Smt. Roop Late Bansal, Panchkula V. ACIT, Patiala

ITA 574/CHANDI/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6586 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 24-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: N K GARG
• Keywords: Business income; Income from undisclosed sources; Search and seizure; Document seized; Retrospective amendment; Question of law; Onus to prove; Documents seized
• Section: 143(3); 54F; 153A; 234B; 54; 132; 15

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER& DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 570/CHD/2011 ASSESSMENT YEAR: 2004-05 SH. PREM CHAND BANSAL, VS. THE ACIT, CENTRAL CIRC LE, PANCHKULA PATIALA PAN NO. AAQPB6911R ITA NO. 574/CHD/2011 ASSESSMENT YEAR: 2004-05 SMT. ROOP LATA BANSAL, VS. THE ACIT, CENTRAL CIRC LE, PANCHKULA PATIALA PAN NO. AKGPB0455J & ITA NO. 631/CHD/2011 ASSESSMENT YEAR: 2006-07 THE DCIT, CENTRAL CIRCLE, VS. SH. PREM BANSAL PANCHKULA PATIALA PAN NO. AAQPB6911R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K. GARG RESPONDENT BY : SH. RAVI SARANGAL DATE OF HEARING : 22.08.2017 DATE OF PRONOUNCEMENT : 13.11.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED APPEALS IN THE CASES OF RELATED ASSESSEES (HUSBAND AND WIFE) HAVE ARISEN OUT OF THE SEPARATE ORDERS OF THE CIT(A)-1, 2 LUDHIANA, DATED 28.3.2011, 30.3.2011 AND 24.3.2011 FOR DIFFERENT ASSESSMENT YEARS IN RELATION TO THE ASSESSMENTS CA RRIED OUT U/S 153A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT').SINCE FAC TS AND ISSUE INVOLVED IN THESE APPEALS ARE IDENTICAL, HENCE, THE SAME HAVE B EEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. FIRST, WE WILL TAKE THE ASSESSEE APPEAL IN THE CASE OF SH. PREM CHAND BANSA L IN ITA NO. 570/CHD/2011. ITA NO. 570/CHD/2011 . 2. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSE SSEE ON 16.10.2007 PURSUANT TO WHICH ASSESSMENT PROCEEDINGS U/S 153A O F THE ACT WERE CARRIED OUT AND COMPLETED VIDE ASSESSMENT ORDER DATED 13.12 .2009 WHEREIN CERTAIN ADDITIONS WERE MADE, WHICH WERE FURTHER CONFIRMED B Y THE LD. CIT(A). AGITATING THE SAME, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL TAKING THE FOLLOWING GROUNDS:- 1. THAT THE IMPUGNED APPELLATE ORDER IS BAD BOTH ON FACTS AND LAW TO THE EXTENT THE ADDITIONS ARE CONFIRMED. 2. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY A ND ILLEGALLY HELD THAT THE PROCEEDINGS HAS BEEN PROPERLY INITIAT ED U/S 153A AND FURTHER ERRED IN HOLDING THAT ASSESSMENT U/S 15 3A HAS BEEN PROPERLY MADE. 3. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY A ND ILLEGALLY CONFIRMED ADDITION OF RS. 180345/- AS LONG TERM CAP ITAL GAIN ALTHOUGH ON ALTERNATIVE PLEA SAME IS DELETED. 4. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY CONFIRMED THE ADDITION OF RS. 24.90 LACS ALTHOUGH ON ALTERNATIVE PLEA THE ADDITION OF RS. 14.50 LACS IS CONFIRMED. 3 5. THAT THE LEARNED APPELLATE AUTHORITY W RONGLY AND ILLEGALLY CONFIRMED ESTIMATE OF BUSINESS INCO ME AT RS.3,25,000/- AGAINST THE DECLARED INCOME OF RS. 2 ,1 5,000/- AND THUS ERRED IN CONFIRMING THE NET ADDITION OF RS . L,10,000/- AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THAT THE LEARNED APPELLATE AUTHORITY W RONGLY AND ILLEGALLY CONFIRMED THE ADDITION OF RS. L,50,0 00/- ON ACCOUNT OF CREDIT AGAINST THE FACTS AND CIRCUMSTANC ES OF THE CASE. 7. THAT THE LEARNED APPELLATE AUTHORITY W RONGLY AND ILLEGALLY CONFIRMED THE ADDITION OF RS.5 LACS ON ACCOUNT OF ALLEGED PAYMENT AGAINST THE FACTS AND CIRCUMSTAN CES OF THE CASE. 8. THAT THE LEARNED APPELLATE AUTHOR ITY WRONGLY AND ILLEGALLY REJECTED THE GROUND THAT THE ADDITI ONS MADE IN ASSESSMENT PROCEEDINGS U/S153A ARE SINE-QUA-NON THE SEIZED MATERIAL AND NO ADDITION COULD BE SUSTAINED OTHERWI SE. 9. THAT WITHOUT PREJUDICE AND ALTERNATIVELY THE ADD ITIONS SHOULD BE ADJUSTED AND TELESCOPED. 10. THAT THE EARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY DIRECTED TO CHARGE INTERES T U/S234 ALTHOUGH ON FACTS AND CIRCUMSTANCES OF THE CASE, INTEREST IS NOT CHARGEABLE. 3. GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT NEED SEPARATE ADJUDICATION. 4. GROUND NO.2 : THE LD. AR OF THE ASSESSEE HAS STATED AT BAR THA T GROUND NO.2 IS NOT PRESSED. IN VIEW OF THIS, GROUND NO.2 IS DISMISSED AS NOT PRESSED. 4 5. GROUND NO. 3: THE ASSESSEE IN THIS GROUND HAS AGITATED THE ADDI TION OF RS. 1,80,345/- ON UNDISCLOSED LONG TERM CAPITAL GAIN. THE BRIEF FACTS RELEVANT TO THE ISSUE ARE THAT THE HOUSE NO. 346, SECTOR 15, PANCHKULA WAS SOLD FOR RS.19,20,000/- VI DE REGISTERED SALE DEED. THE ASSESSEE HAD 1/2 SHARE IN THE SAID PROPERTY. TH E ASSESSEE FURTHER PURCHASED 1/2 SHARE IN THE PROPERTY H. NO. 9, SECTO R 9, PANCHKULA AND INVESTED SALE PROCEEDS OF RS.9,60,000/- IN THE PROP ERTY AND THEREFORE CLAIMED EXEMPTION U/S 54F. DURING THE COURSE OF SEARCH ACTION, STATEMENT OF SMT. ROOP LATA BANSAL (WIFE OF THE ASSESSEE) WA S RECORDED AND ON THE BASIS OF THAT STATEMENT, THE LD. ASSESSING OFFICER ASSUMED THE SALE PRICE OF THE PROPERTY AT RS.40,00,000/- AS AGAINST THE SALE PRICE OF RS.19,20,000/- MENTIONED IN THE REGISTERED SALE DEED AND CALCULA TED THE CAPITAL GAINS OF RS. 1,80,345/-. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, IT WAS EXPLAINED THAT THE SAID STATEMENT OF SMT. ROOP LAT A BANSAL CANNOT BE RELIED UPON BECAUSE IT WAS NOT A VOLUNTAR Y AND FREE STATEMENT. THAT SMT. ROOP LATA WAS A CHRONIC DIABETIC AND HYPER TEN SION PATIENT AND SHE WAS STUNNED DUE TO SEARCH OPERATION AND WAS NOT AWA RE OF COMPLETE FACTS OF HER TAX MATTERS, FINANCIAL TRANSACTIONS AND PROP ERTY MATTERS WHICH WERE LOOKED AFTER BY HER HUSBAND (THE ASSESSEE) ONLY. TH AT IT IS A VERY GENERAL AND COMMON SOCIAL PHENOMENON IN INDIAN SOCIETY THAT GENERALLY HUSBAND CONTROLS THE FINANCIAL AND TAX AFFAIRS OF THE WIFE. HENCE, IT WAS SUBMITTED THAT THE ALLEGED STATEMENT OF SMT. ROOP LATA SHOULD NOT BE MADE BASE TO REJECT THE REGISTERED SALE DEED. IT WAS FURTHER SUB MITTED THAT NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE SHRI PRE M BANSAL ON THE BASIS OF A STATEMENT OF SMT. ROOP LATA, PARTICULARLY WHEN HER STATEMENT WAS NOT 5 CONFRONTED TO SH. PREM BANSAL AT THE TIME OF SEARCH OR DURING INVESTIGATION. 6. THE LD. ASSESSING OFFICER HOWEVER , REJECTED THE ABOVE CONTENTION OF THE ASSESSEE AND OBSERVED THAT THE STATEMENT OF SMT . ROOP LATA BANSAL WAS RECORDED WITHOUT ANY PRESSURE OR COERCION. HE RELY ING UPON HER STATEMENT TREATED THE SALE PRICE OF THE HOUSE AT RS.40 LACS A ND COMPUTED THE LONG TERM CAPITAL GAIN TOWARDS 1/2 SHARE OF THE ASSESSEE AT RS. 17,34,345/- AFTER GIVING THE ASSESSEE BENEFIT OF DEDUCTION U/S 54 OF THE ACT. HE ADDED THE SUM OF RS.1,80,345/- INTO THE INCOME OF THE ASS ESSEE ON ACCOUNT OF UNDISCLOSED LONG TERM CAPITAL GAIN. 7. THE ASSESSEE HAS CONTESTED THE ISSUE IN APPEAL B EFORE THE CIT(A) BUT REMAINED UNSUCCESSFUL . 8. BEFORE US, THE LD. AR OF THE ASSESSEE HAS REITER ATED THE SUBMISSIONS AS WERE MADE BEFORE THE LOWER AUTHORITIES. HE HAS F URTHER SUBMITTED THAT DURING THE COURSE OF SUCH SEARCH OF BUSINESS PREMIS ES AS WELL AS RESIDENTIAL PREMISES OF THE ASSESSEE, NO DOCUMENT OR ANY OTHER MATERIAL WAS FOUND OR SEIZED WHICH COULD CORROBORATE THE ALLEGED STATEMEN T OF SMT. ROOP LATA. MOREOVER, SHE HAD ONLY 1/2 SHARE OF THE PROPERTY. I T HAS BEEN SUBMITTED THAT WHEN NOOK AND CORNER OF THE BUSINESS AND RESID ENTIAL PREMISES OF THE ASSESSEE AND HIS GROUP WAS THOROUGHLY SEARCHED, AND NOTHING INDISCRIMINATING WAS FOUND INDICATING ANY EXTRA RE CEIPT OF SALE PROCEED OF THE SALE TRANSACTION OF HOUSE HO. 346, SEC.15, THE ORAL STATEMENT OF SMT. ROOP LATA BANSAL, RECORDED IN A CONFUSED STATE OF M IND, CANNOT BE ACCEPTED AS LEGALLY ADMISSIBLE EVIDENCE. IT HAS BEE N FURTHER SUBMITTED THAT UNDER SECTION 153A, ADDITION CAN NOT BE MADE DEHORS THE MATERIAL FOUND 6 DURING SEARCH OPERATION OR ANY SUBSEQUENT INVESTIGA TION. THE LD. A.O. HAS NOT MADE ANY INQUIRY WITH REGARD TO THE TRANSACTION OF SALE OF THE HOUSE OR ABOUT THE ON MONEY RECEIVED. IT HAS BEEN FUR THER SUBMITTED THAT ALTHOUGH SH. PREM CHAND HAS BEEN THE 1/2 SHARE HOLD ER OF THE PROPERTY AND EXECUTOR OF THE SALE DEED BEFORE THE SUB REGIST RAR, NEITHER ANY INQUIRY HAD BEEN CONDUCTED ON HIM ON THIS ISSUE NOR HIS S TATEMENT WAS RECORDED BY THE LD. A.O. THAT, ALTHOUGH THE STATEMENT OF SH. PREM CHAND WAS RECORDED U/S 132(4) ON 16.10.2007, AND 28.11.2007 , EVEN THEN NO QUESTION WAS PUT SH. PREM CHAND BY THE THEN AUTHORI SED OFFICER WITH REGARD TO THE SALE PRICE OF THAT PROPERTY, NOR THE STATEMENT OF SMT. ROOP LATA BANSAL WAS CONFRONTED TO SH. PREM CHAND BANSA L, CO-OWNER OF THE PROPERTY. THE LD. COUNSEL FOR THE ASSESSEE, IN THIS RESPECT, HAS ALSO RELIED UPON THE FOLLOWING CASE LAWS:- 1. CIT VS. P.V. KALYANSUNDARAM (2007) 294 ITR 0049 2. PARAMJIT SINGH V ITO (2010) 323 ITR 588 (P&H); 37 D TR 228- 3. CIT V NAVEEN GERA328 ITR 516 (DELHI) 4. NAREASH KUMAR VERMAVS. ASSISTANT CIT (2102) 34 CCH 488 (CHANDIGARH) 5. NARESH KUMAR AGGARWAL (2015) 53 TAXMANN.COM 306 (A. P.) 6. SHREE CHAND SONIVS. DCIT (2006) 101 TTJ 1028 (JODHP UR) 7. CIT VS. HARJEEV AGRAWAL IN ITA NO. 8/2004 ORDER DAT ED 10.3.2016(DELHI-HC) 8. CIT VS. SUNIL AGARWAL (2015) 64 TAXMAN.COM 107 (DEL HI-HC) 9. BASANT BANSAL V ACIT (2015) 63 TAXMANN.COM 199 (JAI PUR TRIB.) 10. DY CIT VS. PRAMUKH BUILDERS (2008) 112 ITD 179 (AHD ) 11. CIT VS. CONTINENTAL WAREHOUSING CORPORATION (2015) 374 ITR 645 (BOM.): (2015) 279 CTR 0389 (BOMBAY) 7 12. ALL CARGO GLOBAL LOGISTICS LTD VS. DCIT (2012) 23 TAXMAN 103 (SB) 9. THE LD. DR, ON THE OTHER HAND , HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE AL SO GONE THROUGH THE RECORDS. ADMITTEDLY, IN THIS CASE NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE SEARCH ACTION IN RELATION TO THE AFORESA ID TRANSACTION. THE ADDITION HAS BEEN MADE, SOLELY, ON THE BASIS OF STA TEMENT OF SMT. ROOP LATA BANSAL RECORDED DURING THE SEARCH ACTION. IT H AS, HOWEVER, BEEN EXPLAINED ON BEHALF OF THE ASSESSEE THAT THE STATEM ENT OF SMT. ROOP LATA BANSAL WAS NOT VOLUNTARY AND FREE STATEMENT. SHE W AS NOT AWARE OF THE FINANCIAL TRANSACTIONS CARRIED OUT BY THE ASSESSEE. IT HAS BEEN FURTHER SUBMITTED THAT SMT. ROOP LATA BANSAL WAS A CHRONIC DIABETIC AND HYPERTENSIVE PATIENT AND THAT SHE WAS STUNNED DUE T O SEARCH OPERATION. THE FINANCIAL TRANSACTIONS AND TAX AFFAIRS OF THE F AMILY HAVE BEEN LOOKED AFTER BY THE ASSESSEE I.E. SHRI PREM CHAND BANSAL. THE LD. COUNSEL HAS ALSO RELIED ON THE COPY OF THE GENERAL POWER OF AT TORNEY EXECUTED BY SMT. ROOP LATA BANSAL IN FAVOUR OF HER HUSBAND SHRI PREM BANSAL VIDE WHICH SHE HAS AUTHORISED HER HUSBAND TO LOOK AFTER THE AFFAIRS OF HER PROPERTY INCLUDING CONTESTING AND SETTLING OF DISPU TES IN THE COURTS OF LAW AND FURTHER AUTHORIZING HIM TO RECEIVE COMPENSATION IN RESPECT OF PROPERTIES AND RIGHT TO MORTGAGE, LEASE, SALE ETC. IN OUR VIEW, THIS DOCUMENT ON THE FILE CORROBORATES THE SUBMISSIONS O F THE ASSESSEE THAT THE PROPERTY AFFAIRS AND THE FINANCIAL AFFAIRS OF HER W IFE SMT. ROOP LATA BANSAL WERE LOOKED AFTER AND MANAGED BY SHRI PREM BANSAL. NO DOCUMENT OR OTHER EVIDENCE WAS FOUND DURING THE SEARCH ACTION G IVING ANY PRESUMPTIONS 8 THAT ANY MONEY MORE THAN THAT HAS BEEN MENTIONED IN THE SALE DEED HAS EXCHANGED BETWEEN THE PURCHASER AND SELLER OF THE H OUSE IN QUESTION. EVEN THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY IN R ESPECT OF THE AFORESAID TRANSACTION FROM THE PURCHASER OF THE HOUSE IN QUES TION. EVEN NO QUESTION WAS PUT TO THE ASSESSEE REGARDING THE AFORESAID SAL E TRANSACTION OF THE HOUSE. THERE WAS NO CORROBORATIVE EVIDENCE FOUND DU RING THE SEARCH ACTION OR DURING THE ASSESSMENT PROCEEDINGS EXCEPT THE STA ND ALONE STATEMENT OF SMT. ROOP LATA BANSAL. A PERUSAL OF THE COPY OF THE SALE DEED, WHICH HAS BEEN PLACED AT PAGE NOS. 61 TO 71 OF THE PAPER BOOK , REVEALS THAT SMT. ROOP LATA BANSAL IS NOT THE SIGNATORY AND EXECUTANT OF THE SALE DEED IN QUESTION VIDE WHICH THE H.NO. 345, SECTOR 15, PANC HKULA WAS SOLD FOR A CONSIDERATION OF RS.19,20,000/- TO THE VENDEE MS. R EKHA GUPTA AND SHRI ANIL KUMAR GUPTA RESIDENT OF CHANDIGARH. SHRI PREM CHAND BANSAL HAS SOLD THE SAID HOUSE AS POWER OF ATTORNEY OF ONE SHR I RAMESH CHAND S/O SH. SHAMBHU DAYAL RESIDENT OF H.NO.345, SECTOR 15, PANCHKULA. NO DISCUSSION HAS BEEN MADE BY THE AO REGARDING THE OW NERSHIP RIGHTS OF THE ASSESSEE IN THE SAID HOUSE. IT WAS CLAIMED IN THE R ETURN OF INCOME AS WELL AS DURING THE SEARCH ACTION AND FURTHER DURING THE ASSESSMENT PROCEEDINGS BY THE ASSESSEE SHRI PREM CHAND BANSAL THAT HE AND HIS WIFE HAD 1 /2 SHARE EACH IN THE SAID HOUSE. SINCE NO DISPUTE OR OBJECTI ON HAS BEEN RAISED BY THE REVENUE AUTHORITIES IN THIS RESPECT, WE WITHOUT GOI NG INTO THAT ISSUE RESTRAIN OURSELVES TO THE ADJUDICATION OF THE ISSUE AS TO THE QUANTUM OF THE SALE CONSIDERATION RECEIVED. ADMITTEDLY, THE HOUSE IN QUESTION HAS BEEN TRANSFERRED THROUGH REGISTERED SALE DEED. NO INCRIM INATING EVIDENCE WAS AVAILABLE TO THE LOWER AUTHORITIES SUGGESTING THAT THE ACTUAL SALE CONSIDERATION WAS MORE THAN THAT WAS MENTIONED IN T HE SALE DEED. THE 9 ADDITION HAS BEEN MADE AND CONFIRMED BY THE LOWER A UTHORITIES ON THE STAND ALONE STATEMENT OF SMT. ROOP LATA BANSAL, THE WIFE OF THE ASSESSEE. THE ASSESSEE HAS TAKEN A PLEA THAT HE WAS LOOKING AFTER THE FINANCIAL AFFAIRS AS WELL AS PROPERTY MATTERS AND TAXATION MATTERS OF HI S WIFE ALSO. THAT SHE WAS NOT AWARE OF THE ACTUAL FACTS REGARDING THE SALE DE ED. FROM THE PERUSAL OF THE SALE DEED IT REVEALS THAT SMT. ROOP LATA BANSAL IS NOT A PARTY TO THE SAID SALE DEED. NEITHER HER NAME HAS BEEN MENTIONED NOR HER SIGNATURES APPENDED, EITHER AS A VENDOR OR AS WITNESS, ON THE SALE DEED. THE CONTENTS OF THE SAID DEED IN SUCH CIRCUMSTANCES REMAIN UNCON TROVERTED. EVEN, SMT. ROOP LATA BANSAL HAS EXECUTED A GENERAL POWER OF ATTORNEY IN FAVOUR OF HER HUSBAND (ASSESSEE) IN RESPECT OF HER PROPERT IES WHICH CORROBORATED THE SUBMISSIONS OF THE ASSESSEE THAT THE FINANCIAL AND PROPERTY AFFAIRS OF SMT. ROOP LATA BANSAL WERE MANAGED BY HIM. UNDER TH E CIRCUMSTANCES AND IN THE LIGHT OF EVIDENCES AVAILABLE ON THE FILE, IN OUR VIEW, THE RELIANCE OF THE LOWER AUTHORITIES ON THE STAND ALONE STATEMENT OF SMT. ROOP LATA BANSAL IN THIS REGARD FOR MAKING THE IMPUGNED ADDIT IONS CANNOT BE HELD TO BE JUSTIFIED. APART FROM THE APPRECIATION OF FACTUA L ASPECTS OF THE CASE AS ABOVE, OUR VIEW, ALSO FINDS SUPPORT FROM THE VARIOU S JUDICIAL DECISIONS. THE HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH CO URT IN THE CASE OF PARAMJIT SINGH VS ITO (2010) 323 ITR 588 (P&H) (S UPRA), IN THE PRESENCE OF THE DULY EXECUTED REGD. SALE DEED OF TH E PROPERTY, REJECTED THE CONTENTION OF THE ASSESSEE THAT IN FACT NO SALE CON SIDERATION WAS RECEIVED AND THAT THE VENDOR WERE THE REAL UNCLES OF THE ASS ESSEE WHO HAD RELINQUISHED THEIR RIGHTS IN THE PROPERTY IN THE FA VOUR OF THE ASSESSEE. THE HON'BLE HIGH COURT OBSERVED THAT THE SALE CONSIDERA TION DISCUSSED IN THE REGISTERED SALE DEED HAS TO BE ACCEPTED TO HAVE BEE N RECEIVED BY THE 10 VENDORS AND THAT RELIANCE CANNOT BE PLACED ON THE O RAL EVIDENCE IN THIS RESPECT. SIMILARLY, THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NAVEEN GERA(SUPRA) HAS HELD THAT IT IS SETTLED LAW THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL SUGGESTING THAT ANYTHING HAS BEEN PAID OVER AND ABOVE THAN THE SETTLED AMOUNT IN THE SALE DEED, THE PRIMARY BURDEN OF PROOF IS ON THE REVENUE TO SHOW THAT THERE HAS BEEN ANY U NDERSTATEMENT OR CONCEALMENT OF INCOME. THE HON'BLE ANDHRA PRADESH H IGH COURT IN THE CASE OF CIT VS. SHRI RAM DAS MOTOR TRANSPORT (SUP RA) HAS OBSERVED THAT WHEN NO INCRIMINATING EVIDENCE IS FOUND IN THE POSS ESSION OF MANAGING DIRECTOR OR OTHER DIRECTORS OF THE ASSESSEE OR ANY OTHER PERSON DURING THE SEARCH ACTION CARRIED OUT U/S 132 OF THE ACT, THE Q UESTION OF EXAMINING THEM BY THE AUTHORISED OFFICER DURING THE COURSE OF SEARCH AND RECORDING ANY STATEMENT FROM THEM BY INVOKING THE POWERS UNDE R SECTION 132(4) OF THE ACT, DOES NOT ARISE AND THEREFORE, SUCH A STATE MENT DOES NOT HAVE ANY EVIDENTIARY VALUE. THE RELEVANT PART OF THE OBSERVA TIONS MADE BY THE HONBLE A.P. HIGH COURT IS REPRODUCED AS UNDER: A PLAIN READING OF SUB-SECTION (4) OF S. 132 SHOWS THAT THE AUTHORISED OFFICER DURING THE COURSE OF RAID IS EMP OWERED TO EXAMINE ANY PERSON IF HE IS FOUND TO BE IN POSSE SSION OR CONTROL OF ANY UNDISCLOSED BOOKS OF ACCOUNT, DOCUME NTS, MONEY OR OTHER VALUABLE ARTICLES OR THINGS, ELICIT INFORMATION FROM SUCH PERSON WITH REGARD TO SUCH AC COUNT BOOKS OR MONEY WHICH ARE IN HIS POSSESSION AND CAN RECORD A STATEMENT TO THAT EFFECT. UNDER THIS PROVISION, S UCH STATEMENTS CAN BE USED IN EVIDENCE IN ANY SUBSEQUEN T PROCEEDING INITIATED AGAINST SUCH PERSON UNDER THE ACT. THUS, QUESTION OF EXAMINING ANY PERSON BY THE AUTHO RISED OFFICER ARISES ONLY WHEN HE FOUND SUCH PERSON TO BE IN POSSESSION OF ANY UNDISCLOSED MONEY OR BOOKS OF ACC OUNT. BUT, IN THIS CASE, IT IS ADMITTED BY THE REVENUE TH AT ON THE DATES OF SEARCH, THE DEPARTMENT WAS NOT ABLE TO FIN D ANY UNACCOUNTED MONEY, UNACCOUNTED BULLION NOR ANY OTHE R VALUABLE ARTICLES OR THINGS, NOR ANY UNACCOUNTED 11 DOCUMENTS NOR ANY SUCH INCRIMINATING MATERIAL EITHE R FROM THE PREMISES OF THE COMPANY OR FROM THE RESIDENTIAL HOUSES OF THE MANAGING DIRECTOR AND OTHER DIRECTORS. IN SU CH A CASE, WHEN THE MANAGING DIRECTOR OR ANY OTHER PERSO NS WERE FOUND TO BE NOT IN POSSESSION OF ANY INCRIMINA TING MATERIAL, THE QUESTION OF EXAMINING THEM BY THE AUT HORISED OFFICER DURING THE COURSE OF SEARCH AND RECORDING A NY STATEMENT FROM THEM BY INVOKING THE POWERS UNDER SE CTION 132(4) OF THE ACT, DOES NOT ARISE. THEREFORE, THE S TATEMENT OF THE MANAGING DIRECTOR OF THE ASSESSEE, RECORDED PATENTLY UNDER SECTION 132(4) OF THE ACT, DOES NOT HAVE ANY EVIDENTIARY VALUE. THIS PROVISION EMBEDDED IN SUB-S ECTION (4) IS OBVIOUSLY BASED ON THE WELL-ESTABLISHED RULE OF EVIDENCE THAT MERE CONFESSIONAL STATEMENT WITHOUT T HERE BEING ANY DOCUMENTARY PROOF SHALL NOT BE USED IN EV IDENCE AGAINST THE PERSON WHO MADE SUCH STATEMENT. THE FIN DING OF THE TRIBUNAL WAS BASED ON THE ABOVE WELL SETTLED PRINCIPLE. WE DO NOT SEE ANY QUESTION OF LAW IN THI S ISSUE. THE TRIBUNAL RECORDED A FINDING OF FACT TO THE EFFE CT THAT THE STATEMENT OF THE MANAGING DIRECTOR OR THAT OF O THER PARTNERS HAVE NO EVIDENTIARY VALUE AS THEY ARE NOT SUPPORTED BY ANY DOCUMENTARY PROOF. IN THE LIGHT OF THE FINDING THAT THE STATEMENTS HAVE GOT NO EVIDENTIARY VALUE, ADJUDICATION OF THE QUESTION WHETHER SUCH STATEMENT FALLS UNDER THE EXPLANATION TO SUB-SECTION (4) OF SECTION 132 AND, IF SO, WHETHER OR NOT SUCH EXPLANATION HAS GOT ANY RETROSPECTIVE EFFECT, ABSOLUTELY SERVES NO USEFUL P URPOSE AND THAT SUCH AN ATTEMPT, IN OUR VIEW, WOULD BE A F UTILE EXERCISE. BECAUSE, EVEN IF IT IS TO BE HELD ON REFE RENCE THAT THE STATEMENT FALLS UNDER THE EXPLANATION AND THE EXPLANATION HAS GOT RETROSPECTIVE EFFECT, SUCH STAT EMENT DOES NOT IMPROVE THE CASE OF THE REVENUE IN THE LIG HT OF THE FINDING OF FACT RECORDED BY THE APPELLATE TRIBUNAL. THEREFORE, WE ARE OF THE VIEW THAT THE QUESTION BEC AME PURELY ACADEMIC AND IT DOES NOT DESERVE REFERENCE. 11. SIMILAR VIEW HAS BEEN ADOPTED BY THE HON'BLE A. P. HIGH COURT IN THE CASE OF NARESH KUMAR AGARWAL (SUPRA). FURTHER, TH E THIRD MEMBER BENCH IN THE CASE OF DCIT VS. PRAMUKH BUILDERS (SUP RA) HAS HELD THAT THERE BEING NO SPECTRA OF EVIDENCE REGARDING UNDISC LOSED INCOME, THE ADDITION MADE ONLY ON THE BASIS OF STATEMENT OF MAN AGING PARTNER OF THE 12 ASSESSEE FIRM U/S 132(4) OF THE ACT COULD NOT BE SU STAINED. IT HAS BEEN FURTHER OBSERVED THAT THERE MAY NOT BE ANY EVIDENCE OF COERCION BEING EXERCISED BY THE SEARCH PARTY, THERE MAY NOT BE ANY DURESS ALSO, BUT THE EXISTENCE OF CONFUSION CANNOT BE RULED OUT. THE AHM ADABAD BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. JORAWAR SINGH M.R ATHOD ITA NO. 76/AHD/1997, DATED 15.4.2005 HAS HELD THAT THERE M UST BE SOMETHING MORE THAN SUSPICION TO SUPPORT THE ASSESSMENT OR ADDITIO N AND THAT THE ADDITION CANNOT BE SUSTAINED ON THE BASIS OF RETRACTED STATE MENT U/S 132(4) OF THE ACT.. SIMILAR VIEW HAS BEEN ADOPTED BY THE JAIPUR B ENCH OF THE TRIBUNAL IN THE CASE OF SHREE CHAND SONIVS. DCIT. (SUPRA); TH E HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. HARJEEV AGRAWAL IN I TA NO. 8/2004 (SUPRA) AND BY THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF BASANT BANSAL V ACIT (SUPRA). IN VIEW OF THE FACTS AND CIRCUMSTANC ES OF THE CASE AND IN THE LIGHT OF THE PROPOSITION OF THE LAW AS LAID DOW N BY THE VARIOUS BENCHES OF THE TRIBUNAL AS WELL AS HIGH COURTS, IN OUR VIEW , THE ADDITION ON THE STAND ALONE STATEMENT OF SMT. ROOP LATA BANSAL IN T HIS CASE IS NOT SUSTAINABLE IN THE EYES OF LAW AND THIS ISSUE IS AC CORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. 12. GROUND NO.4. - IN THIS GROUND THE ASSESSEE HAS AGITATED THE ADDITI ON OF RS.24.90 LACS IN RESPECT OF PURCHASE OF HOUSE NO .9, SECTOR 9, PANCHKULA. THE FACTS RELEVANT TO THE ISSUE ARE THAT THE ASSESSEE ALONG WITH HIS WIFE PURCHASED H.NO. 9, SECTOR 9, PANCHKULA FOR A TOTAL SUM OF RS.35,20,000/- VIDE PURCHASE DEED DATED 1.3.2004. T HE LD. ASSESSING OFFICER ON THE BASIS OF THE STATEMENT OF SMT. ROOP LATA BANSAL RECORDED U/S 132(4) IN THE COURSE OF SEARCH ACTION ON 16.10.2007 TOOK THE PURCHASE PRICE OF THE PROPERTY AT RS.85,00,000/- AND THEREFORE, TH E DIFFERENCE OF 13 RS.49,80,000/- WAS TREATED AS INVESTMENT FROM UNDIS CLOSED SOURCES AND 1/2 SHARE I.E. RS.24,90,000/- WAS ADDED AS INCOME FROM UNDISCLOSED SOURCES IN THE HANDS OF THE ASSESSEE. 13. IN APPEAL THE LD. CIT(A) GAVE PART RELIEF TO TH E ASSESSEE TO THE EXTENT OF AMOUNT ALREADY CONSIDERED AS INCOME OF THE ASSE SSEE ON ACCOUNT OF UNDISCLOSED HIGHER SALE PRICE OF THE HOUSE NO. HOUS E NO. 346, SECTOR 15, PANCHKULA. 14. IN VIEW OF OUR DISCUSSION MADE ABOVE WHILE DECI DING GROUND NO.3, IN OUR VIEW, NO ADDITIONS ARE WARRANTED ON THE STAND A LONE STATEMENT OF SMT. ROOP LATA BANSAL WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION ON THIS ISSUE ALSO. THIS ISSUE IS ACC ORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. 15. GROUND NO.5: THE ASSESSEE IN THIS GROUND HAS AGITATED THE ADDIT ION OF RS.1,10,000/- INTO THE BUSINESS INCOME OF THE AS SESSEE. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT ASSE SSEE IS ENGAGED IN THE BUSINESS OF PROPERTY DEALING ON COMMISSION BASI S AND HAS DECLARED INCOME OF RS.2,15,000/- UNDER THIS HEAD. THE ASSESS ING OFFICER, HOWEVER, FOUND THAT THE INCOME WAS NOT REASONABLE AND JUSTIF IED. HE, THEREFORE, ESTIMATED THE SAME AT RS.3,25,000/-. THE ASSESSEE C ONTESTED THE SAID ADDITION STATING THAT THERE WAS NO BASIS FOR THE A SSESSING OFFICER TO ESTIMATE THE COMMISSION INCOME OF THE ASSESSEE AT R S.3,25,000/- AS AGAINST THE DECLARED INCOME OF RS.2,1,5000/-. THE LD. AR OF THE ASSESSEE IN THIS RESPECT HAS PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SUBHASH CHAND VS. ACIT, I TA NO. 571, 572 & 573/CHD/2011, ORDER DATED 28.11.2011. THE LD. AR SU BMITTED THAT THE CASE 14 OF SHRI SUBHASH CHAND WAS ALSO COVERED UNDER THE SE ARCH AND SEIZURE OPERATION THAT WAS CARRIED OUT IN THE CASE OF SH. P REM BANSAL GROUP OF CASES. THAT UNDER SIMILAR CIRCUMSTANCES, THE ADDITI ON WAS MADE IN THE CASE OF CONCERNED PERSON SH. SUBHASH CHAND. HOWEVER, THE COORDINATE BENCH OF THE TRIBUNAL OBSERVED THAT THERE WAS NO BASIS FO R THE LOWER AUTHORITIES TO MAKE THE ADDITION ON ESTIMATE BASIS AND ACCORDINGLY THE ADDITIONS WERE ORDERED TO BE DELETED. WE ALSO FIND THAT IN THE IMP UGNED ORDER THE LD. CIT(A) HAS NOT GIVEN ANY CONVINCING FINDINGS ABOUT THE BASIS OF CONFIRMATION OF ADDITION. IN VIEW OF THIS, THE ADDI TION BASED ON MERE ESTIMATION IS NOT SUSTAINABLE IN THE EYES OF LAW AN D THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 16. GROUND NO.6 : THE ASSESSEE VIDE THIS GROUND HAS CONTESTED THE ADDITION OF RS.1,50,000/- ON ACCOUNT OF UNEXPLAINE D CREDIT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER REQUI RED THE ASSESSEE TO FILE THE DETAILS OF FRESH LOANS ACCEPTED DURING THE YEAR . HE ALSO REQUIRED THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE EXPLA INED THAT NO SUCH FRESH LOAN WAS TAKEN BY THE ASSESSEE DURING THE YEAR. HO WEVER, A LIST OF UNSECURED LOANS OUTSTANDING AS ON 31.3.2004 WAS SUB MITTED. THE ASSESSING OFFICER WAS NOT SATISFIED ABOUT THE LOAN OF RS. 1,5 0,000/- RECEIVED BY THE ASSESSEE FROM ONE SHRI KULDIP SINGH RESIDENT OF VI LLAGE KOTIAN.. HE ACCORDINGLY MADE THE IMPUGNED ADDITION HOLDING THE SAME WAS NON GENUINE. IN APPEAL, THE LD. CIT(A) CONFIRMED THE AF ORESAID ADDITION. 17. LD. AR OF THE ASSESSEE HAS BROUGHT OUR ATTENTI ON TO PARA 9 OF THE IMPUGNED ORDER OF LD. CIT(A) WHEREIN IT HAS BEEN C ATEGORICALLY NOTED BY THE LD. CIT(A) THAT THE ASSESSEE VIDE LETTER DATED 2.11.2009 HAD EXPLAINED 15 TO THE ASSESSING OFFICER THAT THE SAID AMOUNT PERTA INS TO THE ADVANCE RECEIVED FROM SHRI KULDIP SINGH AGAINST THE SALE OF PROPERTY WHICH MATURED IN ASSESSMENT YEAR 2005-06. THE COPY OF THE SALE DEED WAS ALSO PLACED ON RECORD. THE LD. CIT(A), HOWEVER, BRUSHED ASIDE THE AFORESAID ARGUMENT OBSERVING THAT THE IDENTITY AND CREDITWORT HINESS OF SHRI KULDIP SINGH AND GENUINENESS OF THE TRANSACTION HAS NOT BE EN PROVED. IN OUR VIEW, WHEN A COPY OF THE REGISTERED SALE DEED HAS ALREADY BEEN PRODUCED ON THE FILE AND IT HAS BEEN EXPLAINED THAT THE ADVANCE OF RS. 1.50 LACS WAS RECEIVED IN RELATION TO THE AFORESAID TRANSACTION, THERE WAS NO QUESTION FOR THE LOWER AUTHORITIES TO DISBELIEVE THE ABOVE PLEA ESPECIALLY IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEAR CH ACTION. RELIANCE IN THIS RESPECT CAN BE PLACED ON THE DECISION OF THE H ON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 234 TAXMAN 300 ( DELHI) AND O F THE BY THE HONBLE BOMBAY HIGH COURT IN THE CASES OF A LL CARGO LOGISTICS ITA NO.1969 OF 2013 AND CONTINENTAL WAREHOUSING CO RPORATION ITA NO. 523 OF 2013 (COMMON ORDER) REPORTED IN (2015) 279 C TR 0389 (BOMBAY) THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE AND THE IMPUGNED ADDITIONS MADE ON THIS ISSUE ARE HEREBY OR DERED TO BE DELETED. 18. GROUND NO.7: THE ASSESSEE VIDE GROUND NO.7 THE ASSESSEE HAS AGITATED THE ADDITION OF RS. 5 LACS ON ACCOUNT OF U NEXPLAINED PAYMENTS TO ONE SHRI GURCHARN SINGH RESIDENT OF VILLAGE BARLAIN WHICH WAS REVEALED FROM THE SEIZED DOCUMENTS. THE ASSESSEE EXPLAINED T HAT THE PAYMENT MADE TO SHRI GURCHARAN SINGH ON ACCOUNT OF PROPERTY TRAN SACTION WAS EFFECTED ON HIS BEHALF ON COMMISSION BASIS. THAT THE AMOUNT WAS RECEIVED FROM THE OTHER PARTY ON BEHALF OF THE SAID SHRI GURCHARAN SI NGH AND THE SAME WAS PAID TO SHRI GURCHARAN SINGH. THAT THE COMMISSION I NCOME EARNED FROM THE 16 SAID TRANSACTION HAS ALREADY BEEN OFFERED BY THE AS SESSEE AS HIS BUSINESS INCOME. THE ASSESSING OFFICER HOWEVER, REJECTED THE ABOVE CONTENTION OF THE ASSESSEE AND ADDED THE SAME AMOUNT AS INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMIT TEDLY, THE ASSESSEE IS IN THE BUSINESS ACTIVITY OF SALE AND PURCHASE OF PROPERTY ON COMMISSION BASIS. THE ASSESSEE HAS ALSO RETURNED THE COMMISSIO N INCOME IN HIS RETURN OF INCOME. THE ASSESSEE HAS EXPLAINED THAT THE SAID AMOUNT WAS RECEIVED ON BEHALF OF SHRI GURCHARAN SINGH IN RELATION TO TH E PROPERTY TRANSACTION AND THE INCOME EARNED WAS DULY RETURNED IN HIS RETU RN OF INCOME FOR ASSESSMENT YEAR 2004-05. A PERUSAL OF THE COMPUTATI ON OF TOTAL INCOME ATTACHED WITH THE ACKNOWLEDGEMENT FOR RETURN OF INC OME FOR ASSESSMENT YEAR 2004-05 REVEALS THAT THE ASSESSEE HAS RETURNED AN INCOME FROM PURCHASE AND SALE OF PROPERTIES OF RS. 2,15,000/-. THE ASSESSEE HAS ALSO GIVEN THE NAME AND ADDRESS OF THE PERSONS TO THE AS SESSING OFFICER ON BEHALF OF WHOM THE TRANSACTIONS WERE CARRIED OUT. T HE ASSESSING OFFICER WITHOUT MAKING ANY FURTHER ENQUIRY SIMPLY ADDED THE AMOUNT INTO THE INCOME OF THE ASSESSEE TREATING IT AS UNDISCLOSED P AYMENT. THE ASSESSING OFFICER COULD NOT ESTABLISH ANY OTHER BUSINESS TRAN SACTION, LOAN OR PURCHASE OF PROPERTY TRANSACTION OF THE ASSESSEE WITH SHRI G URCHARAN SINGH OR THAT THE COMMISSION INCOME OFFERED BY THE ASSESSEE WAS F OR SOME OTHER ACTIVITY. WE FURTHER FIND THAT THE ADDITIONS ON THE IDENTICAL ISSUE WERE MADE BY THE AO IN THE CASE OF THE ASSESSEE FOR AY 2 008-09 ALSO, HOWEVER THE SAME WERE DELETED BY THE CIT(A). IN THE CIRCUMS TANCES, THE ADDITION MADE BY THE ASSESSING OFFICER MERELY ON THE BASIS O F SUSPICION WITHOUT FURTHER INQUIRY INTO THE EXPLANATION GIVEN BY THE A SSESSEE IS NOT SUSTAINABLE 17 IN THE EYES OF LAW AND THE SAME IS ACCORDINGLY ORDE RED TO BE DELETED. THE ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSES SEE. 20 . GROUND NO. 8 : THIS GROUND IS GENERAL LEGAL GROUND WHEREIN THE ASSESSEE HAS TAKEN THE PLEA THAT THE ADDITIONS CANN OT BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. THIS ISSUE H AS ALREADY BEEN DEALT WITH BY US IN GROUND NO.6 OF THE APPEAL AND DECIDED IN FAVOUR OF THE ASSESSEE IN THE LIGHT OF THE DECISION OF THE HON'BL E DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA AND HON'BLE BOMBAY HI GH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD VS. DCIT ( SUPRA). 21. GROUND NO.9: IN THIS GROUND THE ASSESSEE HAS TAKEN THE ALTERNAT IVE PLEA THAT THE ADDITIONS SHOULD BE ADJUSTED AND TELE SCOPED. SINCE WE HAVE ALREADY DELETED THE IMPUGNED ADDITIONS, THIS GROUND HAS BECOME INFRUCTUOUS AND NEEDS NO ADJUDICATION. 22 . GROUND NO.10 : THIS GROUND REGARDING LEVY OF INTEREST U/S 234B I S CONSEQUENTIAL IN NATURE AND DOES NOT REQUIRE ANY AD JUDICATION AT THIS STAGE. 23. GROUND NO.11 : THIS GROUND IS GENERAL IN NATURE AND DOES NOT REQ UIRE ANY ADJUDICATION. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THIS APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. ITA NO. 574/CHD/2011 (ASSESSMENT YEAR 2004-05) :- 24. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE SMT. ROOP LATA BANSAL WIFE OF SHRI PREM CHAND BANSAL. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 18 1. THAT THE IMPUGNED APPELLATE ORDER IS BAD BOTH ON FACTS AND LAW TO THE EXTENT THAT THE ADDITIONS ARE CONFIRMED. 2. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY HELD THAT THE PROCEEDINGS HAS BEEN PROPER LY INITIATED U/S .153A AND FURTHER ERRED IN HOLDING TH AT ASSESSMENT U/S 153A HAS BEEN PROPERLY MADE. 3. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY CONFIRMED ADDITION OF RS. 180345/- AS LON G TERM CAPITAL GAIN ALTHOUGH AN ALTERNATIVE PLEA SAME IS DELETED. 4. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY CONFIRMED THE ADDITION OF RS. 24.90 LACS ALTHOUGH ON ALTERNATIVE PLEA THE ADDITION OF RS. 14 .50 LACS IS CONFIRMED. 5. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY CONFIRMED ADDITION OF RS.6,97,000/- ON AC COUNT OF UNEXPLAINED ENTRIES IN THE BANK ACCOUNT AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY REJECTED THE GROUND THAT THE ADDITIONS MA DE IN ASSESSMENT PROCEEDINGS U/S 153A ARE SINE-QUA-NON TH E SEIZED MATERIAL AND NO ADDITION COULD BE SUSTAINED OTHERWISE. 7. THAT THE LEARNED APPELLATE AUTHORITY WRONGLY AND ILLEGALLY DIRECTED TO CHARGE INTEREST U/S 234B ALTH OUGH ON FACTS AND CIRCUMSTANCES OF THE CASE, INTEREST IS NOT CHARGEABLE. 8. THAT THE APPELLANT CRAVES PERMISSION TO ELUCIDATE, ADD, AMEND : MODIFY, DELETE ANY GROUND OR GROUNDS OF APPEAL BEFORE THE DISPOSAL IN THE INTEREST OF SUBST ANTIAL JUSTICE. 25 . GROUND NO.1 : THIS GROUND IS GENERAL IN NATURE AND DOES NOT RE QUIRE ANY ADJUDICATION. HOWEVER, THE PLEA TAKEN IN THIS G ROUND WILL BE TAKEN INTO CONSIDERATION WHILE ADJUDICATING THE SPECIFIC ISSUE S. 19 26. GROUND NO. 2 : THE LD. COUNSEL FOR THE ASSESSEE HAS STATED AT B AR THAT HE DOES NOT INTEND TO PRESS THE GROUND NO. 2 O F THE APPEAL, HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 27. GROUND NOS. 3 & 4 : THE ISSUE RAISED IN GROUND NOS. 3 & 4 IS IDENTICAL AND RELATES TO THE SAME TRANSACTIONS AS DISCUSSED WHILE ADJUDICATING GROUND NOS. 3 & 4 ABOVE IN ITA NO. 5 70/CHD/2014, IN THE CASE OF HUSBAND OF THE ASSESSEE NAMELY SHRI PREM CH AND BANSAL. IN VIEW OF DISCUSSION AND FINDINGS GIVEN IN THE AFORESAID A PPEAL, GROUND NOS. 3 & 4 ARE ALLOWED AND DECIDED IN FAVOUR OF THE ASSESSEE. 28. GROUND NO.5 : VIDE THIS GROUND, THE ASSESSEE HAS AGITATED THE CONFIRMATION OF ADDITION OF RS. 6,97,000/- ON ACCOU NT OF UNEXPLAINED ENTRIES IN THE BANK ACCOUNT OF THE ASSESSEE. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONSIDE RATION ARE THAT ADDITION OF RS.6,97,000/- WAS MADE BY THE ASSESSING OFFICER INTO THE INCOME OF THE ASSESSEE AS THE ASSESSEE FAILED TO EX PLAIN THE CREDIT ENTRIES TO THE EXTENT OF AFORESAID AMOUNT DEPOSITED IN HER ACC OUNT. 29. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE SUBMI TTED THAT THESE DEPOSITS WERE MADE BY HER FROM THE SALE PROCEEDS O F HER PROPERTIES AND ALSO FROM RENTAL INCOME, WHEREUPON A REMAND REPORT WAS CALLED BY THE CIT(A) FROM THE ASSESSING OFFICER. IN HIS REMAND R EPORT, THE ASSESSING OFFICER REPORTED THAT THE ASSESSEE HAD NOT SUBMITTE D ANY EVIDENCE WITH REGARD TO HER CONTENTIONS. IN REJOINDER TO THE SAI D REMAND REPORT, THE ASSESSEE FURNISHED BEFORE THE CIT(A) STATEMENT GIVI NG DETAILS OF SALE DEED ETC. WHEREFROM THE AMOUNT HAD COME. THE ASSESSEE EX PLAINED THAT THERE WERE THREE CREDIT ENTRIES IN THE BANK ACCOUNT. CRE DIT OF RS.3 LACS AND 20 RS.2,47,000/- WAS ON ACCOUNT OF SALE OF AGRICULTURA L LAND IN VILLAGE KAKRALI, COPY OF THE SALE DEED WAS ALSO ENCLOSED S HOWING THE SALE OF LAND FOR RS.6,65,000/- AND THE TWO CHEQUES OF RS.5,50,00 0/- AND RS. 1,15,000/- IN CASH. IT WAS EXPLAINED THAT THE CHEQUE OF RS. 3 LACS WAS CREDITED ON 7.6.2003 AND CREDIT OF RS. 2,47,000/- WAS AGAINST T HE CHEQUES OF RS.2,50,000/-. 30. THE LD. CIT(A) AFTER CONSIDERING THE ABOVE SUBM ISSIONS AND GOING THROUGH THE STATEMENT OF AFFAIRS I.E. BALANCE SHEET AS ON 31.3.2004 AND CAPITAL ACCOUNT FOR THE PERIOD ENDING 31.3.2004 OB SERVED THAT ALL THE ENTRIES WERE DULY INCORPORATED. HE, HOWEVER, UPHELD THE DECISION OBSERVING THAT THE COPY OF THE SALE DEED WAS NOT ENCLOSED. 31. BEFORE US, THE LD. AR OF THE ASSESSEE HAS PRODU CED THE COPY OF THE SALE DEED VIDE WHICH PROPERTY SITUATED AT VILLAGE K AKRAIL HAS BEEN SOLD FOR A SUM OF RS. 6,65,000/-, OUT OF WHICH RS. 5,50,000 /- HAS BEEN RECEIVED BY THE ASSESSEE THROUGH CHEQUES, WHICH FACT HAS NOT BE EN DISPUTED AT ALL BY THE LOWER AUTHORITIES. THE ASSESSEE PROVED BEYOND D OUBT THE SOURCE OF AFORESAID CREDIT. IN VIEW OF THIS, THE ADDITION MAD E BY THE LOWER AUTHORITIES IS NOT SUSTAINABLE IN THE EYES OF LAW AND THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 32. GROUND NO.6 : THE ISSUE RAISED IN THIS GROUND IS IDENTICAL TO GROUND NO.8 OF THE APPEAL IN ITA NO. 570/CHD/2014 FOR ASSE SSMENT YEAR 2004-05, WHICH IS A GENERAL LEGAL GROUND. IN VIEW OF OUR FIN DINGS GIVEN WHILE ADJUDICATING THE AFORESAID GROUND NO. 8 IN ITA NO. 570/CHD/2014, THIS GROUND IS DECIDED IN FAVOUR OF THE ASSESSEE. 21 33 . GROUND NO. 7 : THIS GROUND REGARDING LEVY OF INTEREST U/S 234B OF THE ACT BEING CONSEQUENTIAL IN NATURE, DOES NOT REQ UIRE ANY ADJUDICATION AT THIS STAGE. 34. GROUND NO. 8 : THIS GROUND IS GENERAL IS NATURE AND DOES NOT RE QUIRE ANY ADJUDICATION. IN VIEW OF OUR DISCUSSION MADE ABOVE, THIS APPEAL O F THE ASSESSEE STANDS ALLOWED. ITA NO. 631/CHD/2011 (ASSESSMENT YEAR 2006-07) 35. THIS APPEAL HAS BEEN PREFERRED BY REVENUE AGAINST THE ORDER OF CIT(A)-1, LUDHIANA, DATED 24.3.2011, IN RELATION TO THE ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT. THE REVENUE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS O F THE CASE BY DELETING THE ADDITION OF RS. 18,85,000/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF EXEMPTION U/S 54F IGNORING THE FACT THAT THE EXEMPT ION U/S 54F WAS DISALLOWABLE ON ONE FLAT ONLY WHEREAS T HE ASSESSEE HAD CLAIMED THE SAME ON TWO FLATS EVEN WHE N HE WAS NOT HAVING ANOTHER RESIDENTIAL HOUSE. 2. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON THE FAC TS OF THE CASE BY DELETING THE ADDITION OF RS. 54,02,500/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED CASH RECEIPTS OF THE ASSESSEE, IGNORING THE FACTS THAT T HE ADDITIONS WERE MADE ON THE BASIS OF SEIZED MATERIAL AND OTHER RELEVANT FACTORS. 22 36. GROUND NO.1 : THE REVENUE IN THIS GROUND IS AGGRIEVED BY THE ACTION OF THE CIT(A) IN DELETING THE ADDITION OF RS .18,85,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF EXEMPTION U/S 54F OF THE ACT. 37. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CON SIDERATION ARE THAT THE ASSESSEE, DURING THE YEAR UNDER CONSIDERATION, SOLD A PLOT FOR RS.37,50,000/- AND CLAIMED EXEMPTION U/S 54F OF THE ACT ON ACCOUNT OF PURCHASE OF NEW RESIDENTIAL COMPLEX. FROM THE PERUS AL OF THE RECORD, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD PU RCHASED TWO FLATS BEARING NOS. 604 & 605 IN SATYAM SWASTIK APARTMENTS , PATIALA ROAD, ZIRAKPUR. THE ASSESSING OFFICER OBSERVED THAT SINCE THE ASSESSEE ALREADY OWNED A HOUSE AT PANCHKULA, THE DEDUCTION U/S 54F O F THE ACT WAS ALLOWABLE FOR ONE MORE HOUSE ONLY. THE ASSESSING OF FICER ACCORDINGLY DISALLOWED THE DEDUCTION ON THE SECOND FLAT PURCHAS ED BY THE ASSESSEE. 38. IN APPEAL, THE ASSESSEE SUBMITTED BEFORE THE LD . CIT(A) THAT ASSESSEE HAD PURCHASED FLAT NOS. 604 & 605 WHICH W ERE ADJACENT TO EACH OTHER AND WERE BEING USED BY THE ASSESSEE AS A SINGLE HOUSE AND, THEREFORE, DEDUCTION U/S 54F SHOULD BE ALLOWED ON THE INVESTMENT IN THE AFORESAID FLATS. THE LD. CIT(A) AFTER CONSIDERING T HE ABOVE SUBMISSION OF THE ASSESSEE AND IN THE LIGHT OF THE VARIOUS JUD ICIAL DECISIONS HELD THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S 54 F AS THE ASSESSEE HAD PURCHASED AND WAS USING THE ADJACENT FLATS AS SING LE RESIDENTIAL UNIT. HE FURTHER OBSERVED THAT EVEN ASSESSEE WAS HAVING ONLY 1/2 SHARE IN THE ALREADY OWNED HOUSE NO. 9, SECTOR 9, PANCHKULA AND, THEREFORE, IT COULD NOT BE SAID THAT HE WAS OWNER OF ONE RESIDENTIAL HO USE. HE, THEREFORE, RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CAS E OF RASIK LAL N. 23 SATRA REPORTED IN 98 ITD 335 HELD THAT EVEN OTHERWI SE THE DEDUCTION U/S 54F TO THE ASSESSEE CANNOT BE DENIED TO THE ASSESSE E. 39. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE FIN D THAT THE ISSUE, AS OF NOW, IS COVERED BY THE VARIOUS DECISIONS OF T HE TRIBUNAL IN FAVOUR OF THE ASSESSEE. RELIANCE CAN BE PLACED IN RESPECT ON THE RECENT DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF ABH IJIT BHANDARI VS. PRINCIPAL CIT (2017) 82 TAXMAN.COM 457. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) O N THIS ISSUE AND THE SAME IS ACCORDINGLY UPHELD. 40. GROUND NO.2 : IN THIS GROUND, THE REVENUE HAS AGITATED THE ACTION OF THE CIT(A) IN DELETING THE ADDITION OF RS . 54,02,500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED CAS H RECEIPTS BY THE ASSESSEE. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONSIDERATION ARE THAT THE ASSESSING OFFICER FROM THE SEIZED DOCUMENTS GAT HERED THAT THE ASSESSEE HAD RECEIVED AMOUNTS FROM VARIOUS PERSONS AGAINST THE SALE OF VARIOUS PLOTS AT SWASTIK VIHAR. THE ASSESSEE EXPLAI NED THAT THE ASSESSEE HAD SOLD THE LAND AS GENERAL POWER OF ATTORNEY (GPA ) OF THE LAND OWNERS SHRI BHAG SINGH, SURJAN SINGH, KULDEEP SINGH ETC. AND THE AMOUNT COLLECTED ON BEHALF OF THEM WERE HANDED OVER TO THE SAID LAND OWNERS. THE COMMISSION INCOME EARNED BY THE ASSESSE E ON THE AFORESAID TRANSACTION WAS DULY OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME. THE ASSESSING OFFICER REJECTED THE ABOVE CONTENTION OF THE ASSESSEE AND TREATED THE RECEIPT OF AMOUNT TOTALING RS.54,02,500 /- AS INCOME OF THE ASSESSEE. 24 41. HE LD. CIT(A), AFTER CONSIDERING THE SUBMISSION S AND RELEVANT EVIDENCE ON THIS ISSUE, OBSERVED THAT THE ASSESSEE HAD FURNISHED THE SALE DEED CLAIMED TO BE EXECUTED AS GPA OF THE LAND OWNE RS REGARDING THE PLOTS MENTIONED IN THE SEIZED DOCUMENTS. HE FURTHER OBSERVED THAT SIMILAR ISSUE HAD ALREADY BEEN DEALT WITH BY HIM WH ILE ADJUDICATING THE APPEAL OF THE ASSESSEE FOR 2008-09 AND IN THE LIGH T OF THE DISCUSSION MADE THEREIN, HE DELETED THE AFORESAID ADDITION FOR THE YEAR UNDER CONSIDERATION ALSO. 42. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE COPY OF THE ORDER DATED 24.3.2011 OF THE CIT(A) -I, LUDHIANA . THE IDENTICAL ISSUE IN THE CASE OF THE ASSESSEE FOR ASS ESSMENT YEAR 2008-09 HAS BEEN DISCUSSED IN PARA 12 OF THE DECISION. THE LD. CIT(A) THEREIN HAS OBSERVED THAT IT WAS AN ADMITTED FACT THAT THE ASSESSEE WAS WORKING AS COMMISSION AGENT FOR LAND OWNERS. FURTHER, THAT THERE WAS EVIDENCE AVAILABLE THAT THE ASSESSEE HAD NEVER HIMSELF PURCH ASED THE LAND IN QUESTION I.E. SWASTIK VIHAR. THE STATEMENT OF THE SAID LAND OWNERS NAMELY SHRI BHAG SINGH, SURJAN SINGH, PRITAM SINGH AND HARI SINGH WAS RECORDED BY THE ASSESSING OFFICER. IN THEIR STATEME NTS, THEY HAVE ADMITTED THAT SHRI PREM BANSAL WAS AUTHORISED BY TH EM TO SELL THE LAND ON COMMISSION BASIS. THAT THE ASSESSING OFFICER HAD ALREADY ASSESSED THE COMMISSION INCOME OF LAND BUSINESS IN THE HANDS OF THE ASSESSEE SEPARATELY. IN THE ABSENCE OF ANY EVIDENCES IN SUPP ORT OF THE CONTENTIONS RAISED BY THE ASSESSEE, THE ADDITIONS WERE MADE BY THE ASSESSING OFFICER ON MERE SUSPICION BASIS. THE LD. CIT(A), THEREFORE , DELETED THE ADDITIONS. 25 43. THE LD. DR COULD NOT BROUGHT OUT ANY DISTINGUIS HING FACT TO REBUT THE AFORESAID FACTUAL FINDINGS GIVEN BY THE C IT(A). WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A ) WHILE DELETING THE AFORESAID ADDITION. 44. THE APPEAL OF THE REVENUE IS HEREBY DISMISSED. 45. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NOS. 570 & 574/CHD/2004 STAND ALLOWED WHEREAS THE APPEAL OF TH E REVENUE BEARING ITA NO. 631/CDH/2011 STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.201 7 SD/- SD/- ( DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :13 TH NOVEMBER, 2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR