Dharminder Kumar Sharma, Zirakpur V. ACIT, Patiala

ITA 961/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68471 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 20-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJEET SINGH
• Keywords: Unexplained investment; Capital asset; Gift; Search and seizure; Additional evidence; Cost of acquisition; Fair market value; Deemed dividend; Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.957 TO 961/CHD/2012 ASSESSMENT YEARS: 2004-05 T O 2008-09 SHRI DHARMINDER KUMAR SHARMA, VS THE ACIT, VILLAGE LOHAGARH, CENTRAL CIRCLE, WARD 6, NAC, PATIALA. ZIRAKPUR. PAN: AOAPS-4925C & ITA NOS. 1000 & 1133/CHD/2012 ASSESSMENT YEARS. : 2007-08 & 2008-09 THE ACIT, VS SHRI DHARMINDER KUMAR SHARMA, CENTRAL CIRCLE, VILLAGE LOHAGARH, WARD 6, NAC, PATIALA ZIRAKPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI MANJEET SINGH DATE OF HEARING : 01.08.2013 DATE OF PRONOUNCEMENT : 06.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. : OUT OF THESE SEVEN APPEALS FILED BY THE ASSESSEE A ND THE REVENUE, THREE APPEALS ARE FILED BY THE ASSESSEE AG AINST THE SEPARATE ORDER OF THE CIT(APPEALS) DATED 06.08.2012 RELATING TO ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 AND T WO CROSS APPEALS ARE FILED BY BOTH ASSESSEE AND THE REVENUE AGAINST THE SEPARATE ORDERS OF THE CIT(APPEALS) DATED 06.08.201 2 RELATING TO ASSESSMENT YEARS 2007-08 AND 2008-09 AGAINST SEPARA TE ORDERS PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE IT A CT. 2 2. THE LD. AR FOR THE ASSESSEE, AT THE OUTSET POINT ED OUT THAT THE ISSUES RAISED IN THE ASSESSEE'S APPEALS ARE ID ENTICAL AND ARE ALSO SAME AS RAISED IN THE CASE OF SHRI PARWINDER K UMAR SHARMA IN ITA NOS 952,953 & 954/CHD/2012 RELATING TO ASSES SMENT YEAR 2004-05 TO 2006-07 WHICH HAS BEEN HEARD ON 18.07.20 13. HOWEVER, THE ISSUES RAISED IN REVENUES APPEAL WERE DIFFERENT 3. THE LD. DR FOR THE REVENUE FAIRLY POINTED OUT TH AT THE ISSUES WERE IDENTICAL AS IN THE EARLIER APPEALS IN THE CAS E OF FAMILY MEMBERS OF THE ASSESSEE AND THE LD. DR FOR THE REVE NUE PLACED STRONG RELIANCE ON THE ORDERS OF THE ASSESSING OFFI CER. 4. ALL THE APPEALS RELATING TO THE ASSESSEE AND THE REVENUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 957/CHD/2012 :: A.Y. 2004-05 :: ASSESSEE'S APPEAL 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THAT THE WORTHY CIT(A) HAS ERRED IN UPHOLDING ADDITION OF RS.45,814/- (BEING L/3 RA SHARE OF ASSESSEE) MADE BY THE ASSESSING OFFICER BY ASSESSING LONG TERM CAP ITAL GAIN AT RS.19,22,448 AGAINST THE LONG TERM CAPITAL GAIN OF RS.18,76,634/- AS SHOWN BY THE APPELLANT. 2. THAT WHILE CONFIRMING THE ADDITION AS PER GROUND NO.L, THE CIT (A) HAS WRONGLY TAKEN COST OF A CQUISITION AT RS.2,32,655/-, INSTEAD OF RS.3,70,097/- TAKEN BY THE ASSESSEE (IN WHICH ASSESSEE HAS L/3 RD SHARE) AS PER PARA 10 OF THE ORDER. 3. THAT ADDITION HAS BEEN UPHELD AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSION MADE BY US HAS NOT BEEN CONSIDERED PROPERLY. 4. NOTWITHSTANDING ABOVE SAID GROUNDS OF APPEAL, I T IS SUBMITTED THAT THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING THAT NO ADDITION CAN BE MADE AS NO INCRIMINATING NATURE OF DOCUMENTS WERE FOUND AND SE IZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATI ON IN VIEW OF THE SPECIAL BENCH JUDGMENT IN THE CASE OF ALL 3 CARGO GLOBAL LOGISTICS LIMITED & OTHERS AS REPORTED IN 147 TTJ 513. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEAR D OR DISPOSED OFF. 6. THE ISSUE RAISED VIDE GROUND NOS. 1 TO 3 IS IN R ELATION TO COMPUTATION OF LONG TERM CAPITAL GAINS ON SALE OF L AND VIS--VIS THE COST OF ACQUISITION TO BE ADOPTED IN THE HANDS OF THE ASSESSEE. THE CASE OF THE ASSESSEE WAS THAT THE SAID PLOTS OF LAND, SOLD BY HIM, WERE RECEIVED FROM HIS FATHER SHRI VISHWANATH SHARMA, WHO IN-TURN HAD RECEIVED THE GIFT FROM HIS MOTHER. THE SAID ASSET WAS ACQUIRED PRIOR TO 1981 AND THE COST OF ACQUISITION AS ON 01.04.1981 WAS TO BE ADOPTED WHILE COMPUTING THE IN COME FROM LONG TERM CAPITAL GAINS ON THE SALE OF THE SAID LAN D. ADMITTEDLY, THE SAID PIECE OF LAND WAS RECEIVED BY THE ASSESSEE AS GIFT FROM HIS FATHER. THE ASSESSING OFFICER WHILE COMPUTING THE COST OF ACQUISITION HAD ADOPTED THE DATE OF GIFT FOR COMPUT ING THE INDEXED COST OF ACQUISITION OF SAID PIECE OF LAND. 7. WE FIND THAT IDENTICAL ISSUE OF ADOPTION OF COST ACQUISITION OF THE LAND GIFTED TO THE ASSESSEE ALONGWITH GIFTS TO OTHER FAMILY MEMBERS AROSE BEFORE THE TRIBUNAL IN THE CASE OF PA RWINDER KUMAR SHARMA VS ACIT (SUPRA). THE TRIBUNAL VIDE OR DER DATED 23.08.2013 HAS HELD AS UNDER : 6 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THIS ISSUE WAS CONSIDERED BY THE SPECIAL BENCH IN CASE OF CIT V. MANJULA J. SHAH, 68 DTR 269 (BOM) WHEREIN IT WAS HELD THAT INDEXATION HAS TO BE APPLI ED FROM THE DATE WHEN THE PREVIOUS OWNER ACQUIRED THE ASSET. THIS POSITION HAS BEEN CONFIRMED BY HON'BLE BOMBAY HIGH COURT IN CASE OF CIT V. MANJULA J. SHAH , 204 TAXMAN 691. HEAD NOTE OF THIS DECISION READS A S UNDER: CAPITAL GAINS COST OF ACQUISITION RELEVANT YEAR FOR INDEXATION VIS--VIS PROPERTY ACQUIRED 4 UNDER GIFT- PROPERTY PURCHASED BY ASSESSEES DAUGHTER ON 29 TH JAN., 1993, GIFTED TO ASSESSEE ON 30 TH JUNE, 2003 AS THE PREVIOUS OWNER HELD THE CAPITAL ASSET FROM 29 TH JAN., 1993, AS PER EXPLN. 1(I)(B) TO S. 2(42A) THE ASSESSEE IS DEEMED TO HAVE HELD THE CAPITAL ASSET AS LONG- TERM CAPITAL ASSET FROM 29 TH JAN., 1993 THEREFORE, IN DETERMINING THE INDEXED COST OF ACQUISITION UNDER S. 48, THE ASSESSEE MUST BE TREATED TO HAVE HELD THE ASSET FROM 29 TH JAN, 1993 AND ACCORDINGLY THE COST INFLATION INDEX FOR 1992-93 WOULD BE APPLICABLE IN DETERMINING THE INDEXED COST OF ACQUISITION- CONTENTION OF REVENUE THAT AS THE ASSESSEE HELD THE ASSET W.E.F 1 ST FEB., 2003, THE FIRST YEAR OF HOLDING THE ASSET WOULD BE FINANCIAL YEAR 2002-03 AND ACCORDINGLY, THE COST INFLATION INDEX FOR 2002- 03 WOULD BE APPLICABLE IS DEVOID OF MERIT, BECAUSE IN THAT CASE, THE ASSESSEE WOULD NOT BE LIABLE FOR LONG-TERM CAPITAL GAINS TAX BY APPLYING THE DEEMED FICTION CONTAINED IN EXPLN. 1(I)(B) TO S. 2(42A) AND S.49(1)(II)- IN CONSTRUING THE WORDS ASSET WAS HELD BY THE ASSESSEE IN CL.(III) OF S. 48, ONE HAS TO SEE THE OBJECT WITH WHICH THE SAID WORDS ARE USED IN THE STATUTE- IN THE ABSENCE OF ANY INDICATION IN CL. (III) OF THE EXPLANATION TO S.48 THAT THE WORDS ASSET WAS HELD BY THE ASSESSEE HAVE TO BE CONSTRUED DIFFERENTLY, THE SAID WORDS SHOULD BE CONSTRUED IN ACCORDANCE WITH THE OBJECT OF THE STATUTE, THAT IS, IN THE MANNER SET OUT IN EXPLN. 1(I)(B) TO S. 2(42A)- IF THE MEANING GIVEN IN S.2(42A) IS NOT ADOPTED IN CONSTRUING THE WORDS USED IN S.48, THEN THE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET ACQUIRED UNDER A GIFT WILL BE OUTSIDE THE PURVIEW OF THE CAPITAL GAINS TAX AND THE PROVISION OF S.55(1)(B)(2)(II) WILL BECOME UNWORKABLE. A SIMILAR VIEW WAS TAKEN BY THE HON'BLE DELHI HIGH COURT IN CASE OF ARUN SHUNGLOO TRUST, 68 DTR 279 (D EL). HEAD NOTE OF THIS DECISION READS AS UNDER: CAPITAL GAINS- COST OF ACQUISITION RELEVANT YEAR FOR INDEXATION OF COST VIS--VIS PROPERTY ACQUIRED UNDER GIFT, TRUST, ETC.- THERE IS NO REASON TO HOLD THAT CL.(III) OF THE EXPLANATION BELOW S.48 INTENTS TO REDUCE OR RESTRICT THE INDEXED COST OF ACQUISITION TO THE PERIOD DURING WHICH THE ASSESSEE HAS HELD THE PROPERTY AND NOT THE PERIOD DURING WHICH THE PROPERTY WAS HELD BY THE PREVIOUS OWNER- HELD BY THE ASSESSEE USED IN EXPLN. (III) TO S.48 HAS TO BE UNDERSTOOD IN THE CONTEXT AND HARMONIOUSLY WITH OTHER SECTIONS- COST OF ACQUISITION STIPULATED IN S.49 MEANS THE COST 5 FOR WHICH THE PREVIOUS OWNER HAD ACQUIRED THE PROPERTY TERM HELD BY THE ASSESSEE SHOULD BE INTERPRETED TO INCLUDE THE PERIOD DURING WHICH THE PROPERTY IN TRUST ON 5 TH JAN., 1996, WHICH PROPERTY WAS ACQUIRED BY THE PREVIOUS OWNER SOMETIME BEFORE 1 ST APRIL, 1981, ON SALE OF PROPERTY BY THE ASSESSEE IN ASST.YR.2001-02, IT WAS ENTITLED TO THE BENEFIT OF INDEXED COST OF ACQUISITION FROM 1 ST APRIL, 1981, AND NOT FOR THE PERIOD ON OR AFTER 5 TH JAN., 1996. HELD AS PER S.49, THE COST OF ACQUISITION IN THE HANDS OF AN ASSESSEE IS TREATED AS THE COST OF ACQUISITION BY THE PREVIOUS OWNER. SIMILAR BENEFIT / ADVANTAGE IS GIVEN IN RESPECT OF COST OF IMPROVEMENT. SECS. 48 AND 49 HAVE TO BE READ HARMONIOUSLY TO GIVE FULL EFFECT TO THE LEGISLATIVE INTENT. ON READING OF CL. (IV) OF EXPLANATION TO S.48, IT IS APPARENT THAT THE TERM COST OF IMPROVEMENT WOULD INCLUDE THE COST OF IMPROVEMENT(S) MADE BY THE PREVIOUS OWNER. THE BENEFIT OF INDEXED COST OF IMPROVEMENT WOULD BE AVAILABLE EVEN IF THE CAPITAL ASSET IS ACQUIRED BY THE ASSESSEE UNDER ANY GIFT, WILL OR SUCCESSION, TRUST ETC. AND IMPROVEMENT WAS MADE BY THE PREVIOUS OWNER. IF THE CONTENTION OF THE REVENUE IS ACCEPTED, THEN BENEFIT OF INDEXED COST OF ACQUISITION WILL NOT BE AVAILABLE TO AN ASSESSEE IN A CASE COVERED BY S.49 FROM THE DATE ON WHICH THE ASSET WAS HELD BY THE PREVIOUS OWNER BUT ONLY FROM THE DATE THE CAPITAL ASSET WAS TRANSFER TO THE ASSESSEE. THIS WILL LEAD TO A DISCONNECT AND CONTRADICTION BETWEEN INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEMENT IN THE CASE OF CAPITAL ASSETS WHERE S.49 APPLIES. THIS CANNOT BE THE INTENTION BEHIND THE ENACTMENT OF S.49 AND EXPLANATION TO S.48. THERE IS, NO REASON OR GROUND WHY THE LEGISLATIVE WOULD WANT TO DENY OR DEPRIVE AN ASSESSEE BENEFIT / ADVANTAGE OF THE PREVIOUS HOLDING FOR COMPUTING INDEXED COST OF ACQUISITION WHILE ALLOWING THE SAID BENEFIT FOR COMPUTING INDEXED COST OF IMPROVEMENT. (PARAS 10,13 & 14) THE CONSTRUCTION PLACED BY THE REVENUE WILL LEAD TO INCONSISTENCY AND INCONGRUITIES, WHEN ONE REFERS TO S.49 AND CL. (IV) OF EXPLN. (1) TO S. 48. THIS WILL RESULT IN ABSURDITIES BECAUSE THE HOLDING OF PREDECESSOR HAS TO BE ACCOUNTED FOR THE PURPOSE OF COMPUTING THE COST OF ACQUISITION , COST OF IMPROVEMENT AND INDEXED COST OF IMPROVEMENT BUT AS PER THE REVENUE NOT 6 FOR THE PURPOSE OF INDEXED COST OF ACQUISITION. EVEN FOR THE PURPOSE OF DECIDING WHETHER THE TRANSACTION IS A SHORT-TERM CAPITAL GAIN OR LONG-TERM CAPITAL GAIN, THE HOLDING BY THE PREDECESSOR IS TO BE TAKEN INTO CONSIDERATION. BENEFIT OF INDEXED COST OF INFLATION IS GIVEN TO ENSURE THAT THE TAXPAYER PAYS CAPITAL GAIN TAX ON THE REAL OR ACTUAL GAIN AND NOT ON THE INCREASE IN THE CAPITAL VALUE OF THE PROPERTY DUE TO INFLATION. THIS IS THE OBJECT OR PURPOSE IN ALLOWING BENEFIT OF INDEXED COST OF IMPROVEMENT, EVEN IF THE IMPROVEMENT WAS BY THE PREVIOUS OWNER IN CASES COVERED BY S.49. ACCORDINGLY THERE IS NO JUSTIFICATION OR REASON TO NOT ALLOW THE BENEFIT OF INDEXATION TO THE COST OF ACQUISITION IN CASES COVERED BY S.49. THIS IS NOT THE LEGISLATIVE INTENT BEHIND CL.(III) OF EXPLANATION TO S.48. THERE IS NO REASON AND JUSTIFICATION TO HOLD THAT CL.(III) OF THE EXPLANATION BELOW S.48 INTENTS TO REDUCE OR RESTRICT THE INDEXED COST OF ACQUISITION TO THE PERIOD DURING WHICH THE ASSESSEE HAS HELD THE PROPERTY AND NOT THE PERIOD DURING WHICH THE PROPERTY WAS HELD BY THE PREVIOUS OWNER. THE INTERPRETATION RELIED BY THE ASSESSEE IS REASONABLE AND IN CONSONANCE WITH THE OBJECT AND PURPOSE BEHIND SS. 48 AND 49. THE EXPRESSION HELD BY THE ASSESSEE USED IN EXPLN. (III) TO S. 48 HAS TO BE UNDERSTOOD IN THE CONTEXT AND HARMONIOUSLY WITH OTHER SECTIONS. THE COST OF ACQUISITION STIPULATED IN S.49 MEANS THE COST FOR WHICH THE PREVIOUS OWNER HAD ACQUIRED THE PROPERTY. THE TERM HELD BY THE ASSESSEE SHOULD BE INTERPRETED TO INCLUDE THE PERIOD DURING WHICH THE PROPERTY WAS HELD BY THE PREVIOUS OWNER. CIT VS. MANJULA J, SHAH (2012) 68 DTR (BOM,) 269 CONCURRED WITH. FOLLOWING THE ABOVE DECISION WE ARE OF THE OPINION THAT IN CASE CAPITAL ASSET HAS BEEN RECEIVED BY THE ASSE SSEE BY WAY OF GIFT OR INHERITANCE THEN COST OF INFLATIO N INDEX HAS TO BE APPLIED FROM THE DATE WHEN SUCH ASSET WAS ACQUIRED BY THE PREVIOUS OWNER. ACCORDINGLY WE SE T ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO APPLY INFLATION INDEX AS PER O UR OBSERVATIONS. 8. THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS AND CIRCUMSTANCES OF THE CASE IN PARWI NDER KUMAR SHARMA VS ACIT (SUPRA) AND FOLLOWING THE SAME PARIT Y OF REASONING, WE REMIT THE ISSUE BACK TO THE FILE OF A SSESSING OFFICER 7 TO RECOMPUTE THE INDEXED COST OF ACQUISITION OF THE PIECE OF LAND BY ADOPTING THE COST OF ACQUISITION AS ON 01.04.198 1. THE ASSESSING OFFICER SHALL THUS, RE-DETERMINE THE INCO ME FROM LONG TERM CAPITAL GAINS ON THE SALE OF THE SAID PIECE OF LAND IN THE HANDS OF THE ASSESSEE IN LINE WITH OUR DIRECTIONS I N THE CASE OF PARWINDER KUMAR SHARMA (SUPRA) VIDE ORDER DATED 23. 08.2013. REASONABLE OPPORTUNITY OF HEARING SHALL BE AFFORDED TO THE ASSESSEE. THE GROUND OF APPEAL NOS. 1 TO 3 RAISED BY THE ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO. 4 RAISED BY THE ASSESSEE IS NOT PRESS ED AND HENCE, THE SAME IS DISMISSED AS NOT PRESSED. ITA NO. 958/CHD/2012 :: A.Y. 2005-06 :: ASSESSEE'S APPEAL 10. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL : 1. THAT THE WORTHY CIT(A) HAS ERRED IN CONFIRMIN G ADDITION OF RS.22,192/- MADE BY THE ASSESSING OFFICER IN RESPECT OF SALE OF PLOT MEASURING 1168 SQ. YARDS AT VILLAGE LOHGARH ( IN WHICH ASSESSEE HAS L/5 TH SHARE) BY TAKING INDEX COST OF ACQUISITION AT RS. 31,355/- INSTEAD OF RS. L,40,160 /-TAKEN BY THE ASSESSEE AS PER PARA-11 OF THE ORDER. 2. THAT THE WORTHY CIT (A) HAS ERRED IN CONFIRMING T HE ADDITION OF RS. 13,243/-(WRONGLY TAKEN AT RS. 665449/-) MADE BY THE ASSESSING OFFICER IN RESPECT OF SALE OF PLOT MEASURING 473 SQ. YARDS AT VILLAGE LOHGARH BY TAKING INDEX COST OF ACQUISITION AT RS. 28,443/-(WRONGLY T AKEN AT RS. 707135/-), INSTEAD OF RS. 41,686 TAKEN BY THE ASSESSEE AS PER PARA-15 OF THE ORDER. 3. THAT ADDITION HAS BEEN UPHELD AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSION MADE BY US HAS NOT BEEN CON SIDERED PROPERLY. 4. NOT WITHSTANDING ABOVE SAID GROUNDS OF APPEA L, IT IS SUBMITTED THAT THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING THA T NO ADDITION CAN BE MADE AS NO INCRIMINATING NATURE OF DOCUMENTS WERE FOU ND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION IN VIEW OF THE SPECIAL BENCH JUDGMENT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LIMITED & OTHERS AS REPORTED IN 147 TTJ 513. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOS ED OFF. 8 11. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT TH E ISSUE IN GROUND NOS. 1 TO 3 WERE IDENTICAL TO THE GROUNDS OF APPEAL RAISED IN ITA NO. 957/CHD/2012. 12. WE FIND THAT THE ISSUE RAISED BY THE ASSESSEE V IDE GROUND NOS. 1 TO 3 IS IDENTICAL TO THE GROUNDS OF APPEAL RAISED IN THE EARLIER YEAR AND FOLLOWING THE SAME PARITY OF REASO NING, WE REMIT THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO RE-DETERMINE THE INCOME FROM LONG TERM CAPITAL GAIN FROM SALE OF LAN D IN THE HANDS OF THE ASSESSEE IN LINE WITH OUR DIRECTIONS. REASO NABLE OPPORTUNITY OF HEARING SHALL BE AFFORDED TO THE ASS ESSEE. GROUND OF APPEAL NOS. 1 TO 3 ARE THUS, ALLOWED FOR STATIST ICAL PURPOSES. 13. GROUND NO. 4 IS NOT PRESSED AND THE SAME IS DIS MISSED AS NOT PRESSED. ITA NO. 959/CHD/2012 :: A.Y. 2006-07 :: ASSESSEE'S APPEAL 14. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL : 1. THAT THE WORTHY CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.3,40,173/- BY NOT ADOPTING THE CORRECT COST OF A CQUISITION AS CLAIMED BY THE APPELLANT A: PER PARA-7 OF THE ORDER. 2. THAT THE CIT (A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE AS PER PARA-7 OF THE ORDER. 3. THAT ADDITION HAS BEEN UPHELD AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSION MADE BY US HAS NOT BEEN CONSIDERED PROPERLY. 4. NOTWITHSTANDING ABOVE SAID GROUNDS OF APPEAL, IT IS SUBMITTED THAT THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERIN G THAT NO ADDITION CAN BE MADE AS NO INCRIMINATING NATURE OF DOCUMENTS WER E FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION I N VIEW OF THE SPECIAL BENCH JUDGMENT IN THE CASE OF ALL CARGO GLO BAL LOGISTICS LIMITED & OTHERS AS REPORTED IN 147 TTJ 513. 5. THAT THE LEARNED CIT(A) HAS ERRED IN UPHOLDING A DDITION OF RS.5,67,910/- MADE BY THE ASSESSING OFFICER BY TREA TING THE DEBIT BALANCE IN THE NAME OF THE ASSESSEE IN THE BOOKS OF ACCOUNT OF M/S V N SHARMA 9 BUILDERS (P) LTD. AS DEEMED DIVIDEND U/S 2(22)(E) A S PER PARA 8 OF THE ORDER. 15. THE ISSUE IN GROUND NO. 1 RAISED BY THE ASSESSE E IS IDENTICAL TO THE ISSUE RAISED VIDE GROUND NOS. 1 TO 3 IN ITA NO. 957/CHD/2012 AND FOLLOWING THE SAME PARITY OF REASO NING, WE REMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFI CER TO RE- DETERMINE THE INCOME FROM LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE GROUND NO. 1 RAISED BY THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. 16. THE GROUND NOS. 2 & 4 RAISED BY THE ASSESSEE AR E NOT PRESSED, HENCE, THE SAME ARE DISMISSED AS NOT PRESS ED. 17. THE GROUND NO. 3 RAISED BY THE ASSESSEE IS GENE RAL IN NATURE AND THE SAME IS DISMISSED. ITA NO. 960/CHD/2012 :: A.Y. 2007-08 :: ASSESSEE'S APPEAL :: 961/CHD/2012 :: A.Y. 2008-09 :: ASSESSEE'S APPEAL 18. BOTH THE APPEALS FILED BY THE ASSESSEE ARE WITH DRAWN BY THE ASSESSEE AS PER THE NOTING ON THE GROUNDS OF APPEAL ON 29.07.2013. HENCE, BOTH THE APPEALS ARE DISMISSED. ITA NO. 1000/CHD/2012 :: A.Y. 2007-08 :: REVENUES APPEAL 19. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THAT LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FA CTS IN DELETING; THE ADDITION OF RS.96,000/- MADE ON ACCOU NT OF LOW HOUSEHOLD WITHDRAWALS KEEPING IN VIEW THE SP ECIFIC FINDINGS IN THE ASSESSMENT ORDER. 2. THAT LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS. 1,00,000/- MADE ON ACC OUNT 10 DIFFERENCE IN SHORT TERM CAPITAL GAIN SHOWN AND SHO RT TERM CAPITAL GAIN CALCULATED BY THE A.O. AS PER SPE CIFIC FINDINGS GIVEN IN THE ASSESSMENT ORDER. 3. THAT LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS. 6,47,188/- AND RS. 6,1 8,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED INVESTMENT IN THE PURCHASE OF PLOTS ON THE BASIS OF ADDITIONAL EVIDENCE IN THE FORM OF CASH FLOW STATEM ENT PRODUCED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY AT A LATER STAGE AS PER FOLLOWING REASONS : I. THE ASSESSEE HAD FAILED TO FURNISH ANY EVIDENCE DURING THE ASSESSMENT PROCEEDINGS AS SPECIFICALLY MENTIO NED IN THE ASSESSMENT ORDER. II. THE AO OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE AT APPELLATE STAGE U/S 46A OF THE INCOME TAX RULE S. III. THE LD. CIT(A) HAS DELETED THE ADDITION WITHO UT ALLOWING THE AO TO EXAMINE THE CORRECTNESS AND GENUINENESS O F THE ADDITIONAL EVIDENCE ADMITTED BY THE LD. CIT(A). 20. THE GROUND NO. 1 RAISED BY THE REVENUE IS AG AINST THE DELETION OF ADDITION OF RS. 96,000/-. THE BRIEF FA CTS RELATING TO THE ISSUE ARE THAT SEARCH & SEIZURE OPERATION CONDU CTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 16.10.2007 REFLECTED VARIOUS ITEMS BEING AVAILABLE. THE LIST OF THE ITE MS FOUND AT THE RESIDENCE OF THE ASSESSEE INCLUDED 15 SPLIT ACS, 5 TVS, 4 LCDS, 2 CD PLAYERS, JOGGER MACHINE, ONE GENERATOR, 4 SOFA S ETS, ETC. IN VIEW OF THE ABOVESAID ITEMS FOUND AT THE RESIDENCE, THE ASSESSING OFFICER SHOW CAUSED THE ASSESSEE TO JUSTIFY THE HOU SEHOLD EXPENSES ALONGWITH THE DETAILS OF FAMILY MEMBERS AN D THE EXPENDITURE INCURRED ON THE EDUCATION OF THE CHILDR EN. THE ASSESSEE FAILED TO FILE THE REPLY DESPITE VARIOUS O PPORTUNITIES BEING ALLOWED BY THE ASSESSING OFFICER AND FINALLY ON 11.12.2009, IT WAS SUBMITTED THAT THE ASSESSEE WAS A MEMBER OF JOINT FAMILY OF HIMSELF, HIS PARENTS AND FAMILIES OF HIS THREE BROT HERS AND ALL THE EXPENSES WERE SHARED BY THE FAMILY MEMBERS. THE AS SESSEE CLAIMED TO HAVE WITHDRAWN RS. 708,000/- JOINTLY FOR HOUSEHOLD 11 EXPENSES. THE ASSESSING OFFICER IN VIEW OF THE LIF ESTYLE ENJOYED BY THE ASSESSEE, WHO IN-TURN WAS CARRYING ON REAL E STATE DEVELOPMENT BUSINESS AND IN THE ABSENCE OF VARIOUS DETAILS, BEING FILED BY THE ASSESSEE IN RESPECT OF CONSUMPTION OF ELECTRICITY, ESTIMATED THE HOUSEHOLD EXPENSES OF THE ASSESSEE AT RS.8000/- PER MONTH. CONSEQUENTLY, ADDITION ON ACCOUNT OF LOW HO USEHOLD EXPENSES WAS MADE AT RS. 96,000/-. THE SAID ADDITI ON WAS MADE OVER AND ABOVE THE EXPENDITURE INCURRED BY THE ASSE SSEE. 21. THE CIT(APPEALS) CONSIDERED THE TOTAL FAMILY WI THDRAWALS OF THE ASSESSEE AT RS. 7,08,000/- AND ALSO THE INCO ME OF TWO LADIES AT RS. 2,40,000/- WHICH WERE NOT UTILIZED ANYWHERE AND DELETED THE ADDITION ON ACCOUNT OF WITHDRAWALS. 22. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF T HE CIT(APPEALS). THE LD. DR FOR THE REVENUE PLACED RE LIANCE ON THE ORDERS OF THE ASSESSING OFFICER AND LD. AR FOR THE ASSESSEE PLACED RELIANCE ON THE ORDER OF THE CIT(APPEALS). 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES WHER E JOINT FAMILY OF THE ASSESSEE CONSISTED OF SELF, HIS PARENTS AND FAMILIES OF THREE BROTHERS, WHO CLAIMED TO HAVE INCURRED TOTAL WITHDR AWAL OF RS. 7,08,000/- FOR MEETING THE HOUSEHOLD EXPENDITURE, W E FIND THAT THE ORDER OF THE CIT(APPEALS) IN THIS REGARD WAS NOT AP PROPRIATE. THE OBSERVATION OF THE CIT(APPEALS) THAT THE INCOME EAR NED BY TWO LADIES OF THE FAMILIES AMOUNTING TO RS. 2,40,000/- WAS ALSO UTILIZED FOR MEETING THE HOUSEHOLD EXPENSES, IS WIT HOUT ANY EVIDENCE. HENCE, BENEFIT OF THE SAME CAN NOT BE AL LOWED IN THE HANDS OF THE ASSESSEE, IN THE ABSENCE OF ANY DETAIL S HAVING BEEN 12 FILED BY THE ASSESSEE OF HAVING UTILIZED THE SAID A MOUNT OF RS. 2,40,000/- FOR MEETING THE HOUSEHOLD EXPENSES. THU S, THE TOTAL EXPENDITURE INCURRED BY THE ASSESSEE AND HIS FAMILY DURING THE YEAR WAS VERY LOW AND IN THE ABSENCE OF THE ASSESSE E HAVING COOPERATED AND FURNISHED COMPLETE DETAILS WITH REGA RD TO THE VARIOUS EXPENDITURES INCURRED BY THE ASSESSEE FOR M EETING HIS HOUSEHOLD EXPENSES, REASONABLE ESTIMATE NEEDS TO BE MADE IN ORDER TO WORK OUT THE ADDITION ON ACCOUNT OF LOW HO USEHOLD WITHDRAWALS. IN THE ENTIRETY OF THE FACTS AND CIRC UMSTANCES OF THE CASE, WE ESTIMATE THE SAID EXPENSES AT RS. 6000/- P ER MONTH AND ACCORDINGLY, RESTRICT THE ADDITION TO RS. 72,000/-. THE GROUND OF APPEAL NO. 1 RAISED BY THE REVENUE IS THUS, ALLOWED . 24. THE ISSUE IN GROUND NO. 2 RAISED BY THE REVENUE IS AGAINST THE DELETION OF RS. 1,00,000/-. THE AFORESAID ADDI TION WAS MADE IN THE HANDS OF THE ASSESSEE IN RELATION TO THE EST IMATION OF MARKET VALUE OF PROPERTY SOLD BY THE ASSESSEE, IN R ESPECT OF WHICH THE ASSESSEE FAILED TO FURNISH COPY OF THE SALE DEE D BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAD DECLARED THE S ALE PRICE AT RS. 8,00,000/- AGAINST WHICH THE MARKET VALUE OF THE PL OT OF LAND WAS ESTIMATED AT RS. 9,00,000/- BY THE ASSESSING OFFICE R, RESULTING IN ADDITION OF RS. 1,00,000/-. THE CIT(APPEALS) ADMIT TED THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BY WAY OF REGISTERED DEED AND DELETED THE ADDITION OF RS.1,00,000/-. 25. THE REVENUE IS IN APPEAL AGAINST THE SAID ORDER OF CIT(APPEALS) AND RELIANCE WAS PLACED UPON THE ORDER OF ASSESSING OFFICER BY THE LD. DR FOR THE REVENUE. THE ASSESSEE PLACED RELIANCE ON THE ORDER OF THE CIT(APPEALS). 13 26. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE, DURING THE YEAR UNDER CONSIDERATION H AD DECLARED INCOME FROM SHORT TERM CAPITAL GAINS ON SALE OF PLO T OF LAND WHERE THE ASSESSEE FAILED TO FILE THE COPY OF SALE DEED B EFORE THE ASSESSING OFFICER AND CONSEQUENTLY, THE SALE VALUE WAS ADOPTED AT RS. 9,00,000/- AS AGAINST RS. 8,00,000/- DECLARED B Y THE ASSESSEE. THE COST OF ACQUISITION OF THE SAID PLOT OF LAND WA S ACCEPTED BY THE ASSESSING OFFICER. HOWEVER, BEFORE THE CIT(APP EALS), THE ASSESSEE FURNISHED COPY OF THE SALE DEED AND THE VA LUE DECLARED IN THE SAID SALE DEED WAS ACCEPTED BY THE CIT(APPEA LS) AND THE ADDITION THEREAFTER WAS DELETED. IN VIEW OF THE AB OVESAID, WE FIND NO MERIT IN THE GROUND OF APPEAL NO. 2 RAISED BY TH E REVENUE AND UPHOLDING THE ORDER OF CIT(APPEALS), WE DISMISS GRO UND NO.2 RAISED BY THE REVENUE. 27. THE ISSUE IN GROUND NO.3 RAISED BY THE REVENUE IS AGAINST THE DELETION OF TWO ADDITIONS I.E. ONE OF RS.647,18 8/- AND SECOND OF RS.618,000/-, BOTH MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF TWO DIFFERENT PLOTS. 28. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER REQUISITIONED THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT WITH DOCUMENTARY EVIDENCE FOR THE PURCHASE OF PLOT MEASURING 238 SQ.YDS. FOR RS. 647,188/-. SIMILAR REQUISITION WAS MADE IN RESPECT OF ANOTHER PLOT PURCHASED FOR RS.618,000/-. DESPIT E VARIOUS NOTICES ISSUED TO THE ASSESSEE TO COMPLY WITH THE A BOVESAID REQUISITION, NO REPLY WAS FILED BY THE ASSESSEE IN RESPECT OF SOURCE OF INVESTMENT IN THE SAID PLOTS OF LAND, HEN CE, THE ASSESSING OFFICER TREATED THE INVESTMENT OF RS. 647 ,188/- AND RS. 14 618,000/- AS UNEXPLAINED AND ADDITION WAS MADE ON T HE SAID ACCOUNTS IN THE HANDS OF THE ASSESSEE. 29. BEFORE THE CIT(APPEALS), THE CONTENTION OF THE ASSESSEE WAS THAT OUT OF THE SAID SUM OF RS. 647,188/-, CASH AMO UNTING TO RS. 593,750/- WAS PAID ON 19.04.2005 TO THE SELLER IN A DVANCE FOR THE PURCHASE OF THE SAID PROPERTY, WHICH WAS REGISTERED ON 24.04.2006 AND ASSESSEE INCURRED RS. 53,438/- ON ACCOUNT OF ST AMP DUTY CHARGES. THE ASSESSEE, BY WAY OF ADDITIONAL EVIDEN CE, OFFERED CASH FLOW STATEMENT BEFORE THE CIT(APPEALS) WHICH W AS OBJECTED TO BY THE ASSESSING OFFICER. HOWEVER, THE CIT(APPE ALS) ADMITTING THE CASH FLOW STATEMENT FILED BY THE ASSE SSEE, WHICH ACCORDING TO HIM WAS BASED UPON WITHDRAWALS/DEPOSIT S MADE BY THE ASSESSEE IN HIS BANK ACCOUNT, ACCEPTED THE SOUR CE OF INVESTMENT OF RS. 593,750/- AND ALSO RS. 55,438/-, RESULTING IN DELETION OF ADDITION OF RS. 647,188/-. 30. THE SECOND INVESTMENT MADE BY THE ASSESSEE WAS IN A PLOT OF 100 SQ.YD. WHICH IN-TURN WAS PURCHASED FROM MR. SAH IB SINGH S/O MR. GURMAIL SINGH. BEFORE THE CIT(APPEALS), THE AS SESSEE CLAIMED TO HAVE MADE THE SAID INVESTMENT OUT OF AVA ILABLE CASH ON 31.08.2004 I.E. IN THE PRECEDING YEARS. THE ASSESS EE HAD PURCHASED THE PLOT OF LAND ON 24.04.2006. THE ASSE SSEE, BY WAY OF THE CASH FLOW STATEMENT, EXPLAINED THE SOURCE OF INVESTMENT IN THE SAID PIECE OF LAND WHICH WAS OBJECTED TO BY THE ASSESSING OFFICER AS NO INFORMATION IN RESPECT OF VARIOUS ENT RIES IN THE SAID CASH FLOW STATEMENT WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSEE, IN REPLY POINTED OUT THAT PURSUANT TO THE SEARCH ON 16.10.2007, VARIOUS REQUESTS WERE MADE FOR AVAILING THE COPIES OF THE SEIZED MATERIAL WHICH WAS MADE AVAILABLE TO THE ASSESSEE VERY 15 LATE AND CONSEQUENTLY, THE INTER-LINKING OF THE DOC UMENTS COULD NOT BE COMPLETED DURING THE ASSESSMENT PROCEEDINGS AND COMPLETE REPLY COULD NOT BE OFFERED BEFORE THE ASSESSING OFF ICER. THE CIT(APPEALS), ACCEPTING THE PLEA OF THE ASSESSEE AN D ALSO ACCEPTING THE SOURCE OF INVESTMENT BY WAY OF CASH F LOW STATEMENT, WHICH WAS ADMITTED AS AN ADDITIONAL EVIDENCE, DELET ED THE ADDITION OF RS. 618,000/- OBSERVING THAT THE CLAIM OF THE ASSESSEE WAS EVIDENCED BY THE REGISTRATION OF THE SAID PROPE RTY WHEREIN THE DETAILS WERE RECORDED. THE REVENUE IS IN APPEAL AG AINST THE AFORESAID ORDER OF THE CIT(APPEALS). 31. IT WAS POINTED OUT BY THE LD. DR FOR THE REVENU E THAT THE ADDITION HAS BEEN DELETED BY RELYING ON CASH FLOW S TATEMENT, WHICH WAS NEVER BEFORE THE ASSESSING OFFICER. IT W AS FURTHER POINTED OUT BY THE LD. DR FOR THE REVENUE THAT NO B ALANCE SHEET WAS EVER FILED BEFORE THE ASSESSING OFFICER AND THE CONDUCT OF THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WAS TOTA LLY NON- COOPERATIVE. FURTHER, IT WAS POINTED OUT BY THE LD . DR FOR THE REVENUE THAT IN RESPECT OF THE TRANSACTION OF PURCH ASE OF THE PROPERTY DURING THE YEAR UNDER CONSIDERATION I.E. F INANCIAL YEAR 2006-07, THE ASSESSEE CLAIMS TO HAVE MADE ADVANCE O N 19.04.2005 IN CASH. EVEN IF RELIANCE IS PLACED ON THE CASH FL OW STATEMENT FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERAT ION, THE ADVANCE MADE ON 19.04.2005 IS NOT SUBSTANTIATED BY THE SAID CASH FLOW STATEMENT. 32. THE LD. AR FOR THE ASSESSEE FAIRLY ADMITTED THA T THE CASH FLOW STATEMENT WAS FILED BEFORE THE CIT(APPEALS) FO R THE FIRST TIME WHO IN TURN HAD ADVANCED THE SAME TO THE ASSES SING OFFICER FOR REMAND REPORT. IT WAS FURTHER CLAIMED BY THE L D. AR FOR THE 16 ASSESSEE THAT IN ADDITION TO THE CASH FLOW FOR THE YEAR UNDER CONSIDERATION, THE CASH FLOW FOR THE EARLIER TWO YE ARS WAS ALSO FILED BEFORE THE CIT(APPEALS). THE CLAIM OF THE LD . AR FOR THE ASSESSEE WAS THAT SUM OF RS. 618,000/- WAS ADVANCED IN ASSESSMENT YEAR 2005-06 AND SUM OF RS. 593,750/- AN D RS. 53,438/- WAS ADVANCED IN ASSESSMENT YEAR 2006-07 TH OUGH THE SAID PROPERTIES WERE PURCHASED IN ASSESSMENT YEAR 2 007-08. IT WAS ALSO STRESSED BY THE LD. AR FOR THE ASSESSEE TH AT ANOTHER ADDITION WAS MADE ON ACCOUNT OF INVESTMENT IN ANOTH ER IMMOVABLE PROPERTY, WHICH WAS DELETED BY THE CIT(APPEALS) AND NO APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE SAME. IN REPLY, LD. DR FOR THE REVENUE POINTED OUT THAT THE DEPARTMENT IS NOT IN APPEAL AGAINST THE SAID ORDER OF LOW TAX EFFECT AND THE SA ME CANNOT BE USED AS EVIDENCE AGAINST THE REVENUE. 33. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD . THE ISSUE IN GROUND NO. 3 RAISED BY THE REVENUE IS AGAINST THE DELETION OF ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN TWO PLOTS OF LAND AMOUNTI NG TO RS. 647,188/- AND RS. 618,000/-. THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS FAILED TO FURNISH ANY INFORM ATION BEFORE THE ASSESSING OFFICER AND CONSEQUENTLY THE SAID INV ESTMENT WAS TREATED AS UNEXPLAINED. THE PERUSAL OF THE ASSESSM ENT ORDER REFLECT THAT SEARCH & SEIZURE OPERATIONS WERE CARRI ED OUT AT THE PREMISES OF THE ASSESSEE ON 16.10.2007. THE ASSESS ING OFFICER, DURING THE ASSESSMENT PROCEEDINGS CONFRONTED THE AS SESSEE TO EXPLAIN THE SOURCES OF INVESTMENT WITH DOCUMENTARY EVIDENCE IN PLOT OF LAND MEASURING 238 SQ.YD. WORTH RS. 647,188 /- AND ANOTHER PLOT OF LAND MEASURING 100 SQ.YD. PURCHASED FOR RS. 618,000/-. 17 THE ASSESSEE FAILED TO FURNISH ANY DOCUMENTARY EVID ENCE OF SOURCE OF INVESTMENT IN THE SAID PLOT OF LAND BEFOR E THE ASSESSING OFFICER AND CONSEQUENTLY THE SAID INVESTMENT WAS TR EATED AS UNEXPLAINED BY THE ASSESSING OFFICER AND ADDITION T O THIS EFFECT WAS MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSE E HAS PLACED ON RECORD THE COPY OF ACCOUNT OF ONE SHRI PAWAN GOY AL IN RELATION TO THE PURCHASE OF 238 SQ.YD. OF PLOT OF LAND AT PA GE 18 OF THE PAPER BOOK. ANOTHER COPY OF ACCOUNT OF LAND AREA 1 00 SQ.YD. VILLAGE LOHAGARH IS PLACED AT PAGE 19 OF THE PAPER BOOK WHEREIN THE ENTRIES OF SALE AND PURCHASE OF THE SAID PLOTS OF LAND ARE INCORPORATED. AS PER THE SAID COPY OF ACCOUNT, THE CASH OF RS.618,000/- WAS CLAIMED TO HAVE BEEN PAID ON 31.08 .2004 FOR THE PURCHASE OF AREA OF 100 SQ.YD. OF PLOT OF LAND IN V ILLAGE LOHAGRH. THE SAID PLOT WAS SOLD BY THE ASSESSEE ON 15.02.200 7 FOR RS. 8,00,000/- AND PROFIT OF RS. 182,000/-ON THE SALE O F THE SAID LAND WAS DECLARED. AS PER THE COPY OF ACCOUNT AT PAGE 1 8 OF THE PAPER BOOK, CASH OF RS. 593,750/- WAS PAID ON 19.04.2005 FOR THE PURCHASE OF THE LAND AND FURTHER ENTRY WAS MADE ON 24.04.2006 FOR DEBITING THE ACCOUNT OF AND AREA 950 X 4 SQ.YDS . IN BISHANPURA. THE ASSESSEE HAS FURTHER PLACED ON REC ORD THE COPY OF PERSONAL BALANCE-SHEET OF SHRI DHARMINDER KUMAR SHARMA AS ON 31.03.2005 REFLECTING THE INVESTMENT OF RS. 618,000 /- IN LAND AREA OF 100 SQ.YD. IN VILLAGE LOHAGARH BY THE ASSESSEE D URING THE FINANCIAL YEAR 2004-05. THE COPY OF THE BALANCE SH EET IS PLACED AT PAGE 1 OF THE PAPER BOOK. FURTHER, THE ASSESSEE HAS PLACED ON RECORD THE BALANCE SHEET FOR THE FINANCIAL YEAR 200 5-06 IN WHICH THE ADVANCE FOR PURCHASE OF LAND OF RS. 593,750/- I S REFLECTED ALONGWITH THE INVESTMENT OF RS. 618,000/-. A COPY OF THE SAID 18 BALANCE-SHEET IS PLACED AT PAGE 2 OF THE PAPER BOOK . THE ASSESSEE HAS FURTHER PLACED ON RECORD THE CASH FLOW STATEMEN T FOR THE ASSESSMENT YEAR 2007-08 AT PAGES 5 TO 9 OF THE PAPE R BOOK WHICH ADMITTEDLY DOES NOT REFLECT THE SAID INVESTMENT IN THE TWO PIECES OF LAND WHICH AS PER THE ASSESSEE WERE MADE IN THE PRECEDING YEARS. IN REPLY TO THE SOURCE OF INVESTMENT OF RS. 647,148/-, THE CONTENTION OF THE ASSESSEE IS REPRODUCED IN PAR A 10 AT PAGE 6 OF THE APPELLATE PROCEEDINGS, WHICH READS AS UNDER : AS REGARDS THE INVESTMENT OF RS. 6,47,188/-, IT MA Y BE STATED THAT THE SAID INVESTMENT WAS MADE OUT OF AVAILABLE CASH AS PER CASH FLOW STATEMENT AS EXPLAINED ABOVE. CASH AMOUNTING TO RS. 5,93,750/- WAS PAID ON 19.04.2005 TO THE SELLER, NAMED MR. PAWAN G OEL S/O MR. GOBARDHAN DASS, IN ADVANCE IN RELATION TO THE PURCH ASE OF THIS PROPERTY. HOWEVER THE PROPERTY GOT REGISTERED IN TH E NAME OF THE ASSESSEE ON 24.04.2006 (COPY OF ACCOUNT ENCLOSED HE REWITH) AND THE ASSESSEE INCURRED RS. 53,438/- ON ACCOUNT OF STAMP DUTY CHARGES FOR THE REGISTRATION OF THIS PROPERTY IN HIS NAME. THE SAME CAN BE SEEN IN THE CASH BOOK ENCLOSED HEREWITH. THEREFORE, THE ADDITIO N MADE SHOULD BE CANCELLED. 34. THE SUBMISSION OF THE ASSESSEE WERE CONFRONTED TO THE ASSESSING OFFICER WHO IN-TURN STATED THAT THE ASSES SEE HAD PURCHASED LAND ON 24.04.2006 BY INVESTING A SUM OF RS. 647,188/- THE COPY OF THE IMPUGNED REGISTRATION DEED AS ON 24 .4.2006 WAS PRODUCED BEFORE THE ASSESSING OFFICER. IT IS AN ES TABLISHED RULE OF PRINCIPLE THAT IN ORDER TO ADJUDICATE AN ISSUE, THE ASSESSEE MAY BE ALLOWED TO PRODUCE ADDITIONAL EVIDENCE WHERE HE JUS TIFIABLY EXPLAINS WHY THE SAME WAS NOT PRODUCED BEFORE THE A SSESSING OFFICER. HOWEVER, THE EVIDENCE TO BE PRODUCED AND ACCEPTED IN SUCH CASES BY WAY OF ADDITIONAL EVIDENCE SHOULD BE SUCH WHICH CAN STAND TEST OF EVIDENCE. IN THE FACTS OF THE PRESEN T CASE, THE ASSESSEE HAS FURNISHED AN EXPLANATION IN RESPECT OF SOURCE OF 19 INVESTMENT IN THE PROPERTY, WHICH WAS REGISTERED ON 24.4.2006 BY PLACING RELIANCE ON CASH-FLOW STATEMENT RELATING TO DIFFERENT YEARS WHICH WERE NEVER PRODUCED BEFORE THE ASSESSING OFFI CER. THE ENTRIES IN THE SAID CASH FLOW STATEMENT HAVE NOT BE EN VERIFIED BY THE ASSESSING OFFICER OR EVEN BY THE CIT(APPEALS) A S NECESSARY EVIDENCE WAS NOT AVAILABLE ON RECORD IN THIS REGARD . THE CIT(APPEALS), IN A SUMMARY MANNER HAS JUST ACCEPTED THE CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE WITHOUT VE RIFYING THE CONTENTS OF THE SAME, IN RELATION TO THE VARIOUS EN TRIES VIS--VIS THE SOURCE OF INVESTMENT IN THE PLOT OF LAND. IN R ESPECT OF PLOT OF LAND MEASURING 238 SQ.YD., THE ASSESSEE CLAIMS THAT CASH OF RS. 593,750/- WAS PAID ON 19.04.2005 AND THE SAID PROPE RTY WAS REGISTERED IN THE NAME OF THE ASSESSEE ON 24.4.2006 AND STAMP DUTY OF RS. 53,438/- WAS INCURRED FOR REGISTRATION OF TH E SAID DOCUMENTS. WE FIND NO MERIT IN THE ORDER OF THE CI T(APPEALS) IN THIS REGARD WHERE THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY EVIDENCE EXCEPT BY WAY OF SELF-EXPLANATORY DOCUMENT S WHICH WERE PURELY ONE-SIDED AS THE ASSESSEE HAS FAILED TO EXPL AIN THE SOURCES OF RECEIPT OF MONEY BY WAY OF CASH WHICH IN-TURN WA S UTILIZED FOR MAKING THE SAID INVESTMENT. FURTHER, NO EVIDENCE H AS BEEN FILED TO PROVE AS TO THE DATE OF THE INVESTMENT CLAIMED TO B E FALLING IN THE PRECEDING YEAR. IN THE TOTALITY OF THE ABOVESAID F ACTS AND CIRCUMSTANCES WHERE THE CASH FLOW STATEMENT WAS NEV ER FILED BEFORE THE ASSESSING OFFICER PURSUANT TO THE SEARCH PROCEEDINGS BEING CARRIED ON IN THE HANDS OF THE ASSESSEE, RELI ANCE ON THE CASH FLOW STATEMENT FILED DURING THE APPELLATE PROCEEDIN GS IS MISPLACED AND WE FIND NO MERIT IN THE SAME. IN THE ABSENCE O F THE ASSESSEE HAVING EXPLAINED THE SOURCE OF INVESTMENT, IN THE P ROPERTY WHICH 20 WAS REGISTERED IN HIS NAME ON 24.4.2006, THE SAID I NVESTMENT OF RS. 647,188/- IS TO BE TREATED AS UNEXPLAINED AND R EVERSING THE ORDER OF CIT(APPEALS), WE UPHOLD THE ADDITION OF RS . 647,188/-. 35. THE SECOND ADDITION MADE BY THE ASSESSING OFFIC ER WAS IN RELATION TO THE PLOT OF LAND MEASURING 100 SQ.YDS. FOR RS.618,000/-. THE CLAIM OF THE ASSESSEE IN THIS REGARD BEFORE T HE CIT(APPEALS), AS PER PARA 16 AT PAGE 18 OF THE APPELLATE ORDER WA S AS UNDER : AS REGARDS THE INVESTMENT OF RS. 618,000/-, IT IS STATED THAT THE SAID INVESTMENT WAS MADE OUT OF AVAILABLE CASH ON 31.08.2004. THIS AREA OF 100 SQUARE YARDS WAS PURCHASED FROM MR. SAHIB SINGH S/O MR. GURMAIL SING H. THE COPY OF ACCOUNT AND AGREEMENT ARE ENCLOSED HEREWITH. 36. THE ASSESSING OFFICER, ON THE OTHER HAND, POINT ED OUT THAT THE ASSESSEE PURCHASED THE LAND ON 24.4.2006 BY IN VESTING THE SAID SUM OF RS. 618,000/-. THE ASSESSEE HAD PRODUC ED THE COPY OF THE REGISTRATION DEED BEFORE THE ASSESSING OFFICER. HOWEVER, NO SOURCE OF INVESTMENT IN THE SAID PROPERTY HAD BEEN PRODUCED BEFORE THE ASSESSING OFFICER. IT WAS ALSO NOT PLEA DED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT THE AFOR ESAID INVESTMENT WAS MADE PRIOR TO THE REGISTRATION OF TH E DOCUMENT. IT WAS ALSO ONLY FOR THE FIRST TIME BEFORE THE CIT(APP EALS) THAT THE ASSESSEE EXPLAINED THAT THE SAID INVESTMENT WAS MAD E OUT OF CASH AVAILABLE ON 31.08.2004. THE CIT(APPEALS), WHILE C ONDUCTING THE APPELLATE PROCEEDINGS FOR ASSESSMENT YEAR 2007-08, HAS IN-TURN RELIED UPON THAT CASH FLOW STATEMENT WHICH WAS NOT RELATING TO THE YEAR UNDER CONSIDERATION AND WAS A MERE SELF-DECLAR ATORY DOCUMENT OF THE ASSESSEE WHICH HAS NOT STOOD TEST O F EVIDENCE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE CIT(A PPEALS) AND IN THE ABSENCE OF THE SAME AND IN LINE WITH OUR REASON INGS IN THE 21 PARAS HEREIN ABOVE IN RESPECT OF ANOTHER SOURCE OF INVESTMENT, WE FIND NO MERIT IN THE SUBMISSION OF THE ASSESSEE. R EVERSING THE ORDER OF THE ASSESSING OFFICER, WE CONFIRM THE ADDI TION OF RS. 618,000/- ON ACCOUNT OF INVESTMENT IN PLOT OF LAND WHICH WAS PURCHASED BY THE ASSESSEE ON 24.4.2006. UPHOLDING THE ADDITION OF RS. 647,188/- AND RS. 618,000/-, WE ALLOW THE GR OUND NO. 3 RAISED BY THE REVENUE IN THIS REGARD. ITA NO. 1133/CHD/2012 :: A.Y. 2008-09 :: REVENUES APPEAL 37. THE ISSUE IN GROUND NO. 1 RAISED BY THE REVENUE IS IDENTICAL TO THE ISSUE RAISED IN GROUND NO. 1 RAISED IN ITA N O. 1000/CHD/2012. FOLLOWING THE PARITY OF REASONING, WE ESTIMATE THE HOUSEHOLD EXPENSES OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AT RS. 7000/- PER MONTH, RESULTING IN ADDITION OF RS. 84,000/-. THE GROUND NO. 1 RAISED BY THE REVENUE I S, THUS PARTLY ALLOWED. 38. THE ISSUE IN GROUND NO. 2 RAISED BY THE REVENUE IS AGAINST THE DELETION OF RS. 19,72,814/-. THE BRIEF FACTS R ELATING TO THE ISSUE ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD PLOTS OF LAND SITUATED AT BISHANPURA MEASU RING 1583 SQ.YDS. @ RS. 1042/- PER SQ.YD. FOR RS. 16,50,000/- TO M/S ABC SITES LTD. THE ASSESSEE WAS SHOW CAUSED AS TO THE SALE PRICE REFLECTED BY THE ASSESSEE IN VIEW OF ANOTHER PLOT O F LAND OF 238 SQ.YD. SOLD TOM/S ABC SITES LTD. @ RS. 2993/- PER S Q.YD. ON 02.04.2007. THE ASSESSEE FAILED TO FURNISH ANY REP LY BEFORE THE ASSESSING OFFICER AND THE MARKET VALUE OF THE PLOT WAS ADOPTED AT RS. 41,15,800/- AS AGAINST SALE PRICE SHOWN BY THE ASSESSEE AT RS. 16,50,000/-. THE CIT(APPEALS) DELETED THE ADDITION OF RS. 22 19,72,814/- IN-TURN RELYING UPON RATIO LAID DOWN BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN CIT VS SATINDER KUMA R [250 ITR 484 (P&H)] AND ALSO ON THE RATIO LAID DOWN BY HON'B LE DELHI HIGH COURT IN CIT VS SMT. NILOFAR L.SINGH [309 ITR 233 (DEL)]. 39. THE LD. DR FOR THE REVENUE PLACING RELIANCE ON THE ORDER OF THE ASSESSING OFFICER ALSO PLACED RELIANCE ON K.P.V ERGHESE VS ITO [131 ITR 597 (S.C)]. THE LD. AR FOR THE ASSESS EE PLACED RELIANCE ON ORDER OF THE CIT(APPEALS) AND POINTED O UT THAT THERE WAS NO MERIT IN ESTIMATING THE MARKET VALUE OF THE PROPERTY I.E. THE SALE PRICE TO BE ADOPTED. 40. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELAT ION TO THE SALE PRICE OF PLOT OF LAND SOLD BY THE ASSESSEE. THE AS SESSEE HAD SOLD A PLOT OF LAND MEASURING 1583 SQ.YD. @ RS.1042/- PE R SQ.YD. TO M/S ABC SITES LTD. ANOTHER PLOT OF LAND MEASURING 238 SQ.YD. @ RS. 2993/- PER SQ.YD, WAS SOLD BY THE ASSESSEE TO M /S ABC SITES LTD. ON 02.04.2007. THE ASSESSING OFFICER HAD ESTI MATED THE MARKET VALUE OF THE PLOT SOLD BY THE ASSESSEE AT RS . 41,15,800/- IN VIEW OF THE PLOT OF LAND BEING SITUATED AT THE SAME PLACE. WE FIND NO MERIT IN THE ORDER OF THE ASSESSING OFFICER IN V IEW OF THE RATIO LAID DOWN BY THE HON'BLE DELHI HIGH COURT IN CIT VS SMT. NILOFER L.SINGH (SUPRA), WHEREIN IT WAS HELD AS UND ER : WHEN A SALE OF PROPERTY TAKES PLACE, THE CAPITAL GAINS ARISING OUT OF SUCH A TRANSFER HAS TO BE COMPUTED BY TAKING INTO ACCOUNT THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. FROM THE FULL VALUE OF THE CONSIDERATION, THE AMOUNT OF EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER AS ALSO THE COST OF ACQUISITION OF THE ASSET AND THE COST OF ANY IMPROVEMENT 23 THERETO HAVE TO BE DEDUCTED. THE EXPRESSION FULL VALUE OF CONSIDERATION CANNOT BE CONSTRUED AS HAVING REFERENCE TO THE MARKET VALUE OF THE ASSET TRANSFERRED BUT ONLY MEANS THE FULL VALUE OF CONSIDERATION RECEIVED BY THE TRANSFEROR IN EXCHANGE OF THE CAPITAL ASSET TRANSFERRED BY HIM. IN HE CASE OF A SALE OF FULL VALUE OF CONSIDERATION IS THE FULL SALE PRICE ACTUALLY PAID. FULL VALUE MEANS THE WHOLE PRICE WITHOUT ANY DEDUCTION, WHATSOEVER, AND IT CANNOT REFER TO THE ADEQUACY OR INADEQUACY OF THE PRICE BARGAINED FOR. NOR DOES IT HAVE ANY NECESSARY REFERENCE TO THE MARKET VALUE OF THE CAPITAL ASSET WHICH IS THE SUBJECT-MATTER OF THE TRANSFER. THE FULL VALUE OF CONSIDERATION DOES NOT HAVE ANY REFERENCE TO THE MARKET VALUE BUT ONLY TO THE CONSIDERATION REFERRED TO IN THE SALE DEEDS AS THE SALE PRICE OF THE ASSETS WHICH HAVE BEEN TRANSFERRED. THEIR LORDSHIPS FURTHER HELD AS UNDER :- THE REFERENCE TO A VALUATION OFFICER UNDER SECTION 55A IS FOR THE OBJECT OF ASCERTAINING THE FAIR MARKET VALUE OF A CAPITAL ASSET. IT IS ONLY WHEN THE ASSESSING OFFICER IS REQUIRED TO ASCERTAIN THE FAIR MARKET VALUE OF A CAPITAL ASSET IN SUCH CASES AS COVERED BY SECTION 45(4) OR SECTION 45(1A) THAT THE PROVISIONS OF SECTION 55A CAN BE INVOKED. 41. IN VIEW OF THE ABOVESAID RATIO LAID DOWN BY THE HON'BLE DELHI HIGH COURT, WE UPHOLD THE ORDER OF CIT(APPEAL S) AND DISMISS GROUND NO. 2 RAISED BY THE REVENUE. 42. THE ISSUE IN GROUND NO. 3 RAISED BY THE REVENUE IS AGAINST THE DELETION OF ADDITION OF RS. 161,544/- WHICH WAS MADE ON ACCOUNT OF UNEXPLAINED CASH FOUND AT THE TIME OF SE ARCH. THE TOTAL CASH FOUND FROM THE RESIDENCE OF THE FAMILY M EMBERS WAS RS. 807,720/- AND THE SAID AMOUNT TO THE EXTENT OF 1/5 TH WAS ADDED IN THE HANDS OF EACH OF THE FAMILY MEMBER, RESULTIN G IN ADDITION OF RS. 161,544/-. THE CIT(APPEALS) DELETED THE SAI D ADDITION IN VIEW OF THE CASH FLOW STATEMENT SUBMITTED BY THE AS SESSEE. IN VIEW OF OUR REJECTING THE CASH FLOW STATEMENT FILED BY THE ASSESSEE 24 BEFORE THE CIT(APPEALS) FOR THE FIRST TIME AND THE ABSENCE OF THE VERIFICATION OF THE CREDITS AND DEBITS FROM THE CAS H FLOW STATEMENT, WE REVERSE THE ORDER OF CIT(APPEALS) AND CONFIRM THE ADDITION OF RS. 1,61,544/- IN THE HANDS OF THE ASSE SSEE. THE GROUND NO. 3 RAISED BY THE REVENUE IS THUS, ALLOWED . 43. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO S. 957, 958 AND 959/CHD/2012 (A.Y. 2004-05 TO 2006-07) IS ALLOW ED FOR STATISTICAL PURPOSES, ASSESSEE'S APPEAL IN ITA NO. 960 & 961/CHD/2012 (A.Y. 2007-08 & 2008-09) IS DISMISSED AND APPEAL OF THE REVENUE IN ITA NO. 1000/CHD/2012 (A.Y. 2007- 08) IS ALLOWED AND THAT OF IN ITA NO. 1133/CHD/2012 (A.Y. 2008-09) IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6 TH SEPTEMBER,2013 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH