ASLAM CHAND KHAN, MUMBAI V. ITO 24(1)(3), MUMBAI

ITA 7597/MUM/2012

• Counselvise Citation: 759719914 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Keywords: Business income; Onus to prove; Retraction
• Section: 143(3); 142(1); 133A; 133(6); 131

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER & SHRI SANJAY GARG, JUDICIAL MEMBER ./ I.T.A. NO.7597 /MUM/2012 ( / ASSESSMENT YEAR : 2009-2010 SHRI ASLAM CHAND KHAN, SHOP NO. 2, MUKADAM COMPOUND, GOKUL DHAM, FILM CITY ROAD, MALAD (EAST), MUMBAI 400 097. / VS. INCOME TAX OFFICER - 24(1)(3). ./ PAN : AFUPK6945F ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI K. GOPAL R E SPONDENT BY : SHRI ASGHAR ZAIN / DATE OF HEARING : 24-11-2014 / DATE OF PRONOUNCEMENT : 06-02-2015 [ !' / O R D E R PER R.C. SHARMA, A.M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) -34, MUMBAI DATED 30-11-2012 FOR THE A.Y . 2009-10 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1 961. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND PERUSED TH E RECORDS. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BU SINESS OF REAL ESTATE. A SURVEY ACTION U/S 133A HAS TAKEN ON 16-10-2008 AT T HE SITE OFFICE OF THE ASSESSEEES REAL ESTATE BUSINESS MAINLY PURCHASE AN D SALE OF INDUSTRIAL PLOTS AT VASAI. THE ITO WARD 4(1), THANE HAS GOT TERRITO RIAL JURISDICTION OVER SAID AREA, WHERE AN OFFICE IS MAINTAINED BY THE ASSESSEE . SINCE THE ASSESSEE IS ITA 7597/M/12 2 ASSESSED IN THIS CHARGE, THE ITO 4(1), THANE HAS TR ANSFERRED THIS CASE AS WELL AS SURVEY REPORT TO THE ITO 24(1)(3). THEREAFTER, THE CASE HAS BEEN TAKEN UP FOR SCRUTINY BY ISSUING NOTICE U/S 142(1) DATED 12/ 9/2011. DURING THE SURVEY, THE DEPARTMENT IMPOUNDED VARIOUS DOCUMENTS ON THE BASIS OF WHICH THE ASSESSEE HAS SURRENDERED AN AMOUNT OF RS. 1,21, 24,500/-. SUBSEQUENTLY, THE ASSESSEE RETRACTED FROM THE STATE MENT WITH REGARD TO DISCLOSURE OF RS. 1,21,24,500/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS ALSO CHALLENGED THE J URISDICTION OF THE A.O. TO FRAME THE ASSESSMENT. THE A.O. OBSERVED AS UNDER:- IT IS OB S ERVED T HA T T HE A SS ESSEE HAS RETRACTED THE DISC L OSURE O F RS.1 , 21 ,24 , 500/ - MADE A T THE T I ME OF SURVEY AND HAS CHALLENGED THE JURISDICTIO N OF SU R VE Y U /S. 13 3 A B Y THE I . T.O . 4( 1) , THANE . THE ISSUE OF J UR I SDICTION AND I TS LEGA LI TY B RO UGHT OUT BY TH E A S SE SS EE IS NOT T ENABLE AS T H E I . T . O . THANE'S ACTIO N I S L EGA L A ND PROPER I N V IE W O F - T HE CLAUSE (A) OF SECTION 133A(1) . THE DETA I L S F U RN ISHED BY THE ASSESSEE HAVE BEEN SCRUTINIZED AND IT IS OB S ER V ED . THAT THE ASSESSEE HAS NOT GIVEN ANY E XP LANATION REGARDING T H E ENTRIE S MADE CA S H R ECEIPT S F R OM THE FOLLOWING PART I ES APPEA R ING I N THE BOO K (FRIENDSHIP) IMPOUNDED IN THE COUR S E OF S URVEY AS UNDER : - SURVEY NO. GUNTHA 141 51.50 (VIDE TWO AGREEMENTS) 140 22 GUNTHA 141 45 GUNTHA 338 33 GUNTHA IN ADDITION TO THE ABO V E , I ALSO OWN LAND AT VARTAK WADI, PELHAR VILLAGE , TAL . VASAI. THE DETAIL S ARE AS UNDER :- SURVEY NO . GUNTHA 77/1 1.25 GUNTHA 77/2 1.50 GUNTHA 70 11.71 GUNTHA 69 20.86 GUNTHA 71 4.87 GUNTHA ITA 7597/M/12 3 75 7.66 GUNTHA 20.15 GUNTHA TOTAL VALUE OF ABOVE PLOTS IS RS. 1,21,24,500/-. 1. NO PROOF HAS BEEN FOUND OUT IN THE COURSE OF SU RVEY ACTION RELATED TO THE SAID CASH INVOLVEMENT. 2. THERE ARE FEW PERSONS HAVE BEEN SUMMONED BY YOU, HAVE DECLINED TO MAKE PAYMENT OF ANY CASH FOR PURCHASE O F PROPERTY. 3. NO HARD CASH WAS FOUND IN THE PREMISES DURING FO R SURVEY ACTION, FURTHER NO ANY PAPERS RELATING TO THE SAME WAS ALSO FOUND THERE. 4. THE SCRUTINY OF THE BANK, BANK ACCOUNT/PASS BOOK / BOOKS OF ACCOUNT PRODUCED BEFORE YOU. NO CASH HAS BEEN D EPOSITED, WAS TRACED OUT BY YOU. 5. THERE ARE DIFFERENCES BETWEEN THE GUNTHA AND RAT ES REPORTED BY SURVEY PARTIES AND AS PER REGISTERED/UN REGISTERED DOCUMENTS SUBMITTED TO YOU VIE LETTER DATED 9-12-20 11. 6. I HAVE ALREADY RETRACTED THE SURVEY ACTION BY FI LING AFFIDAVIT WITHIN 15 DAYS. IN VIEW OF THE ABOVE DEC LARATION TAKEN BY THE SURVEY PARTIES ABOUT UNACCOUNTED CASH IS UNWARR ANTED. IT IS SEEN THAT THE STATEMENT REGARDING ENTRIES IN SAID IMPOUNDED BOOK THE ASSESSEES STATEMENT BEFORE THE SURVEY OFF ICER HAS BEEN FOUND AS UNDER:- Q. NO. 10: DURING THE COURSE OF SURVEY ACTION IN THE BUSINESS PREMISED CARRIED OUT TODAY I.E. ON 16-10-2008, A NO TE BOOK NAMELY TRUE FRIENDSHIP (SUNDARAM) WHICH IS INVENTOR ISED AT SERIAL NO. 1, IT IS SEEN THAT THERE ARE, CERTAIN EN TRIES ON DIFFERENT DATED. THIS NOTE BOOK ALSO CONTAINS CERTAIN ENTRIE S INDICATING RECEIPT OF CASH COMPONENTS AGAINST THE SALES EFFECT ED TO VARIOUS PERSONS, PLEASE EXPLAIN THE ENTRIES APPEARING IN TH E NOTEBOOK ? ANS:- THE ENTRIES IN THE NOTE BOOK INDICATES SALES MADE TO VARIOUS PERSONS OUT OF VARIOUS SURVEY NUMBERS. THE DATES O F ENTERING INTO TRANSACTIONS WITH THESE PARTIES ARE ALSO INDIC ATED IN THE SAID NOTE BOOK. THE AREA OF LAND SOLD TO EACH INDIVIDUAL PARTY IS ALSO MENTIONED IN THE NOTE BOOK. THE ENTRIES APPEARING AT THE BOTTOM IN EACH PAGE INDICATE THE TOTAL NUMBER OF GUNTHAS S OLD AND THE AMOUNT RECEIVED BY WAY OF CASH AGAINST SUCH SALES O F LANDS. THE ENTRY WRITTEN, NAMELY, 150 INDICATES THE CASH COMPO NENT OF RS. ITA 7597/M/12 4 1,50,000/- RECEIVED PER GUNTHA FROM THE INDIVIDUALS MENTIONED ON THE PARTICU L AR PAGE. TO CLAR I F Y ON PAGE NO . 1 , THE TOTAL SALES EF F ECTED ARE TO 4 PERSONS AND THE TOTAL AREA SOLD I S 4.64 GUNTHAS. THUS , THE TOTAL CA S H COMPONENT RECE I VED O U T OF THIS T R A N SACTION AMOUNT S TO RS . ' 6.9 6 LACS ( 4 . 64 X RS.150). IN ALL, THE TOTAL AREA SOLD AMOUNTS TO 80.83 GUNTHAS AND AP PLYING THE CASH COMPONENT APPEARING ON THIS NOTE BOO K OF RS . L,50 , 000/ - PER GUNTHA , ' THE TOTAL CA S H COMPONENT RECEIVED BY ME AMOUNTS TO RS.L,21,24,500/-. Q, NO.LL ; IN ANSWER TO QUESTION NO . 7 ABOVE YOU HAVE STATED THAT REGULAR BOOKS OF ACCOUNTS HA V E BEEN MAINTAINED BY YOU . PLEASE STATE A S TO WHETHER THE CASH CO M P O NEN T OF RS . L,21 , 24,500 / - APPEAR IN G I N THE REGISTER I S ACCOUNTED FOR I N T H E R EG ULA R BOO K S OF ACCOUNTS M A I NTA I NED BY Y O U . ANS;- THE CASH ENTR I ES APPEAR I NG IN T HE NOTE BO OK FO UN D AND IN V E NT O RI SED ARE NOT ACCO UN TED FO R I N T H E REGULAR BOO K S O F ACCOUNTS MA INT A I NED BY ME. TH I S ELE M EN T OF CASH COMPONENT RECE IV ED BY ME IS O V ER AND ABOVE THE AMO UNTS RECE IV ED BY ME B Y WA Y O F C H EQUE S FROM VARIO U S CUSTOMERS. IN A LL, SA L E S H A V E BEEN EFFECTED TO 51 PER S ONS , OUT OF WH I CH REGISTRATION OF SALES HA S BEEN DONE IN RESPECT OF 22 PERSON S . AS FOR AS THE BALANCE IS CONCERNED , THOUGH THE REGISTRATION HAS NOT TAKEN PLACE , SALE OF LAND HAS BEEN CONFIRMED AND ENTIRE CASH COMPONENT HAS BEEN RECEIV ED FROM THESE PERSONS AFTER EARMARKING THE LAND TO BE S OLD TO THESE PERSONS . THUS , OUT O F THE TOTAL TRANSACTION TO BE MADE WITH 51 PERSON S , DOCUMENTS HAVE BEEN REGI S TERED IN RESPECT OF 22 PERSONS , AND IN RESPEC T OF THE REST ; DOCUMENTS ARE YET TO BE REGISTERED HOWEVER , A S STATED ABOVE THE CASH CO MPO NENT AS APPEARING IN THE NOTE BOOK I N RESPECT OF ALL THE 51 PERSONS HAVE BEEN RECEIVED BY ME. SINCE, THIS AMOUNT OF RS. 1,21,24,500/- RECEIV ED BY WAY OF CASH HAS NOT BEEN ENTERED IN TO MY REGULAR BOOKS OF ACCOUNTS MAINTAINED, I VOLUNTARILY OFFER THE SAME FOR TAXATI ON AS MY ADDITIONAL INCOME FOR THE CURRENT FINANCIAL YEAR 20 08-09. THIS WILL BE OVER AND ABOVE THE NORMAL BUSINESS PROFITS THAT WILL BE SHOWN BY ME AS AT THE END OF THE FINANCIAL YEAR. I ALSO PROMISE TO PAY THE ADVANCE TAX DUE ON THE ADDITION INCOME OFFERED BY ME ON THE APPROPRIATE DATES. . Q . NO . 12 : DO YOU WANT TO SA Y AN Y THING EL S E? ITA 7597/M/12 5 ANS NO. WHATEVER STATED ABOVE IS TRUE AND CORRECT TO THE BE ST OF KNOWLEDGE AND BELIEF. THIS STATEMENT HA S BEEN RECORDED IN THE PRESENCE OF MY A U THORIZ E D REPRESENTAT I VE SHRI M.A . SIDDIQUI , ADVOCATE. I ALSO READ AND UNDERSTOOD THE CONTENTS OF THIS S TATEMENT. THIS STATEMENT HAS BEEN GIVEN BY ME V OLUNTARIL Y AND WITHOUT AN Y FORCE OR COERCION . IT IS OBSERVED THAT THE STATEMENT RECORDED O N 16/ 1 0/2008 IN THE C O U RS E OF SURVEY HA S BEEN RECORDED ON OATH IN P R ESENCE OF ASSESSEE ' S AD VO CA T E SHRI M.A . SIDD I QUI . IT IS FURTHER FOUND THAT IN V ENTORIES PREPARED REGA R DING PLOTS ON WHICH ASSESSEE REALIZED UNACCOUNTED CASH HAS AL S O B EEN SIGNED BY H I M BEFORE HIS QUALIFIED REPRESEN TA TI V E . THE ASSESSEE HAS TA K EN STEP OF DENYING THE RESULTS FOUND AGAINST HIM AFTER SEVERAL DAYS A ND AFTER EFFO R TS MADE TO SET UP THE ACCOUNTS IN HIS FA V OUR . IN FACT S T H E AS SESSEE C O MPLETELY FAI L ED TO - E S TABLISH UNACCOUNTED CAS H R ECEIPT AND CO U L D NOT PRODUCE AN Y CONCRETE PROOF FOR EXPLA I NING THE ENTRIES NOTED IN B OO KS (FRIENDSHIP) F O UND F R OM HIS P L ACE OF BUSINES S . THU S THE ASSE S SEE HAS FA I LED TO E X PLA I N THE ABOVE ENTRIES BEFORE THE SURVE Y OFF I CER AS WELL A S BEFORE THE UNDERSIGNED, HENCE H I S PRESENT VERSION OF RETRACTION C ANNOT BE ACCEPTED . IT IS NOTHING BUT AFTERTHOUGHT AND N O T TENABLE . H ENCE THE AMOUNT O F RS.1,21,24 , 500/ - OFFERED VOLUNTARIL Y IN SURVE Y RE MA I NED UNE X PLA I NED AT THIS STAGE ALSO, WHICH IS ADDED TO HIS INCOME SHOWN A S UNDISCLOSED INCOME. 3. AGGRIEVED BY THE ABOVE ORDER, THE ASSESSEE APPROACHED BEFORE THE LD. CIT(A). THE LD. CIT(A) DEALT WITH EACH AND EVERY OBJECTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE A .O. WITH REGARD TO THE UNDISCLOSED INCOME OF RS. 1,21,24,500/- AFT ER HAVING FOLLOWING OBSERVATION:- AS FAR AS THE FIRST OBJECTION IS CONCERNED, IT IS T HE CONTENTION OF THE APPELLANT THAT THE STATEMENT RECORDED DURING TH E COURSE OF SURVEY WAS NOT VOLUNTARY AND IS NOT SUPPORTED BY AN Y DOCUMENTARY EVIDENCE. HAD THE STATEMENT WAS NOT GI VEN VOLUNTARILY AND IT WAS TAKEN BY USING COERCIVE MEAS URES BY THE ITA 7597/M/12 6 ASSESSING OFFICER, NOTHING PREVENTED THE APPELLANT IN APPROACHING THE HIGHER AUTHORITIES LIKE ADDL. CIT, CIT & CCIT. THE APPELLANT COULD HAVE FILED A DETAILED LETTER NARRATING HOW TH E STATEMENT WAS NOT VOLUNTARILY RECORDED BEFORE THE ABOVE SENIOR OF FICERS WHICH WAS NOT DONE BY THE APPELLANT. HENCE THE CONTENTIO N THAT THE STATEMENT RECORDED WAS NOT VOLUNTARY BY USING COERC IVE MEASURES CANNOT BE ACCEPTED. 2.3.3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE COP Y OF THE IMPOUNDED REGISTE R ' SUNDARAM ' WAS GIVEN TO THE APPELLANT . IN FACT BASED ON THE CONTENT OF TH I S IMPOUNDED DOCUMENT A SPECIFIC QUESTIONS WERE ASKED IN THE STATEMENT RECORDED WHICH WAS , SUBSEQUENTLY RETRACTED BY THE PROPRIETOR . THE ASSESS I NG OFF I CER I N THE ASSESSMENT ORDER ITSELF HAD MENT I ONED THE SURVEY NUMBER AND THE AREA IN EACH SURVEY WH I CH WAS PLOTTED AND SOLD . THE IMPOUNDED DOCUMENTS C L EARLY SHOWS THAT THE APPE LL AN T HAD RECEIVED RS. 1,50,000/- B Y WAY OF CASH ON SALE OF THE PLOTS. ENTRIES IN THE PAGE -3 AND PAGE - 4 OF THE ABOVE IMPOUNDED DOCUMENT IS REPRODUCED AS UNDER FOR THE S AKE OF CONVENIENCE:- PAGE 3 REGD. DATE GUNTHA SR NO. 141 ISTIYAG AHMED 9.6.08 2.12 ABDUL HAI 9.6.08 1.21 BIPIN N. RATHOD 9.6.08 0.61 ARUNA B RATHOD 9.6.08 0.61 HIMANSHU B RATHOD 9.6.08 0.61 KRIPA HIMANSHU RATHOD 9.6.08 0.61 ABDUL GAFUR QURESHI 9.6.08 0.61 RABIYA GAFUR QURESHI 9.6.08 0.61 HAFIZULLAH BABULLAH 9.6.08 1.03 PANKAJ MEWADA 9.6.08 0.51 DEEPAK TAWDE 9.6.08 0.51 PARSHURAM CHAVAN 9.6.08 0.49 ANAND GANPATI CHARAN 9.6.08 0.49 124/6/08 GURMALE SINGH JABBLE 9.6.08 0.77 10.78 RATE X GUNTHA AMT. 1.50 10.78 16.17 PAGE 4 SR NO. 141 KIRITBHAI P. PATEL 09.07.08 2.48 RAMILABEN K. PATEL 09.07.08 1.65 2.7.08 ZAHID QURESHI 09.07.08 2.02 -DO- ANWAR ALI ANSARI 09.07.08 1.10 ITA 7597/M/12 7 -DO- ACHHELAL YADAV 09.07.08 0.92 -DO- VIMALA YADAV 09.07.08 0.92 9.7.08 NABI AHMED RAHAMTULLAH 09.07.08 0.92 9.7.08 NABI HASAN NABI AHMED 09.07.08 0.92 TOTAL 10.93 SR. 141 SARBAJIT SINGH 2.76 RATE X GUNTHA AMT 1.50 10.93 16.39 1.50 2.76 4.14 THE ABOVE ENTRIES ARE RELATED TO SALE OF PLOTS IN S URVEY NO.141. THE TOTAL AREA SOLD IS 10.78 AND 13.69 GUNTHAS RESP ECTIVELY. THE APPELLANT HAD CLEARLY ENTERED THE DATES ON WHICH TH E DOCUMENTS WERE REGISTERED. BELOW THIS RATE @ 1.50 WAS WORKED OUT ON THE ENTIRE AREA SOLD. A SPECIFIC QUESTION WAS ASKED DUR ING THE COURSE OF SURVEY ITSELF WHICH WAS RELATED TO PAGE NO. 1 IN RESPECT OF SALE OF 4.63 GUNTHAS TO 4 PERSONS. THE PROPRIETOR SHRI ASL AM CHAND KHAN HAD AGREED THAT 1.5 IN THE ABOVE NOTING INDICA TES THE CASH COMPONENT OF RS. 1,50,000/- RECEIVED OVER AND ABOVE THE REGISTRATION CHARGES FROM THE ABOVE INDIVIDUALS. A CCORDINGLY HE HAD DISCLOSED RS. 1,21,24,500/- AS CASH COMPONENT R ECEIVED FROM 55 PERSONS AS PER THE IMPOUNDED DOCUMENTS. THE REL EVANT PORTION ARE IN ANSWER TO QUESTION 10 & 11 WHICH ARE REPRODUCED AS UNDER:- Q. NO. 10: DURING THE COURSE OF SURVEY ACTION IN TH E BUSINESS PREMISES CARRIED OUT TODAY I.E. ON 16-10-2008, A NO TE BOOK NAMELY TRUE FRIENDSHIP (SUNDARAM) WHICH IS INVENTORISED AT SR. NO. 1, IT IS SEEN THAT THERE ARE CERTAIN ENTRIES ON DIFFERENT DA TES. THIS NOTE BOOK ALSO CONTAINS CERTAIN ENTRIES INDICATING RECEI PT OF CASH COMPONENTS AGAINST THE SA L ES EFFECTED TO VARIOUS PERSONS , PLEASE EXPLAIN THE ENTR I ES APPEARING IN THE NOTE BOOK? ANS : THE ENTRIES I N THE NOTE BOOK INDICATE SALES MADE TO VAR I OUS PERSONS OUT OF VARIOUS SURVEY NUMBERS . THE DATES OF ENTER I NG INTO TRANSACTIONS WI T H THESE PARTIES ARE ALSO INDICTED IN THE SAID NOTE BO OK. THE AREA OF LAND SOLD TO EACH INDIVIDUAL PARTY IS ALSO MENTIONED IN THE NOTE BOOK . THE ENTRIES APPEARING AT THE BOTTOM IN EACH PAGE INDICATE THE TOTAL NUMBER OF GU NTHAS SOLD AND THE AMOUN T RECE I VED BY WAY OF CASH AGAINST SUCH SALE OF LANDS . THE ENTRY WRITTEN , NAMELV, 150 INDICATES THE CASH COMPONENT OF RS.1,50,OOO/- R ECEIVED PER GUNTHA FROM THE INDIVIDUALS MENTIONED ON THE PARTICULAR PAGE. TO CLARIFY ON PAGE NO . 1 , THE TOTAL SALES EFFECTED ARE TO 4 PERSONS AND THE TOTAL AREA SOLD IS 4.64 GUNTHAS . ITA 7597/M/12 8 THUS , THE TOTAL CASH COMPONENT RECEIVED OUT OF THIS TRANS ACT I ON AMOUNTS TO F . 6 . 96 LACS ( 4 . 63 X . 150) . IN ALL , T HE TOTA L AREA SOLD AMOUNTS TO 80 . 83 GUNTHAS AND APPLYING THE CASH COMPONENT APPEAR I NG ON THIS NOTE BOOK OF RS. 1, 50 , 000/- PER GU N THA , T HE TOTAL CASH COMPONENT RECEIVED BY ME AMOUNTS TO R S. 1 , 21 , 24 , 500/-. Q . NO . 1 1 : IN A N SWER TO QUEST I ON NO . 7 ABOVE , YOU HAVE STATED T HAT REGULAR BOOKS OF ACCOUNTS H A VE BEEN MAINTA IN ED BY YOU . PLEASE STATE AS T O WH E T HE R T H E CASH COMPONENT OF RS.1 , 21 , 24 , 5001- APPEARING I N THE REG I STE R I S A CCOUNTED FOR IN T HE REGULA R BOOKS OF ACCOUNTS MAINTAINED BY YOU . ANS : THE CASH ENTRIES APPEARING IN THE NOTE BOOK FOUND A ND INVENTORISED ARE NOT ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS MAINTAINED BY ME. TH I S ELEMEN T O F CASH COMPONENT R ECE I VED BY ME IS OVE R AND ABO V E T HE AMOUNTS RECE I VE D BY ME B Y WAY OF CHEQUES FROM V AR I O U S CUSTOMERS . I N ALL , SA L ES H A V E BEEN EFFEC T E D TO 51 PERSO N S , OUT OF WH I CH REG I STRA TI ON OF SALES HAS BEEN DONE IN R ESPE C T OF 22 PE R SO N S . AS FAR AS T HE BALANCE I S CONCERNED , THOUGH THE REGISTRATION HAS N O T TAKEN PLACE , SALE OF LAND HAS BEEN CONFIRMED AND ENT I RE CASH COMPONENT HAS BEE N RECE I VED FR O M T HES E PERSONS AFTER EARMARKING THE LAND TO BE SOLD TO THE SE PERSONS . T H US , OUT O F T HE T O TA L TRANSACT I ON TO BE MADE WITH 51 PERSONS , DOCUMENTS HAVE BEEN REG I STERED IN RESPE CT O F 22 PERSONS AND IN RESPECT OF THE REST , DOCUMENTS ARE YET T O BE REG I STERED HOWEVE R AS STATED ABOVE THE CASH COMPONENT AS APPEARING IN THE NOTE BOOK I N RESPEC T O F AL L THE 51 PERSONS HAVE BEEN RECEIVED BY ME . SINCE TH I S AMOUNT OF RS. 1,21,24,500/- RECEIVED BY WAY OF CASH HAS NOT BEEN ENTERED INTO M Y REGULAR BOOKS OF ACCOUNTS MAINTAINED, I VOLUNTARILY OFFER THE SAME FOR TAXATI ON AS MY ADDITIONAL INCOME FOR THE CURRENT FINANCIAL YEAR 2008-09. THIS WILL BE OVER AND ABOVE THE NORMAL BUSINESS PROFITS THAT WILL BE SHOWN BY ME AS AT THE END OF T HE FINANCIAL YEAR. I ALSO PROMISE TO PAY THE ADVANCE TAX DUE ON THE ADDITIONAL INCOME OF FERED BY ME ON THE APPROPRIATE DATES. 2.3.4 THE SUBMISSION OF THE APPELLANT THAT THE NOTI NGS IN THE SUNDARAM REGISTER WAS THE EXPECTED PRICE WHICH MIGHT BE RECEIVED FROM THE SALE OF SPECIFIED PLOTS FROM THE PROSPECTIVE BUYERS AND THE DATES FROM THE PROBA BLE DATE OF TRANSACTIONS. THIS CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE FOR T HE FOLLOWING REASONS:- (1) IN THE FRONT PAGE OF THE REGISTER, THE FOLLOWIN G HAS BEEN NOTED BY THE APPELLANT: A.K. DEVELOPERS PALHAR VILLAGE, VASAI PHATA, WESTERN EXPRESS HIGHWAY, VASAI (E), DIST. THANE PARTY PAYMENT RECEIVED (CHEQUE + CASH PAYMENT) THIS NOTING CLEARLY INDICATES THAT THE PAYMENTS HAV E ALREADY BEEN RECEIVED, ITA 7597/M/12 9 OTHERWISE THE HEADING SHOULD BE PARTY PAYMENT RECEIVABLE/PROJECTIONS HAD IT BEEN REALLY A PROJEC TION WHICH IS NOT THE CASE. ((2) AS MENTIONED IN THE ABOVE PARA 2.3.3., IN PAGE NO. 3 AND 4 THE DATE OF REGISTRATION IS MENTIONED AS 9-06-2008 AND 9-7-2008 . IN PAGE 4 THE FIRST COLUMN IN THE PAGE INDICATES THE DATE OF RECEIPT OF THE CONSIDERATION IS MENTIONED AS 2.7.2008 FOR SOME OF THE BUYERS AND 9- 7-2008 FOR SOME OF THE BUYERS BUT THE DATE OF REGISTRATION HAS BEEN CLEARL Y MENTIONED AS 9-7-2008 WHICH MEANS THAT HE REGISTRATION WAS OVER AS ON THE DATE OF SURVEY AND IT IS NOT THE PROJECTION. (3) DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPELLANT WAS ASKED TO FILE THE DETAILS WITH REGARD TO ALL 51 PLO TS VIZ. NO. OF PLOTS REGISTERED, NO. OF PLOTS ADMITTED AS SALES AND NO OF PLOTS ALLEGED TO HAVE BEEN CANCE LLED . THE SAME WAS FILED ON 29/11/2012 IN AN EXCEL FORMAT . FROM THE DETAILS FILED IN RESPECT OF SALE ADMITTED FOR THE PERIOD 1 . 04.2008 TO 31 . 03 2009 , IT COULD BE ASCERTAINED THAT THE SALE IN RESPECT THE PARTIES ME NTIONED IN PAGE 3 & 4 WERE COMPLETED ON 9.6.2008 AND 9.7.2009 AS PER THE NOTIN G IN THE IMPOUNDED DOCUMENT. THE DETAILS ARE ENCLOSED HERE WITH TO THI S ORDER . FROM THE ABOVE IT COULD BE PROVED THAT THE NOTE BOO K CONTAINED THE DETAILS OF ACTUALS AND IT IS NOT PROJECTION AS CLAIMED . HENCE THE SUBMISSION OF THE APPELLANT THAT THE ENTRIES IN THE IMPOUNDED BOOK AR E PROJECTIONS IS UNSUBSTANTIATED AND CLEARLY IT IS AN AFTERTHOUGHT. 2 . 3.5 . MERELY BY FILING AN AFFIDAVIT WITHOUT ANY CORROBORA TIVE EVIDENCE WILL NOT MAKE THE STATEMENT INVALID . MERE FILING AN AFFIDAVIT WITHOUT ANY DOCUMENTARY EVIDENCE TO SHOW THAT THE CONTENT OF TH E STATEMENT IS INVALID HENCE CANNOT BE ACCEPTED. FOR THIS PROPOSITION , I RELY ON THE FOLLOWING DECISIONS . 1) GUNVANTIBEN RATILAL VS. CIT (MP) 146 ITR 140 SILK MUSEUM VS. CIT (GUJ) 257 ITR 22 AN AFFIDAVIT I S A PIECE OF EVIDENCE , WHICH ALONG WITH OTHER MATERIAL ON RECORD , HAS TO BE TAKEN INTO CONSIDERATION BEFORE ARRIVING AT A FINDING. A STATEMENT BY A DEPONENT CAN BE HELD TO B E UNRELIABLE EITHER ON THE BASIS OF CROSS-EXAMINATION OF THE DEP ONENT OR BY REFERENCE TO OTHER MATERIAL ON RECORD . 2) SRI KRISHNA VS. CIT 142 ITR 618 (ALL) AFFIDAVIT NEED NOT ALWAYS BE ACCEPTED AS CORRECT. I T IS NEITHER A RULE OF PRUDENCE NOR A RULE OF LAW THAT THE STATEMENTS M ADE IN AN AFFIDAVIT WHICH REMAINS UNCONTROVERTED , MUST INVARIABLY BE ACCEPTED AS TRUE AND RELIABLE . ORDINARILY , IN THE ABSENCE OF DENIAL , ITA 7597/M/12 10 THE STATEMENTS MAY BE ACCEPTED AS TRUE BUT IF THERE ARE CIRCUMSTANCES WHICH SUGGESTS THAT THE STATEMENTS ON AFFIDAVIT SHOULD NOT BE ACCEPTED AS TRUE , THE ABSENCE OF DENIAL BY THE OTHER SIDE , WOULD NOT BY ITSELF BE SUFFICIENT TO CLOTHE THE STATEMENTS ON AFFIDAVIT WITH TRUTHFULNESS AND RELIA BILITY . 3) GARIBDAS CHANDRIKA PRASAD VS. CIT (MP) 230 ITR 7 71 AFFIDAVIT FILED BY A PARTNER OF FIRM MUCH AFTER THE SEARCH , CONTRADICTING HIS OWN STATEMENT RECORDED ON OATH DU RING THE COURSE OF SEARCH IS AN AFTERTHOUGHT TO COVER UP THE UNDISC LOSED INCOME AND HENCE THE CONTENTS OF AFFIDAVIT RIGHTLY REJECTED BY THE ASSESSING OFFICER . 4) TECHNICAL GLASS INDUSTRIES VS. CIT (ALL) 281 ITR 61 CHOWKCHAND BALABUX VS . CIT (ASSAM) 41 ITR 465 ASSESSEE FILED AFFIDAVIT FROM SOME CREDITORS - BUT FAILED TO P R ODUCE THEM BEFORE THE ASSESSING OFFICER - ASSESSEE FA I LED TO PROVE THE GENUINENESS OF THE AFFIDAVIT AND T HE AVERMENTS MADE THEREIN - AFFIDAVITS R I GHTLY REJECTED. 5) MUNILAL RAMDAYAL VS. ITO & ORS. (ORI) 76 ITR 151 REASONS FOR REOPEN I NG OF ASSESSMENT - AFFIDAVIT OF ASSESSEE 'S REPRESENTATIVE THA T THE ITEM WAS BROUGHT TO THE NOT I CE OF THE THEN ITO IS SELF-SERVICING STATEMENT UNL E S S IT I S CORROBORATED BY I NTRINSIC OR EXTRINSIC EVIDENCE - HENCE CLAIM CANNOT BE ACCEP TE D . IN VIEW OF THE ABOVE DISCUSS I ON , I CONCLUDE THAT MERE RETRACTION OF THE STATEME NT B Y F I L I NG THE AFFIDAVIT IS NOT AN ACCEPTABLE EVIDENCE I N THE EYES OF LAW . THE AFF I DAV I T F IL E D BE F ORE ME IS ONLY A SELF-SERV I NG DOCUMENT WITHOUT ANY CORROBORATIVE MATERIAL. HEN CE I CONCLUDE THAT THE STATEMENT RECORDED BY THE ASSESSING OFFICER IS VALID IN T HE EYES OF LAW. 2 . 3 . 6 . NOW I DEA L WITH THE I SSUE OF THE VALIDITY O F T HE S T ATEMENT RECO R DE D D UR ING T HE COURSE OF SURVEY U / S 1 33A OF IT ACT. IT IS A SETTLED LAW THAT ADMISSION I S EX TRE ME L Y I MPORTANT PIECE OF EVIDENCE AS HELD BY THE HON. APEX COURT IN THE CASE OF PULLAM CO DE RUBBER CO. LTD. REPORTED IN 91 ITR 18. HOWEVER AN ADM I SSION IS NOT CONCLUS I VE A ND IT I S OPEN TO T H E ASSESSEE WH O MADE I T TO SHOW THAT I T WAS I NCOR R ECT. IN THIS CAS E THE APPELLANT HAD NOT BROUGHT ANY MATERIAL TO CONTROVER T THAT THE ADMISSION MA DE WAS INCORRECT. THE UND I SPU T ED FACT IS THAT THE STATEMENT WAS VOLUNTA RILY G IV E N B Y T HE APPELLAN T . FURTHER I RE L Y ON T HE F O LL OWING DECISIONS IN TH I S R EGA R D (1). VINOD SOLANKI VS. UOI CIVIL APPEAL NO. 7407 OF 2008 ARIS I NG OU T OF S LP ( C ) NO. 35370F 2008 DATED 18T H DECEMBER, 2008 (UOI ( 233) EL T ITA 7597/M/12 11 157 ( S.C.) HE LD T H A T : - (I ) THE RETRACTED STATEMENT MUST BE SUBSTANTIALLY COR ROBORATED BY OT H E R INDEPENDENT AND COGENT EVIDENCES, WHICH WOULD LEND ADEQUATE ASSURAN CE TO THE COURT THAT IT MAY SEEK TO RELY THEREUPON ; (II) THE INITIAL BURDEN TO PROVE THAT THE CONFESS I ON WAS VOLUN T ARY I N NA T U RE WOULD BE ON THE DEPARTMENT. (III) THE BURDEN IS ON THE PROSECUTION TO SHOW THAT THE CONFESSION IS VOLUNTARY IN NATURE AND NOT OBTAINED AS AN OUTCOME OF THREAT, ETC . IF THE SAME IS TO BE RELIED UPON SOLELY FOR THE PURPOS E OF SECURING A CONVICTION . (IV) WITH A VIEW TO ARRIVE AT A FINDING AS REGARDS THE VOLUNTARY NATURE OF STATEMENT OR OTHERWISE OF A CONFESSION WHICH HAS SI NCE BEEN RETRACTED, THE COURT MUST BEAR IN MIND THE ATTENDING CIRCUMSTA NCES WHICH WOULD INCLUDE THE TIME OF RETRACTION, THE NATURE THEREOF, THE MANNER IN WHICH SUCH RETRACTION HAS BEEN MADE AND OTHER RELEVANT FA CTORS. LAW DOES NOT SAY THAT THE ACCUSED HAS TO PROVE THAT RETRACTI ON OF CONFESSION MADE BY HIM WAS BECAUSE OF THREAT , COERCION , ETC. BUT THE REQUIREMENT IS THAT IT MAY APPEAR TO THE COURT AS SUCH. (2) CIT VS. UTTAMCHAND JAIN (BOMBAY HIGH COURT), INCOME TAX APPEAL NO 634 OF 20 09 , IT WAS HELD THE RETRACTED CONFESSION CAN BE RELIED ONLY THERE I S INDEPENDENT AND COG NET EVIDENCE TO CORROBORATE THE STATEMENT. (3) ABDUL QAYMME VS CIT (1990) 184 ITR 404 :-AN ADMISSION OR ACQUIESCENCE CAN NOT BE FOUNDATION OF ASSESSMENT WH EN INCOME IS RETURNED UNDER AN ERRONEOUS OR MISCONCEPTION OF LAW . IT IS ALWAYS OPEN TO ASSESSEE TO DEMONSTRATE AND SATISFY THE AUTHORI TY CONCERNED THAT A PARTICULAR INCOME IS NOT TAXABLE IN HIS HANDS AND IT WAS RETURNED UNDER AN ERRONEOUS IMPRESSION OF LAW . (4) THE ITAT BANGALORE BENCH IN THE CASE OF CARPENT ERS CLASSICS (EXIM) (P.) LTD. VS OCIT 108 ITO 142 HAS HELD THAT , 'SINCE THE ASSESSEE HAD NOT TAKEN ANY STEP TO RECTI FY ITS DECLARATION BEFORE THE AUTHORITIES BELOW BEFORE WHOM SUCH DECLA RATION WAS MADE , THERE WAS NO VALID REASON FOR RETRACTION OF THE SAM E AFTER ABOUT A GAP OF TWO AND HALF MONTHS IN BLOCK ASSESSM ENT PROCEEDINGS.' (5) THE RATIO WAS LAID DOWN BY THE HON.PUNJAB & HARYANA HIGH COURT I N THE CASE OF SURENDRA KUMAR CHARANJEET KUMAR SINGH V S. CIT 282 ITR 7 8 SQUARELY APPLIES TO THE FACTS OF THIS CASE. THE APP ELLANT SURRENDE R E D CERTAIN SUM DURING THE SURVEY U/S.133A OF THE I.T. ACT. THE ADOPTION OF GROSS PROFIT RATE BASED ON THE SURVEY WAS JUSTIFIED BY THE ITAT. THE ONUS IN SUCH CASES FALLS ON THE ASSESSEE AND NOT ON THE REVENUE TO SUBSTANTIATE ITS CLAIM. ITA 7597/M/12 12 (6) IT IS WORTH TO MENTION HERE THAT THE DECISION O F PUNJAB & HARYANA HIGH COURT IN THE CASE OF BACCHITARSINGH VS . CIT 328 ITR 400. THE HEAD NOTE IS AS UNDER::- THE ASSESSEE IN THE COURSE OF SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 GAVE A STATEMENT ON MARCH 21, 2003 SU RRENDERING FOR TAXATION A SUM OF RS. 19 LAKHS. HE STATED THAT HE HAD PURCHASED A SHOP FOR RS. 24 LAKHS JOINTLY WITH HIS BROTHER AND THE SOURCE OF INVESTMENT WAS NOT REFLECTED IN THE BOOKS OF ACCOUN T. LATER, THE ASSESSEE SOUGHT TO RECONCILE FROM THE STATEMENT MAD E TAKING THE STAND THAT HE HAS AGRICULTURAL INCOME TO THAT EXTENT AND INVESTMENT WAS FROM THAT SOURCE. THE ASSESSING OFFICER REJECTED THE CON TENTION OF THE ASSESSEE THAT HE HAD DONE POTATO BUSINESS WHICH WAS EVIDENCED BY ENTRIES IN A DIARY FOUND DURING THE SURVEY HOLDING THAT THERE WAS A LONG GAP BETWEEN THE STATEMENT MADE ORIGINALLY ON MARCH 21, 2003 AND RETRACTION OF THE STATEMENT ON MAY 28, 2003 AND THE STAND TAKEN WAS AN AFTERTHOUGHT. THE COMMISSIONER (APPEALS) UPHELD THE PLEA OF THE ASSESSEE THAT THE EARLIER STATEMENT WAS INCORRECT A ND THE RECONCILED STATEMENT WAS SUPPORTED BY THE DIARY RECOVERED DURI NG THE SURVEY. THE TRIBUNAL REVERSED THE VIEW TAKEN BY THE COMMISSIONE R (APPEALS). ON APPEAL: HELD, DISMISSING THE APPEAL, THAT IT WAS NOT DISP UTED THAT THE STATEMENT WAS MADE BY THE ASSESSEE AT THE TIME OF S URVEY, WHICH WAS RETRACTED ON MAY 28, 2003 AND HE DID NOT TAKE ANY F URTHER ACTION FOR A PERIOD OF MORE THAN TWO MONTHS. IN SUCH CIRCUMSTAN CES, THE VIEW TAKEN BY THE TRIBUNAL THAT RETRACTION OF THE EARLIE R STATEMENT WAS NOT PERMISSIBLE, WAS A POSSIBLE VIEW. THE MERE FACT TH AT SOME ENTRIES WERE MADE IN A DIARY COULD NOT BE HELD TO BE SUFFICIENT AND CONCLUSIVE TO HOLD THAT THE STATEMENT EARLIER MADE WAS FALSE. TH E ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT WHICH MAY HAVE BEEN MAINTA INED DURING THE REGULAR COURSE OF BUSINESS OR ANY OTHER AUTHENTIC C ONTEMPORANEOUS EVIDENCE OF AGRICULTURAL INCOME. 2.3.7. THE IMPOUNDED DOCUMENT CLEARLY REVEALS THE R ECEIPT OF ON MONEY OF RS. 1.5 LAKHS PER GUNTHA AND APPELLANT COULD NOT PRODUCE ANY OTHER CONTEMPORANEOUS EVIDENCE TO DISSOLVE THE SAME. I H AVE BROUGHT OUT CLEARLY THAT THESE NOTINGS ARE ONLY ACTUAL AND NOT PROJECTIONS BASED ON THE REGISTRATIONS DONE WITH PARTIES MENTIONED I N PAGE NO . 3 & 4 OF THE D OCUMENT. THE CONTENTION OF THE APPELLANT PARTICULAR LY THE RETRACTION AND QUESTIONING THE VALIDITY OF THE STATEMENT IS DE FINITELY AN AFTERTHOUGHT WITHOUT ANY BASIS. IN VIEW OF THE ABOV E DISCUSSION, THE CLAIM OF THE APPELLANT THAT THE STATEMENT RECORDED DURING THE COURSE OF SURVEY IS INVALID, CANNOT BE ACCEPTED. 2 . 3.8 . THE NEXT OBJECTION I S THAT THE CASH COMPONENT WAS NOT RECORDED ITA 7597/M/12 13 IN THE REGULAR BOOKS OF ACCOUNTS . IN THIS REGARD I WOULD LIKE TO POIN T OUT THE DISCUSS I ON I N PARA 2 . 3 . 3 TO 2 . 3 . 6 WHERE IT HAS BEEN PROVED BEYOND DOUBT THAT CASH WAS RECEIVED B Y THE APPELLANT. FURTHER IN THE STATEMENT ITSELF THE PROPRIETOR ADMITTED TO COLLECT ING THE CASH WH I CH IS NOT ACCOUNTED . HENCE WHERE I S THE QUESTION OF ACCOUNT I NG THE SAME IN THE R EGULAR BOOKS. . 2 . 3.9 . THE APPELLANT HAD FU R N I SHED THE COPIES OF REP L Y F IL ED BY THE BUYERS OF T H E PLOT IN RESPONSE TO NOT I CE I SSUED U/S . 133(6 ) AND THE STATEMENT RECORDED BY TH E ASSESS I NG OFFICER I N FEW CASES U/S . 131 OF THE INCOME TAX ACT ALONG WITH T H E SUBM I SS I ON . I HAVE PERUSED T H E SAME . THE ASSESS I NG OFF I CER HAD DEVICED A STANDA R D FORMAT CALLING FO R THE DETAILS . A SAMPLE OF NOTICE U/S . 133 ( 6 ) I SSUED TO SHRI MUKES H 0 PATE L I S AS U N D ER- ' YO U ARE HEREBY REQU I RED T O F URNI SH THE FOLLOWING I NFO R MA TI ON DU L Y VERIFIED REGARD IN G THE TRANSACTIONS AS R EF L ECTED I N YOUR BOOKS OF ACCO U NTS FOR A.Y . 2009-10 I .E . F .Y . 200B-09 : 1. NATURE OF TRANSACT I O N S ENTERED INTO WITH THE ABOVE SA I D ASSESSEE 2. COPY OF L EDGER ACCOUN T OF THE SAID ASSESSEE I N YO UR BOOKS . 3. AMOUNT PA I D / PAYAB L E , R ECEIVED/RECEIVABLE A L ONG W IT H THE DATE AND MO DE OF PAYMENT ( CASH / CHEQUE W I TH DATE) 4. COPY OF THE B ILL /S 5. COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED B Y YOU WITH COP Y O F BALANCE SHEET FO R A. Y . 2009-10 . ' T H E ABOVE DETA IL S W ERE C A L LED FOR BY THE ASSESSING OF FI CE R IN A GENERA L AND R O UTINE MA N NER W I THOUT SPEC I F I CA LLY CA LLI NG FOR WHETHE R EAC H O F TH E BUY E R H AD PA I D AN Y C A S H OVE R AND ABOVE T H E R EG I STE R E D V A LU E . IN THE ABSENCE O F S U C H S P ECIFIC Q UER Y , T HE ENT IRE ACT I ON OF THE ASSESS I NG OFF I CE R I .E . THE I NFORMATION C O LL EC T ED U/ S .1 33 ( 6 ) TO MY V I E W NEED NOT BE TAKEN COGNIZA N CE OF . I N VIEW OF THIS , THE OB J ECT I ON OF TH E APPELLANT T HA T ENQUIR I ES HAVE BEEN DONE AND N ONE OF THE BUYERS ADMITTED PAYMENT OF CAS H COMPONENT IS NOT TENABLE . 2 . 3.10 . FURTHER , IT IS THE OBJECTION OF THE APPELLANT THAT THE ITO W HO HAD CONDUCTED SURVEY DID NOT PRODUCE ANY AUTHORITY TO CONDUCT SURVEY U /S . 133A AND COPY OF THE PERMISSION FROM THE JT.CIT WAS NOT GIVEN TO THE APPELLANT DESPITE OF HIS DEMAND . IT IS TO BE SUBMITTED IN THIS REGARD THAT AS PER SECTION 133A OF THE INCOME TAX ACT , THE INCOME TAX AUTHORITY CAN CARR Y OUT SURVEY U/S . 133A IN RESPECT OF THE BUSINESS PREMISES WHERE HE IS AUTHORIZED TO DO SO . THE EXPLANATION TO SECTION 133A GIVES THE DEFINIT I ON FOR INCOME TAX AUTHOR I TY WHICH INCLUDES AN ASSESSING OFFICER AND HENCE WHEN THE AS SESSING OFFICER HIMSELF CARRIES OUT THE SURVEY , THERE IS NO NEED FO R A NY INDEPENDENT AUTHORIZATION . THE OBJECTION OF THE APPELLANT CAN BE CONSIDERED IF A N INSPECTOR CARRIES OUT THE SURVEY I N WHICH CASE HE NEEDS AN AUTHORIZATION FROM T H E ASSESSING OFFICER OR JT.CIT / ADD I .C I T TO CARRY ITA 7597/M/12 14 OUT SUCH ACTION . 2 . 3 .11. FURTHER IT IS THE CONTENTION OF THE APPELLANT IN PA RA 18 OF THE SUBM I SS I O N THAT OUT OF 55 PLOTS , REGISTRAT I ON WE R E CARRIED OUT ONLY IN 41 PLOTS DURING THE YEAR AND 14 OF THE AGREEMENTS W ERE CANCE LL ED AND THERE IS NO QUESTION ASSESSING THE ON MONE Y O N THESE UNSOLD PLOT OF LAND . I T WAS SUBMITTED THAT THE VALUE OF THE UNSO LD PLOTS RS.5,46 , 87 , 293/- FOR 586 . 54 GUNTHAS WERE ADM I TTED AS C L OSING STOCK ON 31 . 3 . 2009 . 2 . 3 . 1 2 . AS D I SCUSSED ABOVE , THE IMPOUNDED DOCUMENT ' SUNDARAM ' REG I STE R CO NT A I NS DETAILS OF ON MONEY RECE I VED IN RESPECT OF 55 PARTIES WHICH APPELLANT HIMSE LF HAD ADMITTED AT THE TIME OF SURVEY . I HAVE ALSO GIVEN A CLEAR FINDING IN THE ABOVE PA R A THA T T HE IMPOUNDED BOOK CONTA I N T H E DETAILS OF ACTUAL SALE AND ON MONEY RECE I VED A ND THE Y ARE NOT PROJECTIONS AS A L LEGED BY THE APPELLANT.. DUR I NG THE COURSE OF HEARING T HE AR WAS SPEC I FICALLY DIRECTED TO F I LE DOCUMENTARY EVIDENCE SUCH AS COPY OF THE DEE D OF CANCELLATION AND PROOF TO SHOW THAT THE AMOUNT COLLECTED WAS RETURNED BACK TO THE CO N CERNED PARTIES . IT WAS I NFORMED BY THE AR THAT THERE WAS NO AGREEMENT EN T E RED INTO W I TH THESE 1 4 PART I ES F O R GE T TING IT CANCELLED , BU T THE ADVANCE TAKEN WAS S IMP LY R ETURNED . HE WAS NOT ABLE T O F U R NI SH ANY DOCUMENTA RY PROO F REGA R D I NG THE CANCEL L A TIO N . T HI S SUBMISSION OF T H E A U T H O RI ZED REPRESENTATIVE WAS NOTED BY ME I N THE ORDER S H E E T . THE ALLEGED CANCELLATION IN RESPECT OF THESE 14 PARTIES BY THE APPEL L ANT IS CLEARLY A N A FTE RT HOUGHT BECAUSE NO EVIDENCE T O THIS EFFECT WAS FOUND DUR I NG THE COURSE OF SURVEY. IT WAS AN EVENT ALLEGED TO HAVE OCCURRED AFTER THE SURVEY BUT WITHOUT ANY DOCUMENTARY EVIDENCE. H ENCE THE CONTENTION OF THE APPELLANT IS NOT TENABLE. IN VIE W OF THE DETAILED DISCUSSUION ABOVE THE ACTION OF THE A.O. IN ADDING RS. 1,21,24,500/- AS UNDISCLOSED INCOME IS CONFIRMED AND THIS GROUND OF APPEAL IS DISMISSED. 4. IT WAS ARGUED BY THE LD. A.R. THAT THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS. 1,21,24,500/- BASED ON THE STAT EMENT RECORDED ON OATH INSOFAR AS THE STATEMENT WAS SUBSEQUENTLY RETRACTED . AS PER THE LD. A.R., THE ACTION OF THE SURVEY TEAM AS WELL AS THE A.O. I S CONTRARY TO THE CBDT CIRCULAR DATED 10-03-2003 WITH REGARD TO THE CONFES SION OF ADDITIONAL INCOME DURING THE COURSE OF SEARCH AND SURVEY. IT WAS ALSO CONTENDED BY THE LD. A.R. THAT THE STATEMENT WAS OBTAINED UNDER DURESS. AS PER THE LD. A.R., THERE WAS NO CORROBORATIVE EVIDENCE TO PROVE THE ADDITIONS SO MADE BY THE A.O. INSOFAR AS BOOKS OF ACCOUNT WERE NOT FOUND DEFECTIVE. NO UNDISCLOSED CASH OR INVESTMENT WAS FOUND. IT WAS S UBMITTED BY THE LD. A.R. ITA 7597/M/12 15 THAT THE ASSESSEE IS A SEMI LITERATE PERSON STUDIED UPTO 12 TH STANDARD IN HINDI MEDIUM. THE STATEMENT WAS RECORDED IN ENGLIS H WHICH CLEARLY SHOWS THAT THE ASSESSEE CANNOT GIVE SUCH REPLIES IN ENGLI SH. IT WAS ALSO THE CONTENTION OF THE LD. AR THAT IN ADDIT I ON TO THE VER I F I CAT I O N OF BOOKS OF ACCOUNT AND OTHER RECO R DS , THE AO MADE FURTHER ENQU I R I ES F R OM TH I RD PARTIES TO F I ND OUT THE CORRECT N ESS A ND A U THENT I CITY OF THE TRANSACT I ONS OF THE APPELLANT . IN O R DE R TO SA TI SFY H I MSE L F R E L A TING T O PURCHASE MADE BY THE APPELLANT , THE AO TOOK P R OCEED I NGS U/S 133 ( 6 ) OF THE ACT IN CASE OF FEW SELECTED SUPPLIERS. SIMILARLY , IN ORDER TO VERIFY THE CONSTRUCT I O N COST RECEIVED , THE AO ISSUED NOTICE U/S 133(6) OF THE ACT TO A FEW PERSONS A N D COLLECTED INFORMATION . FURTHER , TO OBTAIN INFORMATION R EGARDING ACTUAL SA L E PRICE O F T HE PLOTS , THE I D AD ISSUED S U MMON TO A FEW CUSTOMERS U/S 131 OF THE ACT A ND TH EIR STATEMENTS WERE R ECO R DED . NO DEFECT OR D I SCREPA N CY WAS FOUND I N T H ESE PR OCEED I NGS . THE PURC H ASE R S OF THE P L OTS WHO APPEARED BEFORE THE A.O. C L EA RLY STATED THAT A LL PAYMEN T S WE R E MADE BY THEM BY ACCO UN T PAYEE CHEQUE AND I N SUPPORT O R THE I R CONTENT I ON COP I ES OF THEIR PASS BOOK WE R E P R ODUCED BEFORE THE A.O. EVERYBODY CLEA R L Y MENT I ONED THAT THERE WAS NO E L EMENT OF CASH I NVOLVED IN T HE TRANSACTIONS OF PURCHASE OF PLOTS BY THEM. 5. AGAINST THE PRESUMPT I O N OF EXTRA CASH RECE I VED & ADD I T I ON TO THE SALE PRICE OF TH E PLOTS @RS . 1 , 50 , 000/-- PE R GUNTHA FOR 80 , 83 GUNTHAS AMOUNT I NG TO RS . 1 , 21 , 24 , 500 1 - AS A LL EGED B Y THE A.O. , THE APPE LL ANT P R ODUCED REG I S T ERED SA L E DEEDS OF AL L THE SA L ES R EG I STERED DURING THE YEA R, AG R EEMENT OF SA L E FOR U NREGISTERED SALE AND DE T A IL S OF CANCELLED SALE FOR WHICH NO AMOUNT WA S R ECEIVED . THE SU R VEY TEAM AS WELL AS THE ID AD P R ESU M ED THAT CASH ELEME NT FOR EACH PLOT WAS RECE I VED BY THE APPELLANT . THE A.O. DID NOT OBJECT THE P RICE MENT I ONED IN THE REGISTERED SALE DEED WHERE STAMP D UT Y AS PER VALUE DETE R M IN E D B Y THE COMPETENT AUT H OR ITY WAS PAID . THUS , THERE WAS N O I OTA OF DOUBT TH A T S ALE O F PLOTS WAS MADE A T T HE M ARKET VALUE OF THE P L OTS IN THE SPEC I F I ED A R EA AND STAMP DUTY WAS PA I D AF T E R OBTA I N I NG PERM I SS I O N OF TH E ITA 7597/M/12 16 COMPETEN T A U T H O RITY R EGARDING VA L UE OF THE P L O T S . T H US , THERE IS NO I SSUE O F SUPPRESS I O N O F SA L E P RICE OF THE PLOTS AND THE APPE LL A NT RECORDED THE ACTUA L PR I CE R ECE I VED BY HIM IN THE BOOKS OF ACCOUNT AND THERE I S NO , I SSUE OF ANY AMOUN T OF CASH E L EME NT R ECE IVED BY THE APPELLANT I N EXCESS OF THE SALE PR I CE DISCLOSED IN T HE BOOKS OF ACCOUN T . IF THE CASH ELEMENT OF RS . 1 , 50 , 000/- PER GUNTHA I S ADDED T O THE PR I CE OF PLOTS, THE RESULTANT FIGURE OF SALE WOULD BE UNBELIEVABLE AND UNACCEPTABLE COMPARED TO THE MARKE T VALUE OF PLOTS IN THAT AREA. IT CLEARLY SHOWS THAT THE ACTUAL MARKET PRIC E WAS DISCLOSED BY THE ASSESSEE WHICH WAS ALSO ACCEPTABLE TO THE STAMP DUT Y AUTHORITIES. IT ESTABLISHES THAT THE ADDITION MADE BY THE A.O. WAS BASED ON CONJECTURE AND SURMISE. HENCE, THE ADDITION IS LIABLE TO BE DELET ED. 6. IT WAS ALSO CONTENDED BY THE LD. A.R. THAT THE A SSESSEE IS A MIDDLEMAN . THE APPELLANT PURCHASES LAND UNDE R A MEMORANDUM OF UNDERSTANDING AND AFTER MAKING AND DEVELOP I NG PLOTS , HE SELLS THE P L OTS AND EARN PROFIT. . THUS , THERE IS SALE AND PURCHASE R AT I O AND SEL L ER OF THE LAND TO THE APPELLANT ARE NOT STUP I D ENOUGH TO SALE THE P I ECE OF L AND AT THROW AWAY PRICE TO ALLOW THE APPEL L ANT TO EARN ENORMOUS PROF I T. HENCE , ELEMEN T OF CASH OF RS.1 , 50 , 000/- PER GUNTHA OF SALE CANNOT BE A REALITY I N A SENSITIVE AND HIGHLY COMPETITIVE MUMBA I SUBURB MARKET. THUS , THE ALLEGAT I ON OF THE SURVEY TEAM AND THE AO IS NOT BASED ON FACTS . 7. ON THE OTHER HAND, THE LD. D.R. RELIED ON THE OR DER OF LOWER AUTHORITIES AND CONTENDED THAT THE INCOME OF RS. 1,21,24,500/- WAS SURRENDERED ONLY ON THE BASIS OF DOCUMENTS IMPOUNDED DURING THE COUR SE OF SURVEY, WHEREIN THE ASSESSEE WAS FOUND TO BE IN RECEIPT OF ON MONE Y OF RS.1,50,000/- PER GUNTHA IN RESPECT OF LAND SOLD BY HIM. ACCORDINGLY HE ARGUED FOR CONFIRMING THE ADDITION MADE BY THE LOWER AUTHORITIES. 8. WE HAVE CONSIDERED THE RIVAL CONTENTION CAREFULL Y GONE THROUGH THE ITA 7597/M/12 17 ORDERS OF AUTHORITIES BELOW AND ALSO DELIBERATED UP ON THE JUDICIAL PRONOUNCEMENTS CITED AT BAR BY THE LD. A.R. AS WELL AS JUDICIAL PRONOUNCEMENTS REFERRED BY BOTH THE LOWER AUTHORITI ES IN THEIR RESPECTIVE ORDERS, WITH REFERENCE TO THE FACTUAL MATRIX OF THE INSTANT CASE. FROM THE RECORD WE FOUND THAT DURING THE COURSE OF SURVEY, T HE ASSESSEE WAS FOUND TO BE IN RECEIPT OF ON MONEY IN RESPECT OF SALE OF I NDUSTRIAL PLOT OF LAND. ON THE BASIS OF SEIZED MATERIAL, THE A.O. COMPUTED THE ON MONEY RECEIVED BY THE ASSESSEE AMOUNTING TO RS. 1,50,000/- PER GUNTHA. T HE STATEMENT OF THE ASSESSEE WAS ALSO RECORDED WHERE HE AGREED FOR RECE IPT OF ON MONEY WHICH HAS NOT BEEN ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT. IN THE STATEMENT, THE ASSESSEE ALSO SURRENDERED CASH COMPONENT OF RS. 1,21,24,500/- AS ADDITIONAL INCOME IN ADDITION TO ITS REGULAR INCOME SHOWN IN THE BOOKS OF ACCOUNT. SINCE THE CASH ENTRIES APPEARING IN THE N OTE BOOK FOUND DURING THE COURSE OF SURVEY AND INVENTORISED BY THE DEPARTMENT WERE NOT ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE A SSESSEE, THE A.O. ADDED THE SAME WHILE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT. IT IS PERTINENT TO MENTION THAT THE STATEMENT OF THE ASSESSEE WAS R ECORDED ON OATH IN THE PRESENCE OF ASSESSEES AUTHORISD REPRESENTATIVE SHR I M.A. SIDDIQUI WHEREIN HE AGREED FOR SURRENDER OF ON MONEY RECEIVED IN CASH W ITH RESPECT TO THE SALE OF VARIOUS PLOTS OF LAND AS PER THE NOTE BOOK NAMELY TRUE FRIENDSHIP (SUNDARAM) WHICH WAS INVENTORISED AT SL. NO. 1. EV EN DURING THE COURSE OF ASSESSMENT PROCEEDING, COPY OF THE REGISTER TRUE F RIEND (SUNDARAM) WAS GIVEN TO THE ASSESSEE, HOWEVER, THE ASSESSEE COULD NOT CONTROVERT THE SAME. THE A.O. HAS MENTIONED IN HIS ORDER IN DETAIL THE S URVEY NUMBER AND THE AREA IN EACH SURVEY WHICH WAS PLOTTED AND SOLD ON WHICH THE ASSESSE WAS IN RECEIPT OF ON MONEY. THE IMPOUNDED DOCUMENTS CLEA RLY SHOWS THAT THE ASSESSEE HAD RECEIVED RS. 1,50,000/- PER GUNTHA BY WAY OF CASH ON SALE OF PLOTS. THE A.O. HAS REPRODUCED THE ENTRIES IN THE P AGE NO. 3 & 4 OF THE IMPOUNDED DOCUMENTS IN HIS ASSESSMENT ORDER. WITH RESPECT TO SURVEY NO. 141, THE TOTAL AREA SOLD WORKED OUT TO 10.78 AND 13 .69 GUNTHAS RESPECTIVELY. ITA 7597/M/12 18 THE ASSESSEE HAD ALSO MENTIONED DATES ON WHICH THES E DOCUMENTS WERE REGISTERED. A SPECIFIC QUESTION WAS ASKED DURING T HE COURSE OF SURVEY WHICH WAS RELATED TO PAGE NO. 1 IN RESPECT OF SALE OF 4.6 3 GUNTHAS TO FOUR PERSONS. ON THE BASIS OF THESE IMPOUNDED DOCUMENTS, PROPRIET OR SHRI ASLAM CHAND KHAN HAD AGREED THAT RS. 1.5 LACS IN THE ABOVE NOTI NG INDICATES THE CASH COMPONENT RECEIVED OVER AND ABOVE THE REGISTRATION CHARGES FROM INDIVIDUALS TO WHOM THE LAND WAS SOLD. EVEN BEFORE THE LD. CIT (A), FULL OPPORTUNITY WAS GIVEN TO THE ASSESSEE, HOWEVER, NOTHING WAS BROUGHT ON RECORD BY THE ASSESSEE WITH REGARD TO THE ACTUAL RECEIPT OF ON MO NEY. THE LD. CIT(A) HAS ALSO DEALT WITH THE ASSESSEES CONTENTION REGARDING PROJECTIONS AND NOT ACTUAL, AFTER RECORDING DETAILED FINDING AND THE LD. CIT(A) REACHED TO THE CONCLUSION THAT NOTE BOOK CONTAINED THE DETAILS OF ACTUAL AND IT IS NOT PROJECTIONS AS CLAIMED BY THE ASSESSEE. THE LD. CIT(A) HAS ALSO DE ALT WITH VARIOUS JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS CONTENTION THAT ME RE RETRACTION OF THE STATEMENT BY FILING THE AFFIDAVIT IS NOT AN ACCEPTA BLE EVIDENCE IN THE EYES OF LAW. THE LD. CIT(A) HAS DEALT WITH EACH AND EVERY O BJECTION OF THE ASSESSEE WITH REGARD TO THE FINDINGS RECORDED BY THE A.O. AN D AFTER CONSIDERING THE SAME, HE CONFIRMED THE FINDINGS RECORDED BY THE A.O . TO THE EFFECT THAT THE ASSESSEE HAS ACTUALLY RECEIVED ON MONEY WHICH WAS O VER AND ABOVE THE AMOUNTS IN THE BOOKS OF ACCOUNT. THE DETAILED FIND INGS RECORDED BY THE LOWER AUTHORITIES COULD NOT BE CONTROVERTED BY THE LD. A. R. BY BRINING ANY COGENT MATERIAL ON RECORD. ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS RECORDED BY THE LOWER AUTHORITIES WITH RESPECT TO THE ADDITION OF RS. 1,21,24,500/- ON ACCOUNT OF ON MONEY RECEIVED O N SALE OF PLOTS WHICH HAS NOT BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. ITA 7597/M/12 19 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH FEB. 2015 !' # $% &! ' 6-2-2015 ( ) SD/- SD/- (SANJAY GARG) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 5 MUMBAI ; &! DATED [ .6../ RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 7 () / THE CIT(A) 34,, MUMBAI 4. 7 / CIT -24, MUMBAI 5. :;( 66<= , <= , $ 5 / DR, ITAT, MUMBAI A BENCH 6. (?@ A / GUARD FILE. ' / BY ORDER, : 6 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 5 / ITAT, MUMBAI