ITO, Mohali V. Sh. Bimal Suri, Baltana

ITA 664/CHANDI/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9103 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 09-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Unexplained investment; Business income; Loose papers; Cost of acquisition
• Section: 133A; 153A; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.664/CHD/2011 (ASSESSMENT YEAR : 2006-07) THE INCOME TAX OFFICER, VS. SHRI BIMAL SURI, WARD-6 (4), SCF 1, HIGHLAND SOCIETY, MOHALI. BALTANA, ZIRKPUR. PAN: ATAPS9677E AND ITA NO.680/CHD/2011 (ASSESSMENT YEAR : 2006-07) THE A.C.I.T., VS. SHRI SHEKHAR CHAWLA, CIRCLE 4(1), H.NO.1492, SECTOR 40-C, CHANDIGARH. CHANDIGARH. PAN: ADPPC5364D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MITTAL, DR RESPONDENT BY : SHRI AJAY JAIN DATE OF HEARING : 23.08.2016 DATE OF PRONOUNCEMENT : 20.09.2016 O R D E R PER BHAVNESH SAINI, J.M . : BOTH THE DEPARTMENTAL APPEALS ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF LEARNED COMMISSIONE R OF INCOME TAX (APPEALS), CHANDIGARH DATED 18.3.2011 FO R 2 ASSESSMENT YEAR 2006-07 AGAINST THE TWO DIFFERENT ASSESSEES. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES SUB MITTED THAT THE ISSUE IS SAME IN BOTH THE APPEALS AND BOTH OF THEM HAVE MAINLY ARGUED IN THE CASE OF ASSESSEE SHR I BIMAL SURI AND SUBMITTED THAT THE ORDER IN THIS CAS E MAY BE FOLLOWED IN THE CASE OF OTHER ASSESSEE SHRI SHEK HAR CHAWLA. THE APPEALS ARE, THEREFORE, DECIDED AS UND ER : ITA NO.664/CHD/2011(BIMAL SURI) : 3. THE REVENUE HAS FILED THE PRESENT APPEAL ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS.1,12,04,166/- ON ACCOUNT OF INVESTMENT IN PURCHA SE OF LAND OF 25K 10M AT LOHAGARH MADE BY THE A.O. IN TH E HANDS OF THE ASSESSEE (BEING L/3 RD SHARE) ON THE BASIS OF SAID AGREEMENT ON ACCOUNT OF UNEXPLAINED SOURCES OF INVESTMENT IN THE SAID PROPERTY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDI TION OF RS.1,44,50,000/- ON ACCOUNT OF PROFIT ON SALE OF LA ND OF 3 25K 10M AT LOHAGARH TO M/S PARSAV COLONIZERS & CONSULTANTS (P) LTD. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF PROFIT ON SALE OF LAND, THE ASSESSEE HAVING I/3 RD SHARE IN SUCH PROFIT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS.19,65,625/- ON ACCOUNT OF PROFIT ON SALE OF LAND TO M/S GEE CITY BUILDERS (P) LTD. MEASURING 8K 10M I.E. L/ 3 RD TO TOTAL LAND OF 25K 10M). 4. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDUCTED BY RANGE-4, CHANDIGARH AT THE BUSINESS PREMISES OF CHANDIGARH OVERSEAS PRIVATE LI MITED AND ITS SISTER CONCERNS. DURING THE COURSE OF SURV EY, CERTAIN LOOSE PAPERS, PHOTOCOPIES OF AGREEMENT AND INCRIMINATING DOCUMENTS WERE FOUND AND IMPOUNDED FR OM THE BUSINESS PREMISES OF CHANDIGARH OVERSEAS PRIVAT E LIMITED AND FROM THE EXAMINATION OF THESE DOCUMENTS , IT WAS FOUND THAT THE ASSESSEE WAS ALSO PARTY TO VARIO US AGREEMENTS FOUND DURING THE COURSE OF SURVEY. THE ASSESSING OFFICER MADE THE ABOVE ADDITIONS ON THE B ASIS OF PHOTOCOPIES OF THE AGREEMENT FOUND FROM THE PREMISE S OF CHANDIGARH OVERSEAS PRIVATE LIMITED. THE DETAILS O F DOCUMENTS HAVE BEEN MENTIONED IN THE IMPUGNED ORDER AS BELOW : I) AGREEMENT TO SELL DATED 29.1.2005. II) BACKSIDE OF PAGE 2 OF THE AGREEMENT TO SELL DATED 29.1.2005. III) REGISTERED SALE DEED FOR 8 KANAL 10 MARLAS. 4 IV) AGREEMENT TO SELL DATED 19.4.2005. V) AGREEMENT TO SELL DATED 29.6.2005. 5. THE GROUND NO.1 RAISED BY THE REVENUE IS GENERAL AND NEEDS NO ADJUDICATION. 6. ON GROUND NO.2, THE ASSESSING OFFICER MADE ADDITION OF RS.1,12,04,166/-. 7. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT ONE OF THE IMPO UNDED DOCUMENT IS AN AGREEMENT TO SELL DATED 29.1.2005 EXECUTED BETWEEN THE SELLERS 1. SMT.PUSHPINDER KAUR, W/O SH. DIDAR SINGH. 2. SHRI GURTEJ SINGH, S/O SHRI DIDAR SINGH. 3. SHRI PRITIPAL SINGH, S/O SHRI DIDAR SINGH, R/O 44, EXT. GURU TEG BAHADUR NAGAR, JALANDHAR. AND THE BUYERS 1. SHRI GULSHAN RAI. 2. SHRI JAGPAL SINGH. 3. SH. BIMAL SURI (THE ASSESSEE). 8. AS PER THIS AGREEMENT, THE SELLER HAD AGREED TO SELL LAND 25 KANALS 10 MARLAS SITUATED AT VILLAGE LOHGAR H AT THE RATE OF RS.1,18,00,000/- PER ACRE TO THE BUYERS . THE ASSESSEE IS THE ONE OF THE BUYER AND TOTAL CONSIDER ATION COMES TO RS.3,76,12,500/-. THE ASSESSING OFFICER AL SO NOTICED FROM THE BACKSIDE OF AGREEMENT TO SELL THAT THE SELLERS HAVE RECEIVED AN AMOUNT OF RS.2,62,50,000/- UPTO 5 15.06.2005. THE ASSESSING OFFICER FURTHER, NOTICED FROM THE REGISTERED SALE DEED THAT THE SELLERS HAVE SOLD L/3 RD SHARE OF 25 KANAL 10 MARLA I.E. 8 KANAL 10 MARLAS T O S/SHRI JAGPAL SINGH, GULSHAN RAI, SHEKHAR CHAWLA AN D BIMAL SURI (ASSESSEE) FOR RS.42.50 LACS ONLY. THE DEED WAS REGISTERED IN THE NAME OF BUYER IN TWO PARTS, O NE HALF IN THE NAME OF S/SHRI GULSHAN RAI SATIJA, JAGPAL SI NGH AND BIMAL SURI AND REMAINING ONE HALF IN THE NAME O F SHRI SHEKHAR CHAWLA ON 17.06.2005. THE ASSESSING OFFICER OBSERVED THAT THERE IS A HUGE DIFFERENCE IN VALUE SHOWN IN THE REGISTERED SALE DEED AND AGREEMENT TO SELL AND MADE ADDITION OF RS.1,12,04,166/-. THE ASSESSIN G OFFICER REPRODUCED THE ASSESSEE'S EXPLANATION IN PA RA 4 OF THE ASSESSMENT ORDER BUT DID NOT ACCEPT THE EXPLANA TION OF ASSESSEE THAT THE PROPERTY WAS PURCHASED BY THEM AT THROW AWAY PRICE IN VIEW OF CASH RECEIPTS OF RS.2,62,50,000/- MENTIONED IN IMPOUNDED DOCUMENTS A ND CASH RECEIPTS OF RS.2.10 CRORES MENTIONED ON THE BA CK SIDE OF PAGE 2 OF THE AGREEMENT TO SELL. 9. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSING OFFICER PRODUCED DOCUMENT NOS.18 & 19 OF ANNEXURE B2, PAGE 33 OF ANNEXURE BL, ON WHICH RELIANCE WAS PLACED BY THE DEPARTMENT WHILE MAKING ADDITION OF UNEXPLAINED INVESTMENT IN LAND AT VILLAGE LOHGARH. THE COPIES OF DOCUMENTS WERE SUPPLIED TO THE COUNSEL OF THE ASSESSEE AND HE CLEARLY DENIED THAT THESE DOCUMENTS ARE FORGED DOCUMENTS AND NOT RELATED TO THE ASSESSEE AN D HE 6 ALSO STRONGLY ARGUED THAT THESE DOCUMENTS ARE THE PHOTOCOPIES AND NOT FOUND FROM THE ASSESSEES PREMI SES. FURTHER, HE ALSO EXPLAINED THE INCONSISTENCY IN THE ABOVE DOCUMENTS AS BELOW: 10. THESE DOCUMENTS ARE NOT IN ANY WAY RELATED TO ASSESSEE AND THESE WERE FORGED DOCUMENTS AND THE ASSESSEE HAS NOT EXECUTED DOCUMENT NOS.18 & 19. MOREOVER, FROM THE PERUSAL OF PHOTOCOPIES OF DOCUME NTS, IT IS CLEAR THAT THE AGREEMENT IS NOT ON STAMP PAPE R AND SIGNATURE OF ALL PARTIES TO AGREEMENT ARE MISSING. WE ALSO SUBMIT THAT PART OF CONTENTS MENTIONED IN PAGE 33 O F ANNEXURE BL HAS BEEN COPIED ON DOCUMENT NO.19 OF ANNEXURE B2 AND, THEREFORE, IT IS CLEAR THAT SOMEON E HAS FORGED THE CONTENTS AND PREPARED DOCUMENT NOS.18 & 19. FURTHER, IT WAS NOT FOUND FROM THE PREMISES OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT EXAMINED A NY PARTY TO THE AGREEMENT AND NO ENQUIRY HAS BEEN CONDUCTED. FURTHER THE ASSESSEE AND OTHER BUYERS H AVE PURCHASED ONLY 8 KANAL & 3 MARLAS OUT OF TOTAL LAND MEASURING 25 KANALS & 10 MARLAS AND ASSESSEE IS NOT AWARE ABOUT THE BALANCE LAND SOLD BY MRS. PUSHPINDE R & OTHERS AND CONSIDERATION RECEIVED BY SELLERS. FURT HER THE ASSESSING OFFICER HAS NOT SUPPLIED THE COPIES OF RE TURNS OF SELLERS. FURTHER THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS ALREADY EXPLAINED THAT T HE ASSESSEE AND OTHER 2 PERSONS, NAMELY S/SHRI JAGPAL SINGH AND BIMAL SURI HAD AGREED TO PURCHASE 25 KANALS 11 7 MARLAS LAND FOR CONSIDERATION OF RS.1.20 CRORE AND PAID BIANA OF RS.40 LACS AND THE ASSESSEE AND OTHER 2 PERSONS COULD NOT ARRANGE MONEY AND AGREED TO PURCHASE ONLY 1/3 SHARE OF LAND FOR CONSIDERATION OF RS.41.25 LAKHS I N ORDER TO SAVE HIS ORIGINAL BIANA. THE ASSESSING OFFICER I S ONLY RELYING ON PHOTOCOPIES OF FORGED DOCUMENTS, WHICH W ERE FOUND FROM THE PREMISES OF THIRD PARTY. 11. THAT THE ASSESSEE HAD NEVER EXECUTED ANY AGREEMENT TO SELL DATED 29.1.2005 FOR PURCHASE OF 2 5 KANALS 18 MARLAS @ RS.1.18 CRORES PER ACRE FOR THE TOTAL CONSIDERATION OF RS.3,76,00,000/-. HOWEVER, THE AS SESSEE HAS ENTERED INTO AGREEMENT TO SELL FOR THE PURCHASE OF 25 KANALS 18 MARLAS FOR THE TOTAL CONSIDERATION OF RS. 1.20 CRORES WITH MRS. PUSHPINDER KAUR, S/SHRI GURTEJ SIN GH & PRITPAL SINGH. UNDER THE SAID AGREEMENT TO SELL, I .E. FOR TOTAL CONSIDERATION OF RS.1.20 CRORES, THE ASSESSEE ALONG WITH OTHER PERSONS, NAMELY, S/SHRI JAGPAL SINGH AND GULSHAN RAI SATIJA. THE ASSESSEE AND OTHER TWO PERS ONS HAS PAID TOTAL SUM OF RS.40 LACS IN EQUAL PROPORTIO N AS ON 29.01.2005. THE ASSESSING OFFICER HAS MADE ADDITION OF RS.1,12,04,166/- ON THE BASIS OF FORGED PHOTOCOPY O F AGREEMENT OF TOTAL CONSIDERATION OF RS.3,76,00,000/ -, WHICH THE ASSESSEE AND TWO OTHER PERSONS HAS NEVER EXECUTED. IT WAS FURTHER SUBMITTED THAT THE PHOTOC OPIES OF THE DOCUMENTS WERE NOT FOUND AT THE PREMISES OF ASSESSEE AND IT WAS FOUND DURING THE COURSE OF SURV EY CONDUCTED AT THE PREMISES OF THIRD PARTY, I.E., NOT PARTY TO 8 THE AGREEMENT. FURTHER, THE ASSESSING OFFICER COL LECTED THE EVIDENCE AT THE BACK OF ASSESSEE AND NO OPPORTU NITY WAS GIVEN TO THE ASSESSEE TO CROSS EXAMINE THE PERS ONS WITH WHOM THE ALLEGED AGREEMENT WAS ENTERED INTO. T HE ASSESSEE HAD ALREADY DENIED THE CONTENTS OF AGREEME NT ON THE BASIS OF WHICH THE ADDITION WAS MADE. THE ASSE SSING OFFICER HAD NOT MADE ANY ENQUIRY FROM ANY OF THE PA RTIES TO VERIFY THE TRUTH. THE ASSESSEEE ALONGWITH OTHER TWO PERSONS TO THE AGREEMENT HAS PAID IN PREVIOUS FINAN CIAL YEAR 2004-05 RS.40 LACS IN CASH AGAINST THE TOTAL CONSIDERATION OF RS.1.20 CRORES AND DUE TO FINANCIA L CONSTRAINT, IT WAS BEYOND THE CONTROL OF ASSESSEE A ND OTHER TWO PARTIES TO FULFILL THE BALANCE CONSIDERAT ION OF RS.80 LACS AND THEY OFFERED MR. SHEKHAR CHAWLA TO T AKE 50% SHARE OF THE DEAL. THE ASSESSEE AND OTHER PERSO NS TO THE AGREEMENT COULD NOT PAY THE BALANCE SUM AS PER TERMS OF AGREEMENT AND THE SELLER AGREED TO SELL L/3 RD OF LAND IN THE NAME OF ASSESSEE AS WELL AS OTHER PERSONS TO TH E AGREEMENT. SO, THE LAND CONSISTING OF 8 KANALS 10 MARLAS WAS REGISTERED IN THE NAME OF S/SHRI GULSHAN RAI, JAGPAL SINGH & BIMAL SURI (HAVING 50% SHARE) AND SHRI SHEK HAR CHAWLA (HAVING 50% SHARE) FOR THE TOTAL SALES CONSIDERATION OF RS.42,50,000/-. THE REGISTERED SA LE DEED FOR THE SAME WAS EXECUTED AS ON 17.06.2005. THE CO PY OF THE REGISTRATION DEED IS ENCLOSED HEREWITH FOR YOUR KIND REFERENCE. THE REST OF AREA OF LAND I.E. 2/3 RD OF THE TOTAL LAND WAS NOT SOLD TO ASSESSEE AND THE ASSESSEE IS N OT AWARE OF THE FACTS TO WHOM AND AT WHAT RATE THE SAI D REST 9 OF LAND WAS SOLD. THE ASSESSING OFFICER MENTIONED THAT THE SELLERS HAD FILED THEIR RETURNS OF INCOME WITH DCIT JALANDHAR SHOWING THE SALE CONSIDERATION RECEIVED B Y THEM AT RS.3.76 CRORE. IN THIS REGARD, THIS FACT W AS NEVER CONFRONTED TO ASSESSEE DURING THE COURSE OF ASSESSM ENT PROCEEDINGS AND MOREOVER THE ASSESSEE HAD PURCHASED VERY SMALL SHARE IN TOTAL LAND AND WAS NOT AWARE AB OUT THE REST OF LAND SOLD BY SELLERS AND NOWHERE IT IS MENTIONED THAT THE ASSESSEE HAS PAID MORE AMOUNT TH AN SHOWN IN REGISTERED SALE DEED. FURTHER, THE COUNSEL ARGUED THAT THE PRESUMPTION IS ONLY WITH REGARD TO THE PERSON FROM WHOSE POSSESSION AND CONTROL THE BOOKS OF ACCOUNTS AND DOCUMENTS ARE FOUND. MOREOVER, THIS PRESUMPTION IS REBUTTABLE PRESUMPTION. THE PRESUMPT ION WITH RESPECT OF PHOTOCOPY OF DOCUMENTS FOUND FROM T HE THIRD PARTIES PREMISES COULD NOT BE MADE AGAINST ASSESSEE. 12. THE ASSESSEE ALONG WITH TWO OTHER PERSONS HAD PURCHASED LAND MEASURING 4 KANALS 5 MARLAS FOR CONSIDERATION OF RS.21.25 LAKHS THROUGH REGISTERED SALE DEED. THE COUNSEL ALSO PLACED RELIANCE ON THE JUDG MENT OF KERALA HIGH COURT IN THE CASE OF CIT VS. SMT. K.C. AGNES 128 TAXMANN 848 (KERALA). THE AMOUNT STATED IN THE SALE DEED CANNOT BE IGNORED ON THE BASIS OF AGREEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACT UALLY PAID. ON THE BASIS OF AGREEMENT TO SELL, IT CANNOT BE 10 CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. 13. THE COUNSEL OF ASSESSEE ALSO PLACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM, 282 ITR 259 CONCLUDING THAT IN ABSENCE OF ANY INDEPENDENT ENQUIRY, ASSESSING OFFIC ER WAS NOT JUSTIFIED IN MAKING ADDITION TOWARDS PURCHASE CONSIDERATION OF LAND MERELY ON THE BASIS OF STATEM ENT OF SELLER, WHO GAVE CONFLICTING STATEMENTS. HE ALSO ST ATED THAT THAT THE HON'BLE SUPREME COURT AFFIRMED THE DE CISION OF MADRAS HIGH COURT QUOTED SUPRA. 14. THE COUNSEL ALSO PLACED RELIANCE ON FOLLOWING JUDGEMENTS :- - RAM SAROOP SAINI, HUF VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AT 15 SOT 470 (DEL). IN THIS CASE THE HON'BLE TRIBUNAL CONCLUDED AS UNDER: - MOOSA S MADHA & AZAM S MADHA VS CIT REPORTED IN 89 ITR 65(SC). - PRARTHANA CONSTRUCTION P LTD VS DCIT 70TTJ 122. - CIT VS RAM KUMAR 163 TAXMAN 253 (P&H) - 19 TTJ 546, 77 TTJ (MUMBAI)(TM) (1) , 59TTJ 574. 15. THE LEARNED CIT (APPEALS) CONSIDERING THE MATERIAL ON RECORD DELETED THE ENTIRE ADDITION. HI S 11 FINDINGS IN PARAS 20 TO 23 OF THE IMPUGNED ORDER AR E REPRODUCED AS UNDER : (A) THE INCRIMINATING DOCUMENTS WERE NOT FOUND FROM THE ASSESSEES PREMISES AS THESE DOCUMENTS WERE FOUND F ROM CHANDIGARH OVERSEAS PRIVATE LIMITED & THE ASSESSING OFFICER HAS NOT PROVED ANY CONNECTION WITH THE APPELLANT & THEREFORE ONUS WAS ON THE DEPARTMENT TO PROVE THAT THESE DOCU MENT BELONG TO APPELLANT. (B) THE DOCUMENTS FOUND ARE ONLY PHOTOCOPIES & NO O RIGINAL DOCUMENTS WERE FOUND & AS SUPREME COURT DECISION IN CASE OF MOOSA S MADHA & AZAM S MADHA VS CIT 89 ITR 65(SC ) THE PHOTOCOPIES HAVE LITTLE EVIDENTIARY VALUE. (C) THE SURVEY TEAM & ASSESSING OFFICER HAS NOT MAD E ANY ENQUIRY FROM THE SELLERS , BUYERS PARARSAV COLONISE RS & CONSULTANT LIMITED & GEE CITY BUILDERS PVT LIMITED WITH RESPECT TO PURCHASE OF ANY LAND FROM THE APPELLANT OR FROM THE ORIGINAL SELLERS DIRECTLY AND CONSIDERATION PAI D BY APPELLANT & OTHER BUYERS & SIMPLY RECORDED THE STAT EMENT OF APPELLANT DURING COURSE OF ASSESSMENT PROCEEDING S . (D) THE ASSESSING OFFICER RELIED ON THE RETURN OF I NCOME FILED BY THE BUYERS & THERE WERE NO DETAILS WITH RESPECT TO SALE CONSIDERATION RECEIVED FROM ORIGINAL BUYERS & NEW B UYERS & DURING THE COURSE OF APPELLATE PROCEEDINGS NO SUC H RETURNS WERE PRODUCED. (E) THE APPELLANT & OTHER BUYERS HAD NOT PURCHASED THE ENTIRE LAND AS SHOWN IN AGREEMENT TO SELL DATED 29-01-2005 & EVEN IN REGISTERED SALE DEED 1/3 SHARE OF TOTAL LAN D WAS PURCHASED BY ORIGINAL BUYERS & OTHER PARTY & THEREF ORE IT IS CLEAR THAT THEY HAD NOT ACTED UPON THE AGREEMENT TO SELL DATED 29-01-2005. 12 (E) THE AGREEMENT RELIED UPON BY AO I.E. DOCUMENT N O 18 & 19 OF ANNEXURE B 2 IS NOT ON STAMP PAPER & SIGNATUR E OF ALL PARTIES TO AGREEMENT ARE MISSING & MOREOVER DOCUMEN T NO 33 OF ANNEXURE B L(AGREEMENT)IS ON THE STAMP PAPER FOR SALE OF SAME LAND & NO CONSIDERATION WAS MENTIONED ON TH IS DOCUMENT. (F) THE PART OF CONTENTS MENTIONED IN PAGE 33 OF ANNEXURE BL HAS BEEN COPIED ON DOCUMENT NO 19 OF ANNEXURE B2 & THEREFORE PROBABILITY OF FORGING THE CONTENTS TO PREPARE DOCUMENT NO. 18 & 19 CANNOT BE ENTIRELY RULED OUT. 21 FURTHER THE ITAT, I DELHI BENCH JUDGMENT IN CAS E OF RAM SAROOP SAINI, HUF VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AT 15 SOT 470 (DEL) HAS DEALT THE CASE RELATING TO AGREEMENT TO SELL, STATEMENT & UNDERSTATEMENT OF SA LE CONSIDERATION CASE. IN THIS CASE THE HON'BLE TRIBUN AL CONCLUDED AS UNDER: IN THE ABSENCE OF ANY MATERIAL, UNDERSTATEMENT OF S ALE CONSIDERATION COULD NOT BE IMPLIED IN RESPECT OF CE RTAIN TRANSACTIONS OF SALE OF LAND MERELY ON THE BASIS OF UNVERIFIED STATEMENT OF A PROPERTY AGENT AND COPIES OF AGREEME NTS TO SELL RELATING TO SOME OTHER TRANSACTIONS; UNDERSTATEMENT OF SALE CONSIDERATION CANNOT BE SAID TO HAVE BEEN ESTABLISH ED EVEN IN RESPECT OF THOSE TRANSACTIONS IN RELATION TO WHICH AO WAS IN POSSESSION OF COPIES OF AGREEMENT TO SELL WHICH DIS CLOSED HIGHER SALE CONSIDERATION AS THE PURCHASERS HAVE NOT SIGNE D ON THE FIRST PAGE OF THE DOCUMENTS, REQUISITE COURT FEE ST AMP IS NOT AFFIXED, AO DID NOT POSSESS THE ORIGINALS AND THE A SSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CROSS-EXAMINE THE PROP ERTY AGENT 13 WHO HAD ALLEGEDLY MADE AN ADVERSE STATEMENT AND, TH EREFORE, NO ADDITION CAN BE SUSTAINED. ' 22 IN VIEW OF ABOVE DISCUSSION & JUDGEMENT GIVEN B Y KERALA HIGH COURT REPORTED AT 128 TAXMAN 848. AMOUN T STATED IN THE SALE DEED CAN NOT BE IGNORED ON THE BASIS OF AG REEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACTUALLY PAI D. ON THE BASIS OF AGREEMENT TO SELL IT CAN NOT BE CONCLUDED THAT T HE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT & ALSO PL ACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM 282 ITR 259 (AFFIRMED BY SUPREME C OURT) CONCLUDED THAT IN ABSENCE OF ANY INDEPENDENT ENQUIR Y, AO WAS NOT JUSTIFIED IN MAKING ADDITION TOWARDS PURCHASE CONSI DERATION OF LAND. 23. THE ADDITION SO MADE IS THEREFORE DELETED, ALLO WING ASSESSEE'S APPEAL ON THIS GROUND. 16. ON GROUND NO.3, THE ASSESSING OFFICER MADE ADDITION OF RS.1,44,50,000/-. THE ASSESSING OFFICE R ALSO NOTICED THAT THE DOCUMENT NOS.15 AND 16 OF ANNEXURE B-2 IS AN AGREEMENT TO SELL DATED 19.04.2005 OF THE SAM E LAND I.E. 25 KANAL 10 MARLAS AND AS PER THESE DOCUMENTS, THE LAND HAS BEEN FURTHER AGREED TO BE SOLD TO M/S PARS AV COLONISERS AND CONSULTANTS PVT. LTD. AT A RATE OF 2,54,00,000/- PER ACRE AND ALSO NOTICED THAT IT IS MENTIONED IN THE AGREEMENT THAT AN AMOUNT OF RS.75. 00 LACS HAD BEEN PAID AS ADVANCE MONEY BY PARSAV COLONISERS, DIRECTOR SHRI SHEKHER CHAWLA, WHICH INC LUDES RS.3.00 LACS BY CHEQUE NO.165251 OF ANDHRA BANK AND RS.72.00 LACS BY CASH. THIS IS ALSO MENTIONED THAT AN 14 AMOUNT OF RS.25 LACS WILL BE PAID BY 15.4.2005 AND THE DATE OF REGISTRY HAD BEEN FIXED ON 15.6.2005. 17. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, INFORMATION WAS CALLED UNDER SECTION 133(6) OF THE ACT FROM ANDHRA BANK, SECTOR 34-A, CHANDIGARH BRANCH. IT WAS CONFIRMED FROM THE INFORMATION RECEIVED THAT TH E CH. NO.165251 HAD BEEN ISSUED IN FAVOUR OF SMT.PUSHPIND ER KAUR (SELLER) BY DEBIT TO THE ACCOUNT OF M/S PARSAV COLONISERS. IT ESTABLISHED BEYOND DOUBT THAT THE AGREEMENT TO SELL IN QUESTION WAS CORRECT AND THE E NTIRE AMOUNT OF CONSIDERATION AT RS.8,09,62,500/- PROVED. 18. THUS THE SELLERS I.E. S/SHRI GULSHAN RAI SATIJ A, JAGPAL SINGH AND BIMAL SURI HAVE EARNED PROFIT ON S ALE OF THIS LAND AS BELOW:- SALE CONSIDERATION AS PER AGREEMENT TO SELL @ RS. 2,54,000 PER ACRE 8K 10 M TO M/S PARSAV COLONISERS THROUGH ITS MANAGING DIRECTOR SH. SHEKHAR CHAWLA 8,09,62,500/- LESS: COST OF ACQUISITION AS MENTIONED IN PARA A(-) 3,76,12,500/- PROFIT 4,33,50,000/- 1/3 RD SHARE OF THE ASSESSEE 1,44,50,000/- 19. THE ASSESSING OFFICER MAINLY RELIED UPON THE IMPOUNDED DOCUMENT NOS.15 & 16 OF ANNEXURE B2 FOUND FROM THE PREMISES OF THIRD PARTY. THE COUNSEL DURIN G THE COURSE OF APPELLATE PROCEEDINGS SUBMITTED THAT THE 15 ASSESSEE HAD NOT ENTERED INTO ANY AGREEMENT DATED 19.4.2005 AND THAT THESE DOCUMENTS WERE FORGED & BO GUS AND WERE NOT FOUND FROM THE PREMISES OF ASSESSEE. FURTHER THE DEPARTMENT DID NOT MAKE ANY ENQUIRY FRO M M/S PARSAV COLONISERS & CONSULTANT LIMITED TO KNOW THE TRUTH. 20. DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E COUNSEL OF ASSESSEE SUBMITTED THAT M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. HAD NOT PURCHA SED ANY LAND AT LOHGARH FROM THE ASSESSEE & OTHER TWO PERSONS TILL DATE AND THEREFORE, THE QUESTION OF PR OFIT ON SALE OF LAND AT LOHGARH TO M/S PARSHAV COLONISERS A ND CONSULTANTS PVT. LTD. DOES NOT ARISE. THE DEPARTMEN T RELIED UPON THE AGREEMENT AND FROM THE PARA-C OF ASSESSING OFFICERS ORDER, IT IS CLEAR THAT THE DEP ARTMENT HAS CALCULATED THE PROFIT ONLY ON THE BASIS OF AGRE EMENT WITHOUT ASCERTAINING THE FACT THAT WHETHER THE LAND IN QUESTION WAS ACTUALLY SOLD TO M/S PARSHAV COLONISER S AND CONSULTANTS PVT. LTD OR NOT. THE ASSESSEE HEREBY UNDERTOOK THAT NO LAND AT LOHGARH WAS EVER SOLD TO M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. THER E IS NO EVIDENCE WITH THE DEPARTMENT THAT THE LAND WAS ACTU ALLY PURCHASED BY M/S PARSHAV COLONISERS AND CONSULTANTS PVT. LTD. FROM THE ASSESSEE. FURTHER, IT WAS SUBMI TTED THAT THE ASSESSEE HAD NOT SOLD ANY LAND AT LOHGARH TO PARSHAV COLONIZERS AND CONSULTANTS PVT. LTD. TILL D ATE AND THEREFORE, THE QUESTION OF PROFIT ON SALE OF LAND D OES NOT 16 ARISE. WITHOUT PREJUDICE TO AFORESAID SUBMISSIONS, THE ASSESSEE SUBMITTED THAT THE PROFIT ON SALE OF LAND CAN ONLY BE DETERMINED AFTER COMPLETION OF SALE TRANSACTION AND NOT ONLY ON THE BASIS OF ADVANCE. FURTHER THE ASSESSING OFFICER RELIED UPON THE PAYMENT RECEIVED FROM THE P ARSHAV COLONIZERS & CONSULTANTS PRIVATE LIMITED AND THERE IS NO RELATION BETWEEN PAYMENT RECEIVED AND TERMS & CONDI TION OF AGREEMENT RELIED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER RELIED UPON PHOTOCOPY OF FORGED & BOGUS DOCUMENTS WHICH DO NOT RELATE TO ASSESSEE AND NOT EXECUTED BY ASSESSEE AND WHICH WERE COLLECTED AT TH E BACK OF ASSESSE FROM THE PREMISES OF THIRD PARTIES NOT R ELATED TO ASSESSEE. FURTHER THE ASSESSING OFFICER HAD NOT MADE ANY INQUIRY FROM ORIGINAL SELLERS, BUYERS & COMPANI ES TO KNOW THE TRUTH. FURTHER THE ASSESSING OFFICER HAS N OT MADE ANY ENQUIRY FROM PARSHAV COLONISER CONSULTANTS PRIVATE LIMITED TO KNOW THE TRUTH AND PURCHASE CONSIDERATION PAID IF ANY TO ASSESSEE AND OTHER ALL EGED OWNERS. THE ASSESSEE HAS NOT SOLD ANY LAND TO PARSH AV COLONISERS CONSULTANTS PRIVATE LIMITED AND, THEREFO RE, QUESTION OF PROFIT DOES NOT ARISE. 21. THE LEARNED CIT (APPEALS), HOWEVER, DELETED TH E ENTIRE ADDITION. HIS FINDINGS IN PARA 11 OF THE OR DER ARE REPRODUCED AS UNDER: 11 I HAVE GONE THROUGH THE ASSESSMENT ORDER & SUBMISSION MADE BY APPELLANT & IT IS CLEAR THAT THE AO HAS CALCULATED THE PROFIT ON THE BASIS OF PHOTOCOPIES O F AGREEMENT TO 17 SELL WITHOUT ASCERTAINING THE FACT WHETHER THE DEAL HAS MATURED OR NOT. IN THE ASSESSMENT ORDER IN PARA 5 IT IS MENTIO NED ADVANCE HAS BEEN GIVEN & DATE OF REGISTRY HAS BEEN FIXED ON 15- 06-2005 & IT IS SHOCKING THAT NO EFFORT WAS MADE TO KNOW THE COMPLE TION OF TRANSACTION & SIMPLY ON THE FACT THAT CHEQUE OF RS 3 ISSUED IN FAVOUR OF PUSHPINDER KAUR HAS BEEN ISSUED BY DEBITI NG THE ACCOUNT OF PARSAV COLONISERS ADDITION HAS BEEN MADE. THE AS SESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE SAL E OF LAND TO PARSAV COLONISERS & CONSULTANT PRIVATE LIMITED & IN VIEW OF MY OBSERVATION IN RESPECT OF PHOTOCOPIES OF DOCUMENT , IMPOUNDED FROM THIRD PARTY PREMISES, ABSENCE OF ENQUIRY IN PR ECEDING PARAS THERE IS NO JUSTIFICATION TO SUSTAIN THE ADDITION O N ACCOUNT OF SALE OF LAND TO PARSAV COLONISERS & CONSULTANT PRIVATE L IMITED. THE ADDITION SO MADE IS DELETED, ALLOWING ASSESSEE'S PL EA ON THIS GROUND. 22. ON GROUND NO.4, THE ASSESSING OFFICER MADE ADDITION OF RS.19,65,625/-. THE ASSESSING OFFICER ALSO OBSERVED FROM THE IMPOUNDED DOCUMENTS 23-30 OF ANNEXURE B-2 THAT ON THE BACK SIDE OF DOCUMENT NO. 30 AN AMOUNT OF RS.1,30,01,100/- HAS BEEN RECEIVED AS ADV ANCE MONEY BY S/SHRI GULSHAN RAI, JAGPAL SINGH, BIMAL SU RI (ASSESSEE) & SHEKHAR CHAWLA. 23. AS PER DETAILS AVAILABLE ON BACK SIDE OF DOCUMENT NO.30 OF ANNEXURE B:2, AN AMOUNT OF RS.22,00,000/- BY CHQUE HAS BEEN RECEIVED BY SHRI SHEKHAR CHAWLA, AN AMOUNT OF RS.22,00,000/- BY CHEQ UE HAS BEEN RECEIVED BY THE SELLER, I.E. PARTY NO.2 AN D ANOTHER AMOUNT OF RS.85,00,000/- BY CHEQUES HAS BEE N RECEIVED BY THE PARTY NO.1 AND ANOTHER AMOUNT OF 18 RS.1,01,000/- HAS BEEN RECEIVED IN CASH BY PARTY NO .1. IT IS ALSO MENTIONED THAT ORIGINAL OWNER I.E. SMT. PUS HPINDER KAUR AND OTHER WOULD GET LAND REGISTERED IN THE NAM E OF PARTY NO.3. AS PER POINT NO. 28 OF THIS AGREEMENT, TOTAL SALE CONSIDERATION OF THE LAND HAS BEEN FIXED @ OF RS.3,65,00,000/- PER ACRE. THE TOTAL VALUE OF THE LAND THUS COMES TO RS.11,58,87,500/-. AS PER POINT 27 O F THIS AGREEMENT, PARTY NO.1 AND 2 ARE BOUND TO GET ADDITI ONAL LAND MEASURING 2500 SQUARE YARDS ARRANGED AND TRANSFERRED ON THE SAME RATE I.E. RS.3.65 LAC PER A CRE AND GET IT REGISTERED IN THE NAME OF PARTY NO.3 WITHIN SIX MONTHS IRRESPECTIVE OF THE RATE AT WHICH THE LAND I S ARRANGED FROM THE ORIGINAL OWNER. THIS ADDITIONAL LAND IS ADJOINING TO THE MAIN LAND PURCHASED BY PARTY NO.3. AFTER THAT ADDITIONAL PAYMENT OF RS.1.59 LACS WILL BE MAD E BY PARTY NO.3 AS PARTY PAYMENT WITHIN SEVEN DAYS FROM THE DATE OF EXECUTION OF SALE DEED PERTAINING TO LAND MEASURING 2500 SQUARE YARDS. THE AGREEMENT DATED 29.6.2005 WITH GEE CITY CONSULTANT PVT. LD. EXTREME LY IMPORTANT AND CAN BE TAKEN AS TRUE AND ONE THAT WAS ACTED UPON. ITS AUTHENTICITY IS PROVED BY THE FOLLO WING FACTS:- THIS AGREEMENT CONTAINS REFERENCE TO THE ORIGINAL AGREEMENT TO SELL DATED 29.01.2005 AND ITS TERMS AND CONDITIONS THAT THE BUYERS S/SHRI GULSHAN RAI, JAGPAL SINGH & BIMAL SURI CAN HAVE THE LAND REGISTERED IN 19 THEIR OWN NAME OR IN ANY OTHER NAME. THIS INDEED WAS THE INTENTION OF THE BUYERS, THE ASSESSEE BEING ONE OF THEM, TO FURTHER SELL THE LAND AT PROFIT WITHOUT GETTING IT REGISTERED IN ITS OWN NAME. THIS WAS A COMMON OCCURRENCE AROUND THE PERIOD WHEN PRICES OF REAL ESTATE WERE ESCALATING BY THE DAY IN THE AREAS AROUND ZIRAKPUR AND THERE WAS A FRANTIC GROWTH OF RESIDENTIAL COMMERCIAL ESTATES IN THE AREA BY PRIVATE BUILDERS. IT REFERS TO THE AGREEMENT DATED 20.04.2005 WITH PARSAV COLONISERS. IT HAS REFERENCE TO THE REGISTERED SALE DEED DATED 17.06.2005 OF L/3 RD SHARE OF 25 KANALS 10 MARLAS (8 KANAL 10 MARLAS). IN THIS CONNECTION, IT IS PERTINENT TO MENTION THAT OUT OF 25K 10 MARLAS OF LAND, THIS SALE DEED WAS REGISTERED ON 17.06.2005 IN THE NAME OF S/SHRI BIMAL SURI, JAGPAL SINGH & GULSHAN RAI, SHARE AND THE REMAINING SHARE IN THE NAME OF SHRI SHEKHAR CHAWLA. IN OTHER WORDS, THE ASSESSEE SHRI BIMAL SURI WAS HAVING L/6 TH SHARE IN THIS LAND MEASURING 8 KANAL 10 MARLAS, WHICH WAS AS PER THE AGREEMENT DATED 29.06.2005, WAS SOLD TO GEE CITY CONSULTANTS P. LTD. THE 20 COST PRICE OF THIS LAND WAS @ RS.2,54,00,000/- PER ACRE WHICH COMES TO RS.2,69,00,000/- ADOPTED AS PER THE AGREEMENT DATED 19.04.2005. THE SALE PRICE OF THIS LAND COMES TO RS.3,87,81,250/- CALCULATED @ RS.3.65 CRORES PER ACRE AS PER THE AGREEMENT DATED 29.06.2005. 24. IN VIEW OF THIS, THE PROFIT ON SALE OF THIS LA ND MEASURING 8 KANAL 10 MARLAS IS CALCULATED AS UNDER: - SALE CONSIDERATION @ RS. 3.65 CRORES PER ACRE 3,87,81,250/- COST PRICE @ RS. 2.54 CRORES PER ACRE 2,69,87,500/- SHORT TERM CAPITAL GAIN 1,17,93,750/- ASSESSEE' S SHARE (L/6 TH ) 19,65,625/- 25. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSING OFFICER HAS MADE ADDITION ON THE BASIS OF TRIPARTITE AGREEMENT (AS MENTIONED IN ORDER) AMO NG GEE CITY BUILDERS PVT. LTD., PARSHAV COLONIZERS AND CONSULTANTS PVT. LTD. AND SHEKHAR CHAWLA AND GULSHA N RAI & OTHERS, WHICH WAS NEVER EXECUTED BY THE ASSES SEE. FURTHER, NO SUCH DOCUMENTS WERE PROCURED FROM THE PREMISES OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM GEE CITY BUILDERS PVT. LTD, A ND BY RELYING ON THE PHOTOCOPY OF DOCUMENTS WHICH WAS NOT EXECUTED BY ASSESSEE AND MADE ADDITION WITHOUT ANY ENQUIRY FROM GEE CITY BUILDERS PVT. LTD. FURTHER IN PHOTOCOPY, ALL PARTIES TO AGREEMENT HAVE NOT SIGNED AND, 21 THEREFORE, IT CAN NOT BE RELIED UPON. THE COUNSEL A LSO PLACED RELIANCE UPON THE JURISDICTIONAL HIGH COURT JUDGEMENT IN CASE OF CIT VS RAM KUMAR 163 TAXMAN 253. IN THIS CASE, IT WAS HELD THAT ASSESSING OFF ICER DID NOT RECOVER THE DOCUMENTS FROM THE POSSESSION OF AS SESSEE NOR THE ASSESSEE CONFRONTED WITH THE SEIZED MATERIA L. 26. THE LEARNED CIT (APPEALS), HOWEVER, DELETED T HE ENTIRE ADDITION. HIS FINDINGS IN PARAS 28 AND 29 O F HIS ORDER ARE REPRODUCED AS UNDER : 28. IN VIEW OF ABOVE DISCUSSION & JUDGEMENT GIVEN BY KERALA HIGH COURT REPORTED AT 128 TAXMAN 848. AMOUNT STATED IN THE SALE DEED CAN NOT BE IGNORED ON THE BASIS OF AGREEMENT OF SALE UNLESS IT IS PROVED THAT THE AGREEMENT OF SALE WAS ACTED UPON AND THE AMOUNT STATED IN THE AGREEMENT WAS ACTUALLY PAID. ON THE BASIS OF AGREEMENT TO SELL IT CAN NOT BE CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT & ALSO PLACED RELIANCE ON JUDGEMENT GIVEN BY MADRAS HIGH COURT IN CASE OF CIT VS P.V. KALYANA SUNDARAM, 282 ITR 259( AFFIRMED BY SUPREME COURT) CONCLUDED THAT IN ABSENCE OF ANY INDEPENDENT ENQUIRY, AO WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF PROFIT ON SALE OF LAND TO M/S GEE CITY BUILDERS PRIVATE LIMITED. 29. IN VIEW OF THE ABOVE DISCUSSION, THE PLEA ON THIS GROUND IS ACCEPTED, DELETING THE ADDITION SO MADE. 27. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES. THE LEARNED D.R. REFERRED TO PAP ER BOOK 22 FILED BY THE DEPARTMENT IN WHICH COPIES OF THE AGRE EMENTS TO SELL IN QUESTION HAVE BEEN FILED. THE LEARNED D.R. SUBMITTED THAT EVEN IF THESE ARE COPIES OF THE ORIG INAL AGREEMENT TO SELL, BUT COPIES OF THE SALE AGREEMENT BEING SECONDARY EVIDENCE ARE ADMISSIBLE UNDER THE EVIDENC E ACT. THE LEARNED D.R. REFERRED TO SECTIONS 63, 64 AND 65 OF THE EVIDENCE ACT. THE LEARNED D.R. SUBMITTED TH AT ON THE PHOTOCOPY OF THE AGREEMENT TO SELL, THERE ARE S IGNATURE OF THE ASSESSEE IN WHICH IT WAS PROVIDED THAT SALE DEED CAN BE EXECUTED IN THE NAME OF ANY PERSON. THE LEA RNED D.R. SUBMITTED THAT THE CIT (APPEALS) SHOULD NOT HA VE DELETED ALL THE ABOVE ADDITIONS. 28. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT NO AGREEMENT T O SELL OR ANY INCRIMINATING DOCUMENT WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. THESE WERE FOUND FROM THE THIRD PARTY, I.E. M/S CHANDIGARH OVERSEAS PRIVATE L IMITED. NO ORIGINAL DOCUMENT WAS FOUND OR RECOVERED DURING THE COURSE OF SURVEY OR LATER ON. THEREFORE, PHOTOCOPY OF THE ORIGINAL IS NOT ADMISSIBLE AS EVIDENCE AND RELIED U PON UNREPORTED DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. MOORTI DEVI IN ITA NO.979/2010 DATED 20.9.2 010, IN WHICH DEPARTMENTAL APPEAL WAS DISMISSED OBSERVIN G THAT THE ORIGINAL DOCUMENTS WERE NEVER CONFRONTED T O THE ASSESSEE AND NOTHING HAS BEEN BROUGHT ON RECORD AS TO WHAT HAPPENED TO THE ORIGINAL DOCUMENTS. THERE IS NO 23 MATERIAL EVEN TO INDICATE THAT PHOTOCOPIES ARE THE COPIES OF THE ORIGINAL DOCUMENTS. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT NO ENQUIRY WAS CONDUCT ED FROM ANY PARTY, I.E. BUYER OR SELLER TO THE AGREEME NT TO SELL. IN THE CASE OF ONE OF THE BUYERS, M/S GEE C ITY BUILDERS PRIVATE LIMITED, THE ASSESSING OFFICER PAS SED ORDER UNDER SECTION 153A R.W.S. 143(3)) OF THE ACT FOR ASSESSMENT YEAR 2006-07 BUT NO ADDITION HAVE BEEN M ADE IN THIS CASE. THE COPY OF THE ASSESSMENT ORDER DAT ED 31.12.2010 IS PLACED ON RECORD. THE LEARNED COUNSE L FOR THE ASSESSEE SUBMITTED THAT ALL THE PARTIES HAVE NO T SIGNED ANY AGREEMENT, THEREFORE, ADDITIONS HAVE BEE N RIGHTLY DELETED BY THE LEARNED CIT (APPEALS). 29. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT SURVEY WAS CONDUCTED AT THE PRE MISES OF CHANDIGARH OVERSEAS PRIVATE LIMITED AND ITS SIST ER CONCERNS AND DURING THE COURSE OF SURVEY, CERTAIN L OOSE PAPERS INCLUDING COPIES OF AGREEMENT TO SELL IN QUE STION WERE IMPOUNDED. THUS, NO AGREEMENT TO SELL OR ANY INCRIMINATING DOCUMENTS WERE FOUND FROM THE POSSESS ION OF THE ASSESSEE. THERE IS NO RECOVERY OF ANY INCRI MINATING DOCUMENT FROM THE POWER AND POSSESSION OF THE ASSES SEE. THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE ANY CONNECTION OF THE ASSESSEE WITH THESE DOCUMENTS/AGREEMENT TO SELL. THE ASSESSING OFFICER WANTED TO RELY UPON THE PHOTOCOPIES OF THE AGREEMEN T TO SELL IN QUESTION. THEREFORE, THE ONUS WOULD BE UPO N THE 24 ASSESSING OFFICER TO PROVE THAT THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY FROM THIRD PARTY, BELON GED TO THE ASSESSEE. THE ORIGINAL OF THE PHOTOCOPIES WERE NEVER RECOVERED IN SURVEY PROCEEDINGS OR IN POST SURVEY PROCEEDINGS. THE DOCUMENTS FOUND ARE ONLY PHOTOCOP IES AND NO ORIGINAL DOCUMENTS WERE FOUND. THEREFORE, PHOTOCOPIES OF THE DOCUMENTS WOULD HAVE LITTLE EVID ENTIARY VALUE. IT IS ALSO ADMITTED FACT THAT THE SURVEY PA RTY AS WELL AS ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM ANY SELLER OR BUYER, M/S PARSAV COLONISERS AND CONSULTANTS PRIVATE LIMITED AND M/S GEE CITY BUILDE RS PRIVATE LIMITED WITH RESPECT TO SALE/PURCHASE OF AN Y LAND FROM THE ASSESSEE OR FROM ANY ORIGINAL SELLERS DIRE CTLY OR INDIRECTLY. NO MATERIAL HAVE BEEN BROUGHT ON RECOR D IF THE ASSESSEE WAS CONNECTED WITH ANY DEAL AS ALLEGED IN THE PHOTOCOPIES OF THE AGREEMENT TO SELL. NO DETAILS O F ANY SALE CONSIDERATION OR ACTUAL AMOUNT RECEIVED OR PAI D BY THE ASSESSEE HAVE BEEN BROUGHT ON RECORD. NO EVIDE NCE HAVE BEEN BROUGHT ON RECORD IF AGREEMENTS TO SELL I N QUESTION WERE ACTED UPON BY THE PARTIES. THE AGR EEMENT TO SELL DATED 29.1.2005 IS NOT ON ANY STAMP PAPER. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MU RTI DEVI (SUPRA) WHILE DISMISSING DEPARTMENTAL APPEAL REFERRED TO THE FINDINGS OF THE TRIBUNAL IN WHICH I T WAS HELD THAT THE PHOTOCOPIES OF THE DOCUMENTS HAVE VER Y LITTLE EVIDENTIARY VALUE AND IN THE ABSENCE OF ORIG INAL DOCUMENTS, PHOTOCOPIES OF THE DOCUMENTS ARE NOT ADMISSIBLE AND CANNOT BE THE BASIS FOR MAKING ADDIT ION. 25 IT IS, THEREFORE, A FACT THAT NO ORIGINAL AGREEMENT S TO SELL WERE FOUND FROM ANY PERSON AND ORIGINAL DOCUMENTS W ERE NEVER CONFRONTED TO THE ASSESSEE. THEREFORE, THERE IS NO QUESTION OF PREPARING COPIES FROM THE ORIGINAL AGRE EMENT TO SELL. THEREFORE, PHOTOCOPIES OF THE AGREEMENT TO SELL CANNOT BE COMPARED WITH ORIGINAL DOCUMENTS. RELIAN CE OF THE LEARNED D.R. THUS ON SECTIONS 63, 64 AND 65 OF THE EVIDENCE ACT IS CLEARLY MISPLACED. THERE WAS THUS NO BASIS TO MAKE ANY ADDITION AGAINST THE ASSESSEE ON ACCOUNT OF INVESTMENT OR EARNING ANY PROFITS OUT O F ANY SALE TRANSACTION ALLEGED TO HAVE BEEN RECORDED IN T HE AGREEMENT TO SELL. SINCE THE DOCUMENTS WERE IMPOU NDED FROM THIRD PARTY AND NO ENQUIRY HAVE BEEN MADE FROM THEM OR FROM ANY PARTY RELATED TO THE AGREEMENT TO SELL, THEREFORE, THERE WAS NO JUSTIFICATION TO MAKE ANY A DDITION AGAINST THE ASSESSEE ON THE BASIS OF SUCH AGREEMENT TO SELL. EVEN IN THE CASE OF M/S GEE CITY BUILDER S PRIVATE LIMITED, THE ASSESSING OFFICER PASSED REGULAR ASSES SMENT ORDER UNDER SECTION 153A R.W.S. 143(3)) OF THE ACT BUT NO ADDITION HAVE BEEN MADE IN THIS CASE. THE LEARNED CIT (APPEALS) ON PROPER APPRECIATION OF FACTS AND MATER IAL ON RECORD CORRECTLY DELETED THE ADDITIONS. 30. CONSIDERING THE ABOVE DISCUSSION AND TOTALITY OF FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMI TY IN THE ORDER OF THE LEARNED CIT (APPEALS) IN DELETING ALL THE ABOVE THREE ADDITIONS. 26 31. THE DEPARTMENTAL APPEAL HAS NO MERIT, THE SAME IS ACCORDINGLY, DISMISSED ON ALL THE GROUNDS. 32. THE DEPARTMENTAL APPEAL IS DISMISSED. ITA NO.680/CHD/2011(SHEKHAR CHAWLA) : 33. THIS APPEAL HAS BEEN FILED BY THE REVENUE ON T HE FOLLOWING IDENTICAL GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS.41,43,750/- ON ACCOUNT OF ALLEGED PAYMENT MAD E IN PURCHASE OF LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS.1,31,21,875/- ON ACCOUNT OF ALLEGED AMOUNT EAR NED OVER AND ABOVE THE AMOUNT MENTIONED IN REGISTERED D EED.. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS.3,87,05,500/- ON THE BASIS OF CERTAIN DOCUMENTS FOUND DURING THE COURSE OF SURVEY. AS THE ASSESSEE WAS ONE OF THE PARTY IN THE TRANSACTIONS AND HAD NOT DISCL OSED ANYTHING EXCEPT SHOWING IGNORANCE. 27 34. THE LEARNED REPRESENTATIVES OF BOTH THE PARTIE S SUBMITTED THAT THE ISSUE IS IDENTICAL AS HAVE BEEN CONSIDERED IN THE CASE OF BIMAL SURI (SUPRA). THE LEARNED CIT (APPEALS) GAVE THE IDENTICAL FINDINGS AS HAVE B EEN GIVEN IN THE CASE OF BIMAL SURI (SUPRA). THEREFORE , FOLLOWING THE REASONS FOR DECISION IN THE CASE OF BIMAL SURI (SUPRA), WE DO NOT FIND ANY MERIT IN THE DEPAR TMENTAL APPEAL. THE SAME IS ACCORDINGLY DISMISSED. 35. THE DEPARTMENTAL APPEAL IS DISMISSED. 36. IN THE RESULT, BOTH THE DEPARTMENTAL APPEALS A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20 TH SEPTEMBER, 2016 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH