Sh. Vijay Gupta, Jammu V. The Income-tax Officer, Jammu

ITA 650/ASR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9649 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 30-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K KAUL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Document seized
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.650(ASR)/2014 ASSESSMENT YEAR:2007-08 PAN: ADOPG9551F SH. VIJAY GUPTA, VS. INCOME TAX OFFICER, GANDHI NAGAR, JAMMU. WARD-1(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.K. KAUL, CA RESPONDENT BY:SH. RAHUL DHAWAN, DR DATE OF HEARING: 21/07/2016 DATE OF PRONOUNCEMENT: 01/08/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT YE AR 2007-08 AGAINST THE ORDER, DATED 02.07.2014, PASSED BY THE LD. CIT(A), JAMMU. THE ASSESSEE HAS RAISED THE FOLLOWING CONCISE GROUN DS OF APPEAL: 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITIONS OF RS.10 LAKHS TO THE INCOME OF THE ASSESSEE MADE BY THE A.O . 2. THAT THE SAID ADDITION OF RS.10 LACS TO THE TAXA BLE INCOME OF THE APPELLANT IS BASED ON EXTENDED PRESUMPTION OF D IFFERENCE IN THE PURCHASE PRICE OF A RESIDENTIAL FLAT. THE PR ESUMPTION HAS BEEN EXTENDED FROM THE CONTENTS OF A LOOSE SHEE T OF PAPER SEIZED FROM A THIRD PARTY WHICH DOES NOT DRAW ANY DIRECT OR IN DIRECT SUPPORT FROM ANY DOCUMENTARY EV IDENCE OR ANY OTHER CORROBORATORY EVIDENCE. 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE AND T AKE NOTE OF THE FACT THAT THE PRESUMED CASH INVESTMENT, DOES NOT ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 2 CORRESPOND OR FALL WITHIN THE ASSESSMENT YEAR IN WH ICH THE SAME HAVE BEEN TREATED AS INVESTMENT FROM UNDISCLO SED SOURCE AND THUS THE ADDITION STANDS WRONGFULLY MADE DURING THE YEAR UNDER APPEAL. 4. THAT THE RESIDENTIAL FLAT IN WHICH THE ALLEGED U NDISCLOSED INVESTMENT OF RS. 10 LACS IS SAID TO HAVE BEEN MADE IS PURCHASED JOINTLY BY THE ASSESSEE, NAMELY, SH. VIJ AY GUPTA AND MRS. KAMLESH GUPTA AND CONSTITUTES JOINT PROPER TY OF THE SAID TWO PERSONS. BUT THE ENTIRE MATTER HAS BEE N WRONGFULLY CONSIDERED IN THE HANDS OF SH. VIJAY GUP TA ONLY. 5. THAT IT IS PRAYED THAT THE ASSESSMENT ORDER MAY BE QUASHED. IN THE ALTERNATIVE THE AMOUNT OF RS.10 LAKHS HELD AS INVESTMENT FROM UNDISCLOSED SOURCE AND ADDITIONS M ADE TO THE INCOME ON THIS ACCOUNT MAY BE DROPPED OR SUCH O THER RELIEF MAY BE GRANTED AS MAY MEET THE ENDS OF JUSTI CE. 3. THE FACTS ARE THAT THE COMPLETED SCRUTINY ASSESS MENT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08 WAS REOPE NED ON THE BASIS OF INFORMATION FROM THE ADIT, JAMMU, THAT THE ASSESSEE HAD PURCHASED A FLAT NO.7, BLOCK-B, 2ND FLOOR FROM DREAMLAND COOPER ATIVE HOUSING BUILDING SOCIETY, JAMMU, FOR RS.19,50,000/-, THE PA YMENT FOR WHICH MADE AT RS.9,50,000/- BY CHEQUE AND RS.10,00,000/- IN CASH. THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SAI D INVESTMENT. THE ASSESSEE STATED THAT HE HAD MADE AN INVESTMENT OF R S.9.50 LAKHS ONLY AS RECORDED IN THE SALE DEED AND PROVIDED THE SOURCE F OR SUCH INVESTMENT. THE ASSESSEE, HOWEVER , COULD NOT EXPLAIN THE SOURC E OF RS.10,00,000/- PAID TO SOCIETY IN CASH. THE AO REJECTED THE EXPLA NATION OF THE ASSESSEE AND ASSESSED THE INVESTMENT AT RS.19.50 LAKHS BY MA KING ADDITION OF RS.10.00 LAKHS AS UNEXPLAINED INVESTMENT. ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 3 5. THE LD. CIT(A) CONFIRMED THE ADDITION BY HOLDING AS FOLLOWS: 4.5 GROUND OF APPEAL NO 8 TO 12 RELATES TO ADDITION OF RS 10 LAKHS ON ACCOUNT OF UNEXPLAINED INVESTMENTS. THE AP PELLANT HAS ARGUED THAT HE HAS MADE AN INVESTMENT OF ONLY R S 10 LAKHS AS MENTIONED IN SALE DEED AND HE CANNOT BE MA DE ACCOUNTABLE FOR EXPLAINING THE CONTENTS A DOCUMENT SEIZED FROM THE PREMISES OF SOCIETY. IT IS NOTICED THAT TH E ADDITION WAS MADE ON THE BASIS OF INFORMATION RECEIVED FROM ADIT JAMMU, ENQUIRIES FROM SMT. KAMLESH GUPTA WIFE OF AP PELLANT AND OTHER DOCUMENTS ON RECORD THAT ASSESSEE HAS PUR CHASED A FLAT NO. 7, BLOCK-B, 2 ND FLOOR, FROM DREAMLAND COOPERATIVE HOUSING BUILDING SOCIETY JAMMU FOR RS 19.50 LACS. A S PER THE STATEMENT SEIZED DURING THE COURSE OF SEARCH OPERAT ION OF DREAMLAND COOPERATIVE HOUSING SOCIETY, THE APPELLAN T WAS TO MADE PAYMENTS OF RS 9.50 LAKHS BY CHEQUE AND RS 10 LAKHS IN CASH. THE A.O ASKED THE APPELLANT TO EXPLAIN THE SOURCE OF INVESTMENTS OF RS 19.50 LAKHS MADE IN CASH AND BY C HEQUE. THE APPELLANT/HOWEVER, STATED THAT HE HAS MADE AN INVESTMENT OF RS.9.50 LAKHS ONLY AS RECORDED IN THE SALE DEED AND PROVIDED SOURCE FOR SUCH INVESTMENT. THE APPELL ANT HOWEVER, COULD NOT EXPLAIN THE SOURCE OF RS 10,00,0 00/- PAID TO SOCIETY IN CASH. THE A.O, REJECTED THE EXPLANATI ONS OF THE APPELLANT AND ASSESSED THE INVESTMENT AT RS 19.50 L ACS BY MAKING ADDITION OF RS 10.00 LAKHS AS UNEXPLAINED INVESTMENT. FROM THE SAID DOCUMENT, THIS FACT WAS BROUGHT TO TH E NOTICE OF THE COUNSEL OF THE APPELLANT ON 22.04.2014 FOR HIS RESPONSE/ COMMENTS. VIDE LETTER DATED 20.05.2014 THE COUNSEL QUESTIONED THE VERACITY OF THE PAPER AND DISASSOCIA TED ITSELF HAVING ANY CORRELATION WITH THE PAPERS WHICH PURPOR TEDLY WAS NOT SIGNED BUT ONLY THE COMPUTERIZED GENERATED SHEE TS. FURTHER HE HAS ALSO QUESTIONED THAT AS PER THE DATE OF INVESTMENT IN THE COMPUTERIZED SHEETS, THE INVESTME NT OF THE APPELLANT DOES NOT FALL IN THE RELEVANT ASSESSMENT YEAR. FURTHER HE ADDED THAT THE AO HAS NEVER SHOWN THIS P APER TO THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCE EDINGS. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE CON TENTION OF THE APPELLANT, IT IS FOUND THAT 46 PERSONS HAVE INV ESTED IN DREAMLAND COOPERATIVE HOUSING BUILDING SOCIETY AND BOOKED FLATS OF VARIOUS SIZES FOR WHICH PAYMENTS AT VARIE S WERE RECEIVED FROM THE INVESTORS. THIS STATEMENT CLEARLY SHOWS THE ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 4 BLOCK NO, FLOOR, DATE OF ACQUISITION, DUE DATE OF P AYMENTS, CONSIDERATION AMOUNT, AMOUNT RECEIVED IN CHEQUE AND AMOUNT RECEIVED IN CASH AND BALANCE IF ANY. REGARDING VERA CITY OF PAPER, I FIND THAT THE DOCUMENT CANNOT BE BRUSH ASI DE BECAUSE IT HAS BEEN DRAWN VERY METICULOUSLY WITH MI NUTEST DETAILS. THE APPELLANT IS AGREEING TO HAVE MADE CHE QUE PAYMENTS FOR PURCHASE OF FLAT TO THE SOCIETY WHICH TALLIES WITH THE AMOUNT APPEARING IN THE CHEQUE PAYMENTS RECEIVE D COLUMN OF THE SEIZED DOCUMENT AND THEREFORE I FIND NO REASON TO DISREGARD THE CASH RECEIVED OR THE RECEIVABLE PA YMENTS IN THE SAID PAPER. EVEN THE FLAT NO & BLOCK MENTIONED ON THE SAID DOCUMENT BELONGS TO THE APPELLANT. IF HALF CON TENTS OF THE PAPER IS CORRECT THEN THE ANOTHER HALF CANNOT BE QU ESTIONED TO BE FABRICATED. IT IS TO MENTION THAT IN THIS SEARCH OPERATION ONE SH RAKESH KUMAR WHO WAS HANDLING THIS DREAMLAND COOPERATIVE HOUSING BUILDING SOCIETY HAS SURRENDER ED AN AMOUNT OF RS 50 LACS IN FINANCIALLY YEAR 2006-07 & RS 75 LACS IN HIS PERSONAL HAND FOR ASSESSMENT YEAR 2007-08. I T IS ALSO NOTICED THAT THE APPEAL OF ONE MR SUNIL BHATT WHOSE NAME IS ALSO APPEARING IN THE SAID DOCUMENT HAS BEEN DEALT WITH BY ME AND DURING THE COURSE OF APPELLATE PROCEEDINGS, HE HAS CONFIRMED TO HAVE MADE BOTH CASH AND CHEQUE PAYMENT S MENTIONED IN THE SAID DOCUMENT TO THE SOCIETY AS PE R THE REQUIREMENT OF THE SOCIETY. HE HAS PRODUCED RECEIPT S ISSUED BY THE SOCIETY IN RESPECT OF BOTH CASH & CHEQUE PAY MENTS BEARING RECEIPT NOS 97,98,172,173,175,184,186,188,1 90,191, 212,216,218 &219 TOTALLING TO RS 17,25,000/- WHEREA S SALE DEED IS SHOWS A CONSIDERATION OF RS 11.70 LAKHS ONL Y. IT ESTABLISHES THAT THE CONSIDERATION AMOUNT IN SALE D EEDS EXECUTED BETWEEN THE SOCIETY AND PERSONS PURCHASING THE FLATS WERE UNDERSTATED. IT IS A COMMON KNOWLEDGE TH AT INVESTMENTS IN REAL ESTATE ARE ALWAYS UNDERSTATED A ND THE CASH PORTION IS NOT DECLARED FOR THE INVESTMENT IN INCOME TAX OFFICE. IT IS TRUE THAT THESE PAPERS HAVE NOT BEEN RECOVERED FROM THE APPELLANT IN THE SEARCH OPERATIONS BUT THE VERACITY OF THE SAME CANNOT BE QUESTIONED. THEREFORE, THE ARGUM ENTS MADE BY THE APPELLANT ARE NOT SUSTAINABLE AND AS TH E APPELLANT IS UNABLE TO EXPLAIN THE SOURCE OF RS 10 LAKHS PAID IN CASH, THE ADDITION OF RS 10 LAKH ON ACCOUNT OF U NEXPLAINED SOURCE OF INVESTMENT IS UPHELD. 6. CHALLENGING THE IMPUGNED ORDER, THE LD. COUNSEL FOR THE ASSESSEE HAS MADE ORAL ARGUMENTS AND WRITTEN SUBMISSIONS HAV E BEEN FILED AS ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 5 WELL. IT WAS SUBMITTED THAT THE LD. CIT(A) HAS E RRED IN FOLLOWING THE STAND OF THE AO THAT THE PURCHASE OF THE RESIDENTIA L FLAT IN QUESTION HAD BEEN MADE IN THE F.Y. 2004-05. THE PURCHASE ACTUALL Y RELATES TO F.YS. 2005-06 & 2006-07 CORRESPONDING TO THE AY 2007-08, AS THE PAYMENTS BY CHEQUES HAVE BEEN MADE ON 06.07.2005 & 15.07.200 6 AND THE SALE DEED HAS ALSO BEEN EXECUTED ON 19.07.2006. HE SUBMI TTED THAT THE EVIDENCE ON RECORD IN THIS REGARD HAS BEEN OVERLOOK ED. IT WAS FURTHER SUBMITTED THAT THE PURCHASE CONSIDERATION OF THE RE SIDENTIAL FLAT IN QUESTION HAS BEEN ERRONEOUSLY ASSUMED AS RS.19.50 L ACS AGAINST ACTUAL PURCHASE CONSIDERATION OF RS.9.50 LACS. THE ASSUMED DIFFERENCE OF RS.10 LACS HAS ERRONEOUSLY BEEN TREATED AS INCOME FROM UN EXPLAINED SOURCES. THE ASSUMPTION IS BASED ON NO INFORMATION OTHER THA N THAT CONTAINED IN AN UNRELATED AND UNSUBSTANTIATED LOOSE SHEET OF STA TEMENT SAID TO HAVE BEEN SEIZED FROM A THIRD PARTY. 6.1. THE LD. COUNSEL FURTHER STATED THAT THE SEIZU RE OF THE LOOSE SHEET OF PAPER, THE CONTENTS OF WHICH DO NOT DRAW ANY DIRECT OR INDIRECT SUPPORT FROM ANY DOCUMENTARY EVIDENCE, OR ANY OTHER CORROBO RATIVE EVIDENCE, HAS BEEN ERRONEOUSLY MADE THE SOLE BASIS OF MAKING TH E ADDITIONS TO THE TAXABLE INCOME OF THE ASSESSEE. THERE IS NO REFEREN CE TO THE BOOKS OF ACCOUNT OF THE BUILDER/SOCIETY, OR ANY OTHER EVIDEN CE IN SUPPORT OF THE VERACITY, CREDIBILITY OR RELIABILITY OF THE SEIZED STATEMENT RELIED ON. IT WAS ALSO SUBMITTED THAT THE LD. CIT(A) HAS FAILED TO AP PRECIATE THAT THOUGH THE PRESUMPTION U/S 132(4A) OF THE ACT IS AVAILABLE AGA INST THE PERSON FROM ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 6 WHOSE POSSESSION A SEIZURE IS MADE, THIS PRESUMPTI ON CANNOT BE EXTENDED TO OTHERS AND WITHOUT ANYTHING OTHER THAN THE SOLE SEIZED DOCUMENT, ANY ADDITION CANNOT BE MADE. IN THE PRESE NT CASE, THE SOLE SO CALLED COMPUTERIZED SLIP SEIZED FROM A THIRD PART Y CANNOT BE A CONCLUSIVE EVIDENCE TO JUSTIFY THE ADDITIONS, MORE SO IN THE AY 2007-08. THERE IS NOTHING ELSE TO SUGGEST THAT THE ASSESSEE HAS, IN FACT, PAID THE AMOUNT OF RS. 10 LACS IN CASH IN ADDITION TO THE PA YMENT OF RS.9.50 LACS, AS MENTIONED IN THE SALE DEED. THE LOOSE COMPUTERI ZED SLIP DOES NOT GIVE ANY DATE OF THE ALLEGED CASH PAYMENTS. THE LD. COUN SEL SUBMITTED THAT THE EXPLANATION FOR THE WHOLE INVESTMENT OF RS.9.5 0 LAKHS WAS SUBMITTED BEFORE BOTH THE AUTHORITIES BELOW. IN VIE W OF THE ABOVE SUBMISSIONS, THE LD. COUNSEL PRAYED THAT THE APPEAL OF THE ASSESSEE MAY BE ALLOWED. 6.2. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLAC ED STRONG RELIANCE ON THE DECISION OF THE ITAT, AMRITSAR BENCH, IN THE CA SE OF RAJINDER KUMAR HAK, JAMMU VS. ITO, JAMMU, IN ITA NO.507(ASR)/2014 FOR THE A.Y. 2005-06 AND PLEADED THAT THE ISSUE RAISED IN THE PR ESENT APPEAL IS SQUARELY COVERED BY THE AFORESAID ORDER OF THE TRIB UNAL IN FAVOUR OF THE ASSESSEE AND ACCORDINGLY PRAYED THAT THE APPEAL IN DISPUTE MAY BE ALLOWED. 7. ON THE OTHER HAND, THE LD. DR HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. IT HAS BEEN SUBMITTED THAT THE ASSE SSEE, AS CORRECTLY HELD BY THE LD. CIT(A) IN THE DETAILED ORDER UNDER APPEAL, HAS MISERABLY ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 7 FAILED TO EXPLAIN THE SOURCE OF THE AMOUNT OF RS.10 LACS INVESTED IN THE PURCHASE OF THE FLAT AND THAT THEREFORE, THERE BEIN G NO MERIT THEREIN, THE APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED. 8. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING GO NE THROUGH THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT EXACTLY A SIMILAR ISSUE STANDS ALREADY DECIDED BY THIS BENCH OF THE TRIBUNAL, VIDE ORDER DATED 26.02.2016, IN THE CASE OF RAJINDER KUMAR HAK, JAM MU VS. ITO, JAMMU, IN ITA NO. 507(ASR)/2014 FOR THE ASSESSMENT YEAR 2005-06, IN FAVOUR OF THE ASSESSEE. THE RELEVANT PORTION OF THE AFORESAID ORDER OF THE TRIBUNAL IS REPRODUCED AS UNDER: 8. THE RIVAL SUBMISSIONS OF BOTH THE PARTIES HAVE BEEN HEARD IN THE LIGHT OF THE MATERIAL PLACED ON RECORD . THE ADDITION OF RS.10.50 LACS WAS MADE SINCE ACCORDING TO THE TAXIN G AUTHORITIES, THE ASSESSEE COULD NOT EXPLAIN THIS ALLEGED CASH IN VESTMENT MADE BY THE ASSESSEE IN THE PURCHASE OF FLAT. AS PER TH E AUTHORITIES BELOW, THE PURCHASE PRICE OF THE FLAT WAS RS.17.50 LACS, WHEREAS THE ASSESSEE HAD SHOWN IT TO BE ONLY OF RS.8.50 LAC S AND HE HAD ONLY BEEN ABLE TO PROVE THE LOAN OF RS.7 LACS TAKE N FROM UCO BANK. THE AO REJECTED THE ASSESSEES EXPLANATION, OBSERVI NG THAT WHILE SCRUTINIZING THE CASE OF SH. RAI BHARAT, SMT. KALPANA TIKKOO AND SOME OTHER PERSONS, WHO HAD PURCHASED SIMILAR FLAT S FROM THE SOCIETY, THE RECEIPTS ISSUED BY THE SOCIETY TO THE SAID ALLOTTEES HAD BEEN PRODUCED BY THEM BEFORE THE AO, AND THE AO FOU ND ALL THE AMOUNTS EQUIVALENT TO THE AMOUNT CHARGED BY THE SO CIETY FOR THE PURCHASE OF THE FLATS AS WELL AS THE INFORMATION IN THE POSSESSION OF THE DEPARTMENT WITH REGARD TO THE ASSESSEE, EVEN TH OUGH THE SALE DEED IN THE CASE OF THE ASSESSEE HAD BEEN REGISTERE D AT A LESSER PRICE. THE ASSESSMENT ORDER DOES NOT FIND ANY MENTI ON THAT THE SAID INFORMATION REGARDING OTHER ALLOTTEES WAS EVER PUT TO THE ASSESSEE. THE DETAILS OF THE SAID RECEIPTS OF THE OTHER ALLOT TEES ARE ALSO MISSING IN THE SHORT ASSESSMENT ORDER. NO NEXUS BETWEEN THE CASE OF THE ASSESSEE AND THOSE OF THE ALLEGED OTHER ALLOTTEES W AS ESTABLISHED BY ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 8 THE AO. THE ADDITION WAS MADE MERELY ON ASSUMPTION AND PRESUMPTION AND ON MATERIAL COLLECTED AT THE BACK O F THE ASSESSEE AND NEVER CONFRONTED TO HIM. IT IS PERTINENT THAT THE LD. CIT(A)S ORDER DOES NOT REFER TO THE CASES OF SH. RAI BHARA T, SMT. KALPANA TIKKOO, THE OTHER ALLOTTEES REFERRED TO IN THE ASSE SSMENT ORDER. MOREOVER, THE CONTENTION OF THE ASSESSEE THAT THE T RANSACTION SPANNED TWO FINANCIAL YEARS, I.E., F.YS. 2004-05 AN D 2005-06 AND THAT SO, SPECIFICATION OF THE POINT OF TIME WHEN THE ADDITIONAL AMOUNT WAS BELIEVED TO HAVE BEEN PASSED WAS NECESSA RY, SO AS TO DEAL WITH THE SAME IN THE YEAR UNDER CONSIDERATION, WAS NOT CONSIDERED. ACCORDING TO THE AO, THE DUE DATE OF PA YMENT WAS 17.01.2005. ON THE OTHER HAND, AS PER THE ASSESSEE, HE HAD MADE THE LAST PAYMENT AMOUNTING TO RS.8 LACS ON 19.05.20 05, IN THE F.Y. 2005-06. THE ASSESSEES CONTENTION OF PAYMENT OF RS .50,000/- FROM HIS OWN SOURCE AND PAST SAVINGS WAS ALSO NOT ACCE PTED, WITHOUT ANY OBSERVATION TO THE EFFECT THAT THE ASSESSEE WA S NOT IN A POSITION TO HAVE SAVED THIS AMOUNT OF RS.50,000/-, SO AS TO BE ABLE TO INVEST IT TOWARDS PART PAYMENT OF THE PURCHASE PRICE OF TH E FLAT. SIMILAR IS THE POSITION WITH REGARD TO THE AMOUNT OF RS.1 LAC. STATED TO HAVE BEEN PAID BY THE ASSESSEE ON 19.05.2005. THIS AMOUN T, ACCORDING TO THE ASSESSEE, HAD BEEN DEPOSITED WITH THE LENDIN G BANK, UCO, BANK, FROM WHICH THE ASSESSEE HAD TAKEN A LOAN OF R S. 7 LACS, AS MARGIN MONEY FOR THE SAID HOUSING LOAN. THE ASSESSE ES ASSERTION THAT HE WAS A SALARIED PERSON, HAVING NO DEPENDANTS , WAS NOT CONSIDERED BY THE AO. 9. SO FAR AS REGARDS THE LD. CIT(A)S ORDER, HE OBS ERVED THAT THE PAPER FOUND IN THE SEARCH CONTAINED THE DE TAILS OF PAYMENT MADE BY VARIOUS PERSONS TO THE SOCIETY FOR PURCHASE OF FLATS IN THE SOCIETY. HE OBSERVED THAT THIS DOCUMENT COULD NOT B E BRUSHED ASIDE, SINCE IT HAD BEEN DRAWN VERY METICULOUSLY WITH THE MINUTEST DETAILS. HE OBSERVED THAT THE ASSESSEE HAD ADMITTEDLY MADE P AYMENTS APPEARING IN THE CHEQUE PAYMENTS RECEIVED COLUMN OF THE SAID PAPER, WHICH PAYMENTS ALSO TALLIED WITH THE ASSESSE ES SALE DEED; AND THAT EVEN THE FLAT NUMBER MENTIONED ON THE SAI D PAPER BELONGED TO THE ASSESSEE. 10. HOWEVER, THE LD. CIT(A) HAS FAILED TO CONSIDER THAT FIRSTLY, THE PAPER IN QUESTION WAS NOT FOUND FROM T HE PREMISES OF THE ASSESSEE. IT WAS FOUND IN THE SEARCH CONDUCTED ON T HE HOUSING SOCIETY. MOREOVER, IT WAS NOT A COMPUTER GENERATED DOCUMENT, BUT IT HAD BEEN TYPED ON COMPUTER. IT WAS MERELY BECAUSE T HE NAME OF THE ASSESSEE ALSO APPEARED IN THIS ALLEGED LIST OF ALLO TTEES, THAT THE CONTENTS THEREOF WERE TAKEN TO GO AGAINST THE ASSES SEE. THIS LIST/PAPER DID NOT HAPPEN TO FORM THE BASIS OF THE PASSING OF THE ASSESSMENT ORDER AND NO SUCH LIST/PAPER STANDS REF ERRED TO IN THE ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 9 ASSESSMENT ORDER. FURTHER, AS PER THE SEIZED PAPER, THE DATE OF ALLOTMENT WAS 17.09.2004. ON THE OTHER HAND, AS PER THE DOCUMENTS OF THE ASSESSEE, IT WAS 22.12.2004. THEN, ACCORDING TO THE PAPER, DATE OF THE AGREEMENT WAS 17.09.2004, BUT THE ASSES SEES PAPER SHOWED THE DATE OF AGREEMENT TO BE 18.05.2005. EVE N THE LOCATION OF THE FLAT OF THE ASSESSEE WAS MISQUOTED IN THE ST ATEMENT, TO BE ON THE SECOND FLOOR, WHEREAS ACTUALLY, IT WAS ON THE FIRST FLOOR. THE DUE DATE OF PAYMENT, AS NOTICED ABOVE, WAS SHOWN AS 17. 1.2005 IN THE PAPER, WHEREAS ACCORDING TO THE ASSESSEE, IT WAS 21 .4.2005 THESE GLARING DISCREPANCIES HAVE NOT BEEN TAKEN INTO CON SIDERATION BY THE LD. CIT(A). 11. THE LD. CIT(A) ALSO PLACED RELIANCE ON THE STAT EMENT OF ONE SH. RAKESH KUMAR WHO WAS HANDLING THE AFFAIRS OF THE HOUSING SOCIETY. THIS STATEMENT WAS RECORDED IN TH E SEARCH CONDUCTED ON THE HOUSING SOCIETY. SH. RAKESH KUMAR HAD SURRENDERED AN AMOUNT OF RS. 50 LACS IN F.Y. 2006-0 7 AND RS. 75 LACS IN HIS PERSONAL HAND FOR AY 2007-08. THE LD. C IT(A) FAILED TO CONSIDER THAT THIS STATEMENT OF SH. RAKESH KUMAR, G IVEN ON 9.4.2007, WAS ALSO NOT THE BASIS OF THE PASSING OF THE ASSESSMENT ORDER AND THE ASSESSMENT ORDER DOES NOT EVEN MAKE M ENTION OF SUCH STATEMENT. FURTHER, THE LD. CIT(A) DOES NOT EL ABORATE UPON THE EXACT STATUS OF THE SAID SH. RAKESH KUMAR, IN RELAT ION TO THE HOUSING SOCIETY AND IT HAS ONLY BEEN MENTIONED THA HE WAS HANDLING THIS DREAMLAND COOPERATIVE HOUSING BUILDIN G LTD. AS TO WHAT WAS HIS KNOWLEDGE ABOUT THE AFFAIRS OF THE SOC IETY AND WHAT WAS THE AUTHENTICITY OF THE INFORMATION PROVIDED BY HIM, WAS ALSO NOT INDICATED BY THE LD. CIT(A). THE AFORESAID PAPE R/LIST OF ALLEGED ALLOTTEES WITH ALL THE AFORE-CONSIDERED DISCREPANCI ES, IS GIVEN AS AN ANNEXURE TO THE STATEMENT OF SH. RAKESH KUMAR. SH. RAKESH KUMAR STATED THAT THE POSSESSION OF THE FLAT HAD BEEN HA NDED OVER TO THE ALLOTTEE IN F.Y. 2007-08. BEFORE THE LD. CIT(A), TH E ASSESSEE CONTENDED THAT SINCE THE HANDING OVER OF THE POSSES SION OF THE FLATS IS TO IMMEDIATELY FOLLOW FULL PAYMENT DUE, SOME PAY MENTS TOWARDS COST OF FLATS MAY HAVE ALSO BEEN MADE/RECEIVED IN F .Y. 2006-07 AND AS SUCH, ALL PAYMENTS COULD NOT BE HELD TO HAVE BEE N MADE IN THE F.Y. 2004-05, I.E., ALMOST TWO YEARS IN ADVANCE; T HAT THIS WAS MERELY AN ASSUMPTION OF THE AO, WHICH WAS ENTIRELY AT VARIANCE WITH THE STATEMENT OF SH. RAKESH KUMAR. HOWEVER, TH E LD. CIT(A) HAS NOT MADE ANY COMMENT ON THIS OBJECTION OF THE A SSESSEE. 12. OBSERVING THAT THE APPEAL OF ONE SH. SUNIL BHAT T, WHOSE NAME WAS ALSO APPEARING IN THE AFORESAID PAPERS/LIST OF THE ALLEGED ALLOTTEES WAS ALSO PENDING WITH HIM, THE LD. CIT(A) OBSERVED THAT THE SAID MR. SUNIL BHATT HAD CONFIRMED TO HAVE MADE BOT H CASH AND CHEQUE PAYMENTS MENTIONED IN THE PAPERS/LIST OF TH E SOCIETY, AS PER ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 10 THE REQUIREMENT OF THE SOCIETY; AND THAT MR. SUNIL BHATT HAD PRODUCED RECEIPTS ISSUED BY THE SOCIETY IN RESPECT OF BOTH CASH AND CHEQUES PAYMENTS TOTALING TO RS.17,25,000/-, WHEREA S HIS SALE DEED SHOWED THE CONSIDERATION OF RS.11,70,000/- ONL Y; THAT THIS ESTABLISHED THAT THE CONSIDERATION AMOUNT IN SALE DEEDS EXECUTED BETWEEN THE SOCIETY AND THE PURCHASER, WAS UNDERSTA TED. THIS OBSERVATION OF THE LD. CIT(A) IS ALSO OF NO CONSEQU ENCE. FIRSTLY, WHAT HAS BEEN MADE MENTION OF, IS THE PROCEEDINGS IN TH E SAID APPEAL OF MR. SUNIL BHATT. THE FATE OF HIS APPEAL IS NOT KNOW N. THEN, AGAIN, THE ASSESSEE WAS NEVER CONFRONTED WITH SUCH PROCEED INGS IN THE CASE OF MR. SUNIL BHATT, THEREBY PREVENTING THE ASS ESSEE FROM REBUTTING THIS MATERIAL COLLECTED BY THE LD. CIT(A) AT THE BACK OF THE ASSESSEE AND USED AGAINST THE ASSESSEE. IT REQUIRE S TO BE REITERATED THAT AS AGAINST THE REGISTERED SALE DEED, NO COGENT MATERIAL HAS BEEN BROUGHT ON RECORD TO CONNECT THE ASSESSEE TO T HE PAPER/LIST OF ALLEGED ALLOTTEES, IN ORDER TO ESTABLISH THE ALLEGE D UNDERSTATEMENT OF PURCHASE PRICE OF THE FLAT BY THE ASSESSEE. 13. THE LD. CIT(A) HAS ADMITTED THAT THE PAPERS/LIS T OF ALLEGED ALLOTTEES HAD NOT BEEN RECOVERED FROM THE ASSESSEE IN THE SEARCH OPERATIONS. HOWEVER, IN THE SAME BREATH, IT HAS BEE N STATED BY THE LD. CIT(A) THAT THE VERACITY OF THE PAPER COULD NO T BE QUESTIONED. FIRSTLY, AS NOTED, THIS PAPER WAS NOT A COMPUTER GE NERATED DOCUMENT, BUT, UNDISPUTEDLY HAD MERELY BEEN TYPED O N A COMPUTER, RENDERING IT AS OF NO EVIDENTIARY VALUE AGAINST THE ASSESSEE SO FAR AS REGARDS THE ALLEGED UNDERSTATEMENT OF PURCHASE P RICE. THEN, AS ALSO EARLIER OBSERVED, THE SAID PAPER IS RIDDEN WIT H NUMEROUS DISCREPANCIES WHICH THE LD. CIT(A) HAS NOT EVEN ATT EMPTED TO MEET. IT GOES WITHOUT SAYING THAT THE SAID PAPER WAS NOT IN THE HAND- WRITING OF THE ASSESSEE AND IT DID NOT BELONG TO TH E ASSESSEE. IT DID NOT CONTAIN THE DATE ON WHICH THE ALLEGED CASH PAY MENT HAD BEEN MADE BY THE ASSESSEE. 14. IT IS ALSO EVIDENT FROM THE RECORD, THAT WHEREA S THE SURRENDER OF ABOUT RS.50 LACS BY SH. RAKESH KUMAR WAS ATTRIBU TABLE TO THE ALLEGED CASH COLLECTION FROM THE ALLOTTEES OF FLATS AND IT RELATED TO F.YS. 2006-07 AND 2007-08, THE TRANSACTION OF THE ASSESSEE DID NOT FALL IN ONE YEAR, AS IT PERTAINED TO F.YS 2004-05 & 2005-06. THIS BEING THE POSITION, THE STATEMENT OF SH. RAKESH KUM AR AND THE ANNEXURE THERETO, I.E., THE PAPER/LIST OF ALLEGED A LLOTTEES, DOES NOT EVEN REMOTELY INCULPATE THE ASSESSEE. IT GOES WITHO UT SAYING THAT THE STATEMENT OF A THIRD PARTY CANNOT BE HELD AGAI NST THE ASSESSEE IN THE ABSENCE OF OR CORROBORATIVE EVIDENCE. RELIA NCE IN THIS REGARD HAS BEEN PLACED BY THE ASSESSEE ON THE DECISION OF THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SURINDER SING H, KATHUA, RENDERED ON 25.09.2012, IN ITA NO.229(ASR)/2012 AND C.O. ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 11 NO.23(ASR)/2012, FOR THE ASSESSMENT YEAR 2007-08. A COPY OF THEREOF HAS BEEN PLACED ON RECORD. NO DECISION TO T HE CONTRARY HAS BEEN CITED BY THE DEPARTMENT BEFORE THIS BENCH. 15. THE LD. CIT(A) MERELY OBSERVED THAT THE DATE O F AGREEMENT AND DUE DATE OF PAYMENT MENTIONED IN THE SEIZED DOC UMENT FELL IN THE YEAR UNDER CONSIDERATION AND THEREFORE, THERE W AS NO REASON TO CONSIDER THE PLEA OF THE ASSESSEE THAT THE PAYMENT COULD HAVE BEEN MADE IN THE SUBSEQUENT YEAR. THIS OBSERVATION OF TH E LD. CIT(A) IS WHOLLY AGAINST THE FACTS AS DISCUSSED, WHICH FACTS HAVE NOT BEEN REBUTTED BY THE LD. CIT(A). 16. THERE IS NO REBUTTAL TO THE ASSESSEES CONTENTI ON THAT ONLY TOKEN AMOUNTS OF RS.20,000/- AND RS.30,000/- WERE P AID ON 17.09.2004 & 21.12.2004 RESPECTIVELY, WHICH FELL IN THE F.Y. 2004- 05. THE PAYMENT OF RS.8,00,000/- WAS MADE VIDE DEMA ND DRAFT ISSUED BY UCO BANK ON 19.05.2005, WHICH FELL IN THE F.Y. 2005-06. THE RECEIPTS ISSUED BY THE SOCIETY QUA THE THREE PA YMENTS WERE PLACED ON RECORD BY THE ASSESSEE. HOWEVER, THE PAYM ENT OF RS. 8,00,000/- HAS STILL BEEN TAKEN BY THE LD. CIT(A) T O HAVE BEEN MADE IN F.Y. 2004-05, QUITE AGAINST THE RECORD AND WITHO UT ANY BASIS. IT REQUIRES MENTION HERE THAT THIS AMOUNT OF RS. 8,00 ,000/- WAS PAID AT THE TIME OF REGISTRATION OF THE SALE DEED WITH T HE REGISTERING AUTHORITY. 17. AS AGAINST THE ABOVE, THE SALE DEED EXECUTED ON 18.05.2005 SPECIFIES IN NO UNCERTAIN TERMS, THE PURCHASE CONSI DERATION TO BE AT RS.8,50,000/-. THIS SALE DEED IS ADMITTEDLY A REGIS TERED ONE. THE CONTENTS THEREOF ARE DULY SWORN BEFORE THE MAGIST RATE. AS AGAINST THIS DOCUMENT, THERE IS NOTHING ON RECORD, OTHER TH AN THE ABOVE DISCUSSED ASSUMPTIONS AND PRESUMPTIONS OF THE AO AN D THE LD. CIT(A), WHICH ALSO ARE CONTRADICTORY INTER-SE. THER E IS NO MATERIAL ON RECORD TO SUGGEST ANY UNDERSTATEMENT OF THE PURCHA SE PRICE OF THE FLAT BY THE ASSESSEE. THE PURCHASE VALUE STANDS AC CEPTED AS SUCH BY THE REGISTERING AUTHORITY TOO. BESIDES, THE PROV ISIONS OF SECTION 50C OF THE ACT ALSO DO NOT STAND INVOKED. 18. THUS, LOOKED AT FROM ANY ANGLE, THE ORDER UNDER APPEAL IS UNSUSTAINABLE IN LAW. IT HAS BEEN PASSED ON MERELY ASSUMPTIONS AND PRESUMPTIONS, WITHOUT ANY CORROBORATIVE EVIDEN CE TO SUPPORT THE OBSERVATIONS MADE. THE SAME, IS ACCORDINGLY, RE VERSED. THE ADDITION OF RS.10,50,000/- IS, ACCORDINGLY, DELETED . ITA NO.507(ASR)/2014 ASSESSMENT YEAR: 2005-06 12 9. THE AFORESAID ORDER HAS NOT BEEN SHOWN TO HAVE B EEN EITHER RECTIFIED OR UPSET ON APPEAL, OR EVEN STAYED. THE F ACTS IN THE PRESENT CASE HAVE ALSO NOT BEEN STATED TO BE ANY DIFFERENT FROM THOSE PRESENT THEREIN. 10. THEREFORE, FOLLOWING THE ORDER OF THIS BENCH OF THE TRIBUNAL, DATED 26.02.2016, IN THE CASE OF RAJINDER KUMAR HAK VS. ITO JAMMU, PASSED IN ITA NO.507(ASR)/2014 FOR THE ASSESSMENT YEAR 200 5-06, WHERE THE FACTS AND CIRCUMSTANCES OF THE CASE ARE EXACTLY SIM ILAR, WE ALLOW THE APPEAL OF THE PRESENT ASSESSEE. 11. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/08/2016 SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 01/08/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:SH. VIJAY GUPTA, GANDHI NAGAR, JAMM U. 2. THE ITO, WARD-1(3), JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.