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSION OF THE ASSESSEE IS 29 REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE ASSES SEE EXPLAINED THAT DCIT, CIRCLE 6(1) ACCEPTED SOURCE OF DEPOSIT IN JOINT ACCOUNT IN THE CASE OF SHRI BIMAL SURI THEREFORE, ASSESSING OFFICER CANNOT ADOPT A DIFFERE NT YARDSTICK FOR MAKING ADDITION. THE ASSESSEE ALSO EXPLAINED THAT THERE ARE DEPOSITS OF RS. 4,50,000/- + RS. 9,00,000/- + RS. 9,00,000/- ( RS. 22,50,000/-) AS O N 28.06.2005, TOTAL SHARE OF THE ASSESSEE COMES TO RS . 15 LACS. THE ASSESSEE HAS DEPOSITED RS. 6 LACS OUT OF CASH AVAILABLE IN HIS BOOKS OF ACCOUNT AND RS. 8 LACS HA VE BEEN RECEIVED BY THE ASSESSEE FROM M.B. COSCURE PVT . LTD. CHANDIGARH AS ADVANCE AGAINST SALE OF PROPERTY ON 28.06.2005 AND BALANCE WAS DEPOSITED BY THE ASSESSE E OUT OF CASH AVAILABLE WITH HIM. FURTHER, THERE IS ADDITION OF RS. 5,75,000/- AND RS. 21,25,000/- IN B ANK AS ON 31.08.2005 AND 03.09.2005 WHICH SUM COMES TO RS. 27 LACS. THE ASSESSEE HAS MADE WITHDRAWALS OF RS. 27 LACS FROM THE BANK ON 11.08.2005 WHICH WAS RE- DEPOSITED WITH THE BANK. THERE IS A DEPOSIT OF RS. 22 LACS AS ON 28.06.2005 AND THE SAID AMOUNT HAS BEEN RECEIVED FROM SHRI SUMESH CHAWLA AGAINST ADVANCE OF RS. 22 LACS ALREADY MADE TO HIM WHICH IS MADE THROU GH THE SAME BANK ACCOUNT. IT WAS, THEREFORE, SUBMITTE D THAT WHOLE ADDITION IS UNJUSTIFIED. 16(I) THE LD. CIT(APPEALS) CALLED FOR THE REMAND RE PORT FROM THE ASSESSING OFFICER IN WHICH IT IS STATED TH AT NO EXPLANATION REGARDING THESE CREDITS WERE FILED AT 30 ASSESSMENT STAGE. THE ASSESSEE AT THE APPELLATE ST AGE ATTEMPTED TO BRING ADDITIONAL EVIDENCE ON THIS ISSU E IN VIOLATION OF RULE 46A OF IT RULES. THE LD. CIT(APP EALS) NOTED THAT THE JOINT ACCOUNT IS OPERATED BY THE ASS ESSEE ALONGWITH TWO OTHER PERSONS WHICH WAS USED FOR PURCHASE AND SALE TRANSACTION OF THE LAND AND ULTIMATELY SOLD TO M/S GEE CITY BUILDERS. NO EXPLANATION IS FILED AT THE ASSESSMENT STAGE. THE EXPLANATION SUBMITTED BY ASSESSEE IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE AND IS AFTER THOUGHT. THE LD. CIT(APPEALS), HOWEVER, CONSIDERING THAT ASSESSING OFFICER COMPUTED THE ADDITION OF RS. 1,44,50,000/- AS ASSESSEE'S SHARE OF PROFIT EARNED ON SALE CONSIDERA TION AS PER AGREEMENTS THEREFORE, TELESCOPING BENEFIT WA S GIVEN AND ADDITION WAS DELETED FOR STATISTICAL PURP OSES. 16(II) BOTH THE PARTIES AGITATED FINDINGS OF LD. CIT(APPEALS) IN THEIR RESPECTIVE GROUNDS OF APPEAL. 17. AFTER CONSIDERING RIVAL SUBMISSIONS, WE ARE OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS MENTI ONED IN THE REMAND REPORT THAT ASSESSEE HAS NOT FURNISHE D ANY EXPLANATION ON THESE CREDITS AT ASSESSMENT STAG E WHICH FACT IS ALSO MENTIONED IN THE ASSESSMENT ORDE R. THE ASSESSING OFFICER IN THE REMAND REPORT CONTENDE D THAT THESE ARE ADDITIONAL EVIDENCES UNDER RULE 46A OF IT RULES. THE LD. CIT(APPEALS), INSTEAD OF DECIDING T HE ISSUE ON MERIT, DELETED THE ADDITION BECAUSE ASSESS ING 31 OFFICER HAS MADE ADDITION ON ACCOUNT OF PROFIT EARN ED BY ASSESSEE AND GIVEN TELESCOPING BENEFIT OF ADDITION OF RS. 1.44 CR ON WHICH WE HAVE DELETED THE ADDITION ON GROUND NO.4 FOLLOWING THE ORDER OF ITAT CHANDIGARH IN THE CASE OF SHRI BIMAL SURI (SUPRA). THE REVENUE H AS CONTENDED THAT SUCH A BENEFIT SHOULD NOT BE GIVEN T O THE ASSESSEE BUT IT IS A FACT THAT ONCE ADDITION HAVE B EEN DELETED OF THE PROFIT EARNED BY ASSESSEE ON ACCOUNT OF AGREEMENT TO SELL, THEN THIS GROUND SHALL HAVE TO B E DECIDED AND ADJUDICATED UPON ON MERITS AND NO SUCH BENEFIT COULD BE EXTENDED TO THE ASSESSEE FOR DELET ING THE ADDITION FOR STATISTICAL PURPOSES. WE FIND THA T ASSESSEE HAS PRIMA-FACIE CASE FOR DELETION OF THE ADDITION BECAUSE THE ASSESSEE HAD MADE SPECIFIC SUBMISSION BEFORE LD. CIT(APPEALS) THAT ADDITION IS LIABLE TO BE DELETED BECAUSE SIMILAR ADDITION WAS D ELETED IN THE CASE OF SHRI BIMAL SURI AND ASSESSEE EXPLAIN ED THAT SAME AMOUNT WAS WITHDRAWN AND RE-DEPOSITED IN THE SAME BANK ACCOUNT AND CERTAIN AMOUNTS WERE AVAILABLE TO THE ASSESSEE THEREFORE, IT SHOULD BE D ECIDED ON THE BASIS OF THE EVIDENCE AND MATERIAL ALREADY O N RECORD. SINCE ACCORDING TO THE ASSESSING OFFICER, NO EXPLANATION WAS FILED ON THIS GROUND BEFORE HIM AT ASSESSMENT STAGE, THEREFORE, THIS ISSUE REQUIRES RE - CONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER . IN THIS VIEW OF THE MATTER, WE SET ASIDE THE FINDINGS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FIL E OF ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THIS GROUND 32 IN ACCORDANCE WITH LAW STRICTLY ON MERITS BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER SHALL RE-DECIDE TH IS GROUND CONSIDERING THE MATERIAL PRODUCED ON RECORD BY THE ASSESSEE. THIS GROUND OF APPEAL OF THE ASSESSE E AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 18. THERE IS NO OTHER GROUND LEFT IN ASSESSEE'S APP EAL. 18(I) ASSESSEE'S APPEAL IS PARTLY ALLOWED. ITA 542/2015 ( DEPARTMENTAL APPEAL ) 19. GROUND NO. 2 IN DEPARTMENTAL APPEAL FOR DELETIN G ADDITION OF RS. 24,83,333/- HAVE ALREADY BEEN ADJUDICATED IN ASSESSEE'S APPEAL ABOVE. 20. THE ONLY GROUND LEFT FOR CONSIDERATION IS GROUN D NO. 1 IN DEPARTMENTAL APPEAL, WHICH READS AS UNDER : WHETHER ON THE FACTS AND CIRCUMSTANCES OF ME CASE THE LD. CIT(A) HAS ERRED BY DELETING THE ADDITION OF RS. 32,91,38 3/- AS ASSESSEE'S SHARE ON ACCOUNT OF PROFIT GENERATED FROM THE REGISTRATION OF 2500 SQ. YARDS LAND BELONGING TO VARIOUS PARTIES. 21. DURING THE ASSESSMENT PROCEEDINGS, ASSESSING OFFICER NOTED THAT AS PER AGREEMENT TO SELL DATED 29.06.2005 WITH M/S GEE CITY BUILDERS, SHRI GULSHAN RAI & OTHERS AND PARASHAV COLONIZERS WERE UNDER OBLIGATION TO ARRANGE ADDITIONAL LAND OF 2500 SQ.YD S. AND TRANSFER THE SAME AT THE SAME RATE OF RS. 3.65 CR PER ACRE TO M/S GEE CITY BUILDERS. THE ASSESSING 33 OFFICER NOTED FROM THE IMPOUNDED DOCUMENTS THAT SIX PROPERTIES WERE SOLD BY DIFFERENT SELLERS NAMELY S/ SHRI SURJAN SINGH, KARAM CHAND, MANJIT SINGH, KARAMJEET, BHAGWANT SINGH, DEEPAK SHARMA AND ISHAR SINGH NAGPAL. ALL SIX PROPERTIES WERE REGISTERED IN THE N AME OF BUYER M/S GEE CITY BUILDERS. ALTHOUGH THE SALE AMOU NTS AS PER REGISTERED SALE DEED WERE LOWER AS REFLECTED IN THE CHART NOTED IN THE ASSESSMENT ORDER BUT THE ASSESSI NG OFFICER COMPUTED THE SALE VALUE BY APPLYING RATE OF RS. 3.65 CR PER ACRE. ACCORDINGLY, THE PROFIT IN E ACH TRANSACTION BEING DIFFERENCE OF COMPUTED VALUE AND THE VALUE AS PER SALE DEED WAS CALCULATED. THE ASSESSI NG OFFICER AS PER TRIPARTITE AGREEMENT, COMPUTED ASSES SEE'S SHARE AS 1/5 TH AND THUS, MADE ADDITION OF RS. 32,91,383/- AS ASSESSEE'S SHARE ON ACCOUNT OF PROFI T GENERATED ON ARRANGEMENT OF ADDITIONAL LAND. 22. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSION OF THE ASSESSEE IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE ASSES SEE BRIEFLY SUBMITTED THAT ASSESSING OFFICER HAS RELIED UPON TRIPARTITE AGREEMENT WHICH THE ASSESSEE HAS NEVER EXECUTED. FURTHER, EVEN IF PHOTO COPY FOUND FROM T HE PREMISES OF THIRD PARTY, THOUGH NOT ADMITTED, THE SIGNATURE OF THE ASSESSEE IS MISSING. IT WAS SUBMIT TED THAT ASSESSING OFFICER IN THE CASE OF SHRI BIMAL SU RI DID NOT MAKE THE SIMILAR ADDITION. IT WAS ALSO SUBMITT ED THAT ASSESSING OFFICER MADE THIS ADDITION ON THE BA SIS OF 34 AGREEMENT WHICH WAS NEVER EXECUTED BY THE ASSESSEE. THE ASSESSEE EXPLAINED PARTY-WISE THAT IN ALL THE S IX CASES, ASSESSEE HAS NOT ENTERED INTO ANY AGREEMENT FOR PURCHASE OR SALE OF THE LAND AND NO PROFIT IS GENER ATED IN THE HANDS OF THE ASSESSEE. WHATEVER PROFIT WAS GENERATED, WAS IN THE HANDS OF SELLER ONLY. THE SUBMISSIONS OF THE ASSESSEE WERE FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS IN WHICH ASSESSI NG OFFICER REITERATED THE FACTS STATED IN THE ASSESSME NT ORDER AND SUBMITTED THAT ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF TRIPARTITE AGREEMENT DISCU SSED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. 23. THE LD. CIT(APPEALS) CONSIDERING MATERIAL ON RECORD, DELETED THE ENTIRE ADDITION. HIS FINDINGS IN PARA 11.3 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER : 11.3 I HAVE GONE THROUGH THE FACTS OF THE CASE, W RITTEN SUBMISSION FILED BY THE APPELLANT, REMAND REPORT OF T HE AO AND THE ASSESSMENT RECORD. IT IS NOTED THAT THE AO ON THE BASIS OF OBLIGATION TO ARRANGE ADDITIONAL LAND OF 2500 SQ. YDS . FOR GEE CITY BUILDERS AS PER TRIPARTITE AGREEMENT TO SALE DAT ED 29.06.2005 APPLIED THE RATE OF RS.3.65 CRORES PER A CRE AND COMPUTED THE PROFIT GENERATED ON ACCOUNT OF ARRANGE MENT OF ADDITIONAL LAND THROUGH 6 REGISTERED SALE DEEDS FROM VARIOUS SELLERS IN THE NAME OF GEE CITY BUILDERS. IN SALE O F 4 PROPERTIES AS PER DOCUMENTS THE A.O. NOTED THE SELLERS HAVE BE EN THROUGH SHRI GULSHAN RAI SATIJA. IN RESPECT OF TWO PROPERTIES, THE A.O. HAS MENTIONED THE BUYERS AS GEE CITY BUILDER THROUGH SH. GULSHAN RAI SATIJA. THE AO HAS NOTED THAT GULSHAN RAI SATIJA HAS ACTED AS MIDDLE MAN. ON THE OTHER HAND, THE APPE LLANT HAS 35 SUBMITTED THAT THE AO HAS MADE ADDITION ON ACCOUNT O F NOTIONAL PROFIT ON THE BASIS OF THE REGISTRATION OF 2500 SQ. YDS . LAND BELONGING TO VARIOUS PARTIES SURROUNDED TO 25 KANAL 10 MARLA LAND. THE PROPERTIES WERE SOLD BY THE RESPECTIVE PER SONS BY ENTERING INTO AGREEMENT DIRECTLY WITH GEE CITY BUILDE RS AND THE APPELLANT HAS NEVER ENTERED INTO ANY AGREEMENT WITH T HE SIX PERSONS FOR PURCHASE OF PROPERTIES AND SUBSEQUENT S ALE TO THE GEE CITY BUILDERS. EVEN IF, ANY PROFIT IS GENERATED IT CAN BE ASSESSED IN THE HANDS OF THE SELLER ONLY. AFTER CON SIDERING THE APPELLANT SUBMISSIONS AND FACTS OF THE CASE, IT IS NOT ED FROM THE DETAILS OF PROPERTY TRANSACTIONS AS GIVEN IN THE CHART BY THE AO IN THE ASSESSMENT ORDER; THESE ARE AGREEMENTS FROM INDIVIDUAL PERSON FOR SALE OF PROPERTY IN THE NAME OF GEE CITY BUILDERS. THERE IS NO EVIDENCE THAT THE APPELLANT WA S INVOLVED IN SUCH DEALS EITHER THROUGH ANY DOCUMENT AS AGREEMENT TO SELL OR ANY OTHER EVIDENCE SHOWING THAT THE APPELLANT AND OTH ER AND PARSHAV COLONISERS MADE ANY PURCHASE OF THESE PROPER TIES AS ADDITIONAL LAND AND SOLD TO GEE CITY BUILDERS. THE AO HAS ALSO NOT CONDUCTED ANY FURTHER ENQUIRY TO FIND OUT ANY INVOLVEMENT OF THE APPELLANT IN THE PURCHASE AND SALE O F THE ADDITIONAL LAND THROUGH 6 REGISTERED SALE DEEDS. IN T HE ABSENCE OF SUCH EVIDENCE OR ANY FURTHER INQUIRY, THE AO WAS NOT JUSTIFIED IN MAKING THE SHARE OF THE APPELLANT AS NOTIONAL PROFI T IN ARRANGEMENT OF ADDITIONAL LAND OF 2500 SQ. YDS. ALTHOUG H, THE AO HAS NOTED NAME OF SH. GULSHAN RAI SATIJA ACTING AS: MI DDLE MAN IN FOUR TRANSACTIONS AND PURCHASE AND SALE OF LAND IN ONE TRANSACTION; WITH SH. ISHAR SINGH NAGPAL TO GEE CIT Y BUILDERS BUT THE AO HAS NOT FOUND THE NAME OF APPELLANT IN AN Y OF SIX PROPERTIES PURCHASED AND SOLD TO GEE CITY BUILDERS EITH ER AS PURCHASER OR SELLER OR AS MIDDLE MAN. THEREFORE, IN T HE ABSENCE OF ANY EVIDENCE REGARDING EARNING PROFIT OR COMMISS ION ON SUCH ARRANGEMENT OF ADDITIONAL LAND OF 2500 SQ. YDS. TO GEE CITY BUILDERS, THE A.O. WAS NOT JUSTIFIED IN CALCULA TING THE NOTIONAL PROFIT EARNED ON ACCOUNT OF SUCH REGISTRATION OF 2500 36 SQ.YDS. LAND BELONGING TO VARIOUS OTHER PARTIES. THE REFORE, THE ADDITION OF RS. 32,91,383/- AS APPELLANT SHARE OF PR OFIT IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 24. AFTER CONSIDERING SUBMISSIONS, WE DO NOT FIND A NY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSING OFFICER MADE THE ABOVE ADDITION ON THE BA SIS OF TRIPARTITE AGREEMENT TO SELL DATED 29.06.2005. THE LD. CIT(APPEALS) NOTED THAT PROPERTIES WERE SOLD BY THE RESPECTIVE PERSONS BY ENTERING INTO AGREEMENT DIREC TLY WITH M/S GEE CITY BUILDERS AND ASSESSEE HAS NEVER ENTERED INTO ANY AGREEMENT WITH SIX PERSONS FOR PURCHASE OF PROPERTIES. THIS FACT IS ALSO MENTIONE D BY ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT SELL ERS ENTERED INTO TRANSACTION DIRECTLY WITH THE BUYER M/ S GEE CITY BUILDERS. IF ANY PROFIT IS TO BE ASSESSED OR GENERATED, IT SHOULD BE ASSESSED IN THE HANDS OF SE LLER ONLY. THE ASSESSING OFFICER IN THE ASSESSMENT ORDE R HAS NOTED THAT THESE ARE AGREEMENTS FROM INDIVIDUAL PER SONS FOR SALE OF PROPERTY IN THE NAME OF M/S GEE CITY BUILDERS. NO EVIDENCE WAS FOUND AGAINST THE ASSESS EE THAT HE WAS INVOLVED IN ANY DEAL EITHER THROUGH ANY DOCUMENT OR AGREEMENT TO SELL. THE ASSESSING OFFICE R HAS NOT CONDUCTED ANY FURTHER INQUIRY TO FIND OUT T HE INVOLVEMENT OF ASSESSEE IN ANY PURCHASE AND SALE OF LAND THROUGH SIX REGISTERED SALE DEEDS. IN THE ABS ENCE OF ANY EVIDENCE ON RECORD AGAINST ASSESSEE TO ACT A S MIDDLEMAN OR CONDUIT, LD. CIT(APPEALS) WAS JUSTIFIE D IN 37 DELETING THE ADDITION. THIS GROUND OF APPEAL OF TH E REVENUE HAS NO MERIT. SAME IS, ACCORDINGLY, DISMISS ED. 25. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 26. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND DEPARTMENTAL APPEAL IS PARTLY ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH S AINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH NOVEMBER, 2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD