ACIT CEN CIR 13, MUMBAI V. GIRIRAJ DEVELOPERS, NAVI MUMBAI

ITA 957/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2270 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Department
• Bench Allotted: G
• Next Hearing Date: 31-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-02-2012
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: CHETAN A KARIA
• Keywords: Business income; Principle of natural justice; Onus to prove
• Section: 143(3); 132; 10

Judgement Text

, , G , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , , , BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.957/MUM/2012 ASSESSMENT YEAR: 2008-09 & ITA NO.5682/MUM/2014 ASSESSMENT YEAR: 2010-11 ACIT, CEN CIR 13 OLD CGO, ANNEXE BLE, R.NO.1103, 11 TH FLOOR, M.K. MARG, MUMBAI-20 / VS. GIRIRAJ DEVELOPERS, PLOT NO.43 A/B SECTOR 20 KHARGHAR NAVI MUMBAI MUMBAI-400010 ( REVENUE ) (RE SPONDENT ) P.A. NO. AAFFG4761R REVENUE BY SHRI A. RAMACHANDRAN ( D R) RESPONDENT BY SHRI CHETAN A. KARIA (A R) / DATE OF HEAR ING: 19/05/2016 / DATE OF ORDER: 27/07/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THESE APPEALS HAS BEEN FILED BY THE REVENUE AGAINST SEPARATE ORDERS OF LD. ORDER OF LD. COMMISSIONER OF INCOME GIRIRAJ DEVELOPERS 2 TAX (APPEALS), MUMBAI-37, {(IN SHORT CIT(A)}, PAS SED AGAINST ASSESSMENT ORDER U/S 143(3) OF THE ACT, FOR THE A.Y S 2008-09 & 2010-11. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI CHETAN A. KARIA, AUTHORISED REPRESENTATIVE (AR ) ON BEHALF OF THE ASSESSEE AND BY SHRI A. RAMACHANDRAN, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE R EVENUE. FIRST WE SHALL TAKE UP APPEAL OF THE REVENUE IN ITA NO.957/MUM/2012 FOR A.Y. 2008-09 THE REVENUE HAS FILED FOLLOWING GROUNDS OF APPEAL: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITIONS AMOUNTING TO RS. 1,05,62,500 /- ON ACCOUNT OF UNEXPLAINED SALES. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS NOT JUSTIFIED IN NOT ACCEPTING THE FACT THAT THERE WAS AN UNACCOUNTED SALE PERTAINING TO A.Y. 2008-09 WHICH WAS ESTABLISHED DURING THE ASSESSMENT PROCEEDINGS. 3.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS NOT JUSTIFIED IN NOT ACCEPTING THE FACT THAT THE ASSESSEE'S SUBMISSIONS ALSO SHOWS THAT THERE WAS SALES IN A.Y. 2008-09 WHICH WAS ESTABLISHED DURING THE ASSESSMENT PROCEEDINGS. 3. THE SOLITARY ISSUE RAISED IN THIS APPEAL BY THE RE VENUE IS THAT LD. CIT(A) HAD WRONGLY DELETED THE ADDITIONS A MOUNTING TO RS.1,05,62,500/- MADE BY THE ASSESSEE ON ACCOUNT OF UNEXPLAINED SALES MADE BY THE ASSESSEE ON ACCOUNT O F SALE OF GIRIRAJ DEVELOPERS 3 SHOPS ON ACCOUNT OF CASH RECEIPTS WHICH WAS NOT DIS CLOSED IN THE BOOKS OF ACCOUNTS. 3.1. BRIEF FACTS AND BACKGROUND OF THIS CASE AS CULLED OUT FROM THE ORDER OF THE LOWER AUTHORITIES ARE THAT ON 10.0 1.2007 SURVEY ACTION WAS DONE BY THE DEPARTMENT ON THE ASS ESSEE FIRM AND SEARCH ACTION WAS DONE ON ITS PARTNERS INC LUDING MR. HARESH PATEL GROUP. DURING THE YEAR, THE ASSESSEE W AS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF A PROJECT BY THE NAME OF M/S. GIRIRAJ HORIZON AT KHARGHAR, NAVI MUMB AI. DURING THE COURSE OF SEARCH IN THE CASE OF PARTNERS SOME DOCUMENTS WERE FOUND INDICATING UNDISCLOSED INCOME IN THE FORM OF CASH COMPONENT INVOLVED IN THE PROPERTIES S OLD BY THE PARTNERS AND THEREFORE PARTNERS OFFERED AN AGGREGAT E AMOUNT OF RS.1.50 CRORES AS UNDISCLOSED INCOME AND DECLARE D THE SAME AS SUCH IN THE RETURN OF INCOME FILED FOR A.Y. 2007-08. DURING THE COURSE OF SURVEY UPON THE ASSESSEE FIRM ONE DOCUMENT WAS FOUND WITH REGARD TO SALE OF SHIP NO.0 3 WHEREIN THE AGGREGATE SALES CONSIDERATION OF THE SHOP WAS S HOWN AT RS.27,62,500/- OUT OF WHICH A SUM OF RS.6,50,000/- WAS SHOWN TO HAVE BEEN RECEIVED BY CHEQUE AND BALANCE A MOUNT OF RS.21,12,500/- WAS SHOWN TO HAVE BEEN RECEIVED BY C ASH. ON THE BASIS OF THIS DOCUMENT ADDITION WAS MADE BY THE AO ON ACCOUNT OF UNRECORDED CASH COMPONENT OF SALE OF SHO PS IN A.Y. 2006-07 FOR RS.40,00,000/- AND A.Y. 2007-08 FOR RS. 5.20 CRORES. THE ADDITION WAS ALSO MADE FOR RS.21,12,500 /- ON THE BASIS OF SALE OF SHOP NO.03. THEREAFTER, THE ASSESS EE FILED AN APPEAL FOR THESE TWO YEARS BEFORE THE LD. CIT(A) WH EREIN THE LD. CIT(A) UPHELD THE ADDITION OF RS.1.50 CRORES MA DE BY THE GIRIRAJ DEVELOPERS 4 AO TOWARDS CASH RECEIPT ON SALE OF FLATS AS WAS DEC LARED BY THE ASSESSEE IN THE RETURN FOR A.Y. 2007-08. WITH RESPE CT TO ADDITION MADE ON ACCOUNT OF CASH COMPONENT (I.E. O N MONEY) IN RESPECT OF SALE OF SHOP, LD. CIT(A) UPHELD THE A DDITION MADE FOR A.Y. 2007-08 BUT FOR A.Y. 2006-07 ADDITION WAS DELETED BY HIM ON THE GROUND THAT NO EVIDENCE WAS FOUND BY THE AO. 3.2 . AGGRIEVED BY THE ORDER OF LD. CIT(A) FOR BOTH THE SE YEAR BOTH THE ASSESSEE AND REVENUE FILED AN APPEAL BEFOR E THE TRIBUNAL. THEREAFTER THE TRIBUNAL VIDE ITS ORDER DA TED 24.02.2016 IN ITA NO.5113-5114/MUM/2009 QUASHED THE ASSESSMENT ORDERS ON LEGAL GROUNDS, WITHOUT ADJUDIC ATING THE SAME ON MERITS. THUS, THE ISSUES ON MERITS HAVE NOT YET BEEN ADDRESSED BEFORE THE TRIBUNAL IN ANY YEAR INCLUDING THE IMPUGNED YEAR. 3.3. IN THE YEAR BEFORE US I.E. A.Y. 2008-09, IT WAS NO TED BY THE AO THAT OUT OF THE SAME CLUSTER, ASSESSEE HAD SOLD 5 SHOPS DURING THE YEAR AND ON THE BASIS OF DOCUMENT IMPOUN DED DURING THE COURSE OF SURVEY SHOWING THE SALE CONSID ERATION OF THE SHOP INVOLVING CASH COMPONENT OF RS.21,12,500/- IT WAS HELD BY THE AO THAT DURING THE YEAR UNDER CONSIDERA TION THE ASSESSEE HAD RECEIVED AGGREGATE AMOUNT OF CASH COMP ONENT (ON MONEY) FOR RS.1,05,62,500/- AND BROUGHT TO TA X THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE. 3.4. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) WHEREIN LD. CIT(A) RELYING UPON HIS ORDE R FOR EARLIER YEARS HELD THAT THERE WAS NO EVIDENCE OF RECEIPT OF ON MONEY AND THEREFORE, ADDITION COULD NOT HAVE BEEN MADE IN THE IMPUGNED YEAR AND THEREFORE HE DELETED THE SAME. GIRIRAJ DEVELOPERS 5 3.5. BEING AGGRIEVED THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL. 3.6. DURING THE COURSE OF HEARING, IT WAS SUBMITTED BY THE LD. DR THAT ALL THE SHOPS BELONG TO THE SAME CLUSTER, A ND THESE ARE LOCATED AT THE SAME PLACE HAVING IDENTICAL LOCA TION ETC. THE CONSTRUCTION OF THE SHOP HAS ALSO BEEN DONE ON THE SIMILAR PATTERN. UNDER THESE CIRCUMSTANCES, IF A SHOP HAS B EEN SOLD IN A.Y. 2007-08 AT AN AMOUNT OF RS.27,62,500/- WHEREIN THE CHEQUE WAS SHOWN AT RS.6,50,000/-, THEN IN THE NEXT YEAR, THE ASSESSEE WILL NOT SELL IT FOR THE TOTAL CONSIDERATI ON OF RS.6,50,000/- ONLY. IT WAS FURTHER SUBMITTED BY HIM THAT THE REVENUE CANNOT CLOSE ITS EYES FROM TRUTH WHICH IS W RIT LARGE ON THE FACE OF IT. THE AO HAD MADE AN ATTEMPT DURING T HE COURSE OF ASSESSMENT PROCEEDINGS TO EXTRACT TRUTH FROM THE BUYERS OF THESE SHOPS, BUT THEY BEING AFFECTED AND INTERESTED PARTY DID NOT REVEAL COMPLETE FACTS. IT WAS FURTHER SUBMITTED BY HIM THAT ASSESSEE DID NOT COME OUT WITH PROPER DOCUMENTARY E VIDENCES SHOWING THAT TOTAL MARKET VALUE OF THESE SHOPS WAS NOT MORE THAN RS.6,50,000/-. UNDER THESE CIRCUMSTANCES, THE IMPUGNED DOCUMENTS BECAME SPEAKING DOCUMENTS ON THE BASIS OF WHICH ADDITION HAS BEEN RIGHTLY MADE BY TH E AO IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE AND T HEREFORE AOS ORDER SHOULD BE UPHELD AND THAT OF LD. CIT(A) SHOULD BE REVERSED. 2.7. PER CONTRA, LD. COUNSEL OF THE ASSESSEE MADE EXHAU STIVE ARGUMENTS TO OPPOSE THE SUBMISSIONS MADE BY THE LD. DR. IT WAS SUBMITTED BY HIM THAT THE DISCLOSURE OF UNDISCL OSED INCOME MADE BY THE PARTNERS WAS WITH REGARD TO THE CASH GIRIRAJ DEVELOPERS 6 COMPONENT INVOLVED IN THE SALE OF RESIDENTIAL FLATS ONLY AND SINCE THERE WAS NO CASH COMPONENT INVOLVED IN THE S ALE OF SHOPS, THEREFORE, NO DISCLOSURE WAS MADE WITH REGAR D TO SALE OF SHOPS. IT WAS FURTHER SUBMITTED BY HIM THAT AO RECO RDED STATEMENT OF THE BUYERS OF THESE SHOPS WHO HAD DENI ED TO HAVE PAID ANY CASH COMPONENT. IT WAS FURTHER SUBMITTED T HAT EVIDENCES WERE FOUND WITH REGARD TO SALE OF SHOPS I N A.Y. 2007-08 AND NO EVIDENCE WAS FOUND FOR SALE OF SHOPS IN IMPUGNED YEAR AND THEREFORE NO ADDITION COULD HAVE BEEN MADE ONLY ON THE BASIS OF DOCUMENTS FOUND IN A.Y.20 07-08. IN ABSENCE OF ANY EVIDENCE, THE ADDITION WAS WRONGLY M ADE AND HAS BEEN RIGHTLY DELETED BY THE LD. CIT(A). IN SUPP ORT OF HIS ARGUMENTS, HE PLACED RELIANCE ON THE JUDGMENT OF HO NBLE DELHI HIGH COURT IN THE CASE OF CIT V. ANAND KUMAR DEEPAK KUMAR 284 ITR 497 AND UPON THE JUDGMENT OF ORISSA H IGH COURT IN THE CASE OF BANSHIDHAR ONKARMALL V. CIT 3 ITR 353. 2.8 . WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTH ORITIES AND SUBMISSIONS MADE BY BOTH THE SIDES BEFORE US. T HE IMPUGNED DOCUMENTS ON THE BASIS OF WHICH ADDITION H AS BEEN MADE WAS ADMITTEDLY FOUND AT THE PREMISES OF THE ASS ESSEE WHEREIN CERTAIN FACTS WERE CLEARLY MENTIONED WHICH HAVE NOT BEEN DENIED OR CONTROVERTED SO FAR. THESE FACTS ARE THAT SHOP NO.03 WAS SOLD BY THE ASSESSEE FOR AN AGGREGATE CON SIDERATION OF RS.27,62,500/- OUT OF WHICH A SUM OF RS.6,50,000 /- WAS RECEIVED BY CHEQUE AND BALANCE AMOUNT OF RS.21,12,5 00/- WAS RECEIVED IN CASH. DURING THE YEAR UNDER CONSIDE RATION THE ASSESSEE HAS SOLD 5 SHOPS, AND REQUISITE PARTICULAR S WITH REGARD TO THE SAME AS UNDER: GIRIRAJ DEVELOPERS 7 SHOP NO. NAME OF THE PARTY DATE OF BOOKING DATE OF AGREEMENT AGREEMENT VALUE S - 10 AMBAVI R. PATEL 20.12.07 27. 12.07 6,50,000 S - 11 GOPAL A PATEL 31.03.08 N.A.(SHOP CANCELLED) 7,00,000 S - 14 PARASMAL MEHTA 19.12.07 22.12.07 7,00,000 S - 19 SUNANDA S. RAUT 9.4.07 09.04.07 6,50,000 S - 20 SHASHIKANT H RAUT 09.04.07 09.04.07 6,50,000 2.9. THE PERUSAL OF THE ABOVE DETAILS SHOWS THAT THE AG REEMENT VALUE OF THESE SHOPS AT RS.6,50,000/- PER SHOP IS E XACTLY SAME AS HAS BEEN MENTIONED IN THE IMPOUNDED DOCUMENTS. A S PER SECTION 292C OF THE INCOME TAX ACT 1961, WHERE ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS ETC. ARE FOUND DURING T HE COURSE OF SEARCH U/S 132 OR SURVEY U/S 133A, THEN IT MAY B E PRESUMED THAT SUCH BOOKS OF ACCOUNTS AND OTHER DOCU MENTS ETC. BELONG TO THE PERSON UPON WHOM SEARCH/SURVEY H AS BEEN DONE AND THAT CONTENTS OF SUCH BOOKS OF ACCOUNTS AN D OTHER DOCUMENTS ARE TRUE. THOUGH, IT HAS BEEN HELD IN MAN Y JUDGMENTS THAT THIS PRESUMPTION IS REBUTTABLE, AND THIS IS AN ADMITTED POSITION OF LAW AND THERE IS NO DENIAL TO IT, BUT MAIN POINT INVOLVED HERE IS THAT BURDEN TO REBUT THIS PR ESUMPTION AS PER LAW IS UPON THE SHOULDERS OF THE PERSON (I.E . ASSESSEE IN THIS CASE) FROM WHOSE POSSESSION IMPOUNDED DOCUMENT IS FOUND. COMING BACK TO THE FACTS OF THIS CASE, IT HA S NOT BEEN DENIED THAT THIS DOCUMENT IS FOUND FROM ASSESSEES PREMISES. THESE FACTS HAVE NOT BEEN CONTROVERTED SO FAR THAT SHOP NO. 03 WAS SOLD FOR AN AGGREGATE CONSIDERATION OF RS.27,62 ,500/- GIRIRAJ DEVELOPERS 8 WHICH INVOLVED CASH COMPONENT OF RS.21,12,500/- AND CHEQUE COMPONENT (I.E. AGREEMENT VALUE) OF RS.6,50,000/- P ER SHOP. UNDER THESE CIRCUMSTANCES, THE LAW CLEARLY STIPULAT ES AND PUTS THE BURDEN UPON THE SHOULDERS OF THE ASSESSEE TO SH OW THAT OTHER SHOPS DID NOT HAVE A CASH COMPONENT AT ALL OR THE SALES CONSIDERATION OF THE REMAINING SHOPS HAVING IDENTIC AL LOCATION AND OTHER CONTRIBUTION WAS EQUIVALENT TO THEIR AGRE EMENT VALUE ONLY. THE LEAST, AN ASSESSEE IS EXPECTED TO D O IN THIS REGARD IS TO ESTABLISH WITH THE HELP OF DOCUMENTARY EVIDENCES THAT MARKET VALUE OF THE OTHER SHOPS ARE EQUIVALENT TO THEIR AGREEMENT VALUE AT THE TIME OF THEIR SALE. NO SUCH EXERCISE HAS BEEN DONE. ON THE CONTRARY IT IS NOTED THAT SALES P RICE OF THESE SHOPS HAS BEEN SHOWN AT EVEN LESS THAN ONE-FOURTH O F THE TOTAL SALES CONSIDERATION OF SHOP NO.03. IT IS TRUE THAT REVENUE AUTHORITIES ARE OBLIGED UNDER THE LAW TO MAKE FAIR ASSESSMENT OF INCOME AND DETERMINE TAX PAYABLE THEREON STRICTL Y WITHIN THE PARAMETERS OF LAW, BUT SIMULTANEOUSLY, AT VARIO US PLACES, THE LEGISLATURE HAS ALSO DRAFTED APPROPRIATE SAFEG UARD PROVISIONS TO ENSURE THAT THE LAW OF EVIDENCE UNDE R THE INCOME TAX PROCEEDINGS IS APPLIED IN SUCH A MANNER SO AS TO ENSURE THAT TAX EVASION IS CHECKED. THE GAME OF BUR DEN IS NOT STATIC UNDER THE INCOME TAX LAW. THE LEGAL OBLIGATI ONS BETWEEN THE ASSESSEE AND AO SWING LIKE A PENDULUM. IT KEEPS SHIFTING DEPENDING UPON FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO UPON DISCHARGE OF OBLIGATIONS BY THE PARTIES IN A R IGHTFUL MANNER. UNDER THE NORMAL CIRCUMSTANCES, THE BURDEN TO PROVE AN ALLEGATION IS UPON THE PERSON WHO MAKES AN ALLEG ATION. BUT IN THE FACTS OF THE CASE BEFORE US, THE DOCUMENTS I MPOUNDED GIRIRAJ DEVELOPERS 9 INDICATING RECEIPT OF CASH PORTION ON SALE OF SHOPS , COUPLED WITH OWN ADMISSION ABOUT INVOLVEMENT OF CASH COMPON ENT IN SALE OF FLATS, HAVE CLEARLY ESTABLISHED FACTUM OF I NVOLVEMENT OF RECEIPT OF CASH COMPONENT ON SALE OF SHOPS DURING T HE YEAR BEFORE US. IF THE ASSESSEE CLAIMS THAT THE FACTUAL POSITION IS DIFFERENT FROM THE FACTS ESTABLISHED ON THE BASIS O F DOCUMENT IMPOUNDED FROM HIM, THEN IT WAS FOR THE ASSESSEE TO REBUT THE SAME THAT TOO WITH THE HELP OF ADEQUATE EVIDENCES A DMISSIBLE IN THE EYES OF LAW. 2.10. WE FIND THAT NOTHING HAS BEEN BROUGHT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THIS REGARD BY THE ASSESSEE. WE ALSO FIND THAT THE AO ALSO FAILED IN B RINGING ANY FURTHER INFORMATION OR EVIDENCE ON RECORD IN THIS R EGARD. THUS, WE FIND THAT BOTH THE PARTIES FAILED IN THEIR RESPE CTIVE DUTIES TO TAKE THIS CASE AT A STAGE WHICH IS BEYOND APPARENT DOUBTS. UNDER THESE CIRCUMSTANCES, IN THE INTEREST OF JUSTI CE AND FAIR PLAY TO BE DONE WITH BOTH THE PARTIES, WE FIND IT A PPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE AO TO GIVE THE ASSESSEE AN OPPORTUNITY TO BRING REQUISITE EVIDENCES TO SHOW THAT MARKET VALUE OF THESE SHOPS WERE EQUIVALENT TO THE AMOUNT ON WHICH TRANSACTIONS HAS BEEN DONE. THE ASSESSEE IS F REE TO BRING FURTHER MATERIAL OR EVIDENCES ON RECORD TO ES TABLISH THAT SALE TRANSACTIONS OF THESE SHOPS HAVE BEEN DONE ONL Y AT THE AMOUNT FOR WHICH CHEQUES WERE RECEIVED BY THE ASSES SEE. IF WE CONFIRM THE ADDITION AT THIS STAGE WITHOUT GIVING T HIS OPPORTUNITY TO THE ASSESSEE, THEN IT MAY NOT BE FUL LY JUSTIFIED KEEPING IN VIEW PRINCIPLES OF NATURAL JUSTICE AND F ACTS OF THIS CASE. THE AO SHALL ALSO MAKE REQUISITE VERIFICATION OF ANY GIRIRAJ DEVELOPERS 10 DETAILS OR DOCUMENT AND MAY RAISE REQUISITE QUERIES SO AS TO BRING COMPLETE TRUTH ON RECORD. THE AO SHALL DECIDE THIS ISSUE AFRESH AFTER TAKING INTO ACCOUNT ENTIRE MATERIAL AS MAY BE GATHERED OR AS MAY BE BROUGHT ON RECORD BY THE ASSE SSEE. BEFORE WE PART WITH, WE SHALL LIKE TO DEAL WITH THE JUDGMENTS RELIED UPON BY LD. COUNSEL. LD. COUNSEL OF ASSESSEE HAD RELIED UPON THE JUDGMENT OF HONBLE ORISSA HIGH COURT IN T HE CASE OF BANSHIDHAR ONKARMALL (SUPRA). IT IS NOTED BY US THA T IN THE SAID JUDGMENT IT WAS HELD THAT MERELY ON THE BASIS OF PAST HISTORY INCOME COULD NOT BE ASCERTAINED OF THE CURR ENT PERIOD. SIMILARLY, IN THE CASE OF ANAND KUMAR DEEPAK KUMAR (SUPRA), HONBLE DELHI HIGH COURT HELD THAT IF UNACCOUNTED S ALE WAS FOUND IN A YEAR, THERE CANNOT BE GENERAL PRESUMPTIO N THAT UNACCOUNTED SALE WILL CONTINUE IN THE POST SEARCH P ERIOD ALSO. WE FIND THAT THE FACTS OF THE CASE BEFORE US ARE TO TALLY DIFFERENT FROM THE FACTS INVOLVED IN THESE TWO CASES. THIS CA SE IS NOT BEING DECIDED MERELY ON THE BASIS OF GENERAL PAST H ISTORY. IT IS NOT A CASE OF UNACCOUNTED SALES TRANSACTIONS, IN GE NERAL. IN THE CASE BEFORE US, SPECIFIC DOCUMENTS HAVE BEEN FO UND DURING THE COURSE OF SURVEY WHICH ESTABLISHED FACTUM OF CA SH COMPONENT INVOLVED IN THE SALE OF A SHOP. IF THE OT HER SHOPS WHICH ARE IDENTICAL IN ALL RESPECTS ARE SOLD, THEN THESE ARE EXPECTED TO FETCH A SIMILAR PRICE. THERE CANNOT BE A VARIATION OF MORE THAN FOUR TIMES. THE REVENUE IS NOT EXPECTED T O PUT LINKERS ON ITS EYES IN SUCH CASES AND IF IT IS SO D ONE THEN IT WILL GIVE RISE TO UN-RESTRICTED TAX EVASION IN OUR COUNT RY. UNDER THESE CIRCUMSTANCES, IN THE PECULIAR FACTS OF THIS CASE, WHERE SPECIFIC DOCUMENTARY EVIDENCES WERE FOUND, WE FIND THAT THE GIRIRAJ DEVELOPERS 11 BURDEN WAS CLEARLY ON THE SHOULDERS OF THE ASSESSEE TO DISPROVE OR NEGATE THE EFFECT OF THESE DOCUMENTARY EVIDENCES UPON OTHER IDENTICAL TRANSACTIONS. THEREFORE, THE A SSESSEE CANNOT TAKE THE BENEFIT OF THESE JUDGMENTS ON THE F ACTS OF THE CASE BEFORE US. OUR VIEW ALSO FINDS SUPPORT FROM TH E JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CST VS. H.M . ESUFALI H. M. ABDULALI 90 ITR 271. THUS, WITH THE AFORESAID DIRECTIONS, THIS ISSUE IS SENT BACK TO THE FILE OF THE AO. 3. NOW WE SHALL TAKE UP REVENUES APPEAL IN ITA NO.5682/MUM/2014 FOR A.Y. 2010-11: 3.1. IN THIS YEAR, THE FACTS ARE THAT THE ASSESSEE HAD SOLD 4 SHOPS NAMELY S-01, S-23, S-31 & S-32. IT IS BROUGHT TO OUR NOTICE BY THE LD. COUNSEL THAT AS ACCEPTED BY THE L D. CIT(A) IN HIS ORDER THAT SHOP NOS. S-31 & S-32 WERE SOLD IN E ARLIER YEAR AND ADDITION WITH REGARD TO THE SAME AS ALREADY BEE N MADE A.Y. 2008-09 AND THEREFORE MAKING AN ADDITION FOR T HE SAME IN THIS YEAR AGAIN HAS LED TO A DOUBLE ADDITION. IT IS NOTED BY US THAT LD. CIT(A) HAD DELETED THIS ADDITION ON THI S GROUND ITSELF. LD. DR IS NOT ABLE TO CONTROVERT THE FACTS RECORDED BY THE LD. CIT(A) AND REITERATED BEFORE US BY LD. COUNSEL OF THE ASSESSEE. IN OUR OPINION DOUBLE ADDITION IS NOT PER MITTED UNDER THE LAW AND THEREFORE LD. CIT(A) RIGHTLY DELE TED THE ADDITION IN HIS ORDER, AND HIS ORDER TO THIS EXTENT IS CONFIRMED. 3.2. WITH REGARD TO SHOP NO S-1 & S-23, WE FIND THAT FA CTS ARE IDENTICAL TO A.Y. 2008-09 AND THEREFORE THE ISSUES WITH REGARD GIRIRAJ DEVELOPERS 12 TO THESE TWO SHOPS ARE SENT BACK TO THE FILE OF THE AO, IN ACCORDANCE WITH OUR DIRECTIONS AS GIVEN IN OUR ORDE R FOR A.Y. 2008-09. THE AO IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2008- 09. 4. THUS, WITH THESE DIRECTIONS, BOTH APPEALS OF THE R EVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2016. SD/- (AMIT SHUKLA ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; # DATED : 27/07/2016 CTX? P.S/. .. #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. % &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. * * ( % ) / THE CIT, MUMBAI. 4. * * / CIT(A)- , MUMBAI 5. -. / (01 , * % 012 , / DR, ITAT, MUMBAI 6. / 34 5 / GUARD FILE. / BY ORDER, ) -% ( //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI