SHRIMATI HARMOHINDER KAUR, JALANDHAR V. DEPUTY COMMISSIONER OF INCOME TAX, OFFICER CENTRAL CIRCLE-II, JALANDHAR

ITA 568/ASR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6410 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRABHJO T KAUR LD
• Assessee Lawyers: ASHRAY SARNA LD
• Keywords: Loose papers; Document seized; Documents seized; Capital Gains
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N.K.CHOUDHRY, JUDICIAL MEMBER AND DR. A.L.SAINI, ACCOUNTANT MEMBER ITA NO.568/ASR/2018 ASSESSMENT YEAR: 2009-10 SMT. HARMOHINDER KAUR H.NO.10, JYOTI NAGAR, INCOME TAX COLONY, JALANDHAR. VS. DY. CIT, CENTRAL CIRCLE-II, JALANDHAR. [PAN: AJJPK 9642E] (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ASHRAY SARNA (LD. CA) RESPONDENT BY: SMT. PRABHJOT KAUR (LD. CIT- DR) DATE OF HEARING: 28.11.2019 DATE OF PRONOUNCEMENT: 16.01.2020 ORDER PER N.K.CHOUDHRY, JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT AGAINST THE IMPUGNED ORDER DATED 19.09.2018 PASSED BY THE LD. CIT(A)-5, LUDHIANA, U/S 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. IN THE INSTANT CASE, THE ASSESSING OFFICER MADE VARIOUS ADDITIONS INCLUDING THE ADDITION OF RS.28,50,001/- WH ICH IS UNDER CHALLENGE, ON THE BASIS OF NOTING MADE IN THE DAIRY OF THE HUSBAND OF THE ASSESSEE. THE SAID ADDITION WAS CHALLENGED BY THE ASSE SSEE BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER SUSTAINED THE ASSESSMENT ORDER AND CONFIRMED VARIOUS ADDITIONS INCLUDING THE AD DITION UNDER CHALLENGE BY OBSERVING AS UNDER: ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 2 3.2 GROUNDS OF APPEAL NOS. 3, 4 & 5 PERTAIN TO ADDITION OF RS.28,50,001/- TO THE INCOME OF THE ASS ESSEE AS 'LONG TERM CAPITAL GAINS'. THE AO HAS MENTIONED THA T THE ASSESSEE ALONG WITH HER HUSBAND SH. MOHINDER SINGH AND HER DAUGHTER- IN-LAW SMT. JASWINDER KAUR OWNED A PROPER TY WHICH WAS SOLD ON 02.05.2008. THE SHARES OF THE CO- OWNERS WERE SH. MOHINDER SINGH 1/2, SMT. HARMOHINDER KAUR L/3 RD AND SMT. JASWINDER KAUR 1/6 TH . THE AO HAS MENTIONED THAT AS PER THE REGISTRY, THE PROPERTY WAS SOLD FOR A TOTAL CONSIDERATION OF RS.29,50,000/-RECEIVED IN CASH, OU T OF WHICH ASSESSEE'S SHARE COMES TO RS.9,83,333/-. THE PROPER TY WAS PURCHASED ON 01.01.2004 AND THE INVESTMENT BY THE A SSESSEE FOR HER SHARE WAS RS.5,49,800/- AND ACCORDINGLY THE ASSESSEE DECLARED LONG TERM CAPITAL GAIN OF RS.2,92 ,224/-. IT IS FURTHER MENTIONED BY THE AO THAT DURING THE SEAR CH, A DIARY WAS FOUND AND SEIZED AS ANNEXURE A-9 FROM THE RESID ENCE OF THE ASSESSEE AND PAGE-13 OF THIS DIARY HAS NOTING T HAT SHOWS THE ACTUAL SALE CONSIDERATION RECEIVED IN RESPECT O F THIS PROPERTY WAS RS.1,15,00,000/-. A SHOW CAUSE WAS ACCORDINGLY ISSUED TO THE ASSESSEE ON 04.02.2015 CO NFRONTING THESE FACTS AND ASKING WHY THE TOTAL SALE CONSIDERA TION SHOULD NOT BE TAKEN AT RS.1,15,00,000/- AND CAPITAL GAINS BE RE-COMPUTED ACCORDINGLY. THE ASSESSEE FILED REPLY O N 06.02.2015 STATING THAT THE DIARY DOES NOT BELONG T O THE ASSESSEE AND THE NOTINGS THEREIN ARE NOT IN THE HAN DWRITING OF THE ASSESSEE. THE REPLY WAS CONSIDERED BY THE AO BU T WAS FOUND UNACCEPTABLE. THE AO HAS OBSERVED THAT IN ASS ESSEE'S OWN CASE FOR A.Y.2008-09, IT HAS BEEN SUBMITTED THA T THE DIARY WAS MAINTAINED BY HER HUSBAND SH. MOHINDER SI NGH, BEING HEAD OF THE FAMILY WAS CONTROLLING ALL THE FI NANCIAL MATTER OF THE FAMILY. IT IS ALSO MENTIONED BY THE A O THAT HE WAS OWNER OF HALF SHARE OF THE PROPERTY UNDER CONSI DERATION AND ACCORDINGLY THE CONTENTION OF THE ASSESSEE THAT SHE HAS NOTHING TO DO WITH THE CONTENTS OF THE DIARY, WAS UNACCEPTABLE. AS PER AO, IN TERMS OF SECTION 292C O F THE INCOME TAX ACT, 1961 THE DOCUMENTS FOUND IN THE POS SESSION OF PERSONS DURING THE COURSE OF SEARCH ARE TO BE TA KEN AS BELONGING TO THEM AND CONTENTS OF SUCH DOCUMENTS AR E TRUE. THE AO CORROBORATED THE ENTRIES ON PAGE NO. 10 AND 13 OF THE DIARY BY REPRODUCING THE COPIES IN THE ASSESSMENT O RDER AT PAGE 4 & 5 OF THE ASSESSMENT ORDER. AS PER AO, THE HEADING ON THE TOP OF THE PAGE NO.13 'DIV- 3' INDICATE THAT THESE PAYMENTS PERTAIN TO SALE OF THE PROPERTY NEAR CHOWK I DIVISON- 3. AS PER THE AO, THE NOTING SHOWS THAT TOTAL AMOUN T OF RS.1,15,00,000/- HAS BEEN RECEIVED ON SALE CONSIDER ATION OF ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 3 THIS PLOT WHICH IS ALSO PROVED WHEN THESE ENTRIES A RE SEEN ALONG WITH ENTRIES ON PAGE NO. 10 OF THE SAME DIARY . THE AO MENTIONED THAT THIS PAGE SHOWS AMOUNT OF CASH ACTUA LLY WITH SH. RUBY (I.E. SH. BALWINDER SINGH KOHLI, THE SON O F THE ASSESSEE) AND THE FIGURE OF RS. 28,50,000/- PERTAIN S TO ANOTHER UNACCOUNTED SALE CONSIDERATION OF SHOP IN M BD MALL. THE AO ALSO MENTIONED THE CO-RELATION OF THE OTHER ENTRIES ON THESE PAGES AND THE DATES MENTIONED AGAINST THE TWO ENTRIES AS 25 TH AND 26 TH FEBRUARY AT PLACE GORAYA FOR RECEIPT OF CASH FROM THE PURCHASER. ON THE BASIS OF THE DOCUMENTS, THE AO CONCLUDED THAT A TOTAL CASH OF RS. 1,15,00,000/- WA S RECEIVED AS SALE CONSIDERATION OF THIS PROPERTY NEAR DIVISON -3, CHOWKI WHILE THE REGISTRY SHOWS THE SALE CONSIDERATION OF RS.29,50,000/-. THE ASSESSEE'S SHARE OUT OF RS. 1,15,00,000/- WAS RS.38,33,334/- (EQUAL TO L/3 RD SHARE) AND THE 'LONG TERM CAPITAL GAIN' WAS ACCORDINGLY CALCUL ATED AT RS.31,42,225/- AS AGAINST RS.2,92,224/- DECLARED BY THE ASSESSEE. HENCE AN ADDITION OF RS.28,50,001/- WAS M ADE TO THE RETURNED INCOME OF THE ASSESSEE AS 'LONG TERM C APITAL GAIN'. THE FACTS OF THE CASE, THE BASIS OF ADDITION MADE B Y THE A.O. AND ARGUMENTS OF THE AR DURING THE COURSE OF A PPELLATE PROCEEDINGS HAVE BEEN CONSIDERED. THE AR DURING THE APPELLATE PROCEEDINGS ARGUED THAT THE SEIZED/MATERI AL IN THE FORM OF DIARY DOES NOT BELONG TO THE ASSESSEE, IT B ELONG TO THE AESSEE'S HUSBAND SH. MOHINDER SINGH. AS PER THE AR, THE PROPERTY WAS SOLD FOR TOTAL CONSIDERATION WAS RS.29 ,50,000/- AND THE ASSESSEE'S SHARE, BEING L/3 RD OF THE TOTAL SALE CONSIDERATION, WAS RS.9,83,333/- AS PER REGISTRATIO N DEED DATED 02.05.2008. IT IS ALSO ARGUED THAT THERE IS N O MENTION OF ASSESSEE'S NAME IN THE PARTICULARS OF THE DIARY SEI ZED DURING THE SEARCH AND THAT IT IS NOWHERE MENTIONED IN THE SALE DEED. AS PER THE AR, EVEN IF THE ASSUMPTION IS TO BE MADE , IT CANNOT BE IN THE CASE OF THE ASSESSEE. THE OTHER ARGUMENTS OF THE AR WERE THAT THE PRESENT CASE IS NOT A CASE WHERE CIRC LE RATE OR VALUE AS PER STAMP REGISTRATION AUTHORITY IS MORE T HAN WHAT HAS BEEN DISCLOSED. AS PER AR, THE NOTHING ON THE D IARY BY NO STRETCH OF IMAGINATION CAN BE TREATED AS CONCLUSIVE PROOF OF ON- MONEY TRANSACTION BY THE ASSESSEE. HERE IT IS IMPORTANT TO NOTE THAT THE DIARY W AS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND IT HAS BEEN ACCEP TED BY THE ASSESSEE THAT THE DIARY WAS BEING MAINTAINED BY HER HUSBAND SH. MOHINDER SINGH AS PER HER REPLY FILED B EFORE THE ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 4 AO RELATING TO ASSESSMENT YEAR 2008-09 WHICH IS REP RODUCED BELOW FOR CLARITY:- THE DIARY SEIZED AS ANNEXURE A-14 WAS BEING MAINTAINED BY THE HUSBAND OF THE ASSESSEE. PAGE NO. 9 OF THE DAI RY REFERRED IN YOUR LETTER REFERS TO THE AMOUNT OF RS. 49 .00 BEING THE CONSIDERATION OF THE SHOP SOLD BY MBD NEOPOLIS, JALANDHAR. THE HUSBAND OF THE ASSESSEE HAS CLEARLY MENTIONED IN THE SAID PAGE OF THE DAIRY THAT THE SHOP WAS SOLD TO US BY MBD FOR RS. 49.00 LAC AND AFTER ADJUST MENT OF RS. 16.40 THE BALANCE COMES TO RS. 32.60. IN VIEW OF THE ABOVE WE WOULD LIKE CONFIRM THAT NO CAPI TAL GAIN AROSE FROM THE TRANSACTION OF S-9, LUDHIANA AND T HE AMOUNTS ON THE PAGE OF DAIRY REFERRED BY YOUR GOODSELF . IT IS ALSO ON RECORD THAT SH. MOHINDER SINGH, THE HUSBAND OF THE ASSESSEE WAS OWNER OF THE HALF SHARE IN THE PROPERTY UNDER CONSIDERATION AND HE BEING HEAD OF T HE FAMILY, USED TO MANAGE THE FINANCIAL MATTERS OF THE FAMILY. THE AR HAS ALSO ACCEPTED THAT THE DIARY SEIZED FROM THE RE SIDENCE OF THE ASSESSEE WAS BEING MAINTAINED BY SH. MOHINDER S INGH. IT IS ALSO RELEVANT TO MENTIONED THAT FOR ASSESSMENT Y EAR 2008- 09, THE ASSESSEE RELIED UPON THE NOTING OF THE SAME DIARY SEIZED AS ANNEXURE A-14 TO PUT FORWARD THE ARGUMENT S RELATING TO ADDITION OF RS.24,50,000/- ADDED AS 'SH ORT TERM CAPITAL GAIN' ON ACCOUNT OF SALE OF SHOP IN MBD MAL L. DURING THE APPELLATE PROCEEDING FOR ASSESSMENT YEAR 2008-0 9 IN APPEAL NO. 24/IT/CIT(A)-5/LDH/2014-15, THE CO-RELAT ION OF ENTRIES AND FIGURES ON DIFFERENT PAGES OF THE DIARY (SEIZED ANNEXURE A-14) WAS ELABORATELY DISCUSSED IN RELATIO N TO SALE OF SHOP NO. S-9, MBD NEOPOLIS, LUDHIANA ALONG WITH OTHER SEIZED DOCUMENTS FOUND DURING THE SEARCH. SIMILAR T YPE OF CO- RELATION EXISTS BETWEEN ENTRIES ON PAGE NO. 13 AND 10 OF THE SEIZED DIARY. IN FACT, PAGE NO.10 CONTAINS THE TOTA L OF CASH TRANSACTIONS FROM DIFFERENT DEALS AND PAGE NO.13 BY ITS HEADING RELATES TO PROPERTY AT DIV-3. SH. MOHINDER SINGH, THE AUTHOR OF THE DIARY WAS ALSO SHAREHOLDER OF ONE HAL F SHARE IN THE PROPERTY SOLD IN WHICH THE ASSESSEE HAD L/3 RD SHARE. SH. MOHINDER SINGH HAS NOTED IN THIS DIARY, THE VARIOUS TRANSACTIONS ENTERED INTO BY HIM RELATING TO THE FA MILY MEMBERS. ONCE, THE ENTRIES ON ONE PAGE HAS BEEN REL IED UPON FOR GRANTING RELIEF TO THE ASSESSEE FOR ASSESSMENT YEAR 2008- ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 5 09, THE ENTRIES ON THE OTHER PAGES ARE ALSO TO BE R ELIED UPON FOR DECIDED THE APPEAL FOR ASSESSMENT YEAR 2009-10. THE ARGUMENT ABOUT THE DOCUMENTS SEIZED BEING 'DUMB DOCUMENTS' IS ALSO NOT FOUND ACCEPTABLE BECAUSE IN THE REPLY FILED BEFORE THE AO FOR A.Y. 2008-09, IT WAS ACCEPT ED THAT THE DIARY SEIZED AS ANNEXUREA-14 WAS BEING MAINTAIN ED BY THE HUSBAND OF THE ASSESSEE. THE ENTRIES ON PAGE NO .13 (WHICH ARE WRITTEN IN LACS) DULY CO-RELATE WITH THE ENTRIES AT PAGE NO.10 WHERE THE ACTUAL FIGURES ARE WRITTEN. HE NCE, ON THE BASIS OF THE SEIZED MATERIAL, THE TOTAL SALE CONSID ERATION OF THE PROPERTY UNDER CONSIDERATION IS TO BE TAKEN AT RS.1,15,00,000/- AND THE AO RIGHTLY CALCULATED THE 'LONG TERM CAPITAL GAIN' TAXABLE IN THE HANDS OF THE ASSESSEE AT RS.31,42,225/-. THEREFORE, UNDER THE FACTS AND CIRC UMSTANCES OF THE CASE, THE ADDITION OF RS. 28,50,001/- MADE B Y THE AO IS FOUND SUSTAINABLE AND HENCE CONFIRMED. ACCORDINGLY, THESE GROUNDS OF APPEAL ARE DISMISSED. 3. THE ASSESSEE BEING AGGRIEVED PREFERRED THE INSTANT APP EAL. 4. HAVING HEARD THE PARTIES AT LENGTH AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. AS PER REVENUE CASE, DURING THE SEARCH, A DIARY WAS FOUND AND SEIZED AS ANNEXURE A-9 FROM THE RESIDENCE OF THE ASSESSEE AND PAGE 13 OF THE DIARY HAS NOTING WHICH SHOWS THE ACTUAL SALE CONSIDERATION RECEIVED QUA PROPERTY SOLD BY THE HUS BAND OF THE ASSESSEE WAS RS.1,15,00,000/- AS AGAINST THE AMOUNT OF RS.29,50,000/- WHICH HAD BEEN SHOWN AS TOTAL CONSIDERATI ON DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 5. THE ADDITION IN THIS CASE IS BASED UPON DIARY NOTING AN D THEREFORE ISSUE INVOLVED RELATES TO THE VALUE OF SUCH NO TING IN DIARY/DOCUMENT. THE APEX COURT DEALT WITH SUCH KIND OF DOCUMENT AS INVOLVED IN THIS CASE IN THE CASE OF CENTRAL BUREAU OF INVESTIGATION VS. ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 6 V.C. SHUKLA [1998] CRL.LJ 1905 KNOWN AS JAIN HAWALA C ASE AND LAID DOWN THE RATIO. LET US TO REPRODUCE THE SAME. THAT ENTRIES IN THE JAIN HAWALA DIARIES, NOTE BOOK S AND FILE CONTAINING LOOSE SHEETS PAPER NOT IN THE F ORM OF BOOKS OF ACCOUNTS AND HAS HELD THAT SUCH ENTRIES IN LOOSE PAPERS/ SHEETS ARE NOT RELEVANT AND NOT ADMISSIBLE U /S 34 OF THE EVIDENCE ACT, AND THAT ONLY WHERE THE ENTRIES I N THE BOOKS OF ACCOUNTS REGULARLY KEPT, DEPENDING ON THE NATURE OF OCCUPATION, THAT THOSE ARE ADMISSIBLE. FURTHER AS TO VALUE OF THE ENTRIES IN THE BOOKS OF ACCOUNT, THAT SUCH STATEMENT SHALL NOT ALONE BE SUF FICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY, EVEN IF THEY ARE RELEVANT AND ADMISSIBLE AND THAT THEY ARE ONLY CORR OBORATIVE EVIDENCE. IT HAS BEEN HELD EVEN THEN INDEPENDENT EV IDENCE IS NECESSARY AS TO TRUSTWORTHINESS OF THOSE ENTRIES WH ICH IS A REQUIREMENT TO FASTEN THE LIABILITY. FURTHER THE APEX COURT LAID DOWN THAT MEANING OF ACCOUNT BOOK WOULD BE SPIRAL NOTE BOOK/ PAD BUT NOT LOOSE SHEETS. THE FOLLOWING EXTRACT BEING RELEV ANT IS QUOTED HEREIN BELOW. 14 . IN SETTING ASIDE THE ORDER OF THE TRIAL COURT, TH E HIGH COURT ACCEPTED THE CONTENTION OF THE RESPONDENTS THAT THE DOCUMENTS WERE NOT ADMISSIBLE IN EVIDENCE UNDER SECTION 34 WITH TH E FOLLOWING WORDS: 'AN ACCOUNT PRESUPPOSES THE EXISTENCE OF TWO PERSON S SUCH AS A SELLER AND A PURCHASER, CREDITOR AND DEBTOR. A DMITTEDLY, THE ALLEGED DIARIES IN THE PRESENT CASE ARE NOT RECORDS OF THE ENTRIES ARISING OUT OF A CONTRACT. THEY DO NOT CONTAIN THE DEBITS AND CREDITS. THEY CAN AT THE MOST BE DESCRIBED AS A MEMORANDUM K EPT BY A PERSON FOR HIS OWN BENEFIT WHICH WILL ENABLE HIM TO LOOK INTO THE SAME WHENEVER THE NEED ARISES TO DO SO FOR HIS FUTU RE PURPOSE. ADMITTEDLY THE SAID DIARIES WERE NOT BEING MAINTAIN ED ON DAY-TO- DAY BASIS IN THE COURSE OF BUSINESS. THERE IS NO ME NTION OF THE DATES ON WHICH THE ALLEGED PAYMENTS WERE MADE. IN F ACT THE ENTRIES THERE IN ARE ON MONTHLY BASIS. EVEN THE NAMES OF TH E PERSONS WHOM THE ALLEGED PAYMENTS WERE MADE DO NOT FIND A MENTIO N IN FULL. THEY HAVE BEEN SHOWN IN ABBREVIATED FORM. ONLY CERTAIN ' LETTERS' HAVE BEEN WRITTEN AGAINST THEIR NAMES WHICH ARE WITHIN T HE KNOWLEDGE OF ONLY THE SCRIBE OF THE SAID DIARIES AS TO WHAT THEY STAND FOR AND WHOM THEY REFER TO. X X X X X X X X X X X X X X X ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 7 17. FROM A PLAIN READING OF THE SECTION IT IS MAN IFEST THAT TO MAKE THERE UNDER IT MUST BE SHOWN THAT IT HAS BEEN MADE IN A BOOK, THAT BOOK IS A BOOK OF ACCOUNT AND THAT BOOK OF ACCOUNT HAS BEEN REGULARLY KEPT IN THE COURSE OF BUSINESS. FROM THE ABOVE SECTION IT IS ALSO MANIFEST THAT EVEN IF THE ABOVE REQUIREMENTS ARE FULFILLED AND THE ENTRY BECOMES ADMISSIBLE AS RELEV ANT EVIDENCE, STILL, THE STATEMENT MADE THEREIN SHALL NOT ALONE B E SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS THUS SEEN THAT WHILE THE FIRST PART OF THE SECTION SPEAKS OF THE R ELEVANCY OF THE ENTRY AS EVIDENCE, THE SECOND PART SPEAKS, IN A NEG ATIVE WAY, OF ITS EVIDENTIARY VALUE FOR CHARGING A PERSON WITH A LIAB ILITY. IT WILL, THEREFORE, BE NECESSARY FOR US TO FIRST ASCERTAIN W HETHER THE ENTRIES IN THE DOCUMENTS, WITH WHICH ARE CONCERNED, FULFILL THE REQUIREMENTS OF THE ABOVE SECTION SO AS TO BE ADMISSIBLE IN EVID ENCE AND IF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE THEN ONLY ITS PROBATIVE VALUE NEED BE ASSESSED. 18. 'BOOK' ORDINARILY MEANS A COLLECTION OF SHEETS OF PAPER OR OTHER MATERIAL, BLANK, WRITTEN, OR PRINTED, FASTENED OR B OUND TOGETHER SO AS TO FORM A MATERIAL WHOLE. LOOSE SHEETS OR SCRAPS OF PAPER CANNOT BE TERMED AS 'BOOK' FOR THEY CAN BE EASILY DETACHED AND REPLACED IN DEALING WITH THE WORD 'BOOK' APPEARING IN SECTION 3 4 IN MUKUNDRAM V. DAYARAM A DECISION ON WHICH BOTH SIDES HAVE PLACED RELIANCE, THE COURT OBSERVED:- 'IN ITS ORDINARY SENSE IT SIGNIFIES COLLECTION OF SHEETS OF PAPER BOUND TOGETHER IN A MANNER; WHICH CANNOT BE DISTURBED OR ALTERED EXCEPT BY TEARING APART. THE BINDING IS OF A KIND WHICH IS NOT INTENDED TO THE MOVEABLE IN THE SENSE OF BEING UNDONE AND PUT T OGETHER AGAIN. A COLLECTION OF PAPERS IN A PORTFOLIO, OR CLIP, OR STRUNG TOGETHER ON A PIECE OF TWINE WHICH IS INTENDED TO BE UNTIED AT WI LL, WOULD NOT, IN ORDINARY ENGLISH, BE CALLED A BOOK.... I THINK THE TERM 'BOOK' IN SECTION 34 AFORESAID MAY PROPERLY BE TAKEN TO SIGNI FY, ORDINARILY, A COLLECTION OF SHEETS OF PAPER BOUND TOGETHER WITH T HE INTENTION THAT SUCH BINDING SHALL BE PERMANENT AND THE PAPERS USED COLLECTIVELY IN ONE VOLUME. IT IS EASIER HOWEVER TO SAY WHAT IS NOT A BOOK FOR THE PURPOSES OF SECTION 34, AND I HAVE NO HESITATION IN HOLDING THAT UNBOUND SHEETS OF PAPER, IN WHATEVER QUANTITY, THOU GH FILLED UP WITH ONE CONTINUOUS ACCOUNT, ARE NOT A BOOK OF ACCO UNT WITHIN THE PURVIEW OF SECTION 34.' WE MUST OBSERVE THAT THE AFORESAID APPROACH IS IN A CCORD WITH GOOD REASONING AND WE ARE IN FULL AGREEMENT WI TH IT. APPLYING THE ABOVE TESTS IT MUST BE HELD THAT THE TWO SPIRAL NOTE BOOKS (MR 68/91 AND MR 71/91) AND THE TWO SPIRAL PADS (MR 69/ 91 AND MR 70/91) ARE BOOKS WITHIN THE MEANING OF SECTION 34 , BUT NOT THE ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 8 LOOSE SHEETS OF PAPERS CONTAINED IN THE TWO FILES ( MRS 72/91 AND 73/91). 6. FURTHER IN THE CASE OF THE COMMON CAUSE (A REGISTERED S OCIETY AND ORS VS. UNION OF INDIA & ORS. INTERLOCUTORY APPLICAT ION NOS. 3 & 4 OF 2017 IN WRIT PETITION (CIVIL) NO. 505/2015, THE APEX COURT DEALT WITH THE LOOSE SHEETS AND WAS PLEASED TO HELD THAT IT IS APPARENT FROM THE AFORESAID DISCUSSION THAT LOOSE SHEETS OF PAPER ARE WHOLLY IRRELEVANT AS EVIDENCE B EING NOT ADMISSIBLE U/S 34 SO AS TO CONSTITUTE EVIDENCE WITH RESPECT TO THE TRANSACTIONS MENTIONED THEREIN BEING OF NO EVIDENTI ARY VALUE. FURTHER THE APEX COURT IN PARA NO.22 WAS PLEASED TO HELD THAT: 'IN CASE OF SAHARA, IN ADDITION WE HAVE THE ADJUDICATI ON BY THE INCOME TAX SETTLEMENT COMMISSION. THE ORDER HAS BEE N PLACED ON RECORD ALONG WITH I.A. NO.4. THE SETTLEMENT COMMISSION HAS OBSERVED THAT THE SCRUTINY OF ENTRIES ON LOOSE PAPE RS, COMPUTER PRINTS, HARD DISK, PEN DRIVES ETC. HAVE RE VEALED THAT THE TRANSACTIONS NOTED ON DOCUMENTS WERE NOT G ENUINE AND HAVE NO EVIDENTIARY VALUE AND THAT DETAILS IN T HESE LOOSE PAPERS, COMPUTER PRINT OUTS, HARD DISK AND PEN DRIV E ETC. DO NOT COMPLY WITH THE REQUIREMENT OF THE INDIAN EVIDE NCE ACT AND ARE NOT ADMISSIBLE EVIDENCE. IT FURTHER OBSERVED THAT THE DEPARTMENT HAS NO EVIDENCE TO PROVE THAT ENTRIES IN THESE LOOSE PAPERS AND ELECTRONIC DATA WERE KEPT REGULARLY DURI NG THE COURSE OF BUSINESS OF THE CONCERNED BUSINESS HOUSE AND THE FA CT THAT THESE ENTRIES WERE FABRICATED, NON-GENUINE WAS PROVED. IT HELD AS WELL THAT THE PCIT/DR HAVE NOT BEEN ABLE TO SHOW AND SUB STANTIATE, THE NATURE AND SOURCE OF RECEIPTS AS WELL AS NATURE AND REASON OF PAYMENTS AND HAVE FAILED TO PROVE EVIDENTIARY VALUE OF LOOSE PAPERS AND ELECTRONIC DOCUMENTS WITHIN THE LEGAL PA RAMETERS. THE COMMISSION HAS ALSO OBSERVED THAT DEPARTMENT HAS NO T BEEN ABLE TO MAKE OUT A CLEAR CASE OF TAXING SUCH INCOME IN T HE HANDS OF THE APPLICANT FIRM ON THE BASIS OF THESE DOCUMENTS. IT IS APPARENT THAT THE COMMISSION HAS RECORDED A F INDING THAT TRANSACTIONS NOTED IN THE DOCUMENTS WERE NOT G ENUINE AND THUS HAS NOT ATTACHED ANY EVIDENTIARY VALUE TO THE PEN DRIVE, HARD DISK, COMPUTER LOOSE PAPERS, COMPUTER PRINTOUTS. SINCE IT IS NOT DISPUTED THAT FOR ENTRIES RELIED ON IN THESE LOOSE PAPERS AND ELECTRONIC DATA WERE NOT REGULARLY KEPT DURING COURSE OF BUSINESS, SUCH ENTRIES WERE DISCUSSED IN THE ORDER DATED 11.11.2016 PASSED IN SAHARA'S CASE BY THE SETTLEMEN T COMMISSION AND THE DOCUMENTS HAVE NOT BEEN RELIED UPON BY THE COMMISSION AGAINST ASSESSEE, AND THUS SUCH DOCUMENTS HAVE NO E VIDENTIARY ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 9 VALUE AGAINST THIRD PARTIES. ON THE BASIS OF THE MA TERIALS WHICH HAVE BEEN PLACED ON RECORD, WE ARE OF THE CONSIDERE D OPINION THAT NO CASE IS MADE OUT TO DIRECT INVESTIGATION AGAINST ANY OF THE PERSONS NAMED IN THE BIRLA'S DOCUMENTS OR IN THE DO CUMENTS A-8,A- 9 AND A-10 ETC. OF SAHARA.' 7. COORDINATE BENCH OF ITAT AT DELHI IN THE CASE OF PRAMO D PANDEY V. ACIT CIRCLE 10 NEW DELHI (IN ITA NO. 4295/DEL/20 12 DECIDED ON 06- 12-2013, WHILE DEALING WITH THE IDENTICAL ISSUE AS INV OLVED IN THIS CASE, HAS HELD AS UNDER: 15. NOW WE ADJUDICATE UPON THE MERITS OF THE CASE. IN THIS CASE ADDITION OF RS. 35 LACS HAS BEEN MADE ON THE BASIS OF SEIZED MATERIAL FOUND IN THE SHAPE OF DIARY WHICH CONTAINS THE FOLL OWING ENTRIES:- B-1/A-13/53 DATED 16-07-2005 'ARRANGE CASH FOR S.C.JAIN/FARMHOUSE' B-1/A-13/54 DATED 18-07-2005 'AGREEMENT WITH S. G. JAIN ON CHHATARPUR AREA' B-L/ A-13/71 DATED 16-08-2005 'DELIVER CASH TO JAIN /BHATTI (20L)' B-L/A-13/75 DATED 20-08-2005 'GIVE 15 L & ALL CLEAR ED FOR BHATTI + 5L CHEQUE' 16. WE NOTE THAT THE SAID SEIZED MATERIAL IN THE SHAPE OF DIARY DID NOT BELONG TO THE ASSESSEE. IT BELONGED TO THE ASSESSEE'S BROTHER. HE HAS NOT AT ALL BEEN CONFRONTED WITH THE CONTENTS OF THE SAID DIARY. ASSESSEE CANNOT BE CALLED UPON TO E XPLAIN THE CONTENTS OF DIARY WHICH BELONGED TO THE ASSESSEE'S BROTHER AND WAS FOUND FROM THE BROTHER. 17. WE ALSO NOTE THAT THERE IS NO MENTION OF THE AS SESSEE'S NAME IN THE PARTICULARS OF DIARY AS CONTAINED HEREINABOVE. THOUGH THERE IS MENTION OF THE FARM HOUSE BELONGING TO THE ASSESSEE , THERE IS NO MENTION OF THE TOTAL PRICE PAID ETC. FROM THE JOTTI NGS AS ABOVE, ASSESSING OFFICER HAS INFERRED THAT ASSESSEE HAS PA ID RS. 35 LACS OVER AND ABOVE THE DISCLOSED CONSIDERATION TO THE SELLER . NOW WE FIND THAT THE SELLER HAS DENIED HAVING TAKEN ANY MONEY OVER A ND ABOVE THE DISCLOSED SALE CONSIDERATION. IT IS ALSO NOT THE CA SE THAT SEIZED MATERIAL WERE IN THE HAND WRITING OF THE ASSESSEE O R THE SELLER OR WERE SEIZED FROM THE PREMISES OF THE SELLER. EVEN THE TO TAL PRICE PAID FOR THE PROPERTY IS NOT MENTIONED IN THE SEIZED MATERIAL. T HE JOTTINGS IN THE DIARY BY NO STRETCH OF IMAGINATION CAN BE TREATED A S CONCLUSIVE PROOF OF ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 10 ON MONEY TRANSACTIONS BY THE ASSESSEE. IT IS NOT TH E CASE THAT THE- CIRCLE RATE OR THE VALUE AS PER STAMP REGISTRATION AUTHORITIES OF THE IMPUGNED PROPERTY IS MORE THAN WHAT HAS BEEN DISCLO SED. THERE IS NO CASE THAT ANY PART OF THE JOTTINGS IN THE DIARY HAS BEEN CORROBORATED FROM ANY OTHER FINDINGS. HENCE, IN THE BACKGROUND, WE FIND THAT PRESUMPTION U/S. 132(4A)/292C OF THE ACT CANNOT BE TAKEN AGAINST THE ASSESSEE. THUS, FROM THE FACTS AND CIRCUMSTANCE S OF THE CASE, WE FIND THAT ADDITION OF ON MONEY TRANSACTION IN THIS CASE IS NOT SUSTAINABLE. 18. IN THIS REGARD WE PLACE RELIANCE OF THE HON'BLE APEX COURT DECISION IN THE CASE OF K.P. VARGHESER VS. ITO AND ERNAKULA AND ANOTHER 131ITR 587 (SC), WHEREIN IT HAS BEEN HELD THAT THE BURDEN OF PROVING IS THAT OF REVENUE WHEN THERE IS ALLEGATION OF UNDE RSTATEMENT ON CONCEALMENT IN THE CONSIDERATION SHOWN. HERE WE FIN D THAT REVENUE HAS FAILED TO DISCHARGE THE BURDEN CAST ON IT. 19. WE ALSO PLACE RELIANCE FROM THE HON'BLE APEX CO URT DECISION IN THE CASE OF CIT VS. KALYANSUNDARAM IN (2007) 294 ITR 49 (SC) IN WHICH ALLEGATIONS OF ON MONEY TRANSACTION ON THE BASIS OF NON-CONVINCING LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH AND CONFLICTING STATEMENT OF THE SELLER, WAS DELETED BY THE TRIBUNA L AND THE SAME WAS AFFIRMED BY THE HON'BLE HIGH COURT AND HON'BLE APEX COURT. 8. DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V. SH. PARVEEN JUNEJA WHILE (IN ITA NO. 57/2017) DECIDE D ON JULY 14, (2017) 99 CCH 0115, WHILE DEALING WITH THE SIMILAR FA CTS AND CIRCUMSTANCES AS INVOLVED IN THIS CASE, HAS HELD AS UNDER: 3. A SEARCH TOOK PLACE IN THE PREMISES OF THE RESPONDENT/ASSESSEE PURSUANT TO WHICH CERTAIN DOCUMENTS WERE SEIZED. THE DOCUMENT ON THE BASIS OF WHICH THE ABOVE ADDITION WAS MADE WAS A PIECE OF PAPER (IDENTIF IED AS ANNEXURE-2. THIS WAS A HAND WRITTEN PAPER PURPORTED LY CONTAINING DETAILS OF HOUSE CONSTRUCTION EXPENSES OF RS. 49 LAKHS OUT OF WHICH RS. 29. 70 LAKHS HAS ALREADY BEEN PAI D. 4. THE EXPLANATION OFFERED BY THE ASSESSEE WAS THAT THE SAID PAPER WAS NOT RELATED TO HIM THE ASSESSEE. 1 HE WAS WORKING AS A PROFESSIONAL DIRECTOR IN SHAMKEN MULTIFAB LTD. ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 11 AND USED TO HANDLE VARIOUS PROJECTS OF THE SAID COMPANY. THE CIT (A) REJECTED THE ABOVE EXPLANATION. SINCE THE SAID DOCUMENT HAD BEEN SEIZED FROM THE RESIDENCE OF ASSESSEE, THE CIT (A) DREW A PRESUMPTION UNDER SECTION 292C OF THE ACT WAS THAT IT BELONGED TO HIM. FURTHER, THE CIT(A) PROCEEDED TO HOLD THAT RS. 49 LAKHS CONSTITUTED THE UNEXPLAINED INCOME OF THE ASSESSEE SINCE THE ASSESSEE HAD NOT SUBMITTED ANY EVIDENCE LIKE A CONFIRMATION LET TER OR ANY OTHER DOCUMENT TO SHOW THAT EXPENDITURE RELATE D TO ANY PROJECT OF THE AFOREMENTIONED COMPANY. 5. THE ITAT IN THE IMPUGNED ORDER NOTED THAT THE SAI D DOCUMENT 'DOES NOT INDICATE IF IT PERTAINS TO THE ASSESSEE NOR THE ADDRESS AND LOCATION OF THE PROPERTY IS MENTION ED THEREIN NOR SUCH PROPERTY HAS BEEN LOCATED BY THE AO DURING THE ASSESSMENT PROCEEDINGS. THE AO HAS ALSO NOT BROUGHT ON RECORD ANY FORENSIC EVIDENCE TO PROVE THE HANDWRITING OF THE LOOSE PAPER RELIED UPON BY HIM TO MAKE THE ADDITION, WHICH IS EXCLUSIVELY MADE ON THE BASIS OF SUSPICION AND GUESSWORK. EVEN NO CORROBORATIVE MATERIA L HAS BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE THE ADDITION NOR THE CIT(A) HAS CALLED FOR ANY REMAND REP ORT SEEKING CORROBORATIVE EVIDENCE, IF ANY.' 9. NOW COMING TO THE INSTANT CASE, AS IT APPEARS FROM THE O RDERS PASSED BY THE AUTHORITIES BELOW, A DIARY WAS FOUND AND SEIZED AS ANNEXURE A-9 FROM THE RESIDENCE OF THE ASSESSEE AND PAGE 13 OF THE DIARY HAS NOTING WHICH SHOWS VARIOUS AMOUNTS IN TOTAL RS.1,15,00,000/- WHICH WAS CONSIDERED BY THE ASSESSING OFFICE R AS THE ACTUAL SALE CONSIDERATION RECEIVED QUA PROPERTY SOLD BY THE ASSESSEE'S HUSBAND, WHEREAS IN THE REGISTERED SALE DEED, TOTAL CONSI DERATION HAD BEEN SHOWN TO THE TUNE OF RS.29,50,000/- . ON SHOW CAUSE D, IT WAS EXPLAINED AND REPLIED BY THE ASSESSEE THAT THE DIARY DO ES NOT BELONG TO THE ASSESSEE AND NOTING THEREIN ARE ALSO NOT IN THE H ANDWRITING OF THE ASSESSEE. HOWEVER, THE SAID REPLY AND EXPLANATION WAS NOT FOUND ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 12 ACCEPTABLE BY THE ASSESSING OFFICER ON THE REASONS THAT IN T HE ASSESSEES OWN CASE FOR AY 2008-09, IT WAS SUBMITTED BY TH E ASSESSEE THAT THE DIARY WAS MAINTAINED BY HER HUSBAND SH. MOH INDER SINGH, BEING HEAD OF THE FAMILY WHO WAS CONTROLLING ALL THE FINANCIAL MATTER OF THE FAMILY. FURTHER IT WAS OBSERVED BY THE AO THAT ASSE SSEES HUSBAND WAS THE OWNER OF THE SHARE OF THE PROPERTY UNDER CO NSIDERATION AND THEREFORE THE CONTENTION OF THE ASSESSEE THAT SHE HAS NO THING TO DO WITH THE CONTENTS OF THE DIARY, WAS UNACCEPTABLE. THE A SSESSING OFFICER WHILE MAKING THE ADDITION ALSO RELIED UPON SECTION 292 C OF THE ACT ON THE REASONS THAT IN TERMS OF SECTION 292C OF THE INCOME TAX ACT , 1961 THE DOCUMENTS FOUND IN THE POSSESSION OF PERSONS DURING THE COURSE OF SEARCH ARE TO BE TAKEN AS BELONGING TO THEM AND CONTENTS O F SUCH DOCUMENTS ARE TRUE. 10. ON APPEAL THE LD. CIT(A) UPHELD THE SAID ADDITION O N THE SAME FOOTINGS AS HELD BY THE ASSESSING OFFICER. 11. THE TRIBUNAL IN THE CASE OF PRAMOD PANDEY V. ACIT (SU PRA) HAS CLEARLY HELD THAT JOTTINGS IN THE DIARY BY NO STRETCH OF IMAGINATION CAN BE TREATED AS CONCLUSIVE PROOF OF ON MONEY TRANSACTION BY THE ASSESSEE. FURTHER, THERE IS NO CASE THAT ANY PART OF THE JOTT INGS IN THE DIARY HAS BEEN CORROBORATED FROM ANY OTHER FINDINGS. FURTHER, IT I S ALSO NOT THE CASE THAT THE CIRCLE RATE OR THE VALUE AS PER STAMP REGISTRAT ION AUTHORITIES OF THE IMPUGNED PROPERTY IS MORE THAN WHAT HAS BEEN DISCLO SED . HENCE IN THE BACKGROUND, THE PRESUMPTION U/S 132(4A)/292C OF THE ACT CANNOT BE TAKEN AGAINST THE ASSESSEE. CONSEQUENTLY THE ADDITI ON OF OWN MONEY TRANSACTION IN THIS CASE IS NOT SUSTAINABLE . WHILE COMING TO THE INSTANT CASE, THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSE SSEE HAS UNDER ESTIMATED THE VALUE OF THE PROPERTY AND VIOLAT ED THE CIRCLE RATE AS PRESCRIBED BY THE GOVERNMENT AND ACTED AGAINST THE INDIAN STAMP ACT, 1899 . THE ASSESSING OFFICER ALLEGEDLY CORROBORATED THE ENTRIE S ON PAGE NO. 10 AND 13 OF THE DIARY BY REPRODUCING THE C OPIES IN THE ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 13 ASSESSMENT ORDER AND BY OBSERVING ' THAT THE HEADING ON THE TOP OF THE PAGE NO.13 'DIV- 3' INDICATE THAT THESE PAYMENTS PE RTAIN TO SALE OF THE PROPERTY NEAR CHOWKI DIVISON-3. FURTHER TOTAL AMOUN T OF RS.1,15,00,000/- HAS BEEN RECEIVED ON SALE CONSIDERATION OF THIS PLO T WHICH IS ALSO PROVED WHEN THESE ENTRIES ARE SEEN ALONG WITH ENTRIES ON P AGE NO. 10 OF THE SAME DIARY. THE AO FUTHER MENTIONED THAT THIS PAGE SHOWS AMOUNT OF CASH ACTUALLY WITH SH. RUBY (I.E. SH. BALWINDER SINGH KO HLI, THE SON OF THE ASSESSEE) AND THE FIGURE OF RS. 28,50,000/- PERTAIN S TO ANOTHER UNACCOUNTED SALE CONSIDERATION OF SHOP IN MBD MALL. THE CO-RELATION OF THE OTHER ENTRIES ON THESE PAGES AND THE DATES MENTIONE D AGAINST THE TWO ENTRIES AS 25 TH AND 26 TH FEBRUARY AT PLACE GORAYA FOR RECEIPT OF CASH FROM THE PURCHASER. ON THE BASIS OF THE DOCUMENTS, A TOT AL CASH OF RS. 1,15,00,000/- WAS RECEIVED AS SALE CONSIDERATION OF THIS PROPERTY NEAR DIVISON-3, CHOWKI WHILE THE REGISTRY SHOWS THE SALE CONSIDERATION OF RS.29,50,000/-'. IN OUR CONSIDERED VIEW, THE AO HAS DRAWN THE PRESUMPTIONS AND ASSUMPTIONS ONLY ON THE BASIS OF NOTING OF DIARY WITHOUT BEING CALLING AND CONFIRMING FROM THE PURCHASER S OR MAKING INDEPENDENT EXERCISE TO UNEARTH THE TRUTH. EVEN THERE IS NO CIRCUMSTANCE AND MATERIAL ON RECORD TO SUGGEST AS AUTHENTICA TED OR SUBSTANTIVE AND CORROBORATIVE MATERIAL AGAINST THE ASSES SEE ON THE BASIS OF WHICH THE ADDITION CAN BE MADE. EVEN THE DIARY ADMITTEDLY DOES NOT BELONG TO THE ASSESSEE AND NOTING OF THE SAME AR E ALSO NOT IN THE HANDWRITING OF THE ASSESSEE. FURTHER, NO DESCRIPTION EITHER ADDRESS OR LOCATION OF THE PROPERTY HAS BEEN MENTIONED IN TH E DIARY AND THEREFORE ON THE BASIS OF PECULIAR FACTS AND CIRCUMSTANCES , WE ARE OF CONSIDERED VIEW THAT NO PRESUMPTION U/S. 292C OF THE ACT CAN BE MADE AGAINST THE ASSESSEE. 12. THE APEX COURT IN THE CASES OF CENTRAL BUREAU OF INVESTIGATION VS. V.C. SHUKLA (SUPRA) AND COMMON CAUSE (A REGISTERED SOCIETY AND ORS VS. ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 14 UNION OF INDIA & ORS.(SUPRA) ANALYZED THE POSITION OF LAW WITH REGARD TO THE LOOSE SHEETS/DIARY IN WHICH SOME NOTING HAS BEEN MAD E BY THE PERSON OTHER THAN THE PERSONS SEARCHED AND CLEARLY HELD THAT THE SAID DOCUMENT DO NOT HAVE ANY VALUE IN THE EYES OF LAW. FURTHER ENTRIES IN THE DIARIES, NOTE BOOKS AND FILE CONTAINING LOOS E SHEETS PAPER NOT IN THE FORM OF BOOKS OF ACCOUNTS AND HAS HELD THAT SUCH ENTRIES IN LOOSE PAPERS/ SHEETS ARE NOT RELEVANT AN D NOT ADMISSIBLE U/S 34 OF THE EVIDENCE ACT. FURTHER AS TO VALUE OF THE ENTRIES IN THE BOOKS OF ACCOUNT, THAT SUCH STATEMENT SHALL NOT ALO NE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY, EVEN IF THEY ARE RELEVANT AND ADMISSIBLE AND THAT THEY ARE ONLY CORR OBORATIVE EVIDENCE. EVEN THEN INDEPENDENT EVIDENCE IS NECESSA RY AS TO TRUSTWORTHINESS OF THOSE ENTRIES WHICH IS A REQUIRE MENT TO FASTEN THE LIABILITY. 13. ON THE BASIS OF THE AFORESAID JUDGMENTS, WE ARE OF THE VIEW, DIARY SEIZED DURING THE SURVEY/SEARCH OPERATION, WITHOU T CORROBORATION, HAVE NO AUTHENTICITY AND THEREFORE, CAN NOT BE RELIED UPON. EVEN ENTRY RECORDED IN THE DIARY QUA AMOUNT OF SALE WAS NOT CONFIRMED FROM THE BUYERS OF THE PROPERTY AND WITHOUT CONFIRMATION, QUESTION OF ANY ASSUMPTION OR BELIEF THAT THE ENTRY B ELONGS TO THE ASSESSEE DID NOT ARISE AND HENCE ENTRY FOUND IN DIARY WIT HOUT ANY CORROBORATIVE EVIDENCE, CANNOT BE MADE BASIS OF ADDITION . THE AUTHORITIES BELOW IN THE INSTANT CASE, MADE THE ADDITI ON ONLY ON THE BASIS OF SURMISES, SUSPICION AND GUESS WORK. HENCE, RESPECTIVEL Y FOLLOWING THE JUDGMENTS REFERRED ABOVE WE ARE UNABLE TO SUSTAIN THE ADDITION MADE BY THE ASSESSING OFFICER AND AFFIRMED BY T HE LD. CIT(A). CONSEQUENTLY WE ARE INCLINED TO DELETE THE SAME, RESUL TANTLY THE APPEAL OF THE ASSESSEE IS LIABLE TO BE ALLOWED. ITA NO.568/ASR/ 2018 (A.Y.2009-10) SMT. HARMOHIND ER KUAR VS. DCIT 15 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/0 1/2020. SD/- SD/- (DR. A.L.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 16/01/2020. /PK/ PS. COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THEN CIT(APPEALS) 5. SR DR, I.T.A.T. AMRITSAR 6. GUARD FILE TRUE COPY BY ORDER