ACIT, Cent. Cir., Aurangabad V. Gangamai Industries & Construction Ltd., Aurangabad

ITA 809/PUN/2011

• Counselvise Citation: 80924514 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RA J IV HARIT
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Loose papers
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 809/PN/2011 (ASSESSMENT YEAR 2008-09) ACIT CENTRAL CIRCLE, AURANGABAD. .. APPELLANT VS. GANGAMAI INDUSTRIES & CONSTRUCTION LTD, 2 ND FLOOR, TAPDIA TERRACES, ADALAT ROAD, AURANGABAD .. RESPONDENT PAN NO. AABCG 2199Q ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI RAJIV HARIT DATE OF HEARING : 24-07-2013 DATE OF PRONOUNCEMENT : 30-07-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDERS DATED 07-03-2011 OF THE CIT(A), AURANGABAD RELATING TO ASSESSMENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF WHITE SUGAR AND CIVIL CONSTRUCTION. THE ASSESSEE FILED ITS RETURN OF INCOME ON 06-10-2008 DECLARING TOTAL INCOME AT RS.4,21,60,281/-. A SEAR CH ACTION U/S.132 OF THE I.T. ACT WAS CONDUCTED AT THE RESIDENTIAL AS WE LL AS BUSINESS PREMISES OF THE DIRECTORS OF THE COMPANIES OF MULAY GROUP. DURING THE SAID SEARCH CERTAIN DOCUMENTS RELATING TO THE ASSESSEE C OMPANY WERE ALSO FOUND FOR WHICH THE ASSESSING OFFICER INITIATED PRO CEEDINGS U/S.153C IN 2 THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER CO MPLETED THE ASSESSMENT U/S. 143(3) R.W.S. 153C ON A TOTAL INCOM E AT RS.4,74,05,914/- AS AGAINST RS.4,21,60,281/- RETURNED BY THE ASSESSE E. THE ASSESSEE DID NOT CHALLENGE THE ADDITION OF RS.9,10,633/- ON ACCO UNT OF 40(A)(IA), AND DISALLOWANCE OF RS.3,35,000/- AND RS.4,00,000/- RES PECTIVELY OUT OF EXPENSES. IT, HOWEVER, CHALLENGED THE ADDITION OF RS.36 LAKHS ADDED BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INV ESTMENT. 2.1 FACTS LEADING TO ADDITION OF THIS RS.36 LAKHS I S THAT DURING THE COURSE OF SEARCH ACTION CERTAIN LOOSE PAPERS VIDE S L.NO.46 TO 51 ON ANNEXURE A1 WERE SEIZED. THE SEIZED PAPER IS NOTHI NG BUT AN 'ISAR PAWATI' DATED 10/11/2006 FOR PURCHASE OF LAND AT KA NCHANWADI BY THE ASSESSEE FROM SHRI EKNATH B KAMBLE AND OTHERS FOR A N AMOUNT AT RS.1,70,00,000/-. AS PER THE CONTENTS OF THESE PAPE RS, THE ASSESSEE HAS PAID RS.50,01,000/- COMPRISING OF PAYMENT BY WAY OF CHEQUE AT RS.15 LAKHS AND BALANCE RS.35,01,000/- BY WAY OF CASH. ON BEING CONFRONTED, THE ASSESSEE DISCLOSED RS.35 LAKHS AS BEING PAID OU T OF UNDISCLOSED SOURCES AND ACCORDINGLY OFFERED RS.35 LAKHS AS ADDI TIONAL INCOME IN THE RETURN OF INCOME FILED U/S 153C. DURING THE COURSE OF SEARCH ACTION, AT 2 ND FLOOR, TAPDIYA TERRACE, ADALAT ROAD, AURANGABAD, T HE OFFICE PREMISES OF MULAY BROTHERS LTD., A SISTER CONCERN O F THE ASSESSEE, CERTAIN LOOSE PAPERS VIDE ANNEXURE A-2 WERE SEIZED. VIDE TH ESE PAPERS THE ASSESSEE HAS PURCHASED THE LAND AT KANCHANWADI FROM SHRI EKNATH B. KAMBLE AND OTHERS FOR AN AMOUNT AT RS.75 LAKHS BY E XECUTING REGULAR PURCHASE DEED DATED 17/07/2007. THUS, THE COMBINED READING OF THE SEIZED PAPERS VIDE (I) & (II) ABOVE SHOWS THAT THE ASSESSEE HAS ACTUALLY 3 INVESTED RS.1,70,00,000/- AS AGAINST THE PURCHASE P RICE AT RS.75 LAKHS AS PER THE REGISTERED DOCUMENT. ON BEING QUESTIONED B Y THE AO IT WAS EXPLAINED THAT THE PROPOSED DEAL AT RS.1.70 CRORE A S PER ISSAR PAWATI WAS SUBSEQUENTLY MODIFIED TO RS.1.34 CRORES ON ACCOUNT OF RESERVATION OF SOME PORTION OF THE LAND WHICH CAME TO NOTICE SUBSE QUENT TO THE EXECUTION OF ISSAR PAWATI DATED 10-11-2002. TO SUP PORT THE ABOVE CONTENTION, A COPY OF THE COMPROMISE DEED WHICH WAS DULY NOTARISED WAS FILED. 2.2 HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIE D WITH THE ARGUMENTS ADVANCED FOR THE FOLLOWING REASONS : THE EXPLANATION SO FILED IS NOT ACCEPTABLE IN THE SENSE THAT (I) DURING THE COURSE 'OF SEARCH ACTION THE INITIAL DOCUMENT I.E. ISAR PAWATI 10/11/2006 AND ITS CONSEQUENTIAL FINAL DEED DATED 17/07/2007 I S FOUND IS SEIZED, (II) THE SO CALLED COMPROMISE DEED BEING OF THE MIDDLE P ERIOD, I.E. DATED 06/04/2007 WAS NOT FOUND AND SEIZED DURING THE SEAR CH ACTION. HAD IT BEEN THE REALITY, IT WOULD HAVE BE DEFINITELY FOUND AND SEIZED BY THE DEPARTMENT IN SEARCH ACTION 10/10/2007. (III) FURTH ER, WITHOUT PREJUDICE TO WHAT IS STATED IN (II) ABOVE. (A) ONE OF THE DIRECTOR SHRI SAMEER MULAY VIDE ANS WER TO QUESTION TO NO. 3 OF THE STATEMENT DATED 10/10/2007 RECORDED BY PARTY NO.7, IN THIS REGARD, HAS STATED THAT THE ISAR PAWATI SEIZED VIDE PAGE NO.46 TO 51 OF ANNEXURE A-1, IS A DOCUMENT FOR A PROPOSED DEAL TO PURCHASE THE LAND FOR RS. 1.70 CRORE OUT OF WHICH RS.35,01,000/- IS PAID BY CASH AND RS.15,00,000/- BY WAY OF CHEQUES. ACCORDINGLY, THE CASH PAYMENT AT RS.35,01,000/- BEING UNRECORDED IS DECLARED AS ADDI TIONAL INCOME U/S. 132(4) AND OFFERED TO TAX U/S.153C FOR A.Y. 2007-08. (B) ONE OF THE MAIN MEMBER OF THE FAMILY NAMELY SH RI PADMAKAR MULAY OF WHOSE STATEMENTS WERE RECORDED DURING SEARCH ACT ION U/S. 132(4) AND IN POST SEARCH ENQUIRIES IN NOVEMBER' 2007, HAS NEVER BROUGHT TO NOTICE OF THE DEPARTMENT BEING THE ASPECT OF SO CALLED COMPRO MISE DEED. (C) HAD IT BEEN THE CASE THAT, THE COMPROMISE DEED DATED 06/04/2007, WHICH FALLS IN THE MIDDLE PERIOD BETWEEN THE EXECUT ION OF THE ISAR PAWATI IN NOVEMBER, 2006 AND EXECUTION OF PURCHASE DEED IN OC TOBER, 2007 HAD BEEN REALLY EXECUTED OR ENTERED INTO, THERE IS NO R EASON FOR THE ASSESSEE TO HIDE IT FROM THE DEPARTMENT AND TO ADMIT THE 'IS AR PAWATI' FOR THE RS.1,70,00,000/- INSTEAD OF RS.1,34,00,000/- AS PER THE COMPROMISE DEED. (D) DURING THE COURSE OF SEARCH, AND POST SEARCH E NQUIRES IN THE STATEMENTS RECORDED AN OPPORTUNITY WAS GIVEN THE DE PONENT TO THE EFFECT THAT WHETHER THE DEPONENT WAS TO SAY ANYTHING MORE OF HIS OWN. EVEN AT THAT STAGE ALSO SHRI PADMAKAR MULAY, PERSONS OF THE FAMILY AND SHRI SAMEER MULAY, DIRECTOR OF THE ASSESSEE COMPANY KEPT SILENCE ON THE ISSUE OF SO CALLED COMPROMISE DEED. 4 2.3 THE AO, THEREFORE, CAME TO THE CONCLUSION THAT THE SOCALLED COMPROMISE DEED IS AN AFTERTHOUGHT STORY. CONSIDER ING THE DISCLOSURE MADE BY THE ASSESSEE U/S.132(4) AT RS.35 LAKHS FOR A.Y. 2007-08 AND RS.24 LAKHS FOR A.Y. 2008-09, THE AO ADDED THE BALA NCE RS.36 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE FOR A.Y. 2008-09. 3. BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT TH E VALIDITY OF THE COMPROMISE DEED WHICH HAS BEEN EXECUTED BY TWO PERS ONS AND DULY SIGNED BY WITNESSES WHICH IS ON STAMP PAPER AND WHI CH IS DULY NOTARISED CANNOT BE REJECTED ONLY ON THE BASIS THAT THE SAME WAS NOT FOUND IN THE SEARCH ACTION ON SISTER CONCERNS. THE A.O. HAS NOT MADE ANY ENQUIRY OR VERIFICATION OF THE SELLER OF THE LAND OR WITNESSES , NOTARY OR STAMP VENDOR BEFORE REJECTING THE COMPROMISE DEED. THE A.O. HAS IGNORED THE FACT THAT THE SAID COMPROMISE DEED ENTERED INTO BY THE ASSESS EE CAN BE WITH THE ASSESSEE COMPANY WHICH WAS NOT SEARCHED U/S. 132 OF THE ACT. THE SEARCH PARTY DURING SEARCH ACTION AND POST SEARCH ENQUIRIE S HAS NEVER ASKED THE ASSESSEE TO EXPLAIN THE DIFFERENCE BETWEEN THE CONS IDERATION STATED IN THE SALE DEED AND ISSAR PAWATI. AS NO SPECIFIC QUESTION IN THIS REGARD WAS ASKED, THE ASSESSEE COMPANY OR ITS DIRECTORS HAVE N OT MENTIONED ANYTHING IN REGARD TO COMPROMISE DEED DATED 06-04-2007. THE SAID COMPROMISE DEED WAS ENTERED INTO FOR THE BONAFIDE REASON THAT OUT OF TOTAL LAND OF 5 ACRES, LAND ADMEASURING 1.5 ACRES WAS IN NO DEVELOP MENT ZONE AND WAS RESERVED FOR GARDEN ETC. CONSIDERING THE FACT THA T THE PURCHASE RATE OF LAND WAS RS.34,00,000/- PER ACRE, THE CONSIDERATION FOR RS.1.5 ACRE LAND WORKS OUT TO RS.51,00,000/-. THEREFORE, COMPROMISE DEED WAS ENTERED 5 INTO FOR REDUCTION OF AGREED CONSIDERATION OF RS.36 ,00,000/-. THE ONLY EVIDENCE FOUND IN SEARCH ACTION WAS IN RESPECT OF C ASH PAYMENT OF RS.35,00,000/- AND NO EVIDENCE WAS FOUND IN RESPECT OF CASH PAYMENT OF RS.24,00,000/-. THE ASSESSEE HAS VOLUNTARILY AND C ONSIDERING THE ACTUAL FACTS AND COMPROMISE DEED HAS OFFERED RS.24,00,000/ - TO TAX. THE AO HAS ACCEPTED THE INCOME OFFERED TO TAX BY THE ASSES SEE WITHOUT ANY EVIDENCE OF PAYMENT OF RS.24,00,000/-. HOWEVER, TH E AO HAS NOT ACCEPTED THE FACT THAT NO PAYMENT OF RS.36,00,000/- HAS BEEN MADE FOR WHICH EVIDENCE IN THE FORM OF NOTARISED AGREEMENT I S AVAILABLE. 3.1 THE DECISION OF HON'BLE KERALA HIGH COURT IN TH E CASE OF CIT VS. SMT. K.C. AGNES REPORTED IN (2003) 262 ITR 354 WAS RELIED UPON TO THE PROPOSITION THAT IT IS NOT NECESSARY THAT THE PRICE STATED IN AGREEMENT TO SALE WILL BE THE PRICE SHOWN IN THE SALE DEED SUBSE QUENTLY EXECUTED. 4. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE LD.CIT(A) DELETED THE ADDITION BY HOLDING AS UNDER : 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE, THE ASSESSMENT ORDER OF THE A.O. AND THE SUBMISSION OF THE APPELLANT. ON PERUSAL OF THE SAME, THE FOLLOWING FACTS HAVE BE EN NOTED : (I) NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROV E THAT THE DULY NOTARISED COMPROMISE DEED DATED 06-04-2007 WAS NOT GENUINE AND THE SAME WAS PREPARED AFTERWARDS. (II) THE A.O. HAS NOT CONSIDERED THE FACT THAT SEA RCH ACTION WAS NOT CARRIED OUT AGAINST THE APPELLANT CO MPANY AND HENCE THERE IS EVERY POSSIBILITY THAT THE COMPR OMISE DEED COULD HAVE BEEN WITH THE APPELLANT COMPANY. (III) THE APPELLANT HAS OFFERED TO TAX RS.24,00, 000/- ON ACCOUNT OF UNDISCLOSED/ PAYMENT FOR PURCHASE OF LAN D ON THE BASIS OF COMPROMISE DEED THOUGH NO EVIDENCE IN RE SPECT OF ACTUAL PAYMENT OF THE SAME WAS FOUND. THE A.O. HAS 6 ACCEPTED THE INCOME OFFERED TO TAX OF RS.24,00,000/ -, HOWEVER, HAS NOT ACCEPTED THE COMPROMISE DEED. (IV) THE RATIO LAID DOWN BY THE DECISION OF HON'BL E KERALA HIGH COURT IN THE CASE OF CIT VS. SMT. K.C. AGNES ( 2003) 262 ITR 354 IS APPLICABLE TO THE CASE OF THE APPELLANT. IN THE SAID CASE, THE AGREEMENT TO PURCHASE A LAND @ RS.12,951/ - PER CENT WAS ENTERED INTO VIDE AGREEMENT DATED 01-03-1983. O N LATER DATE THE SALE DEED WAS ENTERED INTO FOR SALE OF LAN D @ RS.8,000/- PER CENT. THE HON'BLE COURT HAS HELD TH AT UNLESS IT IS PROVED THAT THE AGREEMENT TO SALE HAS BEEN ACTED UPON, IT CANNOT BE CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. IN THE CASE UNDER APPEAL, THE APPELLANT HAS ALSO MENTIONED REASON FOR REDUCTION IN THE SALE PRICE AGREED UPON. IN VIEW OF THE ABOVE FACTS AND DISCUSSION AND RESPE CTFULLY FOLLOWING THE RATIO LAID DOWN BY HON'BLE KERALA HIGH COURT IN THE CASE OF CIT VS. SMT. K.C. AGNES (2003) 262 ITR 354 RELIED ON BY THE APPELLANT, I AM OF THE CONSIDERED VIEW THAT THE A.O. IS NOT JUST IFIED IN MAKING ADDITION OF RS.36,00,000/-. THE ADDITION OF RS.36, 00,000/- IS, THEREFORE, DELETED. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) ERRED IN HOLDING THAT THE SO CALLED COMPROMISE DEED DATED 06/04/2007 WAS IN EXISTENCE EVEN THOUGH THE SAME WA S NOT FOUND DURING THE COURSE OF SEARCH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN HOLDING THAT THE SO CALLED COMPROMISE DEED WAS GENUINE EVENTHOUGH THE ASSESSEE BROUGHT THE SAME ON RECORD AT THE FAG END OF THE ASSESSMENT PROCEEDINGS AND FAILED TO PRO VE THAT THIS DOCUMENT WAS GENUINE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN HOLDING THAT THE DECISION OF THE HON'BLE K ERALA HIGH COURT IN THE CASE OF CIT VS. SMT. K.C.AGNES (2003) 262 ITR 254 IS APPLICABLE TO THE FACTS OF THE INSTANT CASE EVENTHO UGH THE FACTS OF THE SAID CASE CAN BE DISTINGUISHED FROM THE FACTS OF TH E ASSESSEE'S CASE IN AS MUCH AS THE AGREEMENT OF SALE HAS BEEN ACTED UPON IN THE FINAL REGISTERED DOCUMENT IN THE CASE OF THE ASSESS EE WHICH WAS NOT SO IN THE CASE RELIED UPON BY THE LEARNED CIT (A). 7 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY CHA LLENGED THE ORDER OF THE CIT(A). HE SUBMITTED THAT WHEN THE C OMPROMISE DEED WAS NOT FOUND DURING THE COURSE OF SEARCH AND NOTHING W AS STATED BY THE ASSESSEE DURING THE COURSE OF SEARCH OR POST SEARCH ENQUIRIES, THEREFORE, THE VERACITY OF THE NOTARISED COMPROMISE DEED IS AN AFTERTHOUGHT AND A SELF SERVING DOCUMENT WHICH HAS BEEN RELIED UPON BY THE CIT(A) WHILE DELETING THE ADDITION. HE ACCORDINGLY SUBMITTED THAT MUCH IMPORTANCE SHOULD NOT BE GIVEN TO THE COMPROMISE DEED, WHICH I S A SELF SERVING DOCUMENT AND THE ADDITION MADE BY THE AO SHOULD BE UPHELD. 7. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND REITERATED THE SAME ARGUMENTS AS MADE BEFORE THE CIT(A). HE SUBMIT TED THAT THERE IS NO DISPUTE TO THE FACT THAT THE AGREEMENT, CANCELLA TION DEED AND THE SALE DEED ARE ALL PRIOR TO THE DATE OF SEARCH. NO QUEST ION WAS ASKED ABOUT THE DIFFERENCE DURING THE COURSE OF SEARCH OR POST SEAR CH ENQUIRIES AFTER THE ASSESSEE OFFERED AN AMOUNT OF RS.35 LAKHS. NONE OF THE PARTIES WERE CONFRONTED BY THE AO DURING THE COURSE OF ASSESSMEN T PROCEEDINGS. HE SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF K.P. VARGHESE VS. ITO REPORTED IN 131 ITR 5 97 UNLESS IT IS PROVED THAT THE AGREEMENT TO SALE HAS BEEN ACTED UP ON, IT CANNOT BE CONCLUDED THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. THE BURDEN IS ON THE REVENUE TO SHOW THAT THE ASSESSEE HAS RECEIVED MORE THAN WHAT HAS BEEN DECLARED OR DISCLOSED AS CONSIDE RATION. HE RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. P.V. 8 KALYANASUNDARAM REPORTED IN 282 ITR 259 (MAD.) TO T HE PROPOSITION THAT WHEN A PROPERTY IS PURCHASED BY THE ASSESSEE THE BU RDEN IS ON REVENUE TO PROVE THAT PRICE HAS BEEN UNDERSTATED. IN ABSEN CE OF ANY ENQUIRY AND EVIDENCE EXCEPT CONFLICTING STATEMENTS OF SELLER AD DITION CANNOT BE MADE AS UNDISCLOSED INCOME. HE ALSO RELIED ON THE DECI SION OF HONBLE KERALA HIGH COURT IN THE CASE OF SAKTHI TOURIST HOM E VS. CIT REPORTED IN 308 ITR 228. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT T HAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAS CATEGORICALLY STATED THAT THE PROPOSED DEAL AT RS.1,70,00,000/- AS PER ISSAR PAWATI HAS NO T BEEN ACTUALLY ENTERED INTO AND THE SAME HAS BEEN MODIFIED TO RS.1,34,00,0 00/- ON ACCOUNT OF RESERVATION OF SOME PORTION OF THE LAND WHICH CAME TO ITS NOTICE SUBSEQUENT TO THE EXECUTION OF ISSAR PAWATI DATED 1 0-11-2006. THE COMPROMISE DEED WHICH WAS FILED DURING THE COURSE O F ASSESSMENT PROCEEDINGS WAS A NOTARISED ONE WHICH WAS SUMMARILY REJECTED BY THE AO WITHOUT EXAMINING THE SAME EITHER BY CALLING THE PARTIES TO THE SAME OR THE NOTARY WHO HAS NOTARISED. THEREFORE, IN AB SENCE OF SUCH ENQUIRY THE AO SIMPLY CANNOT SAY THAT THE NOTARISED COMPROM ISE DEED DATED 06- 04-2007 WAS NOT GENUINE OR THE SAME WAS PREPARED AF TERWARDS. FURTHER THE RESIDENTIAL OR BUSINESS PREMISES OF THE ASSESSE E GROUP WERE NEVER SEARCHED. WE, THEREFORE, CONCUR WITH THE FINDINGS OF LD.CIT(A) THAT THERE IS EVERY POSSIBILITY THAT THE COMPROMISE DEED COULD HAVE BEEN WITH 9 THE ASSESSEE COMPANY WHICH WAS NOT SEARCHED. FURTH ER, ONCE THE AO HAS ACCEPTED THE AMOUNT OF RS. 35 LAKHS AND RS.24 LAKHS OFFERED TO TAX ON ACCOUNT OF BEING UNDISCLOSED PAYMENT ALTHOUGH NO EV IDENCE WAS FOUND, THEREFORE, WE FIND NO REASON WHY HE SHOULD NOT ACCE PT THE COMPROMISE DEED. 8.1 WE FIND THE HONBLE MADRAS HIGH COURT IN THE CA SE OF P.V. KALYANASUNDARAM (SUPRA) HAS OBSERVED AS UNDER : ASSESSMENT WAS MADE ON THE ASSESSEE UNDER SECTION 158BC OF THE INCOME-TAX ACT, 1961 FOR THE PERIOD APRIL 1, 19 88 TO DECEMBER 8, 1998. THE ASSESSEE HAD PURCHASED LAND ON OCTOBER 26, 1998. THE LAND WAS REGISTERED FOR RS.4.10 LAKHS. DURING T HE COURSE OF THE SEARCH CERTAIN NOTINGS HAD BEEN FOUND. THE ASS ESSEE STATED THAT HE DID NOT REMEMBER FOR WHAT PURPOSE HE HAD MA DE NOTINGS, WHICH WAS CONFIRMED BY THE ASSESSEE IN A SUBSEQUENT STATEMENT RECORDED ON DECEMBER 11, 1998. THE LAND WAS PURCHAS ED FROM ONE R. THE PURCHASERS STATEMENT WAS ALSO RECORDED ON THE DATE OF SEARCH, I.E., DECEMBER 8, 1998. R ADMITTED THAT HE HAD RECEIVED RS.34.85 LAKHS BUT SUBSEQUENTLY IN AN AFFIDAVIT HE MENTIONED THAT THE SALE CONSIDERATION RECEIVED WAS RS.4.10 LAKHS. IN A FURTHER SWORN STATEMENT R AGAIN STATED THAT HE HAD RECEIVED RS.34.85 LAKHS. IN THE CASH FLOW STATEMENT FOR THE ASSESSME NT YEAR 1999- 2000, I.E. BLOCK PERIOD APRIL 1, 1998, TO DECEMBER 8, 1998, THE ASSESSING OFFICER ADOPTED THE SUM IN THE CASH FLOW RELATING TO PURCHASE OF LAND AT RS.35.45 LAKHS AS AGAINST AT RS .4,69,995 DISCLOSED BY THE ASSESSEE IN HIS CASH FLOW STATEME NT. THIS RESULTED IN AN ADDITION OF RS.30,75,005 AS UNDISCLO SED INCOME FOR THE BLOCK PERIOD. THE COMMISSIONER (APPEALS) NOTED THAT DUE TO THE CONFLICTING NATURE OF THE STATEMENTS GIVEN BY T HE SELLER, HIS STATEMENT COULD NOT BE RELIED UPON AND HENCE HE DEL ETED THE ADDITION MADE BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF THE COMMISSIONER (APPEALS) THE REVENUE FILED AN APP EAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL. THE TRIBUNAL DI SMISSED THE REVENUES APPEAL AND CONFIRMED THE ORDER OF THE COM MISSIONER (APPEALS). ON APPEAL TO THE HIGH COURT : HELD, THAT THE BURDEN OF PROVING ACTUAL CONSIDERATI ON IN SUCH A TRANSACTION WAS THAT OF THE REVENUE. THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF THE PROPERTY PURCHASED. HE MERELY RELIED ON THE STATEM ENT GIVEN BY THE SELLER. THE DELETION OF THE ADDITION WAS JUSTI FIED. 10 8.2 RESPECTFULLY FOLLOWING THE DECISION CITED ABOVE AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE AGAINST THE FINDINGS GIVEN BY THE LD.CIT(A) WHICH IN OUR OPINION IS A REASONED ON E, WE FIND NO INFIRMITY IN HIS ORDER ON THIS ISSUE. THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF JULY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 30 TH JULY 2013 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A), AURANGABAD 4. CIT, AURANGABAD 5 THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE