Appeal Details
Counselvise Citation
[2017] 127 COUNSELVISE.COM (IT) 6489 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
6 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-12-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
Not Allotted
Assessment Year
2006-2007
Appeal Filed On
22-05-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, B CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND DR.B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO 847/CHD/2017 ASSESSMENT YEAR: 2006-07 M/S SHREE ESTATES, VS. THE JCIT(OSD), NEAR HOTEL AMAR PALACE, CENTRAL CIRCLE, AGGARSAIN CHOWK, PATIALA. AMBALA CITY. PAN NO. AAOFM3576F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT GOEL RESPONDENT BY : SHRI RAVI SARANGAL, CIT-DR DATE OF HEARING : 25.09.2017 DATE OF PRONOUNCEMENT : 13.12.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 06.03.2017 OF LD. CIT (APPE ALS)-5 LUDHIANA PERTAINING TO 2006-06 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER, AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT THE ASSES SEE DOES NOT WISH TO PRESS GROUND NOS. 4 TO 6 AND IN FACT W OULD BE ARGUING THE ISSUES RAISED IN GROUND NOS. 1 TO 3, GROUND NO. 5 ON THE VALIDITY OF THE PROCEEDINGS AND GROUND NOS. 7 AND 8 ON THE MERITS OF TH E ADDITION SUSTAINED. FOR READY REFERENCE, THESE GROUNDS ARE REPRODUCED H EREUNDER : 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND F ACTS IN CONFIRMING AN ADDITION OF RS. 3,13,68,658/- BY CONSIDERING THE SAME AS AMOUNT SPENT BY THE ASSESSEE FIRM OUT OF THE BOOKS FOR THE PURCHASE OF LAND AS UNDISCLOSED INVES TMENT OF THE APPELLANT ASSESSEE U/S 69B OF THE INCOME TAX ACT 1961. 2. THE LEARNED CIT (APPEALS) HAS ERRED IN L AW AND FACTS IN CONFIRMING THE ACTION OF AO IN INITIATING THE PROCEEDINGS U/S 153C SINCE NO BOO KS OF ACCOUNTS / DOCUMENTS / VALUABLES OF THE APPELLANT HAS BEEN SEIZED AND, THU S CONDITIONS OF SECTION 153C ARE NOT FULFILLED. 3. THAT LEARNED CIT ( APPEALS) HAS ERRED IN LAW A ND FACTS IN CONFIRMING THE ACTION OF AO U/S 153C ON THE BASIS OF LOOSE DOCUMENTS FOUND FROM THE PREMISES OF NIKHIL MITTAL WHICH DO NOT BELONG TO APPELLANT. 5. THE LEARNED CIT (APPEALS) 4WS ERRED IN LAW AND F ACTS IN CONFIRMING THE ACTION OF VT, AO IN INITIATING THE PROCEEDINGS U/S 153C WITHOUT A NY JURISDICTION ASSIGNED OVER THE CASE 7. THAT LEARNED CIT ( APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF AO WHILE MAKING ADDITION OF RS. 3,13,68,658/- WITHOUT CONSIDERING THAT SEIZED DOCUMENTS, AS ALLEGED ITA 847/CHD/2017 A.Y. 2006-07 PAGE 2 OF 33 WERE NOT FOUND FROM THE RESIDENCE OF SHRI NIKHIL MI TTAL HUSBAND OF SMT. MONIKA MITTELTRARTNER OF APPELLANT FIRM. 8. THAT LEARNED CIT ( APPEALS) HAS ERRED IN LAW AN D FACTS IN CONFIRMING THE ACTION OF AO WHILE MAKING ADDITION OF RS. 3,13,68,658/- WITHOUT CONSID ERING THAT DOCUMENTS AS ALLEGED TO BE FOUND ARE DUMP DOCUMENTS AND NO ADDITION CAN BE MADE ON T HE BASIS OF SUCH DOCUMENTS. 3. THE ASSESSEE FIRM RELATED TO H.H.AGARWAL JEWELLERS GROUP OF AMBALA WAS SUBJECTED TO SEARCH & SEIZURE OPERATION ON 13.10.2 006. THE FIRM AS PER RECORD WAS CONSTITUTED ON 27.06.2005 WITH THE FOLLOWING 7 PARTNERS : 3.1. IN THE COURSE OF THE SEARCH, CERTAIN DOCUMENTS WERE FOUND FROM THE RESIDENCE OF SHRI NIKHIL MITTAL, HUSBAND OF MS.MONIKA MITTAL C ONSIDERING THE DOCUMENTS IDENTIFIED AS PAGE NO. 31 BACKSIDE OF PAGE 31 AN D 32 OF ANNEXURE-A, THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. THE EXPLANATION OFFERED ON BEHALF OF THE ASSESSEE WAS REJECTED . THE EXPLANATION AS PER RECORD WAS SUPPORTED BY WAY OF AFFIDAVITS FILED BY SHRI ASHOK KUMAR AND SHRI RAM PARTAP BANSAL WITNESSES TO THE SEARCH. T HE AO REQUIRED THAT THE WITNESSES BE PRODUCED FOR CROSS-EXAMINATION AND INITIA LLY THEY DID NOT NO. NAME OF THE PARTNER ADDRESS %AGE SHARE REMARKS 1 SH.N'ITIN AGGARWAL (PAN-AD APA4428H) S/O NARESH AGGARWAL, R/O 927/7, UE, AMBALA CITY. 12.50% SH.NITIN AGGARWAL IS SON OF NARESH AGGARWAL, WHO IS PARTNER OF SH.NIKHIL MITTAL 2 MS.MONIKA MITTAL W/O NIKHIL MITTAL, R/O 974/7, UE, AMBALA CITY. 12.50% SHE IS WIFE OF NIKHIL MITTAL, PARTNER OF NARESH AGGARWAL IN M/S JEWELLERS N.N.AGGARWAL AND DOCUMENT S 31 & 32 WERE SEIZED FROM THEIR RESIDENCE. 3 SHRI.NITINJAIN S/O SATISH JAIN R/O 1739/2, BAZAAR BASTI RAM, AMBALA CITY. 12.50% HE IS BROTHER OF ASHISH JAIN S/O SH. SATISH JAIN(WHO IS ALSO HAVING BUSINESS TRANSACTION WITH M/S JEWELLERS N.N. AGGARWAL) 4 SHRI.ASHISH JAIN S/O SATISH JAIN R/O ' 1739/2, BAZAAR BASTI 12.50% -DO- RAM, AMBALA CITY. 5 SHRI.VISHAL JAIN S/O SH.PAWAN KUMAR JAIN R/O 37/1, HUDA, AMBALA CITY. 12.50% SH.PAWAN JAIN, FATHER OF VISHAL AND VIKAS JAIN IS RUNNING HOTEL AMA R PALACE (ADDRESS GIVEN FOR THE ABOVE FIRM) ON LEASE, AT AMBALA CITY. 6 SHRI.VIKASJAIN S/O SH.PAWAN KUMAR JAIN R/O 37/1, HUDA, 12.50% -DO- 7 SH.MANOJ MITTAL (PAN:-ACGPK6684A S/O OM PARKASH MITTAL R/O 312, WARD/SEC - 18/6, 25% SH.OM PARKASH MITTAL IS ALSO HAVING FAMILY RELATIONSHIP WITH SH.NIKHIL MITTAL & NARESH AGGARWAL. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 3 OF 33 APPEAR, THEREAFTER THEY APPEARED AND WERE CROSS-EXAMIN ED BY THE AO. THE AO DID NOT ACCEPT THE EXPLANATION QUA THE PRESENCE OF T HE DOCUMENTS FROM THE RESIDENCE, THE CONTENTS OF THE AFFIDAVIT AND ALSO THE S TATEMENTS MADE IN THE CROSS-EXAMINATION AND INSTEAD QUESTIONED WHY DID THE WITNESSES LEAVE THE PREMISES WHEN THEY WERE LEGALLY REQUIRED TO STAY FOR THE WHOLE DURATION OF THE SEARCH. ACCORDINGLY, EXPLANATION ON BEHALF OF THE A SSESSEE WAS NOT ACCEPTED AND THE CLAIM THAT THE DOCUMENTS WERE NOT FO UND FROM THE RESIDENCE WAS TREATED AS AN AFTER THOUGHT. THE AO IN TH E CIRCUMSTANCES, SUMMED UP THE THREE ARGUMENTS OF THE ASSESSEE AS UNDER: 1. THAT THE SAID SEIZED DOCUMENTS WERE NOT FOUND FROM THE RESIDENCE OF SH NIKHIL MITTAL. IN THIS REGARD THE ASSESSEE HAS RELIED UPON THE AFFIDAVITS OF THE WITNESSES WHO WERE PRESENT DURING SEARCH. 2. THAT THE LOOSE DOCUMENTS BEING CONSIDERED ARE NOT R ELATED TO ASSESSEE FIRM. IN THIS REGARD THE ASSESSEE HAS STATED THAT DETAILS ON THESE SLIPS DO NOT MATCH WITH THE DETAILS OF THE FIRM, ITS PARTNERS AND ITS ACTUAL RE GISTRATION DEEDS, 3. THAT IT IS A DUMP DOCUMENT AND NO ADDITION CAN BE M ADE ON BASIS OF SUCH DOCUMENT. 3.2 THE ARGUMENTS ON BEHALF OF THE ASSESSEE WERE DISMISSE D HOLDING AS UNDER : ALL THE THREE CLASSES OF ARGUMENTS ARE FACTUALLY IN CORRECT. FIRSTLY, IN EARLIER PARTS OF THIS ORDER IT HAS BEEN ESTABLISHED THAT THE DOCUMENTS WE RE ACTUALLY FOUND FROM THE RESIDENCE OF SH NIKHII MITTAL AND SMT MONICA MITTAL AND THAT THE ISSUE HAS BEEN RAISED MERELY TO GET AWAY WITH THE CONSEQUENCES OF INCRIMINATING DOCUMENTS. S ECONDLY, IT HAS ALSO BEEN ESTABLISHED THAT THE LOOSE DOCUMENTS FIRST AND PARTICULARLY THE TRANSACTION OF LAND PURCHASE BY THIS FIRM. THIRDLY, THE DETAILS ON THE LOOSE DOCUMENTS A RE CRYSTAL CLEAR. NOT ONLY THAT, THE REVENUE HAS EXPLAINED THOSE ENTRIES WITH FACTS GATH ERED FROM ENQUIRY AND THROUGH LINKING UP OF THE TRANSACTION WITH ACTUAL LAND PURC HASE BY THE ASSESSEE. THIS IS CERTAINLY NOT THE CASE OF A DUMP DOCUMENT. THE EVID ENCE IS STRONG AND THE FINDINGS ARE FACTUALLY LOGICAL AND STAND PROVEN. 3.3. THE OBJECTIONS OF THE ASSESSEE POSED ON THE INITIATI ON OF THE PROCEEDINGS WAS ALSO REJECTED. ADDITION WAS MADE IN THE FOLLOWING MANNER IN THE HANDS OF THE ASSESSEE WHICH IS UNDER CHALLENGE IN T HE PRESENT PROCEEDINGS: FURTHER ASSESSEE VIDE ITS LETTER DT.29/11/11 HAS RA ISED OBJECTION WITH REGARD TO THE INITIATION OF PROCEEDINGS U/S 153C ST ATING THAT DUE SATISFACTION WAS NOT RECORDED. THE SAID OBJECTION O F THE ASSESSEE IS : BASELESS AS DUE SATISFACTION WAS RECORDED BY ACIT K ARNAL ON 22/11/2007 AND MOREOVER ASSESSEE DID NOT OBJECT TO THE SAID PROCEEDINGS U/S 153C. EARLIER DURING THE COURSE OF INITIAL ASSESSMENT THE ORDER OF WHICH WAS PASSED ON 26/12/2008. THEREFORE IT IS HELD THAT THE FIRM M/S SHREE ESTATE S PURCHASED LAND FROM SH.SUDHIR GULATI FOR RS. 3,74,22,200/- ALONGWI TH EXPENSES WHILE THE REGISTRATION WAS MADE FOR RS. 56,92,000/~. THE TRAN SACTION ENTERED IN THE BOOKS OF THE ASSESSEE FIRM IS \ FOR RS 60,53,542/- ONLY. THEREFORE..-THE AMOUNT OF RS 3,13,68,658/- IS UNDISCLOSED; INVESTME NT OF THE ASSESSEE FIRM. IN THIS CASE SECTION 69B OF THE INCOME TAX AP PLIES. THIS SECTION IS REPRODUCED AS UNDER: ITA 847/CHD/2017 A.Y. 2006-07 PAGE 4 OF 33 'WHERE IN ANY FINANCIAL YEAR THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLE, AND THE ASSESSING OFFICER FINDS THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENTS OR IN ACQUIRING \ SUCH BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCO UNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, THE EXCESS AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR' THUS CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF SECTION 69B OF THE I.T ACT 1961 T HE AMOUNT OF RS 3,13,68,658/- IS CONSIDERED AS DEEMED INCOME OF THE ASSESSEE FIRM AND ASSESSED ACCORDINGLY. 4. THE ASSESSEE CHALLENGED THE ORDER ON MERITS AS WELL A S IN THE ASSUMPTION OF JURISDICTION BEFORE THE CIT(A) UNSUCCESSFULLY. S TILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE CARRYING US THROUGH THE ASSESSMENT ORDER AND THE DETAILED OBJECTIONS MADE BY T HE ASSESSEE RIGHT FROM THE BEGINNING, SUBMITTED THAT THE GRIEVANCE OF THE AS SESSEE REMAINS AS THESE HAVE BEEN REITERATED AND FURTHER ELABORATED BEFOR E THE CIT(A) WHO HAS UPHELD THE ORDER WITHOUT ADDRESSING THE FACTS AND ARGU MENTS. IN ORDER TO SUM-UP THE RELEVANT ISSUES, THE LD. AR INVITED ATTENTION T O THE FACT THAT A SYNOPSIS HAS BEEN FILED WHICH BRIEFLY ADDRESSES THE FACTUA L BACKGROUND AND IS SUPPORTED BY VARIOUS DOCUMENTS IN THE PAPER BOOK. IT WAS SUBMITTED THAT PAPER BOOK NO. 1 (RUN FROM PAGE 1 TO 201) AND PAPER BOO K NO. 2 (PAGE 202 TO 276) ALONGWITH COPY OF THE ORDER OF THE ITAT DATED 0 3.10.2016 IN ITA 102/CHD/2013 ATTACHED AT PAGES 277-299 FOR ASSESSMEN T YEAR 2008-09 IN THE CASE OF ASSESSEE ITSELF ARE THE DOCUMENTS RELIED UPO N AND AVAILABLE ON RECORD. 5.1 FOR READY REFERENCE, THE SYNOPSIS RELIED UPON RE FERRING TO THE SPECIFIC FACTS RELIED IS EXTRACTED HEREUNDER : SN FACTS OF THE CASE EMERGING FROM 1 ASSESSEE FIRM M/S SHREE ESTATES WAS CONSTITUTED ON 27/6/2005 AND AY 2006-07 THE YEAR IN QUESTION WAS THE FIRST YEAR OF ASSESSMENT. PAGE 1 OF THE ASSESSMENT ORDER 2. THAT A SEARCH U/S 132 WAS CONDUCTED AT RESIDENCE OF NIKHIL MITTAL HUSBAND OF MONIKA A PARTNER ON 13/10/2006 WHERE LOO SE PAGES IN QUESTION TITLE AS PAGE 31, BACKSIDE OF PAGE 31 AND PAGE 32 WERE FOUND PAGE 1 AND 2 OF THE ASSESSMENT ORDER 3. SATISFACTION U/S 153 C WAS RECORDED OR/ 22/11/2007 BY ACIT CENTRAL CIRCLE KARNAL IN THE CASE OF NIKHIL MITTAL PAPER BOOK PG 59 4. ORIGINAL ASSESSMENT COMPLETED U/S 143(3)/153C BY AC IT CENTRAL CIRCLE PATIALA ON 26/12/2008 AT NIL INCOME PAPER BOOK PG 60 5. ORDER U/S 263 BY CIT DATED 30-3-2011 PAPER BOOK PG 31-42 6. ASSESSEE HAS WITHDRAWN APPEAL AGAINST 263 ORDER DAT ED 27-6-2013 PG 43 ITA 847/CHD/2017 A.Y. 2006-07 PAGE 5 OF 33 7. CASE OF NIKHIL MITTAL WAS CENTRALISED WITH ACIT KAR NAL FROM AMBALA ON 12-2-2007 UNDER ORDER U/S 127 PP 60-63 8. JURISDICTION OF SHREE ESTATE WAS NEVER TRANSFERRED FROM AMBALA TO KARNAL AS EVIDENT FROM TRANSFER OF JURISDICTION ORD ER DATED 12-2- 2007. MOREOVER, ANY PAN CAN NOT HAVE A DIRECT JURISDICTIO N WITH CENTRAL CIRCLE. PP 60-63 9 THAT LAND IN QUESTION WAS SOLD IN AT 2008-09 AND RE SULTANT CAPITAL GAIN ON SALE WAS PAID TAKING COST OF ACQUISITION AT RS. 60,53,542/- U/S 143(3) DATED 27-12-2010 PP 277-287 5.2. ALTHOUGH GROUND NO. 4 ADDRESSING INITIATION OF PROCEEDIN GS IN THE ABSENCE OF SATISFACTION HAS BEEN WITHDRAWN, ON GROUND NOS . 2 AND 3 RAISED IN THE PRESENT PROCEEDINGS, IT WAS HIS SUBMISSION THAT THE DOCUMENTS RELIED UPON DO NOT RELATE TO THE ASSESSEE. THEY HAVE NOT BE EN FOUND FROM THE RESIDENCE OF SHRI NIKHIL MITTAL AS HAS BEEN CONSISTENTLY AR GUED BY THE ASSESSEE. THE SAID ARGUMENT, IT WAS SUBMITTED, CONTRARY TO FACTS AND LEGAL POSITION THEREON HAS NOT BEEN AGREED TO BY THE REVENU E WITHOUT UPSETTING THE EVIDENCE AND FACTS. WITHOUT CONCEDING, IT WAS SUBMITTE D, THAT EVEN IF FOR A MOMENT, IT IS CONSIDERED THAT THE DOCUMENT IS FOUND FROM THE RESIDENCE CLAIMED, EVEN IN SUCH A SITUATION, IT WAS HIS SUBMISSION, THE FA CT REMAINS THAT THERE IS NO MENTION OF THE NAME EITHER OF THE ASSE SSEE OR ITS PARTNERS. THUS, THE DOCUMENT EVEN OTHERWISE DOES NOT RELATE TO THE ASS ESSEE. THE WORD ASSESSEE IT WAS SUBMITTED, NEEDS TO BE UNDERSTOOD AS THE ASSESSEE IS THE FIRM AND NOT NIKHIL MITTAL WHOSE RESIDENCE WAS BEING SEARCHE D. FOR THE SAID PURPOSES, ATTENTION WAS INVITED TO PAPER BOOK PAGE 31 T O 32 AND 33 OF ANNEXURE-A. THIS FACT HAS BEEN ARGUED AND THE RELEVANT OBJECTIONS OF THE ASSESSEE ADDRESSING GROUND NOS. 2 AND 3 AS REPRODUCED HEREUNDER : 1. FIRST 3 LINES OF SATISFACTION SPEAKS ABOUT THE FACT A SEARCH WAS TAKEN PLACE AT THE RESIDENCE OF NIKHIL MITTAL AT LO OSE PAPERS NO. 31- 32 & 33 OF ANNEXURE -A WERE SEIZED. 2. THEN AO WRITES THAT THESE DOCUMENTS SHOW THAT TH E FIRM M/S SHREE ESTATES HAS PURCHASED LAND AMOUNTING RS. 3,74,22,20 01- FROM SUDHIR GULATI R.O A/42 SARASWATI GARDEN NEW DELHI ON DIFFE RENT DATES I.E. 1-08- 2005, 10-01-2006 AND 13-01-2006 BUT ASSESSEE HAS GO T REGISTERED SALE DEEDS FOR RS. 56,92,0001-. 3. THIS IS A TOTAL WRONG OBSERVATION AS NO WHERE IN THE PAPER NAME OF SHREE ESTATES, PURCHASE OF LAND, SUDHIR GULATI, A/42 SARASWATI GARDEN NEW DELHI AND DATES OF 1-08-2005, 10-01-2006 AND 13-01-2006 IS MENTIONED. 4. 4. THEREFORE IT IS CLEAR THAT THE ASSESSEE HAS PAID THE AMOUNT OF DIFFERENCE OF RS. 3,17,30,2001- OUT OF UNDISCLOSED SOURCES. THE CASE IS COVERED U/S 153C AND I AM SATISFIED TO ISSUE NOTICE U/S 153C OF THE IT ACT. ISSUE NOTICE U/S 153C. ISSUE ON THE SATISFACTION RECORDED U/S 153C BY DCIT, CENTRAL CIRCLE KARNAL DATED 22/11/2007 PAGE 59 4. THERE IS NO RECORDING OF FACT THAT THE DOCUMENT DO NOT RELATE TO NIKHIL MITTAL, RATHER WORD IS USED AS ASSESSEE HAS PAID THE AMOUNT OF DIFFERENCE AND ASSESSEE IS NIKHIL MITTAL. THERE IS NO RECORDING THAT DOCUMENTS SEIZED IN QUESTION BELONG TO SHREE ESTATE S. MERELY USING ITA 847/CHD/2017 A.Y. 2006-07 PAGE 6 OF 33 5.3 ADDRESSING GROUND NOS. 2 AND 3 RAISED, IT WAS SUBMITTE D THAT THE ABOVE FACTS DEMONSTRATE THAT THE PROCEEDINGS DESERVE TO BE QUASHED AS THE DOCUMENTS EVEN AS PER THE DEPARTMENTS VERSION, HAVE BEEN FOUND FROM THE RESIDENCE OF SHRI NIKHIL MITTAL, WHO IS NOT A PARTNER IN THE ASSESSEE FIRM. IN THE DOCUMENTS, NAME OF ASSESSEE IS NOT MENTIONED, THUS B EING LOOSE DUMB DOCUMENT, IT CANNOT BE THE BASIS FOR ADDITION AS ITS RELE VANCE FOR THE ASSESSEE IS TO BE ESTABLISHED. 5.4 THE FOLLOWING SUBMISSIONS INCLUDED IN THE SYNOPSIS WHICH W ERE HEAVILY RELIED UPON ARE REPRODUCED HEREUNDER : TERM 'I AM SATISFIED TO ISSUE NOTICE U/S 153C' IS NOT EN OUGH WITHOUT MENTIONING THAT HOW THE DOCUMENTS BELONG TO SHREE ESTATE. (EMPHASIS SUPPLIED) NO. PARTICULARS SUBMISSIONS 1. THESE PAPERS WERE SEIZED FROM THE RESIDENCE OF N IKHIL MITTAL. 2. THAT AT NO PLACE IN THESE PAPERS THE NAME OF SHR EE ESTATES IS MENTIONED. THE PAPER IS NOT PART OF ANY BOOKS WRITTEN, MAINTAINED BY SHREE ASSOCIATES. 3. ALLEGATION ARE ON ACCOUNT OF SOME MONEY PAID OVE R AND ABOVE THE REGISTERED SALE DEED COPIES OF WHICH ATTA CHED AT PAGE 84-115. HOWEVER, NO AGREEMENT TO SELL MENTIONING H IGHER AMOUNT WAS FOUND / SEIZED BY DEPARTMENT. 4. THE SALE DEED ARE REGISTERED AT 'CIRCLE RATES' FIXED BY THE STATE ADMINISTRATION AND NO ADVERSE FINDING OF ANY STATE AUTHORITY. 5. THE DOCUMENTS IN QUESTION WERE NEVER CONFRONTED TO NIKHIL MITTAL DURING THE COURSE OF SEARCH AND EVEN DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, WITNESSES OF SEARCH AND SELLE R OF THE PROPERTY WERE EXAMINED DURING ASSESSMENT PRO CEEDINGS. FURTHER, THERE IS NO STATEMENT OF ANY PERSON THAT T HE LOOSE PAPERS PAGE 31 -32 SEIZED BELONG TO SHREE ESTATES. 6. PLEASE REFER TO PAGE 17 OF AO ORDER, ITEM AT S R.NO.1 WHEREIN A TABLE IS DRAWN TO DEAL WITH ARGUMENTS OF THE FIRM A ND OBSERVATIONS OF AO WHEREIN ASSESSEE ARGUED THAT P APERS ARE NOT BELONGING TO THE ASSESSEE AND DEPARTMENT IS OF THE VIEW THAT DOCUMENTS ARE RELATED TO THE ASSESSEE FIRM. 1 CONTENTS OF LOOSE PAPER SEIZED AND FACTS OF THE MATTER 7 AFFIDAVIT OF SUDHIR GULATI ( SELLER OF THE PROP ERTY) AS MENTIONED UNDER SR. NO.8 OF THE TABLE IS ALLEGED TO BE SELF SERVING DOCUMENT BUT WHAT ABOUT THE STATEMENT OF SU DHIR GULATI UNDER SR. NO.9 AND COPY ATTACHED AT PAGE 72 OF_PAPER BOOK. INCOME OF SUDHIR GULATI HAS BEEN COMPLETED ON THE BASIS OF REGISTERED SALE CONSIDERATION. 8. UNDER PARA 10 PAGE 19 OF AO ORDER, IT WAS OBSERVED BY AO THAT AS PER THE SECTION 132(4A) IT IS A LEGALLY PRO VIDED PRESUMPTION THAT THE CONTENTS OF SUCH DOCUMENTS FOUND DURING THE SEARCH ARE TRUE. PARA 15 OF DELHI HIGH COURT JU DGMENT IN THE CASE OF CANYON FINANCIAL SERVICES LIMITED DATED 11 -7-2017 COPY ATTACHED AT PAGE CLEARLY STATES THAT T HE PRESUMPTION U/S 132(4A) DO NOT RELIEVE DEPARTMENT TO PROVE THAT THE DOCUME NT BELONGS TO THE OTHER PERSON AND NOT THE SEARCHED PERSON FROM WHOM SEIZED. 9. PARA 19 PAGE 21 OF THE ASSESSMENT ORDER ASSESSE E HAS ITA 847/CHD/2017 A.Y. 2006-07 PAGE 7 OF 33 5.5 IT WAS ALSO SUBMITTED THAT THE DOCUMENT DOES NOT BELONG TO THE ASSESSEE. SECTION 153C OF THE INCOME TAX ACT,1961, IT WAS SUBMITTED, WAS AMENDED BY THE FINANCE ACT W.E.F. 01.06.2015 AND THE AME NDED SECTION 153C(1)(B)W.E.F 1-6-2015 MAKES IT CLEAR THAT W.E.F. 01.06.201 5 'ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUISITIONED, PERTAINS OR PERTAIN TO , OR ANY INFORMATION CONTAINED THEREIN, RELATES TO.' PRIOR TO THE AMENDMENT AND AS APPLICABLE TO THE PRESENT APPEAL, SECTION 153C, REFERRED TO THE SPECIFIC PHRA SE BELONGS TO. THE PROVISIONS APPLICABLE READ AS WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE OR THINS R BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR RELINQUISHED , BELONG OR BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A' IN THE FACTS AS AVAILABLE ON RECORD IT WAS SUBMITTED, CONSIDERING T HE PROVISIONS OF LAW AS IT THEN STOOD ON THE STATUTE RELYING ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF PEPSI FOODS P.LTD. 367 ITR 112 (DEL) IT WAS S UBMITTED THAT THE DOCUMENT DID NOT BELONG TO THE ASSESSEE AS NOWHERE TH E NAME OF THE ASSESSEE IS MENTIONED THEREIN. THE ADDITION BASED ON A LOOSE UNR ELATED SHEET CANNOT BE MADE THE BASIS OF THE ADDITION. COPY OF THE S AID DECISION PLACED AT PAGES 156 TO 162 AND PARA 6 OF THE SAID DECISION AT PAGE 159 OF THE PAPER BOOK WAS SPECIFICALLY RELIED UPON. THE SAME IS ALSO REPRODU CED HEREUNDER FOR READY REFERENCE : 6. ON A PLAIN READING OF SECTION 153C, IT IS EVIDE NT THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON MUST BE 'SATISFIED' THAT INTER ALIA ANY DOCU MENT SEIZED OR REQUISITIONED 'BELONGS TO' A PERSON OTHER THAN THE SEARCHED PERSONTHEREFORE, BEFORE A NOTICE UNDER SECTION 153C CAN BE ISSUED TWO STEPS HAVE TO BE TAKEN. THE FIRST STEP IS THAT THE ASSESSING OFFICER OF THE PERSON WHO IS SEARCHED MUST ARRIVE AT A CLEAR SATIS FACTION THAT A DOCUMENT SEIZED FROM HIM DOES NOT BELONG TO HIM BUT TO SOME OTHER PERSON. TH E SECOND STEP IS - AFTER SUCH SATISFACTION IS ARRIVED AT - THAT THE DOCUMENT IS HANDED OVER TO THE ASSESSING OFFICER OF THE PERSON TO WHOM THE SAID DOCUMENT 'BELONGS'. IN THE PRESENT CA SES IT HAS BEEN URGED ON BEHALF OF THE PETITIONER THAT THE FIRST STEP ITSELF HAS NOT BEEN FULFILLED. FOR THIS PURPOSE IT WOULD BE NECESSARY TO EXAMINE THE PROVISIONS OF PRESUMPTIONS AS INDICATED ABOVE. SECTION 132(4A)(I) CLEARLY STIPULATES THAT WHEN INTER ALIA ANY DOCUMEN T IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH IT MAY BE PRES UMED THAT SUCH DOCUMENT BELONGS TO SUCH PERSON. IT IS SIMILARLY PROVIDED IN SECTION 29 2C(L)(I). IN OTHER WORDS, WHENEVER A DOCUMENT IS FOUND FROM A PERSON WHO IS BEING SEARCH ED THE NORMAL PRESUMPTION IS THAT THE STATED THAT THE SEIZED PAPERS DO NOT BELONG TO ASSE SSEE SINCE THE MENTIONING OF PAYMENT OF RS. 60,000 /- WITH REFERENCE TO BANK DO NOT FIND MENTIONED IN THE ONLY BANK STATEMENT OF ASSESSEE MAINTAINED WITH CORPORATION BANK. A DOCUMENT HAS TO BE ACCEPTED AS A WHOLE. 10. PARA 16 PAGE 20 OF THE ASSESSMENT IT WAS CONTEN DED THAT 15% SHARE AS MENTIONED ON PAGE 32 TO SUNIL JI IS NOT RELATED TO ANY PARTNER AND ALSO THE VALUE OF SHARE ALLOCATED TO SU NIL JI FOR 15% SHARE COMES TO 94,53,100 /- WHEREAS IF WE TAKE THE VALUE AT 3,74,22,200 /- 15% VALUE SHOULD HAVE BEEN RS. 56,13,330/-. MOREOVER, THE TOTAL OF SHARE ALLOCATION COMES TO 90 % ITA 847/CHD/2017 A.Y. 2006-07 PAGE 8 OF 33 SAID DOCUMENT BELONGS TO THAT PERSON. IT IS FOR THE ASSESSING OFFICER TO REBUT THAT PRESUMPTION AND COME TO A CONCLUSION OR 'SATISFACTION' THAT THE DOCUMENT IN FACT BELONGS TO SOMEBODY ELSE. THERE MUST BE SOME COGENT MATERIAL A VAILABLE WITH THE ASSESSING OFFICER BEFORE HE/SHE ARRIVES AT THE SATISFACTION T HAT THE SEIZED DOCUMENT DOES NOT BELONG TO THE SEARCHED PERSON BUT TO SOMEB ODY ELSE. SURMISE AND CONJECTURE CANNOT TAKE THE PLACE OF 'SATISFACTION' 5.6 IN THE FACTS OF THE PRESENT CASE ALSO, REFERRING TO PAGES 47 TO 49 OF THE PAPER BOOK, IT WAS SUBMITTED THAT THE NAME OF THE ASSES SEE IS NOT MENTIONED. THE DOCUMENT, IT WAS SUBMITTED, AT BEST COULD BE SAID AS HAVING BEEN FOUND FROM THE RESIDENCE OF SHRI NIKHIL MITTAL, THUS, IN TH E FACTS OF THE PRESENT CASE THE FIRST STEP AS HELD TO BE MANDATORY BY THE HON'BLE DELHI HIGH COURT ITSELF IS NOT FULFILLED. ON THE BASIS OF THESE FACTS AND PO SITION OF LAW, IT WAS SUBMITTED THAT NO DOUBT, WHENEVER A DOCUMENT IS FO UND FROM A PERSON WHO IS BEING SEARCHED THE NORMAL PRESUMPTION IS THAT TH E SAID DOCUMENT BELONGS TO THAT PERSON. IT IS FOR THE ASSESSING OFF ICER TO REBUT THAT PRESUMPTION AND COME TO A CONCLUSION OR 'SATISFACTI ON' THAT THE DOCUMENT IN FACT BELONGS TO SOMEBODY ELSE. THERE MUST BE SOME CO GENT MATERIAL AVAILABLE WITH THE ASSESSING OFFICER BEFORE HE/SHE ARRI VES AT THE SATISFACTION THAT THE SEIZED DOCUMENT DOES NOT BELONG TO THE SEA RCHED PERSON BUT TO SOMEBODY ELSE. SURMISE AND CONJECTURE CANNOT TAKE T HE PLACE OF 'SATISFACTION'. 5.7 INVITING ATTENTION TO PARA 11 AT PAGE 161 OF THE PA PER BOOK WHEREIN COPY OF THE SAID JUDGEMENT IS PLACED, IT WAS SUBMITTED, TH AT THE SATISFACTION NOTE ITSELF MUST DISPLAY THE REASONS OR BASIS FOR T HE CONCLUSION THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON IS SATISFIED THAT THE SEIZED DOCUMENTS BELONG TO A PERSON OTHER THAN THE SEARCHED PER SON. 5.8 RELIANCE WAS ALSO PLACED UPON ANOTHER DECISION OF THE D ELHI HIGH COURT IN THE CASE OF PEPSICO INDIA HOLDING LTD. 370 ITR 2 95 , COPY PLACED AT PAGES 228 TO 232 OF THE PAPER BOOK FILED. RELYING ON THE SAME, IT WAS SUBMITTED THAT AFTER DISCUSSING THE PRE CONDITION OF SECTIO N 153, THE HON'BLE COURT WAS PLEASED TO HOLD AS UNDER : 14. FIRST OF ALL WE MAY POINT OUT, ONCE AGAIN, THAT IT IS NOBODY'S CASE THAT THE JAIPURIA GROUP HAD DISCLAIMED THESE DOCUMENTS AS BELONGING T O THEM. UNLESS AND UNTIL IT IS ESTABLISHED THAT THE DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON, THE PROVISIONS OF SECTION 153C OF THE SAID ACT DO NOT GET ATTRACTED. 5.8.1 THE COURT ON THE FACTS OF THE SAID CASE HAD HELD THAT; THE ASSESSING OFFICERS SHOULD NOT CONFUSE THE EXPRESSION 'BELONGS TO' WITH THE EXPRESSIONS 'RELATES TO' OR 'REFERS TO' THE LOOSE SHEET RELIED UPON IN THE PRESENT PROCEEDINGS, IT WAS SUBMITTED, DID NOT EVEN RELATE TO THE A SSESSEE. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 9 OF 33 5.9 RELIANCE WAS ALSO PLACED UPON ANOTHER DECISION OF THE D ELHI HIGH COURT IN THE CASE OF CANYON FINANCIAL SERVICES 2017(7) TM I 539-DELHI HIGH COURT. ATTENTION WAS INVITED TO PARA 15 OF THE SAID DEC ISION SO AS TO ARGUE THAT PRESUMPTION U/S 132(4A) AND 292C CAN NOT HELP A O TO SHOW THAT DOCUMENTS SEIZED DO NOT BELONG TO THE OTHER PERSON. 5.10 RELIANCE WAS ALSO PLACED UPON THE DECISION OF HON'BLE D ELHI HIGH COURT IN THE CASE OF CIT VS RENU CONSTRUCTION PVT. LTD . 2017 (G) TMI 670- DELHI HIGH COURT DATED 06.09.2017, COPY PLACED AT PAGES 24 0-241 OF THE PAPER BOOK. SPECIFIC ATTENTION WAS INVITED TO THE PARA 9 O F THE SAID DECISION TO SUBMIT THAT THE COURT AFTER CONSIDERING THE POSITION O F LAW AFTER PEPSICO INDUSTRIES HOLDINGS, VINITA CHAURASIA (2017) 394 ITR 758 (DE LHI) AND APEX COURT IN CIT VS SINHGAD TECHNICAL EDUCATION SOCIETY (2017) 84 TAXMANN.COM 290 (S.C) SO THAT THE LEGAL POSITION IN FAVOUR O F THE ASSESSEE. THE SPECIFIC PARA IS REPRODUCED HEREUNDER: '9. CONSEQUENTLY, THIS COURT REJECTS THE CONTENTION OF THE LAMED COUNSEL FOR THE REVENUE THAT EVEN PRIOR TO 1 ST JUNE 2015 AT THE STAGE OF INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT, IT IS SUFFICIENT IF THE SEIZED DOCUMENT 'PERTA INED TO' THE OTHER PERSON AND IT IS NOT NECESSARY TO SHOW THAT THE SEIZED DOCUMENT BELONGED TO OTHER PERSON.' 5.11 BASED ON THESE SUBMISSIONS, FACTS AND ARGUMENTS, IT W AS REITERATED THAT THE TAX AUTHORITIES HAVE COMPLETELY AND DELIBERATEL Y MISDIRECTED THEMSELVES. SHRI NIKHIL MITTAL, IT WAS SUBMITTED, IS NOT A PA RTNER OF THE FIRM. NAME OF THE ASSESSEE IS NOT FOUND ANYWHERE MENTIONED IN THE DOCUMENTS. THE TWO WITNESSES SAY THAT THE DOCUMENTS WERE NOT FO UND FROM THE PREMISES. THESE WITNESSES HAVE BEEN CROSS EXAMINED, THE IR STATEMENTS CORROBORATE THE STAND TAKEN IN THE AFFIDAVITS ON RECORD. THESE ARGUMENTS AND EVIDENCES REMAIN UNREBUTTED ON RECORD. 5.12 IT WAS ALSO HIS SUBMISSION THAT THE ASSESSEE WAS ASSESSED BY JCIT, CENTRAL CIRCLE, PATIALA AND COPY OF THE ORDER U/S 127 DATE D 12.02.2007 AT PAGES 62 TO 63 WOULD SHOW THAT THE JURISDICTION OF THE A SSESSEE WAS NEVER TRANSFERRED FROM AMBALA TO KARNAL, COPY OF THE RTI REPLY OF ACIT, PATIALA IN CONNECTION OF THE TRANSFER OF JURISDICTION OF THE ASSESSEE FROM AMBALA TO KARNAL PLACED AT AGES 64 TO 65 WAS REFERRED. THE FOLLOWING POINTED QUERIES OF THE ASSESSEE AND THE FOLLOWING REPLY RECEIVED WAS REFERRED TO : THE CASE OF M/S SHREE ESTATE WAS TRANSFERRED TO TH IS OFFICE FROM DCIT, CENTRAL CIRCLE, KAMAL VIDE ORDER NO. 641 DATED 21.05.2008. HENCE, ORDER U /S 127 BY WHICH JURISDICTION IN THE CASE OF M/S SHREE ESTATES WAS TRANSFERRED FROM ITO, WARD-1, AMBALA DCIT, CC, KARNAL IS NOT AVAILABLE WITH THIS OFFICE. 5.13 ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE JURISDICTION HAS NEVER BEEN TRANSFERRED. EVEN OTHERWISE, ON MERITS IT WAS SUBMITTED T HAT NO AGREEMENT ITA 847/CHD/2017 A.Y. 2006-07 PAGE 10 OF 33 TO SELL HAS EVER BEEN PLACED ON RECORD. ADDITION HAS BEE N MADE ON PRESUMPTIONS AND SURMISES. ATTENTION WAS INVITED TO THE O RDER OF THE ITAT IN THE CASE OF P.KOTESWARA RAO VS DCIT, CENTRAL CIRCLE, VISAKH APATNAM (ITA 251/VIZAG/2012). COPY PLACED AT PAGES 255-258 OF THE PAP ER BOOK. REFERRING TO THE SAID DECISION, ATTENTION WAS INVITED TO THE FOLLOWING LEGAL PROPOSITION IN CASE THE ADDITION WAS TO BE MADE OR SUSTA INED AND IN THE ABSENCE OF THE SAME, IT WAS SUBMITTED EVEN ON MERITS, THE ADDITION COULD NOT HAVE BEEN MADE : '24. CONSIDERING THE TOTAL FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO APPLYING THE RATIOS OF THE JUDGEMENTS CITED ABOVE, WE ARE OF THE OPINION THAT THE A.O. IS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE ON MONEY IS EXCHANGED BETWEEN T HE PARTIES BASED ON A LOOSE SHEET FOUND IN THE PREMISES OF A THIRD PERSON AND ALSO ADMISSION B Y A THIRD PERSON. TO SUSTAIN THE ADDITION, THE A.O. SHOULD HAVE CONDUCTED AN INDEPENDENT ENQUIRY A BOUT THE VALUE OF THE PROPERTY AND ASCERTAIN WHETHER ANY UNDER VALUATION IS DONE, IF S O WHAT IS THE CORRECT VALUE OF THE PROPERTY. FURTHER, THE A.O. DID NOT BROUGHT ON RECORD ANY EV IDENCE TO SUPPORT HIS CONTENTION TO SAY THAT THERE IS ON MONEY EXCHANGED BETWEEN THE PARTIES. IN THE ABSENCE OF PROPER ENQUIRY AND SUFFICIENT EVIDENCES, WE FIND NO REASON TO CONFIRM THE ADDITION MADE BY THE A.O. THEREFORE, WE REVERSE THE CIT(A) ORDER AND DIRECT THE ASSESSING O FFICER TO DELETE THE ADDITION.' (EMPHASIS SUPPLIED) 5.13.1 THE FACTS IN THE PRESENT CASE, IT WAS SUBMITTED, W ERE MUCH BETTER AS THERE IS NO ADMISSION OF ANY PERSON THAT ANY MONEY WAS PAID OR RECEIVED OVER AND ABOVE THE VALUE RECORDED. 5.13.2 ATTENTION WAS ALSO INVITED TO THE FOLLOWING OBSERVAT IONS OF THE ITAT TO SUPPORT THE CLAIM OF THE ASSESSEE : 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF T HIS CASE AND ALSO APPLYING THE RATIOS OF THE JUDGEMENTS CITED ABOVE, WE ARE OF THE VIEW THAT THE A.O. IS NOT CORRECT IN COMING TO THE CONCLUSION THAT ON MONEY EXCHANGED BETWEEN THE PARTIES, BASED ON A LOOSE SHEET FOUND IN THE PREMISES OF A THIRD PARTY AND ALSO STATEMENT GIVEN BY A THIRD PERSON. TO SUSTAIN THE ADDITION, THE A.O. SHOULD HAVE TAKEN AN INDEPENDENT ENQUIRY ABOUT THE VALUE OF THE PROPERTY AND ASCERTAIN WHETHER ANY UNDER VALUATION IS DONE, IF SO WHAT IS THE CORRECT VALUE OF THE PROPERTY. FURTHER, THE A.O. FAILED TO BRING ANY EVIDENCE TO SUPPORT HIS FINDINGS THAT THERE IS ON-MONEY PAYMENT OVER AND ABOVE WHAT IS ST ATED IN THE SALE DEED. IN THE ABSENCE OF PROPER ENQUIRY AND SUFFICIENT EVIDENCES, WE FIND NO REASONS TO CONFIRM THE ADDITIONS MADE BY THE A.O. THE CIT(A) WITHOUT APPRECIATING FA CTS, SIMPLY UPHELD ADDITIONS MADE BY THE A.O. HENCE, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) AND DIRECT THE A.O. TO DELETE THE ADDITIONS MADE TOWARDS ALLEGED ON MONEY FOR THE ASSESSMENT YEARS 2007-08 & 2008-09. 5.14 RELIANCE WAS PLACED UPON THE DECISION OF THE ANDHRA P RADESH HIGH COURT TAKEN INTO CONSIDERATION BY THE SAID COURT IN THE CASE OF KV LAKSHMI SAVITRI DEVI DATED 10.12.2012 IN ITA 563 OF 2011, (2012) (12) T MI 1111- ANDHRA PRADESH HIGH COURT FOR THE FOLLOWING PROPOSITION : '15. WE ARE OF THE VIEW THAT THE TRIBUNAL HAS RIGHT LY HELD THAT THE REGISTERED DOCUMENT DT. 21.8.2006 UNDE4R WHICH THE RESPONDENT PURCHASED THE ABOVE PROPERTY SHOWED THAT ONLY F 65.00 LAKHS WAS PAID TO THE VENDOR BY THE RESPONDEN T; THAT THERE WAS NO EVIDENCE TO SHOW THAT THE RESPONDENT HAD PAID F 1.00 CRORE IN CASH A/SO T O THE VENDOR; THAT NO PRESUMPTION OF SUCH PAYMENT OF F 1.00 CRORE IN CASH CAN BE DRAWN ON THE BASIS OF AN ENTRY FOUND IN A DIARY/LOOSE SHEET IN THE PREMISES OF C. RADHA KRISHNA KUMAR WHI CH IS NOT IN THE RESPONDENT'S ITA 847/CHD/2017 A.Y. 2006-07 PAGE 11 OF 33 HANDWRITING AND WHICH DID NOT CONTAIN THE NAME OF T HE RESPONDENT OR ANY DATE OF PAYMENT OR THE NAME OF THE PERSON WHO MADE THE PAYMENT. IT RIGHTLY HELD THAT THE REVENUE FAILED TO ESTABLIS H THE NEXUS OF THE SEIZED MATERIAL TO THE RESPONDENT AND HAD DRAWN INFERENCES BASED ON SUSPIC ION, CONJECTURES AND SURMISES WHICH CANNOT TAKE THE PLACE OF PROOF. WE ALSO AGREE WITH THE TRIBUNAL THAT THE AO DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF TH E PROPERTY PURCHASED AND THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IN THE PURCHASE OF THE PROPERTY IS ON THE REVENUE AND IT HAD FAILED TO DISCHARGE THE SAID BURDEN. 5.15 INVITING ATTENTION TO THE AFORESAID DECISION WHICH HAD BEEN RELIED UPON BY THE VISHAKHAPATNAM BENCH OF THE ITAT IN THE CASE OF P .KOTESWARA RAO VS DCIT, CENTRAL CIRCLE, VISAKHAPATNAM (SUPRA) ATTENTION WAS INV ITED TO PAPER BOOK PAGES 259 AND 260 TO SUBMIT THAT THE ITAT HAD R ELIED UPON THE DECISION OF THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS SMT. LAKSHMI SAVITRI DEVI IN ITA 563 OF 2011 (SUPRA) AND WA S PLEASED TO DISMISS THE CHALLENGE POSED BY THE REVENUE TO THE DELETIO N OF THE ADDITION MADE BY THE AO U/S 153C. 5.15.1 THE FACTS TAKEN INTO CONSIDERATION, IT WAS SUBMITTE D, ARE SET OUT IN PARA 10 OF THE SAID DECISION; 10. THE TRIBUNAL HELD THAT THERE WAS NO SEARCH AC TION IN THE CASE OF THE RESPONDENT; THAT THE SEIZED MATERIAL WAS FOUND NOT IN THE PREMISES OF TH E RESPONDENT BUT IN THE PREMISES OF C.RADHA KRISHNA KUMAR; THAT IT WAS A LOOSE SLIP CONTAINING CERTAIN ENTRIES WHICH WAS NOT IN THE HANDWRITING OF THE RESPONDENT; THAT IT DOES NOT CONTAIN EITHER DAT E OF PAYMENT OR THE NAME OF THE PERSON WHO MADE THE PAYMENT; THAT THE NAME OF THE RESPONDENT WAS NOT FO UND IN THE LOOSE SHEET AND ONLY THE NAMES OF C.RADHA KRISHNA KUMAR AND HIS WIFE K.RADHA KUMARI W ERE FOUND THEREIN. IT OPINED THAT THERE WAS NO BASIS FOR THE REVENUE TO PRESUME THAT THE RE SPONDENT HAD MADE THE CASH PAYMENT OF ? 1.00 CRORE EVEN THOUGH THE REGISTERED SALE DEED DT.21- 0 8-2006 IN RESPECT OF THE ABOVE SALE TRANSACTION DISCLOSED ONLY A CHEQUE PAYMENT OF RS. 65.00 LAKHS BY THE RESPONDENT. EVEN IF THE VENDOR K.RAJANI KUMARI ADMITTED RECEIPT OF SALE CONSIDERATION OF ? 1.40 CRORES, THE RESPONDENT HAD NOT ADMITTED PAYMENT OF ? 1.65 CRORES AND IN THE SWORN STATEMENT ONLY STATED THAT SHE WAS NOT AWARE OF ACTUAL CONSIDERATION PAID FOR THE PURCHASE OF THE PROPERTY AS THE TRANSACTION WAS NEGOTIATED BY HER BROTHERS. IT HELD THAT THERE WAS NO DOCUMENT OR MAT ERIAL TO SHOW THAT THE RESPONDENT ACTUALLY PAID ? 1.65 CRORES FOR THE PURCHASE OF THE PROPERTY AND TH E REVENUE HAD DRAWN INFERENCES BASED ON SUSPICION, CONJECTURES AND SURMISES.. 5.15.2 CONSIDERING THE FACTS, IT WAS SUBMITTED THAT THE COURT CAME TO THE FOLLOWING CONCLUSION IN PARA 15 WHICH WAS FOLLOWED BY THE VISA KHAPATNAM BENCH IN THE CASE OF P.KOTESWAR RAO ; 15. WE ARE OF THE VIEW THAT THE TRIBUNAL HAS RIGHT LY HELD THAT THE REGISTERED DOCUMENT DT.21-08- 2006 UNDER WHICH THE RESPONDENT PURCHASED THE ABOVE PROPERTY SHOWED THAT ONLY F 65.00 LAKHS WAS PAID TO THE VENDOR BY THE RESPONDEN T; THAT THERE WAS NO EVIDENCE TO SHOW THAT THE RESPONDENT HAD PAID RS. 1.00 CRORE IN CASH ALSO TO THE VENDOR; THAT NO PRESUMPTION OF SUCH PAYMENT OF RS. 1.00 CRORE IN CASH CAN BE DRAWN ON T HE BASIS OF AN ENTRY FOUND IN A DIARY/LOOSE SHEET IN THE PREMISES OF C.RADHA KRISHNA KUMAR WHIC H IS NOT IN THE RESPONDENT'S HANDWRITING AND WHICH DID NOT CONTAIN THE NAME OF THE RESPONDEN T OR ANY DATE OF PAYMENT OR THE NAME OF THE PERSON WHO MADE THE PAYMENT. IT RIGHTLY HELD TH AT THE REVENUE FAILED TO ESTABLISH THE NEXUS OF THE SEIZED MATERIAL TO THE RESPONDENT AND HAD DRAWN INFERENCES BASED ON SUSPICION, CONJECTURES AND SURMISES WHICH CANNOT TA KE THE PLACE OF PROOF. WE ALSO AGREE WITH THE TRIBUNAL THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE ITA 847/CHD/2017 A.Y. 2006-07 PAGE 12 OF 33 OF THE PROPERTY PURCHASED AND THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IN THE PURCHASE OF THE PROPERTY IS ON THE REVENUE AND IT HAD FAILED TO DISCHARGE THE SAID BURDEN. 5.16 RELIANCE WAS ALSO PLACED UPON THE DECISION OF THE DE LHI HIGH COURT IN THE CASE OF PR. CIT, CENTRAL-2 VINITA CHAURASIA 394 ITR 758 ( COPY AT PAGES 236 TO 339). SPECIFIC ATTENTION WAS INVITED TO THE FACT THA T THE SAID DECISION IS DATED 18.05.2017 AND THIS FACT IS EVIDENT FROM PARA 15 A ND 16 OF THE SAID DECISION PLACED AT PAGED 238 OF THE PAPER BOOK. THE SPE CIFIC PARA IS REPRODUCED HEREUNDER FOR READY REFERENCE : 15. IT REQUIRES TO BE FIRST NOTED THAT THE DOCUMENT RE LIED UPON BY THE REVENUE (ANNEXURE A-1 PAGE 5) TO SUSTAIN THE ADDITIONS MADE TO THE ASSESSABLE INCOME OF THE RESPONDENT HAS NOT BEEN SHOWN TO 'BELONG 1 TO THE ASSESSEE. IN ARRIVING AT THIS CONCLUSION, TH E ITAT FOLLOWED THE DECISION OF THIS COURT IN PEPSICO INDIA HOLDING LTD. V. ACIT (2015) 370 ITR 295 (DEL). MR. SHIVPURI ON THE OTHER HAND SUBMITTED THAT THERE HAVE BEEN SUBSEQUENT DECI SIONS OF THE DBS OF THIS COURT WHICH HAVE EXPLAINED THE AFOREMENTIONED DECISION AND IN PARTIC ULAR THE PHRASE 'BELONGS TO OCCURRING IN SECTION 153C OF THE ACT. HE PLACED PARTICULAR RELIA NCE ON THE DECISIONS IN PRINCIPAL COMMISSIONER OF LNCOME-TAX-8 V. SUPER MALLS (P.) LTD. [2017] 291 CTR 142 (DEL), PRINCIPAL COMMISSIONER OF INCOME TAX, CIRCLE-LL V. SATKAR FINCAP (DECISION DA TED 16TH NOVEMBER, 2016 INN ITA 82 OF 2016) AND PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL)- 2 V. NAU NIDH OVERSEAS PVT. LTD. (DECISION DATED 3RD FEBRUARY, 2017 IN ITA NO.58/2017). 5.17 INVITING ATTENTION TO DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS RENU CONSTRUCTION PVT. LTD., 2017 (9) TMI 670 DATED 06.09.2017, ATTENTION WAS INVITED TO THE FOLLOWING PARA 7 TO 9 OF THE SAID DECISION WHICH IS REPRODUCED HEREUNDER FOR READY REFERENCE : 7. LEARNED COUNSEL FOR THE RESPONDENTS-ASSESSEES, O N THE OTHER HAND, POINTED OUT THAT THIS COURT HAS, IN PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL-2) V. VINITA CHAURASIA [2017] 394 ITR 758 (DEL), AFTER CONSIDERING THE AFOREMENTIONED THREE D ECISIONS, REITERATED THE SETTLED LEGAL POSITION AS EXPLAINED IN PEPSICO INDIA HOLDINGS P. LTD. V. ACIT [2015] 370 ITR 295 (DEL), THAT FOR THE PURPOSE OF INITIATING PROCEEDINGS UNDER SECTION 153 C OF THE ACT, THE SEIZED DOCUMENTS HAD TO BE SHOWN TO BELONG TO THE OTHER PERSON AND NOT MERELY PERTAINING TO SUCH OTHER PERSON. THE CHANGE BROUGHT ABOUT IN THIS REGARD IN SECTION 153 C OF TH E ACT BY WAY OF AMENDMENT HAS BEEN GIVEN PROSPECTIVE EFFECT FROM 1ST JUNE 2015. THE AMENDED PROVISION THEREFORE HAS NO APPLICATION TO THE CASES ON HAND. 8. THE RECENT DECISION OF THE SUPREME COURT IN COMM ISSIONER OF INCOME TAX, PUNE V. SINHGAD TECHNICAL EDUCATION SOCIETY [2017] 84 TAXMANN.COM 2 90 (SC) SETTLES THE LEGAL POSITION IN FAVOUR OF THE ASSESSEES. THE SUPREME COURT, WHILE AFFIRMING T HE JUDGMENT OF THE BOMBAY HIGH COURT, APPROVED THE DECISION OF THE GUJARAT HIGH COURT IN KAMLESHBH AI DHARAMSHIBHAI PATEL V. COMMISSIONER OF INCOME TAX-ILL, (2013) 263 CTR (GUJ) 362 THAT A DOC UMENT SEIZED 'SHOULD BELONG TO A PERSON OTHER THAN THE PERSON REFERRED TO IR SECTION 153A OF THE ACT'. IT HAS BEEN CATEGORICALLY OBSERVED BY THE SUPREME COURT THAT THE ABOVE POSITIOR OF LAW LAID D OWN BY THE GUJARAT HIGH COURT IS CORRECT. 9. CONSEQUENTLY, THIS COURT REJECTS THE CONTENTION OF THE LEARNED COUNSEL FOR THE REVENUE THAT EVEN PRIOR TO 1ST JUNE 2015 AT THE STAGE OF INITIATION O F PROCEEDINGS UNDER SECTION 153C OF THE ACT, IT IS SUFFICIENT THE SEIZED DOCUMENT 'PERTAINED TO' THE O THER PERSON AND IT IS NOT NECESSARY TO SHOW THAT THE SEIZE MATERIAL 'BELONGED TO' THE OTHER PER SON. THIS LEGAL POSITION HAS BEEN EXPLAINED BY THIS COURT IN ITS RECENT DECISION DATED 10TH JULY 2017 I N W.P. (C) NO. 3241/2015 (CANYON FINANCIAL SERVICES LTD. V. INCOME TAX OFFICER). 5.18. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE ADDITION O N FACTS HAS WRONGLY BEEN MADE AND SUSTAINED. THE COPY OF THE ASSE SSMENT ORDER IN THE ITA 847/CHD/2017 A.Y. 2006-07 PAGE 13 OF 33 CASE OF ASSESSEE FIRM FOR 2008-09 ASSESSMENT YEAR SO AS TO HIGHLIGHT THAT THE ASSESSEE WAS ASSESSED BY PR. CIT, CENTRAL CIRCLE, PATIALA. 6. LD. SR.DR ADDRESSING THE FACTS, ON THE OTHER HAND, SUB MITTED THAT SEARCH HAS BEEN CONDUCTED ON THE GROUP CONCERNS OF T HE ASSESSEE ON 13.10.2006. THE ASSESSEE FIRM, ADMITTEDLY WAS CONSTITUTED ON 27.06.2005 AND THUS 2006-07 ASSESSMENT YEAR NECESSARILY WAS THE FIRS T ASSESSMENT YEAR OF THE ASSESSEE FIRM. IT WAS SUBMITTED THAT IT IS NOT IN D ISPUTE THAT THE ASSESSEE FIRM HAS 7 PARTNERS AND MONIKA MITTAL, W/O SHRI NIKHIL MITTAL IS DEFINITELY A PARTNER IN THE FIRM. THE JURISDICTION IN THE FACT S OF THE PRESENT CASE, IT WAS SUBMITTED, HAS CORRECTLY BEEN ASSUMED AND THIS FACT, IT WAS SUBMITTED, IS SUPPORTED BY THE DECISION OF THE APEX COURT IN THE CASE OF AJANTA INDUSTRIES 102 ITR 281 (COPY PLACED AT PAGES 2 65-267). NOTWITHSTANDING THE REPLIES GIVEN IN RTI, IT WAS HIS SUBMISSIO N THAT IN THE FIRST YEAR, IT IS DIFFICULT TO PIN POINT WHERE THE CORRECT ASSE SSMENT IS TO BE MADE. IT WAS ALSO HIS SUBMISSION THAT THE JURISDICTION HA S NOT BEEN OBJECTED TO BY THE ASSESSEE BEFORE THE AO AND THE ASSESSEE HA S FULLY PARTICIPATED IN THE PROCEEDINGS BEFORE THE AO. REFERRING TO THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF DEEP MALHOTR A & OTHERS 334 ITR 232 (P&H), IT WAS SUBMITTED, THE RELIANCE PLACED BY THE LD. AR IS MISPLACED. THOUGH THE LD. AR HAS NOT SPECIFICALLY ADDRESSED THE SAID DECISION, BUT SINCE IT IS MENTIONED IN THE WRITTEN SUBMISSION S, THE LD. CIT- DR SUBMITTED THAT HIS ARGUMENT MAY BE NOTED AS THE SA ID DECISION IS NOT RELEVANT TO THE FACTS OF THE PRESENT CASE. 6.1 SIMILARLY IN THE PAPER BOOK, THE DECISION OF THE DELHI BENCH OF THE ITAT DATED 29.11.2016 IN THE CASE OF SAMTA KHINDA IN ITA 336/D EL/2012 HAS BEEN PLACED AT PAGES 271 TO 276. THE SAID ORDER ALSO, IT WAS SUBMITTED, IS ALSO NOT APPLICABLE AS IN THE FACTS OF THE SAID CASE, CORROB ORATING EVIDENCE WAS NOT AVAILABLE AS THE DOCUMENT RELIED UPON BY THE DEP ARTMENT WAS UNSIGNED AND UNDATED. IN THE FACTS OF THE PRESENT CASE , IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT EXPLAINED TO WHOM THE DOCUM ENTS BELONG. THE AO HAS HELD THAT IT BELONGS TO THE ASSESSEE. 6.2 INVITING ATTENTION TO THE IMPUGNED ORDER, IT WAS SUB MITTED THAT THE CIT(A) AT PAGE 29 HAS RELIED UPON DECISION OF THE DELHI HIG H COURT IN THE CASE OF PR. CIT VS M/S SUPER MALLS PVT. LTD. 76 TAXMAN.COM 267 (DEL) IN ITS JUDGEMENT DATED 22.11.2016 AND THE COURT HAS HELD AS UNDER : '9. A PLAIN READING OF THE NOTE CLEARLY SHOWS THAT SEARCH IN THE BUSINESS PREMISES OF TWO INDIVIDUALS WAS CARRIED OUT; EQUALLY, SURVEY OF PRE MISES OF THE ASSESSEE WAS ALSO CARRIED OUT. IN ITA 847/CHD/2017 A.Y. 2006-07 PAGE 14 OF 33 THE COURSE OF THIS SEARCH OF SHRI VED PRAKASH BHART I-WHO ALSO WAS A DIRECTOR AND ASSESSEE, SOME PEN DRIVES WERE FOUND AND SEIZED. FURTHER DOCU MENTS LISTED IN ANNEXURE A-1 TOO WERE SEIZED AFTER THEIR PRINT OUTS WERE OBTAINED. THESE DOCUMEN TS DETAILED CASH RECEIPTS FOR THE SALE OF THE SHOPS AND OFFICES IN THE ASSESSEE'S OTHER CONCERNS. IN TH ESE CIRCUMSTANCES, HAVING REGARD TO ALL THESE CONSPECTUS OF FACTS, THE AO EXPRESSED UNDER SECTION 153C OF THE ACT THAT THE DOCUMENTS SO SEIZED 'BELONGED' TO THE ASSESSEE. WE ARE UNPURSUAD ED BY THE ASSESSEES SUBMISSIONS THAT THE EXPRESSION 'BELONGED' IN THE CONTEXT IN WHICH I T WAS USED HAS TO BE UNDERSTOOD AS IMPUTING 'RELATING TO', OR ANY OTHER TERM. PLAINLY PUT, THE AO WAS SATISFIED THAT THE DOCUMENTS BELONGED TO THE ASSESSEE IN VIEW OF WHAT WAS CONTAINED OR BROUGHT O UT ON A FAIR READING OF THEIR CONTENTS. IT MUST NOT TO BE OVERLOOKED THAT WHILE CONSTRUING A DOCUMENT, EXPRESSION SHOULD NOT BE INTERPRETED TOO LITERALLY AS IF THEY ARE, WORDS, CARVED IN STONE OR IN A STAT UE AS THE ITAT DID IN THIS CASE. FOR THESE REASONS, WE ARE OF THE OPINION THAT THE ITAT SHOULD NOT HAVE ALLOWED THE APPEAL ONLY ON THI S HYPER TECHNICAL GROUND WITH REGARD TO THE SATISFACTION NOTE. THOSE FINDINGS ARE, ACCORDINGLY SET ASIDE. 10. IN VIEW OF THE ABOVE DISCUSSION, THE ITAT' S DECISION WITH RESPECT TO THE SATISFACTION RECORDE D BY THE AO UNDER SECTION 153C OF THE ACT IS SET ASID E, FURTHER DIRECTION IS ISSUED TO THE ITAT TO HEAR THE APPEALS AFRESH ON MERITS UNINFLUENCED BY T HE OBSERVATIONS OF THIS COURT ON THE CONTENTIONS OF THE PARTIES.' 6.3 IN THE FACTS OF THE PRESENT CASE, IT WAS SUBMITTED T HAT THE NOTE WAS HANDWRITTEN AND ALTHOUGH THE NAME OF THE ASSESSEE IS NO T THERE, BUT THE FACT REMAINS THAT ONLY THE ASSESSEE CAN STATE TO WHOM IT B ELONGS. IN THE ABSENCE OF ANY EXPLANATION, THE ASSESSEE CANNOT DISOWN THE SAME. THE PAPER, IT WAS SUBMITTED, DEMONSTRATES THAT ON-MONEY HAS BEEN PAID. T HE ASSESSEE HAD CHALLENGED THE 263 ORDER AND THE CHALLENGE WAS WITHDRAW N. THUS, 263 ORDERS STANDS ACCEPTED. AFFIDAVIT OF THE SELLER, IT WAS SUB MITTED, RELIED UPON IS A SELF SERVING DOCUMENT AND HAS NO MEANING. WHY WOULD A SELLER ACCEPT THAT HE HAS RECEIVED MORE MONEY, THEN WHAT HAS BEEN D ISCLOSED. IT WAS THE SUBMISSION OF THE LD. CIT-DR THAT THE CIT(A) HAS CORRECTLY MADE THE OBSERVATION IN HIS ORDER THAT IF THE DOCUMENT DOES NOT B ELONG TO THE ASSESSEE, THEN HAS THE SEARCH PARTY PLANTED THE SAME ? RELEVANT EXTRACT FROM THE ORDER RELIED UPON BY THE LD. CIT-DR IS REPRODUCED HEREUNDE R : AS REGARD THE NAME OR SIGNATURE ON THE DOCUMENTS I T IS OBSERVED THAT THE DOCUMENTS ARE TO BE DEALT WITH AS PER THE PRESUMPTION UNDER S ECTION 132 AND AO HAS RIGHTLY OBSERVED THAT IT IS NOT NECESSARY THAT ONLY THOSE D OCUMENTS OR RECORD OF UNACCOUNTED TRANSACTIONS CAN BE USED IN THE ASSESSMENT WHICH AR E SIGNED BY THE PARTNERS. REGARDING THE RECOVERY OF THE DOCUMENTS FROM THE PREMISES OF SH. NIKHIL MITTAL, THE AO HAS RIGHTLY OBSERVED THAT IF TIE WITNESSES AND THE ASSESSEE ARE TO BE BELIEVED, THIS WOULD IMPLY THAT SUCH LOSE DOCUMENTS WERE BROUGHT IN BY THE SEARCH TEAM W HICH IS LOGICALLY IMPOSSIBLE BECAUSE THE SEARCH TEAM IS RANDOMLY CONSTITUTED AND WOULD NOT KNOW SUCH THINGS ABOUT THE ASSESSEE GROUP BEFOREHAND. AS PER THE 'STANDARD OPERATING PROCEDURE' THE SEARCH TEAM GETS SEALED ENVELOPE WITH A 'WARRANT OF AUTHORISATI ON' AND MAP OF THE ASSESSEE'S PREMISES . 6.4 ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE ONUS UPON THE TAX AUTHORITIES STANDS DISCHARGED AND IN THE ABSENCE OF ANY COGENT EXPLANATION ON BEHALF OF THE ASSESSEE, THE ADDITION DESERVES TO BE SUSTAINED. 6.5 INVITING ATTENTION TO THE DECISION OF THE DELHI HIGH COU RT IN THE CASE OF PR. CIT VS SUPERMALLS PVT. LTD. (COPY PLACED AT PAGES 226 TO 227) IT WAS HIS SUBMISSION THAT THE HON'BLE HIGH COURT ACCEPTING THE PR AYER OF THE REVENUE ITA 847/CHD/2017 A.Y. 2006-07 PAGE 15 OF 33 HAS HELD THAT ONCE THE AO WAS SATISFIED THAT THE DOCUME NTS BELONGED TO THE ASSESSEE AND THE EXPRESSION BELONGED TO IS TO BE UND ERSTOOD AS IMPUTING RELATING TO AND IT WAS EMPHASIZED THAT THE COURT HAS MENTIONED THAT IT MUST NOT BE OVERLOOKED THAT WHILE CONSTRUING DOCUMENTS , EXPRESSIONS SHOULD NOT BE INTERPRETED TOO LITERALLY AS IF THEY WERE, WO RDS CARVED IN STATUTE AS HAD BEEN DONE IN THE FACTS OF THAT CASE. TH US, IT WAS HIS SUBMISSION THAT THE HYPER TECHNICAL APPROACH SHOULD NOT BE ADOPTE D. 6.6 INVITING ATTENTION TO THE DECISION IN THE CASE OF PR. C IT VS VINITA CHOURASIA ALSO, REFERRED TO IN THE WRITTEN SUBMISSIONS, IT WA S SUBMITTED THAT IN THE FACTS OF THAT CASE, SAME ASPECTS HAD BEEN LEFT UN- INVESTIGATED AND THE AO WAS FOUND TO HAVE PROCEEDED ON CONJECTURES UNLIKE IN THE FACTS OF THE PRESENT CASE. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE ADDITION MAY BE SUSTAINED. 7. THE LD. AR ON THE OTHER HAND, SUBMITTED THAT IN THE FA CTS OF THE PRESENT CASE, THE AFFIDAVIT OF THE SELLER IS AVAILABLE ON RECOR D. ATTENTION WAS INVITED TO PAPER BOOK PAGES 82-83 WHICH AFFIRMS THE POSITIO N WHICH IS APPARENT ITSELF FROM THE REGISTERED SALE DEED. THE LAW, IT WAS SUBMITTED, IS WELL SETTLED AND ADDITIONS CANNOT BE MADE ON SUSPICIONS AN D CAN BE SUSTAINED ONLY ON THE BASIS OF CLINCHING EVIDENCES WHICH AR E MISSING IN THE FACTS OF THE PRESENT CASE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE RELEVANT PAGES IN THE PAPER B OOK TO WHICH OUR ATTENTION HAS BEEN INVITED TO BY THE PARTIES, HAVE BEEN TAKEN INTO CONSIDERATION INCLUDING THE DECISIONS CITED BY THE PARTIES BE FORE THE BENCH . IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE, SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED ON 13/10/2006 ON NN JEWELLERS GROUP O F AMBALA. SEIZED DOCUMENTS ON THE BASIS OF WHICH THE ADDITIONS HAVE BE EN MADE BY THE AO AND CONFIRMED BY THE CIT(A) HAVE BEEN SCANNED BY THE AS SESSING OFFICER AND APPEAR AT UNNUMBERED PAGES 2 AND 3 OF THE ASSESSMEN T ORDER. THESE HANDWRITTEN SEIZED DOCUMENTS HAVE BEEN DECIPHERED AT UNNUMBERED PAGES 4 AND 5 OF THE ASSESSMENT ORDER. THE AO HAS EXTRACTED THE SUBMISSIONS OF THE ASSESSEE WITH HIS COMMENTS THEREON AT UNNUMBERED PA GES 17 TO 22 OF HIS ORDER. THE ASSESSEE HAS ADDRESSED THE COMMENTS OF THE AO AT PAGES 44 TO 46 AND ELABORATED THESE BY WAY OF CHART WITH ITS POINT W ISE NARRATION AT PAGES 47 TO 55 OF THE PAPER BOOK FILED AND OUR ATTENTION HAS BE EN INVITED TO THE SAID DOCUMENTS IN THE COURSE OF THE ARGUMENTS BY THE PARTIES. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 16 OF 33 8.1 THE ASSESSEE IN THE FACTS OF THE PRESENT CASE, AT THE ASS ESSMENT STAGE HAS TAKEN THE POSITION THAT THE DOCUMENTS WERE NOT SEIZED OR FOUND FROM THE RESIDENCE OF SH.NIKHIL MITTAL. THE SAID CLAIM HAS BEE N REJECTED BY THE ASSESSING OFFICER ON THE REASONING THAT THE SEIZED DO CUMENTS ARE HANDWRITTEN AND MAKE A REFERENCE TO GULATI JI WHO IS PROB ABLY THE SELLER OF THE PROPERTY I.E. MR SUDHIR GULATI. THE FACT THAT THE NAM E OF THE ASSESSEE IS NOT FOUND MENTIONED IN THE SAID DOCUMENT WHICH IS ALSO A N ARGUMENT RAISED TO STATE THAT THE DOCUMENT DOES NOT BELONG TO THE AS SESSEE HAS ALSO BEEN DISCARDED ON THE REASONING THAT SINCE IT IS FOUND F ROM THE RESIDENCE OF SH. NIKHIL MITTAL AND HIS WIFE SMT. MONICA MITTAL WAS A PARTNER IN THE ASSESSEE FIRM, ACCORDINGLY, IT HAS BEEN HELD THAT THE CLAIM WAS TO BE REJECTED. AS WE UNDERSTAND, THE ASSESSING OFFICER HAS BEEN OF THE V IEW THAT SINCE THE DOCUMENTS HAVE BEEN FOUND IN THE COURSE OF THE SEARCH FRO M THE RESIDENCE OF THE PARTNERS/SPOUSE, THE REQUIREMENT OF LAW THAT IT BELONGS TO THE ASSESSEE IS FULFILLED. THE PRIMARY OBJECTION THAT THE DOCUMENTS WERE NO T FOUND EVEN FROM THE PREMISES OF MR. NIKHIL MITTAL WHICH ASSERTION IS SUPPORTE D BY AFFIDAVITS OF THE WITNESSES TO THE SEARCH NAMELY SH. ASHOK KUMA R AND SRI RAM PARTAP BANSAL, WAS ALSO NOT ACCEPTED IN VIEW OF THE FACT TH AT THE ASSESSEE INITIALLY DID NOT PRODUCE THE SAID WITNESSES. HOWEVER IN RESPONSE TO SUMMONS ISSUED UNDER SECTION 131 BOTH THE WITNESSES, IT IS SEEN, D ID APPEAR AND WERE CROSS- EXAMINED. THE CONTENTS OF THE CROSS EXAMINATION HAS BEEN RECORDED AT UNNUMBERED PAGES 11 TO 14 OF THE ASSESSMENT ORDER. FOR READY REFERENCE THE CONTENTS OF THE STATEMENTS RECORDED DURING THE CROS S EXAMINATION BY THE ASSESSING OFFICER ARE EXTRACTED HEREUNDER FROM UN-N UMBERED PAGES 11 TO 13 OF THE ASSESSMENT ORDER : CROSS EXAMINATION BY THE ASSESSING OFFICER 1. SH. ASHOK KUMAR PLEASE STATE YOU SOURCE OF INCOME, WHETHER YOU ARE ASSESSEE TO TAX? ANS. MY SOURCES OF INCOME ARE AS UNDER:- A. SALARY FROM SHILPA AGENCIES, RAI MARKET, AMBALA. TH E FIRM CARRY ON THE BUSINESS OF ELECTRONIC GOODS. B. RENTAL INCOME OF RS. 60,000/- PER YEAR FROM A GODWO N LET OUT TO SHILPA AGENCIES SITUATED IN 69, NEW GRAIN MARKET, AMBALA. C. INTEREST INCOME FROM KESRIAJI RICE MILLS, AMBALA. I AM ASSESSED TO TAX WITH ITO, WARD-1, AMBALA. MY P AN IS AAQPJ3300G. 2. YOU HAVE STATED IN YOUR STATEMENT ON OATH IN ANS WER OF QUESTION NO. 2 THAT I WAS ASKED BY THE SEARCH PARTY T 9.30 AM THEREAFTER, I W AS ASKED TO LEAVE THE PLACE AND REMAIN AT THE HOUSE TO BE CALLED LATER ON AND YOU HAVE ALSO S TATED THAT YOU WERE CALLED AGAIN AT 1.30 PM WHEN THE PUNCHING WORK WAS BEING CARRIED ON, YOU WERE APPOINTED AS A WITNESS BEFORE STARTING THE SEARCH AND A ORDER UNDER RULES 113(6) WAS SERVED UPON YOU. THIS ORDER CLEARLY SPECIFIC THAT YOU WILL NOT DEPART UNTIL THE SEARCH IS NOT COMPLETED. WHETHER ANY WRITTEN ORDER WAS GIVEN TO YOU TO LEAVE THE SEARCH PARTY? ANS.: THE OFFICERS STATED THAT WE HAVE TO RECORDED THE ST ATEMENT OF THE PARTY WHEN, WE WILL NEED YOU, WE CALL YOU AGAIN. YOUR AVAILABILITY MUST BE ON OUR CALL, MY HOUSE IS ADJOINING ITA 847/CHD/2017 A.Y. 2006-07 PAGE 17 OF 33 WITH SH. NIKHIL MITTAL, YOU SIT THERE WE WILL CALL YOU L ATER, AT THE TIME OF NEED. YOUR STAFF AND POLICEMEN WERE THERE, THEY WERE PRESENTING THE ENTR IES AND EXITS, YOUR OFFICER ORDERED THE POLICE PARTY TO GET SIT SH. ASHOK KUMAR IN OTHER SI DE OF ADJOINING COMMON WALL OF THE TWO HOUSES AS I WAS SITTING THERE IN OPEN AREA NOT IN A NY ROOM, SO THAT MY PRESENCE WAS SEEN BY YOUR STAFF AND WAITING FOR THERE CALL. I AM NOT ANY LEGAL PERSON OR A ADVOCATE PERSON AND NOT ANY KNOWLEDGE OF THE SECTION 112(6) OF THE INCOME T AX, I AM A COMMON MAN AND NOT KNOW ANY LEGAL ASPECTS OF THE THINGS. I ONLY OBEYED THE ORDER OF YOUR OFFICER AT THAT TIME. 3. AS YOU HAVE STATED THAT YOU HAD GONE TO YOUR HOU SE ON THE ORDER OF THE OFFICERS OF SEARCH PARTY. ORDER UNDER RULE 112(6) OF THE IT ACT , WAS SERVED UPON YOU NOT TO DEPART TILL THE SEARCH IS NOT COMPLETED, THEREFORE, IT IS CLEAR THA T NO OFFICER OF THE DEPARTMENT CAN INSTRUCT YOU OR THE POLICE PARTY TO DEPART FROM THE SEARCH PLACE . THEREFORE, IT IS CLEAR THAT YOU ARE COOKING A STORY TO SPOIL THE PROCEEDING OF THE INCOME TAX D EPARTMENT. ANS.:- I WAS NOT TOLD MY RIGHTS AND DUTIES AT THAT TIME. I HAVE OBEYED THE ORDER OF YOUR OFFICER. I SHALL HAVE TO OBEY THE ORDER OF THAT OFF ICER WHO SIGNED ON MY ORDER/NOTICE. AT PRESENT ON DATED 224(***)-11-2008, IN THE PROCEEDIN GS YOU HAVE SERVED ORDER ON MEN I PRESENTED AND ASKED ME TO GO OUT AND I SHALL CALL Y OU AGAIN. I HAVE NOT ASKED ANY WRITTEN ORDER IN THIS REGARD, I ONLY OBEYED YOUR VERBAL ORD ER AND I HAD TO LEAVE DURING THE PROCEEDINGS. IN THE SAME WAY THINGS HAPPEN AT THE T IME OF SEARCH. I HAVE NOT LEFT THAT AREA AND I AM WAITING OTHER SIDE OF THE COMMON WALL FOR THEIR CALL. 5. YOU STATED IN YOUR STATEMENT THAT THE THINGS WERE N OT RECOVERED FROM THE RESIDENCE OF SH. NIKHIL MITTAL IN YOUR PRESERVE, YOU SAW ONLY HEAP O F THINGS WHICH WERE BEING PUNCHED BY THE SEARCH PARTY. YOU RAISED OBJECTION IN SINGING THREE PAPERS RELATING TO PROPERTIES, BUT YOU DID NOT RAISE ANY OBJECTION IN SINGING THE OTHER PAPERS , WHICH WERE ALSO NOT RECOVERED IN YOUR PRESENCE AS PER YOUR STATEMENT AS MENTIONED ABOVE, WHICH PROVE THAT YOU RAISED OBJECTION IN SINGING THE THREE PAPERS OF THE PROPERTY DELIBERATE LY WITHOUT ANY BASIS TO SPOIL THE PROCEEDINGS OF SEARCH BEST KNOWN BY YOU? ANS.:- YOUR INITIAL QUESTION WAS WHICH WAS HAPPENIN G WHEN YOU REACHED AT 1.30PM. IN THAT REPLY I STATED THAT WHEN I REJOIN THERE WAS A HEAP OF THINGS AND THEY WERE PUNCHING THE THINGS AND PAPERS. IN THAT HEAP WHAT WAS TALKING OU T I HAD SIGNED THAT WHATEVER, WAS NOT TAKEN FROM THAT HEAP I SIGNED ONLY WITH REMARK THAT THIS IS NOT OUT OF THAT HEAP. REFERENCE OF YOUR QUESTIONS REGARDING THREE PAPERS RELATING T O PROPERTIES BUT I NOT REMEMBER THE EXACT NO. OF THE ABOVE SAID PROPERTY PAPERS WHAT WAS HAPP ENING THERE AND THERE WAS NOTING TO MISLEAD THE DEPARTMENT. READ OVER AND ACCEPTED CORRECT (ASHOK KUMAR) CROSS EXAMINATION STATEMENT OF SH. RAM PARTAP BANSA L 1. YOU HAVE STATED IN YOUR STATEMENT THAT YOU WERE CALLED AS A WITNESS AT 2 PM AND NOTHING WAS RECOVERED BEFORE YOUR EYES FROM THE RESIDENCE OF SH . NIKHIL MITTAL. YOU WERE APPOINTED WITHNESS BEFORE STARTING OF SEARCH AND IT IS MENTIO NED IN THE ORDER THAT YOU WILL NOT LEAVE THE PALACE UNTIL THE SEARCH IS ENDED. WHETHER YOUR STAT EMENT IS CORRECT THAT YOU WERE CALLED AT 2 PM. ANS.: YES, I WAS CALLED AT 2 PM AND I WAS NOT INFOR MED PRIOR 2 PM AND DID NOT GO ANYWHERE LATER ON. NOTHING WAS RECOVERED BEFORE ME . 2. WHERE YOU BEFORE 2 PM, WHETHER YOU WERE APPOINTE D 2 PM. ANS:- I WAS DOING MY WORK BEFORE 2 PM AND U WAS APP OINTED AS WITNESS AT 2 PM. I WAS GOING IN A CREMATION PROGRAMME AND I WAS CALLED ON THE WAY. 3. WHETHER YOU WERE NOT APPOINTED WITNESS BEFORE S TARTING OF SEARCH. ANS.:- NO, SIR I WAS APPOINTED WITNESS AT 2 PM. 4. YOU HAVE RAISED OBJECTION ON THE PAPERS NO. 31,3 2, 33 OF ANNEXURE A-1, SEIZED FROM THE RESIDENCE OF SH. NIKHIL MITTAL, PLEASE STATE WH Y HAVE YOU RAISED OBJECTION IN R/O THE ABOVE SAID PAPERS, NO. 31,32,33 WHILE AS PER YOUR STATEME NT OTHER PAPERS WERE ALSO NOT SEIZED BEFORE YOU, WHICH CLEARS THAT YOU ARE NOT SPEAKING TRUTH. ANS.: NO IT IS WRONG THAT I REFUSED TO SIGN THE THR EE PAPERS OR NOT RECOVERED BEFORE ME. I TOLD CLEARLY WHAT WAS TRUE. NO MATERIAL WAS RECOVER ED BEFORE ME. THOSE WERE SEALED BEFORE ITA 847/CHD/2017 A.Y. 2006-07 PAGE 18 OF 33 ME. THEREFORE, I MENTIONED AT THE TIME OF SIGNATURE THAT NO MATERIAL OR DOCUMENT WAS RECOVERED BEFORE ME. 8.2 ASSESSING OFFICER DISBELIEVES THE OBJECTIONS OF THE ASSESSEE SUPPORTED BY AFFIDAVITS OF THE TWO WITNESSES TO THE SEARCH CORRO BORATED BY THEIR STATEMENTS RECORDED BY HIM IN CROSS-EXAMINATION EXTRACTED IN H IS ORDER ONLY ON THE REASONING THAT THE DOCUMENTS COULD NOT HAVE BEEN BROU GHT BY THE SEARCH PARTY. HE RELIES ON THE PROTOCOLS ESTABLISHED BECA USE ACCORDING TO HIM, AS PER STANDARD OPERATING PROCEDURES, THE SEARCH TEAM ONLY GETS THE SEALED ENVELOPE WITH SEARCH AUTHORIZATION AND THE MAP OF THE ASSESS EE'S PREMISES. THUS, IT HAS BEEN CONCLUDED BY HIM THAT IT IS IMPOSSIBLE THAT THEY WOULD ESPECIALLY PREPAR E THE INCRIMINATING LOOSE DOCUMENT AND CARRY THEM TO THE ASSESSEE FIRMS PARTNERS HOUSE. THUS, ON ACCOUNT OF LACK OF MOTIVE OF THE SEARCH PARTY AND INFORMATION WITH THEM, THE SAID ARGUMENT WAS HELD TO BE WITHOUT ANY BASIS. THE ARGUMENTS OF THE ASSESSEE THAT ON THE DOCUMENT, THE ONLY WORDS MENTIONED IS GULATI AND THAT BY ITSELF DOES NOT NECESSARILY MEAN THAT IT IS SUDHIR GULATI BUT, EVEN IF IT IS SO, THEN MR SUDHIR GULATI HAS CONFIRMED BY WAY OF HIS AFFIDAVIT THE FACT THAT THE SPECIFIC PROPERTY HAS BEEN S OLD AT THE SPECIFIC PRICE MENTIONED IN THE SALE DEED. THE SAID CLAIM HAS ALSO BEEN HELD TO BE NOT RELEVANT BY THE AO. THE OBJECTIONS OF THE ASSESSEE TH AT THESE WERE NOT IN THE WRITING OF SHRI NIKHIL MITTAL AND WERE ALSO HELD TO BE NOT RELEVANT. THE OBJECTION THAT THESE WERE UNSIGNED WAS ALSO DISCARDED O N THE REASONS THAT LOOSE PAPERS NEED NOT BE SIGNED. 8.3 THE SPECIFIC CHART AT UNNUMBERED PAGES 17 T O 22 OF THE ASSESSMENT ORDER BRINGS OUT THE SPECIFIC REASONS ON THE BASIS OF WHICH THESE SUBMISSIONS ON BEHALF OF THE ASSESSEE HAVE BEEN DISCARDED. THE SAME IS REPRODUCED HEREUNDER FOR READY REFERENCE : S.NO. ARGUMENT BY THE FIRM OBSERVATION 1 IT IS A FACT THAT NO DOCUMENTS OR ANY PAPER BELONGING TO THE ASSESSEE HAVE BEEN FOUND FROM THE PREMISES OF THE APPELLANT. THIS ASSERTION IS WRONG. IT HAS DISCUSSED IN DETAIL THAT HOW THE DOCUMENTS FOUND ARE RELATED TO THE ASSESSEE FIRM. 2 IN THE DOCUMENTS WHICH HAVE BEEN ALLEGED TO BE FOUND FROM THE PREMISES OF SH. NIKHIL MITTAL, THERE IS NO NAME OF THE ASSESSEE AND NEITHER THERE ARE SIGNATURES OR NOTINGS MADE BY THE APPELLANT OR BY ANY OF THE PARTNER OF THE FIRM. THERE IS NO REQUIREMENT IN LAW THAT THE NAME OR SIGNATURE IS A MUST FOR ASSESSMENT. THE REAL TEST IS WHETHER THOSE DOCUMENTS SHOW ACTUAL DETAIL OF THE TRANSACTION. THE FINDING AFTER LOGICAL REASONING AND THE ANALYSIS OF FACTS IS THAT THE ENTRIES ON THE LOOSE DOCUMENTS SHOW INVESTMENT IN LAND BY THE FIRM AT ITS REAL VALUE. 3 THERE IS NO STATEMENT OF SH.NIKHIL MITTAL RELATING TO THE ASSESSEE HAVE BEEN ITA 847/CHD/2017 A.Y. 2006-07 PAGE 19 OF 33 RECORDED, AND RATHER SH.NIKHIL MITTAL DURING THE COURSE OF SEARCH HAD TAKEN A STAND THAT THIS PIECE OF PAPER WAS NEVER FOUND FROM THEIR PREMISES. 4 AFFIDAVIT OF INDEPENDENT WITNESS OF SH.RAM PARTAP BANSAL DATED 14-05-2010 WHEREIN HE HAS CONFIRMS THAT THOSE PAPERS WERE NEVER SEIZED FROM THE PREMISES OF SH.NIKHIL MITTAL. 5 AFFIDAVIT OF INDEPENDENT WITNESS OF SH.ASHOK KUMAR JAIN DATED 15-05-2010 WHEREIN HE HAS CONFIRMED THAT THOSE PAPERS WERE NEVER SEIZED FROM THE PREMISES OF SH.NIKHIL MITTAL. 6 STATEMENT OF SH.RAM PARTAP BANSAL IN RESPONSE TO SUMMONS UNDER SECTION 131 AND CROSS EXAMINED BY ASSESSING OFFICE WHERE IN IT HAS BEEN CONFIRMED THAT THE SAID DOCUMENTS HAS NOT BEEN FOUND IN THE PREMISES OF SH. NIKHIL KUMAR MITTAL. 7 STATEMENT OF SH.ASHOK KUMAR JAIN IN RESPONSE TO SUMMONS UNDER SECTION 131 AND CROSS EXAMINED BY ASSESSING OFFICE WHERE IN IT HAS BEEN CONFIRMED THAT THE SAID DOCUMENTS HAS NOT BEEN FOUND IN THE PREMISES OF SH. NIKHIL KUMAR MITTAL. IN ALL THESE POINTS THE ISSUE RAISED BY THE ASSESSEE FIRM, IS THAT THE SEIZED DOCUMENTS WERE NOT FOUND FROM THE PREMISES OF MR. NIKHIL MITTAL. THE MATTER HAS BEEN DISCUSSED ABOVE IN DETAIL. IT HAS BEEN PROVEN BEYOND DOUBT THAT THE DOCUMENTS WERE FOUND AND SEIZED FROM THE PREMISES OF MR. NIKHIL MITTAL AND MRS.MONICA MITTAL, THE LATTER BEING THE PARTNER IN THE ASSESSEE FIRM. 8 AFFIDAVIT BY SH. SUDHIR GULATI SELLER OF THE LAND CONFIRMING THAT HE HAS NOTHING TO DO WITH PAPER FOUND WITH SUCH PAPER AND HE HAS CONFIRMED HE. HAS SOLD THE PROPERTY FOR RS.6692000/-. 9 THE STATEMENT OF SH.SUDHIR GULATI WAS RECORDED FOR WHICH, HE WAS ISSUED SUMMON U/S 131 BY THE ASSESSING OFFICER IN WHICH, HE AGAIN CONFIRMED THAT HE HAS NO LINK OR CONNECTION WITH SUCH SEIZED PAPER. THIS IS SELF SERVING AFFIDAVIT AND OF NO VALUE. IT DOES NOT COUNT AS EVIDENCE AS THE SELLER IS HIMSELF A PARTY TO THE UNACCOUNTED TRANSACTION. HIS NAME APPEARS ON THE LOOSE DOCUMENTS FOUND AND THE REGISTRATION DEEDS SHOW HIM AS SELLER. 10 SAID PAPER IS UNSIGNED UNDATED AND WITHOUT HAND WRITING OF ANY PARTNER OR THESE POINTS DO NOT MINIMIZE IN ANY MANNER THE POTENCY OF THE DOCUMENTS. IT IS NOT NECESSARY IN LAW FOR A ITA 847/CHD/2017 A.Y. 2006-07 PAGE 20 OF 33 ANY FAMILY MEMBER OF THE PARTNERS DOCUMENTARY EVIDENCE TO BE SIGNED OR BE IN HANDWRITING OF THE PARTNER. THE REQUIREMENT OF LAW IS THAT THE ENTRIES RECORDED THEREIN SHOULD BE A TRUE REFLECTION OF THE STATE OF AFFAI R S. IN THE PRESENT CASE THE TRUTHFULNESS OF DOCUMENT HAS BEEN ESTABLISHED THROUGH VARIOUS LINKAGES AS ALREADY DISCUSSED. MOREOVER AS PER SECTION 132 (4A) OF THE ACT 1961 OF IT IS A LEGALLY PROVIDED PRESUMPTION THAT THE CONTENTS OF SUCH DOCUMENTS FOUND DURING THE SEARCH ARE TRUE. FURTHERMORE IN THE PRESENT CASE THE CONTENTS OF THESE DOCUMENTS ARE ALSO CORROBORATED BY THE LEDGER ENTRIES FOUND FROM THE RESIDENCE OF SH NARESH AGGARWAL (PARTNER OF NIKHIL MITTAL) AS ALREADY DISCUSSED EARLIER. 11 IN THIS PAPER PLACE/ LOCATION OF LAND PERSONS AND SHARES OF PERSONS NOT CLEAR. 12 TOTAL SHARES MENTIONED IN THE PAPER COME TO 90% WHICH DOES NOT MATCH WITH 100% SHARES AS PER PARTNERSHIP DEED. 13 PARTNERSHIP DEED OF THE SHREE ESTATE CONSIST SEVEN PARTNERS AND PAPER HAS NO LINK WITH THESE PARTNERS. 14 SUSHIL JI SHARE RS. 9144007- HAS NO MEANING AND SUSHIL JI 15% DOES NOT MATCH WITH SHARE OF ANY PERSON. SUSHIL IS NOT PARTNER IN THE FIRM. REGARDING THE PLACE /LOCATION ETC OF LAND. IT IS CLEAR FROM THE REGISTRATION DEEDS THAT THE LAND IN QUESTION IS AT VILLAGE SADUPUR AND VILLAGE KAKRU, AMBALA. IN ALL THESE ARGUMENT THE ASSESSEE FIRM IS ATTEMPTING TO SHOW A MISMATCH BETWEEN THE LOOSE DOCUMENTS AND THE PARTNERSHIP DEED OF THE FIRM. SUCH COMPARISON IS NOT REQUIRED AND EVEN IF MADE IT DOES NOT MAKE ANY SENSE. IT IS A. FACT THAT THE PROPERTY WAS PURCHASED BY THE FIRM. THE EVIDENCE IN THIS REGARD IS THE REGISTRATION DEEDS WHERE THE BUYER IS THE FIRM. NOW, ON BEHALF OF FIRM WHETHER IT WAS ONE PARTNER OR MANY OR ALL WHO CONDUCTED THE 15 SH.VIKAS, VISHAL, MANOJ AND ASHIH KUMAR PARTNER OF SHREE ESTATE FIND NO PLCICE IN THE PAPERS. MANOJ HAS NO RELATION WITH NIKHIL AND SUSHIL HAS NO RELATION WITH ANYONE. TRANSACTIONS DOES NOT MATTER BECAUSE IN THE END IT IS THE FIRM WHO DID THE TRANSACTION. AS FAR AS FIRM'S INVESTMENT IS CONSIDERED THE ENTIRE 100% SHARE BELONGS TO THE FIRM. 16 THE FOLLOWING FIGURES GIVEN IN THE PAPERS DOES NOT TALLY IN ANY WAY. 1. 37422200 FOUR SHARE DO NOT MATCH WITH PARTNERSHIP DEED OF SHREE ESTATE. 2. N.N. 50% SHARE DOES NOT MATCH WITH IN ANY CASE THERE IS NO OTHER EXPLANATION WITH THE ASSESSEE REGARDING THE DETAILS THAT ACTUALLY MATCH PERFECTLY WITH THE SEIZED DOCUMENTS. THUS THE PRIMARY ONUS ITSELF AT THE END OF THE ASSESSEE FIRM IS NOT SATISFACTORILY DISCHARGED. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 21 OF 33 PARTNERSHIP DEED. 3. SUNIL/SUSHIL 15% SHARE DOES NOT MATCH WITH PARTNERSHIP DEED. 4. NITIN 25% SHARE DOES NOT MATCH WITH PARTNERSHIP DEED. 5. TOTAL SHARE 50% + 25% + 15% =90% AMOUNT 18711100 50% 9355550 15% 15% 9453100 15% 15% DOES NOT MATCH WITH 15% OF 37422200 - 5613330 = 9453100. 17 M/S.SHREE ESTATE AND THE - NAMES OF THE PARTNERS IN M/S.SHREE ESTATE DID NOT MATCH WITH THE NAMES AS MENTIONED IN THE SEIZED DOCUMENTS IN TOTALITY? 18 COPY OF THE PARTNERSHIP DEED OF M/S. SHREE ESTATE PROVES THIS FACT, WHERE NO NAME OF NN OR SUSHIL IS THERE AND , HOW THAT PAPER HAS BEEN LINKED WITH M/S. SHREE ESTATE IS TOTALLY A PRESUMPTION. THE DOCUMENT IS LINKED TO M/S SHREE ESTATES ON THE BASIS OF THE TRANSACTION. THE LAND IS REGISTERED IN NAME OF M/S SHREE ESTATE AND THE STAMP DUTY AMOUNTS, THE NAME OF THE SELLER, THE REGISTERED SALE CONSIDERATION ETC ALL MATCH WITH THE ENTRIES IN THE LOOSE DOCUMENTS 19 NAME OF THE BANK HAS BEEN MENTIONED WHERE IN RUPESS 60000/- HAS BEEN WITHDRAWN OR DEPOSITED BUT IN THE BANK STATEMENT OF SHREE ESTATE NO SUCH ENTRY HAS BEEN FOUND. THIS FACT IS WRONG. NAME OF THE BANK OR ITS BRANCH IS NOT MENTIONED. IN ANY CASE IF THIS FACT WERE OF HELP TO THE ASSESSEE THEN THE ASSESSEE HAS THE FIRST ONUS TO BRING FORTH THE DETAILS OF THE SO CALLED BANK BECAUSE THE DOCUMENT WAS FOUND FROM ITS POSSESSION. WHERE THE ASSESSEE HAS FAILED TO PROVE ITS POINT, THERE IS NO BURDEN ON REVENUE TO LINK ALL IRRELEVANT DETAILS BECAUSE THE CORE DETAILS HAVE BEEN ESTABLISHED. 20 THE NAME OF SUSHIL JI WRITTEN AND IT IS NOT UNDERSTOOD AS TO, HOW, THE ASSESSEE IS LINKED WITH THIS NOTHING, WHICH IS NEITHER IN HIS OWN HAND WRITING AND NEITHER IT IS FOUND FROM THE ASSESSEE'S PREMISES AND NOR THERE IS ANY LINK OR CONNECTION OF THIS PAPER WITH THE ASSESSEE. IT HAS BEEN DISCUSSED IN GREAT DETAIL IN EARLIER PART OF THIS ORDER THAT HOW THE DOCUMENTS ARE LINKED TO M/S SHREE ESTATES. 21 M/S. SHREE ESTATES, A PARTNERSHIP CONCERN BACK SIDE OF THE SEIZED DOCUMENTS BY LINKING IT TO THE PARTNERSHIP DEED THIS POINT IS NOT RELEVANT HERE AS IT IS WITH REFERENCE TO THE ASSESSMENT OF PARTNERS WHILE THE CASE OF THE FIRM IS BEING CONSIDERED HERE. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 22 OF 33 M/S. SHREE ESTATES, IN WHICH ASSESSEE IS PARTNER OF 25% SHARE, THEN HOW THIS SUSHIL JI IS CONNECTED WITH THE PARTNERSHIP CONCERN, HAS NOT BEEN CLARIFIED. AS PER THE PARTNERSHIP DEED, WHOSE NAMES HAVE BEEN REPRODUCED IN THE ASSESSMENT ORDER, SH.SUSHILJI IS NOT A PARTNER 22 THE SHARE OF 15% OF SH.SUSHIL JI, WHOSE NAME DO NOT APPEAR IN THE PARTNERSHIP DEED OF M/S.SHREE ESTATES AND NEITHER ANY ASSESSMENT HAS BEEN FARMED OF ONE SH.SUSHIL JI, THEREFORE, THE WHOLE BASIS OF FRAMING THE ASSESSMENT ONLY ON THE BASIS OF DUMP DOCUMENT IS VOID ABINITIO. THE SAID DOCUMENT IS NOT A DUMP DOCUMENT. THE SEIZED DOCUMENTS ARE FULL OF ENTRIES IN GREAT DETAILS. THE ENTRIES ARE CORROBORATED BY OTHER EVIDENCE AS WELL. THERE IS NO OTHER PLAUSIBLE EXPLANATION AS WELL. A DOCUMENT IS DUMP WHEN NO SENSE CAN BE MADE OUT OF THAT. IN THE PRESENT CASE THE DETAILS ARE CRYSTAL CLEAR. THE PROPERTY IN QUESTION HAS BEEN IDENTIFIED AND ITS DETAILS MATCH WITH THOSE ON THE SEIZED DOCUMENTS EXCEPT THE AMOUNT INVOLVED WHERE THE INVOLVEMENT OF UNACCOUNTED MONEY IS BEING PROVED. 23 NOTHING OF JAGADHARI- CHANDIGARH ROAD WHICH IS AS PER PAGE NO.31 & 32 OF THE SEIZED DOCUMENTS FOUND FROM SH.NIKHIL MITTAL AND HAS NO LINK THE SAME WITH THE EARLIER PIECE OF PAPER. THIS APPEARS TO BE AN ADDRESS AND THE IT IS THE ASSESSEE OR HIS GROUP MEMBERS WHO HAVE TO GIVE THIS DETAIL IN THEIR DEFENCE. IN THE PRESENT CASE NO DETAIL HAS BEEN GIVEN AND THEREFORE THERE IS NO FURTHER BURDEN ON REVENUE TO IDENTIFY THE MEANING OF THIS PHRASE AS WITH THE HELP OF OTHER EVIDENCES THE LOGICAL CONCLUSION IS EASILY DRAWABLE. 24 THE PLOT IS NOT LOCATED AT JAGADHRI-CHANDIGARH ROAD AND THEREFORE, THERE IS NO LINK OR CONNECTION WITH THE ALLEGED INVESTMENT IN THE PROPERTY OF M/S.SHREE ESTATES THE LAND IN QUESTION HAS BEEN IDENTIFIED AS PER THE REGISTRATION DEEDS IN FAVOUR OF M/S SHREE ESTATES. 25 THE AGAIN IT HAS REPRODUCED THE NAMES OF THE PARTNERS AND THEIR SHARES IN THE ASSESSMENT ORDER IN RESPECT OF M/S.SHREE ESTATE AND THERE IS NO NAME OF ANY OF THE PARTNER IN THE SEIZED DOCUMENTS AND THUS, THE WHOLE BASIS OF FRAMING THE ASSESSMENT IS NOT PROPER. THIS POINT IS NOT RELEVANT HERE AS IT IS WITH REFERENCE TO THE ASSESSMENT OF PARTNERS WHILE THE CASE OF THE FIRM IS BEING CONSIDERED HERE. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 23 OF 33 8.4 ON ACCOUNT OF THE ABOVE REASONS, THE CLAIM OF T HE ASSESSEE WAS REJECTED BY THE AO. 8.5 THE ASSESSEE ADDRESSED THESE OBJECTIONS BEFO RE THE CIT(A) VIDE PAGES 44 TO 46 OF THE PAPER BOOK AND FURTHER ELABORATED BY WAY OF A DET AILED CHART PLACED AT PAGES 47 TO 55 OF THE PAPER BOOK FILED. SAME IS EX TRACTED HEREUNDER FOR READY REFERENCE : SNO. A/PAGE 31 (FRONT SIDE) IT IS A HAND WRITTEN PAGE CONTAINING FOLLOWING DETA ILS: COMMENTS/OBSERVATION ON THE NOTINGS ON THE ABOVE PAGE OUR COMMENTS I-REG II REG GULATI JI FIRST REG EX STAMP REG WRITING BANK EXP PHOTOSTATE EXPENSES BANK 3,67,98,250.00 10,700.00 31,050.00 32,600.00 1800.00 420.00 280/- 3,68,74,800.00 60,000.00 3,69,34.800.00 + 4,87,400 3,74,22,200/- 93,55,550 PER SHARE STAMP STAMP RE EXP RE EXP REG WRITING REG AUDIT 1,09,900.00 1,68,000.00 8,300.00 15,200.00 1000.00 3,03,400.00 + 1,84,000.00 4,87,400 GULATI JI (SHRI SUDHIR GULATI) IS THE SELLER TO WHOM RS.3,67,98,250/- HAS BEEN PAID. 1- REGISTRATION REFER TO TWO TIMES WHEN THE REGISTRIES ARE DONE. THUS, THERE ARE FOUR SEPARATE REGISTRIES. THE DETAIL OF THE ENTIRE ACTUAL PAYMENT DONE IN NUMBER ONE AND NUMBER TWO IS GIVEN ON FRONT SIDE OF PAGE 31. WHEREAS, THE DETAILS OF FOUR REGISTRIES AND THE PAYMENTS IN NUMBER ONE- IS GIVEN ON BACK SIDE OF THE PAGE 31 ('NO.L' IS ALSO WRITTEN ON BACK SIDE OF PAGE 31). I ON FRONT SIDE OF PAGE 31 THE TOTAL AMOUNT PAID ; TO THE SELLER, STAMPS REGISTRY EXPENSES ETC. IS J TOTALING TO RS.3,74,22,200/-. THIS IS DIVIDED IN I FOUR SHARES AND PER SHARE IS CALCULATED TO BE RS.93,55,550/- PER SHARE THE DOCUMENT WAS NOT FOUND FROM THE PREMISES OF SH. NIKHII MITTAI. THE NAME ONLY MENTIONED IS OF GULATI. THE DEPARTMENT IS TRYING TO ESTABLISH THAT THE GULATI IS SH. SI.DHIR GULATI. THE DOCUMENT IS A DUMB DOCUMENT AS IT DOES NOT CONTAIN SIGNATURES/DATE OF THE PARTNERS OF THE APPELLANT FIRM, HENCE ADDITION CANNOT BE MADE. AS PER THE SAID PAPER, THERE ARE FOUR PARTNERS BUT AS PER THE PARTNERSHIP DEED, THERE ARE SEVEN PARTNERS IN M/S SHREE ESTATES. BHUPINDER/BANK/AUDIT ARE UNKNOWN TO THE APPELLANT FIRM. NN 9355550X2 ON THE LOWER PORTION OF PAGE 31, WORDS 'N.N' ARE WRITTEN AND TWO SHARES ARE FOR IT (WHICH MEANS ONE SHARE OF NIKHIL AND ONE NARESH OR NITIN S/O NARESH) AND IT IS WORKED OUT TO RS.1,87,11,100/-. IT MEANS THAT RS.18800000/- HAS BEEN PAID BY THEM AND THUS THEY HAVE PAID AN THE ASSESSING OFFICER IS UNSURE AS TO WHOM THE DOCUMENT BELONGS. IT IS JUST HIS ASSUMPTION ON THE BASIS OF WHICH ITA 847/CHD/2017 A.Y. 2006-07 PAGE 24 OF 33 EXCESS OF RS.88, 900/- FROM THEIR TWO SHARES OF RS.1,87,11,100/-. BELOW THIS SHARE OF 'NITIN' (THIS IS TO REFER TO NITIN JAIN) IS WORKED OUT AND HIS SHARE IS RS.93,55,550/-. OUT OF THIS HE PAID RS.93 LACS ADDITION IS BEING MADE IN HANDS OF FIRM. 2 A-PAGE 31 (BACKSIDE) THIS PAGE IS REFLECTING DETAILS OF AMOUNT OF RS.6096000/- WITH THE WORDS TOTAL NO.L, BHUPINDER BANK AND 1524000 PER SHARE: TOTAL NO.1 543000/- 517500/- 2800000/- 5692000/- 31,050/- 109900/- 168000/- 6033550 BHUPINDER 2450/- BANK 60000/- 6096000 BACK SIDE OF PAGE 31 SHOWS THE PAYMENTS MADE IN NUMBER ONE WORDS 'NO.L' IS ALSO MENTIONED AGAINST THESE AMOUNTS BY THE PERSONS WHO WRITTEN THIS. THE TOP FOUR FIGURES ARE THE AMOUNTS FOR WHICH REGISTRIES ARE DONE WHICH TOTALS TO RS.56,92,000/- (ACTUAL REGISTRIES HAVE ALSO BEEN FOUND FOR THESE TRANSACTIONS OF THESE PERSONS). THE FOUR FIGURES BELOW IT ARE THE AMOUNTS OAID FOR STAMP DUTY. IT TOTALS TO RS.6033550/-, RS.2450/- IS PAID TO BHUPINDER (HE IS DEED WRITER, AS CAN BE SEEN FROM THE STAMP ON THE REGISTRIES) AND R_S.60,000/- PAID TO BANK-THE TOTAL PAYMENT IN NUMBER ONE IS RS.6096000/- AND PER SHARE (FOUR SHARES) WORKS OUT TO RS.1524000/- PER SHARE. THE DOCUMENT HAS NO NAME / AREA/LOCATION OF THE PROPERTY. THE APPELLANT IS NOT AWARE BHUPINDER/BANK. 3 A-PAGE 32 IT IS ALSO A HAND WRITTEN SLIP REFLECTING THE FOLLOWING DETAILS: SUSHILJI 15% 9453100-1-NO. SUSHILJI SHARE 914400/- 71100 9526200 3000000 6526200 ON PAGE 32 WORDS SUSHIL JI IS WRITTEN AND 15% SHANE IS 1 MENTIONED. ON THE LEFT SIDE, THE AMOUNT IS MENTIONED AS I 9453100/- AND EXPENSES OF RS.73100/- ARE ADDED AND IS { TOTAL TO RS.9526200A, OUT OF WHICH RS.3000000/-I RECEIVED AND RS.6526200/- IS SHOWN AS BALANCE. ON THE [ RIGHT SIDE OF THIS PAGE, WORDS '1-NO.' IS WRITTEN AGAINST SUSHILJI SHARE AND FIGURE OF 914400.00 IS WRITTEN, IF WE TAKE 15% OF RS.6096000/- GIVEN ON BACK SIDE OF PAGE 31 IT IS 914400/- WHICH IS THE SAME AS SUSHILJI'S NO.L SHARE IN ABOVE DEAL. THUS, IT IS CLEAR THAT SOME SUSHIL JIN IS HAVING 15% SHARE IN THE ACTUAL DEAL AND PAGE 31 AND 32 INTERRELATED SUSHIL JI IS NOT A PARTNER OF M/S SHREE ESTATES JAGADHRI CH ROAD CASH__ _ TOTAL HAMNELANE 93555.50 -92500.00 1055.50 THE FIGURE OF RS.93,55,550/- IS THE SAME AS WORKED OUT ON PAGE 31 SEIZED FROM THE RESIDENTIAL PREMISES \ OF SH NIKHIL MITTAL, RS.92,50,000/- HAS BEEN RECEIVED I TO THE ABOVE PERSONS (WHOSE NAME IS NOT GIVER BUT I FROM JAGADHARI) SUSHILJI PAKKE (9144.00) - (8000.00) 1144.00 HAMNELANE 94531.00 731.00 KHARCH 95262.00 930000.00 2262.00 THE FIGURES OF 9453100/- AND EXPENSES OF 73100?- IS SAME AS NOTED ON LOOSE PAGE 32 SEIZED FROM RESIDENCE OF SHRI NIKHIL MITTAL. ON THE LEFT SIDE FIGURE OF RS.914400/- IS GIVEN AND 1 WORD 'PAKKE' IS NOTED SHOWING IT IS PAYMENT IN NUMBER ONE. THE SAME FIGURE OF 91MOO/- (AS L-NO. J SHARE THERE IS NO CONNECTION OR LINK OF THE LAND WITH JAGADRI CHANDIGARH THE DOCUMENT HAS BEEN OWNED BY M/S N.N. JEWELLERS BEFORE SETTLEMENT COMMISSION. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 25 OF 33 OF 15%) IS NOTED ON PAGE 31 SEIZED FROM RESIDENCE OF SHRI NIKHIL MITTAL. EXTRACTS FROM THE ORDER SNO. ARGUMENT BY THE FIRM OBSERVATION CLARIFICATION OF ASSESSEE FIRM 1 ARGUMENT BY THE FIRM IT IS A FACT THAT NO DOCUMENTS OR ANY PAPER BELONGING TO THE ASSESSEE HAVE BEEN FOUND FROM THE PREMISES OF THE APPELLANT. THIS ASSERTION IS WRONG. IT HAS BEEN DISCUSSED IN DETAIL THAT HOW THE DOCUMENTS FOUND ARE RELATED TO THE ASSESSEE FIRM CLARIFICATION OF THE ASSESSEE FIRM THE FACT THAT NO DOCUMENTS WAS FOUND IS SOLIDIFIED BY THE STATEMENTS OF INDEPENDENT WITNESSES, NAMELY SH. RAM PARTAP BANSAL AND SH. ASHOK KUMAR JAIN, WHO HAD FILED AFFIDAVITS AND TILL DATE THE DEPARTMENT HAS ONLY PRESUMED THAT THIS DOCUMENT PERTAINS TO THE APPELLANT FIRM. 2 IN THE DOCUMENTS WHICH HAVE BEEN ALLEGED TO BE FOUND FROM THE PREMISES OF SHRI NIKHIL MITTAL, THERE IS NO NAME OF THE ASSESSEE FIRM AND NEITHER THERE ARE SIGNATURES OR NOTINGS MADE BY THE APPELLANT OR BY ANY OF THE PARTNER OF THE FIRM. THERE IS NO REQUIREMENT IN LAW THAT THE NAME OR SIGNATURE IS A MUST FOR ASSESSMENT. THE REAL TEST IS WHETHER THOSE DOCUMENTS SHOW ACTUAL DETAIL OF THE TRANSACTION. THE FINDING AFTER LOGICAL REASONING AND THE ANALYSIS OF FACTS IS THAT THE ENTRIES ON THE LOOSE DOCUMENTS SHOW INVESTMENT IN LAND BY THE FIRM AT ITS 'REAL VALUE'. THE DOCUMENTS WITHOUT ANY SIGNATURES OR NAMES OF THE FIRM OR PARTNERS OF THE FIRM ARE INCONCLUSIVE AND HENCE DUMB. THERE ARE VARIOUS JUDGMENTS WHERE IT HAS BEEN HELD THAT ADDITIONS CANNOT BE MADE ON BASIS OF DUMB DOCUMENTS. 3 THERE IS NO STATEMENT OF SHRI NIKHIL MITTAL RELATING TO THE ASSESSEE HAVE BEEN RECORDED AND RATHER SHRI NIKHIL MITTAL DURING THE COURSE OF SEARCH HAD TAKEN A STAND THAT THIS OIECE OF PAPER WAS NEVER FOUND FROM THEIR PREMISES. NIL WE RELY ON OUR EARLIER SUBMISSIONS . 4 AFFIDAVIT OF INDEPENDENT WITNESS OF SHRI RAM PARTAP RANSAL DATED 14.5.2010 .- .HEREIN HE HAS CONFIRMS THAT THOSE PAPERS WERE NEVER SEIZED FROM THE PREMISES OF SHRI NIKHIL MITTAL. 5 AFFIDAVIT OF INDEPENDENT WITNESS OF SHRI ASHOK KUMAR JAIN DATED 5.5.2010 WHEREIN HE HAS CONFIRMED THAT THOSE PAPERS WERE NEVER SEIZED FROM THE PREMISES OF SHRI NIKHIL MITTAL IN ALL THESE POINTS, THE ISSUE RAISED BY THE ASSESSEE FIRM IS THAT THE SEIZED DOCUMENTS WERE NOT FOUND FROM THE PREMISES OF MR. NIKHIL MITTAL. THE MATTER HAS BEEN DISCUSSED ABOVE IN DETAIL. IT HAS BEEN PROVEN BEYOND DOUBT THAT THE DOCUMENTS V., ERE FOUND AND SEIZED FROM THE PREMISES OF MR. NIKHIL MITTAL AND MRS. MONICA MITTAL, THE LATTER BEING THE PARTNER IN THE ASSESSEE FIRM. THE ASSESSING OFFICER HAS NOT GOT ANY PROOF OR ANY WITNESS TO SUBSTANTIATE HIS CLAIMS. THE STATEMENTS OF INDEPENDENT WITNESSES ARE ADVERSE TO THE CONTENTIONS OF THE ASSESSING OFFICER AND SUPPORT THE CLAIMS MADE BY THE APPELLANT FIRM. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 26 OF 33 6 STATEMENT OF SHRI RAM PARTAP BANSAL IN RESPONSE TO SUMMONS UNDER SECTION 131 AND CROSS EXAMINED BY ASSESSING OFFICER WHERE IN IT HAS BEEN CONFIRMED THAT THE SAID DOCUMENTS HAS NOT BEEN FOUND IN THE PREMISES OF SHRI NIKHIL KUMAR MITTAL. 7 STATEMENT OF SHRI ASHOK KUMAR JAIN IN RESPONSE TO SUMMONS UNDER SECTION 131 AND CROSS EXAMINED BY ASSESSING OFFICER WHEREIN IT HAS BEEN CONFIRMED THAT THE SAID DOCUMENTS HAS NOT BEEN FOUND IN THE PREMISES OF SHRI NIKHIL KUMAR MITTAL 8 AFFIDAVIT BY SHRI SUDHIR GULATI, SELLER OF THE LAND CONFIRMING THAT HE HAS NOTHING TO DO WITH PAPER FOUND WITH SUCH PAPER AND HE HAS CONFIRMED HE HAS SOLD THE PROPERTY FOR RS.6692000/- 9 THE STATEMENT OF SHRI SUDHIR GULATI WAS RECORDED FOR WHICH, HE WAS ISSUED SUMMON U/S 131 BY THE ASSESSING OFFICER IN WHICH, HE AGAIN CONFIRMED THAT HE HAS NO LINK OR CONNECTION WITH SUCH SEIZED PAPER. THIS IS SELF-SERVING AFFIDAVIT AND OF NO VALUE. IT DOES NOT COUNT AS EVIDENCE AS THE SELLER IS HIMSELF A PARTY TO THE UNACCOUNTED TRANSACTION. HIS NAME APPEARS ON THE LOOSE DOCUMENTS FOUND AND THE REGISTRATION DEEDS SHOW HIM AS SELLER. THE NAME ON THE ALLEGED DOCUMENTS IS OF 'GULATI JI'. LINKING IT WITH SH. SUDHIR GULATI IS BASELESS AND UNJUSTIFIED. SH. SUDHIR GULATI IS THE SELLER OF THE PROPERTY IN QUESTION AND HOW CAN THE AO TREAT HIS AFFIDAVIT OF NO VALUE IS OUT OF LOGIC. FURTHERMORE, NO ACTION HAS BEEN TAKEN BY THE DEPARTMENT FOR THE ALLEGED DIFFERENCE IN THE VALUE OF THE PROPERTY. ALSO THAT THE STATEMENT OF SH. SUDHIR GULATI WAS ALSO RECORDED BY THE ACIT, CENTRAL CIRCLE, PATIALA, AND HE CONFIRMED THE SALE OF LAND FOR THE SUM OF RS. 66.92 10 SALD PAPER IS UNSIGNED UNDATED AND WITHOUT HAND WRITING OF ANY PARTNER OR ANY FAMILY MEMBER OF THE PARTNERS. THESE POINTS DO NOT MINIMIZE IN ANY MANNER THE POTENCY OF THE DOCUMENTS. IT IS NOT NECESSARY IN LAW FOR A DOCUMENTARY EVIDENCE TO BE SIGNED OR BE IN HANDWRITING OF THE PARTNER. THE REQUIREMENT OF LAW IS THAT THE ENTRIES RECORDED THEREIN SHOULD BE A TRUE REFLECTION OF THE STATE OF AFFAIRS. IN THE PRESENT RASE THE TRUTHFULNESS OF DOCUMENTS HAS BEEN ESTABLISHED THROUGH VARIOUS LINKAGES AS ALREADY DISCUSSED. MOREOVER, AS PER SECTION 132(4A) OF THE IT. ACT, 1961, IT IS LEGALLY PROVIDED PRESUMPTION THAT THE THE DOCUMENTS WITHOUT ANY SIGNATURES OR NAMES OF THE FIRM OR PARTNERS OF THE FIRM ARE INCONCLUSIVE AND HENCE DUMB. THERE ARE VARIOUS JUDGMENTS WHERE IT HAS BEEN HELD THAT ADDITIONS CANNOT BE MADE ON BASIS OF DUMB DOCUMENTS. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 27 OF 33 CONTENTS OF SUCH DOCUMENTS FOUND DURING THE SEARCH ARE TRUE. FURTHER IN THE PRESENT CASE THE CONTENTS OF THESE DOCUMENTS ARE ALSO CORROBORATED BY THE LEDGER ENTRIES FOUND FROM THE RESIDENCE OF SHRI NARESH AGGARWAL (PARTNER OF NIKHIL MITTAL) AS ALREADY DISCUSSED EARLIER. 11 IN THIS PAPER PLACE/LOCATION OF LAND PERSONS AND SHARES OF PERSONS NOT CLEAR. REGARDING THE PLACE/LOCATION ETC. OF LAND. IT IS CLEAR FROM THE REGISTRATION DEEDS THAT THE LAND IN QUESTION IS AT VILLAGE SADUPUR AND VILLAGE KAKRU, AMBALA THE ALLEGED DOCUMENT FOUND SHOULD DESCRIBE THE LOCATION OF THE PROPERTY BUT THE AO HAS TAKEN SUPPORT OF THE REGISTRY I.E. DOCUMENT OTHER THAN THOSE SEIZED TO ARRIVE AT THE LOCATION. 12 TOTAL SHARES MENTIONED IN THE PAPER COME TO 90% WHICH DOES NOT MATCH WITH 100% SHARES AS PER PARTNERSHIP DEED. 13 PARTNERSHIP DEED OF THE ; SHREE ESTATE CONSIST SEVEN PARTNERS AND PAPER HAS NO ; LINK WITH THESE PARTNERS 14 SUSHIL JI SHARE RS.914400/- HAS NN MEANING AND SUSHIL ; JI 15% DOES NOT MATCH WITH SHARE OF ANY PERSON. SUSHIL IS NOT PARTNER IN THE FIRM. 15 SHRI VIKAS, VISHAL, MANOJ AND ASHISH KUMAR, PARTNER OF SHREE ESTATE FIND NO PLACE IN THE PAPERS. MANOJ HAS NO RELATION WITH NIKHIL AND SUSHIL HAS NO RELATION WITH ANYONE. IN ALL THESE ARGUMENT THE ASSESSEE FIRM IS ATTEMPTING TO SHOW A MISMATCH BETWEEN THE LOOSE DOCUMENTS AND THE PARTNERSHIP DEED OF THE FIRM. SUCH COMPARISON IS NOT REQUIRED AND EVEN IF MADE IT DOOR, NOT MAKE ANY SENSE. IT IS A FACT THAT THE PROPERTY WAS PURCHASED BY THE FIRM. THE EVIDENCE IN THIS REGARD IS THE REGISTRATION DEEDS WHERE THE BUYER IS THE FIRM. NOW, ON BEHALF OF FIRM WHETHER IT WAS ONE PARTNER OR MANY OR ALL WHO CONDUCTED THE TRANSACTIONS DOES NOT AS STATED EARLIER, THE DOCUMENT DOES NOT CONTAIN NAMES OF ALL THE PARTNERS OF THE FIRM. FURTHERMORE, SUSHIL JI IS NOT A PARTNER OF THE FIRM. IT IS BEYOND DOUBT THAT THE FIRM PURCHASED THE PROPERTY; THE QUESTION IS REGARDING THE AMOUNT PAID FOR IT, FOR WHICH THE AO HAS NO PROOF IN HIS POSSESSION ON THE BASIS OF WHICH HE HAS MADE THE ADDITION. EVEN IF THE PARTNERS ACTING ON BEHALF OF THE FIRM HAD PURCHASED THE PROPERTY, THE CALCULATION OF THE AO RESULTS 90% SHARE OF THE PARTNERS OF THE FIRM WHEREAS IT SHOULD BE 100% TO TAX IN HANDS OF THE FIRM. 16 THE FOLLOWING FIGURES GIVEN IN THE PAPERS DOES NOT TALLY IN ANY WAY: 1. 37422200 FOUR L/4 TH SHARE DO NOT MATCH WITH PARTNERSHIP DEED OF SHREE ESTATE. 2. N N 50% SHARE DOES NOT MATCH WITH PARTNERSHIP DEED. 3. SUNIL/SUSHIL 15% SHARE MATTER BECAUSE IN THE END IT IS THE FIRM WHO DIRL THP TRANSACTION. AS FAR AS FIRM'S INVESTMENT IS CONSIDERED THE ENTIRE 100% SHARE BELONGS TO THE FIRM.- IN ANY CASE THERE IS NO OTHER EXPLANATION WITH THE ASSESSEE REGARDING THE DETAILS THAT ACTUALLY MATCH PERFECTLY WITH THE SEIZED DOCUMENTS. THUS THE ITA 847/CHD/2017 A.Y. 2006-07 PAGE 28 OF 33 DOES NOT MATCH WITH PARTNERSHIP DEED. 4. NITIN 25% SHARES DOES NOT MATCH WITH PARTNERSHIP DEED. 5. TOTAL SHARE 50% + 25% + 15% = 90% AMOUNT 18711100 50% 9355550 15% 9453100 15% DOES NOT MATCH WITH 15% OF 37422200 - 5613330 = 9453100. 17 M/S SHREE ESTATE AND THE NAMES OF THE PARTNERS IN M/S SHREE ESTATE DID NOT MATCH WITH THE NAMES AS MENTIONED IN THE SEIZED DOCUMENTS IN TOTALITY? PRIMARY ONUS ITSELF AT THE END OF THE ASSESSEE FIRM IS NOT SATISFACTORILY DISCHARGED. 18 COPY OF THE PARTNERSHIP DEED OF M/S SHREE ESTATE PROVES THIS FACT, WHERE NO NAME OF NN OR SUSHIL IS THERE AND, HOW THAT PAPER HAS BEEN LINKED WITH M/S SHREE ESTATE IS TOTALLY A PRESUMPTION. THE DOCUMENT IS LINKED TO M/S SHREE ESTATES ON THE BASIS OF THE TRANSACTION. I HE LAND IS REGISTERED IN THE NAME OF M/S SHREE ESTATE AND THE STAMP DUTY AMOUNT, THE NAME OF THE SELLER, THE REGISTERED SALE CONSIDERATION ETC. ALL MATCH WITH THE ENTRIES IN THE LOOSE DOCUMENTS. 19 NAME OF THE BANK HAS BEEN MENTIONED WHEREIN RUPEES 60000/- HAS BEEN WITHDRAWN OR DEPOSITED BUT IN THE BANK STATEMENT OF SHRPP FSTATE NO SUCH ENTRY HAS BEEN FOUND. THIS FACT IS WRONG. NAME OF THE BANK OR ITS BRANCH IS NOT MENTIONED. IN ANY CASE IF THIS FACT WERE OF HELP TO THE ASSESSEE THEN THE ASSESSEE HAS THE FIRST ONUS TO BRING FORTH THE DETAILS OF THE SO CALLED BANK BECAUSE THE DOCUMENT WAS FOUND FROM ITS POSSESSION. WHERE THE ASSESSEE HAS FAILED TO PROVE ITS POINT, THERE IS NO BURDEN ON REVENUE TO LINK ALL IRRELEVANT DETAILS BECAUSE THE CORE DETAILS HAVE BEEN ESTABLISHED. WE RELY ON OUR EARLIER SUBMISSIONS 20 THE NAME OF SUSHI! JI WRITTEN AND IT IS NOT UNDERSTOOD AS TO, HOW, THE ASSESSEE IS LINKED WITH THIS NOTHING, WHICH IS NEITHER IN HIS OWN HAND WRITING AND NEITHER IT IS FOUND IT HAS BEEN DISCUSSED IN GREAT DETAIL IN EARLIER PART OF THIS ORDER THAT HOW THE DOCUMENTS ARE LINKED TO M/S SHREE ESTATES. THE ASSESSING OFFICER HAS NOT ELABORATED ON THE BASIS CONCLUSIVE EVIDENCE AND MERELY ON ASSUMPTIONS HOW SAID DOCUMENTS BELONG TO ASSESSEE. ITA 847/CHD/2017 A.Y. 2006-07 PAGE 29 OF 33 FROM THE ASSESSEE'S PREMISES AND NOR THERE IS ANY LINK OR CONNECTION OF THIS PAPER WITH THE ASSESSEE. 21 M/S SHREE ESTATE, A PARTNERSHIP CONCERN BACK SIDE OF THE SEIZED DOCUMENTS BY LINKING IT IS TO THE PARTNERSHIP DEED OF M/S SHREE ESTATES, IN WHICH ASSESSEE IS PARTNER OF 25% SHARE, THEN HOW THIS SUSHIL JI IS CONNECTED WITH THE PARTNERSHIP CONCERN, HAS NOT BEEN CLARIFIED. AS PER THE PARTNERSHIP DEED, WHOSE NAMES HAVE BEEN REPRODUCED IN IHE ASSESSMENT ORDER, SHRI SUSHIL JI IS NOT A PARTNER. THIS POINT IS NOT RELEVANT HERE AS IT IS WITH REFERENCE TO THE ASSESSMENT OF PARTNERS WHILE THE CASE OF THE FIRM IS BEING CONSIDERED HERE. WE RELY ON OUR EARLIER SUBMISSIONS. 22 THE SHARE OF 15% OF SHRI SUSHIL JI, WHOSE NAME DO NOT APPEAR IN THE PARTNERSHIP DEED OF M/S SHREE ESTATES AND NEITHER ANY ASSESSMENT HAS BEEN FARMED OF ONE SHRI SUSHII JI, THEREFORE, THE WHOLE BASIS OF FRAMING THE ASSESSMENT ONLY ON THE BSSIS OF DUMP DOCUMENT IS VOID AB-INTIO. THE SAID DOCUMENT IS NOT A DUMP DOCUMENT. THE SEIZED DOCUMENTS ARE FULL OF ENTRIES IN GREAT DETAILS. THE ENTRIES ARE CORROBORATED BY OTHER EVIDENCE AS WELL. THERE IS NO OTHER PLAUSIBLE EXPLANATION AS WELL. A DOCUMENT IS DUMP WHEN NO SENSE CAN BE MADE NUT OF THAT. IN THE PRESENT CASE THE DETAILS ARE CRYSTAL CLEAR. THE PROPERTY IN QUESTION HAS BEEN IDENTIFIED AND ITS DETAILS MATCH WITH THOSE ON THE SEIZED DOCUMENTS EXCEPT THE AMOUNT INVOLVED WHERE THE INVOLVEMENT OF UNACCOUNTED MONEY IS BEING PROVED. THE DOCUMENT IS DUMB AS IT IS: (I) UNSIGNED (II) UNDATED (III) WITHOUT HANDWRITING OF PARTNERS OF FIRM. (IV) NAME OF PERSONS NOT CLEAR (V) TOTALS TO 90% WHEREAS TO TAX IN HANDS OF FIRM, 100% SHARE IS TO BE ESTABLISHED. HENCE, THE DOCUMENT IS DUMB AND THE AO'S CONTENTION THAT DOCUMENT IS NOT DUMB IS OUT OF LOGIC. 23 NOTHING OF JAGADHARI- CHANDIGARH ROAD WHICH IS AS PER PAGE NO.31 AND 32 OF THE SEIZED DOCUMENTS FOUND FROM SHRI NIKHIL MITTAL AND HAS NO LINK THE SAME WITH THE EARLIER PIECE OF PAPER THIS APPEARS TO BE AN ADDRESS AND IT IS THE ASSESSEE OR HIS GROUP MEMBERS WHO HAVE TO GIVE THIS DETAIL IN THEIR DEFENCE. IN THE PRESENT CASE NO DETAIL HAS BEEN GIVEN AND THEREFORE THERE IS NO FURTHER BURDEN ON REVENUE TO IDENTIFY THE MEANING OF THIS PHRASE AS WITH THE HELP OF OTHER EVIDENCES THE LOGICAL CONCLUSION IS EASILY DRAWABLE. THE WHOLE EXPRESSION 'APPEARS TO BE' USED BY THE AO CLEARLY UNDERLINES THE FACT THAT THE AO IS USING ASSUMPTIONS AND NOT RELYING ON CONCLUSIVE EVIDENCE. 24 THE LOCATED AT JAGADHRI- THE LAND IN QUESTION HAS AS STATED EARLIER, THE AO SHOULD ITA 847/CHD/2017 A.Y. 2006-07 PAGE 30 OF 33 CHANDIGARH ROAD AND THEREFORE, THERE LINK OR CONNECTION WITH THE ALLEGED INVESTMENT IN THE PROPERTY OF M/S SHREE ESTATE BEEN IDENTIFIED AS PER THE REGISTRATION DEEDS IN FAVOUR OF M/S SHREE ESTATES. DESCRIBE THE LOCATION OF THE PROPERTY AS PER DOCUMENTS SEIZED AND NOT FROM THE REGISTRY OF THE PROPERTY I.E. DOCUMENT OTHER THAN THOSE SEIZED TO ARRIVE AT THE LOCATION. HENCE, THE AO CANNOT LINK BOTH THE DOCUMENTS ON BASIS OF ASSUMPTIONS. 25 THE AGAIN IT HAS REPRODUCED THE NAMES OF THE PARTNERS AND THEIR SHARES IN THE ASSESSMENT ORDER IN RESPECT OF M/S SHREE ESTATE AND THERE IS NO NAME OF ANY OF THE PARTNER IN THE SEIZED DOCUMENTS AND THUS, THE WHOLE BASIS OF FRAMING THE ASSESSMENT IS NOT PROPER. THIS POINT IS NOT RELEVANT HERE AS IT IS WITH REFERENCE TO THE ASSESSMENT OF PARTNERS WHILE THE CASE OF THE FIRM IS BEING CONSIDERED HEREWITH. WE RELY ON OUR EARLIER SUBMISSIONS. 8.6 ON CONSIDERING THE FACTS, ARGUMENTS, POSITION OF LAW ON THE GROUNDS RAISED AND THE SUBMISSIONS AND DOCUMENTS AVAILABLE ON REC ORD, WE FIND THAT AT THE THRESHOLD ITSELF QUA THE CLAIM OF FINDING OF THE DOCUM ENTS FROM THE RESIDENCE OF MR. NIKHIL MITTAL, THE SEARCH PARTY AT THE FIRST BLUSH IT WOULD APPEAR HAS FLOUNDERED AND BREACHED THE SANCTITY OF THE ESTA BLISHED PROTOCOLS OF HAVING INDEPENDENT WITNESSES PRESENT AND AVAILABLE FROM THE BEGINNING OF THE SEARCH TO THE END OF THE SEARCH. THE LEGAL REQUIRE MENTS OF NECESSITATING THE PRESENCE OF INDEPENDENT WITNESSES, IT MAY APPEAR HAS BEEN TREATED TO BE A VERY CASUAL AND MECHANICAL REQUIREMENT IN THE FACTS OF THE PRESENT CASE. THE AFFIDAVITS OF THE WITNESSES AVAILABLE ON RECORD AND THE VALIANT ATT EMPTS OF THE AO TO DEMOLISH THESE BY WAY OF RECORDING THEIR STAT EMENTS IN CROSS- EXAMINATION RECORDED IN THE ASSESSMENT ORDER DID NOT ST RENGTHEN THE REVENUES ARGUMENT, IN THE FACE OF THE CONSISTENT CLAIM O F THE ASSESSEE THAT THE DOCUMENTS WERE NOT FOUND FROM THE RESIDENCE OF MR. N IKHIL MITTAL. THE RELIANCE PLACED BY THE AO TO REBUT THIS CLAIM ON THE PROT OCOLS ESTABLISHED AS STANDARD OPERATION PROCEDURES NECESSARILY FOLLOWED DURING THE SEARCH COMPLETELY MAY ALSO APPEAR TO BLAST THE CLAIM OF THE TAX AUTHORITIES HOLLOW. AS PER RECORD, ONE OF THE WITNESSES TO THE SEARCH WAS ALLOWED/ASKED BY THE SEARCH PARTY TO LEAVE THE SPECIFIC PREMISES SEARCHED AND THE ONLY REQUIREMENT ADHERED TO DURING THE SEARCH IN REGARD TO HIS PRESENCE WAS THAT THE SEARCH TEAM COULD KEEP AN EYE ON HIM AS OPPOSED T O HIM BEING AN INDEPENDENT WITNESS KEEPING AN EYE ON THE SEARCH TEAM. THE PROTOCOLS FOLLOWED APPEAR TO BE SURPRISINGLY QUAINT FOR WANT OF A BETTER W ORD AS THEY DO NOT SERVE THE PURPOSES FOR WHICH INDEPENDENT WITNESSES ARE REQUIRED TO BE APPOINTED. AS A RESULT OF THIS, THE OCCASION TO RAISE THE OBJECTION OF THE SAID ITA 847/CHD/2017 A.Y. 2006-07 PAGE 31 OF 33 INDEPENDENT WITNESS THAT CERTAIN DOCUMENTS WERE NOT FO UND FROM THE RESIDENCE. THE EXASPERATION OF THE AO IN THE CROSS-EXAM INATION OF SHRI ASHOK KUMAR EVIDENT FROM QUESTION 3 FURTHER BLOWS THE CL AIM OF THE TAX AUTHORITIES HOLLOW. ALTHOUGH IT HAS ALREADY BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER, THE SPECIFIC QUESTION IS REPRODUCED HEREUNDER ONCE AGA IN: 3. AS YOU HAVE STATED THAT YOU HAD GONE TO YOUR HOUSE ON THE ORDER OF THE OFFICERS OF SEARCH PARTY . ORDER UNDER RULE 112(6) OF THE IT ACT, WAS SERVED UPON YOU NOT TO DEPART TILL THE SEARCH IS NOT COMPLETED, THE REFORE, IT IS CLEAR THAT NO OFFICER OF THE DEPARTMENT CAN INSTRUCT YOU OR THE POLICE PARTY TO DEPART FROM THE SEARCH PLACE. THEREFORE, IT IS CLEAR THAT YOU ARE COOKING A STORY TO SPOIL THE PROCEEDING OF THE INCOME TAX DEPARTMENT. (EMPHASIS SUPPLIED) 8.6.1 THE FOLLOWING REPLY OF MR. ASHOK KUMAR WHICH REMAINS U NREBUTTED ON RECORD AND IS IN SUPPORT OF THE AFFIDAVIT FILED IS ALSO AGAIN REPRODUCED HEREUNDER FOR READY REFERENCE: ANS.:- I WAS NOT TOLD MY RIGHTS AND DUTIES AT THAT TIME. I HAVE OBEYED THE ORDER OF YOUR OFFICER. I SHALL HAVE TO OBEY THE ORDER OF THAT OFFICER WHO SIGNED ON MY ORDER/NOTICE. AT PRESENT ON DATED 224(***)-11-2008, IN THE PROCEE DINGS YOU HAVE SERVED ORDER ON MEN I PRESENTED AND ASKED ME TO GO OUT AND I SHALL CALL YOU AGAIN. I HAVE NOT ASKED ANY WRITTEN ORDER IN THIS REGARD, I ONLY OBEYED YOUR VERBAL ORDER AND I HAD TO LEAVE DURING THE PROCEEDINGS. IN THE SAME WAY THINGS HAPPEN AT THE TIME OF SEARCH. I HAVE NOT LEFT THAT AREA AND I AM WAITING OTHER S IDE OF THE COMMON WALL FOR THEIR CALL. (EMPHASIS SUPPLIED) 8.7 THE OTHER SO CALLED WITNESS TO THE SEARCH MR. RA M PARTAP BANSAL AS PER RECORD HAS CLAIMED THAT HE WAS APPOINTED ONLY AT 2 P.M. AND CALLED TO BE PRESENT WHILE HE WAS PARTICIPATING IN A CREMATION PROG RAM, WHICH AGAIN GIVES CAUSE TO RAISE THE OBJECTION THAT CERTAIN DOCUMEN TS/BUNDLES WERE NOT FOUND FROM THE RESIDENCE OF SHRI NIKHIL MITTAL. HOWEVER, THE SE SUBMISSIONS, STATEMENTS AND EVIDENCES BECOME MEANINGLESS WHEN CONSID ERED IN THE LIGHT OF THE FACT THAT THE FIRST TIME THE OBJECTION IS POSED IS ON 14 TH AND 15 TH MAY, 2007 ADDRESSING WHAT TRANSPIRED ON THE DATE OF SEARCH I.E. ON 13.10.2006. THE EVIDENCES ACCORDINGLY RIGHTLY HAVE BEEN DISCARDED AS AN AFTER THOUGHT. 8.8 ADDRESSING THE FACTS ON RECORD, WE FIND THAT THE DOCU MENT DOES APPEAR TO REFER TO SOME KIND OF CALCULATIONS AND JOTTINGS, HOWEVER, NO EFFORT H AS BEEN MADE TO SHOW THAT THE DOCUMENT IS IN THE HANDWRITING OF ANY ONE OF THE PARTNERS OF THE FIRM. THE NAME OF THE ASSESSEE FIRM IS NOT MENTIONED THERE. THE PERSON NAMED SUNIL OR BHUPINDER THEREON ARE N OT MADE KNOWN. THE ASSESSEE STATES THE PERSONS ARE NOT KNOWN TO IT. THEY ARE NOT THE PARTNERS. ACCORDINGLY, IN THE CIRCUMSTANCES, THE INSISTENCE OF THE T AX AUTHORITIES THAT IT IS THE ASSESSEE WHO HAS TO EXPLAIN THESE DOCUMENT CAN NOT BE SUPPORTED AS ITA 847/CHD/2017 A.Y. 2006-07 PAGE 32 OF 33 THERE IS NOTHING IN THE DOCUMENTS WHICH SUGGESTS A CONN ECTION WITH THE ASSESSEE. THE PRESENCE OF THE DOCUMENT FROM THE RESIDE NCE OF MR. NIKHIL MITTAL BY ITSELF DOES NOT MAKE IT NECESSARILY RELATABLE TO T HE ASSESSEE. ADMITTEDLY, NO QUESTIONS HAVE BEEN ASKED FROM SHRI NIKHIL M ITTAL TO EXPLAIN THE SAID DOCUMENT. THE NAME, ADMITTEDLY, OF THE ASSESSEE FIRM IS NOT MENTIONED IN THE SEIZED DOCUMENT. THE NOTE THOUGH IS HA ND WRITTEN, HOWEVER, NO EFFORTS HAVE BEEN MADE TO ESTABLISH THAT IT IS IN THE HANDWRITING OF ANY OF THE PARTNERS OF THE ASSESSEE FIRM. THE SEIZED DO CUMENT REFERS TO THE NAME OF SUNIL HOWEVER WHETHER IT IS SUDHIR GULATI OR NO T IS NOT COMING OUT FROM THE SAME. THERE IS NO SUNIL JI AS A PARTNER. THE P URPOSES OF 15% MENTIONED IN THE DOCUMENT REMAINS UNADDRESSED. IF IT IS S HRI SUDHIR GULATI, THEN HE HAS CONFIRMED THE SALE AMOUNT AS THE AMO UNT MENTIONED IN THE REGISTERED SALE DEED. AFFIDAVIT OF SHRI SUDHIR GULATI AT PA GES 82 TO 83 STANDS UNREBUTTED ON RECORD. FURTHER, WHO IS BHUPINDE R REFERRED TO IN THE HAND WRITTEN NOTE FOUND IS ALSO NOT UNDERSTOOD. THE OC CASION TO HOLD THE ASSESSEE FIRM ANSWERABLE TO EXPLAIN WOULD ARISE ONLY IF THE DOCUMENT CAN BE SAID TO BE BELONGING TO THE PARTNERS OR THE FIRM. AT BES T, THESE ARE SOME ROUGH JOTTINGS BY SOMEONE, HOW THEY ARE RELATABLE TO TH E ASSESSEE IS NOT ADDRESSED BY THE REVENUE. SHRI NIKHIL MITTAL SPOUSE OF ONE OF THE PARTNERS ITSELF HAS NOT BEEN MET THE OCCASION FOR THE ASSESSEE FIRM TO EXPLAIN THE DOCUMENT DOES NOT ARISE. AS NOTED, IT IS SURPRISING THAT SHRI NIKHIL MITTAL FROM WHOSE RESIDENCE, THE DOCUMENT ALLEGEDLY WAS FOUND ALS O HAS NOT BEEN CALLED UPON BY THE REVENUE TO EXPLAIN AND INSTEAD THE TA X AUTHORITIES HAVE CHOSEN TO TRAVEL DIRECTLY TO THE FIRM WHERE HIS WIFE WAS A PARTNER AS ADMITTEDLY THE NAME OF THE ASSESSEE FIRM OR ITS PARTNERS IS NO WHERE ON THE SEIZED DOCUMENTS NOR IS IT IN THE HANDWRITING OF ANY OF THE PARTNERS. EVEN OTHERWISE, CONSIDERING THE POSITION OF LAW ON THE RELEVANT P ROVISION I.E. THE WORDING OF SECTION 153C AS IT THEN STOOD AND THE JUDICIA L PRECEDENT RELIED UPON, WE FIND THAT IN THE ABSENCE OF ANY MATERIAL ON REC ORD, THE OCCASION TO MAKE ADDITION ON THE BASIS OF THE SEIZED DOCUMENTS IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WAS CONTRARY TO FACT S AND LAW AND FOR THE DETAILED REASONS GIVEN HEREINBEFORE CANNOT BE UPHELD. 9. THE DECISIONS RELIED UPON BY THE PARTIES HAVE BEEN TA KEN INTO CONSIDERATION AND CONSEQUENTLY, THE PROPOSITION OF LAW AS APPLICABLE TO THE FACTS OF THE SPECIFIC CASE HAVE BEEN TAKEN INTO CONSIDERAT ION EVEN IF REFERENCE TO A SPECIFIC DECISION HAS NOT BEEN MADE. ON THE PROPOSIT IONS OF LAW ON THE FACTS EXAMINED BY THE COURTS, THERE IS NO DEBATE AS TH ESE ARE WELL SETTLED. IN ITA 847/CHD/2017 A.Y. 2006-07 PAGE 33 OF 33 THE FACTS OF THE PRESENT CASE, THE ISSUES FOR CONSIDERATIO N REVOLVE AROUND FACTS WHICH NEEDED TO BE MARSHALED. ACCORDINGLY, THE ISSU ES BEING PURELY FACTUAL WHICH WERE TO BE DETERMINED AS SUCH REFERENCE TO WELL SETTLED LEGAL PROPOSITIONS ON WHICH THERE IS NO DEBATE HAS NOT BEEN C ONSIDERED NECESSARY. NEEDLESS TO SAY THAT THEY HAVE ALL BEEN CONSIDERED. AC CORDINGLY, FOR THE DETAILED REASONS GIVEN HEREIN ABOVE, THE APPEAL IS ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.12. 2017. SD/- SD/- (DR. B.R.R.KUMAR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.
Other Referred Cases
-
Laws Referred To
-
1:1 Consultation on SME Listing
₹0
1:1 Consultation on Startup Fundraising
₹5000
1:1 Consultation on Tax Litigation
₹0
Research Collaboration Agreement
₹0
Initial LLP Agreement
₹0
Why Lacoste Won a 20-Year Trademark Battle Against Crocodile ?
Team Counselvise - March 10, 2026
Minimum Alternate Tax (MAT): Comprehensive Overview and Key Changes under Finance Bill, 2026
Team Counselvise - February 06, 2026
Transfer Pricing and International Tax Reforms under Finance Bill, 2026: A Practical Overview
Team Counselvise - February 07, 2026