Shri Sukhdev Singh Dhariwal, Gwalior V. THE DCIT 1(1), Bhopal

ITA 702/IND/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1280 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 28-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: Not Found
• Keywords: Unexplained cash credit; Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Principle of natural justice; Additional evidence; Fair market value; Corroborative evidences; Valuation report; Accommodation entries; Assessment record; Onus to prove; Retraction; Revised return; Documents seized; Reassessment proceedings; Set aside
• Section: 143(3); 142(1); 153A; 250; 251; 143(2); 191; 64; 147; 68; 148; 263; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA (SS)NO. 88/IND/2013 ASSESSMENT YEAR 2009-2010 PAN : ANKPS8257Q ASSTT. COMMISSIONER OF V/S SHRI MUKESH SHARMA INCOME TAX 1(1), B-99, RAJ VED COLONY, BHOPAL KOLAR ROAD, BHOPAL (REVENUE) (RESPONDENT) C.O. NO. 76/IND/2014 ASSESSMENT YEAR 2009-2010 PAN : ANKPS8257Q SHRI MUKESH SHARMA, V/S ASSTT. COMMISSIONER OF B-99, RAJ VED COLONY, INCOME TAX 1(1), KOLAR ROAD, BHOPAL BHOPAL (APPELLANT) (RESPONDENT) ITA. NO 189/IND/2013 ASSESSMENT YEAR 2009-10 PAN : AASPV7148P ASSTT. COMMISSIONER OF V/S SHRI VINOD VAISH INCOME TAX 1(1), E-3/303, ARERA COLONY, BHOPAL BHOPAL (REVENUE) (RESPONDENT) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 2 ITA. NO 699/IND/2016 ASSESSMENT YEAR 2009-10 PAN : BGYPK0135R SHRI SURESH KUMAR UPADHYAY V/S DCIT 1(1), 51, GRAM BHITARWAR, GWALIOR BHOP AL (APPELLANT) (RESPONDENT) ITA. NO 700/IND/2016 ASSESSMENT YEAR 2009-10 PAN : CFJPS5303G SHRI CHANDRA KUMAR SHARMA V/S DCIT 1(1), H.NO. 136, GRAMCHITOULI, BH OPAL GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 701/IND/2016 ASSESSMENT YEAR 2009-10 PAN : BVYPS5358D SHRI SANJAY KUMAR SAHA V/S DCIT 1(1), KANKANAE KI GALI, BHOPAL KRISHNAPURA, DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 702/IND/2016 ASSESSMENT YEAR 2009-10 PAN : CFJPS5303G SHRI SUKHDEV SINGH DHARIWAL V/S DCIT 1(1), WARD NO.21, THAKURBABA ROAD, BHOPAL DABRA, GWALIOR (APPELLANT) (RESPONDENT) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 3 ITA. NO 703/IND/2016 ASSESSMENT YEAR 2009-10 PAN : ALNCP2204L SHRI KHEMRAJ SINGH CHOUHAN V/S DCIT 1(1), H.NO. 7, WARD NO.12, BHOPAL CUSTOM ROAD, JAWAHARGANJ, DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 704/IND/2016 ASSESSMENT YEAR 2009-10 PAN : ALNPC1964F SHRI KAMLESH KUMAR CHOUDHARY V/S DCIT 1(1), VILLAGE SHARAN, BHOPAL BHITARWAR, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 705/IND/2016 ASSESSMENT YEAR 2009-10 PAN : ARQPS5278M SHRI SANTOSH KUMAR SHARMA V/S DCIT 1(1), DEEDAR COLONY, BHOPAL DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 706/IND/2016 ASSESSMENT YEAR 2009-10 PAN : AEQPL6628D SHRI LATA PRASAD, V/S DCIT 1(1), HOUSE NO.199, SHARAN, B HOPAL DABRA, GWALIOR (APPELLANT) (RESPONDENT) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 4 ITA. NO 707/IND/2016 ASSESSMENT YEAR 2009-10 PAN : AXHPS0642L SHRI PRADEEP KUMAR SHARMA, V/S DCIT 1(1), KRISHNAPRA, WARD 5, BHOPAL SUBHASHGAON, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 708/IND/2016 ASSESSMENT YEAR 2009-10 PAN : AKBPC3223A SHRI RAMESHCHANDRA PARASHAR, V/S DCIT 1(1), HOUSE NO.47, BHOPAL GOHINDA BHITARWAR, DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 709/IND/2016 ASSESSMENT YEAR 2009-10 PAN : AXRPS6368R SHRI VIJAY KUMAR SHRIVASTAVA, V/S DCIT 1(1), WARD NO.17, BHOPAL GURUDWARA ROAD, DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 710/IND/2016 ASSESSMENT YEAR 2009-10 PAN : BGXPK9343N SHRI DHARMENDRA KUMAR CHOUDHARY,V/S DCIT 1(1), HOUSE NO.95, BHOPAL SAHARANGAON, ADAMPUR, BHITARWAR, GWALIOR (APPELLANT) (RESPONDENT) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 5 ITA. NO 711/IND/2016 ASSESSMENT YEAR 2009-10 PAN : CFJPS3963J SHRI RAM KUMAR SWAMI, V/S DCIT 1(1), HOUSE NO.103, MASTURA, BHO PAL DABRA, GWALIOR (APPELLANT) (RESPONDENT) ITA. NO 542/IND/2017 ASSESSMENT YEAR 2009-10 PAN : BHGPK0249B SHRI BIRENDRA KUMAR SHARMA, V/S DCIT 1(1), 2, TIWARI MOHALLA BIJAKPUR, BHOPAL DABRA, GWALIOR (APPELLANT) (RESPONDENT) REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI SUMIT NEMA, SR. ADV WITH SHRI GAGAN TIWARY, ADVOCATE DATE OF HEARING 14.03 . 2019 DATE OF PRONOUNCEMENT 04 .0 6 . 2019 O R D E R PER BENCH: THE ABOVE CAPTIONED APPEALS ARE FILED AGAINST THE F OLLOWING ORDERS OF THE LD. CIT(A): MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 6 SN O ITANO. NAME CIT(A) ORDER DATE APPEAL FILED BY THE REVENUES OR ASSESSEE 1 & 2 ITA(SS) NO.88/IND/2013 & CO NO.76/IND/2014 MUKESH SHARMA 30.01.2013 REVENUE & ASSESSEE 3 ITANO.189/IND/2013 VINOD VAISH 31.01.2013 REVENUE 4 ITANO.699/IND/2016 SURESH KUMAR UPADHYA 22.03.2016 ASSESSEE 5 ITANO.700/IND/2016 CHANDRA KUMAR SHARMA 22.03.2016 ASSESSEE 6 ITANO.701/IND/2016 SANJAY KUMAR SAHU 22.03.2016 ASSESSEE 7 ITANO.702/IND/2016 SUKHDEV SINGH DHARIWAL 22.03.2016 ASSESSEE 8 ITANO.703/IND/2016 KHEMRAJ SINGH CHAUHAN 22.03.2016 ASSESSEE 9 ITANO.704/IND/2016 KAMLESH KUMAR CHOUDHARY 22.03.2016 ASSESSEE 10 ITANO.705/IND/2016 SANTOSH KUMAR SHARMA 22.03.2016 ASSESSEE 11 ITA NO.706/IND/2016 LALTA PRASAD CHOUDHARY 22.03.2016 ASSESSEE 12 ITANO.707/IND/2016 PRADEEP KUMAR SHARMA 22.03.2016 ASSESSEE 13 ITANO.708/IND/2016 RAMESH CHANDRA PARASHAR 22.03.2016 ASSESSEE 14 ITANO.709/IND/2016 VIJAY KUMAR SHRIVASTAVA 22.03.2016 ASSESSEE 15 ITANO.710/IND/2016 DHARMENDRA K. CHOUDHARY 22.03.2016 ASSESSEE 16 ITANO.711/IND/2016 RAM KUMAR SWAMI 22.03.2016 ASSESSEE 17 ITANO.542/IND/2017 VIRENDRA KUMAR SHARMA 22.03.2016 ASSESSEE 2. AS MOST OF THE ISSUES RAISED IN THESE APPEALS AR E COMMON, THESE WERE HEARD TOGETHER AND THEREFORE ARE BEING D ISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVI TY. 3. WE WILL FIRST TAKE UP THE REVENUES APPEAL AND A SSESSEES CROSS MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 7 OBJECTION IN THE CASE OF SHRI MUKESH SHARMA PERTAIN ING TO A.Y.2009-10 4 BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECOR DS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM BUSI NESS AND PROFESSION AND AGRICULTURE. SEARCH AND SEIZURE ACTI ON U/S 132 OF THE ACT WAS CONDUCTED AT RESIDENTIAL PREMISES OF TH E ASSESSEE ON 21.07.2008. DURING THE COURSE OF SEARCH VARIOUS INC RIMINATING MATERIAL WERE FOUND AND SEIZED. DURING THE COURSE O F SEARCH PROCEEDING ASSESSEE SURRENDERED INCOME ON VARIOUS C OUNTS. CONSEQUENTLY, NOTICE U/S 153A OF THE ACT DATED 10.0 7.2009 SERVED UPON THE ASSESSEE FOR MAKING NECESSARY COMPLIANCES. THE ASSESSEE FILED RETURN OF INCOME ON 11.02.2010 IN RESPONSE TO NOTICE U/S 153A OF THE ACT FOR A.Y.2009-10 DECLARING TOTAL INC OME OF RS.4,55,29,800/- AND AGRICULTURAL INCOME OF RS.12,1 3,089/-. QUESTIONNAIRE WAS ISSUED CALLING VARIOUS INFORMATIO NS. DETAILS FILED BY THE ASSESSEE WERE EXAMINED ALONG WITH SEIZED DOC UMENTS. INCOME ASSESSED AT TOTAL INCOME OF RS.7,79,03,480/- AFTER MAKING FOLLOWING ADDITIONS TO THE INCOME SHOWN BY THE ASSE SSEE:- A.Y. 2009 - 10 AMOUNT TOTAL INCOME AS SHOWN IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE IT. ACT 4,55,29,800 ADD: NON - GENUINE AGRICULTURAL INCOME TREATED AS INCOME FROM UNDISCLOSED SOURCES 9,60,589 ADD: UNEXPLAINED INVESTMENT IN SHARE CAPITAL OUT OF INCOME FROM UNDISCLOSED SOURCES AS PER 1,50,00,000 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 8 DISCUSSION IN PARA 3 ABOVE ADD: UNEXPLAINED INVESTMENT IN GOLD JEWELLERY AS PER DISCUSSION IN APARA 5 ABOVE 6,67,090 ADD: PAY MENT OF ON MONEY FOR PURCHASE OF LAND AS PER DISCUSSION IN PARA 6 ABOVE 87,46,000 ADD NON - GENUINE UNSECURED LOANS AS PER DISCUSSION IN PARA 8 ABOVE 70,00,000 TOTAL INCOME ROUNDED OFF; 7,79,03,479 7,79,03,480 AGRICULTURAL INCOME 252500 5. AGAINST VARIOUS ADDITIONS MADE BY THE LD. ASSES SING OFFICER (IN SHORT LD. AO) ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND PARTLY SUCCEEDED. 6. NOW THE REVENUE IS IN APPEAL AGAINST THE ADDITIO N DELETED BY THE LD. CIT(A) AND ASSESSEE HAS FILED CROSS OBJECTION R AISING FOLLOWING GROUNDS: I.T.(SS) NO.88/IND/2013 (REVENUE) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1. NOT FOLLOWING THE PROVISIONS OF SECTION 250(1) OF T HE INCOME TAX ACT 1961 BY NOT GIVING A NOTICE TO THE ASSESSING OFFICER OF THE DATE AND PLACE FOR THE HEARING THE APPEAL, 2. NOT FOLLOWING THE PROVISIONS OF SECTION 250(2) OF T HE INCOME TAX ACT 1961 BY NOT PROVIDING THE ASSESSING OFFICER AN OPPORTUNITY OF BEING HEARD AT THE HEARING OF THE APPEAL. 3.ADMITTING ADDITIONAL EVIDENCES WITHOUT FOLLOWING THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES AND RELYING ON THE FAC TS OF THE CASE NOT PRESENTED BY THE ASSESSEE BEFORE THE AO MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 9 4. DELEING THE ADDITION OF RS. 50500/- MADE BY THE AO ON ACCOUNT OF NON- GENUINE AGRICULTURAL INCOME TREATED 5 DELEING THE ADDITION OF RS. 15000000/- MADE BY TH E AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARE 6.DELETING THE ADDITION OF RS. 580555/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD 7.DELETING THE ADDITION OF RS. 8746000/- MADE BY TH E AO ON ACCOUNT OF PAYMENT OF ON MONEY FOR PURCHASE OF LAND. 8. DELETING THE ADDITION OF RS. 6500000/- MADE BY T HE AO ON ACCOUNT OF NON GENUINE UNSECURED LOANS. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINALLY HEARD FOR DISPOSAL. C.O.NO.76/IND/2014 (ASSESSEE) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND IN ANY VIEW OF THE MATTER, THE LD. ASSESSING OFFICER AND LD. CIT (A), BHOPAL HAVE ERRED IN ASSESSING AND UPHOLDING THE AGRICULTURAL INCOME AT RS.25,000/ - AND RS.30,000/- PER ACRE RESPECTIVELY AS AGAINST TOTAL AGRICULTURAL INCOME D ECLARED RS.12,13,089/- FOR 10.1 ACRES OF AGRICULTURE LAND WHICH COME TO RS.1,20,100 /- PER ACRE. THE SUMMARY OF WHICH IS AS UNDER: AREA OF LAND AGRI. INCOME DECLARED AGR INCOME ASSESSED AGR INCOME AFTER APPEAL EFFECT ADDITION AFTER APPEAL EFFECT 10.1 ACRES 12,13,089 I.E. RS.1,20,100/- PER ACRE 2,52,500 I.E RS.25,000/- PER ACRE ADDITION RS.9,60,589/- 3,03,000 I.E. RS.30,000/- PER ACRE DELETION RS.50500/- (303000-252500) 1213069- 303000+910089 I.E. RS.90108/- PER ACRE 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND IN ANY VIEW OF THE MATTER , COMMISSIONER OF INCOME TAX (APPEALS), BHOPAL HAS CO RRECTLY DELETED THE ADDITION OF RS. ON ACCOUNT OF ALLEGED U NEXPLAINED INVESTMENT IN SHARES. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND IN ANY VIEW OF THE MATTER, THE ID ASSESSING OFFICER AND LD. COMMI SSIONER OF INCOME TAX (APPEALS), BHOPAL , HAVE ERRED IN MAKING AND UP HOL DING THE ADDITION OF RS. 6,67,090/- AND RS 86,535/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN JEWELRY. 4. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND IN ANY VIEW OF THE MATTER, THE ID COMMISSIONER OF INCOME TAX (APPE ALS), BHOPAL HAS MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 10 CORRECTLY DELETED THE ADDITION OF RS. 87,46,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT AS PAYMENT OF ON MONEY IN PU RCHASE OF LAND. 5. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND IN ANY VIEW OF THE MATTER, THE ID ASSESSING OFFICER AND ID COMMISS IONER OF INCOME TAX (APPEALS), BHOPAL , HAVE ERRED IN MAKING AND UP HOL DING THE ADDITION OF RS. 70,00,000/- AND RS. 5,00,000/- ON ACCOUNT OF NON GE NUINE UNSECURED LOANS. THAT, THE RESPONDENT CRAVES LEAVE TO ADD AND/OR AM END ANY GROUND(S) OF THE CROSS OBJECTION BEFORE AND/OR AT THE TIME OF HEARIN G. REVENUES APPEAL FOR A.Y. 2009-10 IN CASE OF MUKESH SHARMA 7. THOUGH GROUND NO. 1 & 2 OF REVENUE HAS CHALLENGE D THE VALIDITY OF THE ORDER OF LD. CIT(A) CONTENDING THAT THE LD. CIT(A) HAS NOT FOLLOWED THE PROVISIONS OF SECTION 250(1) OF THE AC T BY NOT GIVING THE NOTICE TO THE ASSESSING OFFICER OF THE DATE AND PLA CE FOR THE HEARING OF THE APPEAL. 8. AT THE OUTSET, LD. DEPARTMENTAL REPRESENTATIVE ( DR) PLACED ON RECORD LETTER DATED 13.03.2019 REQUESTING FOR NOT P RESSING GROUND NO.1 & 2 RAISED IN THIS APPEAL. LEARNED AUTHORISED REPRESENTATIVE (IN SHORT AR) DID NOT OPPOSE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. FROM GOING THROUGH THE LETTER ISS UED BY THE OFFICE OF COMMISSIONER OF INCOME TAX (DR) BEARING NO.F- CIT(DR)I.T.A.T./IND/2018-19 DATED 13.05.2019 WE OB SERVE THAT THE DEPARTMENT HAS REQUESTED FOR NOT PRESSING GROUN D NO.1 & 2 RAISED BY THE REVENUE IN IT(SS) NO.88/IND/2013. WE, THEREFORE, DISMISS GROUND NO.1 & 2 AS NOT PRESSED. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 11 10. NOW WE TAKE UP GROUND NO.3 THROUGH WHICH REVENU E HAS CHALLENGED THAT THE LD. CIT(A) ADMITTED ADDITIONAL EVIDENCES WITHOUT FOLLOWING PROVISIONS OF RULE 46A OF I.T. RULES. 11. AT THE OUTSET, LD. SENIOR COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ADDITIONAL EVIDENCES CHALLENGED IN GROUND NO.3 RELATS TO ADDITION FOR UNEXPLAINED CASH CREDIT OF RS.70,00,00 0/- WHICH WERE PLACED BEFORE THE LD. CIT(A) AND ARE GOING TO THE ROOT CAUSE OF THE ISSUE BUT NO REMAND REPORT WAS CALLED FROM ASSESSIN G OFFICER. THEREFORE, THE ISSUES RAISED IN THIS GROUND NO.8 FO R WHICH ASSESSEE HAS FILED ADDITIONAL EVIDENCES MAY BE REMANDED BACK TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION. 12. LD. DR RAISED NO OBJECTION IF THE ADDITIONAL EV IDENCES RELATING TO THE ADDITION FOR UNEXPLAINED CASH CREDIT OF RS.70 L ACS RAISED IN GROUND NO.8 ARE SET ASIDE TO THE LD. CIT(A) FOR AFR ESH ADJUDICATION. 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THROUGH GROUND NO.3 REVENUE HAS C HALLENGED THE ACTION OF THE LD. CIT(A) ADMITTING ADDITIONAL EVIDE NCES WITHOUT FOLLOWING THE PROVISIONS OF RULE 46A OF THE I.T. RU LES. THE LD. SENIOR COUNSEL FOR THE ASSESSEE CONCEDED THAT ADDITIONAL E VIDENCES GOES TO THE ROOT CAUSE OF THE ISSUE RELATING TO ADDITION FO R UNEXPLAINED CASH CREDIT OF RS.70 LACS AND WERE ADMITTED BY THE LD. C IT(A) WITHOUT CALLING FOR REMAND REPORT. FURTHER LD. DR RAISED NO OBJECTION IF THE IMPUGNED ADDITIONAL EVIDENCES ARE REMANDED BACK TO THE ASSESSING MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 12 OFFICER FOR PREPARING REMAND REPORT TO BE SUBMITTED TO LD. CIT(A). WE THEREFORE, ALLOW THE REVENUES GROUND NO.3 HOLDI NG THAT THE LD. CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDENCES WITH OUT FOLLOWING PROVISIONS OF RULE 46A OF THE IT RULES. GROUND NO.3 OF THE REVENUES APPEAL IS ALLOWED. 14. NOW WE TAKE GROUND NO.4 RELATING TO DELETION OF ADDITION OF RS.50,500/- MADE BY THE AO ON ACCOUNT OF NON-GENUIN E AGRICULTURAL INCOME. 15. LD. DR VEHEMENTLY ARGUED SUPPORTING THE ORDER O F THE LD. AO AND LD. SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS HOLDING AGRICULTURAL LAND SINCE LAST MANY YEARS AND IS REGULARLY CARRYING AGRICULTURAL OPERATIONS AND THEREFORE CLAI M OF AGRICULTURAL INCOME NEEDS TO BE ALLOWED. 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THIS GROUND OF APPEAL BY THE REVE NUE IS DIRECTED AGAINST THE TREATMENT OF PART OF THE AGRICULTURAL I NCOME AS NON- GENUINE AND INCOME FROM UNDISCLOSED SOURCES. LD. AO WHILE EXAMINING THE ASSESSEES CLAIM OF EARNING AGRICULTU RAL INCOME OF RS.12,13,089/- ASKED THE ASSESSEE TO SUBSTANTIATED THE CLAIM BY FURNISHING DOCUMENTARY EVIDENCES REGARDING HOLDING OF AGRICULTURAL LAND, DETAILS OF AGRICULTURAL LANDS PUT TO CULTIVAT ION, CROPS GROWN, QUANTITIES PRODUCED, SALE CONSIDERATION, EXPENSES I NCURRED ETC. AND ALSO TO FILE THE PROFIT AND LOSS ACCOUNT. WE FIND T HAT LD. CIT(A) WHILE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 13 ADJUDICATING THE ISSUE GIVEN FOLLOWING FINDING OF F ACTS BY DIRECTING THE ASSESSING OFFICER TO ESTIMATE AGRICULTURAL INCO ME OF RS.25,000/- PER ACRE FOR A.Y. 2003-04 AND RS.30,000/- FOR A.Y. 2006-07 TO 2009-10 RESPECTIVELY. 6) GROUND NO.3 THIS GROUND OF APPEAL IS DIRECTED AGAINST TREATING OF PART OF THE AGRICULTURAL INCOME AS NON-GENUINE AND INCOME FROM UNDISCLOSED SOURCES. THE AO HAS OBSERVED THAT THE APPELLANT WAS REQUIRED TO SUBSTANTIATE THE CLAIM OF EARNING AGRICULTURAL INCO ME SHOWN AT THE DECLARED AMOUNT BY FURNISHING DOCUMENTARY EVIDE NCES REGARDING HOLDING OF AGRICULTURAL LANDS, DETAILS OF AGRICULTURAL LANDS PUT TO CULTIVATION, CROPS GROWN, QUANTITIES P RODUCED, SALE CONSIDERATION, EXPENSES INCURRED, ETC. AND ALSO TO FILE AGRICULTURAL PROFIT AND LOSS ACCOUNT. IT WAS HELD THAT AS PER DE TAILS FILED, THE AGRICULTURAL INCOME COMES AS HIGH AS RS.57,500/- PE R ACRE IN A.YR.2003-04 AND RS.1,20,100/- IN A.Y..2009-10. TH E CROPS CULTIVATED WERE TRADITIONAL CROPS, LIKE WHEAT, CHAN A, HENCE, IT WAS POSSIBLE TO EARN SUCH HUGE INCOME. IT WAS ALSO OBSERVED THAT OUT OF NEARLY 10 ACRES OF AGRICULTURAL LAND OW NED IN 2005-06 TO 2009-10, AROUND 6 ACRES IS LOCATED AT VILLAGE KA LAPANI, WHERE ONLY ONE CROP OF SOYBEAN WAS GROWN. ACCORDING TO TH E AO, HARDLY ANY INCOME WOULD HAVE BEEN EARNED FROM THE OTHER SM ALLER PIECES OF LAND. GIVING THE DETAILS OF COPIES OF 34 BILLS FOR EXPENSES, AND SUMMARIZING HIS FINDINGS, THE AO HAS OBSERVED THAT THE RELEVANT DOCUMENTS RELIED ALSO INCLUDE PAP ERS PERTAINING TO THE APPELLANT'S SPOUSE. MOST OF THE BILLS VOUCHE RS DID NOT BEAR THE NAME OF THE PURCHASER. OUT OF 34 BILLS/VOUCHERS ONLY 15 BEAR THE NAME OF THE APPELLANT AND COULD BE RELATED TO H IS AGRICULTURAL INCOME. THE PETROL AND DIESEL EXPENSES MAY NOT RELA TE TO AGRICULTURAL OPERATIONS OF THE ASSESSEE AND HIS FAM ILY. THE BILLS RELATING TO PURCHASE OF KHALI, CHUNNI, ETC. RELATE TO DIARY BUSINESS. THE GROSS AGRICULTURAL RECEIPTS FOR THE ASSESSMENT YEARS 2003-04 TO 2009-10 WERE CLAIMED AT RS. 42,63,178/-, BUT SAL E VOUCHERS FOR RS.L,22,337/- ONLY WERE PRODUCED AND OUT OF SIX SALE BILLS MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 14 PRODUCED, 4 BILLS RELATE TO A.YR.2010-11, WHICH APP EAR TO HAVE BEEN OBTAINED AFTER SEARCH ONLY TO SUPPORT CLAIM OF HUGE AGRICULTURAL INCOME. IT WAS ALSO HELD THAT THE SALE BILLS THEMSELVES CANNOT PROVE THAT THE PRODUCE SOLD WAS O BTAINED FROM THE APPELLANT'S LAND AND EVEN A TRADER CAN SEL L FOOD GRAINS IN MANDI OR TO OTHER TRADERS AND RECEIVE THE PAYMEN TS THROUGH CHEQUES AND IT DID NOT MEAN THAT SUCH INCOME RELATE S TO AGRICULTURE INCOME. IT WAS ALSO HELD THAT BOTH WHEA T AND CHANA ARE RABI CROPS AND CANNOT BE GROWN SIMULTANEOUSLY. THE CLAIM OF 80 QTL.CHANA AND 290 QTL WHEAT SOLD IN THE MONTH OF MAY, 09 IS NOT PRACTICABLE. REFERRING TO THE LEGAL POSITION SE TTLED IN VARIOUS CASE-LAWS CITED AT PAGE 39 OF THE ASSESSMENT ORDER, THE A.O. HAS HELD THAT THE ONUS TO PROVE THAT INCOME SOUGHT TO B E TAXED IS AGRICULTURAL INCOME LIES ON THE APPELLANT, WHICH HA S NOT BEEN PROPERLY DISCHARGED. THEREFORE, THE AO HAS REJECTED THE TALL CLAIMS. HOWEVER, AFTER CONSIDERING THE ORDERS OF HO N'BLE ITAT, JABALPUR BENCH IN THE CASE OF SHRI SURESH CHAND KHA USAL VS ITO ITARASI AND SHRI DULICHAND GOEL VS DCIT, INDORE AND CIT VS PARAS KUMAR SAMIRMAL JAIN, INDORE, WHERE THE AGRICU LTURAL INCOME WAS HELD ACCEPTABLE RESPECTIVELY AT RS.15,00 0/- PER ACRE IN A. YR. 1998-99 AND AT RS.I0,0001- IN THE BLOCK P ERIOD 01.04.1996 TO 17.02.2002, THE AO HAS ESTIMATED THE AGRICULTURAL INCOME AT RS.20,000/-PER ACRE IN A.YRS. 2003-(}4 TO 2004-05 AND AT RS. 25,000/- PER ACRE IN A.YRS. 2005-06 TO 09-10 .PPLYING THESE STANDARDS, THE FOLLOWING AMOUNTS WERE HELD AS NON-G ENUINE AGRICULTURAL INCOME AND TREATED THE SAME AS INCOME FROM OTHER SOURCES. AYR. AGRIL. INCOME TREATED AS INCOME FROM OTHER SOURCES RS. 2003-04 75,000/- 2004-05 78,000/- 2006-07 8,048/- 2007-08 1,24,412/- MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 15 2008-09 3,90,000/- 2009-10 960589/- 6.1) IN THE COURSE OF APPEAL PROCEEDINGS, THE LD. C OUNSEL FOR THE APPELLANT HAS CONTENDED THAT THE APPELLANT OWNED AG RICULTURAL LANDS WITH ALL AGRICULTURAL FACILITIES. ALL THE NEC ESSARY DETAILS WERE SUBMITTED DURING THE COURSE OF ASSESSMENT PROC EEDINGS AND SINCE THE AGRICULTURAL INCOME WAS EXEMPT, NO RE GULAR AND PROPER BOOKS OF ACCOUNTS WERE MAINTAINED. ACCORDING TO THE LD. A.R, THE AO HAS NOT DOUBTED AGRICULTURAL LANDHOLDIN GS AND CULTIVATION ACTIVITY. HE HAS ACCEPTED A PART OF AGR ICULTURAL INCOME AND ESTIMATED THE BALANCE AS NON-AGRICULTURAL ON TH E GROUND THAT BILLS, ETC. WERE NOT MAINTAINED. IT WAS CONTENDED T HAT THE TWO COMPARABLE CASES REFERRED BY THE AO CANNOT BE TAKEN AS CORRECT, BECAUSE, THE AGRICULTURAL PRODUCE OBTAINED FROM TWO LANDS LOCATED AT DIFFERENT PLACES CANNOT BE COMPARED, AS IT LARGELY DEPENDS ON VARIOUS FACTORS LIKE FERTILITY, AVAILABI LITY OF IRRIGATION FACILITIES, NATURE OF CROPS GROWN, AREA OF CULTIVAT ION, EXTENT OF AGRICULTURAL INPUTS, EXTENT OF MECHANIZATION, CLIMA TIC CONDITIONS, AVAILABILITY OF FERTILIZERS, PESTICIDES AND FINANCI AL CAPACITY OF THE CULTIVATOR TO HOLD THE CROPS TO GET BETTER PRICES I N THE MARKET. THE AO HAS NOT CONSIDERED ALL THESE FACTORS AND ESTIMAT ED THE AGRICULTURAL INCOME ON AD HOC BASIS AT AMOUNTS MUCH LESSER THAN THE INCOME SHOWN BY THE APPELLANT. THEREFORE, ACCOR DING TO THE LD. AR, THE ACTION OF THE A.O. IS NOT CORRECT. FINA LLY, THE APPELLANT HAS RELIED ON THE DECISION OF HON'BLE JODHPUR TRIBU NAL IN THE CASE OF KAMAL KISHORE CHANDAK VS ITO (2006) 103 TTJ (JD) 843 TO SUPPORT HIS CONTENTIONS. 6.2 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE APPELLANT. THE DISPUTE COVERED I N THIS GROUND OF APPEAL RELATES TO REASONABLENESS OF THE QUANTUM OF AGRICULTURAL INCOME SHOWN BY THE APPELLANT WITH REF ERENCE TO HIS LANDHOLDINGS. THERE IS NO DISPUTE REGARDING OWNERSH IP OF THE LAND SO ALSO ABOUT THE CULTIVATION ACTIVITIES. HOWE VER, THE AO WAS OF THE OPINION THAT THE APPELLANT HAD SHOWN AGR ICULTURAL MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 16 INCOME HIGHLY DISPROPORTIONATE TO THE TOTAL LANDS P UT TO CULTIVATION AND CROPS OBTAINED. THE AVERAGE PER ACRE AGRICULTUR AL INCOME SHOWN BY THE APPELLANT IS AS A.Y. AGRIL. INCOME SHOWN PER ACRE RS. 2003-04 57,500/- 2004-05 41,667/- 2005-06 16,667/- 2006-07 25,745/- 2007-08 36,510/- 2008-09 61,110/- 2009-10 1,20,100/- THE ONUS TO PROVE THE CLAIM OF AGRICULTURAL INCOME, BEING AN EXEMPTED INCOME, HEAVILY LIES ON THE APPELLANT IN V IEW OF THE DETAILED FINDINGS GIVEN IN THE ASSESSMENT ORDER AND SUMMARIZED ABOVE, THE APPELLANT HAS NOT SATISFACTORILY EXPLAIN ED THE REASONABLENESS OF THE QUANTUM OF AGRICULTURAL INCOM E CLAIMED TO HAVE BEEN EARNED BY HIM. THERE ARE HUGE VARIATIONS IN THE FIGURES SHOWN IN DIFFERENT YEARS, FOR WHICH NO EXPL ANATION WAS FORTHCOMING. AT THE SAME TIME, THE ESTIMATION MADE BY THE AO CANNOT BE HELD TO BE REASONABLE. THE AO DID NOT CON DUCT ANY INDEPENDENT ENQUIRY FROM REVENUE AUTHORITIES OR CIT E COMPARABLE CASES OF THE CLOSE LOCALITIES TO SUPPORT HIS FINDIN GS. THE ORDERS OF THE HAN'BLE ITAT BENCHES RELATE TO DIFFERENT PERIOD S AND THE INCOME HELD REASONABLE IN THE SUBSEQUENT PERIOD IS LESSER THAN MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 17 THE PRECEDING PERIOD. THUS, IT IS CLEAR THAT THE FA CTS OF THOSE CASES ARE DIFFERENT. HOWEVER, IN THE ABSENCE OF SUFFICIEN T MATERIAL TO SUPPORT THE CLAIM, THE INCOME PRESCRIBED IN THE TRI BUNAL ORDERS CAN BE TAKEN AS INDICATIVE AND AFTER CONSIDERING TH E CONSISTENT FIGURE OF AGRICULTURAL INCOME SHOWN BY THE APPELLAN T, THE AO IS DIRECTED TO ESTIMATE THE AGRICULTURAL INCOME AT RS. 25,000 PER ACRE FOR A. Y RS. 2003 -04 AND 2004-05 AND AT RS.30,0001- PER ACRE IN AYRS. 2006-07 TO 2009-10. THIS GROUND OF AP PEAL IS, THEREFORE, PARTLY ALLOWED. DATE OF BILL BEING 28.01 .2007, IT RELATES TO F.YR.2006-07 RELEVANT TO A.YR.2007-08 AND NOT IN THE A.YR.2008-09. THEREFORE, THE ADDITION MADE BY THE A O IS NOT CORRECT. 11.2) I HAVE GONE THROUGH THE OBSERVATIONS OF THE A O AND SUBMISSIONS OF THE APPELLANT. ADMITTEDLY, THIS BILL CONFIRMS THE PURCHASE OF A PHONE IN CASH. THE DISPUTED PAPER BEI NG CASH MEMO, MENTIONING OF THE APPELLANT'S NAME IS NOT NEC ESSARY. FURTHER, AS PER OF PROVISION OF SECTION 292C OF THE ACT, THE A.O. HAS RIGHTLY PRESUMED THAT THE SAID PAPER BELONGS TO THE APPELLANT. THE APPELLANT HAS NOT REBUTTED THE PRESU MPTION. THEREFORE, THE ADDITION MADE BY THE A.O. IS CONFIRM ED. HOWEVER, SINCE IT PERTAINS TO A.YR.2007-08, THE AO IS DIRECT ED TO EXCLUDE THE SAME FROM COMPUTATION TOTAL INCOME FOR A.YR. 20 08-09 AND INCLUDE THE SAME IN THE TOTAL INCOME OF A.YR. 2007- 08.THE APPEAL IS, ACCORDINGLY, DISMISS. 17. FROM PERUSAL OF THE ABOVE FINDING OF THE LD. CI T(A) WHICH GOES UNCONTROVERTED BY THE LD. DR, WE OBSERVE THAT THE R EVENUE AUTHORITIES HAVE NOWHERE DISPUTED THAT THE ASSESSEE HOLDS AGRICULTURAL LAND MEASURING 10 ACRES SINCE LAST MAN Y YEARS. IT IS A KNOWN FACT THAT REGULAR MAINTENANCE OF BOOKS OF AC COUNTS AND MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 18 DOCUMENTARY EVIDENCES FOR EACH AND EVERY TRANSACTIO NS ENTERED INTO DURING THE COURSE OF AGRICULTURAL OPERATIONS FOR BU YING THE SEEDS, LABOUR CHARGES, SALE OF PRODUCED, PURCHASE OF FERTI LIZERS ETC. CANNOT BE FULLY DOCUMENTED FOR VARIOUS PRACTICAL REASONS. THE AO HAS ALSO NOT PLACED ANY CONTRARY MATERIAL TO SUPPORT ITS FIN DING. ONLY REMEDY IS ESTIMATION OF INCOME PER ACRE. IN CERTAIN CASES AS REFERRED IN THE FINDING OF THE LD. CIT(A), THE TRIB UNAL HAS ESTIMATED INCOME PER ACRE AT RS. 15000/- DURING A.Y. 1998-99 AND RS.25000/- DURING A.Y. 2005-06. 18. IN THESE GIVEN FACTS AND CIRCUMSTANCES OF THE C ASE, WE ARE OF THE VIEW THAT LD. CIT(A) HAS RIGHTLY ESTIMATED THE AGRI CULTURAL INCOME OF RS.30000/- PER ACRE FOR A.Y. 2009-10. NO INTERFEREN CE IS THEREFORE CALLED FOR IN THE WELL REASONED FINDING OF THE LD. CIT(A). WE UPHOLD THE SAME AND DISMISS THE REVENUES GROUND NO.4 19. NOW WE TAKE GROUND NO.5 RELATING TO ADDITION OF RS.1,50,00,000/- MADE BY THE AO AND DELETED BY THE LD. CIT(A). 20. BRIEF FACTS RELATING TO THIS GROUND ARE THAT DU RING THE COURSE OF SEARCH CERTAIN DOCUMENTS RELATING TO COMPANY PREM P RAKASH TUBE PVT. LTD. (IN SHORT PPTPL) WAS FOUND IN WHICH MAJOR SHAREHOLDING IS WITH THE ASSESSEE AND HIS FAMILY MEMBERS. SUBSCRIPT ION TO THE EQUITY SHARE CAPITAL AND SHARE PREMIUM WAS RECEIVED AT RS.1,50,00,000/- BY PPTPL DURING THE A.Y. 2009-10. DOCUMENTS ALSO REVEAL THAT SOME KOLKATA BASED COMPANY INVESTE D IN THE SHARE CAPITAL OF PPTPL FOR EQUITY SHARES HAVING FACE VALU E OF RS.10 AND MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 19 SHARE PREMIUM OF RS.90 PER SHARE. DURING THE COURS E OF SEARCH WHEN THE ASSESSEE WAS CONFRONTED WITH THESE DOCUMEN TS, HE ADMITTED THAT THE SUM OF RS.1.50 CRORE WAS HIS UNDI SCLOSED INCOME AND WAS INTRODUCED IN THE COMPANY PPTPL THROUGH VAR IOUS COMPANIES BASED IN KOLKATA. LATER ON IN THE INCOME TAX RETURN FILED IN REPLY TO NOTICE U/S 153A OF THE ACT THE ASSESSEE FAILED TO OFFER THE ALLEGED SUM OF RS.1.50 CORERS FOR TAX. LD. AO CONDU CTED NECESSARY INQUIRY TO COME TO A CONCLUSION THAT THE INVESTED C OMPANIES BASED IN KOLKATA ARE MERELY ACCOMMODATION ENTRIES PROVIDE RS AND THE ALLEGED AMOUNT WAS UNDISCLOSED INCOME OF THE ASSESS EE. WHEN THE MATTER COME UP BEFORE THE LD. CIT(A) THE ADDITION W AS DELETED. 21. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNA L. 22. AT THE OUTSET, LD. SENIOR COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE ALLEGED SHARE CAPITAL & SHARE PREMIUM OF R S.1.50 CRORES WAS RECEIVED IN THE HANDS OF THE COMPANY NAMELY PRE M PRAKASH TUBE P. LTD. IN WHICH SHRI MUKESH SHARMA IS A SHARE HOLDER. THE TRIBUNAL VIDE IN ITANO.188/IND/2013 IN THE CASE OF ACIT VS. PREM PRAKASH TUBE P. LTD. HAS RESTORED THIS ISSUE OF PRO TECTIVE ADDITION OF RS.1.50 CRORES RELATING TO A.Y. 2009-10 TO LD. C IT(A) FOR AFRESH ADJUDICATION VIDE ORDER DATED 09.07.2015. HE PRAYED THAT THIS GROUND RAISED BY THE REVENUE SHOULD ALSO BE SET ASI DE TO THE FILE OF THE LD. CIT(A) FOR DECIDING AFRESH. 23. ON THE OTHER HAND, LD. DR COULD NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSE E AND RAISED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 20 NO OBJECTION IF THE ISSUE FOR UNEXPLAINED INVESTMEN T OF RS.1.50 CRORES IS SET ASIDE TO THE FILE OF LD. CIT(A) FOR D ECIDING AFRESH. 24. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE REVENUES GRIEVANCE IN GROUND NO.5 IS AGAINST THE FINDING OF LD. CIT(A) DELETING ADDITION OF RS.1 .50 CRORES MADE BY THE LD. AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARES. WE OBSERVE THAT THE ASSESSEE MR. MUKESH SHARMA ALONG W ITH HIS RELATIVES ARE SHAREHOLDERS IN THE COMPANY NAMED PRE M PRAKASH TUBE P. LTD. DURING A.Y. 2009-10 AMOUNT OF RS.1.50 CRORES WAS RECEIVED BY PPTPL TOWARDS SHARE CAPITAL AND SHARE PREMIUM THROUGH SOME CORPORATE BASED IN KALKATTA WHICH WER E ALLOTTED THE SHARES HAVING FACE VALUE OF RS.10 AND PREMIUM OF RS .90 PER SHARE. LD. ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS MADE NECESSARY ENQUIRIES AND AFTER GOING THROUGH TH E STATEMENTS GIVEN BY THE ASSESSEE DURING THE COURSE OF SEARCH C OME TO A CONCLUSION THAT RS.1.50 CRORES WAS UNACCOUNTED INCO ME OF THE ASSESSEE WHICH WAS ROUTED THROUGH ACCOMMODATION ENT RIES PROVIDERS INTO THE BOOKS OF PPTPL. PROTECTIVE ADDIT ION OF THE SAME AMOUNT OF RS.1.50 CRORES WAS ALSO MADE IN THE CASE OF PPTPL. LD. CIT(A) DELETED THE PROTECTIVE ADDITION MADE IN THE CASE OF PPTPL AGAINST WHICH THE REVENUE COME IN APPEAL BEFORE THE TRIBUNAL AND PPTPL ALSO FILED CROSS OBJECTION. 25. THE TRIBUNAL VIDE ITANO.188/IND/2013 & CO NO.60 /IND/2013 DATED 09.07.2015 HELD THAT THE ASSESSING OFFICER WA S NOT HEARD MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 21 DURING THE COURSE OF APPELLATE PROCEEDINGS CONDUCTE D BY THE LD. CIT(A) AND THEREFORE, ALL THE ISSUES RAISED IN THE REVENUES APPEAL AND THE CROSS OBJECTION ARE SET ASIDE TO THE FILE O F THE LD. CIT(A) FOR DECIDING THE ISSUE AFRESH. 26. AS THE ISSUE BEFORE US IN THE INSTANT APPEAL IN GROUND NO.5 RELATS TO UNEXPLAINED INVESTMENT IN SHARES OF RS.1. 50 CROES IS VERY SAME ISSUE WHICH WAS BEFORE THE TRIBUNAL IN THE CAS E OF ACIT VS. PPTPL (SUPRA), THEREFORE, IN THESE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE IN STANT ISSUE RAISED IN GROUND NO.5 FOR UNEXPLAINED INVESTMENT OF RS.1. 50 CRORE ALSO NEEDS TO BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE MATTER AFRESH AFTER PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. IN THE RESULT GROUND NO.5 OF THE R EVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 27. NOW WE TAKE UP GROUND NO.6 THROUGH WHICH THE RE VENUE HAS CHALLENGED THE FINDING OF THE LD. CIT(A) DELETING T HE ADDITION OF RS.5,80,555/- MADE BY THE LD. AO ON ACCOUNT OF UNEX PLAINED INVESTMENT IN GOLD. 28. BRIEF FACTS RELATING TO THIS ISSUE ARE DURING T HE COURSE OF SEARCH GOLD JEWELLERY HAVING NET WEIGHT OF 1199.830 GMS WA S FOUND FROM THE APPELLANT RESIDENCE AND THE LOCKERS AVAILABLE I N THE NAME OF THE ASSESSEE, HIS MOTHER AND WIFE. CERTAIN BILLS FOR TH E PURCHASE OF 900 GMS GOLD JEWELLERY WAS FOUND DURING THE SEARCH ALON G WITH CERTAIN EVIDENCES SHOWING THAT GOLD JEWELLERY WEIGHING 1602 .330 GMS WERE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 22 SOLD DURING THE A.YS. 2002-03 AND 2007-08. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE TOTAL JEW ELLERY OF 2802.16 GMS. NECESSARY REPLY WAS SUBMITTED AND AFTER CONSID ERING THE SAME LD. ASSESSING OFFICER TREATED 402.160 GMS JEWELLER Y ASUNEXPLAINED AND MADE A ADDITION OF RS.6,67,090/-. THE ASSESSEE CHALLENGED THIS ADDITION BEFORE THE LD. CIT(A) AND PARTLY SUCC EEDED. 29. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNA L. 30. LD. DR VEHEMENTLY ARGUED SUPPORTING THE ORDER O F THE LD. ASSESSING OFFICER AND LD. SENIOR COUNSEL FOR THE AS SESSEE SUPPORTED THE FINDING OF THE LD. CIT(A). 31. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE REVENUES GRIEVANCE IN GROUND NO.6 IS AGAINST DELETION OF ADDITION FOR UNEXPLAINED INVESTMENT IN GOLD JEWELLERY OF RS. 5,80,555/-. WE OBSERVE THAT THE ASSESSEES FAMI LY CONSISTS OF THE ASSESSEE HIS MOTHER SMT. VIMLA RANI SHARMA, WIF E NEENA SHARMA, SON INDRA PRAKASH AND DAUGHTER MISS RONAK S HARMA. AS PER THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994 J EWELLERY SHOULD NOT BE SEIZED TO THE EXTENT OF 500 GMS PER M ARRIED LADY, 250 GMS UNMARRIED LADY AND 100 GRMS PER MALE PERSON/CHI LD. THE LD. CIT(A) AFTER APPLYING CBDT INSTRUCTION NO.1916 GAVE PART RELIEF TO THE ASSESSEE OBSERVING AS FOLLOWS: THIS GROUND OF APPEAL IS DIRECTED AGAINST THE ADDIT ION OFRS.6,67,090/- MADE ON ACCOUNT OF UNEXPLAINED INVE STMENTS IN GOLD JEWELLERY. THE AO HAS OBSERVED THAT TOTAL GOLD JEWELLERY MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 23 HAVING NET WEIGHT OF 1199.830 GMS WAS FOUND FROM TH E APPELLANT'S RESIDENCE AND THE LOCKERS AVAILABLE IN THE NAMES OF THE APPELLANT, HIS MOTHER SMT. VIMLA RANI SHARMA AN D HIS WIFE SMT. NEENA SHARMA. IT WAS HELD THAT SMT. VIMLA SHAR MA AND SMT. NEENA SHARMA HAVE SOLD JEWELLERY WEIGHING 1602 .330 GMS IN A.YRS.2002-03 AND 2007-08 AND AS PER SEVERAL PUR CHASE BILLS FOUND DURING SEARCH, NEARLY 900 GMS OF JEWELLERY WA S PURCHASED IN THE NAMES OF THE APPELLANT, SMT. NEENA SHARMA AN D SMT. VIMLA RANI SHARMA. THEREFORE, THE TOTAL JEWELLERY O F 2802.16 GMS WAS REQUIRED TO BE EXPLAINED-BY THE APPELLANT. THE A.G. HAS HELD THAT GOLD JEWELLERY TOTALLING TO 1500 GMS MIGHT HAV E BEEN RECEIVED BY SMT. VIMLA RANI SHRAMA, SMT. NEENA SHAR MA AND THE APPELLANT ON VARIOUS OCCASIONS INCLUDING THEIR MARRIAGE, RECEIPTS BY INHERITANCE, ETC. BUT POSSESSION OF THE BALANCE JEWELLERY OF 402.160GMS (2802.160 LESS 1500 LESS 90 0 GMS) REMAINED UNEXPLAINED. THEREFORE, HE HAD WORKED OUT AND MADE THE ADDITION AT RS.6,67,0901- APPLYING THE AVERAGE RATE TAKEN IN THE VALUATION REPORT PREPARED AT THE TIME OF SEARCH . 13.1 IN THE COURSE OF APPEAL PROCEEDINGS, THE APPEL LANT HAS CONTENDED THAT THE ADDITION MADE BY THE AO IS NOT J USTIFIED. THE APPELLANT BELONGS TO A WELL TO DO FAMILY AND THE EN TIRE JEWELLERY WAS EITHER INHERITED FROM THE PARENTS OR RECEIVED B Y THE FAMILY MEMBERS INCLUDING THEIR CHILDREN ON VARIOUS OCCASIO NS OR PURCHASED SUBSEQUENTLY. IN THE COURSE OF INTENSIVE SEARCH, THE DETAILS OF JEWELLERY SOLD AND PURCHASED WERE FOUND AND ALL THESE FACTS WERE ACCEPTED BY THE AO WITHOUT ANY DISPUTE. HOWEVER, THE AO HAS CONSIDERED THE JEWELLERY RECEIVED ON MARRIAG ES AND OTHER OCCASIONS BY SMT. VIMLA RANI SHARMA, SMT. NEENA SHA RMA AND THE APPELLANT AND RECEIVED ON INHERITANCE ONLY AT 1 500 GMS. THE JEWELLERY RECEIVED AND OWNED BY THE UNMARRIED CHILD REN OF THE APPELLANT I.E. SON, SHRI INDRA PRAKASH AND DAUGHTER MISS RONAK SHARMA WAS NOT CONSIDERED HIM. THE BALANCE QUANTITY OF 402.160 GMS RELATE TO THE CHILDREN. IT WAS CONTENDE D THAT EVEN AS PER THE CBDT'S INSTRUCTIONS REGARDING SEIZURE OF JEWELLERY, JEWELLERY IN RESPECT OF UNMARRIED DAUGHTER AT 250 G MS AND UNMARRIED SON AT 100 GM WAS TO BE CONSIDERED REASON ABLE. THEREFORE, EVEN AS PER THE STANDARDS OF THE BOARD, THE CREDIT OF MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 24 350 GMS SHOULD HAVE BEEN ALLOWED AND AFTER GIVING C REDIT OF 350GMS OF JEWELLERY OF THE CHILDREN, ONLY MEAGER QU ANTITY OF 52.160 GMS REMAINS TO BE EXPLAINED AND LOOKING TO T HE FAMILY STATUS, THIS MUCH OF JEWELERY DESERVES TO BE ACCEPT ED, SPECIFICALLY, WHEN THE A.O. HAS ADOPTED OWNERSHIP O F INHERITED JEWELERY ON ESTIMATE BASIS. 13.2 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A O AND SUBMISSIONS OF THE APPELLANT. IT APPEARS, LOOKING T O THE FAMILY STATUS, THE AO HAS GIVEN CREDIT FOR 1500 GMS OF JEW ELLERY AS RECEIVED BY SMT. VIMLA RANI SHARMA AND SMT. NEENA S HARMA AND THE APPELLANT ON THEIR MARRIAGES AND THAT WAS I NHERITED BY THE FAMILY AND IT IS REASONABLE. HOWEVER, HE DID NO T CONSIDER THE AVAILABILITY OF JEWELLERY IN THE CASE OF THE CHILDR EN AND CONSIDERING THE FAMILY STATUS, IT CANNOT BE RULED O UT. THEREFORE, AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE APPELLANT DESERVES FURTHER CREDIT OF350 GMS OF JEWE LLERY AGAINST HOLDING OF THE CHILDREN. HOWEVER, THERE IS NO EXPLA NATION AVAILABLE FOR THE REMAINING QUANTITY OF 52.16 GMS A ND THE ADDITION MADE BY THE A.O. DESERVES TO BE SUSTAINED TO THIS EXTENT. THEREFORE, APPLYING THE AVERAGE RATE OF RS. 16.59 PER GM, THE UNEXPLAINED INVESTMENT COMES TO RS.86,5351-. AC CORDINGLY THE ADDITION MADE BY THE A.O. IS CONFIRMED TO THIS EXTENT. THE APPELLANT GETS RELIEF OF RS.5,80,555/-. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 32. THE ABOVE FINDING OF FACT HAS NOT BEEN CONTROVE RTED BY THE LD. DR. IN OUR CONSIDERED VIEW THE LD. CIT(A) HAS RIGHT LY GIVEN THE BENEFIT OF 350 GMS OF GOLD JEWELLERY (250 GMS FOR D AUGHTER AND 100 GMS FOR SON) THEREBY GIVING RELIEF OF RS.5,80,555/- AND CONFIRMING THE REMAINING AMOUNT AS UNEXPLAINED INVESTMENT AT R S. 86,535/-. WE THEREFORE, FIND NO REASON TO INTERFERE IN THE FI NDING OF LD. CIT(A) DELETING THE ADDITION OF RS.5,80,555/- AND SAME IS UPHELD. GROUND NO.6 OF REVENUES APPEAL STANDS DISMISSED. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 25 33. NOW WE TAKE UP GROUND NO.7 WHEREIN THE REVENUE HAS CHALLENGED THE DELETION OF ADDITION FOR UNACCOUNTED INVESTMENT OF RS.87,46,000/- MADE BY THE LD. A.O ON ACCOUNT OF O N MONEY PAID FOR PURCHASE OF LAND. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT SEARCH AND SEIZURE ACTIONS WERE CARRIED OUT U/S 132 OF THE ACT AT THE RESIDENCE OF THE ASSESSEE I.E. SHRI MUKESH SHARMA A T BHOPAL ON 21.7.2008. VARIOUS DOCUMENTS ALONG WITH THE MEMORA NDUM OF AGREEMENT TO PURCHASE 1.9 HACTARE OF LAND (APPROXIM ATE 4.70 ACRE LAND) AT RATANPUR, MISORD NEAR BHOPAL DATED 24.5.20 08 WERE FOUND. DURING THE POST SEARCH ENQUIRY IT WAS FOUND THAT TH E SAID LAND WAS PURCHASED ON 23.6.2008 BY THE ASSESSEE ALONG WITH 1 4 OTHER CO- PURCHASERS WHICH BELONG TO A PLACE CALLED DABRA. 21 REGISTRATION DEEDS WERE MADE SHOWING TOTAL SALE CONSIDERATION AT RS. 5 CRORES AND RS. 49,18,335/- (ROUGHLY RS.50 LAKHS) AS REGISTRY C HARGES, STAMP AND OTHER FEES WERE INCURRED AS DETAILED BELOW; S.NO NAME OF THE PURCHASERS AMOUNT OF REGISTRY (RS.) STAMP DUTY (RS.) STAMP PAPER FEE (RS.) OTHER FEES (RS.) KHASRA NO./TOTAL ARIA AREA SOLD 1 RC PARASHAR 2700000 239625 600 21775 556/(1.1 80 HEC.) 0.100 HEC. 2 -DO- 2595000 230310 280 20935 556/(1.1 80 HEC 0.080 HEC. 3 LALTA PRASAD CHOUDHARY 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 4 KAMLESH CHOUDHARY 479000 42520 2500 4010 559/(0.1 60 HEC.) 0.020 HEC. 5 -DO- 2168000 192500 3000 17520 557/(0.4 00 HEC.) 0.080 HEC. 6 -DO- 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 7 KHEMRAJ SINGH CHOUHAN 12680 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 8 -DO- 1563000 138720 680 12680 556/(1.1 0.060 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 26 60 HEC) HEC 9 -DO- 1084000 96205 1000 8850 559/(0.1 60 HEC. 0.040 HEC. 10 SANTOSH KUMAR SHARMA 2647000 235000 2500 21355 558/(1.1 60 HEC. 0.100 HEC. 11 SUKHDEV SINGH 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 12 SURESH UPADHYA 2647000 235000 3000 21355 556/(1. 1 80 HEC.) 0.100 HEC. 13 DHARMENDRA CHOUDHARY 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 14 RAM KUMAR 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 15 VIRENDRA KUMAR SHARMA 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 16 SANJAY SAHU 2647000 235000 3000 21355 559/(0.1 60 HEC. 0.100 HEC. 17 PRADEEP KUMAR SHARMA 2647000 235000 3000 21355 559/(0.1 60 HEC. 0.100 HEC. 18 CHANDRA KUMAR SHARMA 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 19 VIJAY KUMAR SHRIVASTAVA 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. TOTAL 45000000 3994880 45560 363385 20 MUKESH SHARMA 2647000 235000 900 21355 556/(1.1 80 HEC.) 0.100 HEC. 21 MUKESH SHARMA 2647000 235000 900 21355 556/(1.1 80 HEC.) 0.100 HEC. GRAND TOTAL 50000000 4464880 47360 406095 54918335 34. MR. MUKESH SHARMA WAS CONFRONTED WITH THESE DO CUMENTS AT THE TIME OF SEARCH. HE STATED THAT THESE PERTAINS TO THE LAND DEAL WITH MR. VINOD VAISH AND HE ALONG WITH OTHER PURCHA SERS PURCHASED AGRICULTURE LAND FOR TOTAL SUM OF RS.5 CRORES PLUS REGISTRY CHARGES. LD. A.O THEREAFTER ISSUE NOTICE U/S 153A OF THE ACT DATED 10.7.2009 DIRECTING THE ASSESSEE TO FILE THE RETURN OF INCOME . ASSESSEE COMPLIED TO THE NOTICE AND FILED INCOME TAX RETURN. CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICES U/S 143(2) AND 142(1) O F THE ACT. AS REGARDS THE ISSUE OF PURCHASE OF LAND DISCUSSED ABO VE THE LD. A.O MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 27 EXAMINED THESE TRANSACTIONS ALONG WITH SEIZED DOCUM ENTS LPS-1/1 PAGE NO.74 (FRONT AND BACK) WHICH CONTAINED CERTAIN CALCULATIONS FOR THE ALLEGED LAND DEAL WITH MR. VINOD VAISH. LD. A. O OBSERVED THAT CERTAIN DETAILS OF RECEIPT AND PAYMENTS AND SOME CA LCULATION WERE THERE ON THESE LOOSE PAPERS. ON BACK SIDE CERTAIN C ALCULATIONS HAVE BEEN MADE. THE ALLEGED SEIZED DOCUMENTS FORMS PART OF IMPUGNED ASSESSMENT ORDER AT PAGE 51TO 55. WHEN THE ASSESSE E WAS CONFRONTED WITH THESE SEIZED DOCUMENTS IT WAS SUBMI TTED THAT THESE ARE MERELY ROUGH JOTTINGS AND THE CALCULATIONS RELA TES TO THE FUTURE PLANNING OF SELLING THE AGRICULTURE LAND AFTER CONV ERTING IT FOR RESIDENTIAL PURPOSE. HOWEVER LD. A.O WAS NOT CONVI NCED WITH THE SUBMISSIONS. ON OBSERVING THE FACT THAT THE ACTUAL TRANSACTION RELATING TO PURCHASE OF LAND WAS HAVING SOME NEXUS WITH THE SEIZED DOCUMENT WHICH INCLUDED THE REFERENCE TO CHEQUE PAY MENT OF RS.50 LAKHS, AREA OF LAND, THE FIGURE 225 MENTIONED IN TH E SEIZED DOCUMENT DENOTING THE CHEQUE OF RS.225 LAKHS DEPOSITED IN TH E BANK ACCOUNT OF CO-PURCHASERS. LD. A.O ALSO LINKED THE AMOUNT O F RS.323 LAKHS MENTIONED ON THE SEIZED DOCUMENTS WITH THE CASH DEP OSITED IN THE BANK ACCOUNT OF THE CO-PURCHASERS. ON THE BASIS OF THESE FACTS LD. A.O CAME TO THE CONCLUSION THAT THE ACTUAL DEAL OF LAND WAS CARRIED OUT AT RS.14,24,60,600/- OUT OF WHICH RS.5 CRORES W AS THE STATED PURCHASE CONSIDERATION AND RS.49,18,335/- ROUGHLY T O RS.50 LAKHS WAS THE REGISTRY CHARGES, STAMP AND OTHER CHARGES. LD. A.O ALSO HELD THAT THE LAND MEASURING 4.70 ACRES WHICH IS EQUAL T O 43,560 SQ.FT SOLD @RS.660/- PER SQ.FT FOR TOTAL CONSIDERATION OF RS.13,65,60,600/- MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 28 AND RS.9,00,000/- WAS PAID TO A PERSON NAMED KAUSHA L BHAIYA FOR ARRANGING ENTRIES IN THE NAME OF VARIOUS PARTIES I. E. THE CO- PURCHASERS. THIS UNACCOUNTED PAYMENT IN THE ENTIRE DEAL WAS WORKED OUT BY LD. A.O AT RS.8,74,60,600/- (RS.13,65 ,60,600/-+ RS.9,00,000/- (-) RS. 5,00,00,000/-). SINCE THE AS SESSEES SHARE IN THE STATED CONSIDERATION IS 1/10 TH ONLY, THE UNACCOUNTED PAYMENT ALLEGED TO HAVE BEEN MADE BY THE ASSESSEE WAS ADDED AT RS.87,46,000/- AS UNDISCLOSED INCOME. ON THE BASIS OF THE FINDING BY THE LD. A.O IN THE CASE OF MR. MUKESH SHARMA ADD ITION FOR UNACCOUNTED RECEIPT OF RS.8,74,60,600/- WAS ALSO MA DE IN THE HANDS OF THE SELLER NAMELY MR. VINOD VAISH. SUBSEQUENTLY LD. CIT(A) VIDE HIS ORDER DATED 28.32013 PASSED U/S 263 OF THE ACT HELD THAT THE ORDER OF THE LD. A.O PASSED IN THE CASE OF MR. MUK ESH SHARMA DATED 31.12.2010 WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE AND DIRECTED THE LD. A.O TO EXAMINE THE ISS UE OF UNDISCLOSED INCOME INVESTED IN THE PURCHASE OF SAID AGRICULTURE LAND AND TO MAKE TOTAL ADDITION OF RS.8,74,60,600/- IN THE HANDS OF MR. MUKESH SHARMA AS THE OTHER CO-PARTNERS WERE MERELY ACCOMMO DATION ENTRY PROVIDERS AS THEY WERE FUNDED BY MR. MUKESH SHARMA TO MAKE THE PAYMENT FOR PURCHASE OF PROPERTY. HOWEVER THE ASSE SSEE MR. MUKESH SHARMA SUCCEEDED IN THE APPEAL BEFORE THE TR IBUNAL AGAINST THE ORDER PASSED U/S 263 OF THE LD. CIT(A) VIDE ORD ER DATED 31.10.2014 IN ITA NO.366 TO 372/IND/2013 AS THE ORD ER PASSED U/S 263 OF THE ACT DATED 28.03.2013 WAS QUASHED BY TRIB UNAL. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 29 35. IN THE CASE OF OTHER 14 CO-PURCHASERS PROTECTIV E ADDITION OF RS.8,07,43,547/- WAS MADE AFTER GIVING THE CREDIT O F INCOME SURRENDERED BY THEM IN THEIR INCOME TAX RETURN. 36. THE ASSESSEE MR. MUKESH SHARMA AGGRIEVED WITH T HE ORDER OF THE LD. A.O DATED 31.10.2012 FILED APPEAL BEFORE LD. CI T(A) CHALLENGING VARIOUS ADDITIONS. THE ADDITIONS HAVE BEEN DISCUSSE D IN OTHER GROUNDS RAISED BY THE REVENUE. AS FAR AS THE ISSUE RELATING TO THE ADDITION OF RS.87,46,000/- ASSESSEE SUCCEEDED BEFOR E LD. CIT(A) AS THIS ADDITION WAS DELETED BY LD. CIT(A) GIVING DETA ILED FINDING OF FACT AND COMING TO A CONCLUSION THAT THE IMPUGNED ADDITI ON WAS BASED ON THE BASIS OF SEIZED DOCUMENT AND JOTTINGS CONTAI NED IN THESE LOOSE PAPERS MAY HAVE GENERATED A SUSPICION BUT THEY WERE NOT SUFFICIENT ENOUGH TO CONCLUDE THAT THE ALLEGED ON MONEY HAS CHANGED HANDS AS THERE IS NO CORROBORATIVE EVIDENCE TO PROVE IT. 37. NOW REVENUE IS IN APPEAL BEFORE THE TRIBUNAL RA ISING GROUND NO.7. 38. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGU ED SUPPORTING THE ORDER OF LD. AO. SHE ALSO REFERRED TO THE FIND ING OF LD. CIT(A) IN THE CASE OF CO-PURCHASERS WHERE DETAILED FINDING IS GIVEN THAT OTHER CO-PURCHASERS ARE NOT MAN OF MEANS TO THE EXTENT OF INCOME THEY HAVE SHOWN FOR ASSESSMENT YEAR 2009-10 IT WAS ONLY FOR ASSESSMENT YEAR 2009-10 THAT THEY HAD DISCLOSED HIG HER INCOME BUT IN THE SUBSEQUENT ASSESSMENT YEAR NORMAL INCOME HA VE BEEN SHOWN. THESE CO-PURCHASERS HAVE ALSO OFFERED THE U NSECURED LOAN MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 30 TAKEN DURING THE YEAR TO TAX. CASH WAS DEPOSITED I N THEIR RESPECTIVE BANK ACCOUNTS WHICH IS ALLEGED TO HAVE BEEN RECEIVE D FROM MR. MUKESH SHARMA. SHE FURTHER SUBMITTED THAT VARIOUS FIGURES MENTIONED IN THE ALLEGED SEIZED DOCUMENTS SEEMS TO HAVE DIRECT NEXUS WITH THE ACTUAL LAND DEAL AND LD. A.O WAS JUS TIFIED IN MAKING THE ADDITION FOR ON MONEY PAID AT RS.8,74,60,600/ -. 39. PER CONTRA LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE PURCHASE OF THE LAND WERE MADE BY THE ASSESSEE ALON G WITH OTHER PERSONS BUT THERE WAS NO DIRECT RELATION WITH THEM. NOTINGS FOUND IN THE PAPERS REPRODUCED AT PAGE 51 TO 55 OF THE ASSES SMENT ORDER DEPICTED IN THE SEIZED DOCUMENT ARE ROUGH NOTINGS. THEY DO NOT CONTAIN ANY DATE, NAME OR NARRATION AGAINST THE CAL CULATIONS. THE ASSESSEE ALONG WITH OTHER BUYERS HAS MADE A PLANNIN G REGARDING FUTURE PROSPECTS OF THE LAND AFTER COMPLETION OF TH E TRANSACTION AND THE ALLEGED SEIZED DOCUMENTS ARE DUMB DOCUMENTS AND THEY CANNOT BE RELIED AS THE ASSESSMENT ORDER MAKING ADDITIONS BY IT IS MISCHIEVOUS. THE CALCULATION MADE BY THE LD. A.O A RE BASED ONLY ON SUSPICION AND ASSUMPTION AND ARE NOT SUPPORTED WITH ANY COHERENT MATERIAL AS ASSUMED BY THE LD. A.O, OVER AND ABOVE THE AMOUNT OF INVESTMENT SHOWN BY THE APPELLANT. LD. COUNSEL FOR THE ASSESSEE FURTHER ASSERTED THAT THE ALLEGED PAPERS RELATES TO FUTURE PLANNING WITH RESPECT TO THE LAND AND LOOSE PAPER NO.74 & 75 WAS SHOWN FOR THE PROSPECTIVE BUYERS IN FURTHERANCE OF THEIR BUSI NESS. NO SUCH TRANSACTION EVER HAPPENED. THE SITUATION OF LAND I .E. RATANPUR, MISROD IS SLIGHTLY AWAY FROM BHOPAL AND AT THE RELE VANT POINT OF TIME MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 31 AT NO STAGE THE RATE WAS RS.660/- PER SQ.FT. IT WAS ALSO SUBMITTED THAT THE LAND UNDER CONSIDERATION WAS AGRICULTURE L AND AND UN DIVERTED LAND WHICH WAS NOT COMMANDING SUCH PRICE A S ASSUMED BY THE LD. A.O. THERE IS NO CORROBORATIVE EVIDENCE WH ICH COULD SUPPORT THE ROUGH JOTTINGS MADE ON THE SEIZED DOCUMENTS. R EGISTERED SALE DEED HAS BEEN SIGNED BY ALL THE CONCERNED PARTIES I .E. THE BUYERS AND SELLERS AND TRANSACTIONS TAKEN PLACE THROUGH ACCOUN T PAYEE CHEQUES. REVENUE AUTHORITIES HAVE NOT INITIATED ANY ACTION F OR VALUING THE PROPERTY BY REGISTERED VALUER OR DEPARTMENTAL VALUA TION OFFICER SO AS TO PROVE THAT THE MARKET PRICE OF THE ALLEGED AGRIC ULTURE LAND WAS MUCH MORE THAN THE STATED SALE CONSIDERATION OF RS. 5 CRORES. HE FURTHER SUBMITTED THAT ALL THE OTHER PERSONS WHO AR E THE CO-PARTNERS IN PURCHASING THE LAND HAVE FILED THEIR RESPECTIVE INCOME TAX RETURNS SHOWING SUFFICIENT INCOME TO COVER UP THE P URCHASE CONSIDERATION. UNDER THESE CIRCUMSTANCES THE ADD ITION MADE BY THE LD. A.O WAS NOT JUSTIFIED AND LD. CIT(A) HAS RI GHTLY DELETED THE ADDITION. 40. IN SUPPORT OF THE CONTENTION THAT NO ADDITION I S POSSIBLE ON ACCOUNT OF IMAGINARY AND NON RELIABLE ENTRIES FOUND IN DIARY AND LOOSE PAPERS. LD. COUNSEL FOR THE ASSESSEE PLACED R ELIANCE ON THE FOLLOWING JUDGEMENTS OF HONBLE APEX COURT/HONBLE HIGH COURTS AND TRIBUNALS; MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 32 SR. NO. PARTY NAMES & CITATION PROPOSITION PARA PAGE NO 1 (1998) SCC 410 CBI V. V.C. SHUKLA ENTRIES APPEARING IN LOOSE PAPER NOT SEIZED FROM ONE PERSON CANNOT FROM EVIDENCE FOR ANOTHER PERSON PARA 34 & 39 1-18 2 (1988) 172-ITR 250/251 (HON'BLE SUPREME COURT) CHUHARMAL VS. CIT RULE OF EVIDENCE & SALUTARY PRINCIPAL OF COMMON LAW JURISPRUDENCE PARA 6 & 7 19-22 3 (2001) 70 TTJ (AHD) 122 PRARTHANA CONSTRUCTION (P) LTD. VS. DCIT THE PRESUMPTION UNDER THE PROVISION OF SECTION 132(4A) WOULD IN ANY CASE NOT APPLICABLE TO A THIRD PARTY FROM WHOSE POSSESSION SUCH PAPERS AND DOCUMENTS HAVE NOT BEEN OBTAINED PARA 12 23-29 4 (1991) 39 ITD 183(DEL) ASHWIN KUMAR VS. ITO THE LOOSE SHEET FORMING PART OF SEIZED MATERIAL IS A DUMB DOCUMENT AND NO ADDITION CAN BE MADE IN THE HAND OF ASSESSEE ON THE BASIS OF DUMB DOCUMENTS PARA 24 30-38 5 (2005) 1 SOT 515 (DEL) NEM CHAND DAGA V. ACIT WHETHER ENTRIES FOUND IN LOOSE PAPER CAN HAVE ANY AUTHENTICITY OR EVIDENTIARY VALUE VALUE-IN SELF- HELD NO PARA 16 & 21 39-50 6 (2002) 82 ITD 85 (MUM) (TM) S.P. GOYAL VS. DCIT ADDITION CANNOT BE MADE ON BASIS OF ENTRY ON LOOSE PAPER IS HAS TO BE SUPPORTED BY CIRCUMSTANTIAL EVIDENCE AND CORROBORATIVE EVIDENCE PARA 11 AND PARA 15 OF SECON D PART 51-62 7 (2008) 307 ITR 137(GUJ) CIT VS. MAULIK KUMAR K SHAH THE ADDITION MADE BY THE AO TOWARD ON MONEY ON THE BASIS OF SEIZED PAPER ALONG WITHOUT ANY CORROBORATIVE EVIDENCE ACCNOT BE SUSTAINED PARA 6 63-66 8 (2007) 291 ITR 36 (DELHI) CIT V. KULWANT RAI NO ADDITION CAN BE MADE BASED ON SURMISES AND GUES WORK PARA 12 & 13 67-70 9 (2007) 289 ITR 509 ACIT V. KENCES FOUNDATION P. LTD. SEIZED DOCUEMNTS ARE NOT A CONCLUSIVE PROOF TO ARRIVE AT UNDISCLOSED INCOME PARA 16 & 17 71-75 10 (2009) 308 ITR 230 (DEL) CIT V. D.K. GUPTA IF THERE IS NO CORROBORATIVE OR DIRECT EVIDENCE TO PRESUME THAT THE NOTINGS/JOTTINGS HAS MATERIALIZED INTO TRANSACTIONS GIVING RISE TO INCOME NOT DISCLOSED IN THE BOOKS BY THE ASSESSEE THE DEPARTMENTS PRESUMPTION CANNOT PARA 3 76-78 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 33 BE TENABLE IN LAW 11 (2008) 301 ITR 134 (MP) PRAKASH CHAND NAHTA V. CIT THAT SEIZED DOCUMENT MUST BE SPEAKING DOCUMENT NO ADDITION PERMISSIBLE ON THE BASIS OF DUMB PAPERS 15 & 16 79-83 12 (2007) 295 ITR 352(JABALPUR I.T.A.T.) ACIT V. SATYAPAL WASSAM THAT SEIZED DOCUMENT MUST BE SPEAKING DOCUMENT NO ADDITION PERMISSIBLE ON THE BASIS OF DUMB PAPERS PARA 29 84- 110 13 (2008) 25 SOT 387 (KOL) NIRMAL FASHIONS (P) L. V. DCIT SINCE PAPER/DOCUMENTS SEIZED ON SEARCH WERE FOUND TO BE UNTENABLE AND CONTRARY TO THER EVIDENCE ON RECORD IMPUGNED ADDITION WAS NOT JUSTIFIED 111- 118 14 (1997) 224 ITR 180 CIT VS. RAM NARAIN GOEL THAT SUSPICION HOWEVER STRONG CANNOT TAKE THE PLACE OF EVIDENCE OR PROOF PARA 5 & 6 119- 121 15 (2003) 262 ITR 295 (P & H) CIT VS. FAQIR CHAMAN LAL IT IS SETTLED PROPOSITION THAT THE PRESUMPTION HOWEVER STRONG CANNOT SUBSTITUTE EVIDENCE PARA 3 122- 124 16 (2001) 250 ITR 539 CIT VS. EMERALD COMMERCIAL LTD. & ANR. THE FINDING OF THE INCOME TAX OFFICER AND CIT(A) WERE BASED ON PRESUMPTION AND NOT WARRANTED BY THE FACTS OF THE CASE PARA 5 & 6 125- 126 17 332 ITR 468 (P&H) CIT VS. ATAM VALVES P. LTD. AS SUCH THE LD. CIT(A) TO THAT EXTENT IS JUSTIFIES IN HOLDING THAT ESTIMATION OF SALES ON THE BASIS OF LOSE SLIPS REPRESENTED PAYMENT OF WAGES IS NOT POSSIBLE PARA 2 128 18 (2003) 84 ITD 320 (MUM) STRAPTEX (INDIA) P. LTD. V. DCIT THE PRESUMPTION UNDER THE PROVISION OF SECTION 132 (4A) WOULD IN ANY CASE NOT APPLICABLE TO A THIRD PARTY FROM WHOSE POSSESSION SUCH PAPERS AND DOCUMENTS HAVE NOT BEEN OBTAINED PARA 7 129- 135 19 (2006) 99 ITD 177 (DEL) DUMB DOCUMENTS OR DOCUMENTS WITH NO CERTAINTY HAVE NO EVIDENTIARY VALUE PARA 36 136- 153 20 (2017) 394 ITR 220 (HON'BLE SUPREME COURT) COMMON CAUSE ( A REGISTERED SOCIETY) V. UOI INVESTIGATION COULD NOT HAVE BEEN DIRECTED IN CAS OF HIGH PUBLIC FUNCTIONARIES ON THE BASIS OF LEGALLY INADMISSIBLE EVIDENCE IN FORM OF LOOSE PAPERS 154- 162 21 (2018) 32 ITJ 510 (TRIB- INDORE) ASSESSMENT. CIT V. NAROTTAM MISHRA AO MADE ADDITIONS WITHOUT ANY BASIS AND ONLY ON THE BASIS OF SUSPICION AND DOUBTS AND THE REFERENCE DRAWN BY AO WERE ALSO 36 163- 193 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 34 NOT BASE ON THE RELIABLE EVIDENCE AND MATERIAL CIT(A) WAS RIGHT IN ALLOWING RELIEF TO THE ASSESSEE RELIANCE WAS ALSO PLACED ON FOLLOWING JUDGMENTS; (I) CENTRAL BUREAU OF INVESTIGATION V V.C. SHUKHLA (199 8) TAXMANN.COM 2155(SC) (II) CHUHARMAL V/S COMMISSIONER OF INCOME TAX (1998) 172 TR 250/251 (SC) (III) PRARTHANA CONSTRUCTIONS PVT. LTD V/S DEPUTY COMMISS IONER OF INCOME TAX (2001) 70TTJ (AHD) 122 (IV) ASHWIN KUMAR VS INCOME TAX OFFICER (1991) 39 ITD 18 3 (DEL) (V) NEM CHAND DAGA V/S ASSISTANT COMMISSIONER OF INCOME TAX (2005) 1 SOT 515 (DELHI) (VI) S.P. GOYAL VS DEPUTY COMMISSIONER OF INCOME TAX (20 02) 82 ITD 85 (MUM) (TM) (VII) COMMISSIONER OF INCOME TAX V/S MAULIKUMAR K. SHAH ( 2008) 307 ITR 137 (GUJ.) (VIII) COMMISSIONER OF INCOME TAX VS. KULWANT RAI (2007) 2 91 ITR 36 (DELHI) (IX) ASSISTANT COMMISSIONER OF INCOME TAX VS. KENCES FOU NDATION PVT. LTD (2007) 289 ITR 509 HIGH COURT OF MADRAS (X) COMMISSIONER OF INCOME TAX VS D.K. GUPTA (2009) 308 ITR 230 (DEL) HIGH COURT OF DELHI (XI) PRAKASH CHAND NAHTA VS COMMISSIONER OF INCOME TAX ( 2008) 301 ITR 134 (MP) HIGH COURT OF MADHYA PRADESH (XII) ACIT V/S SRI SATYAPAL WASSAN (2007) 295 ITR 352 ITA T, JABALPUR BENCH (XIII) NIRMAL FASHIONS (P) LTD VS. DCIT (2008) 25 SOT 387 (KOL) ITAT, KOLKATA BENCH (XIV) COMMISSIONER OF INCOME TAX VS TAM NARAIN GOEL (1997 ) 224 ITR 180, PUNJAB & HARYANA HIGH COURT. (XV) COMMISSIONER OF INCOME TAX VS. FAQIR CHAND CHAMAN L AL (2003) 262 ITR 295 (P&H) (XVI) COMMISSIONER OF INCOME TAX VS. EMERALD COMMERCIAL L TD & ORS (2001) 250 ITR 539, HIGH COURT OF CALCUTTA (XVII) COMMISSIONER OF INCOME TAX VS. ATAM VALVES (P) LTD 332 ITR 468 (P&H) (XVIII) STARPTEX (INDIA) (P) LTD VS. DEPUTY COMMISSIONER OF INCOME TAX (2003) 84 ITD 320 (MUM) (XIX) BANSAL STRIPS PVT. LTD VS. ASSTT. COMMISSIONER OF I NCOME TAX (2006) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 35 99 ITD 177 (DEL.) (XX) COMMON CAUSE (A REGISTERED SOCIETY) VS UNION OF IND IA (2017) ITR 220 (SC) (XXI) ASSTT. COMMISSIONER OF INCOME TAX VS. NAROTTAM MISH RA (2018) 32 ITJ 510 (INDORE) ITAT, INDORE BENCH. (XXII)BANSAL STRIPS PVT. LTD V/S ACIT (2006) 99 IT D 177 (DEL) 41. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE JUD GMENTS/DECISIONS OF HON'BLE APEX COURT/HIGH COURTS AND TRIBUNALS. IN GROUND NO.7 RAISED BY THE REVENUE IN THE CASE OF SHRI MUKESH SH ARMA FOR ASSESSMENT YEAR 2009-10 THE FINDING OF LD. CIT(A) H AS BEEN CHALLENGED FOR THE DELETION OF ADDITION FOR UNACCOU NTED INVESTMENT OF RS.87,46,000/- ALLEGED TO HAVE BEEN MADE ON ACCOUNT OF ON MONEY PAID FOR PURCHASE OF LAND. ON 21.7.2008 SEA RCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT AT THE RE SIDENCE OF ASSESSEE AT BHOPAL. VARIOUS DOCUMENTS WERE SEIZED WHICH ALS O INCLUDED MEMORANDUM OF AGREEMENT TO PURCHASE 1.9 HECTARE OF LAND (APPROXIMATELY 4.70 ACRE LAND) AT RATANPUR, MISROD , NEAR BHOPAL DATED 24.5.2008. STATEMENTS OF THE ASSESSEE WERE T AKEN. DURING POST SEARCH ENQUIRY IT WAS FOUND THAT THROUGH THE A BOVE REFERRED AGREEMENT 21 SALE DEEDS WERE REGISTERED IN THE NAM E OF ASSESSEE AND 14 OTHER CO-PURCHASERS TO PURCHASE THE LAND FRO M MR. VINOD VAISH. THE TOTAL CONSIDERATION PAID FOR THE PURCHA SE OF LAND WAS RS.5 CRORES ALONG WITH PAYMENT ON STAMP DUTY CHARGE S AT RS.46,64,880/- AND OTHER CHARGES. AT THE COST OF R EPETITION WE ARE AGAIN REPRODUCING THE DETAILS OF 21 SALE DEEDS; MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 36 S.NO NAME OF THE PURCHASERS AMOUNT OF REGISTRY (RS.) STAMP DUTY (RS.) STAMP PAPER FEE (RS.) OTHER FEES (RS.) KHASRA NO./TOTAL ARIA AREA SOLD 1 RC PARASHAR 2700000 239625 600 21775 556/(1.1 80 HEC.) 0.100 HEC. 2 -DO- 2595000 230310 280 20935 556/(1.1 80 HEC 0.080 HEC. 3 LALTA PRASAD CHOUDHARY 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 4 KAMLESH CHOUDHARY 479000 42520 2500 4010 559/(0.1 60 HEC.) 0.020 HEC. 5 -DO- 2168000 192500 3000 17520 557/(0.4 00 HEC.) 0.080 HEC. 6 -DO- 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 7 KHEMRAJ SINGH CHOUHAN 12680 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 8 -DO- 1563000 138720 680 12680 556/(1.1 60 HEC) 0.060 HEC 9 -DO- 1084000 96205 1000 8850 559/(0.1 60 HEC. 0.040 HEC. 10 SANTOSH KUMAR SHARMA 2647000 235000 2500 21355 558/(1.1 60 HEC. 0.100 HEC. 11 SUKHDEV SINGH 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 12 SURESH UPADHYA 2647000 235000 3000 21355 556/(1. 1 80 HEC.) 0.100 HEC. 13 DHARMENDRA CHOUDHARY 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 14 RAM KUMAR 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 15 VIRENDRA KUMAR SHARMA 2647000 235000 3000 21355 557/(0.4 00 HEC. 0.100 HEC. 16 SANJAY SAHU 2647000 235000 3000 21355 559/(0.1 60 HEC. 0.100 HEC. 17 PRADEEP KUMAR SHARMA 2647000 235000 3000 21355 559/(0.1 60 HEC. 0.100 HEC. 18 CHANDRA KUMAR SHARMA 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. 19 VIJAY KUMAR SHRIVASTAVA 2647000 235000 3000 21355 556/(1.1 80 HEC.) 0.100 HEC. TOTAL 45000000 3994880 45560 363385 20 MUKESH SHARMA 2647000 235000 900 21355 556/(1.1 80 HEC.) 0.100 HEC. 21 MUKESH SHARMA 2647000 235000 900 21355 556/(1.1 80 HEC.) 0.100 HEC. GRAND TOTAL 50000000 4464880 47360 406095 54918335 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 37 42. DURING THE COURSE OF SEARCH VARIOUS DOCUMENTS W ERE SEIZED WHICH ALSO INCLUDED LPS 1/1 PAGE NO.74 & 75 (FRONT AND BACK). THESE SEIZED LOOSE PAPERS CONTAINED CERTAIN ENTRIES AND CALCULATIONS. THESE ARE NOT SIGNED BY ANY OF THE PARTIES. FOR B ETTER UNDERSTANDING WE REPRODUCE BELOW THE SCAN COPY OF THE TYPED VERSI ON OF SEIZED DOCUMENT ON THE BASIS OF WHICH THE LD. A.O CAME TO A CONCLUSION THAT ON MONEY OF RS.8,74,60,600/- WAS PAID BY AL L THE PURCHASERS INCLUDING THE ASSESSEE TO MR. VINOD VAIS H AND TO THE EXTENT OF ASSESSEES SHARE IN THE LAND I.E. 10% ADD ITION FOR UNACCOUNTED INVESTMENT OF RS.87,46,000/- WAS MADE B Y THE LD. A.O. IN THE ASSESSMENT ORDER LD. A.O HAS REPRODUCED THE ORIGINAL SEIZED DOCUMENT AS WELL AS TYPED VERSION OF THE SEIZED DOC UMENTS WHICH ARE PLACED AT PAGE 53 AND 55 OF THE PAPER BOOK. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 38 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 39 43. IN THE SEIZED DOCUMENT LPS 1/1 PAGE NO.74 THERE WERE ALSO DETAILS OF BIFURCATION OF THE TOTAL LAND ALONG WITH THE AMOUNT PAID FOR WHICH PORTION AND THE TOTAL CONSIDERATION FOR 1.9 H ECTARE LAND IS STATED AT RS. 5 CRORES ONLY. 44. NOW COMING TO THE ENGLISH TYPED VERSION OF THE SEIZED DOCUMENTS SCANNED ABOVE THESE CONTAINS VARIOUS FIGU RES AND CERTAIN CALCULATION FOR 206910 S1Q.FT LAND @660/- PER SQ.FT . THESE ARE LOOSE PAPERS HAVING NO SPECIFIC MENTION OF NAMES OF THE R ELATED PARTIES. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 40 MR. MUKESH SHARMA HAS DENIED TO HAVE MADE THE ALLEG ED UNACCOUNTED INVESTMENT. AS FAR AS THESE LOOSE SHEE TS ARE CONCERNED IT HAS BEEN STATED THAT THE CO-PURCHASERS INCLUDING THE ASSESSEE WERE PLANNING TO SELL THE LAND IN FUTURE @660/- PER SQ.FT. IT IS CONTENDED BY LD. COUNSEL FOR THE ASSESSEE THAT THE LAND PURCHASED IS AGRICULTURAL LAND AND AS PER THE STAMP VALUATION AU THORITIES THE CIRCLE RATE OF THE ALLEGED LAND WAS BELOW THE STATE D PURCHASE CONSIDERATION OF RS.5 CRORES AND BY NO STRETCH OF I MAGINATION THE VALUE OF THE LAND CAN BE RS.13,65,60,600/- AS SHOWN IN THE ALLEGED SEIZED DOCUMENT AT PAGE-74 ARRIVED AT BY MULTIPLYIN G 206910 SQ.FT WITH THE RATE OF RS.660/- PER SQ.FT. 45. LD. COUNSEL FOR THE ASSESSEE ALSO CONTENDED THA T NOTINGS MADE ON THE LOOSE PAPERS WERE ROUGH NOTINGS AND THEY HAV E NO RELATION WITH ANY TRANSACTION HAPPENED ON OR BEFORE THE DATE OF SEARCH AND NO ADDITION CAN BE MADE ON THE BASIS OF ROUGH JOTTI NGS. FURTHER ALL THE OTHER CO-PURCHASERS HAVE DULY REFLECTED THEIR I NVESTMENT IN THE PURCHASE OF LAND AND THEY HAVE ALSO OFFERED INCOME FOR TAX WHICH IS NOT IN DISPUTE. THE SELLER HAS ALSO NOT STATED TO HAVE RECEIVED ANY ON MONEY FROM THE PURCHASER. SALE DEEDS HAVE BEE N SINGED BY ALL THE CONCERNED PARTIES IN THE PRESENCE OF THE REGIST ERING AUTHORITY. IT IS NOT THE CASE THAT THE STATED CONSIDERATION OF RS .5 CRORES IS LESS THAN THE CIRCLE RATE. THE LD. A.O HAS ALSO NOT TAK EN ANY PAINS TO GET THE VALUATION OF THE LAND FROM THE APPROVED VALUER BEFORE COMING TO THE CONCLUSION THAT THE FAIR MARKET VALUE OF THE LA ND WAS MUCH MORE THAN STATED CONSIDERATION. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 41 46. WE FIND THAT LD. CIT(A) AFTER APPRECIATING THE FACT DELETED THE ADDITION OF RS.87,46,000/- OBSERVING AS FOLLOWS:- THIS GROUND OF APPEAL IS DIRECTED AGAINST ADDITION OF RS.87,46,000/-- MADE ON ACCOUNT OF PAYMENT ON MONEY FOR PURCHASE OF LAND. T HE AO HAS OBSERVED THAT CERTAIN DOCUMENTS ALONG WITH A MEMORANDUM OF AGREEM ENT FOR PURCHASE OF LAND OF 1.9 HECTARES (4.70 ACRES) AT RATANPUR, MISS ROAD NE AR BHOPAL WAS SEIZED IN THE COURSE OF SEARCH AT THE APPELLANT'S RESIDENTIAL PRE MISES. FURTHER, IT WAS HELD THAT IN THE COURSE OF SUBSEQUENT ENQUIRY, IT WAS FOUND THAT THE. LAND WAS PURCHASED BY THE APPELLANT ALONG WITH 14 OTHER PERSONS ON 23.06. 2008 FOR TOTAL SALE CONSIDERATION OF RS.5 CRORES AND RS.49,18,355/- (RO UGHLY RS.50,00,000/-) WAS INCURRED TOWARDS REGISTRY CHARGES, STAMP DUTY, ETC. THIS LAND WAS PURCHASED FROM SHRI VINOD VAISH AND HIS FAMILY MEMBERS THROUGH 21 REGISTRIES. IN THE COURSE OF SEARCH, THE APPELLANT HAS ADMITTED THAT THE ENTIRE AMOUNT OF RS.5 CRORES PERTAINS TO HIM AND HE WAS READY TO SURRENDER THE AMOUNT AS HIS UNDISCLOSED INCOME. THE AO FURTHER HELD THAT SEIZED DOCUMENTS SHOWED THAT TOTA L PAYMENT OF RS.14,24,60,600/- WAS MADE IN THE LAND DEAL OUT OF WHICH RS.5,50,00,000/- ( INCLUDING REGISTRY CHARGES) WAS PAID AND THE BALANC E AMOUNT WAS PAID IN CASH OVER AND ABOVE THE STATED PURCHASE CONSIDERATION. T HE AO HAS HELD THAT PAGE NO.74 OFLPS-1I1 AND BACK SIDE OF THE SAID PAGE, GIV E DETAILED CALCULATIONS OF THE LAND DEAL WITH SHRI VINOD VAISH. AS PER CALCULATION GIVEN IN PAGE NO.75, THE AREA IN SQ.FT COMES TO 206910 SQFTS AND THE TOTAL COST @RS. 660/- PER SQ.FT WORKS OUT TO RS.13,65,60,600/- AND AFTER INCLUDING RS.50,00,000/ - TOWARDS REGISTRY EXPENSES AND RS.9,00,000/- PAID TO ONE SHRI KAUSHAL BHAIYA, THE TOTAL AMOUNT WORKS OUT TO RS.14,24,60,600/-. THE PAYMENT DETAILS ARE GIVEN ON THE REVERSE SIDE ON PAGE NO. 74. HE FURTHER HELD THAT PAGE NO. 26 OF LOOSE PAPER OF LPS-L/L GIVE NAMES OF 14 PERSONS IN WHOSE NAMES THE LAND WAS PURCHASED. THER EFORE, THE AO HAS CONCLUDED THAT THE PERSONS ARE KNOWN TO THE APPELLANT AND ARE UNDER HIS CONTROL. THE AO HAD FURTHER HELD THAT CHEQUE PAYMENT OF RS.50,00,000/- MENTIONED IN PAGE NO.74 BACKSIDE GETS CORROBORATED WITH THE ACTUAL CHEQUE P AYMENT OFRS.50,00,000/- MADE ON 23.05.2008. THE AREA OF THE LAND AND THE RE GISTRATION EXPENSES TALLY WITH THE ACTUAL AREA OF THE LAND AND THE AMOUNT OF EXPEN DITURE INCURRED WITH THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 42 REGISTRATION. THE AMOUNT OF 225 MENTIONED IN THIS D OCUMENT DENOTES THE AMOUNT OF RS. 225,00,000/- DEPOSITED IN DDI CHEQUE IN THE BAN K ACCOUNT OF 14 PURCHASES OF DABRA. THE AMOUNT OF RS.3,23,00,000/- MENTIONED ON THIS DOCUMENT IS THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNTS OF THESE 14 PURCHASES. IT WAS ALSO HELD THAT THE DOCUMENTS AT PAGE NO. 74 BACKSIDE AND 75 ALSO C ORROBORATED WITH EACH OTHER. ACCORDINGLY, THE AO HAS INFERRED THAT THE TOTAL PAY MENT OF RS.14,24,60,600/- WAS MADE FOR PURCHASING THE LAND AND THE UNACCOUNTED PA YMENTS IN THE ENTIRE DEALS WORKS OUT TO RS.8,74,60,600/- (RS.L3,65,60,600 + 9,00,000 _ 50,00,000/-). SINCE, THE ASSESSEE'S SHARE WAS 1I10TH, THE AO HAS ADDED R S.87,46,OOO/- AS HIS UNDISCLOSED INCOME. 15.2 IN THE COURSE OF APPEAL PROCEEDINGS, THE ID. C OUNSEL FOR THE APPELLANT HAS CONTENDED THAT THE ACTION OF THE LD. AO IS NOT JUST IFIED. THOUGH THE APPELLANT HAS PURCHASED THE LAND SIMULTANEOUSLY WITH OTHER PERSON S, HE HAD NO DIRECT OR INDIRECT RELATION WITH THEM. NOTINGS FOUND IN THE PAPERS REP RODUCED AT PAGE NO.51-55 OF THE ASSESSMENT ORDER ARE ROUGH NOTINGS. THERE ARE NO DA TES, NAMES OR NARRATION MENTIONED AGAINST THESE CALCULATIONS. THE APPELLANT ALONG WITH THE OTHER BUYERS HAS MADE A PLANNING REGARDING FURTHER PROSPECTS OF THE LAND AFTER COMPLETION OF THE TRANSACTION AND THESE PAPERS ARE DUMB DOCUMENTS AND THEY CANNOT BE RELIED UP ON FOR THE PURPOSE OF ASSESSMENTS BY ANY STRETCH OF IM AGINATION. IT WAS FURTHER CONTENDED THAT THE CALCULATIONS MADE BY THE AO ARE. MERELY BASED ON SUSPICION AND PRESUMPTION AND WITHOUT ANY SUPPORTING COGENT M ATERIAL TO ESTABLISH THE FACT OF INVESTMENT AS ASSUMED BY THE AO OVER AND ABOVE T HE AMOUNT OF INVESTMENTS SHOWN BY THE APPELLANT. IN THIS CONNECTION, THE APP ELLANT FURTHER CONTENDED THAT THESE PAPERS RELATE TO FUTURE PLANNING WITH RESPECT TO THE LAND AND LOOSE PAPER NO.74 AND 75 WERE MADE FOR SHOWING THEM TO A PROSPE CTIVE BUYER IN FURTHERANCE OF THEIR BUSINESS. THE FIGURES WERE WRITTEN ONLY TO MA KE BELIEVE THE PROSPECTIVE CUSTOMERS ABOUT THE TRANSACTION, WHEREAS NO SUCH TR ANSACTIONS HAD EVER HAPPENED. THE APPELLANT FURTHER CONTENDED THAT RATA NPUR, MISRODE IS SLIGHTLY AWAY FROM BHOPAL AND THE RELEVANT LAND HAD NO RATE OF RS.660/- PER SQ.FT AT THE RELEVANT POINT OF TIME. FILING A COPY OF THE WRITTE N SUBMISSION MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT HAS CONTENDED THAT LAND UNDER MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 43 CONSIDERATION WAS AGRICULTURAL AND UN-DIVERTED LAND AND IT WAS NOT COMMANDING ANY SUCH PRICE AS ASSUMED BY THE AO. THE ESTIMATED ROUGH JOTTINGS AT PAGE NO.75 RELATE TO THE CALCULATION OF ESTIMATED RETURN AFTER DIVERSION OF LAND FOR RESIDENTIAL AND COMMERCIAL PURPOSES AFTER OBTAINING NECESSARY A PPROVALS FROM VARIOUS AUTHORITIES. THEREFORE, THE ACTION OF THE AO, TREAT ING THE DOCUMENTS AS CORRECT EVIDENCES IS NOT JUSTIFIED AND HENCE, THE ADDITION IS ALSO NOT CORRECT. THE APPELLANT HAS ALSO REFERRED TO THE STATEMENT OF SHRI VINOD VA ISH TO PRESS HIS POINT THAT NO SUCH PAYMENT WAS MADE. IT WAS CONTENDED THAT SHRI V INOD VAISH HAS DENIED RECEIPT OF ANY SUCH PAYMENTS. IT WAS ALSO CONTENDED THAT AS PER THE APPELLANT'S INFORMATION ALL OTHER PERSONS, WHO HAVE PURCHASED T HE LAND, HAVE ALSO FILED THEIR INDIVIDUAL RETURNS OF INCOME AND THE SAME WERE ACCE PTED WITHOUT ANY RESERVATIONS. UNDER THESE CIRCUMSTANCES, THE APPELLANT HAS STATED THAT THE ADDITION MADE BY THE AO IS NOT CORRECT. FINALLY, THE APPELLANT HAS RELIE D ON SEVERAL CASE LAWS TO SUPPORT THIS CONTENTION THAT NO ADDITION IS POSSIBLE ON ACC OUNT OF IMAGINARY AND NON- RELIABLE ENTRIES FOUND IN DIARY/LOOSE PAPERS. 15.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE APPELLANT. THE AO HAS MADE THE ADDITION MAINLY ON T HE BASIS OF INFERENCES DRAWN ABOUT THE JOTTINGS CONTAINED IN LOOSE PAPERS - LPS-1I1 PAGE NO.74 BACK SIDE AND PAGE NO. 75 . THE AO HAS SUMMARIZED THE BA SIS OF HIS CONCLUSIONS AT PAGE NO.58 OF THE ASSESSMENT ORDER BY STATING THAT THE CHEQUE PAYMENT OF RS.50,00,000/- ON THE BACKSIDE OF PAGE ~ NO.74 TALL IES WITH THE ACTUAL AMOUNT OFRS.50 LAKHS PAID ON 23.5.2008. THE AREA OF LAND A ND REGISTRY EXPENSES TALLY WITH THE ACTUAL LAND AREA AND THE EXPENSES INCURRED ON REGISTRATION. THE FIGURE OF '225' MENTIONED AT PAGE NO.75 DENOTES THE AMOUNT OFRS.225 LAKHS DEPOSITED BY DD/ CHEQUE IN THE BANK ACCOUNTS OF 14 PERSONS OF DABRA. THE FIGURE OF '3.23' MENTIONED IN THESE DOCUMENTS TALLIES WITH THE AMOUN T OF CASH DEPOSITED IN THE BANK ACCOUNTS OF THE 14 PERSONS PLUS REGISTRATION C HARGES AND PAGE NO.74 BACK SIDE AND PAGE NO. 75 CORROBORATED EACH OTHER. THOUG H THE FIRST OBSERVATION IS FOUND TO BE CORRECT, THE SUBSEQUENT OBSERVATIONS AR E ONLY INFERENCES AND ARE NOT BASED ON FACTS. THERE IS NOTHING UNUSUAL IN TALLYIN G THE LAND AREA. THE AMOUNT OF REGISTRATION EXPENSES WERE INCURRED AT RS.49, 18 ,335/- AND NOT RS.50,OO,OOOI-, I.E., THE FIGURE MENTIONED AGAINST THE NARRATION. T HE TOTAL OF THE AMOUNT MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 44 DEPOSITED THROUGH DD/ CHEQUES IN THE BANK ACCOUNTS OF THE 14 PERSONS COMES TO RS.2,70,05,400/- AND IT IS NOT MATCHING WITH THE FIGURE OF '225'. SIMILARLY, THE TOTAL AMOUNT OF CASH DEPOSITED IN THE BANK: ACCOUNT S OF THE 14 PERSONS COMES TO RS.2, 76, 77 ,877/-. THUS, IT IS ALSO NOT TALLYING WITH THE FIGURE OF' 323'. SINCE, THE ABOVE FIGURES ARE NOT TALLYING WITH THE ABOVE F IGURES, IT CANNOT BE CONCLUDED THAT PAGE NO.74 BACKSIDE AND 75 ARE CORROBORATIVE T O EACH OTHER. EXCEPT THESE JOTTINGS, THERE ARE NO OTHER CORROBORATIVE EVIDENCE S TO JUSTIFY THE ADDITION. ON THE CONTRARY, THE APPELLANT'S CONTENTION THAT THE ENTIR E EXERCISE IS BASED ON INFERENCES CARRIES MORE FORCE.NO INCRIMINATING DOCU MENTS ESTABLISHING TRANSFER OF FUNDS BETWEEN THE BUYERS AND THE SELLERS WERE FO UND. THE LAND WAS PURCHASED AT A PRICE HIGHER THAN THE GUIDE LINE PRI CE FIXED BY THE COLLECTOR. THE LAND WAS UN-DIVERTED AGRICULTURAL LAND AND CONSIDER ING THE LOCATION AND THE STATUS OF THE LAND, IT DID NOT COMMAND SUCH PRICE A S OPINED BY THE A.O. UNDER THESE CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT THOUGH THE JOTTINGS CONTAINED IN THE LOOSE PAPERS MAY GENERATE A SUSPIC ION, THEY ARE NOT SUFFICIENT ENOUGH, WITHOUT CORROBORATING EVIDENCES, TO CONCLUD E THAT ACTUAL MONEY HAS CHANGED HANDS. IN THIS VIEW OF THE MATTER, THE ADD ITION COVERED IN THIS GROUND OF APPEAL IS NOT SUSTAINABLE, HENCE, DELETED. THIS GROUND OF APPEAL IS, ACCORDINGLY, ALLOWED. 47. AFTER PERUSAL OF THE FINDING OF LD. CIT(A) AND ALSO EXAMINING THE FACTS OF THE CASE. WE OBSERVE THAT EXCEPT THE LOOSE PAPERS, OTHER EVIDENCES PLACED ON RECORD CLEARLY PROVES THAT THE TRANSACTION OF PURCHASE OF LAND TOOK PLACE AND THE ASSESSEE AND OT HER CO- PURCHASERS PURCHASED 1.9 HECTARE LAND FROM MR. VINO D VAISH AND TOTAL CONSIDERATION PAID BY THE PURCHASERS AS PER T HE REGISTERED SALE DEEDS IS RS.5 CRORES. WHAT REMAINS TO BE ADJUDICAT ED IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS IS THAT WHETHER THE LD. A.O WAS JUSTIFIED IN MAKING THE ADDITION MERELY ON THE BASIS OF LOOSE PA PERS FOUND DURING MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 45 THE COURSE OF SEARCH WITHOUT ESTABLISHING ANY NEXUS WITH THE ACTUAL TRANSACTION OR PLACING ANY CORROBORATIVE EVIDENCE O N RECORD. 48. IN THE CASE OF ASHWIN KUMAR V/S ITO (SUPRA) THE TRIBUNAL HELD THAT WHEN A DUMB DOCUMENT, LIKE THE PRESENT SLIP, IS RE COVERED AND THE REVENUE WANTS TO MAKE USE OF IT, IT IS THE DUTY OF THE REVENUE TO COLLECT NECESSARY EVIDENCES WHICH MAY PROVIDE ACCEP TABLE NARRATION TO THE VARIOUS ENTRIES. THE EVIDENCES COLLECTED SHOUL D BE SUCH THAT ANY REASONABLE MAN WOULD ACCEPT THE HYPOTHISED ADVANCED BY THE REVENUE, THAT THE FIGURE WRITTEN ON THE RIGHT SIDE OF THE SLIP REPRESENT INCOMES EARNED BY THE ASSESSEE. IT WAS CONCEDED BY THE DEPARTMENTAL REPRESENTATIVE THAT NO SUCH EVIDENCE H AVE BROUGHT OUT ON RECORD. HONBLE SUPREME COURT IN THE CASE OF DHAKESHWARI CO TTON MILLS LTD V/S CIT 1954 261 ITR 775 HELD THAT IN MAKING ASSESSMENT U/S 23(3) OF THE INDIAN INCOME TAX ACT, THE ITO IS NOT FRACTURED BY TECHNICAL RULES OF EVIDENCE AND FLUCTUATIONS AND HE IS ENTITLED TO ACT ON MATERIAL WHICH MAY NOT ACCEPT AN EVIDENCE IN THE COURT OF LAW, BUT THE IT IS NOT ENTITLED TO MAKE AND POWER COMES AND MAKING ASSESSMENT WITHOUT REFER ENCE TO ANY EVIDENCE OR ANY MATERIAL DELIVERED. THERE MUST BE SOMETHING MORE THAN MORE WHERE SUSPICION TO SUPPORT THE ASSESSMENT U/S 23(3). THE RULE OF LAW ON THIS SUBJECT HAS BEEN FULLY AND RIGHTLY STAT ED BY HONBLE HIGH COURT IN THE CASE OF SREE SHANMUGAR MILLS LTD V/S COMMISS IONER OF INCOME TAX, PUNJAB 1944 12 ITR 393. SIMILAR VIEW WAS ALSO TAKE N BY DELHI TRIBUNAL IN THE CASE OF BANSAL STRIPS V/S ACIT (SUPRA) OBSERVIN G THAT THE A.O CANNOT FIRST MAKE CERTAIN CONJECTURES AND SURMISES AND THE REAFTER DEEMED PROVISIONS BASED ON SUCH CONJECTURES AND SURMISES. IN THE ABSENCE OF MATERIAL AS TO THE NATURE OF OWNERSHIP OF THE TRANS ACTION, UNDISCLOSED INCOME CANNOT BE ASSESSED IN THE HANDS OF THE ASSES SEE SUMMARILY BY ARITHMETICALLY TOTAL VARIOUS FIGURES DOTTING DOWN O N THE LOOSE DOCUMENT. ANY OTHER SEIZED FOR THE PURPOSE OF EXERCISING TO D EEMED PROVISIONS DUMB DOCUMENTS ORDER DOCUMENTS WITH NO CERTAINTY FOR NO EVIDENTIAL VALUE. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 46 49. HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT V/S ANIL BHALLA (2010) 322 ITR 191 (DEL) ALSO HELD THAT WHEN NO INDEPENDENT MATERIAL OR EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE A.O TO ESTABLISH THAT THE NOTICES OF JOTTINGS OF LOOSE SHE ETS OR ON THE PAPER WRITTEN ON ACCOUNTED TRANSACTIONS CANNOT BE MADE. 50. HONBLE HIGH COURT OF GUJARAT IN THE CASE OF C ITV/S MAULIKUMAR K SHAH 2008 307 ITR 137 WHEREIN IT HAS HELD THAT THE ADDITIONS MADE BY THE A.O ON THE BASIS OF SEIZED PAPER ALONE WITHOUT ANY CORROBORATIVE EVIDENCE COULD NOT BE SUSTAINED. 51. SIMILAR VIEW WAS TAKEN BY THE CO-ORDINATE BENCH IN THE CASE OF M.M. FINANCIERS V/S DCIT 2007 107 TTJ 200 (CHENNAI) . 52. THERE ARE ALSO CERTAIN LEGAL PRECEDENT WHICH CL ARIFIES THAT THE LOOSE DOCUMENTS CANNOT ALONE MAKE BASIS WHERE LOOSE SHEETS ARE FOUND, THERE WAS INFERENCE DRAWN BY THE AO THAT THE Y REPRESENT CONCEALED TRANSACTIONS BUT SUCH INFERENCE CAN BE PO SITIVELY MADE ONLY ON IDENTIFICATION OF PAPERS AND AFTER DUE VERI FICATIONS. FIGURES THEREIN CANNOT BE RIGHTLY INFERRED TO REPRESENT UN ACCOUNTED INCOME UNLESS THERE IS SOMETHING MORE TO IT. 53. IN THE CASE OF CIT V/S GIRISH CHOUDHARY 2008 2 96 ITR 691 (DELHI) THE HONBLE HIGH COURT HAD DISMISSED THE RE VENUES APPEALS HOLDING THAT WHEN THERE WAS NO MATERIALS ON RECORD TO SHOW ON W HAT BASIS THE AO HAD REACHED TO THE CONCLUSION THAT THE FIGURE 48 WAS TO BE READ AS RS.48 LAKHS WHEN THE DOCUMENT RECOVERED DURING THE COURSE OF SEARCH A DUMB DOCUMENT AND LEAD NOWHERE . MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 47 54. HONBLE HIGH COURT OF MADRAS IN THE CASE OF CIT VS. P. V KALYANASUNDARAM (SUPRA) WHEREIN ALSO ADDITION WAS MADE IN THE APPELLANTS INCOME TOWARDS PURCHASE CONSIDERATION OF LAND MERELY ON THE BASIS OF STATEMENT OF SELLERS WHO GAVE CONTRADI CTORY STATEMENTS. NO INDEPENDENT ENQUIRY WAS CARRIED OUT TO VALUE THE PROPERTY IN ORDER TO SUPPORT THE ADDITION. FOR PROPER UNDERSTA NDING WE ARE REPRODUCING THE ISSUE INVOLVED, FACTS AND THE JUDGM ENT AS FOLLOWS; 'A) WHETHER OR NOT WHEN THE RETURNS AND THE STATEME NTS OF THE SELLER ADMIT HIGHER SALE CONSIDERATION ACTUALLY RECEIVED, THE RE VENUE IS JUSTIFIED IN FIXING THE SALE CONSIDERATION AT THE HIGHER AMOUNT THAN WH AT HAS BEEN DECLARED? B) WHEN THE ASSESSEE DID NOT GIVE ANY EXPLANATION T O THE NOTINGS FOUND AND AT THE SAME TIME THE REVENUE IS ABLE TO CORROBORATE THE SAME WITH THE STATEMENT OF THE SELLER FOR THE PURPOSE OF DETERMIN ATION OF ACTUAL SALE VALUE, WOULD THE LOWER AUTHORITY BE JUSTIFIED IN INTERFERI NG WITH THE SAME? C) WHEN CONSISTENT SWORN STATEMENTS WERE TAKEN INTO CONSIDE RATION ALONG WITH EVIDENCES FOUND AT THE TIME OF SEARCH, WOULD ALL BE LIABLE TO BE REJECTED ON THE BASIS OF ONE STATEMENT IN BETWEEN CONTRADICTING THE EARLIER ONES WHICH WAS ALSO EXPLAINED AWAY AS A RESULT OF INTIMIDATION ?' 2. THE FACTS LEADING TO THE ABOVE QUESTIONS OF LAW ARE AS UNDER: I) THE ASSESSMENT WAS MADE UNDER SECTION 158BC OF T HE INCOME TAX ACT. THE RELEVANT BLOCK PERIOD WAS 01.04.1988 TO 08.12.1 998. THE ASSESSEE HAD PURCHASED LAND AT BRINDAVAN ROAD, FAIRLANDS, SALEM ON 26 .10.1 998. THE LAND WAS REGISTERED FOR RS.4.10 LAKHS. DURING THE C OURSE OF SEARCH IN THE OFFICE PREMISES OF POLIMER NET WORK, CERTAIN NOTING S WERE FOUND IN THE SEIZED MATERIAL RK/S/B&D/25. IN THE STATEMENT RECORDED ON 08.12.98, THE ASSESSEE STATED THAT HE DID NOT REMEMBER FOR WHAT P URPOSE HE HAD MADE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 48 NOTINGS, WHICH WAS CONFIRMED BY THE ASSESSEE IN A S UBSEQUENT STATEMENT RECORDED ON 11.12.1998. THE LAND WAS PURCHASED FROM ONE SHRI RAJARATHINAM. HIS STATEMENT WAS ALSO RECORDED ON TH E DATE OF SEARCH I.E. 08.12.1998 AND ALSO ON 11.12.1998. IN THE SWORN STA TEMENT DATED 08.12.1998, IN QUESTION NO.3, SHRI RAJARATHINAM ADM ITTED THAT HE HAD RECEIVED RS.4.10 LAKHS AS SALE CONSIDERATION BUT IN QUESTION NO.4, HE ADMITTED THAT HE HAD RECEIVED RS.34.35 LAKHS. AGAIN IN THE STATEMENT RECORDED ON 11.12.1998, SHRI RAJARATHINAM, THE SELL ER ADMITTED THAT A TOTAL CONSIDERATION OF RS.34.85 LAKHS WAS RECEIVED FROM T HE ASSESSEE OUT OF WHICH RS.4.10 LAKHS WAS RECEIVED IN DEMAND DRAFT AN D THE BALANCE IN CASH. IN THE AFFIDAVIT GIVEN ON 08.01 .1999 BY SHRI RAJAR ATHINAM, IT WAS MENTIONED THAT THE SALE CONSIDERATION RECEIVED BY H IM FROM SRI P.V.KALYANASUNDARAM I.E. THE ASSESSEE, WAS ONLY RS. 4.10 LAKHS AND THE EARLIER STATEMENTS GIVEN BEFORE THE INCOME TAX AUTH ORITIES WERE NOT TRUE. ON 10.08.2000, THE SELLER SRI RAJARATHINAM SUBMITTED A LETTER BEFORE THE ASSESSING OFFICER WITHDRAWING THE AFFIDAVIT GIVEN O N 08.01.1999. IN THE SUBSEQUENT SWORN STATEMENT RECORDED BEFORE THE ASSE SSING OFFICER ON 20.11.2000, SRI RAJARATHINAM HAD MENTIONED THAT THE SALE CONSIDERATION OF RS.34.85 LAKHS WHICH WAS RECEIVED BY HIM FROM THE P URCHASE CONSIDERATION WAS ACTUALLY RS.34.85 LAKHS, AS AGAINST RS.4.10 LAK HS STATED IN THE REGISTERED DEED FOR PURCHASE OF LAND. IN THE CASH F LOW STATEMENT FOR THE ASSESSMENT YEAR 19 99-2000 I.E. BLOCK PERIOD 01.04. 1998 TO 08.12.1998, THE ASSESSING OFFICER ADOPTED THE SUM IN THE CASH F LOW RELATING TO PURCHASE OF LAND AT RS.35.45 LAKHS AS AGAINST RS.4,69,995/- DISCLOSED BY THE ASSESSEE IN HIS CASH FLOW STATEMENT. THIS HAD RESUL TED IN AN ADDITION OF RS.3 0,75,005/- AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD 01.04.1998 TO 0 8.12.1998. II) AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN A PPEAL TO THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISIONER OF INCOME TAX ( APPEALS), NOTED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 49 THAT DUE TO CONFLICTING NATURE OF THE STATEMENTS GI VEN BY THE SELLER, HIS STATEMENT COULD NOT BE RELIED UPON AND HENCE HE DEL ETED THE ADDITION MADE BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF THE C.I.T. (A), THE REVENUE FILED AN APPEAL BEFORE THE INCOME TAX APPEL LATE TRIBUNAL. THE TRIBUNAL DISMISSED THE REVENUE'S APPEAL AND CONFIRM ED THE ORDER OF THE C.I.T. (A). THE LEARNED COUNSEL FOR THE REVENUE SUB MITTED THAT THE VALUE DECLARED BY THE ASSESSEE FOR THE PURCHASE OF THE PL OT WAS RS.100/- PER SQ.FT. EVEN WHEN THE GUIDELINE VALUE WAS RS.400/- P ER SQ.FT. AND HENCE THE ORDER OF THE TRIBUNAL WAS PERVERSE, WRONG AND WITHO UT BASIS. 3. WE HEARD THE COUNSEL. THE SELLER HAD INITIALLY G IVEN CONFLICTING STATEMENT ABOUT THE SALE CONSIDERATION HE RECEIVED. WHEN CONF RONTED BY THE REVENUE ON 11.12.1998, THE SELLER ADMITTED THAT HE HAD DEPO SITED RS.4.10 LAKHS RECEIVED THROUGH DRAFT IN THE BANK AND THE REST AMO UNT WAS HELD BY HIM IN CASH. THE REVENUE AUTHORITIES COULD WELL HAVE SEIZE D THE CASH INVOKING SECTION 132 OF THE ACT, BUT FOR OBVIOUS REASONS THIS WAS NOT DO NE. HAD THE CASH BEEN SEIZED FROM THE SELLER, THE MATTE R WOULD HAVE BEEN CONCLUDED IN FAVOUR OF THE REVENUE. IN A SUBSEQUENT SUBMISSION, THE SELLER CLAIMED ON 20.11.2000 THAT HE HAD PAID RS.15 LAKHS OUT OF THE SALE PROCEEDS TO SETTLE OLD FAMILY DEBTS, RS.4 .80 LAKHS FOR CONSTRUCTION OF HOUSE IN PULLKASI VILLAGE AND THE BALANCE WAS ADVANCED TO PARTIES FOR KEEPING RS.2 LAKHS AND RS.3 LAKHS IN THE HOUSE FOR FAMILY E XPENSES AND EDUCATIONAL EXPENSES OF HIS DAUGHTER, RESPECTIVELY. IT WAS ALSO NOTED THAT THE REVISED RETURN WAS FILED BY THE SELLER WHEREIN HE HAD SHOWN APPROXIMATELY RS.2.5 LAKHS BEING AVAILABLE WITH HIM IN CASH. EVEN AFTER GIVING THE RETRACTION AND ADMITTING THAT HE HAD SOLD THE PROPERTY FOR A SALE CONSIDERATION OF RS.4.10 LAKHS, THE SELLER FILED HIS I.T. RETURN ON 28.01.20 00 WHEREIN HE DID NOT ADMIT THE CASH ON MONEY CONSIDERATION FOR THE SALE TRANSACTION. SUBSEQUENTLY HE REVISED THE I.T. RETURN WHEREIN HE ADMITTED THE SALE CONSIDERATION AND SHOWING RS.4.80 LAKHS OUT OF THE ABOVE AS UTILISED FOR MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 50 CONSTRUCTION OF RESIDENTIAL HOUSE PROPERTY AND CONS EQUENTLY CLAIMING EXEMPTION UNDER SECTION 54, THE SELLER FILED THE CO MPUTATION OF INCOME PAYING RS.1,83,576/- AS TAX, WHICH WAS QUITE EVIDEN T FROM THE CONFLICTING STATEMENTS GIVEN BY THE SELLER AND THE CONFLICTING I.T. RETURNS FILED BY HIM THAT HIS ACTION OF ADMITTING SALE CONSIDERATION AND PAYING TAX WAS NOTHING BUT AN OBVIOUS EFFORT TO SAVE FROM FURTHER HARASSME NT FROM THE REVENUE AND ESCAPE FROM THE EXIGIBILITY OF TAX ON UNDISCLOSED I NCOME OF THE CASH CONSIDERATION UNDER SECTION 158 BD OF THE ACT, WHIC H IN MAGNITUDE WOULD FAR EXCEED THE TAX PAID BY HIM. THE BURDEN OF PROVI NG ACTUAL CONSIDERATION IN SUCH TRANSACTION WAS THAT OF REVENUE. THE TRIBUN AL HAD GIVEN FACTUAL FINDING AND HELD AS FOLLOWS: 'WE FIND THAT IT IS TH E UNIFORM VIEW OF THE COURTS AND ALSO HELD BY THE APEX COURT AS REPORTED IN 131 ITR 397 THE BURDEN OF PROVING ACTUAL CONSIDERATION IN SUCH TRANSACTION IS THAT OF REVENUE. CONSIDERING THE ENTIRE GAMUT OF THE CASE, WE FIND T HAT REVENUE HAS FAILED TO DISCHARGE ITS DUTIES AND AS HELD BY THE ID. CIT(A) INSTEAD MADE UP A CASE ON SURMICES AND CONJECTURES WHICH CANNOT BE ALLOWED. U NDER THE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE ID. CIT(A) AND WE UPHOLD THE APPELLATE ORDER IN THIS REGARD.' WE ALSO FOUND THAT THE ASSESSING OFFICER DID NOT CO NDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF THE PROPERTY PURCH ASED. HE MERELY RELIED ON THE STATEMENT GIVEN BY THE SELLER. IF HE WOULD HAVE TAKEN INDEPENDENT ENQUIRY BY REFERRING THE MATTER WITH THE VALUATION OFFICER, THE CONTROVERSY COULD HAVE BEEN AVOIDED. FAILING TO REFER THE MATTE R WAS A FATAL ONE. 4. IN VIEW OF THE FOREGOING CONCLUSIONS, WE FIND NO ERROR IN THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL AND REQUIRES NO INTER FERENCE. HENCE NO SUBSTANTIAL QUESTIONS OF LAW ARISE FOR CONSIDERATIO N OF THIS COURT. ACCORDINGLY, THE ABOVE TAX CASE IS DISMISSED. NO CO STS. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 51 55. IN THE CASE OF CENTRAL BUREAU OF INVESTIGATION V. V.C. SHUKLA 1998 TAXMANN.COM 2155 (SC), THE HON'BLE SUPREME COURT, ON THE QUESTION OF WHETHER ENTRIES APPEARING IN LOOSE PAPERS SEIZED FROM ONE PERSON CAN CONSTITUTE EVIDENCE FOR ANOTHER PERSON, HELD AS UNDER: 34. NOW THAT WE HAVE FOUND (IN DISAGREEMENT WITH THE HI GH COURT) THAT ENTRIES IN MR 71/9'/ WOULD BE ADMISSIBLE UNDER SECTION 34 OF THE ACT WE HAVE TO NEXT ASCERTAIN THERE PROBATIVE VALUE. MR. ALTAF AHMED TO OK GREAT PAINS TO DECODE AND ANALYSES THE ENTRIES IN THE ABOVE BOOK AND, COR RELATING THEM WITH THE ENTRIES IN THE OTHER THREE BOOKS AND IN SOME OF THE LOOSE SHEETS FOUND IN THE FILES, SUBMITTED THAT THE INTRINSIC EVIDENCE FURNIS HED BY THEIR INTERNAL CORROBORATION AND INTER-DEPENDENCE UNMISTAKABLY DEM ONSTRATED THEIR AUTHENTICITY AND TRUSTWORTHINESS. ACCORDING TO MR. ALTAF AHMED THE ENTRIES REFLECT SUCH PERIODICITY AND REGULARITY AS WAS COMPATIBLE W ITH THE MODUS OPERANDI OF THE BUSINESS OF JAIN BROTHERS OF CORRUPTING PUBLIC SERVANT INCLUDING MEMBERS OF PARLIAMENT AND MINISTERS IN ORDER TO INFLUENCE THEI R DECISIONS AND SEEK THEIR FAVOURS FOR PROMOTION OF THEIR (JAIN BROTHERS) ECONOMIC INTERESTS. BESIDES, HE SUBMITTED, THE EXTERNAL INDEPENDENT COR ROBORATION OF THOSE ENTRIES AS REQUIRED UNDER SECTION 34 WAS ALSO AVAILABLE TO THE PROSECUTION FROM THE STATEMENTS MADE BY SHRI JACOB MA THA I, DANIAL P. RAMBAL AND P. GHOSHAL AND EJAJ ILMI DURING INVESTIGATION, IN THAT, THEY HAVE ADMITTED RECEIPTS OF THE PAYMENTS AS SHOWN AGAINST THEM IN MR. 71/91. WHILE ON THIS POINT, HE MADE A PARTICULAR REFERENCE TO THOSE ENTRIES IN MR 71/91 WHICH, ACCORDING TO HIM M IF CORRESPONDED WITH THE ENTRIES IN THE OTHER BOOKS AN D THE ENCLOSE SHEETS WOULD PROVE THE PAYMENTS TO SHRI ADVANI AND SHRI SHUKLA. AS REGARD S THE PROOF OF AUTHORSHIP OF THE ENTRIES HE DREW OUR ATTENTION TO THE STATEMENTS OF PAWAN JAIN , A. V. PATHAK AND O.K. GUHA WHO HAVE STATED THAT THE ENTRI ES WERE MADE BY J. K. JAIN AND THAT THE JAIN BROTHERS HAD PUT TH EIR SIGNATURES AGAINST SOME OF THESE ENTRIES IN TOKEN OF VERIFICATION THEREOF. HE ALSO DREW OUR ATTENTION TO THE WRITTEN OPINION GIVEN BY THE HAND WRITING EXPER T IN THIS REGARD. 39. IN BENI V. BISAN OAYAL [AIR 1925 NAG. 445J IT WAS OBSERVED THAT ENTRIES IN BOOK S OF ACCOUNT ARE NOT BY THEMSELVES SUFFICIENT TO CHARGE ANY PERSON WITH LIABILITY, THE REASON BEING THAT A MAN CANNOT BE ALLOWED TO MAKE EVIDENCE FOR HIMSELF BY WHAT HE CHOO SES TO WRITE IN HIS OWN BOOKS BEHIND THE BACK OF THE PARTIES. THERE MUST BE INDEPENDENT EVIDENCE OF THE TRANSACTION TO WHICH HE ENTRIES RELATE AN DIN A BSENCE OF SUCH EVIDENCE NO RELIEF CAN BE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 52 GIVEN TO THE PARTY WHO RELIES UPON SUCH ENTRIES TO SUPPORT HIS CTAIM. AGAINST ANOTHER. IN HIRALAL V. RAM RAKHA [AIR 1953 PEPSU THE HIGH COURT, WHILE NEGATIVING A CONTENTION THAT IT HAVING BEEN PROVED THAT THE BOOKS OF ACCOUNT WERE REGULARLY KEPT IN THE ORDINARY COURSE OF BUSINESS AND THAT, THEREFORE, ALL ENTRIES THEREIN SHOULD BE CONSIDERED TO BE RELEVANT AND TO HAVE BEE N PROVE, SAID THAT THE RULE AS LAID DOWN IN SECTION 34 OF THE ACT THAT ENTRIES IN THE BOOKS OF ACCOUNT REGULARLY KEPT IN THE COURSE OF BUSINESS RE RELEVANT WHENEVER THEY REFER TO A MATTER IN WHICH THE COURT HAS TO ENQUIRE WAS SUBJEC T TO THE SALIENT PROVISO THAT SUCH ENTRIES SHALL NOT ALO NE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS NOT, THEREFORE, ENOUGH MERELY TO PROVE THAT T HE BOOKS HAVE BEEN REGULARLY KEPT IN THE COURSE OF BUSINESS AND THE ENTRIES THEREIN ARE CORRECT. IT IS FURTHER INCUMBENT UPON THE PERSON RE LYING UPON THOSE ENTRIES TO PROVE THAT THEY WERE IN ACCORDANCE WITH FACTS. ' 56. HON'BLE APEX COURT IN THE CASE OF COMMON CAUSE (A REGISTERED SOCIETY) VS. UNION OF INDIA (2017) 77 TAXMANN.COM 2 45 (SC) HELD AS FOLLOWS:- 22. IN CASE OF SAHARA, IN ADDITION WE HAVE THE ADJUDICA TION BY THE INCOME TAX SETTLEMENT COMMISSION. THE ORDER HAS BEE N PLACED ON RECORD ALONG WITH I.A.NO.4. THE SETTLEMENT COMMISSION HAS OBSERVED THAT THE SCRUTINY OF ENTRIES ON LOOSE PAPERS, COMPUTER PRINT S, HARD DISK, PEN DRIVES ETC. HAVE REVEALED THAT THE TRANSACTIONS NOTED ON D OCUMENTS WERE NOT GENUINE AND HAVE NO EVIDENTIARY VALUE AND THAT DETA ILS IN THESE LOOSE PAPERS, COMPUTER PRINT OUTS, HARD DISK AND PEN DRIV E ETC. DO NOT COMPLY WITH THE REQUIREMENT OF THE INDIAN EVIDENCE ACT AND ARE NOT ADMISSIBLE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 53 EVIDENCE. IT FURTHER OBSERVED THAT THE DEPARTMENT H AS NO EVIDENCE TO PROVE THAT ENTRIES IN THESE LOOSE PAPERS AND ELECTRONIC D ATA WERE KEPT REGULARLY DURING THE COURSE OF BUSINESS OF THE CONCERNED BUSI NESS HOUSE AND THE FACT THAT THESE ENTRIES WERE FABRICATED, NON-GENUINE WAS PROVED. IT HELD AS WELL THAT THE PCIT/OR HAVE NOT BEEN ABLE TO SHOW AND SUB STANTIATE THE NATURE AND SOURCE OF RECEIPTS AS WELL AS NATURE AND REASON OF PAYMENTS AND HAVE FAILED TO PROVE EVIDENTIARY VALUE OF LOOSE PAPERS A ND ELECTRONIC DOCUMENTS WITHIN THE LEGAL PARAMETERS. THE COMMISSION HAS ALS O OBSERVED THAT DEPARTMENT HAS NOT BEEN ABLE TO MAKE OUT A CLEAR CA SE OF TAXING SUCH INCOME IN THE HANDS OF THE APPLICANT FIRM ON THE BA SIS OF THESE DOCUMENTS. 24. SINCE IT IS NOT DISPUTED THAT FOR ENTRIES RELIE D ON IN THESE LOOSE PAPERS AND ELECTRONIC DATA WERE NOT REGULARLY KEPT DURING COURSE OF BUSINESS, SUCH ENTRIES WERE DISCUSSED IN THE ORDER DATED 11.11.201 6 PASSED IN SAHARA'S CASE BY THE SETTLEMENT COMMISSION AND THE DOCUMENTS HAVE NOT BEEN RELIED UPON BY THE COMMISSION AGAINST ASSESSEE, AND THUS S UCH DOCUMENTS HAVE NO EVIDENTIARY VALUE AGAINST THIRD PARTIES. ON THE BASIS OF THE MATERIALS WHICH HAVE BEEN PLACED ON RECORD, WE ARE OF THE CON SIDERED OPINION THAT NO CASE IS MADE OUT TO DIRECT INVESTIGATION AGAINST AN Y OF THE PERSONS NAMED IN THE BIRLA'S DOCUMENTS OR IN THE DOCUMENTS A-8, A-9 AND A- 10 ETC. OF SAHARA. 27. CONSIDERING THE AFORESAID PRINCIPLES WHICH HAVE BEEN LAID DOWN, WE ARE OF THE OPINION THAT THE MATERIALS IN QUESTION ARE N OT GOOD ENOUGH TO CONSTITUTE OFFENCES TO DIRECT THE REGISTRATION OF F .I.R. AND INVESTIGATION THEREIN. THE MATERIALS SHOULD QUALIFY THE TEST AS PER THE AFORESAID DECISION. THE COMPLAINT SHOULD NOT BE IMPROBABLE AND MUST SHO W SUFFICIENT GROUND AND COMMISSION OF OFFENCE ON THE BASIS OF WHICH REG ISTRATION OF A CASE CAN BE ORDERED. THE MATERIALS IN QUESTION ARE NOT ONLY IRRELEVANT BUT ARE ALSO LEGALLY INADMISSIBLE UNDER SECTION 34 OF THE EVIDEN CE ACT, MORE SO WITH MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 54 RESPECT TO THIRD PARTIES AND CONSIDERING THE EXPLAN ATION WHICH HAVE BEEN MADE BY THE BIRLA GROUP AND SAHARA GROUP, WE ARE OF THE OPINION THAT IT WOULD NOT BE LEGALLY JUSTIFIED, SAFE, JUST AND PROP ER TO DIRECT INVESTIGATION, KEEPING IN' VIEW PRINCIPLES LAID DOWN IN THE CASES OF BHAJAN LAL AND V.C. SHUKLA (SUPRA). 57. HON'BLE JURISDICTIONAL HIGH COURT RECENTLY IN THE CASE OF PRINCIPLE CIT V/S PUKHRAJ SONI INCOME-TAX ACT, 1961 , NO.53/2017 DATED 6.2.2019 ADJUDICATED THE SIMILAR ISSUE RELATI NG TO ADDITION MADE BY THE LD. A.O ON THE BASIS OF NOTINGS FOUND I N THE SEIZED DOCUMENTS, CONFIRMED THE ORDER OF THE TRIBUNAL BY R ELYING ON THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF CBI V /S V.C. SHUKLA (SUPRA) AND IN THE CASE OF COMMON CAUSE (A REGISTER ED SOCIETY) VS. UNION OF INDIA (2017) 77 TAXMANN.COM 245 (SC) (SUPR A). 58. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF H ONBLE APEX COURT/HONBLE HIGH COURTS AND TRIBUNAL WE ARE OF TH E CONSIDERED VIEW THAT THE IMPUGNED ADDITION FOR UNACCOUNTED INV ESTMENT IN THE LAND HAS RIGHTLY BEEN DELETED BY LD. CIT(A) AS THEY WERE MERELY BASED ON THE ROUGH JOTTINGS ON THE ALLEGED SEIZED L OOSE PAPERS WHICH WERE NOT SIGNED BY ANY OF THE PARTIES, NOR TR ANSACTION MENTIONED THEREIN HAVE ACTUALLY TAKEN PLACE NOR REV ENUE HAS BEEN SUCCESSFUL TO PLACE ANY CONTRARY MATERIAL IN THE FO RM OF VALUATION REPORT OF THE IMPUGNED LAND TO SUPPORT THE MARKET P RICE OF LAND ADOPTED FOR MAKING THE ADDITION ON MONEY PAYMENT. THEREFORE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 55 THE ALLEGED SEIZED LOOSE PAPERS ARE DUMB DOCUMENTS AND ADDITION CANNOT BE MADE ON SUCH DUMB DOCUMENTS. RATHER THE J OTTINGS ON THE SEIZED PAPERS WERE STATED TO BE A PART OF FUTUR E PLANNING AND REFERENCES OF THE TRANSACTION IN THE LOOSE PAPERS A RE NOT SUPPORTED BY ANY CORROBORATIVE EVIDENCE AND THE EVIDENCE IN T HE FORM OF REGISTERED SALE DEEDS ONLY INDICATES THAT THE TRANS ACTION OF PURCHASE/SALE OF LAND BETWEEN THE VARIOUS CONCERNED PARTIES WAS ACTUALLY ENTERED AT CONSIDERATION OF RS.5 CRORES ON LY AND NO EVIDENCE OF ANY ON MONEY OF RS.8,74,60,600/- HAS BEEN PAID. WE THEREFORE FIND NO REASON TO INTERFERE IN THE FIN DING OF LD. CIT(A) DELETING THE ADDITION OF RS.87,46,600/- AND DISMISS THE REVENUES GROUND NO.7. 59. THOUGH GROUND NO.8 REVENUE HAS CHALLENGED THE D ELETION OF ADDITION OF RS.65,00,000/- WHICH WAS MADE BY THE LD . ASSESSING OFFICER ON ACCOUNT OF NON-GENUINE UNSECURED LOANS. 60. AT THE OUTSET, LD. SENIOR COUNSEL FOR THE ASSES SEE GIVING REFERENCE TO HIS SUBMISSIONS FOR GROUND NO.3 SUBMIT TED THAT CERTAIN ADDITIONAL EVIDENCES WERE FILED BEFORE THE LD. CIT( A) RELATING TO THE ADDITION OF RS.70,00,000/- FOR UNEXPLAINED CASH CRE DIT. LD. CIT(A) GAVE PART RELIEF TO THE ASSESSEE BY DELETING THE AD DITION OF RS.65,00,000/- WITHOUT CALLING FOR REMAND REPORT FR OM THE ASSESSING OFFICER. PRAYER WAS MADE TO SET ASIDE TO THE ISSUE TO THE FILE OF LD. CIT(A) FOR DECIDING AFRESH. LD. DR RAIS ED NO OBJECTION IF THE ISSUE RAISED IN GROUND NO.8 ARE SET ASIDE TO TH E FILE OF LD. CIT(A) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 56 FOR AFRESH ADJUDICATION AFTER CALLING FOR REMAND RE PORT FROM THE ASSESSING OFFICER RELATING TO THE ADDITIONAL EVIDEN CES FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). 61. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE REVENUE HAS RAISED THE ISSUE RELATING TO DELETION OF ADDITION OF RS.65,00,000/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF NON-GENUINE UNSECURED LOANS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS CERTAIN LOOSE PAPE RS WERE FOUND SHOWING NAME OF THE ASSESSEE AND HIS WIFE RECEIVED UNSECURED LOAN OF RS.70,00,000/- FROM VARIOUS PERSONS. ASSESS EE FAILED TO PROVE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CASH CREDITORS DUE TO WHICH THE ADDITION U/S 68 OF THE A CT WAS MADE. WHEN THE MATTER CAME UP BEFORE THE LD. CIT(A) ASSES SEE FILED ADDITIONAL EVIDENCES IN ORDER TO PROVE THE IDENTITY GENUINENESS AND CREDITWORTHINESS OF THE CASH CREDITORS. LD. CIT(A) FAILED TO COMPLY TO THE PROVISION OF RULE 46A OF THE IT RULES BEFORE AD MITTING ADDITIONAL EVIDENCES AND DELETING THE ADDITION OF RS.65,00,000 /-. 62. WE FIND THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ARE VITAL FOR ADJUDICATION OF THE ISSUE AND THE LD. CIT (A) BEFORE ADMITTING THE ADDITIONAL EVIDENCE SHOULD HAVE GIVEN A PROPER OPPORTUNITY TO THE LD. ASSESSING OFFICER TO FILE A REMAND REPORT O N THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. BOTH LD. SENIOR CO UNSEL FOR THE ASSESSEE AND LD. DR HAVE NO OBJECTION IF THE ISSUE FOR UNEXPLAINED CASH CREDIT OF RS.70,00,000/- IS SET ASIDE TO THE F ILE OF THE LD. CIT(A) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 57 FOR DECIDING AFRESH. 63. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CAS E AND IN THE INTEREST OF JUSTICE WE ACCEPT THE REQUEST OF BOTH T HE PARTIES AND SET ASIDE THIS ISSUE OF UNEXPLAINED CASH CREDIT OF RS.7 0,00,000/- TO THE FILE OF LD. CIT(A)FOR AFRESH ADJUDICATION WITH A DI RECTION THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WHICH WE RE NOT PLACED BEFORE THE ASSESSING OFFICER SHOULD BE SENT TO THE ASSESSING OFFICER CALLING FOR REMAND REPORT AND THEREAFTER DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS OF LAW AFTER GIVING REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, ALLOW T HE REVENUES GROUND NO.8 FOR STATISTICAL PURPOSES. 64. IN THE RESULT APPEAL OF THE REVENUE FOR ASSESSM ENT YEAR 2009- 10 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AS PE R THE TERMS INDICATED HEREIN ABOVE. 65. NOW WE TAKE THE CROSS OBJECTION RAISED BY THE A SSESSEE IN THE CASE OF MR. MUKESH SHARMA FOR ASSESSMENT YEAR 2009- 10. 66. GROUND NO.1 RELATES TO ADDITION FOR AGRICULTURE INCOME. WE HAVE ALREADY DEALT WITH THIS ISSUE IN THE REVENUES APPEAL AND HAVE CONFIRMED THE FINDING OF LD. CIT(A) THEREBY DISMISS ING THE REVENUES GROUND NO.4 RELATING TO ADDITION OF RS.50,500/- MAD E ON ACCOUNT OF NON GENUINE AGRICULTURE INCOME. SINCE WE HAVE C ONFIRMED THE FINDING OF LD. CIT(A) THIS GROUND NO.1 OF THE ASSES SEES CROSS OBJECTION DESERVES TO BE DISMISSED. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 58 67. GROUND NO.2 OF THE CROSS OBJECTION RELATES TO U NEXPLAINED INVESTMENT OF RS.1.50 CRORES. WE FIND THAT THE SAM E ISSUE HAS BEEN RAISED BY THE REVENUE IN GROUND NO.5 OF ITS APPEAL FOR ASSESSMENT YEAR 2009-10AND AFTER ADJUDICATING THE SAME WE ALLO WED REVENUES GROUND FOR STATISTICAL PURPOSES TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION. THEREFORE THIS GROUND NO.2 OF THE C ROSS OBJECTION ALSO DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSE S. 68. GROUND NO.3 OF CROSS OBJECTION RELATES TO ADDIT ION OF UN DISCLOSED INVESTMENT IN JEWELLERY. WE HAVE DEALT W ITH THIS ISSUE IN THE REVENUES APPEAL FOR ASSESSMENT YEAR 2009-10 AN D HAVE CONFIRMED THE FINDING OF LD. CIT(A) DELETING THE AD DITION OF RS.58,555/-. THEREFORE GROUND NO.3 OF CROSS OBJECT ION DESERVES TO BE DISMISSED. 69. GROUND NO.4 RAISED BY THE ASSESSEE RELATES TO D ELETION OF ADDITION OF RS.87,46,600/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT TOWARDS PAYMENT OF ON MONEY FOR PURCHASE OF LAND IS MERELY SUPPORTIVE TO THE FINDING OF LD. CIT(A). SINCE WE HAVE CONFIRMED THE VIEW OF LD. CIT(A) DELETING THE ADDITION OF RS.87,4 6.600/- , GROUND NO.4 BECOMES INFRUCTUOUS. 70. GROUND NO.5 RELATES TO THE ADDITION FOR UNEXPLA INED UNSECURED LOAN OF RS.70 LAKHS AND RS.5 LAKHS. WHILE ADJUDICA TING THE REVENUES APPEAL FOR 2009-10 WE OBSERVED THAT SOME ADDITIONAL EVIDENCE WHICH WERE FILED BY THE ASSESSEE BEFORE LD . CIT(A) WERE NOT SENT TO THE LD. A.O FOR CALLING REMAND REPORT. WE THEREFORE ALLOWED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 59 REVENUES GROUND FOR STATISTICAL PURPOSES. ACCORDI NGLY GROUND NO.5 OF THE CROSS OBJECTION IS ALLOWED FOR STATISTICAL P URPOSES. 71. GROUND NO.6 IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 72. IN THE RESULT THE CROSS OBJECTION OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 73. NOW WE TAKE UP REVENUES APPEAL IN THE CASE OF MR. VINOD VAISH IN APPEAL NO.189/IND/2013 FOR ASSESSMENT YEAR 2009-10 WHICH READS AS FOLLOWS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1. NOT FOLLOWING THE PROVISIONS OF SECTION 250(1) OF T HE INCOME TAX ACT 1961 BY NOT GIVING A NOTICE TO THE ASSESSING OFFICER OF THE DATE AND PLACE FOR THE HEARING THE APPEAL, 2. NOT FOLLOWING THE PROVISIONS OF SECTION 250(2) O F THE INCOME TAX ACT 1961 BY NOT PROVIDING THE ASSESSING OFFICER AN OPPORTUNI TY OF BEING HEARD AT THE HEARING OF THE APPEAL. 3. DELETING THE ADDITION OF RS.87460600/- MADE BY T HE AO ON ACCOUNT OF UNDISCLOSED INCOME. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINALLY HEARD FOR DISPOSAL. 74. THE FACTS IN BRIEF ARE THAT MR. VINOD VAISH FIL ED RETURN OF INCOME ON 30.7.2009 DECLARING TOTAL INCOME OF RS.3, 32,98,372/-. DURING THE COURSE OF SEARCH CONDUCTED ON 21.07.2008 AT THE RESIDENTIAL PREMISES OF MR. MUKESH SHARMA CERTAIN D OCUMENTS WERE FOUND WHICH INDICATED THAT THE ASSESSEE I.E. M R. VINOD VAISH HAS SOLD AGRICULTURE LAND MEASURING 1.9 HECTARE TO MR. MUKESH MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 60 SHARMA AND OTHERS. THE STATED CONSIDERATION RECEIV ED BY MR. VINOD VAISH WAS RS.5 CRORES BUT THE LD. A.O ON THE BASIS OF THE FINDING IN THE CASE OF MR. MUKESH SHARMA CAME TO A CONCLUSION THAT ON MONEY OF RS.8,74,60,600/-HAS BEEN PAID BY ALL THE PURCHASERS TO MR. VINOD VAISH. LD. A.O MADE THE AD DITION OF RS.8,74,60,600/- IN THE HANDS OF MR. VINOD VAISH A ND ASSESSED THE INCOME AT RS.12,07,58,972/- VIDE HIS ORDER DATE D 29.12.2011 U/S 143(3) OF THE ACT. AGAINST THIS IMPUGNED ADDIT ION OF RS.8,74,60,600/- ASSESSEE PREFERRED APPEAL BEFORE L D. CIT(A) AND SUCCEEDED AS THE LD. CIT(A) DELETED THE ADDITION. 75. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 76. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ISSUE RAISED BY THE REVENUE IN GROU ND NO.3 DELETING THE ADDITION OF RS.8,74,60,600/- MADE BY THE LD. A. O ON ACCOUNT OF UNDISCLOSED INCOME. WE FIND THAT THE ISSUE RELATES TO THE SALE OF 1.9 HECTARE LAND OWNED BY THE ASSESSEE FOR WHICH CONSID ERATION OF RS.5 CRORES WAS STATED IN THE REGISTERED SALE DEED BUT T HE LD. A.O IN THE CASE OF ONE OF THE PURCHASER MR. MUKESH SHARMA, ON THE BASIS OF LOOSE PAPER SEIZED DURING THE COURSE OF SEARCH U/S 132 OF THE ACT CONDUCTED ON 21.07.2008 HELD THAT AN ON MONEY OF RS.8,74,60,600/- IS ALLEGED TO HAVE BEEN PAID BY VA RIOUS PURCHASES MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 61 TO MR. VINOD VAISH. WE FIND THAT WE HAVE ALREADY AD JUDICATED THIS ISSUE IN THE CASE OF MR. MUKESH SHARMA FOR ASSESSME NT YEAR 2009- 10 WHEREIN WE HAVE HELD THAT THE LD. CIT(A) HAS RI GHTLY DELETED THE ADDITION FOR ALLEGED ON MONEY PAYMENT. WE HAVE A LSO HELD THAT THE LD. A.O ERRED IN MAKING THE ADDITION MERELY ON THE BASIS OF SEIZED LOOSE PAPERS WITHOUT PROVING ANY NEXUS WIT H THE ACTUAL TRANSACTION BY PLACING CORROBORATIVE EVIDENCE ON RE CORD AND WERE MERELY DUMB IN NATURE AND OUT THIS VIEW WAS SUPPORT ED BY VARIOUS JUDGMENTS OF HON'BLE APEX COURT AND OTHER HON'BLE C OURTS AS REFERRED IN THE PRECEDING PARAS. 77. SINCE WE HAVE ALREADY CONFIRMED THE VIEW OF LD. CIT(A) DELETING THE ADDITION IN THE CASE OF MR. MUKESH SHARMA FOR H IS SHARE OF ON MONEY , THEREFORE NO ADDITION COULD BE MADE IN TH E HANDS OF THE SELLER MR. VINOD VAISH ALSO. THEREFORE THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION OF RS.8,74,60,600/- MADE BY TH E LD. A.O ON ACCOUNT OF UNDISCLOSED INCOME GIVING FOLLOWING FIND ING OF FACT. ALL THESE GROUNDS OF APPEAL RE DIRECTED AGAINST THE ADDITION OF RS.8,74,60,600/-MADE ON ACCOUNT OF RECEIPT OF 'ON M ONEY' AGAINST SALE OF LANDS LOCATED AT VILL. RATANPUR, MISROD, BHOPAL. TH E A.O. HAS HELD THAT IN MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 62 THE COURSE OF SEARCH CONDUCTED ON 21.07.2008 IN THE CASE OF SHRI MUKESH SHARMA, B-99, RAJVAIDH COLONY, KOLAR ROAD, BHOPAL, ONE OF THE BUYERS OF THE LAND, VARIOUS INCRIMINATING DOCUMENTS WERE FOUN D AND ON THE BASIS OF SUCH DOCUMENTS, IT WAS HELD THAT THE BUYERS HAVE PA ID .ON MONEY TO THE ABOVE EXTENT TO THE APPELLANT. THE APPELLANT DID NO T DISCLOSE RECEIPT OF THE SAME AS HIS INCOME. ACCORDINGLY, THE ABOVE AMOUNT W AS ADDED TO THE TOTAL INCOME OF THE APPELLANT AFTER REPRODUCING THE OBSER VATIONS MADE IN THE ASSESSMENT ORDER IN THE CASE OF SHRI MUKESH SHARMA. 5.1) IN THE COURSE OF APPEAL PROCEEDINGS, THE LD. C OUNSEL FOR THE APPELLANT HAS CONTENDED THAT THE A.O. HAS ERRED IN MAKING THE ADDITION WITHOUT PROVIDING COPIES OF THE EVIDENCES USED AGAINST HIM AND WITHOUT ALLOWING CROSS-EXAMINATION OF THE PERSON GIVING THE STATEMEN T. COPIES OF WRITTEN SUBMISSIONS, COPY OF APPELLANT'S STATEMENT RECORDED BY THE A.O., COPY OF APPELLANT'S AFFIDAVIT DENYING RECEIPT OF ANY ON MON EY AND OTHER DETAILS FILED BEFORE THE A.O. WERE FILED. IT WAS CONTENDED ON THE BASIS OF THE REPLIES AND OTHER DETAILS FILED THAT THE NOTINGS IF THE LOOSE PAPERS SEIZED FROM SHRI MUKESH SHARMA ARE NOT CORROBORATED BY ANY OTHER EVIDENCES TO ESTABLISH THAT THE APPELLANT HAS RECEIVED ANY ON MO NEY. IT WAS CONTENDED THAT THE LAND WAS SOLD AT THE RULING MARKET PRICE W HICH WAS HIGHER THAN GUIDELINE PRICE AND CAPITAL GAIN ON THE SAME WAS OF FERED TO TAX IN THE RETURN FILED. THERE IS NO BASIS FOR MAKING THE ADDI TION EXCEPT THE A.O'S FINDINGS CONTAINED IN THE ASSESSMENT ORDER. THE ROU GH JOTTINGS RELATE TO THE CALCULATION OF ESTIMATED RETURN ON SALE OF SUCH LAN D, PROVIDED THE LAND IS DIVERTED FOR RESIDENTIAL AND COMMERCIAL PURPOSES AF TER OBTAINING APPROVALS FROM VARIOUS AUTHORITIES. THE LAND CAN BE SOLD IN T ERMS OF SQUARE FEET ONLY, WHEN USAGE OF LAND IS CHANGED AND CONVERTED INTO RE SIDENTIAL/ COMMERCIAL USE. THE HAND WRITING CONTAINED IN THE LOOSE PAPER IS NOT IN THE HANDWRITING OF THE APPELLANT OR ANY OF HIS FAMILY M EMBERS. THERE IS NO CORROB01.-ATIVE MATERIAL TO SUGGEST THAT THE APPELL ANT HAS ACTUALLY RECEIVED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 63 ANY AMOUNT MORE THAN OF RS.3,10,50,OOO/- TOWARDS SA LE CONSIDERATION OF AGRICULTURAL LAND. THERE IS NO CONCLUSIVE PRESUMPTI ON TO HOLD THAT ACTUAL CONSIDERATION THAT WAS PASSED BETWEEN SHRI MUKESH S HARMA AND THE APPELLANT OF RS.13,65,60,OOO/- AND NO ADDITION IS POSSIBLE ON THE BASIS OF SUSPICION, CONJECTURES, SURMISES AND ON THE BASI S OF DOCUMENTS. THE APPELLANT HAS FINALLY RELIED ON THE FOLLOWING CASES . CIT VS J.P. DUBEY (1997) 223 ITR 451(MP) 39 LTD 183 - ASWANI KUMAR VS ITO IN THE ITAT DELHI BENCH' D EMBEE CLEARING AND SHIPPING VS ACIT ON 26.09.2006 5.2 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE APPELLANT. THE PAPERS, ON THE BASIS OF WHICH THE AD DITION WAS MADE, WERE CONSIDERED IN THE CASE OF SHRI MUKESH SHARMA IN GRO UND NO.8 OF THE GROUNDS OF APPEAL FOR A. YR.2009-1 O. THE FIRST OBJECTIONS OF THE LD. COUNSEL FOR THE APPELLANT IS THAT, DESPITE REPEATED REQUEST S, THE EVIDENCES USED AGAINST HIM, EXCEPT ASSESSMENT ORDER IN THE CASE OF SHRI MUKESH SHARMA, WERE SUPPLIED TO HIM. SIMILARLY, THE A.O. HAS NOT A LLOWED CROSS EXAMINATION OF SHRI MUKESH SHARMA, WHOSE STATEMENT GIVEN IN PROCEEDINGS U/S.L3 2, WAS USED IN THE APPELLANT'S CASE. THEREFORE, ACCORD ING TO THE LD. AR, THE PRINCIPLES OF NATURAL JUSTICE WERE NOT COMPLIED WIT H AND THE ASSESSMENT IS BAD IN LAW. PERUSAL OF THE ASSESSMENT RECORDS REVEA L THAT NO SUCH OPPORTUNITY WAS GIVEN TO APPELLANT DURING ASSESSMEN T PROCEEDINGS, WHICH IS A FACT. HOWEVER, AFTER CONSIDERING THE FACTS OF THE CASE, CONTENTS OF THE LOOSE PAPERS AND THE APPELLANT'S SUBMISSION IN CASE OF SHRI MUKESH SHARMA, THE ADDITION MADE ON ACCOUNT OF PAYMENT ON MONEY WAS DELETED IN THAT CASE. THEREFORE, IT IS NOT CONSIDERED NECESSAR Y TO ALLOW CROSS EXAMINATION OF SHRI MUKESH SHARMA BY THE APPELLANT AT THIS STAGE. THE OTHER CONTENTIONS OF THE PRESENT APPELLANT ARE IDEN TICAL TO THE CONTENTIONS RAISED AND CONSIDERED IN THE CASE OF SHRI MUKESH SH ARMA. THE OPERATIVE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 64 PART OF THE ORDER AT PAGE NOS. 21 & 22 IN ITA NO.584/10-11, DATED 30.01.2013 IS REPRODUCED BELOW: '15.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A 0 AND SUBMISSIONS OF THE APPELLANT. THE AD HAS MADE THE ADDITION MAINLY ON THE BASIS OF INFERENCES DRAWN ABOUT THE JOTTINGS CONTAINED IN LO OSE PAPERS - LPS-III PAGE NO. 74 BACK SIDE AND PAGE NO. 75. THE A D HAS SUMMARIZED THE BASIS OF HIS CONCLUSIONS AT PAGE NO. 58 OF THE ASSESSMENT ORDER BY STATING THAT THE CHEQUE PAYMENT OF RS. 50,00,0001- ON THE BACKSIDE OF PAGE NO. 74 TALLIES WITH THE ACTUAL AMOUNT OF RS.50 LAKHS PAID ON 23.5. 200B. THE AREA OF LAND AND REGISTRY EXPENSES TALLY WITH THE ACTUAL LAND AR EA AND THE EXPENSES INCURRED ON REGISTRATION. THE FIGURE OF '225' MENTIONED AT PAGE NO. 75 DEN OTES THE AMOUNT OF RS.225 LAKHS DEPOSITED BY DDI CH EQUE IN THE BANK DOCUMENTS OF 14 PERSONS OF DABRA. THE FIGURE OF '323' MENTIONED IN THESE DOCUMENTS TALLIES WITH THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNTS OF THE 14 PERSONS PLUS REGISTRATION CHARGES AND PAG E NO. 74 BACK SIDE AND PAGE NO. 75 CORROBORATED EACH OTHER. THOUGH THE FIRST OBSERVATI ON IS FOUND TO BE CORRECT, THE SUBSEQUENT OBSERVATIONS ARE ONLY IN FERENCES AND ARE NOT BASED ON FACTS. THERE IS NOTHING UNUSUAL IN TALLYIN G THE LAND AREA. THE AMOUNT OF REGISTRATION EXPENSES WERE INCURRED AT RS .49, 18,335/- AND NOT RS.50,00,000/-, I.E. THE FIGURE MENTIONED AGAINST T HE NARRATION. THE TOTAL OF THE AMOUNT DEPOSITED THROUGH DDI CHEQUES IN THE BAN K ACCOUNTS OF THE 14 PERSONS COMES TO RS.2, 70,05,400/- AND IT IS NOT MA TCHING WITH THE FIGURE OF '225 '. SIMILARLY, THE TOTAL AMOUNT OF CASH DEPOSIT ED IN THE BANK ACCOUNTS OF THE 14 PERSONS COMES TO RS.2, 76,77,877/-. THUS, IT IS ALSO NOT TALLYING WITH THE FIGURE OF '323 '. SINCE, THE ABOVE FIGURES ARE NOT TALLYING WITH THE ABOVE FIGURES, IT CANNOT BE CONCLUDED THAT PAGE NO. 74 BA CKSIDE AND 75 ARE CORROBORATIVE TO EACH OTHER. EXCEPT THESE JOTTINGS, THERE ARE NO OTHER CORROBORATIVE EVIDENCES TO JUSTIFY THE ADDITION. ON THE CONTRARY, THE APPELLANT'S CONTENTION THAT THE ENTIRE EXERCISE IS BASED ON INFERENCES CARRIES MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 65 MORE FORCE. NO INCRIMINATING DOCUMENTS ESTABLISHING TRANSFER OF ACTUAL FUNDS BETWEEN THE BUYERS AND THE SELLERS WERE FOUND THE L AND WAS PURCHASED AT A PRICE HIGHER THAN THE GUIDE LINE PRICE FIXED BY T HE COLLECTOR. THE LAND WAS UN-DIVERTED AGRICULTURAL LAND AND CONSIDERING THE L OCATION AND THE STATUS OF THE LAND, IT DID NOT COMMAND SUCH PRICE AS OPINED B Y THE A.O. UNDER THESE CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT THOUGH THE JOTTINGS CONTAINED IN THE LOOSE PAPERS MAY GENERATE A SUSPIC ION, THEY ARE NOT SUFFICIENT ENOUGH, WITHOUT CORROBORATING EVIDENCES, TO CONCLUDE THAT ACTUAL MONEY HAS CHANGED HANDS. IN THIS VIEW OF THE MATTER , THE ADDITION COVERED IN THIS GROUND OF APPEAL IS NOT SUSTAINABLE, HENCE DELETED THIS GROUND OF APPEAL IS, ACCORDINGLY, ALLOWED. ' IN THIS VIEW OF THE MATTER, I AM OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO ON ACCOUNT OF RECEIPTS OF ON MONEY I N THE APPELLANTS CASE IS NOT SUITABLE, HENCE DELETED. ACCORDING, THESE TW O GROUNDS OF APPEALS ARE ALLOWED. 78. WE THEREFORE UPHOLD THE FINDING OF LD. CIT(A) A ND DISMISS THE REVENUES GROUND NO.3. 79. AS REGARDS GROUND NO. 1 & 2 REVENUE IS CHALLENG ING THAT NO NOTICE WAS GIVEN TO THE LD. A.O PROVIDING OPPORTUNI TY OF BEING HEARD BEFORE LD. CIT(A). AT THE OUTSET THE LD. DEPARTMEN TAL REPRESENTATIVE REQUESTED FOR NOT PRESSING THEIR GROUNDS. SINCE THE REVENUE HAS NOT PRESSED GROUND NO. 1 & 2 AS PER THE LETTER GIVEN BY THEM BEFORE US MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 66 DURING THE COURSE OF HEARING, WE DISMISS GROUND NO. 1 & 2 AS NOT PRESSED. 80. IN THE RESULT APPEAL OF REVENUE IN THE CASE OF MR. VINOD VAISH FOR ASSESSMENT YEAR 2009-10 STANDS DISMISSED. 81. NOW WE TAKE UP THE BUNCH OF 14 APPEALS OF THE FOLLOWING ASSESSEES IN WHICH PROTECTIVE ADDITION FOR UNACCOUN TED INVESTMENTS IN PURCHASE OF LAND AS WELL AS DISALLOWANCE OF EXPE NSES HAVE BEEN MADE. DETAILS OF THE ASSESSEES WITH APPEAL NOS AL ONG WITH TOTAL INCOME DISCLOSED, ADDITIONS MADE AND INCOME ASSESS EE IS DETAILED BELOW; NAME OF ASSESSEE & ITANO. TOTAL INCOME ADDITION ON DISALLOWANCE OF EXPENSES ADDITION ON PROTECTIVE BASIS ASSESSED INCOME 1 SURESH KUMAR UPADHYAY ITANO.699/IND/2016 26,33,230 19,520 46,01,538 72,54,288 2 CHANDRA KUMAR SHARMA ITANO.700/IND/2016 42,96,651 3,68,349 29,38,117 76,03,117 3 SANJAY KUMAR SAHU ITANO.701/IND/2016 4,62 ,060 NIL 67,72,708 72,34,768 4 SUKHDEV SINGH DHARIWAL 22,21,765 17,78,235 50,13,003 90,13,003 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 67 ITANO.702/IND/2016 5 KHEMRAJ SINGH CHAUHAN ITANO.703/IND/2016 50,21,671 NIL 94,47,865 1,44,69,536 6 KAMLESH KUMAR CHOUDHARY ITANO.704/IND/2016 25,91,668 NIL 1, 18,77,868 1,44,69,536 7 SANTOSH KUMAR SHARMA ITANO.705/IND/2016 26,33,954 NIL 46,00,814 72,34,768 8 LALTA PRASAD CHOUDHARY ITA NO.706/IND/2016 22,94,656 3,55,913 49,40,112 75,90,681 9 PRADEEP KUMAR SHARMA ITANO.707/IND/2016 57,33,205 1,21,795 15,01,563 73,56,563 10 RAMESH CHANDRA PARASHAR ITANO.708/IND/2016 28,54,750 4,33,000 1,16,14,786 1,49,02,536 11 VIJAY KUMAR SHRIVASTAVA ITANO.709/IND/2016 46,61,357 3,38,643 25,73,411 75,73,411 12 DHARMENDRA K. CHOUDHARY ITANO.710/IND/2016 21,95,008 4,55,561 50,3 9,760 76,90,329 13 RAM KUMAR SWAMI ITANO.711/IND/2016 22,88,974 3,61,595 49,45,794 75,96,363 14 VIRENDRA KUMAR SHARMA ITANO.542/IND/2017 23,58,560 2,92,010 48,76,208 76,26,778 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 68 82. FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ABOVE STATED 14 ASSESSEES; ITA NO.699/IND/2016 1. THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FA ILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ES CAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS. 19520/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS. 46,01,538/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 69 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.700/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2.THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ES CAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS.3,68,349/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 29,38,117/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 70 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.701/IND/2016 1. THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDI NGS' INITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FA ILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ES CAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FACTS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WITHOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES . 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE IN RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENED THEREFOR E THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON OF REOPENI NG WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS. 67,72,708/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEES POSSESSION. 6. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 71 7. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 8. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN THE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.702/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 17,78,235/- CLAIMED AS EXPENSES BY THE ASSESSEE. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 72 ADDITION OF RS. 50,13,003/-- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HAND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.703/IND/2016 1. THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROC EEDINGS' INITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FA ILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED T O HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FACTS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WITHOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES . 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REO PENED THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON OF REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 73 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS. 94,47,865/-. MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FR OM THE ASSESSEES POSSESSION. 6. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 7. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 8. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.704/IND/2016 1. THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROC EEDINGS' INITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FA ILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED T O HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FACTS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WITHOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES . 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REO PENED THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON OF MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 74 REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS. 1,18,77,858/-. MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FR OM THE ASSESSEES POSSESSION. 6. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 7. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 8. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.705/IND/2016 1. THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROC EEDINGS' INITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FA ILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED T O HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FACTS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WITHOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES . 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REO PENED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 75 THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON OF REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS.46,00,814/- MADE ON THE BASIS OF A D UMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEES POSSESSION. 6. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 7. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OF SUBSTANTIVE ADD ITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 8. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.706/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 76 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 3,55,913/- CLAIMED AS EXPENSES. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 49,40,112/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HAND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.707/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 77 ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 1,21,795/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 15,01,563/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 78 ITA NO.708/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 4,33,000/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS.1,16,14,786/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 79 CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.709/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 3,38,643/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 25,73,411/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 80 AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.710/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.4,55,561/-. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 81 ADDITION OF RS. 50,39,760/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.711/IND/2016 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 82 INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 3,61,595/- CLAIMED AS EXPENSES. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS. 49,45,794/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NOT FOUND FROM THE AS SESSEE'S POSSESSION. 7. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 8. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 9. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN T HE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. ITA NO.542/IND/2017 1.THAT THE LD. CIT{A} ERRED BOTH IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF REASSESSMENT PROCEEDINGS U/S 148. THE ID. CIT(A} HAS FAILED TO APPRECIATE THAT THE REASSESSMENT PROCEEDINGS' IN ITIATED BY THE AO WERE ILLEGAL, VOID AND WITHOUT JURISDICTION. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT REASSESSMENT PROCEEDINGS WERE INITI ATED ON THE BASIS OF INCORRECT FACTS SINCE THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT WAS ALREADY OFFERED TO TAX IN THE RETURN OF INCOME. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 83 3. THAT THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN DECIDING T HE ENTIRE APPEAL ON A PRECONCEIVED HYPOTHESIS AND PRED ETERMINED NOTION WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND FAC TS ON RECORD. MOST OF THE FINDINGS IN THE APPELLATE ORDER ARE WIT HOUT ANY BASIS AND APPEAR TO BE ON PRESUMPTIONS AND SURMISES. 4. THAT THE LD. CIT{A} HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT SINCE NO ADDITION HAS BEEN MADE I N RESPECT OF THE INCOME ON THE BASIS OF WHICH ASSESSMENT WAS REOPENE D THEREFORE THE ADDITION MADE FOR ITEM IN RESPECT OF WHICH REASON O F REOPENING WAS NOT RECORDED IS UNSUSTAINABLE. 5. THAT THE LD. CIT{A) AND THE AO WERE NOT JUSTIFIE D IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 48,76,208/- MADE ON THE BASIS OF A DUMB DOCUMENT UNRELATED TO THE ASSESSEE AND NO T FOUND FROM THE ASSESSEES POSSESSION. 6. THAT THE MANNER IN WHICH THE LD. CIT(A) HAS UPHELD THE ADDITION IN PARA 14 OVER THE ALLEGED EXCESS INVESTMENT IN LAND WITHOUT EVEN DISCUSSING THE ALLEGED DOCUMENT, SUBMISSIONS OF THE ASSESSEE AND SIMPLY RELYING ON THE ASSESSMENT ORDER IS UNWARRANT ED AND PERVERSE AND IS DEVOID OF ANY MERIT. 7. THAT THE LD. CIT{A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PROTECTIVE ADDITION AS SUBSTANTIVE ADDITION IN THE HANDS OF THE APPELLANT. THE CIT(A) ON ONE HAND IS DOUBTING THE F INANCIAL CAPACITY OF THE APPELLANT TO MAKE THE INVESTMENT AND ON THE OTHER HOND IS CONFIRMING THE PROTECTIVE ADDITION OS SUBSTANTIVE A DDITION. THE SAID FINDING IS PERVERSE AND CONTRARY TO THE ENTIRE MATR IX BUILT UP BY THE CIT(A) 8. THAT THE LD. CIT(AJ HAS EXCEEDED HER JURISDICTION IN GIVING DIRECTIONS TO THE AO TO REOPEN THE CASE FOR AY 2010-11 AND GIVING DIRECTIONS FOR EXAMINING THE OPENING CAPITOL WHICH ARE I10T WITHIN THE SCOPE OF THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHICH WERE NOT EVEN THE SUBJECT MATTER OF ASSESSMENT. 9. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 2,92,010/- SHOWN AS AGRICULTURAL IN COME SAVINGS OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS AND CIR CUMSTANCES OF THE CASE. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 84 83. FROM PERUSAL OF THE ABOVE GROUNDS FOLLOWING FOU R COMMON ISSUES NEEDS TO BE ADJUDICATED:- (I) CHALLENGING THE VALIDITY OF REASSESSMENT U/S 1 47 OF THE ACT (II) PROTECTIVE ADDITION MADE ON THE BASIS OF DUMB DOCUMENT UNRELATED TO THE ASSESSEE. (III) ADDITION FOR DISALLOWANCE OF EXPENSES (IV) DIRECTION BY LD. CIT(A) FOR REOPENING OF CASE FOR ASSESSMENT YEAR 2010-11. 84. FACTS IN BRIEF COMMONLY FOR ALL THE ASSESSEES ARE THAT PURSUANT TO SEARCH U/S 132 OF THE ACT AT THE RESIDE NCE OF SHRI MUKESH SHARMA ON 21.07.2008 VARIOUS DOCUMENTS WERE SEIZED. IN THE DOCUMENT ONE MEMORANDUM OF AGREEMENT WAS FOU ND FOR PURCHASE OF 1.9 HECTARE OF AGRICULTURE LAND AT RATA NPUR, MISROAD, NEAR BHOPAL SHOWING THAT MR. MUKESH SHARMA ALONG WI TH OTHER CO-PURCHASERS I.E. 14 ASSESSEES REFERRED ABOVE IN THE CHART JOINTLY PURCHASED THE LAND FROM MR. VANOD VAISH FOR CONSIDE RATION OF RS.5 CRORES. LD. A.O ON THE BASIS OF THESE DOCUMEN TS CONCLUDED THAT ON MONEY OF RS.8,74,60,600/- HAS BEEN PAID B Y ALL THE PURCHASERS AND ADDITION OF RS.87,46,000/- IN THE HA NDS OF MR. MUKESH SHARMA FOR HIS SHARE OF 10% IN THE ALLEGED L AND. SUBSEQUENTLY LD. A.O MADE SUBSTANTIAL ADDITION OF RS.8,74,60,600/- IN THE HANDS OF MR. MUKESH SHARMA ON THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 85 DIRECTION OF LD. CIT(A)S ORDER U/S 263 OF THE ACT DATED 28.3.2013. THIS ORDER OF LD. CIT(A) PASSED U/S 263 OF THE ACT WAS QUASHED BY TRIBUNAL VIDE ORDER DATED 31.10.2014. HOWEVER AMOU NT OF THE ON MONEY WAS ADDED PROTECTIVELY IN THE HANDS OF THE 1 4 ASSESSEES AS PER THEIR SHARE IN LAND. LD. A.O ALSO MADE ADDI TION FOR DISALLOWANCE OF EXPENSES IN CASE OF 10 ASSESSEES F OR THE ALLEGED DIFFERENCE BETWEEN THE AMOUNT DEPOSITED IN THE BANK AS AGAINST THE AMOUNT ADMITTED AS UNDISCLOSED INCOME. THE RES PECTIVE AMOUNT ARE ALREADY MENTIONED IN THE CHART GIVEN HER EIN ABOVE RELATING TO THE 14 ASSESSEES. AGGRIEVED ASSESSEE S PREFERRED APPEAL BEFORE LD. CIT(A) AND FAILED TO SUCCEED AND NOW ALL THE ASSESSEES ARE IN APPEAL BEFORE THE TRIBUNAL. 85. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS MADE BEFORE THE LOWER AUTHORITIES AND LD. DEPARTMENTAL R EPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 86. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. AS REGARDS THE FIRST COMMON ISSU E CHALLENGING THE VALIDITY OF REASSESSMENT U/S 148 OF THE ACT, WE FIND THAT THERE WAS CERTAIN INFORMATION RELATING TO THESE 14 ASSESS EES FOUND BY THE SEARCH TEAM DURING THE SEARCH U/S 132 OF THE AC T CONDUCTED ON 21.7.2008 AT THE PREMISES OF MR. MUKESH SHARMA I NCLUDING A MEMORANDUM OF AGREEMENT FOR PURCHASE OF LAND BY MR. MUKESH SHARMA AND 14 OTHER PARTIES. CERTAIN LOOSE PAPERS WERE ALSO MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 86 SEIZED WHICH AS PER THE LD. A.O INDICATED SOME UNDI SCLOSED INVESTMENT. RETURN WERE FILED ON 31.03.2010 AND NO TICE U/S 148 OF THE ACT ISSUE WITHIN 4 YEARS I.E. BEFORE 31.03.2 014. PROPER OPPORTUNITY WAS GIVEN TO ASSESSEE(S) TO REPLY TO TH E REASONS RECORDED FOR REOPENING. IN OUR CONSIDERED VIEW THE CASES OF 14 ASSESSEES WERE FIT CASE FOR ISSUE OF NOTICE U/S 14 8 OF THE ACT AND FOR CONDUCTING REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. WE ACCORDINGLY DISMISS THIS COMMON ISSUE RAISED IN 14 CASES CHALLENGING THE VALIDITY REASSESSMENT PROCEEDINGS. 87. NOW WE TAKE UP SECOND COMMON ISSUE RELATING TO THE ADDITION ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEES FOR THE UNACCOUNTED INVESTMENT IN PURCHASE OF 1.9 HECTARE L AND JOINTLY WITH MR. MUKESH SHARMA PURCHASED FROM MR. VINOD VAI SH. WE FIND THAT THIS ISSUE STANDS ADJUDICATED BY US IN TH E CASE OF MR. MUKESH SHARMA AND MR. VINOD VAISH VIDE ITA (SS)NO.88/IND/2014 FOR ASSESSMENT YEAR 2009-10 AND ITA NO.189/IND/2013 FOR ASSESSMENT YEAR 2009-10 WHEREIN WE HAVE HELD THAT NO ADDITION WAS CALLED FOR THE ON MONEY PAYMENT OF RS.8,74,60,600/- AS IT WAS BASED ON THE SEIZED LOOS E PAPERS WHICH ARE MERELY DUMB DOCUMENTS HAVING NO NEXUS WITH ANY CORROBORATING EVIDENCE TO PROVE THE TRANSACTION. I N THE LIGHT OF OUR DECISION IN THE CASE OF MR. MUKESH SHARMA AND MR. V INOD VAISH, WE ARE OF THE VIEW THAT BOTH THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN MAKING THE ADDITION ON PROTECTIVE BASIS IN THE H ANDS OF ALL THE MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 87 14 ASSESSEES. WE ACCORDINGLY ALLOW THIS COMMON IS SUE IN THE CASE OF THE 14 ASSESSEES AND DELETE THE ADDITION M ADE ON PROTECTIVE BASIS ON UN ACCOUNTED INVESTMENTS IN PUR CHASE OF LAND TOTALLING TO RS.8,07,43,547/-. 88. NOW WE TAKE UP THIRD COMMON ISSUE RELATING TO D ISALLOWANCE OF EXPENSES TOTALLING TO RS.45,24,621/- MADE IN THE CASE OF 10 ASSESSEES AS REFERRED IN THE CHART ABOVE. BRIEF FACTS RELATING TO THIS COMMON ISSUE ARE THAT THE RESPECTIVE ASSESSEE DEPOSITED CERTAIN AMOUNT IN THE BANK IN THE FORM OF CASH OR F ROM LOAN TAKEN FROM SOME PARTIES. BUT WHILE FILING THE RETURN OF INCOME THEY ADMITTED CERTAIN AMOUNT AS UNDISCLOSED INCOME TO BE OFFERED TO TAX AND THE DIFFERENCE WAS CLAIMED TO BE EXPENSES I NCURRED FOR EARNING THE INCOME. HOWEVER DUE TO LACK OF DETAILS LD. A.O MADE THE ADDITION. WHEN THE MATTER CAME UP BEFORE LD. C IT(A) THE ISSUE REMAINED UN ADJUDICATED AS LD. CIT(A) DEVOTED HER ENERGY ONLY ON THE ISSUE OF ADDITION ON PROTECTIVE BASIS AND FAILE D TO ADJUDICATE THE GROUND RAISING THIS ISSUE. NOW THE RESPECTIVE ASSESSEES ARE IN APPEAL BEFORE THE TRIBUNAL. 89. WE OBSERVE THAT THE ALLEGED DISALLOWANCE FOR EX PENSES IS THE DIFFERENCE BETWEEN THE AMOUNT DEPOSITED IN THE BANK /AMOUNT OF LAND TAKEN AND THE AMOUNT ADMITTED AS UNDISCLOSED I NCOME BY THE FOLLOWING 10 ASSESSEES; MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 88 NAME OF ASSESSEE & ITANO. AMOUNT DEPOSIT IN BANK/LOAN AMOUNT ADMITTED AS UNDISCLOSED INCOME DIFFERENCE 1 SU RESH KUMAR UPADHYAY ITANO.699/IND/2016 26,52,750 26,33,230 19,520 2 CHANDRA KUMAR SHARMA ITANO.700/IND/2016 46,65,000 42,96,651 3,68,349 3 SUKHDEV SINGH DHARIWAL ITANO.702/IND/2016 40,00,000 22,21,765 17,78,235 4 LALTA PRASAD CHOUDHARY ITA NO.706/IND/2016 26,50,569 22,94,656 3,55,913 5 PRADEEP KUMAR SHARMA ITANO.707/IND/2016 68,55,000 57,33,205 1,21,795 6 RAMESH CHANDRA PARASHAR ITANO.708/IND/2016 32,87,750 28,54,750 4,33,000 7 VIJAY KUMAR SHRIVASTAVA ITANO.709/IND/2016 50,00,000 46,61,357 3,38,643 8 DHARMENDRA K. CHOUDHARY ITANO.710/IND/2016 26,50,569 21,95,008 4,55,561 9 RAM KUMAR SWAMI ITANO.711/IND/2016 26,50,569 22,88,974 3,61,595 10 VIRENDRA KUMAR SHARMA ITANO.542/IND/2017 26,51,070 23,58,560 292010 MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 89 90. WE FIND THAT THE ALLEGED DIFFERENCE WAS CLAIM ED BY THE ASSESSEE AS EXPENSES INCURRED TO HAVE BEEN INCURRED FOR EARNING UNDISCLOSED INCOME. LD. A.O MADE THE ADDITION FOR WANT OF DETAILS. LD. CIT(A) HAS NOT ADJUDICATED THE ISSUE. WE HOWEVE R ON THE PERUSAL OF THE CHART FIND THAT EXCEPT IN THE CASE OF SUKHDE V SINGH DHARIWAL ITA NO.702/IND/2016 IN ALL THE OTHER CASES THE INC IDENTAL EXPENSES CLAIMED ARE IN THE RANGE OF10% OF THE AMOUNT ADMITT ED AS UNDISCLOSED INCOME. IN THE CASE OF SHRI SUKHDEV SI NGH DHARIWAL EXPENSE OF RS.17,78,235/- HAS BEEN CLAIMED AGAINST THE UNDISCLOSED INCOME OF RS.22,21,765/-. IT IS AN ACCEPTED FACT T HAT THE INCIDENTAL EXPENSES ARE OUGHT TO BE INCURRED TO EARN ANY INCOM E. IN THE INSTANT CASE THOUGH THE ACTUAL SOURCE OF EARNING THE UNDISC LOSED INCOME HAS NOT BEEN STATED BUT CLAIMING CERTAIN EXPENSES AGAIN ST THE EARNING OF SAID UNDISCLOSED INCOME CANNOT BE BRUSHED ASIDE. HO WEVER, LD. CIT(A) FAILED TO ADJUDICATE THIS ISSUE AND IN THE I NTEREST OF JUSTICE WE ARE OF THE VIEW THAT THIS COMMON ISSUE NEEDS TO BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR ADJUDICATION AFTER GIVING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. IN THE RESULT TH IS COMMON ISSUE OF DISALLOWANCE TOTALLING TO RS.45,24,621/- RELATING T O 10 ASSESSEES IS ALLOWED FOR STATISTICAL PURPOSES. 91. NOW WE COME TO THE FOURTH COMMON ISSUE THROUG H WHICH THE RESPECTIVE ASSESSEES ARE AGGRIEVED WITH THE FINDIN GS OF LD. CIT(A) TO HAVE EXCEEDED HER JURISDICTION IN GIVING DIRECTION TO THE LD. A.O TO REOPEN THE CASES FOR ASSESSMENT YEAR 2010-11 GIVIN G DIRECTION FOR EXAMINING THE CORRECTNESS OF OPENING CAPITAL, WHICH IS NOT WITHIN MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 90 THE SCOPE OF LD. CIT(A). 92. WE OBSERVE THAT LD. CIT(A) IN HER COMMON APPEL LATE ORDER FOR THE 14 ASSESSEES HAVE DIRECTED THE LD. A.O TO CONS IDER THE RE- OPENING OF THE CASES FOR ASSESSMENT YEAR 2010-11. W E FIND THAT THE POWER OF THE COMMISSIONER (APPEALS) ARE PROVIDED IN SECTION 251 OF THE ACT READS AS FOLLOWS:- 251. (1) IN DISPOSING OF AN APPEAL, THE COMMISSIO NER (APPEALS) SHALL HAVE THE FOLLOWING POWERS (A) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT [(AA)IN AN APPEAL AGAINST THE ORDER OF ASSESSMENT I N RESPECT OF WHICH THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION AB ATES UNDER SECTION 245HA, HE MAY, AFTER TAKING INTO CONSIDERAT ION ALL THE MATERIAL AND OTHER INFORMATION PRODUCED BY THE ASSESSEE BEFO RE, OR THE RESULTS OF THE ENQUIRY HELD OR EVIDENCE RECORDED BY, THE SE TTLEMENT COMMISSION, IN THE COURSE OF THE PROCEEDING BEFORE IT AND SUCH OTHER MATERIAL AS MAY BE BROUGHT ON HIS RECORD, CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT;] (B)IN AN APPEAL AGAINST AN ORDER IMPOSING A PENALTY , HE MAY CONFIRM OR CANCEL SUCH ORDER OR VARY IT SO AS EITHER TO ENHANC E OR TO REDUCE THE PENALTY; (C)IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN TH E APPEAL AS HE THINKS FIT. 2.THE COMMISSIONER (APPEALS) SHALL NOT ENHANCE AN A SSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE A PPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUC H ENHANCEMENT OR REDUCTION. EXPLANATION.- IN DISPOSING OF AN APPEAL, THE COMMIS SIONER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF THE P ROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE THE COMMISSIONER (APPEALS) BY THE APPELLANT. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 91 93. FROM GOING THROUGH THE ABOVE PROVISION WE UNDER STAND THAT THE COMMISSIONER (APPEALS) HAS THE POWERS TO DECIDE THE APPEAL AGAINST THE ASSESSEE OF A PARTICULAR ASSESSMENT WHICH HE/SH E MAY CONFIRM/REDUCE OR ENHANCE OR ANNULLED. THE ORDER O F THE ASSESSMENT RELATES TO PARTICULAR ASSESSMENT YEAR O R ASSESSMENT YEARS. LD. CIT(A) IS BOUND TO ADJUDICATE THE ISSUE S EMANATING OUT OF THE APPEAL FOR THE RESPECTIVE ASSESSMENT YEAR. GIV ING DIRECTIONS TO THE A.O TO CONSIDER FOR RE-ASSESSMENT FOR OTHER ASS ESSMENT YEARS FOR WHICH NO APPEAL IS PENDING BEFORE CIT, IN OUR VIEW SEEMS TO BE OUT OF HIS/HER JURISDICTION. IN THE INSTANT CASE IT SEEMS THAT LD. CIT(A) HAS EXCEEDED HER JURISDICTION OF GIVING DIRECTION FOR R EOPENING OF CASES FOR ASSESSMENT YEAR 2010-11 BECAUSE THE APPEALS OF THE ASSESSEE(S) WERE PERTAINING TO ASSESSMENT YEAR 2009-10 ONLY. W E THEREFORE ALLOW THIS COMMON ISSUE RAISED BY THE RESPECTIVE AS SESSEES. 94. IN THE RESULT THESE BUNCH OF FOURTEEN APPEALS O F THE ASSESSEES FOR ASSESSMENT YEAR 2009-10 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 95. IN THE RESULT APPEAL OF THE REVENUE FOR ASSES SMENT YEAR 2009- 10 IN RESPECT OF SHRI MUKESH SHARMA IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES AND SHRI VINOD VAISH STANDS DI SMISSED. THE CROSS OBJECTION OF SHRI MUKESH SHARMA FOR ASSESSMEN T YEAR 2009- 10 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE APPEALS FOR OTHER 14 ASSESSEES FOR ASSESSMENT YEAR 2009-10 ARE PARTL Y ALLOWED FOR STATISTICAL PURPOSES. MUKESH SHARMA IT(SS) NO.88/IND/2013 C.O.NO.76/IND/2014, ITA NO.18 9/IND/2013, ITA NO.702 TO 711/IND/2016 & ITA NO.542/IND/2017 92 THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.06. 2019. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 04 TH JUNE, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T. A.T., INDORE