Jiwan Kumar Modi, Ludhiana V. ITO, Ludhiana

ITA 615/CHANDI/2013

• Counselvise Citation: 61521514 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 28-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: VIBHOR GARG
• Keywords: Unexplained investment; Income from undisclosed sources; Reassessment proceedings
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO.615/CHD/2013 ASSESSMENT YEAR:2004-05 JIWAN KUMAR MODI, VS. ITO PROP. KIRAN SONS, 231 WARD II(4) KARTA RAM GALI,GHAS MANDI LUDHIANA LUDHIANA PAN NO. ACDPM6893J (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VIBHOR GARG RESPONDENT BY : SH. RAVI SARANGAL DATE OF HEARING : 26/08/2015 DATE OF PRONOUNCEMENT : 20/11/2015 ORDER PER ANNAPURNA MEHROTRA A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, LUDHIANA DATED 25-03-2013. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 01-11-2004 DECLARIN G AN INCOME 1,77,150/-. LATER ON THE CASE WAS REOPENED U/S 147 ON THE ISSUE THAT THE ASSESSEE HAD MADE AN INVESTMENT OF RS. 30 LACS FOR PURCHASE OF P ROPERTY B-19/907/16, TAGORE NAGAR, LUDHIANA MEASURING 406 SQ. YARDS, HOWEVER VI DE WASIKA NO. 9086 & 9089 DT. 24/09/2003, THE REGISTERED DEED HAD BEEN EXECUT ED FOR RS. 7,85,000/- ONLY AND HENCE EXCESS PAYMENT TO THE EXTENT OF RS. 22,15 ,000/- HAD BEEN MADE BY THE ASSESSEE FROM UNDISCLOSED SOURCES. ORDER U/S 14 3(3) / 147 WAS PASSED ON 16- 12-2011 TREATING THE AMOUNT OF RS.22,15,000/- AS IN COME FROM UNDISCLOSED SOURCES AND ADDING THE SAME TO THE INCOME OF THE AS SESSEE. 2 3. LD. CIT(A) VIDE HIS ORDER DATED 25-03-2013 UPHEL D THE ADDITION MADE OF RS. 22,15,000 TO THE INCOME OF THE ASSESSEE BY HOLDING AS FOLLOWS: 4.10. IT IS EVIDENT FROM THE FACTS THAT THE MARKE T VALUE OF PROPERTY BEARING THE ADDRESS B-19/907/16 MEASURING 406 SQ. YARDS ON 11/0 4/2003 WAS APPROXIMATELY 30 LACS. THIS PROPERTY WAS ULTIMATELY REGISTERED IN THE NAME OF APPELLANT WITHIN A PERIOD OF 5 MONTHS. THE APPELLANT HAS NOT BEEN ABLE TO SHOW AS TO HOW THE PROPERTYS VALUE HAS REDUCED TO ALMOST 25% WITHIN A PERIOD OF 5 MONTHS. 4.11. THE APPELLANT HAS CLAIMED THAT THE AGREEMENT DATED 11/04/2003 WAS CANCELLED IN VIEW OF THE FACT THAT THE SELLER COULD NOT PRODUCE THE ORIGINAL DOCUMENTS. HOWEVER, THE APPELLANT HAS NOT BEEN ABLE TO FURNISH ANY DOCUMENTS IN SUPPORT OF THIS CLAIM EXCEPT THE FACT THAT CHEQU E OF RS. 4 LACS WAS RETURNED TO SH. SURINDER KAPOOR. HOWEVER, THIS FINANCIAL TRANSA CTION BY ITSELF DOES NOT PROVE THE APPELLANTS CLAIM. NO DOCUMENTARY EVIDENCE