The Asstt. Commr. Income Tax, Cir.-2(1), RAJKOT-GUJARAT V. M/s Cast & Blower Co. (Gujarat) P. Ltd., RAJKOT-GUJARAT

ITA 750/RJT/2014

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8342 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 22-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: USHA N SHROTE
• Assessee Lawyers: DM RINDANI
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Principle of natural justice; Additional evidence; Retraction
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 750/RJT/2014 ( ASSESSMENT YEAR : 2011-12) ACIT, CIR-2(1), AAYAKAR BHAVAN, 3 RD FLOOR, RACE COURSE RING ROAD, RAJKOT-1 / VS. M/S. CAST & BLOWER CO. PVT. LTD., AJIT ESTATE, NEAR K. S. DIESEL, 80 FEET ROAD, AJI VASAHAT, RAJKOT ./ ./ PAN/GIR NO. : AABCC3707E ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SMT. USHA N. SHROTE, SR.D.R. / RESPONDENT BY : SHRI D. M. RINDANI, A.R. DATE OF HEARING 18/07/2018 '# / DATE OF PRONOUNCEMENT 04/10/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF IN COME TAX-III, RAJKOT (CIT(A) IN SHORT), DATED 09.10.2014 ARISIN G IN THE ASSESSMENT ORDER DATED 06.03.2014 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCER NING AY 2011-12. 2. THE REVENUE IN ITS APPEAL HAS IMPUGNED THE ACTI ON OF THE CIT(A) IN DELETING THE ADDITION OF RS.1,71,25,000/- MADE BY THE AO TOWARDS ALLEGED UNEXPLAINED ON-MONEY IN CASH EMPLOY ED IN A LAND ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 2 - TRANSACTION DETECTED AS A RESULT OF SURVEY PROCEEDI NGS UNDER S.133A OF THE ACT. 3. BRIEFLY STATED, THE ASSESSEE COMPANY IS ENGAGED IN MANUFACTURING OF WATER PUMPS UNDER THE BRAND TRISH UL. A SURVEY OPERATION UNDER S.133A OF THE ACT WAS CARRIED OUT A T THE BUSINESS PREMISES OF THE ASSESSEE COMPANY ON 19.10.2010. IN THE COURSE OF SURVEY PROCEEDINGS, A SATAKHAT (AGREEMENT TO SALE) ON A STAMP PAPER NO.3997 OF RS.50/- WAS FOUND PERTAINING TO AN AGRIC ULTURAL LAND ADMEASURING 5 ACRES AND 34 GUNTHAS AT VILLAGE KHOKH ADAD FOR A SALE CONSIDERATION ASSIGNED AT RS.2,57,00,000/-. THE AF ORESAID SATAKHAT WAS FOUND TO BE DULY SIGNED BY THE SELLERS (SHRI VA LABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI) BUT REMAINED UNSIGNED O N BEHALF OF THE ASSESSEE. THE COPY OF FORM NO.6, FORM NO.7/12 AND FORM NO.8A OF AGRICULTURAL LAND WERE ALSO FOUND. IT WAS ALSO NOT ICED FROM THE BACK OF THE SATAKHAT THAT A MANUAL NOTING OF CERTAIN ENT RIES OF VARIOUS AMOUNTS AND DATES WERE MENTIONED. THE MANUAL NOTIN GS SO FOUND ON SATAKHAT WAS REPRODUCED BY THE AO IN THE ASSESSMENT ORDER. AS PER THE AFORESAID JOTTINGS OF VARIOUS ENTRIES, IT WAS O BSERVED BY THE AO THAT THE ASSESSEE HAS MADE CERTAIN PAYMENTS IN CASH ON VARIOUS DATES TO THE INTENDING SELLERS AGGREGATING TO RS.1,71,25, 000/- IN CASH. THE AO FURTHER TOOK NOTE OF THE INFORMATION ELICITED BY THE DIRECTOR OF ASSESSEE COMPANY IN A STATEMENT RECORDED UNDER S.13 3A OF THE ACT IN THE COURSE OF SURVEY PROCEEDINGS. AS PER THE STATE MENT, THE ASSESSEE ATTESTED THE FACT THAT THE SALE PRICE OF THE LAND I N QUESTION WAS AGREED AT RS.2,57,00,000/- OUT OF WHICH RS.1,71,25,000/- W AS PAID ON VARIOUS DATES IN VARIOUS INSTALLMENTS AGGREGATING TO RS.171 .25 LAKHS IN CASH. IT WAS ALSO SEEN FROM THE STATEMENT OF MR. DINESHBH AI PEDHADIA, DIRECTOR OF THE COMPANY THAT THE ASSESSEE WANTED TO PURCHASE THE LAND FOR THE FACTORY OF THE COMPANY BUT HOWEVER, AS THE LAND IN QUESTION WAS THE AGRICULTURAL LAND, THE DOCUMENT COULD NOT B E MADE IN THE NAME ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 3 - OF THE COMPANY AND THEREFORE, IT WAS DECIDED TO PUR CHASE THE LAND IN THE NAME OF SON OF THE DIRECTOR (YASWANT DINESHBHAI PEDHADIA) FOR WHICH RS.1,71,25,000/- WAS PAID AS ON-MONEY IN CASH IN PART CONSIDERATION OF LAND PURCHASE TILL THE DATE OF SUR VEY. THE AO THUS NOTICED THAT THE DIRECTOR OF THE COMPANY DULY ACCEP TED AND DECLARED THE ASSESSEE COMPANYS UNACCOUNTED INCOME TO THE EX TENT OF IMPUGNED ON-MONEY OF RS.171.25 LAKHS. BASED ON THE DOCUMENT S IMPOUNDED IN THE COURSE OF SURVEY TOGETHER WITH AFFIRMATIVE STAT EMENT OF THE DIRECTOR PROVIDING INFORMATION ON SUCH DOCUMENTS, T HE AO REFUSED TO ACCEPT THE CONTENTION ON BEHALF OF THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS THAT NO SUCH DEALING AS MENT IONED IN THE DOCUMENTS IMPOUNDED WERE ACTUALLY CARRIED OUT. THE AO ALSO ALLEGED THAT DESPITE AMPLE OPPORTUNITY, THE ASSESSEE HAD FA ILED TO REPLY ON THE NATURE AND SOURCE OF SUCH TRANSACTIONS WHICH FURTHE R VINDICATES THE STAND OF REVENUE TOWARDS ON-MONEY INVOLVED. THE AO ACCORDINGLY INVOKED THE PRESUMPTION AVAILABLE TO THE REVENUE AG AINST THE ASSESSEE IN TERMS OF SECTION 292C OF THE ACT WHICH ENABLES T HE REVENUE TO PRESUME THAT THE DOCUMENTS FOUND IN THE COURSE OF T HE SURVEY BELONG TO THE PERSON IN POSSESSION AND THE CONTENTS THEREO F ARE TRUE. IN THE CIRCUMSTANCES BROADLY NARRATED ABOVE, THE AO PROCEE DED TO MAKE AN ADDITION OF RS.1,71,25,000/- TOWARDS UNEXPLAINED MO NEY UNDER S.69A R.W.S. 292C OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE P REFERRED APPEAL BEFORE THE CIT(A). 5. BEFORE THE CIT(A), A DETAILED WRITTEN REPRESENT ATION WAS FILED ON BEHALF OF THE ASSESSEE WHICH HAS BEEN REPRODUCED BY THE CIT(A) IN ITS APPELLATE ORDER IN PARA NOS. 2.4 & 2.5 OF ITS O RDER. THE CIT(A) ALSO ADMITTED ADDITIONAL EVIDENCES BY WAY OF SWORN AFFIDAVITS FILED BY THE DIRECTOR, SHRI DINESHBHAI PEDHADIA AS REPRODUCE D IN PARA 2.6 OF ITS ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 4 - ORDER WHEREBY IT WAS STATED THAT STATEMENT IN THE C OURSE OF SURVEY PROCEEDINGS WAS TAKEN UNDER PRESSURE AND FORCEFULLY A DISCLOSURE IN THE GUISE OF ALLEGED CASH PAYMENTS TO THE SELLERS O F THE AGRICULTURAL LAND WAS TAKEN. THE CIT(A) ALSO ADMITTED THE EVIDE NCES IN THE FORM OF SWORN AFFIDAVITS OF IMPUGNED SELLERS (SHRI VALAB HAI RUPABHAI AND SHRI AMRABHAI RUPABHAI) OF THE AGRICULTURAL LAND AS PER SATAKHAT AND FORWARDED THE SAME TO THE AO FOR ITS COMMENT. THE CIT(A) HOWEVER OBSERVED THAT THE AO HAS FAILED TO PROVIDE ANY RESP ONSE TO THE SWORN AFFIDAVITS OF THE DIRECTOR OF THE COMPANY AND INTEN DING SELLERS OF THE LAND FILED BY WAY OF ADDITIONAL EVIDENCES. THE CIT (A) ACCORDINGLY CONCLUDED THAT THE IMPUGNED SATAKHAT FOUND DURING T HE COURSE OF SURVEY ACTION IN THE BUSINESS PREMISES OF THE ASSES SEE COMPANY IS A PIECE OF DUMB DOCUMENT WHICH CANNOT BE ACTED UPON A S AN EVIDENCE FOR THE PURPOSES OF MAKING ADDITIONS. THE RELEVANT OPERATIVE PARA OF THE ORDER OF THE CIT(A) IS REPRODUCED HEREUNDER: 2.10 I HAVE CONSIDERED CAREFULLY, THE SUBMISSI ONS MADE BY THE AUTHORIZED REPRESENTATIVE ON VARIOUS DATES, THE SAT AKHAT IN QUESTION, THE SWORN AFFIDAVITS FILED BY SHRI YASHWANT D. PEDH ADIA (INTENDED BUYER), SHRI DINESHBHAI N. PEDHADIA (DIRECTOR OF TH E COMPANY AND THE FATHER OF SHRI YASHWANT D. PEDHADIA), SHRI VALA BHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI (INTENDED SELLER OF THE LAND) AND THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. I HAVE ALSO GONE THROUGH THE STATEMENT OF SHRI DINESHBHAI PEDHADIA, THE DIRECTOR OF THE COMPANY, RECORDED ON THE DAY OF SURVEY. ON A CA REFUL EXAMINATION OF THESE DOCUMENTS, FOLLOWING FACTS EME RGE: THAT THERE WAS A SURVEY ACTION IN THE BUSINESS PR EMISES OF THE APPELLANT COMPANY ON 19/10/2010. THAT A SATAKHAT DATED 03/07/2010 HAS BEEN FOUND D URING SURVEY ACTION, ACCORDING TO WHICH, THE INTENDED SEL LERS SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI W ERE SUPPOSE TO SELL AGRICULTURAL LAND ADMEASURING 5 ACR ES AND 34 GUNTHAS IN REVENUE SURVEY NUMBER 221/5 OF REVENU E VILLAGE KHOKHADDAD FOR A TOTAL SALE CONSIDERATION O F RS. 2,57,00,000/- TO THE INTENDED BUYER SHRI YASHWANT D . PEDHADIA, SON OF SHRI DINESHBHAI N. PEDHADIA, THE DIRECTOR OF THE APPELLANT COMPANY. THAT ON THE REVERSE OF PAGE 3 OF THE SATAKHAT FOU ND, CERTAIN JOTTINGS WERE MADE, WHICH ARE AS UNDER: ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 5 - 03/07 RS.21,25,000/- 31/07 RS.50,00,000/- 29/08 RS.50,00,000/- 04/10 RS.50,00,000/- TOTAL RS.1,50,00,000/- THAT SHRI DINESHBHAI PEDHADIA, THE DIRECTOR OF TH E COMPANY, WHEN CONFRONTED WITH THE ABOVE JOTTINGS, H AS INITIALLY ACCEPTED THAT HE HAS PAID RS.1,71,25,000/ - TO THE INTENDED SELLERS SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI IN CASH. THAT IMMEDIATELY AFTER SURVEY ACTION ON 19/10/201 0, THE APPELLANT COMPANY M/S. CAST & BLOWER CO. (GUJ.) PVT . LTD. IN ITS LETTER DATED 22/10/2010 FILED BEFORE TH E ADDL. CIT, RANGE-2, RAJKOT HAS CATEGORICALLY SAID THAT TH E IMPUGNED SATAKHAT FOUND DURING SURVEY ACTION BELONG S TO A THIRD PARTY THAT THE COMPANY HAS NOTHING TO DO WITH IT. ALSO, IT IS STATED THAT THE ALLEGED PURCHASER SHRI YASHWANT D. PEDHADIA HAS NOT SIGNED THE SAID SATAKHAT. THER EFORE, THE APPELLANT COMPANY SUBMITTED THAT THE SATAKHAT I N QUESTION IS NOT VALID. THAT SHRI YASHWANT D. PEDHADIA, IN HIS SWORN AF FIDAVIT DATED 22/10/2010 FILED BEFORE THE ASSESSING OFFICER HAS S TATED THAT THE SAID SATAKHAT DO NOT BELONG TO THE APPELLA NT COMPANY AND THE SAID COMPANY HAS NOTHING TO DO WITH IT. HE FURTHER SAID, THAT ALTHOUGH, THE IMPUGNED SATAKH AT HAS BEEN SIGNED BY THE INTENDED SELLERS SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI, HE HAS NOT SIG NED ON THE SAID SATAKHAT. THEREFORE, THE TRANSACTION WA S NEVER MATERIALIZED AND THE SATAKHAT FOUND IS INVALID. HE FURTHER ALLEGED THAT THE AUTHORIZED OFFICERS HAVE FORCEFULL Y OBTAINED THE DISCLOSURE FROM HIS FATHER SHRI DINESH BHAI PEDHADIA, WHICH IS ILLEGAL, INVALID AND AGAINST THE RULE OF NATURAL JUSTICE. THAT SHRI DHIREN H. LOTIA, ADVOCATE AND THE AU THORIZED REPRESENTATIVE VIDE HIS LETTER DATED 24/03/2011 TO THE CIT- 2, RAJKOT HAS SUBMITTED THAT THE INTENDED TRANSACTI ON AS PER THE SATAKHAT HAS NOT BEEN MATERIALIZED AS SHRI YASHWANT D. PEDHADIA HAS NOT SIGNED ON THE SAID SAT AKHAT. HE FURTHER SUBMITTED THAT THE SAID LAND HAS BEEN SO LD TO SOME OTHER PARTY, WHICH IS EVIDENT FROM THE COPY OF CONVEYANCE DEED ENCLOSED. THAT SHRI DHIREN H. LOTIA, ADVOCATE AND THE AUTH ORIZED REPRESENTATIVE VIDE HIS LETTER DATED 6/12/2013 ADDR ESSED TO ACIT, CIRCLE-2, RAJKOT HAS ONCE AGAIN REITERATED TH AT THE SATAKAT FOUND DURING THE COURSE OF SURVEY ACTION WA S NEVER MATERIALIZED AS THERE WAS NO SIGNATURE OF THE PURCH ASER SHRI YASHWANT D. PEDHADIA. HE ALSO SUBMITTED THE CO PY OF ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 6 - CONVEYANCE DEED OF THE LANDS SOLD TO SOME OTHER PAR TY ALONG WITH COPIES OF 7/12, 8A AND 6A. THAT THE APPELLANT COMPANY VIDE ITS LETTER DATED 30/01/2014 HAS ALSO MADE AN APPLICATION TO THE ADDL. CIT, RANG E-2, RAJKOT SEEKING DIRECTIONS TO THE ASSESSING OFFICER U/S. 144A OF THE IT ACT, 1961. THAT SHRI DINESHBHAI PEDHADIA HAS ALSO FILED A SW ORN AFFIDAVIT DATED 26/06/2014 BEFORE ME DURING THE COU RSE OF APPELLATE PROCEEDINGS, ALLEGING THAT THE DISCLOSURE HAS BEEN TAKEN FORCEFULLY FROM HIM DURING SURVEY ACTION AND THEREFORE, HE IS RETRACTING FROM THE SAID STATEMENT . HE FURTHER STATED THAT HE HAS NOT PAID A SINGLE RUPEE TO THE INTENDED SELLERS SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI AS PER SATAKHAT. HE ALSO SUBMITTE D THAT NEITHER HE NOR HIS SON HAS PUT ANY SIGNATURE O N THE SATAKHAT FOUND. AS PER THE AFFIDAVIT, THE PEDHADIAS HAVE NOT ENTERED INTO ANY TRANSACTIONS WITH THE INTENDED SELLERS AS PER THE SATAKHAT. THAT THE INTENDED SELLERS SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI AS PER THE SATAKHAT FOUND ON THE DAY OF SURVEY ACTION HAVE ALSO FILED SWORN AFFIDAVIT DA TED 28/06/2014 BEFORE ME, STATING THAT THE TRANSACTION AS PER SATAKHAT HAS NOT BEEN MATERIALIZED DUE TO PAUCITY O F THE FUNDS WITH PEDHADIAS. IT IS FURTHER STATED THAT THE PEDHADIAS HAVE NOT SIGNED THE SATAKHAT FOUND DURING SURVEY ACTION, THEREFORE, IT IS SUBMITTED THAT THE AGRICULTURAL LAND IN QUESTION HAS BEEN SOLD TO SOME OTHER PARTY VIDE A REGISTERED SALE DEED DATED 04/01/2011 FOR A SALE CONSIDERATION OF RS. 27,54,000/-. SHRI VALABHA I RUPABHAI AND SHRI AMRABHAI RUPABHAI IN THE LETTER F ILED BEFORE THE ASSESSING OFFICER ON 05/09/2014 HAVE ONC E AGAIN REITERATED AND RECONFIRMED THE SAME FACTS AS WERE STATED BEFORE ME. 2.11 ALL THE ABOVE FACTS, WHEN EXAMINED CAREFULLY, LEADS TO THE CONCLUSION THAT THE IMPUGNED SATAKHAT FOUND DURING THE COURSE OF SURVEY ACTION IN THE BUSINESS PREMISES OF THE APPEL LANT COMPANY IS NOTHING BUT, A DUMB DOCUMENT, WHICH CANNOT BE ACTED UPON AS AN EVIDENCE. FIRSTLY, THE APPELLANT COMPANY IS NOT A P ARTY TO THE ALLEGED TRANSACTION AS PER THE SATAKHAT FOUND ON THE DAY OF SURVEY. SECONDLY, THE INTENDED BUYER OF THE LAND AS PER SATAKHAT FOUN D, SHRI YASHWANT D. PEDHADIA HAS NEVER SIGNED THE DOCUMENT. THIRDLY, THE INTENDED SELLERS OF THE LAND IN QUESTION AS PER SATAKHAT, SH RI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI HAS SOLD THE SA ME LAND TO THE OTHER PARTY VIDE REGISTERED SALE DEED DATED 04/01/2 011 FOR A CONSIDERATION OF RS. 27,54,000/-, THE COPY OF THE S AME IS AVAILABLE ON RECORD. FOURTHLY, THE INTENDED SELLERS HAS STATED T HAT NEITHER THEY HAVE RECEIVED ANY MONEY, NOR THEY HAVE REPAID THE S AME, SINCE THE TRANSACTION INTENDED OR PROPOSED AS PER THE IMPUGNE D SATAKHAT HAS ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 7 - NEVER MATERIALIZED. FIFTHLY, SHRI DINESHBHAI N. PE DHADIA, DIRECTOR OF THE COMPANY HAS RETRACTED FROM HIS EARLIER STATE MENT THAT HE PAID THE MONEY TO THE INTENDED SELLERS. SIXTHLY, THE OF FICER HAS FAILED TO BRING OUT ANY MATERIAL EVIDENCE TO SHOW THAT PEDHAD IA HAVE ACTUALLY PAID THE MONEY TO THE INTENDED SELLERS AND AGAIN RE CEIVED BACK THE SAME, WHEN THE TRANSACTION DID NOT MATERIALIZED. SE VENTHLY, THE ASSESSING OFFICER COULD NOT PROVE THAT THE JOTTINGS MADE ON THE REVERSE OF PAGE 3 OF SATAKHAT FOUND ARE MADE BY PED HADIAS. EIGHTHLY, SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI I N THE LETTER FILED BEFORE THE ASSESSING OFFICER ON 05/09/2014 HA VE ONCE AGAIN REITERATED AND RECONFIRMED THE SAME FACTS AS WERE S TATED BEFORE ME, THAT THE IMPUGNED TRANSACTION WAS NEVER MATERIALIZE D AND NO MONEY WAS PAID BY THE PEDHADIAS. 2.12 THE ASSESSING OFFICER, IN THE INTERVENING PERI OD OF ABOUT 40 MONTHS, FROM THE DATE OF SURVEY ACTION TO THE DATE OF ASSESSMENT ORDER HAS DONE NOTHING TO GATHER ANY MATERIAL EVIDE NCE TO SHOW THAT THE APPELLANT COMPANY HAS PAID ANY ALLEGED CASH IN THIS TRANSACTION. HE COULD HAVE EASILY EXAMINED THE BANK ACCOUNTS OF THE APPELLANT COMPANY, ITS DIRECTORS, AND THE INTENDED SELLERS SO AS TO SEE WHETHER THERE ARE ANY CASH WITHDRAWALS OR CASH DEPOSITS IN SUCH ACCOUNTS ON THE CORRESPONDING DATES MENTIONED IN THE SATAKHAT F OUND IN ORDER TO ESTABLISH THE MONEY TRAIL. NEITHER HE HAS EXAMINED THE INTENDED SELLERS AS PER THE SATAKHAT, SHRI VALABHAI RUPABHAI AND SHRI AMRABHAI RUPABHAI, NOR HE MADE ANY DISCREET ENQUIRI ES TO COME TO A LOGICAL CONCLUSION. IN OTHER WORDS, THE ASSESSING O FFICER HAS NOT DISCHARGED THE BURDEN OF PROVING THE CONCEALMENT OF INCOME IN THE FORM OF ANY ALLEGED CASH PAYMENTS BY THE APPELLANT IN ANY MANNER. THERE IS NO SHRED OF ANY EVIDENCE AVAILABLE ON RECO RD TO SUGGEST THAT THE APPELLANT COMPANY HAS INDULGED IN ANY CASH PAYM ENTS, WHICH ARE NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS MAINTAIN ED. EVEN ASSUMING, WITHOUT ACCEPTING FOR A WHILE, WHEN SHRI YASHWANT D. PEDHADIA IS THE INTENDED BUYER AS PER THE SATAKHAT FOUND, (ALTHOUGH THE SAID DOCUMENT WAS NEVER SIGNED BY HIM), IT IS N OT KNOWN AS TO HOW THE APPELLANT COMPANY CAME INTO THE PICTURE. AL THOUGH, SECTION 292C RAISES A PRESUMPTION THAT THE ASSETS, BOOKS OF ACCOUNTS, DOCUMENTS, MONEY BULLION, JEWELLERY ETC. FOUND DURI NG THE SURVEY OR SEARCH ACTION BELONGS TO THE PERSON IN WHOSE PREMIS ES, SUCH ACTION IS UNDERTAKEN, BUT THE SAME IS NOT OF MUCH HELP TO THE ASSESSING OFFICER AS THE IMPUGNED SATAKHAT FOUND WAS A UNEXECUTED DOC UMENT AS THE INTENDED PURCHASER, SHRI YASHWANT D. PEDHADIA DID N OT APPEND HIS SIGNATURE ANYWHERE ON THE SAID DOCUMENT. THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION IN THE HANDS O F THE APPELLANT COMPANY BY TAKING RECOURSE TO SECTION 292C OF THE I T ACT, 1961 IS NOT IN ACCORDANCE WITH LAW. MOREOVER, RELYING ON AN UNEXECUTED SATAKHAT, TO WHICH THE APPELLANT COMPANY WAS NOT AT ALL A PARTY TO THE PURPORTED TRANSACTION, THE ACTION OF THE ASSESS ING OFFICER IN MAKING THE ADDITION OF RS. 1,71,25,000/- IN THE HAN DS OF THE APPELLANT COMPANY, BASED ON CERTAIN JOTTINGS MADE B Y AN UNKNOWN PERSON IN THE SAID SATAKHAT APPEARS TO BE TOTALLY U NJUSTIFIED. ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 8 - 2.13 THE COURTS HAVE CONSISTENTLY HELD THAT WITHOUT ANY CORRESPONDING INDEPENDENT EVIDENCE, NO ADDITIONS CA N BE MADE BASED ON MERE STATEMENTS RECORDED DURING COURSE OF SURVEY ACTION. AS CORRECTLY RELIED UPON BY THE AUTHORIZED REPRESENTAT IVE, THE APEX COURT IN THE CASE OF S. KHADAR KHAN & SONS (2013) 3 52 ITR 480 (SC) HAS LAID DOWN THE JUDICIAL PRINCIPLE ON THE ISSUE I N QUESTION, THAT THE STATEMENTS RECORDED DURING SURVEY ACTION HAS NO EVI DENTIARY VALUE, UNLESS, THE SAME IS BACKED UP BY AN INDEPENDENT AND CORROBORATIVE EVIDENCE. THEREFORE, IT IS ARGUED BY THE AUTHORIZED REPRESENTATIVE THAT THE STATEMENT OF SHRI DINESHBHAI PEDHADIA, THE DIRECTOR OF THE COMPANY RECORDED DURING SURVEY ACTION HAS NO EVIDEN TIARY VALUE AND ANY ADMISSION MADE IN SUCH STATEMENT, CANNOT, BY IT SELF, BE MADE THE BASIS FOR ADDITION. HE ALSO RELIED ON VARIOUS OTHER JUDGMENTS TO BUTTRESS THE POINT THAT IN ORDER TO MAKE AN ADDITIO N ON THE BASIS OF SURRENDER DURING SEARCH OR SURVEY, IT IS SINE QUA N ON THAT THERE SHOULD BE SOME OTHER MATERIAL TO CO-RELATE THE UNDI SCLOSED INCOME WITH SUCH STATEMENT. ALSO, IN AN EARLIER JUDGMENT I N THE CASE OF P.V. KALYANSUNDARAM (2007) 294 ITR 49 (SC), THE HON'BLE SUPREME COURT HAS ALSO LAID DOWN THE SAME JUDICIAL PRINCIPLE, THA T THE ADDITIONS CANNOT BE MADE, MERELY BASED ON JOTTINGS ON LOOSE S HEETS, WHEN NO OTHER CORROBORATIVE EVIDENCE IS BROUGHT OUT ON RECO RD BY THE REVENUE. HON'BLE SUPREME COURT IN THE CASE OF SHRI K. P. VERGHESE (1981) AIR 1922, 1982 SCR (1) 629 HAS HELD, THAT TH E BURDEN OF PROVING AN UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE REVENUE, WHICH MAY BE DISCHARGED BY ESTABLISHING FA CTS AND CIRCUMSTANCES FROM WHICH A REASONABLE INFERENCE CAN BE DRAWN THAT THE ASSESSEE HAS NOT CORRECTLY DECLARED OR DISCLOSE D THE CONSIDERATION RECEIVED BY HIM AND THERE IS UNDERSTA TEMENT OR CONCEALMENT OF THE CONSIDERATION IN RESPECT OF THE TRANSFER. WITHOUT LAYING HIS HANDS ON ANY ACTIONABLE EVIDENCE TO ESTA BLISH THE MONEY TRAIL, ONLY, BY HAMMERING ON THE STATEMENT OF SHRI DINESH N. PEDHADIA, THE DIRECTOR OF THE COMPANY GIVEN DURING THE COURSE OF SURVEY ACTION, WHICH HE RETRACTED IMMEDIATELY THERE AFTER, I AM OF THE VIEW THAT THE ADDITION MADE BY THE ASSESSING OFFICE R TO THE TUNE OF RS.1,71,25,000/- ON ACCOUNT OF UNEXPLAINED MONEY U/ S.69A OF THE IT ACT, 1961 IN THE HANDS OF THE APPELLANT COMPANY, WH ICH IS NOT AT ALL A PARTY TO THE TRANSACTION, IS NOT JUSTIFIED, BOTH ON FACTS AND IN LAW. THUS, THE ADDITION MADE AT RS.1,71,25,000/- ON ACCO UNT OF UNEXPLAINED MONEY U/S.69A OF THE IT ACT, 1961 STAND S DELETED. THIS GROUND OF APPEAL IS ALLOWED. ACCORDINGLY, THE CIT(A) REVERSED THE ACTION OF THE AO ON THIS SCORE AND DELETED THE ADDITION OF RS.1,71,25,000/- MADE ON THIS ACCOUNT. 6. AGGRIEVED, THE REVENUE HAS PREFERRED APPEAL BEFO RE THE TRIBUNAL. ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 9 - 7. THE LEARNED DR FOR THE REVENUE RELIED UPON THE O RDER OF THE AO AND CONTENDED THAT THERE IS NO JUSTIFICATION IN THE ACTION OF THE CIT(A) FOR REVERSAL OF ADDITIONS MADE ON THE BASIS OF COGE NT EVIDENCES FOUND IN THE COURSE OF SURVEY. THE LEARNED DR FOR THE RE VENUE IN FURTHERANCE SUBMITTED THAT THE PROPOSED AGREEMENT T O SALE (SATAKHAT) FOUND FROM BUSINESS PREMISES OF THE ASSESSEE COMPAN Y TOGETHER WITH FORM NO.6, FORM NO.7/12 AND FORM NO.8A CONCERNING A GRICULTURAL LAND IN QUESTION FOUND AND IMPOUNDED CLEARLY REVEAL S THAT AGRICULTURAL LAND WAS INTENDED TO BE SOLD BY THE SELLERS TO THE ASSESSEE AT AN AGGREGATE CONSIDERATION OF RS.2.57 CRORES AGAINST W HICH THE SELLERS HAVE ADMITTED HAVING RECEIVED RS.21.25 LAKHS AS EAR NEST MONEY AND RS.1,50,00,000/- IN THREE INSTALLMENTS ON VARIOUS D ATES (DT.31/7 RS.50 LAKHS, DT.29/8 RS.50 LAKHS & DT.4/10 RS.5 0 LAKHS) AS PER MANUAL JOTTING-CUM-ACKNOWLEDGEMENT. THE LEARNED DR EMPHASIZED THAT THE AGGREGATE AMOUNT OF RS.1,71,25,000/- WAS P AID BY THE ASSESSEE COMPANY FOR WHICH HANDWRITTEN ADMISSION RE CEIPTS WERE FOUND AT THE BACK OF PAGE NO.3 OF THE SATAKHAT. TH E LEARNED DR REASONED THAT THE NAME OF THE SON OF THE DIRECTOR W AS MENTIONED IN THE DOCUMENT SINCE THE ASSESSEE AS A CORPORATE ENTITY I S PROHIBITED IN LAW FROM ACQUISITION OF AGRICULTURAL LAND IN THE STATE OF GUJARAT. THEREFORE, FOR ALL INTENDED PURPOSE, THE DE FACTO OWNERSHIP ON TRANSACTION WAS WITH THE ASSESSEE COMPANY AND THE S IGNATURE OR OTHERWISE BY THE INTENDING PURCHASERS IS OF NO CONS EQUENCE AS THE DOCUMENT SIGNED BY SELLERS WAS FOUND IN THE CUSTODY OF THE PURCHASERS. THUS, THE INTENDING SELLERS COULD NOT RESILE FROM THE TERMS OF SUCH SATAKHAT. THE LEARNED DR NEXT SUBMITTED TH AT THE DIRECTOR OF THE COMPANY IN THE COURSE OF SURVEY ALSO CLARIFIED THE FACTUAL POSITION WHEN CONFRONTED ON THE DOCUMENTS FOUND IN CONNECTIO N WITH THE PURCHASE OF AGRICULTURAL LAND IN THE COURSE OF SURV EY. IN SUPPORT OF ASSESSMENT ORDER, THE LEARNED DR SUBMITTED THAT THE DIRECTOR OF THE ASSESSEE COMPANY HAS CONVENIENTLY FILED UNSUPPORTAB LE AFFIDAVITS TO ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 10 - DENOUNCE THE STATEMENT AS A DESPERATE ATTEMPT TO CA ST ASPERSION ON TANGIBLE EVIDENCES. THE AFFIDAVITS ARE NOTHING BUT ARE SELF-SERVING DOCUMENTS. THE LEARNED DR VEHEMENTLY CANVASSED THA T THE AMPLE OPPORTUNITIES WERE PROVIDED IN THE COURSE OF ASSESS MENT PROCEEDINGS WHICH WERE DELIBERATELY DODGED BY THE ASSESSEE. NO NETHELESS, THE CIT(A) HAS WRONGLY ADMITTED FRESH EVIDENCES IN THE FORM OF AFFIDAVIT AND WRONGLY APPRECIATED THE FACTS AND CIRCUMSTANCES AND THUS DREW WRONGFUL INTERFERENCE. THE LEARNED DR THUS SUBMITT ED THAT IN VIEW OF THE OVERWHELMING FACTUAL POSITION POINTING OUT INVO LVEMENT OF ASSESSEE IN UNDISCLOSED CASH TRANSACTIONS, THERE WA S NO JUSTIFICATION FOR CIT(A) TO DISLODGE THE ACTION OF THE AO. THE L EARNED DR CONTENDED THAT THE CIT(A) PROCEEDED ON IRRELEVANT C ONSIDERATIONS SUCH AS THE INTENDING PURCHASERS HAS NOT SIGNED THE DOCU MENTS OR THE LAND HAS BEEN ULTIMATELY SOLD TO OTHER PARTY VIDE REGIST ERED SALE DEED DATED 04.01.2011 FOR A CONSIDERATION OF RS.27.54 LAKHS ET C. THE LEARNED DR THUS SUBMITTED THAT IN VIEW OF THE PROVISIONS OF SE CTION 292C OF THE ACT ENACTED FOR SUCH SITUATIONS, A STATUTORY PRESUM PTION IS RAISED AGAINST THE ASSESSEE WHICH HAS NOT BEEN SUCCESSFULL Y REBUTTED. IT WAS THUS PLEADED THAT THE ACTION OF THE AO REQUIRES TO BE RESTORED AND THE ACTION OF THE CIT(A) REQUIRES TO BE SET ASIDE AND C ANCELLED. 8. THE LEARNED AR FOR THE ASSESSEE, ON THE OTHER HA ND, HEAVILY RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED T HAT THE ORDER OF THE CIT(A) IS FOUNDED UPON THE OBJECTIVE ANALYSIS OF FA CTUAL MATRIX AND THE LAW INVOLVED. THEREFORE, SUCH ORDER OF THE CIT (A) DOES NOT WARRANT ANY INTERFERENCE. DELINEATING FURTHER, THE LEARNED AR SUBMITTED THAT THE CIT(A) HAS RIGHTLY OBSERVED THE SALIENT FEATURE SUCH AS THE ASSESSEE COMPANY IS NOT A PARTY TO THE ALLEG ED TRANSACTION AS PER THE SATAKHAT FOUND ON THE DATE OF SURVEY; THE INTEN DING BUYER OF THE LAND DID NOT SIGN THE SATAKHAT; THE AGRICULTURAL LA ND WAS ULTIMATELY SOLD TO SOME OTHER PARTY AND THEREFORE, SATAKHAT WA S NOT ACTED UPON; ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 11 - THE INTENDING SELLERS HAVE AFFIRMED ON OATH THAT TH EY HAVE NOT RECEIVED ANY MONEY NOR HAVE REPAID ANY SUM TO THE ASSESSEE A S THE TRANSACTION DID NOT MATERIALIZE. THE LEARNED AR ALSO POINTED O UT THAT THE DIRECTOR OF THE COMPANY HAS PROMPTLY RETRACTED FROM HIS STAT EMENT GIVEN EARLIER IN THE COURSE OF SURVEY. THE RETRACTED STA TEMENT THUS CANNOT BIND THE MAKER OF ADMISSION. THUS, NO INFERENCE TO WARDS PAYMENTS OF MONEY TO THE INTENDED SELLER CAN BE DRAWN. THE LEA RNED AR ALSO STRIVED TO SUBMIT THAT THE AO HAS NOT BROUGHT ANY M ATERIAL ON RECORD TO ACTUALLY SHOW THE INVOLVEMENT OF CASH TRANSACTIO NS, SAVE AND EXCEPT, THE JOTTINGS IN THE SATAKHAT WHICH NEVER MA TERIALIZED. THE LEARNED AR PADDLED THAT IN THE LIGHT OF CATEGORICAL ASSERTIONS MADE BY THE INTENDING SELLERS BEFORE THE CIT(A) AND AO AT THE TIME OF APPELLATE PROCEEDINGS, THE CIT(A) HAS RIGHTLY CONCL UDED THAT RECOURSE TO SECTION 292C OF THE ACT IS NOT AVAILABLE TO AO A ND SATAKHAT REMAINING UNSIGNED BY ASSESSEE CANNOT BE USED AGAIN ST THE ASSESSEE. THE LEARNED AR ALSO EXHORTED THAT THE ORDER OF THE AO ALSO REQUIRES TO BE ASSAILED ON THE GROUND THAT THE AO HAS MERELY QU ESTIONED THE ALLEGED UNEXPLAINED MONEY RECEIVED BACK AFTER CANCE LLATION OF DEED, WHICH IS NOT ASSESSABLE UNDER S.69A OF THE ACT. IN A STOIC DEFENSE, THE LEARNED AR THUS SUBMITTED THAT THE ORDER OF THE CIT (A) IS ON SOUND FOOTING AND NO INTERFERENCE THEREWITH IS CALLED FOR . 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND THE ORDERS OF THE AUTHORITIES BELOW. THE MATERIAL AND DOCUMENTS RELIED UPON BY THE ASSESSEE AT THE TIME OF HEARING WERE AL SO PERUSED. IN THE INSTANT CASE, CERTAIN ADDITIONS HAVE BEEN CARRIED O UT BY THE AO BASED ON SATAKHAT (AGREEMENT TO SALE) FOUND IN POSSESSION OF THE ASSESSEE TOGETHER WITH OTHER INCIDENTAL DOCUMENTS VIZ., COPY OF FORM NO.6, FORM NO.7/12 AND FORM NO.8A CONCERNING PROPOSED PUR CHASE OF AGRICULTURAL LAND AT VILLAGE KHOKHADDAD, GUJARAT IN THE COURSE OF SURVEY PROCEEDINGS. AS STATED, CERTAIN MANUAL JOTT INGS WERE ALSO ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 12 - FOUND ON THE BACK SIDE OF PAGE NO.3 OF THE SATAKHAT WHICH HAS BEEN REPRODUCED AS SUCH BY THE AO AT PAGE NO.2 OF THE AS SESSMENT ORDER. THE AFORESAID DOCUMENTS SO DETECTED WERE CONFRONTED TO THE DIRECTOR OF THE ASSESSEE IN THE COURSE OF THE SURVEY PROCEED INGS. ON BEING QUIZZED, THE AFORESAID DIRECTOR ACQUIESCENCED HAVIN G GIVEN RS.1,71,25,000/- TO THE PROPOSED SELLERS OF THE LAN D (SHRI VALABHAI RUPABHAI & SHRI AMRABHAI RUPABHAI) AT THE FIRST INS TANCE, ON THE DATES AS MENTIONED IN THE NOTING. THE SAID SUM WAS STATED TO BE PAID AS ON-MONEY IN CASH. IT WAS ALSO CLARIFIED IN THE STATEMENT THAT THE LAND WAS PROPOSED TO BE PURCHASED FOR THE FACTORY P REMISES OF THE COMPANY. AS PER THE AVERMENTS MADE BY THE DIRECTOR IN THIS STATEMENT, THE DOCUMENTS FOR PURCHASE COULD NOT MAD E IN THE NAME OF THE COMPANY SINCE THE LAND UNDER PURCHASE WAS AN AG RICULTURAL LAND, THEREFORE, IT WAS DECIDED BY THE ASSESSEE COMPANY T O PURCHASE THE LAND IN THE NAME OF SON (MR. YASHWANT DINESHBHAI PEDHADI A). IN THE IMPUGNED STATEMENT RECORDED IN PURSUANCE OF THE SUR VEY PROCEEDINGS, THE DIRECTOR ALSO CATEGORICALLY CONCEDED THE AFORES AID SUM OF ON- MONEY IN CASH AS ASSESSEE COMPANYS UNACCOUNTED INC OME. IN THIS BACKGROUND, THE TRANSACTIONS WAS FOUND TO BE CONSUM MATED AND CONSEQUENTLY THE ADDITIONS WERE MADE IN THE HANDS O F THE ASSESSEE. WHILE DOING SO, THE AO ALSO REFERRED TO UPON THE JU DGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF HIREN VASANTLAL S HAH VS. ACIT 19 TAXMANN.COM 241 (GUJ). 9.1 IN THE FIRST APPEAL, ON RECONSIDERATION OF FACT S AND CIRCUMSTANCES AND HAVING REGARD TO AFFIDAVITS OF THE PROPOSED SEL LERS AND THAT OF DIRECTOR OF ASSESSEE COMPANY, THE CIT(A) HOWEVER FO UND MERIT IN THE CASE OF THE ASSESSEE THAT THE DOCUMENTS FOUND AND I MPOUNDED FROM THE PREMISES OF THE ASSESSEE IN RELATION TO THE PURCHAS E OF THE AGRICULTURAL LAND IS NOTHING BUT ARE UNWORTHY DUMB DOCUMENTS WHI CH CANNOT BE ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 13 - ACTED UPON AS AN EVIDENCE. THE CIT(A) ACCORDINGLY DELETED THE ADDITIONS SO MADE BY THE AO. 9.2 TO BEGIN WITH, WE TAKE NOTICE OF THE UNDISPUTED FACT THAT THE DOCUMENTS FOR PURCHASE OF LAND TOGETHER WITH INCIDE NTAL DOCUMENTS SHOWING RIGHT, TITLE AND INTEREST OF THE PROPOSED S ELLERS WERE FOUND IN THE POSSESSION OF THE ASSESSEE COMPANY. THE AGREEM ENT TO SALE WAS FOUND TO BE PREPARED BETWEEN THE PROPOSED SELLERS A ND THE SON OF THE DIRECTOR OF THE ASSESSEE COMPANY. WHEN CONFRONTED, THE KEY DIRECTOR OF THE COMPANY CLARIFIED IN ITS STATEMENT ABOUT THE PURPORT OF MAKING THE DOCUMENT IN THE NAME OF THE SON OF THE DIRECTOR AND OBSERVED THAT THIS WAS DONE OWING TO THE IN-CAPACITY OF THE ASSES SEE COMPANY TO PURCHASE AGRICULTURAL LAND IN THE NAME OF THE CORPO RATE ENTITY. WE ALSO TAKE NOTICE OF ANOTHER IMPORTANT FACT THAT THE SATAKHAT WAS ADMITTEDLY SIGNED ON BEHALF OF THE PROPOSED SELLERS (ALTHOUGH UNSIGNED FROM ASSESSEE) AND THUS, INEVITABLY, WERE ACCOUNTAB LE TO SUCH AGREEMENT. NOTABLY, THE AGREEMENT WAS FOUND IN THE CUSTODY OF THE PROPOSED BUYER (ASSESSEE COMPANY) AND THUS PRIVITY OF THE AGREEMENT COULD NOT HAVE BEEN DISPUTED. THUS, ABSENCE OF ANY FORMAL SIGNATURE ON BEHALF OF THE BUYER IN THE SATAKHAT AGREEMENT FO UND IN ITS CUSTODY IS NOT DETRIMENTAL TO ASSESSEE COMPANY PER SE . 9.3 SIGNIFICANTLY, AS SUBMITTED ON BEHALF OF THE AS SESSEE AND NOTED BY CIT(A), THE LAND IN QUESTION WAS ULTIMATELY SOLD TO OTHER PARTY (VIDE REGISTERED SALE DEED DATED 04.01.2011) FOR A SALE CONSIDERATION PEGGED AT RS.27,54,000/-. AS PER AFFIDAVITS OF PRO POSED SELLERS AND ASSESSEE, THE SOLE REASON PROVIDED FOR TRANSACTION MENTIONED IN SATAKHAT NOT SAILING THROUGH IS FINANCIAL DISTRESS DAWNED ON THE ASSESSEE COMPANY. THESE CIRCUMSTANCES HAVE BEEN VI EWED IN FAVOUR OF THE ASSESSEE AND AGAINST THE AO BY THE CIT(A). AT THIS JUNCTURE, WE PAUSE TO OBSERVE THAT THE CIT(A) HAS APPARENTLY FAILED TO TAKE NOTICE OF ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 14 - THE OSTENSIBLE POINT THAT DIFFERENCE IN THE SALE CO NSIDERATION ASSIGNED IN SATAKHAT AND SALE AGREEMENT IS UNPRECEDENTED WH ICH GIVES UNFLINCHING INFERENCE TOWARDS AN AIR OF UNREALITY IN THE EXPLANATION TOWARDS WHOLE AFFAIR. ADMITTEDLY, THE PROPOSED SAL E TO THE ASSESSEE COMPANY WAS TO BE MADE AT A AGREED CONSIDERATION OF RS.2,57,00,000/- WHEREAS THE ACTUAL SALE AGREEMENT ALBEIT TO SOME OT HER PARTIES WAS MADE AT A PALTRY CONSIDERATION OF RS.27,54,000/- ON LY. CLEARLY, THE DRAMATIC REDUCTION IN CONSIDERATION IS INCOMPREHENS IBLE AND INEXPLICABLE. THE CIT(A), IN OUR VIEW, HAS IGNORED THIS DISTRAUGHTING ASPECT AND PROCEEDED ON A WHOLLY WRONG FOOTING ALTO GETHER. THE MOOT QUESTION IS NOT AS TO WHETHER AGREEMENT TO SALE WAS IMPLEMENTED OR NOT. THE REAL QUESTION IS WHETHER PRIOR TO THE ACT UAL SALE, ANY PROPOSED SALE WAS EXISTING AND WHETHER ANY UNACCOUN TED CASH WAS INVOLVED IN SUCH TRANSACTION. THE SALE CONSIDERATI ON AGREED IN THE PROPOSED AGREEMENT TO SALE WITH ASSESSEE NOWHERE BE EN DISPUTED. THE COLOSSAL GAP IN SALE CONSIDERATION SETS THE ENTIRE CAST APART. THE SUBSTANTIAL VARIANCE BETWEEN THE PROPOSED SALE CONS IDERATION AND THE ACTUAL SALE CONSIDERATION THUS CLEARLY UNDERSCORES THE IRREFUTABLE INFERENCE OF INVOLVEMENT OF UNACCOUNTED MONEY IN CA SH AS FOUND IN THE MANUAL NOTINGS (DATE WISE) DULY ACKNOWLEDGED AS RECEIVED ON BEHALF OF SELLERS. 9.4 THIS VIEW FURTHER FINDS SUPPORT FROM THE SWORN AFFIDAVIT OF THE INTENDING SELLERS DATED 24.06.2014 FILED BELATEDLY BEFORE THE CIT(A) IN THE COURSE OF APPELLATE PROCEEDINGS. IT WILL BE AP POSITE TO REPRODUCE THE CONTENTS OF IMPUGNED AFFIDAVIT OF SHRI VALABHAI RUPABHAI: AFFIDAVIT WE, UNDERSIGNED, MR. VALABHAI RUPABHAI, HINDU, ADUL T, AGRICULTURIST AND SHRI AMRABHAI RUPABHAI, HINDU, ADULT, AGRICULTU RIST, RESIDING AT VILLAGE KHOKHADDAD DIST. RAJKOT. WE BOTH BROTHERS D O HEREBY SOLEMNLY AFFIRM THAT WE ARE HOLDING AGRICULTURAL LA ND AT KHOKHADDAD AREA 5 ACRE 35 GUNTHAS AT REVENUE SURVEY NO. 221/5. WE HAD AGREED TO SELL THE SAID LAND TO MR. YASHWANT PEDHADIYA FOR RS. 2,57,00,000/- ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 15 - AT THE RATE OF RS. 44,00,000/- PER ACRE. WE HAD MAD E AN UNREGISTERED AGREEMENT (SATAKHAT) FOR SALE, BEING FAMILIAR TO EA CH OTHER IT WAS SIGNED BY US AND OUR FAMILY MEMBERS AND SENT TO PUR CHASERS FOR SIGNING PURPOSE. IN THE SAID DOCUMENT, WE HAD DECID ED THE TERMS OF PAYMENT AS UNDER: RS.21,25,000/- DT. 03-07-2009 RS.50,00,000/- DT. 31-07-2009 RS.50,00,000/- DT. 29-08-2009 RS.50,00,000/- DT. 04-10-2009 RS. 1,50,00,000/- AND IT WAS DECIDED TO MAKE THE S AID PAYMENT BY 05-02-2010 SD/- (VALABHAI AND AMRABHAI) HOWEVER, DUE TO UNFAVORABLE CIRCUMSTANCES AND FINAN CIAL CRISIS, HE DID NOT MAKE PAYMENT TO US. HE ALSO DID NOT SIGN TH E AFORESAID AGREEMENT TO SALE (SATAKHAT). THEREAFTER, WE HAD SO LD THE SAID SAND TO ANOTHER PARTY. WE HEREBY SOLEMNLY DECLARE ON OAT H THE FACT AND TRUTH THAT WE HAVE NOT RECEIVED A SINGLE AMOUNT FRO M SHRI YASHWANT PEDHADIYA. WE HAD SOLD THE ABOVE LAND ON 10-01-2011 AS WE WERE IN NEED OF FINANCIAL RESOURCES. HENCE, WE HAVE NOT MAD E ANY FINANCIAL TRANSACTION WITH SHRI YASHWANT PEDHADIYA AND WE HAV E NOT RECEIVED ANY AMOUNT AS PER THE AGREED TERMS. WE HAD SENT THE SAID SATAKHAT AFTER SIGNING ON ACCOUNT OF FAMILIARITY WITH THEM. WE HEREBY SOLEMNLY DECLARE ON OATH THAT THE ABOVE CONTENTS AR E TRUE. DATE: 24-06-2014 PALCE: KHOKHADDAD 1. _________SD/-__________ (SHRI VALABHAI RUPABHAI) 2. ________SD/-__________ (SHRI AMRABHAI RUPABHAI) AS PER THE AFFIDAVIT, THE INTENDING SELLERS ADMITTE D HOLDING THE IMPUGNED AGRICULTURAL LAND. THE INTENDING SELLERS FURTHER ADMITTED ON OATH TO HAVE AGREED TO SALE THE LAND TO THE INTENDI NG PURCHASERS FOR RS.2,57,00,000/- @ RS.44 LAKHS PER ACRE. THE INTEN DING SELLERS ALSO ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 16 - CONFIRMED HAVING MADE AN UNREGISTERED AGREEMENT FOR SALE (SATAKHAT) ON THE GROUND THAT THEY WERE FAMILIAR WITH THE ASSE SSEE AND THUS SENT THE AGREEMENT TO THE PURCHASERS FOR SIGNING PURPOSE S. THE INTENDING SELLERS HOWEVER HAVE ONLY CONTROVERTED THE FACTS OF ACTUAL PAYMENT GIVEN TO THEM ON DATES AND SOUGHT TO DEPOSE ON OATH THAT THE PARTIES TO THE AGREEMENT MUTUALLY DECIDED TO EXCHANGE THE PAYM ENT BY 05.02.2010. THE INTENDING PURCHASERS HAVE CITED UN FAVOURABLE CIRCUMSTANCES AND FINANCIAL CRISIS ON THE PART OF A SSESSEE FOR NOT RECEIVING ANY PAYMENT FROM THE ASSESSEE. TO REITER ATE, THE PREPARATION OF SATAKHAT, SIGNATURE THEREON, MANUAL JOTTING WAS THUS NOT DENIED BY THE INTENDING SELLER. THE FINANCIAL TRANSACTIONS WI TH THE ASSESSEE AS MENTIONED IN MANUAL JOTTING WERE HOWEVER DENIED BY THE INTENDING SELLERS. IN THIS CONTEXT, WE HAVE COGNIZANCE OF TH E PERTINENT FACT THAT THE JOTTINGS OF ENTRIES RECORDED ON THE BACK SIDE O F PAGE NO.3 OF THE SATAKHAT CLEARLY ASSERTS AND VOUCHES THE ACKNOWLEDG EMENT ON BEHALF OF THE INTENDING SELLERS THAT THE ON-MONEY OF RS.1, 71,25,000/- WAS ACTUALLY RECEIVED FROM THE INTENDING PURCHASERS. T HE JOTTINGS OF ENTRIES ACTUALLY REPRESENTED RECEIPTS OF ON-MONEY B Y THE INTENDING SELLERS. A CUSTOMARY QUESTION WOULD NATURALLY ARIS E AS TO HOW THE PROPOSED SALE CONSIDERATION OF RS.257.00 LAKHS TURN ED INTO RS.27.54 LAKHS FOR THE SAME ASSET. THERE IS SUPREME SILENCE IN THIS REGARD AND THUS SEVERALLY IMPAIRS THE CREDIBILITY OF THE STAND OF THE PARTIES. THE AFFIDAVIT OF THE INTENDING SELLERS IS APPARENTLY VA GUE, NONDESCRIPT AND UNINTELLIGIBLE ON CRUCIAL PRINTS. IT OWES AN EXPLA NATION AS TO WHY THE LAND WORTH OF RS.2,57,00,000/- WOULD BE SOLD AT RS. 27,54,000/- TO OTHER PERSON. THIS DOES INDICATE FOUL PLAY. NEEDL ESS TO SAY, THE FINANCIAL CRISIS OF THE ASSESSEE WOULD NOT DEPLETE VALUE OF THE LAND PER SE AS SOLD TO A NEW BUYER. AS OBSERVED, THE INTENDING SELLERS HAVE NEITHER REBUTTED THE VALUE ASSIGNED TO THE PROPOSED LAND DEAL NOR HAVE REBUTTED THE JOTTINGS MADE ON THE BACKSIDE OF THE A GREEMENT. THEY ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 17 - HAVE ONLY DENIED THE PERFORMANCE OF TRANSACTION AS PER DEED AND MANUAL JOTTING. 9.5 ADVERTING FURTHER, IT IS ALSO NOTICED THAT THE INTENDING SELLERS WHILE MAKING A SELF-SERVING AFFIDAVIT HAVE NOT OFFE RED THEMSELVES FOR CROSS EXAMINATION. SIMULTANEOUSLY, IT IS ALSO SEEN THAT SEVERAL OPPORTUNITIES WERE GRANTED AT THE ASSESSMENT STAGE AND IT IS NOT KNOWN AS TO WHAT PREVENTED THE ASSESSEE TO BRING SUCH FAC TS MENTIONED IN THE AFFIDAVIT ON THE RECORD OF THE AO FOR FURTHER ENQUI RY, IF ANY. THIS CONDUCT IS NOT COMPATIBLE WITH THE CLAIM OF THE INT ENDING SELLERS THAT THEY WERE FAMILIAR WITH THE ASSESSEE COMPANY. THUS , IN TOTALITY, IT IS SELF-EVIDENT THAT THE AFORESAID AFFIDAVIT OF THE IN TENDING SELLERS IS SUPERFICIAL AND SYMBOLIC AND DOES NOT CARRY ANY RAT IONAL PROBATIVE VALUE AND THUS CANNOT BE TAKEN AS WORTHY OF RELIANC E. 9.6 AT THIS STAGE, WE ALSO TAKE NOTICE THAT THE CIT (A) HAS ALSO RELIED UPON A SWORN AFFIDAVIT OF THE INTENDING PURCHASER A S NAMED IN THE AGREEMENT SHRI YASHWANT DINESHBHAI PEDHADIA TO ACCE PT THE ALLEGATION OF FORCEFUL DISCLOSURE BY THE SURVEY TEAM. IT WILL ALSO BE APPOSITE TO REPRODUCE THE CONTENTS OF SUCH AFFIDAVIT: AFFIDAVIT I, THE UNDERSIGNED, YASHVANT D. PEDHADIYA, ADULT, H INDU, RESIDING AT 10, BHAKTINAGAR SOCIETY, RAJKOT SOLEMNLY AFFIRM THA T A SURVEY PROCEEDINGS U/S. I33A WERE CARRIED OUT AT PREMISES OF M/S. CAST A BLOWER CO. (GUJ) PVT, LTD. ON 19.10.2010. DURING TH E COURSE OF SEARCH ONE DOCUMENT I.E. 'SATAKHAT' WAS FOUND AND I MPOUNDED BY THE AUTHORIZED OFFICER. ON THE BASIS OF THE SAID SATAK HAT', THE AUTHORIZED OFFICERS PRESSURED THE DIRECTOR OF M/S. CAST & GLOWER CO. (GUJ) PVT. LTD. TO DISCLOSE RS. 1.50 CRORES. HOWEV ER, THE SAID 'SATAKHAT' IS NOT BELONGING TO M/S. CAST & BLOWER C O. (GUJ) PVT. LTD. AND THE SAID COMPANY GOT NO CONCERN WITH IT. T HE 'SATAKHAT' PERTAINS TO AN AGRICULTURE LAND ADMEASURING 5 ACRES AND 34 GUNTHA AT VILLAGE, KHOKHADDAD FOR A VALUE OF RS.2 ,57,00,000/-. THE SATAKHAT IS EXECUTED BY THE SELLER AND MENTIONED THAT ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 18 - RS.1,50,00,000/- HAS BEEN RECEIVED IN THREE EQUAL I NSTALMENT AND SIGNED THE DOCUMENT. DUE TO UNAVOIDABLE CIRCUMSTAN CES, I HAVE NOT MADE ANY PAYMENT AND NOR SIGNED THE SATAKHAT. HE NCE THE SAID DOCUMENT IS VALID. EVEN THOUGH, THE AUTHORIZED OFF ICERS HAVE FORCIBLY OBTAINED THE DISCLOSURE FROM THE DIRECTOR OF M/S. CAST & BLOWER CO. (GUJ) PVT. LTD. WHICH IS ILLEGAL, INVALI D AND AGAINST THE RULE OF NATURAL JUSTICE THE AFORESAID COMPANY HAS GOT NO CONCERN WITH THE 'SATAKHAT'. UNDER THE CIRCUMSTANCES IT IS REQUESTED TO TREAT THE SAID 'SATAKHAT' AS NULL AND VOID. THE ABOVE INFORMATION IS TRUE TO THE BEST OF MY KNO WLEDGE. PALCE: RAJKOT DATE: 22-10-2010 (YASHVANT D. PEDHADIYA) A PERUSAL OF THE AFORESAID AFFIDAVIT ALSO CONFIRMS THAT SATAKHAT WAS EXECUTED AND SIGNED BY THE SELLERS AND AS PER T HE SATAKHAT, WHO ALSO MENTIONED THAT A SUM OF RS.1,50,00,000/- HAS B EEN RECEIVED BY THEM FROM THE INTENDING PURCHASERS IN THREE EQUAL I NSTALLMENTS. A BARE READING OF THE AFFIDAVIT SHOWS THAT THE DEPONENT OF THE AFFIDAVIT HAS ONLY MADE AN ASSERTION TO THE EFFECT THAT HE HAS NO T MADE ANY PAYMENTS DUE TO UNAVOIDABLE CIRCUMSTANCES AND NOR SIGNED THE SATAKHAT. CLEARLY THE AVERMENTS MADE TOWARDS VAGUE AND GENERIC NARRATIVE OF UNAVOIDABLE CIRCUMSTANCES FOR NON PAYM ENT ARE TOTALLY UNBELIEVABLE WHEN THE SATAKHAT AND OTHER DOCUMENTS PERTAINING TO LAND ARE READ IN CONJUNCTION WITH THE RECEIPTS OF M ONEY ACKNOWLEDGED BY THE INTENDING SELLERS (AS PER THE MANUAL JOTTING S MADE ON THE BACKSIDE OF THE SATAKHAT) AND THE INFORMATION YIELD ED BY THE DIRECTOR OF THE COMPANY IN THE COURSE OF SURVEY PROCEEDINGS. ORDINARILY, WHEN A PERSON IS QUIZZED BY A QUASI-JUDICIAL AUTHORITY P ERFORMING PUBLIC DUTY ON A DOCUMENT FOUND IN ITS POSSESSION, A NORMA L PRESUMPTION WOULD BE THAT THE PERSON WOULD TRUTHFULLY SHARE THE INFORMATION TO HIS SPECIAL KNOWLEDGE TO THE AUTHORITY. THE BURDEN IS ON THE DEPONENT TO DISPROVE THE POSITION TAKEN EARLIER. THE ALLEGATIO N OF COERCION OR DURESS IS A SERIOUS ALLEGATION AND REQUIRES TO BE P ROVED BY SOME DIRECT OR CIRCUMSTANTIAL EVIDENCE. EXCEPT FOR BALD ASSERT ION MAKING SUCH ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 19 - ALLEGATIONS, WE DO NOT FIND ANY JUSTIFIABLE REASON FOR SUCH ACT. THE ALLEGATION OF FORCEFUL DISCLOSURE IN THE INSTANT CA SE IS EMPTY AND SHALLOW WITH AN INTENT TO DILUTE THE CONFESSION ON THE FACE OF SPEAKING DOCUMENTS SUPPORTING THE EXISTENCE OF UNDISCLOSED T RANSACTIONS. THE FACTS AND CIRCUMSTANCES CLEARLY BELIE THE ASSERTION S IN AFFIDAVITS OF THE INTENDING SELLERS AS WELL AS THAT SON OF THE DIRECT OR. 9.7 SIMILAR IS THE POSITION AS TRANSPIRED FROM THE AFFIDAVIT OF KEY DIRECTOR MR. DINESH N. PEDHADIA. THE CONTENTS OF A FFIDAVIT IS REPRODUCED FOR READY REFERENCE: AFFIDAVIT I UNDERSIGNED SHRI DINESH N PEDHADIA DIRECTOR OF CA ST & BLOWER COMPANY (GUJARAT) PVT. LTD. HINDU ADULT, DO HEREBY SOLEMNLY AFFIRM THAT DURING THE SURVEY PROCEEDING I HAVE GIVEN A ST ATEMENT BEFORE THE AUTHORIZED OFFICER THAT I HAVE PAID MONEY FOR PURCH ASE OF AGRICULTURAL LAND AND LAND FOR FACTORY BUILDING PUR POSE. AND PAID A CASH AMOUNT OF RS.1,50,00,000/- SHRI VALABHAI RUPAB HAI AND SHRI AMRABHAI RUPABHAI. SIR I TELL ON OATH DUE TO FINANC IAL CRISES I HAVE NOT PAID MONEY TO BOTH AGRICULTURISTS. MYSELF OR SH RI YASHWANT PEDHADIYA HAS NOT PAID ANY RUPEES TO HIM. THEY BOTH HAS PREPARED A SATAKHAT AND SENT IN OUR OFFICE FOR SIGNATURE AND A LSO DUE AMOUNT COLLECT AS PER SATAKHAT. BUT WE RESPECTFULLY REGRET THEM AND NOT PUT A SIGNATURE OR NOT MADE ANY TRANSACTION WITH HIM. AFTERWARDS THEY PEOPLE SOLD TOTAL AGRICULTURE LAND TO ANOTHER PARTY . WE ARE NOT KNOWN THEM BECAUSE WE ARE NOT INTERESTED TO PURCHAS E A LAND. SO RATE MENTIONED IN STATEMENT ANY AUTHORIZED OFFICER IS TOTALLY WRONG BECAUSE THEY THREATENED ME FOR RAID WILL BE TOOK PL ACE AT YOUR PLACE. AND THEY TOOK A SIGNATURE ON STATEMENT. NEITHER ANY INCRIMINATING DOCUMENT FOUND NOR ANY EXCESS STOCK FOUND FROM THE PREMISES. SO THEY WANT FORCEFULLY TOOK THE DISCLOSURE AGAINST THE UNACCOUNTED CASH PAYMENT TO BOTH AGRICULTURIST. IT IS TOTALLY WRONG, I HAVE APPEARED BEFORE THE HON'BLE COMMISSIONER OF INCOME TAX - II, RAJKOT AND IMMEDIATELY FILED A RETRACTION LETTER AN D FILED AN AFFIDAVIT OF SHRI YASHWANT D PEDHADIA. THE ABOVE INFORMATION IS TRUE AND CORRECT AS PER MY BELIEF. PALCE: RAJKOT DATE: 24-06-2014 SIGN:________________ (SHRI DINESH N PEDHADIA) ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 20 - 9.8 AS POINTED OUT ON BEHALF OF THE REVENUE, THE AS SESSEE HAS CONVENIENTLY AVOIDED THE PROCEEDINGS BEFORE THE AO AND REFRAINED TO PRODUCE THE PARTIES BEFORE AO WHOSE AFFIDAVITS WERE RELIED UPON IN THE COURSE OF THE APPELLATE PROCEEDINGS. THIS NOTWITHS TANDING, THE AFFIDAVIT OF THE INTENDING SELLERS AND INTENDING PU RCHASERS SPEAKS IN CHORUS THAT THE AGREEMENT TO SALE WAS EXECUTED AND SIGNED BY THE INTENDING SELLERS INDEED AND THE VALUE ASSIGNED FOR PURCHASE WAS RS.2.57CRORES. THE ONLY REASON CITED FOR TRANSACTI ON NOT SAILING THROUGH IS FINANCIAL CRISIS. EXCEPT FOR THE BALD A VERMENT, NO DEMONSTRABLE EVIDENCE HAS BEEN PLACED ON RECORD TO SHOW HOW THE FINANCIAL CAPACITY SUDDENLY ERODED AFTER THE NEGOTI ATION AND PREPARATION OF THE AGREEMENT. FROM THE SEQUENCE OF EVENTS, IT CLEARLY TRANSPIRES THAT THE REAL WORTH OF LAND AS MENTIONED AGREEMENT TO SALE WAS SQUEEZED TO PROVIDE EXIT TO THE ASSESSEE. THE CIRCUMSTANCES SEALS THE NARRATIVE AGAINST THE ASSESSEE AND ASSURES THAT THE ASSESSEE DID GIVE AN AMOUNT OF RS.1,71,25,000/- TOWARDS PART CON SIDERATION AS ON- MONEY FOR CREATING ITS INTEREST IN THE PROPERTY. 9.9 THE CIT(A) IN OUR VIEW, HAS ACTED PERFUNCTORILY IN ACCEDING TO THE FARFETCHED EXPLANATIONS AND IN PLACING BLIND RE LIANCE ON SELF- SERVING AND INEFFACIOUS AFFIDAVITS OF THE PARTIES W HO HAVE NEITHER ATTENDED BEFORE THE AO NOR OFFERED THEMSELVES FOR C ROSS EXAMINATION. THE CIT(A) HAS NOT MADE ANY ENQUIRY HIMSELF NOR IS THE ENQUIRY BY THE AO IS ON RECORD. THE RETRACTION BY THE DIRECTO R OF THE COMPANY OF HIS INCULPATORY STATEMENT GIVEN IN SURVEY TOWARDS T HE FACTUM OF ON- MONEY PAYMENT IS CLEARLY AN AFTERTHOUGHT AND AN ACT OF DESPAIR. NOTHING ACTUALLY TURNS ON THIS OWING TO COGENT EVID ENCE ON RECORD. WHILE IT IS TRUE THAT A STRINGENT RULE OF PROOF AS TO THE EXISTENCE OF THREAT, DURESS OR INDUCEMENT NEED NOT ALWAYS BE APP LIED AND ONLY SOME AMOUNT OF CORROBORATION IS LOOKED UPON AS EVOLVED B Y A RULE OF PRUDENCE, WE HOWEVER FIND NO JUSTIFIABLE REASON TO GIVE PRIMACY TO A ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 21 - BALD AND UNJUSTIFIABLE ALLEGATIONS OF DURESS. THE RETRACTION OF A STATEMENT CAN POSSIBLY BE TAKEN AS SUCCESSFUL ON SH OWING AS TO HOW THE TELL-TALE EVIDENCES FOUND IN THE PREMISES OF TH E ASSESSEE ARE INSIPID AND HAVE NOT BEEN ACTED UPON. THE REFUGE O F RETRACTION THUS FAILS IN THE INSTANT CASE. 9.10 TO DELVE FURTHER, WE ARE UNABLE TO COMPREHEND THE OBSERVATIONS OF THE CIT(A) THAT THE AO HAS FAILED TO BRING OUT A NY MATERIAL EVIDENCE TOWARDS ACTUAL PAYMENT OF MONEY TO THE INT ENDING SELLERS AND RECEIVED IT BACK AGAIN WHEN THE TRANSACTION DID NOT MATERIALIZE. IT IS ONLY ELEMENTARY THAT THE TRANSACTION OF ON-MONEY IN CASH IS BETWEEN THE TWO PARTIES WOULD BE DONE SECRETLY. TYPICALLY, FLOWS OF CASH ARE UNEARTHED BY THE CHAIN OF CIRCUMSTANCES. THERE CAN POSSIBLY BE NO DIRECT MANNER TO GATHER THE PROOF THE CASH TRANSACT IONS. THE PREPONDERANCE OF PROBABILITIES THUS LEANS AGAINST T HE ASSESSEE WHEN THE FACTS AND CIRCUMSTANCES ARE SEEN IN NATURAL PER SPECTIVE. 9.11 THE MANUAL RECEIPT AND THE ENTRIES THEREIN EMBODIES OBJECTIVE DETAILS OF RECEIPTS AGGREGATING TO RS.171.25 LAKHS IN VARIOUS INSTALLMENTS IN CONFORMITY WITH THE SUBSTANTIAL AGR EEMENT VALUE AS PER SATAKHAT. THE AGREEMENT TO SALE MAY NOT FINALL Y HAVE BEEN ACTED UPON AND SAILED THROUGH BUT THE TACIT INVOLVE MENT OF ASSESSEE AS PER THE AGREEMENT TO SALE CANNOT BE DISCARDED. ON THE FACE OF SUCH STRIKING CHAIN OF EVENTS, THE CONTENTS OF SATA KHAT STANDS CORROBORATED AND RENDERED UNFLINCHING. THUS, WHEN THE DOCUMENT I.E. SATAKHAT IS READ AS A WHOLE IN THE CIRCUMSTANC ES EXISTING, WE FIND THAT PRESUMPTION OF UNACCOUNTED TRANSACTIONS I N THE DEAL AS RECORDED IN THE MANUAL JOTTINGS IS CLEARLY DISCERNA BLE AND HAS A SOUND BASIS. THE RETRACTION MADE BY THE DIRECTOR SUBSEQUENT TO S URVEY AND AFFIDAVIT PLACED BEFORE THE CIT(A) IS CLEARLY O PPOSED TO WHAT IS OBVIOUS AND THUS OSTENSIBLY UNRELIABLE AND DE VOID OF ANY VALUE. THE ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 22 - BURDEN PLACED ON ASSESSEE WHILE MAKING ALLEGATIONS OF DURESS IS NOT DISCHARGED AT ALL. THE RETRACTION IS THUS LIABLE T O BE REJECTED. 9.12 AS OBSERVED EARLIER, THE JUSTIFICATION ADVANCE D ON BEHALF OF THE ASSESSEE THAT THE TRANSACTION AT RS.2.57CRORES INIT IALLY AGREED WAS DROPPED DUE TO FINANCIAL CRISIS AS SHALLOW AND JUDI CIALLY UNPALATABLE. THE INTENDING SELLERS HAVE SIGNED THE AGREEMENT TO SALE FOR WHICH THE ADVANCE RECEIVED AGAINST THE PROPOSED AGREEMENT IS ALSO FOUND PART OF THE AGREEMENT TO SALE ITSELF. THUS, IT IS DIFFICUL T TO ACCEPT AN ABSTRACT PLEA THAT AN AGREEMENT OF SUCH MAGNITUDE WOULD BE P REPARED AND SIGNED WITHOUT DUE DILIGENCE ON THIS BASIC POINT OF AVAILABILITY OF MONEY. THE EXPLANATION OFFERED ON BEHALF OF THE AS SESSEE IS TOTALLY INCOMPREHENSIBLE AND DISCONCERTING WHEN SURROUNDING CIRCUMSTANCES EXISTING IN THE CASE ARE TESTED ON THE TOUCHSTONE O F PREPONDERANCE OF PROBABILITIES. THE CORROBORATION OF THE AGREEMENT TO SALE WITH THE HANDWRITTEN RECEIPT AND THE FACTS MENTIONED IN THE RESPECTIVE AFFIDAVITS IN MATERIAL PARTICULARS ARE QUITE COMPEL LING. THE SUBSTANTIVE DIFFERENCE IN THE VALUE ASSIGNED TO THE LAND IN THE FINAL SALE DEED (WITH THIRD PARTY) AND PROPOSED SALE DEED (WITH THE ASSESSEE) SPEAKS VOLUME ABOUT THE EXISTENCE OF ON-MONEY TRANS ACTION IN THE DEAL. 9.13 WE ARE THUS OF THE CONSIDERED OPINION THAT THE BURDEN OF PROVING PRESENCE OF UNDISCLOSED CASH TRANSACTION STANDS DIS CHARGED BY THE REVENUE WITH SUFFICIENT RELIABILITY. ON THE OTHER HAND, THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS PLACED UPON IT FOR NON-EXISTENCE OF CASH TRANSACTIONS UNMASKED IN THE LIGHT OF TANGIBLE EVIDENCES FOUND IN A SURPRISE SURVEY ACTION UNDER S.133A OF THE ACT. THE AGREEMENT TO SALE AND THE RECEIPTS OF CASH PAYMENT WAS FOUND FRO M THE POSSESSION OF THE ASSESSEE COMPANY AND IS ENTITLED TO GREAT WE IGHT DUE TO ITS SUBSTANTIAL CORROBORATION AS NOTED IN THE PRECEDING PARAS. WE ARE OF ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 23 - THE OPINION THAT ONCE IT IS CONCLUDED ON FACTS THAT THE CONTENTS OF THE DOCUMENT FOUND ARE RELEVANT AND TRUE WHICH ESTABLIS HES THE EXISTENCE OF UNACCOUNTED CASH TRANSACTIONS, NON-DETECTION OF PHYSICAL CASH PER SE WOULD NOT BE A HANDICAP TO INVOKE THE PROVISIONS C ONCERNING ASSESSMENT OF UNEXPLAINED AND UNACCOUNTED ASSETS AN D/OR INCOME. 9.14 WE NOW TURN TO THE ANOTHER PLEA TAKEN BEFORE U S ON BEHALF OF ASSESSEE. THE LEARNED AR FOR THE ASSESSEE IN THE CO URSE OF HEARING INTER ALIA POINTED OUT THAT THE AO HAS INVOKED THE PROVISIONS OF SECTION 69A OF THE ACT ON THE GROUND OF SAID AMOUNT RECEIVED BACK. IT WAS CONTENDED AS A COROLLARY THAT THE AMOUNT IS THU S DEEMED TO BE PAID EARLIER AND THE REFUND THEREOF DOES NOT CONSTITUTE INCOME ANYWAYS. WE FIND THAT THE PLEA RAISED ON BEHALF OF THE ASSES SEE IS TENIOUS AND TECHNICAL IN NATURE. WHEN THE FACTUM OF THE EXISTE NCE OF UNACCOUNTED CASH TRANSACTIONS IS GALORE, THE ASSESSMENT OF SUCH UNEXPLAINED CASH TRANSACTIONS CANNOT BE BRUSHED ASIDE. 9.15 WHILE CONCLUDING, WE ALSO NOTICE THAT THE ASSE SSEE HAS RELIED UPON THE DECISIONS OF THE HONBLE GUJARAT HIGH COUR T IN THE CASE OF CIT VS. DHIRAJLAL DURLABHBHAI PATEL HUF TAX APPEAL NO. 579 OF 2009 JUDGMENT DATED 28.06.2010 AND HOST OF OTHER DECISIO NS. A PERUSAL OF THE DECISIONS CITED ON BEHALF OF THE ASSESSEE, IT I S SEEN THAT ALL THESE DECISIONS WERE RENDERED ON THEIR OWN FACTS AND ARE CLEARLY DISTINGUISHABLE. THE HONBLE HIGH COURT IN THE CAS E BEFORE IT INTER ALIA NOTED THAT THE AGREEMENT WAS RECOVERED FROM THE BUS INESS PREMISES OF THE THIRD PARTY WHO WERE BROKERS IN T HE LAND TRANSACTION AND NOT FROM THE ASSESSEE. IN THIS CONTEXT, THE HO NBLE GUJARAT HIGH COURT ENDORSED THE FACTUAL FINDINGS OF THE TRIBUNAL THAT AGREEMENT WAS NEVER ACTED UPON AND WAS NEVER SIGNED BY ANY PARTY TO THE AGREEMENT. IT WAS FOUND THAT EXCEPT FOR A TOTALLY UNSIGNED AGR EEMENT, THERE IS NO OTHER CORROBORATIVE EVIDENCE TO ESTABLISH THE TRANS ACTION. IT IS IN THESE ITA NO. 750/RJT/2014 [ACIT VS. M/S. CAST & BLOWER CO. PVT. LTD.] A.Y. 2011 -12 - 24 - FACTS, THE HONBLE GUJARAT HIGH COURT ANSWERED THE ISSUE AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. AS NOTED EA RLIER, SPEAKING FACTS NARRATED IN THE AGREEMENT TO SALE COUPLED WIT H HANDWRITTEN JOTTINGS FOUND AT THE TIME OF SURVEY AND OTHER CIRC UMSTANCES LEAVES NO ROOM TO DISBELIEVE THE EXISTENCE OF CASH TRANSACTIO NS. IN OUR CONSIDERED VIEW, THE ASSESSEE FAILED TO REBUT THE C ONTENTS OF THE HANDWRITTEN JOTTINGS AND SATAKHAT SATISFACTORILY AN D THUS, FAILED TO DISCHARGE THE ONUS WHICH LAY UPON IT TO PROVE WHAT IS APPARENT AS PER THE DOCUMENTS IMPOUNDED IS NOT REAL. THE PRESUMPTI ON AVAILABLE UNDER S.292C AVAILABLE TO THE REVENUE OPERATES AGAI NST THE ASSESSEE. THEREFORE, WE SET ASIDE AND CANCEL THE ORDER OF THE CIT(A) AND RESTORE THE ADDITION MADE BY THE AO. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 04/10/2018 TRUE COPY S. K. SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, R AJKOT THIS ORDER PRONOUNCED IN OPEN COURT ON 04/10/201 8