SMT. GURJEET KAUR, JALANDHAR V. INCOME TAX OFFICER, WARD- IV (2), JALANDHAR

ITA 628/ASR/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8539 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Reassessment proceedings; Capital Gains
• Section: 147; 131; 69; 63; 132; 143(3); 92; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. RAVISH SOOD, JUDICIAL MEMBER AND DR. M. L. MEENA, ACCOUNTANT MEMBER I.T.A. Nos. 627 & 628/(Asr)/2017 Assessment Years: 2008-09 & 2009-10 Smt. Gurjeet Kaur W/o Sh. Kulwant Singh, R/o 1, Atwal House Cantt Road, Jalandhar PAN: AIKPK 9383L Vs. Income-Tax Officer Ward-IV(2)/-3(4), Jalandhar (Appellant) (Respondent) Appellant by : Sh. Surinder Mahajan, CA Respondent by: Sh. Sunil Gautam, CIT-DR Date of Hearing : 22.12.2021 Date of Pronouncement: 21.02.2022 ORDER PER BENCH : The present appeals filed by the assessee are directed against the respective orders passed by the Commissioner of Income-Tax (Appeals)-2, Jalandhar, dated 19.07.2017, which in turn arises from the orders passed by the A.O u/ss. 147/143(3) of the Income-Tax Act, 1961 (for short ‘Act’), dated 30.03.2016 for A.Y 2008-09 AND dated 30.12.2016 Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 2 for Assessment Year 2009-10. As the issues involved in the present appeals are inextricably interlinked or in fact interwoven, therefore, the respective appeals are being taken up and disposed off by way of a common order. We shall first take up the appeal filed by the assessee for A.Y 2008-09, wherein the impugned order has been assailed before us on the following grounds : “1. That on the facts and circumstances of the case, learned Commissioner of Income Tax (Appeals) {C1T(A)} has grossly erred in law in rejecting ground of appeal of the assessee that impugned assessment framed u/s 143(3)/147 of the Act is without assumption of valid jurisdiction and as such is illegal and bad in law. 2. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in law in confirming addition of Rs. 1,50,00,000/- by holding that Rs. 1,50,00,000/- alleged to be received from alleged purchaser Sh. Surjit Singh as unexplained money received u/s 69 of the Act. 3. That on the facts and circumstances of the case, addition of Rs. 1,50,00,000/- made by Ld. Assessing Officer confirmed by Learned CIT(A) is illegal and bad in law since: a) Certified true copy of agreement alleged to have been executed by the assessee in favour of some Surjit Singh has never been provided to the assessee in spite of repeated requests. b) Department is in possession of photocopy of agreement alleged to have been executed by the assessee in favour of Surjit Singh. Agreement in original is not available with the department. c) Statement of alleged witnesses who have admitted that alleged agreement was executed in their presence was recorded at back of the Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 3 assessee and alleged witnesses were not made available for cross examination though request to this effect was made. 4. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in not considering submission of the assessee that addition made is bad in law since no addition has been made in the case of alleged purchaser Surjit Singh whose case was also re opened for A.Y. 2008-09 and proceedings initiated u/s 147 of the Act were filed without any adverse inference. 5. That assessment famed by Ld. Assessing Officer by bringing to tax Rs. 1,50,00,000/- based on photocopy of an agreement is opposed to following judgments: a) Honorable Supreme Court Judgment in the case of Smt. J. Yashodha vs. Smt. K. Shobha Rani dated 19.04.2007 SLP (C) No. 12625 of 2005 wherein it has been held that photocopy of a document is not admissible evidence in terms of Indian Evidence Act, 1872. b) Hon’ble Punjab and Haryana High Court Judgment in the case of Paramjit Singh vs. ITO (2010) 323 ITR 588: 236 CTR 466 (P&H) wherein it has been held “There is well known principle that no oral evidence is admissible once the document contains all the terms and conditions. Sections 91 and 92 of the Indian Evidence Act, 1872 (for brevity 'the 1872 Act') incorporate the aforesaid principle. According to Section 91 of the Act when terms of a contracts, grants or other dispositions of property has been reduced to the form of a documents then no evidence is permissible to be given in proof of any such terms of such grant or disposition of the property except the document itself or the secondary evidence thereof 6. That while confirming addition, learned CIT(A) has relied upon cash deposits made in bank account of husband of the assessee in A.Y. 2008- 09. Reliance placed on cash deposits in the account of husband of the assessee is illegal and bad in law since: a). No query on cash deposits in saving bank account of the husband of the assessee was ever made during the assessment proceedings. b). During the appeal proceedings, copy of assessment order u/s 143(3) of the Act in the case of Kulwant Singh husband of the assessee Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 4 was filed to prove genuineness of cash deposits in his saving account which has not been considered by learned CIT(A). c). Without prejudice to issues raised in (a) & (b) above, even otherwise also no adverse inference can be drawn in the case of the assessee since her husband is independent assessee. 7. That observation of Id. CIT(A) in para 4.9 of the appellate order while confirming addition that signatures of the appellant have been confirmed by the husband of the appellant in his statement recorded by the DDIT investigation and also it was stated that sale consideration has been received by the appellant is without any material on records and this was never case of the assessing officer. 8. That submissions made during the course of hearing have not been considered properly. 9. That assessee requests for leave to add or annex any other grounds of appeal before the appeal is heard or disposed off.” 2. Succinctly stated, the assessee had filed her return of income for A.Y 2008-09 on 09.01.2009, declaring an income of Rs. 3,64,110/- a/w agriculture income of Rs. 7,88,964/-. Information was received by the A.O from the Dy. Director of Income-tax (Investigation), Ludhiana, that the assessee had executed an “agreement to sell”, dated 25.02.2008 with one Shri. Surjit Singh S/o. Sh. Mohan Singh, R/o. 1548-D, Model Town (Extension), Ludhiana, wherein she had agreed to sell her land admeasuring 09 Kanal - 03 Marla (i.e 5535 sq. yards) situated at Village : Daad, Pakhowal Road, Ludhiana for a consideration of Rs. 7,19,55,000/- Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 5 i.e 5,535 sq. yards @ Rs. 13,000/- per sq. yard and, out of the aforesaid sale consideration had received an amount of Rs. 1.5 crore as earnest money on 25.02.2008 from Shr. Surjit Singh (supra). As per the aforesaid information shared by the Dy. DIT (Inv.), Ludhiana, the balance sale consideration was to be received by the assessee in tranches, viz. amount of Rs. 1.5 crore was to be paid by 16.05.2008, while for the sale deed was to be executed latest by 03.12.2008. Further, as per the information, registered sale deed for part of the land in question was executed by the assessee on 08.10.2008 in favour of certain third parties, viz. (i). Sh. Vipan Kumar Goyal, 101-A, Agar Nagar, Ludhiana (30%); (ii). Sh. Suresh Jain, r/o. Krishna Nagar, Civil Lines, Ludhiana (15%) (iii). Smt. Silky Jain, r/o. 127, New Jawahar Nagar, Jalandhar (20%); (iv). Sh. Tushal Goyal S/o. Sh. Surinder Kumar Goyal, r/o. Sukhmoney Enclave, South Canal, Ludhiana (15%); and (v). Sh. Naveen Jain S/o. Sh. Tarsem Jain, r/o. Krishna nagar, Ludhiana (15%). Observing, that though the assessee had entered into an “agreement to sell” with Sh. Surjit Singh (supra), and in lieu thereof, had as on 25.02.2008 received earnest money of Rs. 1.50 crore from him, however, the sale deed was executed not in his favour, but in favour of certain third parties, the A.O held a belief that the aforesaid consideration Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 6 of Rs. 1.50 crore (supra) having been received by the assessee without any consideration was liable to be assessed in her hands u/s 56(2)(vi) of the Act. Backed by the aforesaid facts, the A.O holding a belief that the income of Rs. 1.50 crore (supra) of the assessee that was chargeable to tax had escaped assessment, thus, reopened his case u/s 147 of the Act. Objections raised by the assessee as regards the validity of the reassessment proceedings were disposed off by the A.O vide his order dated 05.06.2015. Rebutting the adverse inferences that the A.O had sought to draw on the basis of the aforesaid “agreement to sell” (supra), the assessee dubbed the same as a forged document, and claimed to have sold the land in question vide a registered sale deed, dated 08.10.2008. However, the A.O was not persuaded to subscribe to the aforesaid claim of the assessee. Observing, that the witnesses to the “agreement to sell”, viz. S/sh. Rishikesh Verma and Baldev Raj (since deceased) had in the course of the proceedings before the Dy. DIT (Inv.), Ludhiana admitted that the “agreement” in question was executed in their presence and the assessee had signed the same in their presence, the A.O rejected the claim of the assessee that she had not executed the said “agreement”. Further, the fact that the sale deed of the land in question was executed on Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 7 08.10.2008, i.e, within the stipulated time period within which the same was to be executed as per the “agreement to sell”, i.e, latest by 03.12.2008, also did weigh in the mind of the A.O for rejecting the claim of the assessee that the same was a dumb document. In so far the routing of the unaccounted sale consideration was concerned, the A.O was of the view that the same was deposited in the bank accounts of the assessee’s husband, viz. Shri. Kulwant Singh, a property dealer by profession, i.e (i). A/c No. 0165201900016 (Joint account of Sh. Kulwant Singh a/w his father); (ii). A/c No. 0165101023514 with Canara Bank, Branch: BMC Chowk, Jalandhar; (iii). A/c No. 0165201900013 with Canara Bank, Branch :BMC Chowk, Jalandhar; (iv). A/c No. 0165201900014 with Canara Bank, Branch: BMC Chowk, Jalandhar; (v). A/c No. 0165201900016with Canara Bank, Branch: BMC Chowk, Jalandhar. In order to fortify his conviction that the funds of the assessee were being managed by her husband, viz. Sh. Kulwant Singh, the A.O had tried to draw support from the fact that a FDR drawn in the name of the assessee was sourced out of the amount that was transferred from his bank account. Backed by his aforesaid observations, the A.O acting upon the contents of the “agreement to sell”, therein, held the amount of Rs. 1.50 crore received by the assessee as Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 8 earnest money from Sh. Surjit Singh (supra), as the unexplained money of the assessee within the meaning of Sec. 69 of the Act. Accordingly, on the basis of his aforesaid deliberations, the A.O vide his order passed u/s 147 r.w.s 143(3), dated 30.03.2016 assessed the income of the assessee at Rs. 1,53,64,110/- a/w agriculture income of Rs. 7,88,960/-. 3. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Before the CIT(A), the assessee on the basis of his multi facet contentions assailed both the validity of the jurisdiction that was assumed by the A.O for framing the assessment u/s 147 r.w.s 143(3), dated 30.03.2016, as well as on merits challenged the addition of Rs. 1.50 crore (supra) that was made by him, viz. (i). the A.O had though reopened the assessment on the ground that an amount of Rs. 1.50 crore (supra) received by the assessee from Sh. Surjit Singh (supra) without any consideration was liable to be assessed u/s 56(2)(vi) of the Act, however, in the absence of any addition having been made as regards the reason on the basis of which the case of the assessee was reopened, the assessment framed by him u/s 147/143(3), dated 30.03.2016 was liable to be quashed; (ii). that the addition made as regards the alleged on-money of Rs. 1.50 Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 9 crore (supra) received by the assessee on sale of her land in question could not have been assessed u/s 69 of the Act; (iii). that no adverse inferences could have validly been drawn on the basis of a photocopy of the “agreement to sell”; (iv). that the assessee despite persistent requests had not been confronted with the original “agreement to sell” in question; (v). that the A.O in his ‘remand report’ had admitted that though he had received from the Dy. DIT(Inv.), Ludhiana a copy of the “agreement to sell”, dated 25.02.2008, while for the Dy. DIT(Inv.), Ludhiana in his letter dated 16.12.2016 had informed the A.O that the Original “agreement to sell” was not available with him.; (vi). that the statements of S/sh. Baldev Raj (since deceased) and Rishikesh Verma, witnesses to the impugned “agreement to sell” that were used by the A.O for drawing of adverse inferences were recorded at the back of the assessee; (vii). that despite requests no cross-examination of Sh. Rishikesh Verma, witness to the ‘agreement’ had been facilitated by the department; (viii). that no adverse inferences had been drawn by the department in the case of the alleged purchaser, viz. Sh. Surjit Singh, and in fact the reassessment proceedings that were initiated in his case for A.Y 2008-09 had been dropped by his A.O vide her order passed u/s 147/148(3), dated 23.03.2016; (ix). that the Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 10 bank accounts held by the assessee’s husband, viz. Sh. Kulwant singh, a regular income-tax assessee (PAN: ABQPS5509K), pertained to his petrol pump business etc., and was duly accounted for by him in his personal books of accounts; (x). that the case of Sh. Kulwant Singh (supra) for the year under consideration, i.e, A.Y 2008-09 was selected for scrutiny assessment and his returned income was accepted as such; (xi). that the sale consideration disclosed in the registered sale deed, dated 08.10.2008 was to be accepted to have been received by the assessee and no oral evidence would have any superseding effect on the same; (xii). that the fact that the circle rate of the property in question at the time of sale was Rs. 15 lac per acre, while for the same had been sold by the assessee @ Rs. 38 lac per acre, substantiated the genuineness of the sale transaction under consideration; (xiii). that the alleged sale consideration of Rs. 7.19 crore (as per the “agreement to sell”) was 50 times the circle rate, which, thus clearly revealed the falsity of the contents of the said document; and (xiv). that copy of sale deed of an adjoining piece of land @ Rs. 20 lac per acre which was much below the rate at which the assessee had sold his land i.e @ Rs. 38 lac per acre substantiated the authenticity of the sale consideration at which the assessee had executed the sale transaction. Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 11 However, the CIT(A) was not persuaded to subscribe to the aforesaid contentions of the assessee and upheld both the validity of the reassessment, as well as the addition of Rs. 1.50 crore made by the A.O., observing as under : “4.9 Having considered the detailed evidence placed on record, I find that reasons recorded by the AO for initiation of reassessment proceedings are in conformity with the evidence placed on record. I also find that is an accepted fact that sale of property has been made by the appellant. The appellant has state that no amount was received under the agreement to sell as neither the property was sold to the person with whom agreement was entered into nor any original agreement to sell could be produced by the A.O. It is a matter of common knowledge that once an agreement to sell is entered into then a period of 3 to 6 months is provided under that agreement for payment of remaining consideration and execution of sale deed. During this period the person who has paid the biana retains the option under the agreement to register the property in the name of any person. In this case also, the position is similar as per the evidence available on record. The signatures of the appellant have been confirmed by the husband of the appellant in his statement and sale consideration has been received by the appellant. 4.10 It is also a common knowledge that malaise of on-money is widely prevalent in all real estate transactions where the circle rate fixed for the purpose of payment of stamp duty on execution of sale deed is much below the prevalent market price of the property. This fact of receipt of on-money under the agreement to sell by the appellant stands amply proved by the quantum of cash deposits made in the bank accounts of the appellant and family members. Hence, I do not find force in the contentions of the appellant and the judicial decisions relied upon are found to be distinguishable on account of differences in factual matrix of the case. Further, I find that the agreement to sell is not a dumb document and authenticity of the same stands established in the course of enquiries conducted by the investigation wing. Accordingly, I hold that AO was justified in treating an amount of Rs. 1.50 crores as unexplained money of the appellant u/s 69 of the IT Act. “ Accordingly, the CIT(A) finding no merit in the appeal of the assessee dismissed the same. Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 12 4. Being aggrieved with the order of the CIT(A) the assessee has carried the matter in appeal before us. We have heard the ld. Authorized Representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the ld. A.R to drive home his respective contentions. Controversy involved in the present appeal lies in a narrow compass, i.e, as to whether or not the lower authorities are right in law and the facts of the case in acting upon the copy of the “agreement to sell”, dated 25.02.2008, for concluding, that the assessee had sold the land in question for a consideration of Rs. 7.19 crore (approx.), as therein stated, and not for the consideration as stated in the registered sale deed, dated 08.10.2008, and thus, had received an earnest money of Rs. 1.50 crore on 25.02.2008 i.e during the year under consideration?. Before proceeding any further, we may herein observe that the entire case of the department rests upon the copy of the “agreement to sell”, dated 25.02.2008, and its contents thereof, on the basis of which it has been inferred by the A.O that the assessee had sold her land in question for a consideration of Rs. 7.19 crore, i.e, 5535 Sq. yards @ Rs. 13,000/- per Sq. yard, and not as per the sale consideration reflected in Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 13 the registered sale deed, dated 08.10.2008. At this stage, we may herein observe, that as to what is the source of the copy of the “agreement to sell” that was made available to the A.O by the Dy. DIT (Inv.), Ludhiana, is neither discernible from the records, nor anything in support thereof on a specific query that was raised by the bench, as regards the same, was brought to our notice by the ld. D.R. Be that as it may, it is an admitted fact that the “agreement to sell”, dated 25.02.2008 is not a document that was found in possession or control of the assessee in the course of any search or survey proceedings conducted upon her, which would have otherwise triggered the presumption as regards the correctness or truthfulness of the contents thereof as provided in clause (ii) of sub-section (1) to Sec. 292C or sub-section (4A) of Sec. 132 of the Act. As is discernible from the records, we find that the A.O in his ‘remand report’ that was filed in the course of the proceedings before the CIT(A), had fairly admitted that he had only received a copy of the “agreement to sell”, dated 25.02.2008 from the Dy. DIT (Inv.), Ludhiana, and the latter on a specific request by him vide his letter dated 09/15.12.2016, had reverted back, and vide his letter dated 16.12.2016 intimated that no such original agreement was available with him during the inquiry proceedings. Backed Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 14 by the aforesaid facts, we shall herein look into the sustainability of the adverse inferences that have been drawn by the lower authorities on the basis of the contents of the copy of the “agreement to sell”, dated 25.02.2008 in the backdrop of the other circumstantial evidences /observations. Before proceeding any further, we may herein observe, that the assessee in the course of the proceedings before the lower authorities had time and again requested for a certified copy of the “agreement to sell”, dated 25.02.2008, which however was never made available to her. At this stage, we would not hesitate to observe, that as stated by the ld. A.R, and rightly so, it has been held by the Hon’ble Supreme Court in the case of Smt. J. Yashodha Vs. Smt. K. Shobha Rani, Appeal (Civil) 2060 of 2007, dated 19.04.2007, that an uncertified photocopy of a document cannot even be taken as a secondary evidence under Sec. 63 of the Indian Evidence Act, 1872. Also, we find, that a similar view, that a photocopy of a document in the absence of the original document has no evidentiary value had been arrived at in various judicial pronouncements as had been relied upon by the ld. A.R before us, viz. (i). Moosa M. Madha & Azam S. Madha Vs. CIT (1973) 89 ITR 65 (SC); (ii). Ram Saroop Saini, HUF Vs. ACIT (2007) 26 CCH 246 (Delhi)(Trib); (iii). Arati Bhargava (Ms.) Vs. Shri. Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 15 Kavi Ram Bhargava, order dated 10.05.1999, AIR 1999 Delhi 280; (iv). ACIT Vs. Kulwinder Singh, ITA No. 930, 931 of 2009; (v). DCIT Vs. Vijy Kumar, ITA No. 930, 931 of 2009 (Hyd); and (vi). Shri. Krishan Gopal, Prop. M/s Kay Pee Lock Inds. Vs. ITO, Ward 39(1), New Delhi, ITA No. 3249/Delhi/2015. On the basis of our aforesaid deliberations, we are unable to subscribe to the standalone reliance placed by the lower authorities on the contents of the uncertified copy of the “agreement to sell”, dated 25.02.2008. At this stage, we may herein observe, that the sale consideration disclosed in a registered sale deed has to be accepted to have been received by the seller, and once the said registered document contains all the terms and conditions, then, no oral evidence is permissible to be given in an attempt to prove that the consideration disclosed in the said registered document had not changed hands. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Punjab & Haryana in the case of Paramjit Singh Vs. ITO (2010) 323 ITR 588 (P&H). We, thus, in terms of our aforesaid observations are of the considered view, that the sale consideration qua the transaction of sale of land in question, as disclosed in the registered sale deed, dated 08.10.2008, could not have been dislodged by the A.O on the basis of the contents of an uncertified Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 16 copy of an “agreement to sell”, dated 25.02.2008, which on the basis of our aforesaid observations would not even be in the nature of a secondary evidence within the meaning of Sec. 63 of the Indian Evidence Act, 1872. 5. At the same time, we shall look into the other circumstantial evidences/documents, as well as observations of the lower authorities on the basis of which they have tried to support the adverse inferences qua the sale transaction in question. As observed by us hereinabove, one of the issue that had weighed in the mind of the A.O for concluding that the assessee had executed the “agreement to sell”, dated 25.02.2008 was that the two witnesses to the said agreement, viz. (i). Shri. Baldev Raj Taneja S/o. Sh. Ram Rang R/o. 29, Partap Colony, Model Gram, Ludhiana; and (ii). Shri. Rishikesh Verma S/o. Sh. Kundan Lal Verma, R/o. 999/6, Rama Mandi, Jalandhar, had in the course of the inquiries carried out by the Dy. DIT (Inv.), Ludhiana, stated that the “agreement to sell”, dated 25.04.2008 was executed in their presence and Smt. Gurjeet Kaur, i.e, the assessee had signed the same in their presence. As is discernible from the records, the assessee in the course of the assessment proceedings, had requested the A.O, that as the statements of the aforesaid persons, viz. S/sh. Baldev Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 17 Raj Taneja and Rishikesh Verma were recorded at his back, therefore, their cross-examination be facilitated to him. As one of the witness, viz. Shri. Baldev Raj Taneja had expired on 30.05.2015, therefore, the A.O in order to facilitate the cross-examination of the other person, viz. Shri. Rishikesh Verma had issued summons to him u/s 131 of the Act, dated 27.03.2016, therein directing him to attend his office on 30.03.2016, and had endorsed a copy of the summons to the assessee, with a direction, that either she or her authorized representative be present on the said date so that the aforementioned person may be cross-examined. However, we find, that as on the stipulated date though the assessee’s counsel remained present, but the aforesaid person, viz. Shri. Rishikesh Verma did not attend, as a result whereof his cross-examination could not be carried out. Backed by the aforesaid facts, we are of the considered view, that as the assessee despite specific requests had not been facilitated a cross-examination of the witnesses, therefore, their statements could not have been acted upon by the A.O for drawing of adverse inferences in the hands of the assessee. Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II, Civil Appeal No. 4228 of 2006, dated Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 18 02.09.2015, wherein the Hon’ble Apex Court had observed, that the failure to give the assessee the right to cross-examine the witnesses whose statements were relied upon would result in breach of principles of natural justice, which being a serious flaw may render the order as nullity. Also, we find that various Hon’ble High Courts, have concluded, that the action of the A.O in acting upon the statement of a third party that was recorded at the back of the assessee, without affording a cross-examination to the assessee despite specific requests was not sustainable, viz. (i). CIT Vs. Sanjeev Kumar Jain (2009) 77 CCH 53 (P&H); (ii). Kishinchand Chellaram Vs. CIT (1980) 48 CCH 716 (SC); (iii). Sona Electric Company Vs. CIT (1984) 52 CCH 103 (Del); and (iv). CIT Vs. Pradeep Kumar Gupta (2006) 74 CCH 975 (Del). In the backdrop of our aforesaid observations, we are of a strong conviction, that the statements of the aforesaid persons which were recorded at the back of the assessee, could not have been acted upon by the A.O for drawing of adverse inferences in the hands of the assessee, i.e, without facilitating the necessary cross-examination to the assessee despite his specific requests for the same. Admittedly, one of the witness, viz. Shri. Baldev Raj Taneja had expired on 30.05.2015, i.e, in the course of the assessment proceedings, therefore, there could have been no Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 19 occasion for the A.O to have facilitated his cross-examination. But then, in so far the other witness, viz. Shri. Rishikesh Verma (supra) is concerned, we are of the considered view, that as the as the assessee despite specific requests had had remained divested of an opportunity to cross-examine the said person, all the more for no fault no on her part, therefore, his statement lost its evidentiary value and could not have been pressed into service by the A.O for drawing of adverse inferences in the case of the assessee. We, thus, in the backdrop of our aforesaid deliberations are of the considered view, that the statements of the aforesaid witnesses, viz. S/shri. Baldev Raj Taneja and Rishikesh Verma that were admittedly recorded at the back of the assessee, therein, de hors any opportunity to the assessee to rebut the same, thus, could not have been used for drawing of adverse inferences in his case. 6. We shall now deal with the observations of the lower authorities, that the on-money received by the assessee on the sale of land in question was deposited in the bank accounts of her husband, viz. Shri. Kulwant Singh, a property dealer by profession, viz. (i). A/c No. 0165201900016 (Joint A/c of Sh. Kulwant Singh a/w his father); (ii). A/c No. 0165101023514 with Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 20 Canara Bank, Branch : BMC Chowk, Jalandhar; (iii). A/c No. 0165201900013 with Canara Bank, Branch : BMC Chowk, Jalandhar; (iv). A/c No. 0165201900014 with Canara Bank, Branch : BMC Chowk, Jalandhar; (v). A/c No. 0165201900016 with Canara Bank, Branch : BMC Chowk, Jalandhar. As noticed by us hereinabove, the aforesaid bank accounts pertained to the various lines of business of Shri. Kulwant Singh (supra), a regular income-tax assessee (PAN ABQPS5509K), and the same were duly accounted for by him in his personal books of accounts. Apart from that, as stated by the ld. A.R, the case of Sh. Kulwant Singh (supra) for the year under consideration, i.e, A.Y 2008-09 was selected for scrutiny assessment, and his returned income was accepted as such. On a perusal of the records, we find, that the A.O in order to support his view that the funds of the assessee were being managed by her husband, viz. Shri. Kulwant Singh (supra), had drawn support from the fact that a FDR drawn in the name of the assessee was sourced out of the amount that was transferred from the bank account of her husband. In our considered view, the very basis adopted by the A.O, for inferring, that the alleged on-money received by the assessee on sale of the land in question was deposited in the bank accounts of her husband, viz. Shri. Kulwant Singh, we would not Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 21 shirk to observe, is nothing short of a baseless assumption, which we are afraid had been attempted to be triggered to give effect to a pre- determined view. As observed by us hereinabove, the cash deposits in the bank accounts of Shri. Kulwant Singh (supra), a regular income-tax assessee, as had been referred by the A.O in the body of the assessment order are his duly disclosed bank accounts that were accounted for by him in his personal books of accounts. In fact, as had been brought to our notice by the ld. A.R, and not rebutted by the ld. D.R, the case of Shri. Kulwant Singh (supra) for the year under consideration was selected for scrutiny assessment wherein his returned income was accepted as such. Backed by the aforesaid factual matrix, we are of the considered view, that the observations of the A.O that the cash deposits in the bank accounts of Shri. Kulwant singh (supra) were sourced from the on-money that was received by the assessee, being devoid and bereft of any substance and, being nothing short of an allegation in the thin air, cannot be subscribed on our part. We, thus, in the backdrop of our aforesaid deliberations vacate the observations of the A.O that the alleged on-money received by the assessee on sale of the land in question was deposited by her in the bank accounts of her husband, viz. Shri. Kulwant Singh (supra). Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 22 7. We shall now advert to the support that was drawn by the assesses from the circle rate of the land in question that was sold by her, for two fold reasons, viz. to drive home the authenticity of the sale transaction that was executed by her vide registered sale deed, dated 08.10.2008; and to demonstrate that the sale rate as per the alleged “agreement to sell”, dated 25.02.2008 being manifold the rates prevailing in the area was beyond comprehension. As observed by us hereinabove, as against the circle rate of the property in question at the time of sale, i.e, Rs. 15 lac per acre, the assessee had executed the sale transaction @ Rs. 38 lac per acre, which in our considered view does lend credence, or, in fact, substantiates the genuineness of the sale consideration that had exchanged hands as disclosed in the registered sale deed. Apart from that, it was the claim of the assessee, that considering the circle rate of the land in question, the alleged sale rate as per the “agreement to sell”, dated 25.02.2008 was 50 times of the same, which, thus clearly revealed the falsity of the contents of the said document. Also, the assessee had in order dispel all doubts as regards the sale consideration that was received as per the registered sale deed, dated 08.10.2008, had drawn support from a comparative Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 23 transaction of sale of an adjoining piece of land that was carried out vide a registered sale deed @ Rs. 20 lac per acre. We find that the A.O had summarily brushed aside the aforesaid facts as were brought to his notice by the assessee for two fold reasons, viz. (i) to support the authenticity of the sale transaction that was executed by him vide registered sale deed, dated 08.10.2008; and (ii). to impress upon him that the alleged “agreement to sell”, dated 25.02.2008 was a forged/fabricated document. In our considered view, not only the A.O had failed to prove that the assessee had sold the land in question at the sale consideration mentioned in the copy of the “agreement to sell”, dated 25.02.2008, and had on the basis of flimsy grounds drawn adverse inferences qua the transaction of sale executed by the assessee vide a registered sale deed; but rather, had put the assessee in a situation where she was required to disprove the “agreement to sell”, dated 25.02.2008. i.e, a dumb document and its contents thereof. In our considered view, the support drawn by the assessee from, viz. the circle rate of the property in question that was prevailing at the time of execution of the sale deed; and the rate at which an adjoining piece of land during the relevant period was sold, undeniably had a strong bearing in not only proving that the land in question was sold Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 24 as per the consideration disclosed in the registered sale deed, but was also indispensably instrumental in proving the falsity of the “agreement to sell”, dated 25.02.2008, and the contents thereof. We, thus, are not inclined to subscribe to the view taken by the lower authorities that the aforesaid circle rate and the comparative sale transaction had no bearing on the adjudication of the issue in hand. 8. We shall now deal with the claim of the assesee as was raised before the lower authorities, i.e, now when no adverse inferences had been drawn by the department in the case of the alleged purchaser, viz. Sh. Surjit Singh, and in fact the reassessment proceedings that were initiated in his case for A.Y 2008-09 were dropped by the A.O vide her order passed u/s 147/148(3), dated 23.03.2016, therefore, the said fact supports the falsity of the contents of the “agreement to sell”, dated 25.02.2008. Admittedly, as is discernible from the records, the reassessment proceedings that were initiated by the department in the case of the aforementioned alleged purchaser, viz. Shri Surjit Singh (supra), were thereafter dropped by the ITO, Ward 6(8), Ludhiana. In our considered view, the fact that no adverse inferences had been drawn by the A.O in the case of the alleged purchaser, Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 25 viz. Shri. Surjit Singh, at the first blush lends credence to the assessee’s claim that the “agreement to sell”, dated 25.02.2008 being a forged/fabricated document, was thus, for the said reason not acted upon by the department in the case of the alleged purchaser; but then, in the absence of the complete details of the case of Shri. Surjit Singh, i.e the basis for reopening of his case; reason for dropping of the reassessment proceedings etc., we would refrain from drawing any inferences. Be that as it may, in our considered view, the A.O instead of brushing aside the aforesaid claim of the assessee ought to have made necessary verifications as regards the reasons leading to reopening, as well as dropping of the reassessment proceedings in the case of the alleged purchaser, viz. Shri. Surjit Singh (supra), and also as to what was the latter’s claim as regards the alleged transaction of purchase of land in question before his A.O, and should not have summarily discarded the same. Be that as it may, in the absence of the complete details as regards the aforesaid issue, we refrain from commenting on the aforesaid claim of the assessee. 9. We shall now advert to the claim of the assessee that the A.O had grossly erred in law and the facts of the case in assessing the alleged Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 26 suppressed sale consideration/on-money as the assessee’s unexplained money u/s 69 of the Act. Before adverting any further, we shall for the sake of clarity cull out Sec. 69, which reads as under : “ 69. Where in the financial year immediately preceding the assessment year the assessee has made investments which are not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year.” As stated by the ld. A.R, and rightly so, as Sec. 69 caters to unexplained investments of an assessee which are not recorded in his books of accounts, if any, maintained by him for any source of income, therefore, the same could not have been triggered for bringing to tax the alleged on- money stated to have been received by the assessee on sale of land in question. In our considered view, receipt of on-money cannot be brought within the meaning of unexplained investment. But then, on a careful perusal of the assessment order, we find, that the A.O had triggered the provisions of Sec. 69, for the reason, that the assessee had deposited the on-money in the bank accounts of her husband, viz. Shri. Kulwant Singh. However, as we have already vacated the view taken by the lower authorities that the alleged amount of on-money received by the assessee Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 27 was parked in the bank accounts of her husband, viz. Shri. Kulwant Singh, therefore, the applicability of Sec. 69 of the Act is ousted on the said count itself. Be that as it may, as we have already vacated the addition made by the A.O on the basis of the contents of the uncertified copy of a “agreement to sell”, dated 25.02.2008, which has been held by us as a dumb document that could not have been acted upon by the A.O, therefore, we refrain from adverting any further qua the validity of invocation of Sec. 69 of the Act. 10. In the backdrop of our aforesaid deliberations, we, herein, holding the “agreement to sell”, dated 25.02.2008 as a dumb document, thus, set- aside the order of the CIT(A) and vacate the addition of Rs. 1.50 crore (supra) made by the A.O. 11. Resultantly, the appeal filed by the assessee is allowed in terms of our observations recorded hereinabove. ITA No. 628/Asr/2017 A.Y 2009-10 Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 28 12. We shall now take up the assessee’s appeal for A.Y 2009-10, wherein the impugned order passed by the CIT(A) has been assailed before us on the following grounds : “1. That on the facts and circumstances of the case, learned Commissioner of Income Tax (Appeals) (CIT(A)} has grossly erred in law in rejecting ground of appeal of the assessee that impugned assessment framed u/s 143(3)/l47 of the Act is without assumption of valid jurisdiction and as such is illegal and bad in law. 2. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in law in confirming addition of Rs. 5,33,21,805/- as against addition of Rs. 6,83,21,805/- (reduced addition of Rs. 1,50,00,000/- being already brought to tax in previous year) made by the assessing officer alleged to be long term capital gain earned by the assessee. 3. That on the facts and circumstances of the case, addition of Rs. 5,33,21,805/- out of addition of Rs. 6,83,21,805/- made by Ld. Assessing Officer, confirmed by Learned CIT(A) is illegal and bad in law since: a). Certified true copy of agreement alleged to have been executed by the assessee in favour of some Surjit Singh has never been provided to the assessee in spite of repeated requests. b) Department is in possession of photocopy of agreement alleged to have been executed by the assessee in favour of Surjit Singh. Agreement in original is not available with the department. c). Statement of alleged witnesses who have admitted that alleged agreement was executed in their presence was recorded at back of the assessee and alleged witnesses were not made available for cross examination though request to this effect was made. 4. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in not considering submission of the assessee that addition made is bad in law since no addition has been made in the case of alleged purchaser Surjit Singh whose case was also re opened for A.Y. 2008-09 and proceedings initiated u/s 147 of the Act were filed without any adverse inference. Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 29 5. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in law while confirming the addition of Rs. 5,33,21,805/- made by learned assessing officer based on photocopy of an agreement. Addition confirmed on the basis of photocopy of agreement is opposed to following judgments: a) Honorable Supreme Court Judgment in the case of Smt. J. Yashodha vs. Smt. K. Shobha Rani dated 19.04.2007 SLP (C) No. 12625 of 2005 wherein it has been held that photocopy of a document is not admissible evidence in terms of Indian Evidence Act, 1872. b)Hon’ble Punjab and Haryana High Court Judgment in the case of Paramjit Singh vs. ITO (2010) 323 ITR 588: 236 CTR 466 (P&H) wherein it has been held “There is well known principle that no oral evidence is admissible once the document contains all the terms and conditions. Sections 91 and 92 of the Indian Evidence Act, 1872 (for brevity 'the 1872 Act) incorporate the aforesaid principle. According to Section 91 of the Act when terms of a contracts, grants or other dispositions of property has been reduced to the form of a documents then no evidence is permissible to be given in proof of any such terms of such grant or disposition of the property except the document itself or the secondary evidence thereof’. 6. That while confirming addition, learned CIT(A) in para 4.7 & 4.11 of appellate order has relied upon cash deposits made in bank account of husband of the assessee in A.Y. 2008-09. Reliance placed on cash deposits in the account of husband of the assessee is illegal and bad in law since: a). No query on cash deposits in saving bank account of the husband of the assessee was ever made during the assessment proceedings. b). During the appeal proceedings, copy of assessment order u/s 143(3) of the Act in the case of Kulwant Singh husband of the assessee was filed to prove genuineness of cash deposits in his saving account which has not been considered by learned CIT(A). c). Without prejudice to issues raised in (a) & (b) above, even otherwise also no adverse inference can be drawn in the case of the assessee since her husband is independent assessee. 7. That observation of Id. CIT(A) in para 4.7 of the appellate order while confirming addition of Rs. 5,33,21,805/- out of addition of Rs. 6,83,21,805/- Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 30 made by Ld. Assessing Officer that husband of the appellant failed to attend the proceedings before the AO. is without any material on records and this was never case of the assessing officer. 8. That observation of ld. CIT(A) in para 4.9 of the appellate order while confirming addition of Rs. 5,33,21,805/- out of addition of Rs. 6,83,21,805/- made by Ld. Assessing Officer that signatures of the appellant have been confirmed by the husband of the appellant in his statement recorded by the DDIT investigation and also it was stated that sale consideration has been received by the appellant is without any material on records and this was never case of the assessing officer that transaction cannot be taxed in one year u/s 69 of the Act and in the next year under the head “Capital Gains”. 9. That on the facts and circumstances of the case, addition confirmed by Id. CIT(A) is illegal and bad in law since Id. CIT(A) in the assessment year 2008- 09 has confirmed addition of Rs. 1,50,00,000/- u/s 69 of the Act, being alleged advance received against alleged agreement to sell and the same has been reduced from the alleged capital gain on account of alleged agreement and this was never case of the assessing officer that transaction cannot be taxed in one year u/s 69 of the Act and in the next year under the head “Capital Gains”. 10. The assessee requests for leave to add or annex any other grounds of appeal before the appeal is heard or disposed off.” 13. Succinctly stated, the assessee had filed her return of income for A.Y 2009-10 on 30.03.2010, declaring an income of Rs.4,31,880/- a/w agriculture income of Rs. 8,83,880. Information was received by the A.O from the Dy. Director of Income-tax (Investigation), Ludhiana, that the assessee had executed an “agreement to sell”, dated 25.02.2008 with one Shri. Surjit Singh S/o. Sh. Mohan Singh, R/o. 1548-D, Model Town (Extension), Ludhiana, wherein she had agreed to sell her land admeasuring 09 Kanal - 03 Marla (i.e 5535 sq. yards) situated at Village : Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 31 Daad, Pakhowal Road, Ludhiana for a consideration of Rs. 7,19,55,000/- i.e 5,535 sq. yards @ Rs. 13,000/- per sq. yard, and had out of the aforesaid sale consideration received an amount of Rs. 1.5 crore as earnest money on 25.02.2008 from Shr. Surjit Singh (supra). As per the aforesaid information shared by the Dy. DIT (Inv.), Ludhiana, the balance sale consideration was to be received by the assessee in tranches, viz. (i). amount of Rs. 1.5 crore was to be paid by 16.05.2008; while for the sale deed was to be executed latest by 03.12.2008. Further, as per the information, a registered sale deed for part of the land in question was executed on 08.10.2008 in favor of certain third parties, viz. (i). Sh. Vipan Kumar Goyal, 101A, Agar Nagar, Ludhiana (30%); (ii). Sh. Suresh Jain, r/o. Krishna Nagar, Civil Lines, Ludhiana (15%) (iii). Smt. Silky Jain, r/o. 127, New Jawahar Nagar, Jalandhar (20%); (iv). Sh. Tushal Goyal S/o. Sh. Surinder Kumar Goyal, r/o. Sukhmoney Enclave, South Canal, Ludhiana (15%); and (v). Sh. Naveen Jain S/o. Sh. Tarsem Jain, r/o. Krishna nAgar, Ludhiana (15%). Backed by the aforesaid facts, the A.O holding a belief that the income of Rs. 7,19,55,000/- of the assessee for the year under consideration, i.e, A.Y 2009-10 that was chargeable to tax had escaped assessment, thus, reopened her case u/s 147 of the Act. Objections raised Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 32 by the assessee as regards the validity of the reassessment proceedings were disposed off by the A.O vide his order dated 02.12.2016. Rebutting the adverse inferences that the A.O had sought to draw on the basis of the aforesaid “agreement to sell” (supra), the assessee dubbed the same as a forged document, and claimed that she had sold the land in question vide a registered sale deed, dated 08.10.2008. However, the A.O was not persuaded to subscribe to the aforesaid claim of the assessee. Observing, that the witnesses to the “agreement to sell”, viz. S/sh. Rishikesh Verma and Baldev Raj (since deceased) had in the course of the proceedings before the Dy. DIT (Inv.), Ludhiana admitted that the agreement was executed in their presence and the assessee had signed the same in their presence, the A.O rejected the claim of the assessee that she had not executed the said agreement. Also, the fact that the sale deed of the land in question was executed on 08.10.2008, i.e, within the stipulated time period within which the same was to be executed as per the “agreement to sell”, i.e, latest by 03.12.2008, also did weigh in the mind of the A.O for rejecting the claim of the assessee that the same was a dumb document. In so far the routing of the alleged unaccounted sale consideration, i.e, on- money was concerned, the A.O was of the view that the same was Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 33 deposited in the bank accounts of the assessee’s husband, viz. Shri. Kulwant Singh, a property dealer by profession, i.e (i). A/c No. 0165201900016 (Joint A/c of Sh. Kulwant Singh a/w his father); (ii). A/c No. 0165101023514 with Canara Bank, Branch : BMC Chowk, Jalandhar; (iii). A/c No. 0165201900013 with Canara Bank, Branch : BMC Chowk, Jalandhar; (iv). A/c No. 0165201900014 with Canara Bank, Branch : BMC Chowk, Jalandhar; (v). A/c No. 0165201900016 with Canara Bank, Branch : BMC Chowk, Jalandhar. In order to fortify his conviction that the funds of the assessee were being managed by her husband, viz. Sh. Kulwant Singh, the A.O had tried to draw support from the fact that a FDR drawn in the name of the assessee was sourced out of the amount that was transferred from his bank account. Backed by his aforesaid observations, the A.O acting upon the contents of the “agreement to sell”, as well as drawing support from his observations that were recorded by him while framing the assessment in the case of the assessee for the immediately preceding year i.e A.Y 2008-09, therein, held that the assessee had sold the land in question for a consideration of Rs. 7,19,55,000/-. Observing, that the assessee had executed the registered sale deed, dated 08.10.2008, i.e, during the year under consideration, the A.O adopting the aforesaid Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 34 amount of sale consideration assessed the LTCG of Rs. 6,83,21,705/- as the undisclosed capital gains in her hands. 14. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Although the CIT(A) principally concurred with the A.O, however, taking cognizance of the fact that an amount of Rs. 1.50 crore was already brought to tax by the A.O while framing the assessment in the case of the assessee for the immediately preceding year, i.e, A.Y 2008-09, which thereafter had been upheld by his predecessor, the CIT(A) directed the A.O to re-compute the capital gain after reducing the amount of Rs. 1.50 crore which had already been brought to tax in the preceding year. Accordingly, the CIT(A) partly allowed the appeal. 15. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. At the very outset, it was submitted by the ld. Authorized representatives of both the parties, that the facts and the issue involved in the preset appeal remained the same as was there before us in the assessee’s appeal for the immediately preceding year, i.e. for A.Y 2008-09 in ITA No, 627/Asr/2017. As the facts and the issue involved in the present appeal remains the same as were there before us in Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 35 the assessee’s appeal for the immediately preceding year, i.e, A.Y 2007-08, therefore, our order therein passed shall apply mutatis mutandis for the purpose of disposing off the present appeal for A.Y 2009-10 in ITA No. 628/Asr/2017. As we have while disposing off the assessee’s appeal for A.Y 2008-09 in ITA No. 627/Asr/2017 held the “agreement to sell”, dated 25.02.2008 as a dumb document, therefore, on the same premises we herein vacate the addition of LTCG of Rs. 6,83,21,705/-, to the extent the same had been sustained by the CIT(A). 16. Accordingly, the appeal of the assessee is allowed in terms of our aforesaid observations. 17. Resultantly, both the appeals of the assessee, viz. ITA No. 627/Asr/2017 for A.Y 2008-09 and ITA No. 628/Asr/2017 for A.Y 2009-10 are allowed in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1962, by placing the details on the notice board. Sd/- Sd/- (Dr. M.L. Meena) (Ravish Sood) Accountant Member Judicial Member Date: 21.02.2022 **GP/Sr./PS* Smt. Gurjeet Kaur Vs. ITO-Ward 3(4), Jalandhar ITA No. 627 & 628/Asr/2017 – A.Y 2008-09 & 2009-10 36 Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T True copy By Order