WAS PRODUCED BY THE APPELLANT IN SUPPORT OF HIS CONTENTION. IT IS NOT E VEN THE APPELLANTS CONTENTION THAT THE CANCELLATION AGREEMENT WAS DRAWN AND SIGNE D. THE FACT THAT THE APPELLANT DID PURCHASE THE WHOLE OF 406 SQ. YARDS O F THE SAID PROPERTY AND THE REGISTRY WAS EXECUTED ON 24/09/2003 I.E. WITHIN THE PERIOD MENTIONED IN THE AGREEMENT DATED 11/04/2003 SHOWS THAT THE APPELLANT S CLAIM THAT THE AGREEMENT DATED 11/04/2003 WAS CANCELLED IS A MERE SELF SERVING CLAIM. 4.12 THE APPELLANTS CONTENTION THAT HE WAS NOT ALL OWED AN OPPORTUNITY TO CROSS EXAMINE SH. SURINDER KAPOOR WHO HAD ADMITTED TO HAVE RECEIVED RS. 28 LACS OUT OF THE AMOUNT OF RS. 30 LACS AND THEREFORE , THE ASSESSMENT IS BAD IN LAW IS ALSO NOT TENABLE. THE STATEMENT OF SH. SURINDER KAPOOR WAS ONLY SECONDARY EVIDENCE IN THE CASE. THE PRIMARY EVIDENCE ON THE B ASIS OF WHICH THE ADDITION HAS BEEN MADE IN THE CASE IS THE AGREEMENT DATED 11 /04/2003 WHICH THE APPELLANT HAS NOT DISPUTED. IN THESE CIRCUMSTANCES THE AO WAS NOT OBLIGED TO GIVE AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMI NE SH. SURINDER KAPOOR. RELIANCE IN THIS REGARD IS PLACED ON THE CASE OF GT C INDUSTRY LTD. VS. ACIT (ITAT, MUMBAI) 65 ITD 380. 4.13 KEEPING IN VIEW THE AFORESAID FACTUAL AND LEGA L POSITION THE AO WAS FULLY JUSTIFIED IN MAKING THE ADDITION OF RS. 22,15,000/- TO THE TOTAL INCOME OF THE APPELLANT. THESE GROUNDS OF APPEAL ARE ACCORDINGLY DISMISSED. 4. AGGRIEVED BY THE SAME THE ASSESSEE FILED THE PRE SENT APPEAL BEFORE US TAKING THE FOLLOWING GROUNDS :- 1. THAT THE LD. CIT(A) HAS ERRED IN FACTS AND LAW BY U PHOLDING THE REASSESSMENT PROCEEDINGS U/S 147., 148. 2. THAT THE LD CIT(A) HAS ERRED IN UPHOLDING THE ADDIT ION OF RS. 22,15,000/- ON ACCOUNT OF PAYMENT MADE FROM UNDISCLOSED SOURCES. 5. GROUND NO. 1 HAS NOT BEEN PRESSED BY THE ASSESSE E AND IS THEREFORE TREATED AS DISMISSED. 6. GROUND NO. 2 IS AGAINST THE ADDITION OF A SUM OF RS. 22,15,000/- AS INCOME FROM UNDISCLOSED SOURCES. 7. BEFORE US LD. AR ARGUED THAT THE REASON FOR THE ADDITION OF RS. 22,15,000/- WAS THAT WHILE ON 11-04-2003 THE ASSESSEE HAD ENTER ED INTO AN AGREEMENT TO SELL 3 WITH ONE SH. SURINDER KAPOOR FOR 300 SQ. YARDS PROP ERTY AND MRS. RAJIKA KAPOOR, AMIT KAPOOR AND SH. SURINDER KAPOOR FOR 106 SQ. YAR DS FOR RS. 30,00,000, THE INVESTMENT IN THE SAID PROPERTY HAD BEEN MADE OF AN AMOUNT OF RS.7,85,000 ONLY THROUGH REGISTERED DEED DT. 24/09/2003. LD. A. R. STATED THAT THE ORIGINAL AGREEMENT TO SELL DATED 11-04-2003 HAD BEEN CANCELL ED, SINCE THE SELLER HAD FAILED TO PRODUCE THE ORIGINAL DOCUMENTS OF THE PRO PERTY. LD. AR STATED THE IMPUGNED PROPERTY HAD BEEN PLEDGED TO HDFC BANK, AN D 300 SQ. YDS OF THE PROPERTY HAD ALREADY BE SOLD TO SH. TRILOK NATH BAT RA AND SH. AMIT GUPTA FOR RS. 4,50,000/- VIDE SALE DEED DATED 19-06-2002. LD. AR STATED THAT IT WAS FOR THIS REASON THAT THE SELLER WAS UNABLE TO PRODUCE THE OR IGINAL DOCUMENTS RELATING TO THE SAID PROPERTY FOR REGISTRATION AND HENCE THE AG REEMENT TO SELL WITH SH. SURINDER KAPOOR WAS CANCELLED. THE LD. AR FURTHER S TATED IN PURSUANCE TO THE AGREEMENT TO SELL THE ASSESSEE HAD MADE PAYMENT BY CHEQUE OF RS.51,000/- TO SH. AMIT KAPOOR, RS.50,000 TO MS. RAJIKA KAPOOR AND RS.3,00,000/- TO SH. SURINDER KAPOOR , WHICH ON CANCELLATION WAS RETURNED BY THE SELLER. LD. AR PRODUCED BEFORE US COPIES OF THE CHEQUES EVIDENCING PAYMENTS MADE TO THE SELLERS AT PB NO. 10-11 AND ALSO COPY OF THE CHEQUE RETURNING THE AMOUNT TO THE SELLER PB NO. 27 AS EVIDENCE OF CANCELLATION OF THE AGREEMENT. FU RTHER LD. AR ALSO PLACED BEFORE US COPIES OF BANK STATEMENTS EVIDENCING THE PAYMENTS MADE AND THE RETURN OF THE AMOUNT AT PB NO. 9, 28. LD. AR STATED THAT AFTER CANCELLING THE SAME THE ASSESSE ULTIMATELY PURCHASED 300 SQ. YARDS OF THE PROPERTY FROM THE REAL OWNERS I.E. SH. TRILOK NATH BATRA AND SH. AMIT GUPTA, VIDE SALE DEED DATED 24-09-2003 AND PAID RS. 5,00,000/- FOR THE SAME LD. AR PRODUCED COPY OF THE SALE DEED EVIDENCING PAYMENT OF RS. 4,20,000/- IN C ASH AND RS. 80,000/- BY CHEQUE FOR THE AFORESAID PROPERTY AT PB NO. 31. LD. AR FURTHER STATED THAT THE REMAINING 106 SQ. YARD OF THE PROPERTY WAS PURCHASE D FROM SH. SURINDER KAPOOR, MS. RAJIKA KAPOOR AND SH. AMIT KAPOOR ON 24-09-2003 FOR RS. 2,85,000/- AND THE SAID PAYMENT WAS MADE BY CHEQUE. LD. AR PRODUCED BE FORE US COPY OF THE 4 SALE DEED AS EVIDENCE OF THE SAME AT PB NO. 35-40. THUS, THE LD., AR STATED THAT THE IMPUGNED PROPERTY HAD BEEN PURCHASED FOR RS. 7, 85,000/- ONLY AND THE AGREEMENT TO SELL ENTERED INTO EARLIER FOR PURCHASI NG THE PROPERTY FOR RS. 30,00,000/- HAD BEEN CANCELLED. LD. AR STATED THAT ALL THE DOCUMENTS PROVE THAT NO PAYMENT OVER AND ABOVE RS.7,8,5000/- WAS MA DE FOR THE PURCHASE OF THE PROPERTY AND THEREFORE NO ADDITION ON ACCOUNT O F UNDISCLOSED/ UNEXPLAINED INVESTMENT IN PROPERTY AMOUNTING TO RS. 22,15,000/- COULD BE MADE IN THE HANDS OF THE ASSESSEE. LD. AR EMPHASIZED THE FACT THE SH . SURINDER KAPOOR, WITH WHOM THE AGREEMENT TO SELL FOR RS. 30 LACS HAD BEEN ENTE RED INTO WAS A CHEAT WHICH WAS EVIDENT FROM THE FACT THAT ALTHOUGH HE HAD ALRE ADY SOLD 300 SQ. YARDS OF THIS PROPERTY TO SH. AMIT GUPTA AND SH. TRILOK NATH BATRA ON 19-06-2002, AND WAS NO LONGER THE OWNER OF 300 SQ. YARD OF THE PROPERTY , HE STILL WENT AHEAD AND ENTERED INTO AN AGREEMENT TO SELL WITH THE ASSESSEE FOR THE SAME 300 SQ. YARD PROPERTY ON 11-04-2003 LD. AR FURTHER STATED THAT THE FACT THAT SH. SURINDER KAPOOR WAS DISHONEST MAN WAS ALSO EVIDENT FROM THE FACT THAT THOUGH HE HAD MORTGAGED THE SAID PROPERTY TO HDFC BANK BUT THE S AME HAD NOT BEEN DISCLOSED TO THE ASSESSEE WHILE ENTERING INTO THE A GREEMENT TO SELL . LD. AR PRODUCED DOCUMENTS EVIDENCING THE MORTGAGE OF THE P ROPERTY WITH HDFC BANK PLACED AT PB NO. 55, 56, 57 AND FURTHER POINTE D OUT IN THE AGREEMENT TO SELL THE POINT WHEREIN IT WAS STATED THAT THE AFORE SAID PROPERTY HAD NOT BEEN PLEDGED OR MORTGAGED WITH ANYBODY PB NO. 2. LD. AR FURTHER POINTED OUT THAT THE SAID PROPERTY WAS EVEN UNDER FIRST CHARGE OF ST ATE BANK OF PATIALA WHEREIN IT WAS MORTGAGED AND IN PURSUANCE TO THE ORDER DATED 0 8-06-2002, 14-08-2003 & 05.09.2003 IN THE PROCEEDINGS BEFORE DEBT RECOVERY TRIBUNAL AT CHANDIGARH, THE ORDER WAS FINALLY GIVEN TO SELLER FOR HAVING AN AUTHORITY FOR SAME. THESE FACTS WERE ALSO NOT DISCLOSED BY SH. SURINDER KAPOOR WHIL E ENTERING INTO THE AGREEMENT TO SELL WITH THE ASSESSEE. LD. AR THEREFO RE STATED THAT SH. SURINDER KAPOOR WITH WHOM THE AGREEMENT TO SELL WAS ENTERED INTO WAS A DISHONEST 5 PERSON AND HAD CHEATED THE ASSESSEE BY NOT DISCLOS ING CRUCIAL FACTS RELATING TO THE PROPERTY AND TRYING TO SELL THE PROPERTY TO THE ASSESSEE OF WHICH HE WAS NOT EVEN THE OWNER AND THEREFORE, THE AGREEMENT TO SELL HAD BEEN CANCELLED AND ULTIMATELY THE PROPERTY WAS PURCHASED BY THE ASSESS EE FOR RS. 7,85,000 FROM THE REAL OWNER OF THE PROPERTY. ALTERNATIVELY LD. AR ARGUED THAT EVEN IF IT IS BELI EVED THAT THE AGREEMENT TO SELL WAS NOT CANCELLED AND NO AMOUNT REPRESENTING THE AD VANCE OF RS. 4 LACS GIVEN, WAS RETURNED, THEN THE ASSESSEE SHOULD BE GIVEN BEN EFIT OF THE ADVANCE OF RS. 4 LACS GIVEN BY HIM LD. AR FURTHER STATED THAT THE AS SESSEE SHOULD ALSO BE GIVEN THE BENEFIT OF RS. 6 LACS PAID BY HIM TO HDFC BANK TO RELEASE THE IMPUGNED PROPERTY FROM THE BANK TO WHICH IT WAS MORTGAGED. L D. AR DREW ON ATTENTION TO PB NO. 57, BEING THE LETTER OF HDFC BANK WRITTEN TO THE ASSESSEE RELEASING THE ORIGINAL SALE DEED OF THE PROPERTY MORTGAGED AGAINS T PAYMENT OF RS. 6 LACS RECEIVED FROM THE ASSESSEE. 8. LD. DR ON THE OTHER HAND STATED THAT THERE WAS N O DOCUMENTARY EVIDENCE OF THE CANCELLATION OF THE AGREEMENT TO SE LL. THEREFORE, LD. DR PLEADED THAT THERE IS NO STRENGTH IN THE ARGUMENT O F THE ASSESSEE THAT THE AGREEMENT TO SELL HAD BEEN CANCELLED. LD. AR REBUTT ED THIS ARGUMENT BY STATING THAT THE PHOTOCOPIES OF THE CHEQUES EVIDENCING PAYM ENT AGAINST THE ORIGINAL AGREEMENT TO SELL AMOUNTING TO RS. 4,00,000/- AND T HE PHOTOCOPIES OF CHEQUE ALONG WITH THE BANK STATEMENT OF THE ASSESEE EVIDEN CING THE RETURN OF THE AFORE STATED AMOUNT, IS EVIDENCE ENOUGH OF THE FACT THAT THE AGREEMENT TO SELL ENTERED INTO WITH SH. SURINDER KAPOOR HAD BEEN CANC ELLED. LD. AR STATED THAT IT IS NOT DISPUTED BY THE REVENUE THAT A SUM OF RS. 4, 00,000/- HAD BEEN PAID ON ACCOUNT OF THE AGREEMENT TO SELL TO SH. SURINDER KA POOR, SH. AMIT KAPOOR AND MS. RAJIKA KAPOOR AND THAT THE SAME AMOUNT HAD ALSO BEEN RETURNED . LD. AR STATED THAT RETURN OF THE MONEY PAID ON ACCOUNT OF THE AGREEMENT TO SELL WAS 6 PROOF ENOUGH THAT THE AGREEMENT HAD BEEN CANCELLED. LD. AR ALSO STATED THAT IT IS ALSO A MATTER OF RECORD AND FACT THAT THE IMP UGNED PROPERTY 300 SQ. YARDS WAS ULTIMATELY PURCHASED FROM SH. TRILOK NATH BATRA AND SH. AMIT GUPTA. LD. AR STATED THAT THIS ALSO PROVED THAT THE AGREEMENT TO SELL ENTERED INTO WITH THE SH. SURINDER KAPOOR HAD BEEN CANCELLED. LD. DR FURTHER ARGUED THAT THE IMPUGNED PROPERTY HA D BEEN BOUGHT BY THE ASSESSEE FROM SH. SURINDER KAPOOR FOR RS. 30,00,000 /- WAS EVIDENT FROM THE FACT THAT SH. SURINDER KAPOOR HAD ADMITTED TO THE SUPERI NTENDENT OF POLICE, DETECTIVE, LUDHIANA ON 26-03-2004 THAT HE HAD ENTE RED INTO AN AGREEMENT WITH THE ASSESSEE FOR THE SALE OF AFORESAID PROPERTY OF RS. 30,00,000/- AND RECEIVED RS.28,00,000/- IN INSTALLMENTS FROM THE ASSESSEE. L D. DR PRODUCED COPY OF THE REPORT OF THE SUPERINTENDENT OF POLICE, DETECTIVE L UDHIANA DATED 12-04-04 AS EVIDENCE OF THE SAME PB 58-59. LD. DR FURTHER STATE D THAT THIS FACT HAD BEEN ADMITTED BY THE ASSESSEE IN HIS STATEMENT IN THE OF FICE OF THE SUPERINTENDENT OF POLICE, DETECTIVE, LUDHIANA. LD. DR STATED THAT IT IS EVIDENT FROM THE SAME THAT THE ASSESSEE HAD PURCHASED THE PROPERTY OF RS. 30,0 0,000/- FROM SH. SURINDER KAPOOR. LD. AR ON THE OTHER HAND REBUTTED THE CONTENTION OF THE LD. DR STATING THAT STATEMENT OF SH. SURINDER KAPOOR BEFORE THE SUPERIN TENDENT OF POLICE, DETECTIVE, LUDHIANA WAS ERRONEOUS AND UNRELIABLE SINCE SH. SUR INDER KAPOOR HAD DEPOSED IN THE STATEMENT THAT HE HAD ENTERED INTO AN AGREEM ENT TO SELL WITH THE ASSEESSEE ON 10 TH OF FEB, 2003 WHEREAS THE AGREEMENT TO SELL WAS ACT UALLY ENTERED ON 11-04-2003. LD. AR STATED THAT SH. SURI NDER HAD MADE A FALSE STATEMENT BEFORE THE SUPERINTENDENT OF POLICE, DETE CTIVE, LUDHIANA BY STATING THAT HE WAS THE OWNER OF 300 SQ. YARD OF PROPERTY W HICH HE HAD SOLD TO THE ASSESSEE WHILE THE FACT WAS THAT 300 SQ. YARD HAD A LREADY BEEN SOLD BY SH. SURINDER KAPOOR TO SH. TRILOK NATH BATRA AND SH. AM IT GUPTA ON 19-06-2002. LD. 7 AR FURTHER STATED THAT SH. SURINDER KAPOOR WAS THE OWNER OF ONLY 106 SQ. YARD OF THE PROPERTY AND EVEN IF HIS STATEMENT TO THE SUPER INTENDENT OF POLICE IS TAKEN TO BE TRUE THERE WAS NO REASON FOR THE ASSESEE TO P AY 30,00,000/- FOR 106 SQ. YARD OF THE PROPERTY WHILE ON THE OTHER HAND HE HAD PAID ONLY RS.5,00,000/- FOR 300 SQ. YARD OF THE PROPERTY. LD. AR FURTHER STATED THA T IT WAS INCORRECT TO STATE THAT THE ASSESSEE HAD ADMITTED BEFORE THE SUPERINTENDENT OF POLICE THAT HE HAD MADE PAYMENT OF 28,00,000/- TO SH. SURINDER KAPOOR IN PURSUANCE TO THE AGREEMENT SELL ENTERED INTO WITH HIM. LD. DR ALSO STATED THAT AS PER THE AGREEMENT TO SEL L EXECUTED ON 11-04-2003 THE REGISTRY WAS TO BE EXECUTED ON 10-10-2003. THE REG ISTERED DEED WAS ACTUALLY EXECUTED ON 24-09-03 I.E. BEFORE THE FIXED DATE. TH EREFORE THE LD. DR STATED THAT THE REGISTERED DEED HAD BEEN EXECUTED IN TERMS OF T HE CONDITIONS LAID DOWN IN THE AGREEMENT DATED 11-04-2003 AND THE CONSIDERATIO N WHICH EXCHANGED HANDS ON ACCOUNT OF THE SAID DOCUMENTS WAS RS. 30,0 0,000/- AND NOT RS. 7,85,000 AS MENTIONED IN THE REGISTERED DOCUMENTS. LD. DR FURTHER STATED THOUGH THE CHEQUE OF RS. 4,00,000 HAD BEEN GIVEN BY THE A SSESSEE TO SH. SURINDER KAPOOR, SH. AMIT KAPOOR, AND MS. RAJIKA KAPOOR, THE SAME HAD BEEN RETURNED ONLY TO SH. SURINDER KAPOOR. THEREFORE LD. DR, STAT ED THAT THE SAME COULD NOT BE ATTRIBUTED TO CANCELLATION OF THE AGREEMENT TO SELL . LD. DR ARGUED THAT THERE IS NO STRENGTH IN THE ASSESSEE ARGUMENT THAT SH. SURIN DER KAPOOR IS A CHEAT, SINCE SALE AGREEMENT WAS FINALLY EXECUTED WITH HIM. FURTH ER LD. DR STATED THAT IT IS INCORRECT THAT THE AGREEMENT TO SELL WITH SH. SURIN DER KAPOOR WAS CANCELLED BY THE ASSESSEE SINCE IMMEDIATELY THEREAFTER THE ASSES SEE ENTERED INTO ANOTHER AGREEMENT WITH THE SAME PERSON. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E GONE THROUGH THE ORDERS PASSED BY THE A.O. AND THE LD. CIT(A) AND HA VE ALSO GONE THROUGH THE PAPER BOOK FILED BEFORE US. 8 10. ACCORDING TO THE FACTS BEFORE US, THE ASSESSEE ENTERED INTO AN AGREEMENT ON 11/04/2013 FOR THE PURCHASE OF PROPERTY NO. B-19 /907/16 TAGORE NAGAR LUDHIANA FOR AGREED CONSIDERATION OF RS. 30 LACS FR OM SH. SURINDER KAPOOR, SH. AMIT KAPOOR, MS. RAJIKA KAPOOR AND PAID THREE CHEQU ES AMOUNTING TO RS. 3,00,000/- RS. 51,000/- AND RS. 50,000/- TO THE ABO VE SAID THREE PERSONS RESPECTIVELY AS ADVANCE. BUT, THE ASSESSEE PURCHASE D 300 SQ. YARDS OUT OF THE ABOVE SAID PROPERTY FROM MR. TRILOK NATH BATRA AND MR. AMIT GUPTA FOR RS. 5,00,000/- VIDE SALE DEED DATED 24/09/2003 AND 106 SQ. YARD FROM THE ABOVE MENTIONED MR. SURINDER KAPOOR MR. AMIT KAPOOR & MS. RAJIKA KAPOOR FOR RS. 2,85,000/-. THE AGREEMENT DATED 11/04/2003 MENTIONS THAT THE SUBJECT PROPERTY WAS FREE FROM ALL CHARGES AND ENCUMBRANCES WHEREAS THE ASSESSEE HAS BEEN ABLE TO SHOW WITH THE HELP OF EVIDENCES NAMELY (A) COPY OF COMPLAINT FILED BY HDFC BANK. TO THE SENIOR SUPERINTENDENT OF POLICE, LUDHIANA, PUNJAB DT. 11/03/2004 AGAINST SH. SURINDER KAPOOR FOR SELLING THE MORTGAGED PROPERTY TO THE ASSESSEE SH. JIWAN MODI, AND (B) COPY OF LETTER WRI TTEN BY HDFC BANK. TO THE ASSESSEE SH. JIWAN MODI, DT. 14/06/2008, RELEASING THE ORIGINAL SALE DEED OF THE MORTGAGED PROPERTY OF SH. SURINDER KAPOOR TO THE AS SESSEE SH. JIWAN MODI ON RECEIPT OF PAYMENT OF RS. 6 LACS FROM THE ASSESSEE, THAT THE SAID PROPERTY WAS MORTGAGED TO HDFC BANK. ASSESSEE HAS ALSO BEEN ABLE TO SHOW WITH THE HELP OF SALE DEED DT. 18/06/2002 THAT THE PORTION OF THE SU BJECT PROPERTY WAS ALREADY SOLD BY MR. SURINDER KAPOOR TO MR. AMIT GUPTA AND M R. TRILOK NATH BATRA. FURTHER CONTENTION OF THE ASSESSEE IS THAT THE AGREEMENT DA TED 11/04/2003 WAS CANCELLED, WHICH WAS EXPLAINED WITH THE HELP OF THE RETURN OF ADVANCE MONEY TO THE EXTENT OF RS. 4 LACS AND EVIDENCE IN THE FOR M OF CHEQUE AND BANK STATEMENT WERE FILED BY THE ASSESSEE. THE REVENUE H AS NOT BEEN ABLE TO ESTABLISH WITH THE HELP OF ANY COGENT MATERIAL THAT THE SAID CHEQUE OF RS. 4,00,000/- GIVEN BY MR. SURINDER KAPOOR TO THE ASSE SSEE WAS FOR SOME OTHER PURPOSE AND NOT TOWARDS CANCELLATION OF THE AGREEME NT. THE FACTS AND 9 CIRCUMSTANCES ADVANCED BY THE ASSESSEE CLEARLY SHOW THAT THE AGREEMENT DATED 11/04/2003 COULD NOT BE ACTED UPON AS THE SUB JECT MATTER OF THAT AGREEMENT HAD ALREADY BEEN SOLD IN PART BY MR. SURI NDER KAPOOR TO THE THIRD PARTIES AND PART OF IT WAS MORTGAGED ALSO WITH HDFC BANK. THAT BEING SO WE HAVE TO SEE THAT THE SAID PROPERTY PURCHASED BY THE ASSESSEE TO THE EXTENT OF 300 SQ. YARD FROM THIRD PARTIES NAMELY MR. TRILOK N ATH BATRA AND MR. AMIT GUPTA FOR RS. 5,00,000/- AND 106 SQ. YARD FROM MR. SURIND ER KAPOOR PURSUANT TO NEW AGREEMENT DATED 24/09/2003 CAN BE SAID TO BE VALIDL Y AND GENUINELY ENTERED AND THAT TOO FOR THE CONSIDERATION SHOWN BY THE ASS ESSEE. REFERENCE IS ALSO THERE IN THE ORDERS ABOUT THE STATEMENT OF THE ASSE SSEE AND MR. SURINDER KAPOOR MADE TO THE SUPERINTENDENT OF POLICE, DETECTIVE, LU DHIANA. IT IS NOT CLEAR FROM THE ORDERS BEFORE US AS TO WHETHER ANY ENQUIRY WAS MADE FROM MR. BATRA OR MR. AMIT GUPTA OR FROM HDFC BANK. IT IS ALSO NOT CLEAR FROM THE ORDERS AS TO WHETHER ANY ENQUIRY WAS MADE ABOUT THE PURCHASE OF 106 SQ. YARDS PROPERTY FROM THE SAME PERSON NAMELY MR. SURINDER KAPOOR, MORE SO IN THE BACKDROP OF THE FACTS THAT ON THE ONE HAND THE ASSESSEE IS CASTING ASPERS IONS ON MR. KAPOOR AND IN THE SAME BREATH IS BUYING 106 SQ. YARDS FROM THE PE RSON. THE ASPECT OF THE HUGE DIFFERENTIAL IN THE NEGOTIATED PRICE IN TWO AGREEME NTS FOR THE SAME PROPERTY VIZ. ONE FOR RS. 30 LACS AND OTHER FOR RS. 7.85 LACS HAS ALSO NOT BEEN ENQUIRED INTO AND WHETHER ANY MONEY MORE THAN RS. 7.85 LACS IN FA CT HAS EXCHANGED HANDS IN THE PRESENT CASE. MOREOVER WE FIND THAT THE REVENUE HAS ALSO NOT TAKEN INTO CONSIDERATION THE FACT OF ADVANCE MONEY OF RS. 4 LA CS GIVEN BY THE ASSESSEE ON ENTERING INTO THE AGREEMENT TO SELL AND ALSO RS. 6 LACS PAID BY THE ASSESSEE TO HDFC BANK. TO RELEASE THE IMPUGNED PROPERTY FROM MO RTGAGE, WHILE CALCULATING THE UNDISCLOSED / UNEXPLAINED INVESTMENT MADE BY TH E ASSESSEE TO THE EXTENT OF RS. 22,15,000/. IN OUR CONSIDERED OPINION, PROPER E NQUIRIES AND INVESTIGATION, WHICH ARE REQUIRED IN THE FACTS AND CIRCUMSTANCES O F THE PRESENT CASE HAVE NOT BEEN CONDUCTED BY A.O. THEREFORE THE MATTER IS REMI TTED BACK TO THE FILE OF THE 10 AO WITH A DIRECTION TO ASCERTAIN THE CORRECT FACTS BY MAKING NECESSARY ENQUIRIES TO FIND OUT AS TO WHETHER THERE IS ANY UNDISCLOSED INVESTMENT MADE BY THE ASSESSEE AND THEREAFTER AFTER AFFORDING THE REASONA BLE OPPORTUNITY TO THE ASSESSEE MAY DECIDE THE ISSUE. WE MAY HOWEVER CLARI FY THAT THE AO WOULD REMAIN UNINFLUENCED BY THE ABOVE OBSERVATIONS AND W OULD MAKE INDEPENDENT ENQUIRIES AND ASSESSEE WOULD BE ENTITLED TO LEAD EV IDENCES. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20/11/2015 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR