Shri Tej Pal Singh, New Delhi V. ACIT, Faridabad

ITA 992/DEL/2011

• Counselvise Citation: 99220114 RSA 2011
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 26-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S MEENA
• Keywords: Business income; Search and seizure; Salary income; Principle of natural justice; Source of fund; Competent authority; Assessment record; Retraction
• Section: 142(1); 153A; 32; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : H NEW DELHI BEFORE SMT. DIVA SINGH, JM AND SHRI J.SUDHAKAR REDDY, AM ITA NO. 992/DEL/2011 ASSESSMENT YEAR : 2008-09 SHRI TEJ PAL SINGH VS. ACIT, CC 1 10, MATHURA ROAD, JANGPURA FARIDABAD NEW DELHI PAN: ALJPS 2151 E ITA NO.993/DEL/2011 ASSESSMENT YEAR : 2008-09 SHRI PARMINDER CHADHA VS. ACIT, CC I NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY:- SHRI AJAY VOHRA, ADV. RESPONDENT BY:- SH. R.S.MEENA, CIT, DR O R D E R PER J.SUDHAKAR REDDY, AM BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND AR E DIRECTED AGAINST SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TA X (APPEALS)-I, LUDHIANA FOR THE A.Y. 2008-09. IN THE CASE OF MR.TEJ PAL SI NGH, THE LD.COMMISSIONER OF INCOME TAX (APPEALS) FOLLOWED HIS DECISION IN THE C ASE OF SMT.PARMIDNER CHADHA. 2 2. FACTS IN BRIEF :- THE ASSESSEE IS AN EXISTING INCOME TAX ASSESSE E FILING HIS RETURN OF INCOME REGULARLY FOR MANY YEARS. HE IS PRESENTLY EMPLOYED AS AN EXECUTIVE WITH MAX NEW YORK LIFE INSURANCE CO. LTD. HIS SOURCE OF INCOME COMPRISES MAINLY OF SALARY INCOME AND INTEREST INCO ME. HOWEVER FOR THE SAID ASSESSMENT YEAR, THE ASSESSEE, APART FROM REGULAR SOURCES OF INCOME, HAD DECLARED LONG TERM CAPITAL GAINS ON SALE OF LAND AT MEWLA MAHARAJPUR, FARIDABAD. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOM E TAX ACT WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSE SSEE ON 16.01.2008. SEARCH WARRANT WAS ISSUED IN THE NAME OF ' SMT. PARMINDER CHADHA AND SHRI TEJ PAL SINGH'. NOTICE U/S 153A WAS ISSUED IN THE NAME OF ASSESSEE INDIVIDUALLY. IN RESPONSE RETURNS FOR ASSESSMENT YEAR 2002-03 TO 20 07-08 WERE FILED. THESE ARE THE SAME RETURNS AS WERE ORIGINALLY FILED. THE SE ORIGINAL RETURNS OF INCOME WERE PROCESSED U/S 143(1) WITHOUT ADJUSTMENTS. N OTICE UNDER SECTION 142(1) WAS ALSO ISSUED TO FILE RETURN OF INCOME FOR THE SA ID ASSESSMENT YEAR. IN RESPONSE THE ASSESSEE FILED A RETURN OF INCOME DEC LARING AN INCOME OF RS.17042411/-, THE SAME INCOME WHICH WAS DECLARED I N ORIGINAL RETURN FILED U/S 139(1). IN THE SAID RETURN OF INCOME, APART FRO M OTHER INCOMES, THE ASSESSEE HAD DECLARED LONG TERM CAPITAL GAINS ON SA LE OF PLOT IN MEWLA MAHARAJPUR, FARIDABAD SOLD FOR A TOTAL SUM OF RS.5. 5 CRORES OF WHICH THE ASSESSEE WAS BENEFICIARY OF ONE-THIRD SHARE. 3 AS PER ORDER PASSED BY THE ASSESSING OFFICER U/S 1 43(3) IT WAS ALLEGED THAT THE INCOME TAX DEPARTMENT WHILE CONDUCTING SEA RCH AT THE PREMISES OR PIYUSH GROUP RECEIVED A DOCUMENT FROM 'ANONYMOUS SO URCES' THROUGH FAX PURPORTING TO BE AN AGREEMENT TO SALE OF THE SAID P ROPERTY AT MEWLA MAHARAJPUR, FARIDABAD AS PER WHICH THE SAID LAND WA S AGREED TO BE SOLD BY THE SELLERS NAMELY THE ASSESSEE, SMT. PARMINDER CHADHA AND SMT. KAVITA CHADHA (TO THE EXTENT OF ONE THIRD SHARE EACH) TO THE BUYE RS FOR A SUM OF RS.18 CRORES, ADMITTEDLY THIS WAS A FAXED DOCUMENT RECEIVED THROU GH ANONYMOUS SOURCES AND ON BEING CONFRONTED, THE ASSESSEE AND THE BUYE RS VEHEMENTLY DENIED HAVING EVER ENTERED INTO ANY SUCH AGREEMENT TO SALE OF THE SAID PROPERTY AT THIS CONSIDERATION. THEY HOWEVER STATED THAT THERE WAS AN EARLIER AGREEMENT TO SELL THE PROPERTY AT A SUM OF RS. EIGHT CRORES WH ICH DUE TO SOME PROBLEMS IN TITLE IN THE LAND GOT REDUCED TO RS.5.5 CRORES AND THE FINAL SALE DEED WAS EXECUTED AT THIS SUM OF RS.5.5 CRORES AND THIS WAS THE CONSIDERATION WHICH PASSED ON TO THE VENDORS. IMPORTANTLY NO SUCH DOC UMENT OR SEMBLANCE OF SUCH DOCUMENT OF RS. 18 CRORES WAS SEIZED DURING SE ARCH OPERATIONS FROM THE PREMISES OF VENDORS OR THE VENDEES. THE DEPARTMENT ON SPECIFIC REQUESTS HAS NOT BEEN ABLE TO PRODUCE ORIGINAL COPIES THEREOF AN D THE ASSESSEE AND THE VENDEES HAVE BEING CRYING HOARSE THAT THIS DOCUMENT WAS A FORGED DOCUMENT. THE ASSESSING OFFICER RELYING ON THIS DOCUMENT HAS TAKEN TOTAL SALES CONSIDERATION OF THE SAID LAND AT RS.18 CRORES (OF WHICH ASSESSEES SHARE IS ONE THIRD) AND HAS CONSEQUENTLY CALCULATED LONG TERM CA PITAL GAINS IN CASE OF ASSESSEE BASED ON HIS SHARE IN THE SAID CONSIDERAT ION, MAINLY FOR WHICH AND 4 FOR OTHER GROUNDS WHICH ARE URGED HEREWITH WITHOUT PREJUDICE TO ONE ANOTHER, THE ASSESSEE IS IN APPEAL. 3. THE A.O. ASSESSED THE TOTAL INCOME AT RS.4,21,17 ,720/- IN THE CASE OF MR.TEJ PAL SINGH AND RS.5,52,96,060/- IN THE CASE O F MR.PARMINDER CHADHA. THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY WHO DISMISSED THE APPEAL. 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS. 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE CIT(APPEALS) ERRED ON FACTS AND IN LAW IN NOT QUASHING THE ASSESSMENT ORD ER DATED 29.12.2009, PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) READ WITH SECTION 153A OF THE INCOME-TAX ACT, 1961 ('THE ACT'), BEING BEYOND JURISDICTION, BAD IN LAW AND VOID AB-INITIO. 1.1. THAT THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER PASSED UNDER SECTION 153A , SINCE THE SAME WAS MADE ON THE BASIS OF INVALID SEARCH CARRIED OUT UND ER SECTION 132 OF THE ACT, AND CONSEQUENTLY THE ASSESSMENT ORDER WAS ILLEGAL A ND BAD IN LAW. 1.2. THAT THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER PASSED UNDER SECTION 153A , SINCE THE SAME WAS MADE ON THE BASIS OF SEARCH CARRIED OUT UNDER SECTI ON 132 OF THE ACT, WHICH WAS ILLEGAL, BEING CARRIED OUT WITHOUT PROPER AUTHO RIZATION GIVEN BY COMPETENT AUTHORITY. 1.3. THAT THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER PASSED UNDER SECTION 153A OF THE ACT ON THE APPELLANT, IN HER INDIVIDUAL CAPACITY, WHEREAS SEAR CH WARRANT AND PANCHNAMA WERE ISSUED/DRAWN IN THE JOINT NAME OF SMT. PARMIND ER CHADHA AND SHRI TEJ PAL SINGH. 1.4. THAT THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT QUASHING / SETTING ASIDE THE ASSESSMENT COMPLETED UNDER SECTION 153A O F THE ACT WITHOUT FOLLOWING SETTLED PRINCIPLE OF NATURAL JUSTICE. 2. THAT THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN MAKING AN ADDITION OF R S. 16,66,666/- UNDER THE HEAD 'LONG TERM CAPITAL GAINS' ON ACCOUNT OF ALLEGE D PROPORTIONATE UNDISCLOSED SALE CONSIDERATION OF PROPERTY AT MEWLA MAHARAJPUR, FARIDABAD FOR RS. 18 CRORES (APPELLANT'S SHARE BEING ONE-THIRD) AS AGAIN ST AGGREGATE SALE 5 CONSIDERATION OF RS. 5.5 CRORES DECLARED BY THE APP ELLANT IN RESPECT OF THE SAID PROPERTY IN THE RETURN OF INCOME. 2.1 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN DRAWING ADVERSE INFERENCE AGAINST THE APPELLANT QUA RECEIPT OF UNDISCLOSED SALE CONSIDERATION IN RESPEC T OF IMPUGNED PROPERTY AT RS. 18 CRORES, ON THE BASIS OF AGREEMENT TO SELL, DATED 15.2.2007, ALLEGEDLY ENTERED BETWEEN THE APPELLANT (SELLER) AND THE PIYUSH INFRA STRUCTURE INDIA P.LTD. (PURCHASER), WHICH WAS RECEIVED BY WAY OF FAX FROM ANONYMOUS SOURCES DURING THE COURSE OF SEARCH OPERATION BEING CARRIED OUT AT THE PREMISES OF A THIRD PARTY, VIZ., PIYUSH GROUP. 2.2 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN NOT APPRECIATING THAT THE AFORESAID AGREEMENT WAS NOT RELIABLE, MORE SO S INCE THE DOCUMENT WAS NEITHER FOUND AT PREMISES OF APPELLANT NOR THE PURC HASER DURING COURSE OF SEARCH OPERATIONS AND EXECUTION OF SAME WAS DENIED BOTH BY THE SELLER (APPELLANT) AND PURCHASER(S) (PIYUSH INFRASTRUCTURE INDIA PVT. LTD. THROUGH DIRECTOR) AND WAS CONTRARY TO ACTUAL SALE DEED IN R ESPECT OF THE SAME PROPERTY EXECUTED BETWEEN THE PARTIES AND REGISTERED WITH AP PROPRIATE AUTHORITY OF STATE GOVERNMENT. 2.3 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN HOLDING THAT THE TWO RECEIPTS TOWARDS RECEIPT OF RS. 1 CRORE AND RS. 2.7 0 CRORES IN RESPECT OF THE IMPUGNED PROPERTY, FOUND FROM THE PREMISES OF THE A PPELLANT DURING THE COURSE OF SEARCH, WAS SUFFICIENT EVIDENCE TO PROVE THAT TH E APPELLANT HAD RECEIVED EXCESS CONSIDERATION THAN THAT DISCLOSED IN THE RET URN OF INCOME. 2.4 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN NOT APPRECIATING THAT THE AFORESAID RECEIPTS WERE ONLY DRAFT RECEIPTS, WH ICH WERE PREPARED BY SMT. PARMINDER CHADHA IN ANTICIPATION OF AGREEMENT TO SE LL, DATED 1.2.2007, ENTERED BETWEEN THE PARTIES FOR SALE OF SAME PROPERTY AT RS . 8 CRORES, WHICH WAS NOT FINALLY EXECUTED AND WAS CANCELLED BY THE PARTIES S UBSEQUENTLY. 2.5 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN HOLDING THAT THE PLEA THAT THE AMOUNTS STATED IN DRAFT RECEIPTS WERE PREP ARED BY THE APPELLANT IN ANTICIPATION OF THE PROPOSED AGREEMENT TO SELL FOR RS. 8 CRORES, WHICH WAS SUBSEQUENTLY CANCELLED, WAS NOT TAKEN DURING THE CO URSE OF ASSESSMENT PROCEEDINGS AND THUS COULD NOT BE RELIED UPON. 2.6 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN NOT APPRECIATING THAT IF THE RECEIPTS FOR AGGREGATE AMOUNT OF RS. 3.7 CRORES WERE REAL AND NOT DRAFT RECEIPTS, THE SAME SHOULD HAVE BEEN FOUND FROM THE PREMISES OF THE PURCHASERS OF THE PROPERTY (PIYUSH GROUP). THAT THE CIT(APPEALS) FURTHER ERRED ON FACTS IN STATING THAT THESE DRAFT RECEIPTS HAD B EEN ISSUED TO THE PROSPECTIVE PURCHASERS WHEREAS THE APPELLANTS HAVE ALWAYS MAINT AINED THAT THESE WERE 6 'DRAFT' RECEIPTS WHICH WERE NEVER ISSUED TO THE BUY ERS AS NO CONSIDERATION HAD BEEN RECEIVED AGAINST THESE. 2.7 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN RELATING THE RECEIPTS FOR AGGREGATE AMOUNT OF RS. 3.7 CRORES TO THE APPEL LANT EVEN THOUGH THESE DID NOT BEAR HIS SIGNATURES AND HENCE HE COULD NOT BE A BENEFICIARY TO THIS AMOUNT. 2.8. THAT THE CIT(APPEALS) ERRED ON FACTS AND IN L AW IN HOLDING THAT THE EXPLANATION GIVEN BY THE APPELLANT QUA RECEIPT OF R S. 2 CRORES BY SMT. PARMINDER CHADHA BY CHEQUES FROM PIYUSH GROUP TO TH E EFFECT THAT THE SAME WAS IN RESPECT OF DIFFERENT PROPOSED AGREEMENT TO S ELL, WAS AN AFTERTHOUGHT. THAT THE CIT(APPEALS) ERRED IN RELATING THESE CHEQU ES TO THE APPELLANT EVEN THOUGH THESE WERE RECEIVED BY SMT. PARMINDER CHADHA IN HER PERSONAL CAPACITY AND WERE NEVER FOUND CREDITED IN BANK ACCO UNT OF APPELLANT AND HENCE HE COULD NEVER BE A BENEFICIARY TO THIS AMOUNT. 2.9 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN LA W IN NOT EXPUNGING THE INCORRECT FINDINGS/OBSERVATIONS MADE BY THE ASSESSI NG OFFICER, ON PURE CONJECTURES AND SURMISES, THAT THE APPELLANT HAD MA DE INVESTMENT OF RS.L,42,50,000 IN COMMERCIAL PROPERTY OF PIYUSH GRO UP INSTEAD OF ACTUAL DECLARED INVESTMENT OF RS.62,04,170/- AND HAD FURTH ER ERRED IN HOLDING THAT BALANCE AMOUNT OF RS.80,45,830 WAS ADJUSTED OUT OF THE ALLEGED SALE CONSIDERATION OF RS. 18 CRORES. 2.10 THAT THE CIT(APPEALS) ERRED ON FACTS AND IN L AW IN UPHOLDING THE RELIANCE PLACED BY THE ASSESSING OFFICER ON THE EX-PARTE STA TEMENT OF SHRI HARISH SINGLA WITHOUT APPRECIATING THAT:- (A) STATEMENT BY MR. HARISH SINGLA IS NOT RELIABLE SINCE HE HAD BEEN TAKING CONTRADICTORY STANDS; (B) MR. HARISH SINGLA HAD CHANGED HIS STATEMENT JUS T TO SETTLE SCORES WITH GOEL FACTION OF PIYUSH GROUP AS AT THE TIME OF CHANGING HIS STATEMENT, HE WAS DRAWN IN A COURTROOM BATTLE WITH GOEL FACTION OF PI YUSH GROUP OVER CONTROL OF GROUP COMPANIES FROM WHICH HE HAD BEEN OUSTED. (C) SUCH STATEMENT CANNOT BE RELIED UPON WITHOUT AL LOWING CROSS-EXAMINATION TO THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND OR VARY THE ABOVE GROUNDS OF APPEAL. 5. MR.AJAY VOHRA, LD.ADVOCATE REPRESENTED THE ASSE SSEE AND SHRI R.S. MEENA, LD. CIT, D.R. REPRESENTED THE REVENUE. THE SUM AND SUBSTANCE OF THE 7 ARGUMENT OF MR.AJAY VOHRA IS THAT THE ADDITION MADE IN THE HANDS OF THE PURCHASERS OF THE SAID LAND, ON THE SAME SET OF FA CTS AND BASED ON THE SAME MATERIAL HAS BEEN DELETED BY THE TRIBUNAL IN ITS OR DER DT. 25.10.2012, F BENCH OF THE DELHI TRIBUNAL IN THE CASE OF M/S PIYU SH INFRASTURCTURE INDIA P.LTD. IN ITA NO.1072//DEL/2011. HE SUBMITS THAT T HE ISSUE IS COVERED IN HIS FAVOUR. HE DID NOT PRESS GROUND NOS. 1 TO 1.4. 6. THE LD.D.R. ON THE OTHER HAND ARGUED AT LENGTH A ND TRIED TO DISTINGUISH THE FINDINGS IN THE ORDER OF THE TRIBUNAL IN THE CA SE OF M/S PIYUSH INFRASTURCTURE INDIA P.LTD. (SUPRA). 7. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDE RATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPE RS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE HOLD AS FOLLOWS. 8. THE UNDISPUTED FACT IS THAT THE MATERIAL SEIZED DURING THE COURSE OF SEARCH AND INFORMATION GATHERED BY MEANS OF POST SE ARCH QUERIES DID NOT FORM THE BASIS OF THE ADDITION. IN THE CASE OF M/S PI YUSH INFRASTURCTURE INDIA P.LTD. (SUPRA) ON THE VERY SAME TRANSACTION, THE T RIBUNAL CONSIDERED EACH SET OF EVIDENCES RELIED UPON BY THE LD.A.O. AND DELETE D THE ADDITION OF RS.12.5 CRORES MADE IN THE HANDS OF THE PURCHASER. BEFORE US IS THE CASE OF THE SELLERS OF THIS PROPERTY. IN VIEW OF THE FINDINGS OF THE C OORDINATE BENCH OF THE TRIBUNAL ON THE VERY SAME MATERIAL AND FOR THE VERY SAME TR ANSACTION, WE HAVE NO OTHER ALTERNATIVE BUT TO DELETE THE ADDITIONS IN QUESTION AND ALLOW THE APPEALS OF THE ASSESSEE. THE TRIBUNAL AT PARA 3.10 ONWARDS HELD A S FOLLOWS. 8 3.10. WE HAVE CONSIDERED THE ARGUMENTS ADVANCE BY THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, M ATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. UNDISPUTEDLY ONUS L IES UPON THE CLAIMANT TO ESTABLISH THE GENUINENESS OF ITS CLAIM. WE HAVE TO DECIDE IN THE PRESENT CASE AS TO WHETHER THE EVIDENCE FURNISHED BY THE AO WAS SUF FICIENT TO ESTABLISH HIS ALLEGATION THAT THE AMOUNT IN CONSIDERATION FOR THE PURCHASE OF PROPERTY IN QUESTION WAS RS.18 CRORE. AS DISCUSSED ABOVE THE LD . DR HAS REFERRED 5 SETS OF EVIDENCES TO ESTABLISH THE ALLEGATION OF THE AO. FI RST SET OF EVIDENCE IS COPIES OF THE ALLEGED AGREEMENT TO SELL ALONG WITH OTHER PAPE RS RECEIVED BY THE DEPARTMENT FROM ANONYMOUS SOURCES. COPIES OF THESE DOCUMENTS H AVE BEEN MADE AVAILABLE AT PAGE NOS. 26 TO 30 OF THE PB FILED BY THE ASSESS EE. IT IS AGREEMENT TO SELL DATED 5TH FEB. 2007. THE COPY OF OTHER DOCUMENT HAS BEEN PLACED AT PAGE NO. 75 OF THE PB-II. IT IS COPY OF A RECEIPT RECEIVED ON F AX BY THE DEPARTMENT. IN THE SAID AGREEMENT DATED 15.2.2007 BETWEEN THE SMT. PARMINDE R CHADHA, SH. TEJ PAL SINGH AND MS. KAVITA AS FIRST PARTY AND THE ASSESSE E AS SECOND PARTY, THE CONSIDERATION AMOUNT FOR THE SALE OF THE PROPERTY A T MEWLA, MAHARAJPUR, FARIDABAD HAS BEEN SHOWN AT RS.18. CRORE. THE SUBMI SSION OF THE ID. DR REMAINED THAT THE AGREEMENT DATED 15.2.2007 HAS BEE N SIGNED BY BOTH THE PARTIES CONCERN. SIMILARLY THE SAID RECEIPT DATED 1 5.2.2007 SHOWING THE RECEIPT OF RS.1 CRORE IN CASH AND A CHEQUE OF RS.L CRORE DATED 15.2.2007 DRAWN ON PUNJAB NATIONAL BANK HAS BEEN SIGNED BY BOTH THE PARTIES. THE LD. DR SUBMITTED FURTHER THAT THE OTHER EVIDENCE DISCUSSED IN THE REMAINING SETS OF I EVIDENCE CORROBORATE THE PAYMENT OF RS.18 CRORE AGREED UPON BETWEEN THE PARTIES AS THE TOTAL CONSIDERATION FOR THE PURCHASE OF THE PROPERTY BY T HE ASSESSEE HOWEVER, IN THE SALE DEED REGISTERED, THE AMOUNT PAID THROUGH CHEQU E FOR RS.5.50 CRORE ONLY HAS BEEN SHOWN AS THE SALE CONSIDERATION. AS PER HIM TH E REMAINING AMOUNT OUT OF RS.18 CRORE HAS BEEN PAID IN CASH. SO FAR OTHER SET S OF EVIDENCE ARE CONCERN WE WILL DISCUSS ITS RELIABILITY IN THE SUCCEEDING PARA GRAPHS. THE CONTENTION OF THE LD. AR AGAINST THE RELIABILITY OF THE FIRST SET OF EVID ENCE REMAINED THAT BOTH THE ALLEGED AGREEMENT DATED 15.2.2007 AND RECEIPT DATED 15.2.2007 HAVE BEEN SENT TO THE DEPARTMENT ON FAX FROM THE UNKNOWN PERSON AN D HENCE IN ABSENCE OF IDENTITY OF THE SOURCE AND ORIGINAL COPIES OF THESE DOCUMENTS, THE SAME CANNOT BE RELIED UPON. HE CONTENDED FURTHER THAT EVEN THE TEL EPHONE NO. NAME APPEARING ON FAX MESSAGE WAS NOT INVESTIGATED DESPITE SPECIFIC R EQUEST OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN SUPPORT HE REFERRED PAGE NOS. 31 TO 33 OF THE PAPER BOOK AND ALSO THE REPLY DATED 19.11.20 09 IN THIS REGARD REPRODUCED AT PAGE NO. 7 OF THE ASSESSMENT ORDER. THE LD. AR C ONTENDED FURTHER THAT SINCE THE FAX MESSAGE HAS NOT BEEN FOUND FROM THE PREMISE S OF THE ASSESSEE, THE ONUS TO ESTABLISH ITS GENUINENESS DOES NOT LIE UPON THE ASSESSEE. HE HAS PLACED RELIANCE ON SEVERAL DECISIONS IN SUPPORT. HAVING GO NE THROUGH THESE DECISIONS WE 9 FIND THAT IN THE CASE OF DISTRICT MAGISTRATE VS. R. KUMARAVEL (SUPRA) THE HON'BLE SUPREME COURT HAS BEEN PLEASED TO HOLD THAT A TELEG RAMME BY ITSELF IS NOT AN AUTHENTIC DOCUMENT, IT IS LIKE AND UNSIGNED AND ANO NYMOUS COMMUNICATION, UNLESS A TELEPHONE IS CONFIRMED BY A SUBSEQUENT SIG NED APPLICATION, REPRESENTATION OR AN AFFIDAVIT; THE CONTENTS OF THE TELEPHONE HAVE NO AUTHENTICITY AT ALL AND THE SAME CANNOT BE TAKEN INTO CONSIDERAT ION FOR ASSESSING THE VALUE OF THE OTHER AUTHENTIC DOCUMENTS ON THE RECORD. IN THA T CASE BEFORE HON'BLE SUPREME COURT THE DETENTION ORDER WAS PASSED BY THE DISTRIC T MAGISTRATE ON THE BASIS OF THE MATERIAL PLACED BEFORE HIM BY THE POLICE AUTHOR ITIES. THE HON'BLE HIGH COURT WAS PLEASED TO HOLD THAT ANY MATERIAL RECEIVED BY T HE DISTRICT MAGISTRATE IN THE SHAPE OF TELEGRAM COULD NOT BE TAKEN INTO CONSIDERA TION BY HIM IN THE ABSENCE OF ANY SUBSEQUENT COMMUNICATION CONFIRMING THE SAME. T HE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF RAM SWAROOP SAINI (HUF) VS. ACIT (SUPRA) HAS HELD THAT A MERE PHOTO COPY OF A DOCUMENT CANNOT BE CONSIDERE D TO BE RELIABLE UNLESS THE ORIGINAL DOCUMENT IS BROUGHT ON RECORD. IN THAT CAS E THE AO WAS IN POSSESSION OF COPIES OF THE ALLEGED AGREEMENT TO SELL WHICH SHOWE D HIGHER PRICE THAN THAT RECORDED IN THE SALE DEED AND THE AO DID NOT POSSES S THE ORIGINAL NOR HE INFORMED AS TO HOW THE COPIES OF THE SAID AGREEMENT TO SELL CAME INTO HIS POSSESSION. SIMILAR ARE THE FACT IN THE PRESENT CAS E THE AO WAS NOT HAVING THE ORIGINAL COPIES OF THE AGREEMENT TO SELL AND RECEIP T BOTH DATED 15.2.2007 NOR HAD HE DISCLOSED THE IDENTITY OF THE PERSON WHO HAD SEN T THESE DOCUMENTS TO THE DEPARTMENT THROUGH FAX. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS RELIED UPON BY THE LD. AR WE HOLD THAT THESE DOCUMENTS WERE NOT HAVING ANY EVIDENTIARY VALUE IN THE EYES OF LAW HENCE, THESE ARE NOT RELIA BLE. IN OTHER WORDS ON THE BASIS OF THESE DOCUMENTS ALONE IT CANNOT BE SAID BEYOND D OUBT THAT THE SALE CONSIDERATION INVOLVED IN THE TRANSACTION OF THE PR OPERTY IN QUESTION WAS RS.18 CRORE INSTEAD OF RS.5.50 CRORE SHOWN IN THE REGISTE RED SALE DEED. 3.11 SO FAR AS SECOND SET OF EVIDENCE RELIED UPON BY THE LD. DR IS CONCERNED, THESE ARE THE COPIES OF TWO RECEIPTS MADE AVAILABLE AT PAGE NOS. 91 TO 92 OF THE PB (D). THE COPY OF CASH RECEIPT OF RS.1 CRORE DATE D 11.4.2007 HAS BEEN PLACED AT PAGE NO. 91 OF THE PB (D) AND RECEIPT OF RS.2.70 CRORE DATED 14.5.2007 HAS BEEN PLACED AT PAGE NO.92 OF THE PB (D). IN THE COP Y OF RECEIPT DATED 11.4.2007 AMOUNT OF RS.1 CRORE IN CASH SHOWN TO HAVE BEEN REC EIVED IN LIEU OF A PART PAYMENT TOWARDS AGREEMENT OF SALE DATED NIL FROM TH E ASSESSEE. IN THE RECEIPT DATED 14.5.2007 AN AMOUNT OF RS.2.70 CRORE SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE AS IN LIEU OF A PART PAYMENT TOWARDS AGREE MENT OF SALE DATED NIL. THUS RS.3.70 CRORE HAS BEEN SHOWN PAID IN CASH AS A PART PAYMENT TOWARDS AGREEMENT TO SELL BY THE ASSESSEE TO THE OWNERS OF THE PROPERTY. THE LD. DR SUBMITTED THAT THE AMOUNT SHOWN IN THESE RECEIPTS P AID IN A CASH CORROBORATES 10 THIS FACT THAT THESE PAYMENTS WERE MADE ABOVE THE A MOUNT SHOWN IN THE SALE DEED AT RS.5.50 CRORE THROUGH CHEQUE. THE CONTENTIO N OF THE LD. AR REMAINED THAT THESE RECEIPTS HAVE NOT BEEN SHOWN SIGNED BY THE RE MAINING CO-OWNERS OF THE PROPERTY I.E. SH. TEJ PAL SINGH AND MS. KAVITA NOR THESE RECEIPTS HAVE BEEN SIGNED BY THE ASSESSEE. HIS FURTHER CONTENTION REMA INED THAT THESE RECEIPTS SHOULD HAVE BEEN FOUND FROM THE POSSESSION OF THE A SSESSEE SINCE ASSESSEE WAS THE PURCHASER OF THE PROPERTY FROM SMT. PARMINDER C HADHA, SH. TEJ PAL SINGH AND MS. KAVITA HOWEVER, THESE HAVE BEEN RECOVERED F ROM THE POSSESSION OF SMT. PARMINDER CHADHA. HE SUBMITTED FURTHER THAT SMT. PA RMINDER CHADHA IN HER STATEMENT RECORDED ON 24.11.2009 HAS STATED THAT TH E COPIES OF THE SAID RECEIPTS FOUND FROM HER POSSESSION DURING THE COURSE OF SEAR CH ARE DRAFT COPIES OF THE RECEIPTS WHICH WERE TO BE ISSUED WHEN THE AMOUNT WA S TO BE RECEIVED. SHE SUBMITTED THAT THERE WAS AN AGREEMENT TO SELL THE P ROPERTY IN QUESTION FOR RS.8 CRORE WHICH COULD NOT BE MATERIALIZED HENCE CONSIDE RATION MENTIONED THEREIN NEVER PASSED HANDS. THUS THESE RECEIPTS WERE NEVER ISSUED TO THE ASSESSEE. ON PERUSAL OF THESE RECEIPTS WE OBSERVE THAT THESE ARE NOT SIGNED BY ALL THE OWNERS OF THE PROPERTY BUT SIGNATURE OF SMT. PARMINDER CHA DHA ONLY HAS BEEN SHOWN. THERE IS ALSO SUBSTANCE IN THE SUBMISSION OF THE LD AR THAT IF THESE RECEIPTS WOULD HAVE BEEN ACTED UPON, THESE SHOULD HAVE BEEN FOUND FROM THE POSSESSION OF THE PURCHASER I.E. ASSESSEE WHO HAS BEEN SHOWN M ADE THIS PAYMENT TO THE OWNERS OF THE PROPERTY. UNDER THESE CIRCUMSTANCES W E ARE OF THE VIEW THAT ON THE BASIS OF THESE DOCUMENTS ALONE AN INFERENCE BEYOND DOUBT CANNOT BE DRAWN THAT THESE AMOUNT OF RS.3.70 CRORES WERE PAID BY THE ASS ESSEE TO THE OWNERS OF THE PROPERTY. 3.12 THE THIRD SET OF EVIDENCE RELIED UPON BY THE D EPARTMENT ARE COPY OF A LETTER DATED 4.12.2009 ALONG WITH COPY OF ACCOUNT OF SMT. PARMINDER CHADHA IN THE BOOKS OF THE ASSESSEE, MADE AVAILABLE AT PAGE NOS. 41 AND 42 OF THE PB (D).THE LD. DR SUBMITTED THAT THESE DOCUMENTS HAVE BEEN PRO CURED FROM THE ASSESSMENT RECORD OF SMT. PARMINDER CHADHA AND COPIES OF THESE DOCUMENTS HAVE BEEN MADE AVAILABLE AT PAGE NO. 41 AND 42 OF THE PB (D). IN THE LETTER DATED 4.12.2009 OF THE ASSESSEE ADDRESSED TO THE AO IT HAS BEEN SUB MITTED THAT RS.2 CRORE WAS PAID SEPARATELY TO SMT. PARMINDER CHADHA FOR PURCHA SE OF OTHER PROPERTY FROM HER AND THIS PAYMENT IS ALTOGETHER A SEPARATE TRANS ACTION WHICH IS BEING SHOWN AS ADVANCE PAID IN THE FINANCIAL STATEMENT OF THE A SSESSEE. IT HAS BEEN SUBMITTED FURTHER THAT OUT OF THE ABOVE AMOUNT, AMO UNT OF RS.1 CRORE WAS RECEIVED BACK. THE TRANSACTION WAS NOT YET MATERIAL IZED SINCE THE TITLE OF THE PROPERTY WAS NOT CLEARED. IN SUPPORT LEDGER ACCOUNT OF SMT. PARMINDER CHADHA WITH THE ASSESSEE WAS ATTACHED, A COPY WHEREOF HAS BEEN MADE AVAILABLE AT PAGE NO. 42 OF THE PB (D). THE LD. DR SUBMITTED THA T THE TRANSACTION PERIOD OF THE 11 CLAIMED SEPARATE DEAL IS THE SAME AND THERE IS NO E VIDENCE OF OTHER DEAL ON RECORD CLAIMED AS BY THE ASSESSEE IN HIS LETTER DAT ED 4.12.2009. THE LD. AR ON THE OTHER HAND CONTENDED THAT EVEN IF THE EXPLANATI ON OF THE ASSESSEE REGARDING PAYMENT OF THIS AMOUNT SHOWN IN THE DOCUMENTS IS DE NIED, NO INFERENCE CAN BE DRAWN THAT PAYMENT WAS MADE TOWARDS THE SALE CONSID ERATION OF THE PRESENT PROPERTY IN QUESTION. 3.13 THE LD. AR SUBMITTED THAT THERE WAS NO QUEST ION OF TAKING EXTRA PAYMENT THROUGH CHEQUE AND DURING THE SEARCH PROCEEDINGS NO SPECIFIC QUESTION WAS ASKED TO THE ASSESSEE REGARDING THE PAYMENT OF RS.2 CRORE SHOWN IN THE LEDGER ACCOUNT OF SMT. PARMINDER CHADHA WITH THE ASSESSEE, MADE AVAILABLE AT PAGE NO. 42 OF THE PB (D). WE ARE NOT FULLY CONVINCED WI TH THE CONTENTION OF THE LD. AR IN THIS REGARD, BUT AT THE SAME TIME ON THE BASIS O F THE STATED PAYMENT OF RS.2 CRORES THROUGH CHEQUE AN INFERENCE BEYOND DOUBT CAN NOT BE DRAWN THAT THE AMOUNT WAS PAID TOWARDS THE SALE CONSIDERATION OF T HE PROPERTY IN QUESTION. 3.14 THE 4TH SET OF EVIDENCE RELIED UPON BY THE L D. DR ARE COPIES OF THE DOCUMENTS MADE AVAILABLE AT PAGE NOS. 43 TO 90 OF T HE PB (D). THESE ARE COPIES OF THE 3 AGREEMENTS DATED 14.5.2007 BETWEEN THE ASS ESSEE AT ONE HAND AND SMT. PARMINDER CHADHA, MS. KAVITA CHADHA AND SH. TE J PAL SINGH ON THE OTHER HAND. THESE DOCUMENTS WERE SEIZED FROM THE RESIDENC E OF SMT. PARMINDER CHADHA. REFERRING THESE DOCUMENTS, THE LD. DR SUBMI TTED THAT TOTAL CONSIDERATION HAS NOT BEEN SHOWN IN THE AGREEMENT. THESE AGREEMENTS WERE ENTERED INTO BETWEEN THE ASSESSEE AND THE ABOVE NAM ED 3 PERSONS FOR PURCHASE OF AN OFFICE SPACE MEASURING 2000/- SQ. FT. SUPER A REA IN THE FIRST FLOOR OF THE BUSINESS PARK NAMED AS MIS PIYUSH BUSINESS PARK, SI TUATED AT MAIN MATHURA ROAD, NH-2 (SECTOR 27), FARIDABAD UNDER THE DEVELOP MENT OF THE ASSESSEE. EACH OF THE SAID 3 PERSONS I.E. SECOND PARTY SHOWN TO HA VE AGREED ON THE SALE CONSIDERATION AND THEY HAVE PAID TO THE FIRST PARTY PRIOR TO THE EXECUTION OF THE AGREEMENT AN AMOUNT OF RS.62,04,170/- EACH AS THE B OOKING AMOUNT THROUGH CHEQUE AND BALANCE AMOUNT OF RS.7.50 LAC EACH WAS A GREED UPON TO BE PAID AT THE TIME OF HANDING OVER OF THE POSSESSION. THE LD. DR SUBMITTED THAT THEY HAVE PAID ONLY RS.62,04,170/- INDIVIDUALLY THROUGH CHEQU E AND THE BALANCE AMOUNT OF RS.80,45,830/- INDIVIDUALLY HAS BEEN SHOWN AS CLOSI NG BALANCE. THOUGH SUBSTANTIAL AMOUNT IS DUE TO BE PAID BY THE AFORESA ID 3 SELLERS TO THE ASSESSEE COMPANY FOR BOOKING OF THE AFORESAID COMMERCIAL SPA CE, BUT THEY ARE RECEIVING ASSURED INTEREST ON THE ABOVE PAYMENT WHICH CLEARLY INDICATE THAT THE BALANCE SHOWN HAS BEEN ADJUSTED OUT OF THE CASH PAYMENT TO THE SELLERS THE PROPERTY IN QUESTION. THE LD. DR POINTED OUT FURTHER THAT AN AD VANCE OF RS.1 CRORE GIVEN BY CHEQUE AS MENTIONED IN THE AGREEMENT DATED 15.2.200 7 HAS BEEN ADJUSTED 12 AGAINST TOTAL PURCHASE AMOUNT OF RS.5.50 CRORES MEN TIONED IN THE SALE DEED. HE SUBMITTED THAT THESE FACTS CLEARLY LEAD TO A CONCLU SION THAT THE PROPERTY IN QUESTION HAS BEEN PURCHASED BY THE ASSESSEE FOR RS. 18 CRORES AS AGAINST RS.5.50 CRORES SHOWN IN THE SALE DEED AND BALANCE A MOUNT OFRS.12.50 CRORES HAS BEEN PAID IN CASH. 3.15 THE LD. AR CONTENDED THAT THE OFFICE PREMISE S BOOKED IN THE NAME OF THE ABOVE 3 PERSONS IN THE BUSINESS COMPLEX TO BE DEVEL OPED BY THE ASSESSEE CONCERN DOES NOT IN ANY WAY SUPPORT THE ALLEGATION OF THE A.O. THAT THE TOTAL SALE CONSIDERATION IN THE CASE OF PROPERTY IN QUESTION P URCHASED BY THE ASSESSEE WAS RS.18 CRORES. HE POINTED OUT THAT THE SAID BUSINESS COMPLEX COULD NOT BE DEVELOPED BY THE ASSESSEE AND THE LAND ON WHICH THE SAID BUSINESS COMPLEX, WAS TO BE DEVELOPED IS STILL IN DISPUTE AND NO CONS TRUCTION HAS BEEN RAISED SO FAR. IT IS ONLY AN IMAGINATION OF THE ASSESSING OFF ICER THAT ANY ADJUSTMENT OF SALE CONSIDERATION OF THE PROPERTY IN QUESTION HAS BEEN MADE AGAINST BOOKING OF THE SPACE BY THE ABOVE 3 PERSONS. HE SUBMITTED THAT THE SALE CONSIDERATION OF THE PROPERTY AT RS.5.50 CRORES AS PER REGISTERED DEED O F THE PROPERTY HAS ALREADY BEEN PAID BY THE ASSESSEE. CONSIDERING THESE SUBMIS SIONS WE ARE OF THE VIEW THAT THERE IS NO EVIDENCE BEYOND DOUBT TO ESTABLISH THE ALLEGATION OF THE DEPARTMENT THAT THE AMOUNT PAYABLE BY THE ABOVE 3 P ERSONS TOWARDS THEIR BOOKING OF THE SPACE IN THE BUSINESS PREMISES TO BE DEVELOPED BY THE ASSESSEE, WAS ACTUALLY PAID TO THE ASSESSEE BY WAY OF ADJUSTM ENT OF THE SALE CONSIDERATION TOWARDS THE PROPERTY IN QUESTION ABOV E THE AMOUNT SHOWN IN THE SALE DEED OR TOWARDS RS.18 CRORES SHOWN IN THE ALLE GED AGREEMENT TO SELL DATED 15.2.2007 RECEIVED BY THE DEPARTMENT ON FAX. 3.16 THE 5TH SET OF EVIDENCE RELIED UPON BY THE A O AND LD. DR ARE THE SET OF STATEMENTS OF SH. HARISH SINGLA RECORDED BY THE AO ON 20.10.2010, WHEREIN HE HAS SPECIFICALLY STATED THAT THE PROPERTY IN QUESTI ON WAS PURCHASED FOR RS.18 CRORES HOWEVER, IN THE SALE DEED AMOUNT OF RS.5.5O CRORES PAID THROUGH CHEQUE ONLY WAS SHOWN. THE LD. DR SUBMITTED THAT SH. SINGL A DURING THE PERIOD WHEN THE TRANSACTION WAS ENTERED INTO WAS DIRECTOR OF TH E ASSESSEE COMPANY AND HE ALSO REMAINED SIGNATORY OF THE AGREEMENT AS WELL AS SALE DEED ON BEHALF OF THE ASSESSEE COMPANY. HIS STATEMENT HAS THUS GOT EVIDEN TIARY VALUE AND HAS BEEN RIGHTLY RELIED UPON BY THE AO. 13 3.17 THE CONTENTION OF THE LD. AR IN THIS REGARD REMAINED THAT THE SAID STATEMENTS OF SH. HARISH SINGLA SUBSEQUENTLY RECORD ED BY THE AO WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAM INE HIM CANNOT BE USED ADVERSELY AGAINST THE ASSESSEE. HIS FURTHER CONTENT ION REMAINED THAT SH. SINGLA HAS NOT BEEN CONFRONTED BY THE AO WITH HIS CONTRARY STATEMENTS MADE BY HIM DURING THE COURSE OF SEARCH PROCEEDINGS U/S 132 (4) OF THE ACT ON 16.1.2008, WHEREIN HE HAD STATED ON OATH THAT SALE CONSIDERATI ON OF THE PROPERTY WAS RS.5.50 CRORE AS DECLARED IN THE SALE DEED. HIS CO NTENTION ALSO REMAINED THAT STATEMENTS RECORDED U/S 132 (4) OF THE ACT ON OATH CARRIES MORE WEIGHT AND RELIABILITY AND UNLESS THERE IS STRONG REASON FOR, ONE CANNOT DEVIATE FROM HIS SUCH STATEMENTS SUBSEQUENTLY. NO SUCH REASON HAS BEEN AS SIGNED BY SH. SINGLA IN THE PRESENT CASE FOR DEVIATING FROM HI EARLIER STATEMEN T RECORDED U/S 132 (4) OF THE ACT. RELIANCE HAS BEEN PLACED ON SEVERAL DECISIONS. IT WAS ALSO SUBMITTED THAT LATER ON SOME ENEMITY WAS DEVELOPED BETWEEN SH. HAR ISH SINGLA AND THE ASSESSEE WHICH AL 0 LED IN FILING OF AN FIR AGAINST HIM ON 21.11.2009 AND HE WAS ALSO TERMINATED FROM THE DIRECTORSHIP OF THE CO MPANY. UNDER THIS BACKGROUND SH. HARISH SINGLA HAD DEVIATED FROM HIS STATEMENTS MADE DURING THE COURSE OF SEARCH PROCEEDINGS. WE FIND SUBSTANCE IN THE ABOVE CONTENTION OF THE LD. AR SO FAR AS CREDIBILITY AND RELIABILITY OF THE STATEMENTS SUBSEQUENTLY MADE BY SH. HARISH SINGLA IN CONCERN. IT IS AN ESTA BLISH PROPOSITION OF LAW THAT STATEMENTS MADE U/S 132 (4) ON OATH DURING THE COUR SE OF SEARCH HAS GOT EVIDENTIARY VALUE AND FOR RETRACTING FROM SUCH STAT EMENTS THERE MUST BE SUFFICIENT REASON LIKE UNDUE INFLUENCE, FREIGHT, DU RESS TO BE ESTABLISHED BY SUCH PERSON AND THAT SUCH RETRACTION SHOULD BE WITHIN RE ASONABLE TIME. NO SUCH FACT HAS BEEN BROUGHT ON RECORD IN THE PRESENT CASE BY S H. HARISH SINGLA TO DEVIATE FROM HIS EARLIER STATEMENTS RECORDED U/S 132 (4) OF THE ACT. THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF BACHITTAR SIN GH VS. CIT (SUPRA) RELIED UPON BY THE LD. AR, HAS BEEN PLEASED TO HOLD THAT T HE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT RETRACTION MADE AFTER 2 MONTHS WAS NOT PERMISSIBLE AND VOLUNTARY STATEMENTS RECORDED IN THE PRESENCE OF FAMILY MEMBE RS WAS AN IMPORTANT) MATERIAL WHICH COULD BE ACTED UPON. IN THAT CASE TH E AO MADE ADDITION ON THE BASIS OF STATEMENTS RECORDED DURING THE COURSE OF S URVEY. THE ADDITION WAS IN RESPECT OF INVESTMENT NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE ASSESSEE LATER ON RETRACTED FROM HIS EARLIER STATEMENTS BY TAKING STAND THAT HE HAD AGRICULTURE INCOME TO THAT EFFECT INVESTMENT WAS FROM THAT SOUR CE. IN THE CASE OF ACIT V S. HUKUM CHAND JAIN (SUPRA) BEFORE THE HON'BLE HIGH CO URT OF CHHATTISGARH RELIED UPON BY THE LD. AR, THE ASSESSEE COULD NOT EXPLAIN RECOVERY OF CASH AND JEWELLERY DURING THE COURSE OF SEARCH PROCEEDINGS A ND IN HIS STATEMENT RECORDED U/S 132 (4) HE HAD SURRENDERED CERTAIN AMOUNT AS HI S UNDISCLOSED INCOME FOR BLOCK PERIOD AND HAD ALSO EXPRESSED HIS WILLINGNESS TO PAY TAXES WORKED OUT ON 14 THE SURRENDERED INCOME. HOWEVER, IN HIS RETURN OF I NCOME FILED IN RESPONSE TO THE NOTICE ISSUED U/S 158 BC, HE DECLARED LOWER RETURN CONTENDING THAT STATEMENT U/S 132 (4) WAS OBTAINED UNDER DURESS. THE AO MADE ASSESSMENT ON THE BASIS OF SURRENDERED INCOME. THE MATTER TRAVELED BEFORE T HE HIGH COURT AND THE HON'BLE HIGH COURT WAS PLEASED TO HOLD THAT WHEN AS SESSEE DID NOT RETRACT HIS STATEMENTS IMMEDIATELY AFTER SEARCH AND SEIZURE WAS OVER AND IN RETURN ALSO NO EXPLANATION WAS OFFERED FOR SURRENDER OF UNDISCLOSE D INCOME AT THE TIME OF SEARCH AND SEIZURE OPERATIONS U/S 132 (4), IT COULD BE SAID THAT THE ASSESSEE HAD FAILED TO THE DISCHARGE ONUS OF PROVING THAT CONFES SION MADE BY HIM U/S 132 (4) WAS AS A RESULT OF INTIMIDATION, DURESS AND COERCIO N OR THAT SAME WAS MADE AS A RESULT OF MISTAKEN BELIEF OF LAW OR FACTS. IT WAS H ELD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN ASSESSING INCOME OF THE ASSESSEE O N THE BASIS OF SURRENDER OF UNDISCLOSED INCOME MADE BY THE ASSESSEE U/S 132 (4) OF THE ACT. LIKEWISE IN THE CASE OF KANTI LAL C. SHAH V S. ACIT (SUPRA) BEFORE THE AHMEDABAD BENCH OF THE TRIBUNAL IT WAS HELD THAT STATEMENTS RECORDED U/S 1 32 (4) IS AN EVIDENCE BY ITSELF AND ANY RETRACTION CONTRARY TO THAT SHOULD BE SUPPO RTED BY STRONG EVIDENCE FOR DEMONSTRATING THAT EARLIER EVIDENCE RECORDED WAS UN DER COERCION. IN VIEW OF THESE DECISIONS WE ARE OF THE VIEW THAT THERE WAS N O REASON WITH SH. BARISH SINGLA TO ESTABLISH THAT HIS STATEMENTS U/S 132 (4) OF THE ACT WAS MADE UNDER COERCION, COMPULSION, DURESS OR THREAT. IN ABSENCE OF SUCH EVIDENCE THE STATEMENT MADE U/S 132 (4) OF THE ACT CANNOT BE IGNORED MEREL Y BECAUSE A DIFFERENT STATEMENT WAS MADE SUBSEQUENTLY. WE THUS CONCLUDE T HAT ON THE BASIS OF SUBSEQUENT STATEMENTS OF SH. BARISH SINGLA IT CANNO T BE HELD ESTABLISHED THAT THE PROPERTY IN QUESTION WAS ACTUALLY PURCHASED FOR RS.18 CRORE AND NOT FOR RS.5.50 CRORE AS DECLARED IN THE SALE DEED AND CONF IRMED BY SH. SINGLA IN HIS STATEMENTS RECORDED U/S 132 (4) OF THE ACT ON OATH ON EARLIER OCCASION. THE 5TH SET OF EVIDENCE IS THUS OF NO HELP TO THE REVENUE. 3.18 WHEN WE LOOK TO ALL THE FACTS RELATING TO THE ADDITION OF RS.12.50 CRORES IN QUESTION IN TOTALITY, WE COME TO THE CONCLUSION THA T THE AGREEMENT OF SALE DATED 15.2.2007 SENT BY AN UNKNOWN SOURCE TO THE DEPARTME NT AS WELL AS RECEIPT DATED 15.2.2007 ALSO SENT TO THE DEPARTMENT ON FAX BY UNKNOWN SOURCE OR THE CONTRARY STATEMENTS OF SH. BARISH SINGLA RECORDED S UBSEQUENTLY ON 20.10.2010 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS DISC USSED ABOVE ARE NOT SUFFICIENT IN ANY WAY TO ESTABLISH BEYOND DOUBT THA T THE PROPERTY IN QUESTION WAS ACTUALLY SOLD FOR RS.18 CRORES OUT OF WHICH THE AMOUNT OF RS.5.50 CRORES PAID THROUGH CHEQUE ONLY WAS SHOWN IN THE SALE DEED AND THE REMAINING AMOUNT PAID IN CASH WAS ON MONEY. SO FAR OTHER CLAIMED EVI DENCES ARE CONCERNED THESE ARE ALSO NOT SUFFICIENT TO ESTABLISH THE ABOVE ALLE GATION OF INVOLVEMENT OF ON MONEY. IT IS ONLY AN INFERENCE WHICH HAS BEEN PRESU MED BY THE DEPARTMENT THAT 15 THE ADVANCE OF RS.2 CRORE (RS.L CRORE IN CASH AND R S.1 CRORE BY CHEQUE) WAS GIVEN OUT OF WHICH THE AMOUNT OF RS.1 CRORE PAID BY CHEQU E DATED L5.2.2007 HAS BEEN ADJUSTED AGAINST THE PAYMENTS SHOWN AS PER SALE DEE D; RS.1 CRORE VIDE CHEQUE DATED 23.4.2007 AND ANOTHER RS.L CRORE VIDE CHEQUE DATED 8.5.2007 WERE RECEIVED BY THE ASSESSEE APART FROM PAYMENT SHOWN I N THE SALE DEED OF RS.5.50 CRORES; RS.1 CRORE SHOWN IN THE RECEIPT DATED 11.4. 2007 AND RS.2.70 CRORE SHOWN IN THE RECEIPT DATED 14.S.2007 WERE APART FROM THE PAYMENT SHOWN IN THE SALE DEED AND THAT SMT. PARMINDER CHADHA, SH. TEJ PAL SI NGH AND MS. KAVITA CHADHA HAD BOOKED THE OFFICE PREMISES IN THE COMMER CIAL COMPLEX OF THE ASSESSEE AND THE DUE AMOUNT SHOWN AS CLOSING BALANC E IN THEIR ACCOUNTS WITH THE ASSESSEE HAD ALREADY BEEN ADJUSTED OUT OF THE C ASH PAYABLE TO SMT. PARMINDER CHADHA SH. TEJ PAL SINGH AND MS. KAVITA A GAINST SALE CONSIDERATION OF THE PROPERTY IN QUESTION AT MEWLA MAHARAJPUR, MA THURA ROAD, FARIDABAD. ON THE CONTRARY IN THE SALE DEED OF THE PROPERTY DULY REGISTERED THE PARTIES HAVE SHOWN THE CONSIDERATION OF RS.5.50 CRORE. IN THEIR STATEMENTS RECORDED U/S 132 (4) DURING THE COURSE OF SEARCH PROCEEDING ALL THE PARTIES TO THE SALE DEED HAVE STATED THAT THE SALE CONSIDERATION OF THE PROPERTY REMAINED RS.5.50 CRORES ONLY. THE AMOUNT OF RS.6.70 CRORES WHICH THE REVENUE CLAI MS AS PER THE RECEIPTS RECOVERED WAS PAID OVER AND ABOVE RS.5.50 CRORE CO NSISTS OF AN UNDISPUTED AMOUNT OF RS.3 CRORE SHOWN TO HAVE BEEN PAID THROUG H CHEQUES. AND EVEN IF THE CLAIM OF THE DEPARTMENT IS ACCEPTED FOR A MOMENT TH AT AN AMOUNT OF RS.2,41,37,490/- (RS.80,45,830/- X 3) WHICH REMAINE D BALANCE TO BE PAID BY SMT. PARMINDER CHADHA, SH. TEJ PAL SINGH AND MS. KA VITA TO THE ASSESSEE AGAINST THE SALE PRICE OF THE OFFICE PREMISES TO BE DEVELOPED BY THE ASSESSEE WAS ADJUSTED AGAINST RS.12.50 CRORE THE AMOUNT OVER AND ABOVE THE SALE PRICE OF THE PROPERTY SHOWN IN THE SALE DEED AT RS.5.50 CRORE, T HE AGGREGATE AMOUNT COMES TO RS.9,1L,37,490/-(RS.6,70,OOOOO/- + RS.2,41,37,490/- ) ONLY WHICH IS STILL NOT NEAR TO THE ALLEGED CASH PAYMENT OF RS.12.50 CRORES . THE DECISIONS RELIED UPON BY THE LD. DR HAVING DISTINGUISHABLE FACTS ARE NOT HELPFUL TO THE ASSESSEE. THERE IS NO QUESTION OF ANY DEBATE ON THE RATIO LAID DOWN IN THESE DECISIONS BUT WE WILL HAVE TO SEE ITS APPLICATION UNDER THE FACTS AND CIR CUMSTANCES OF THE PRESENT CASE. IN THE CASE OF HOMI JEHANGIR GHEESTA VS. CIT (SUPRA ) THE ISSUE WAS AS TO WHETHER WHERE CIRCUMSTANCES OF REJECTION OF EXPLANA TION OF ASSESSEE ARE SUCH THAT ONLY PROPER INFERENCE IS THAT RECEIPT MUST BE TREATED AS INCOME IN THE HANDS OF THE ASSESSEE, THERE IS NO REASON WHY ASSESSING A UTHORITY SHOULD NOT DRAW SUCH AN INFERENCE, IT BEING AN INFERENCE OF FACT AN D NOT OF LAW. HE QUESTION HAS BEEN ANSWERED IN AFFIRMATIVE. IN THE PRESENT CASE B EFORE US WE HAVE ALSO CONCENTRATED ON THE FACTS AND CIRCUMSTANCES OF THE CASE TO SEE AS TO WHETHER IT LEADS TO JUSTIFYING THE ADDITION MADE AT RS.12.50 C RORES. LIKE WISE IN THE CASE OF DHAKESHWARI COTTON MILLS LTD. V S. CIT (SUPRA) IT H AS BEEN HELD THAT THOUGH ITO 16 IS NOT FETTERED BY TECHNICAL RULES OF EVIDENCE AND PLEADINGS AND HE IS ENTITLED TO ACT ON MATERIAL WHICH MAY NOT BE ACCEPTED AS EVIDEN CE ON ACCOUNT OF LAW BUT IN MAKING ASSESSMENT ULS 23 (3) OF 1922 ACT HE IS NOT ENTITLED TO MAKE A PURE GUESS AND MAKE AN ASSESSMENT WITHOUT REFERENCE TO ANY EVI DENCE OR ANY MATERIAL AT ALL. IN THE PRESENT CASE BEFORE US THE ISSUE RAISED WAS AS TO WHETHER THERE WERE ON SUFFICIENT MATERIAL WITH THE ASSESSING OFFICER T O JUSTIFY THE ADDITION MADE AT RS.L2.50 CRORES WITH THIS FINDING THAT THE PROPERTY WAS SOLD FOR RS.18 CRORES BUT IN THE SALE DEED IT WAS SHOWN AT RS.5.50 CRORES AND REMAINING AMOUNT WAS PAID IN CASH. IN THE CASE OF C. VASANTI LAL & CO. VS. CI T (SUPRA) IT WAS HELD THAT ITO IS NOT BOUND BY ANY TECHNICAL LAW OF EVIDENCE AND I T IS OPEN TO HIM TO COLLECT MATERIALS TO FACILITATE ASSESSMENT EVEN BY PROVIDIN G INQUIRY. IN THE CASE OF ACIT VS. JAY ENGINEERING WORKS LTD. (SUPRA) THE HON'BLE DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT ITO NOT BEING A COURT CAN RELY UPON MATERIAL WHICH MAY NOT BE STRICTLY EVIDENCE ADMISSIBLE UNDER INDIAN EVIDEN CE ACT FOR PURPOSE OF MAKING AN ORDER OF ASSESSMENT. IN THAT CASE BEFORE THE HON 'BLE DELHI HIGH COURT THE RELEVANT BOOKS OF ACCOUNTS OF ASSESSEE WERE DESTROY ED IN FIRE AND THE TRIBUNAL WHILE ALLOWING DEDUCTIONS CLAIMED BY ASSESSEE HAD T AKEN INTO ACCOUNT AS PROOF OF MATERIAL AUDITOR'S REPORT FROM WHICH IT COULD BE INFERRED THAT DEDUCTIONS WERE PROPERLY SUPPORTED BY RELEVANT ENTRIES IN ACCOUNT B OOKS, THE HON'BLE HIGH COURT HELD THAT IT COULD NOT BE SAID THAT DECISION OF TRI BUNAL WAS NOT BASED ON ANY EVIDENCE. DIFFERENT ARE THE FACTS IN THE PRESENT CA SE BEFORE US. IN THE PRESENT CASE BEFORE US THE AO TRIED TO ESTABLISH THAT THERE WAS CORROBORATION OF FACT THAT AN AMOUNT OVER AND ABOVE THE AMOUNT SHOWN IN THE SALE DEED WAS PAID IN CASH WITH THE ASSISTANCE OF CLAIMED DIFFERENT EVIDENCES, DISCUSSED HEREINABOVE, EITHER OF WHICH DOES NOT HAVE ITS CREDIBILITY AND RELIABIL ITY. SIMILARITY OF CERTAIN FIGURE ALLEGED TO HAVE BEEN PAID IN CASH TOWARDS UNDISCLOS ED SALE CONSIDERATION IN THE STATEMENTS OF A PERSON WHO IS ADVERSELY INTERESTED AGAINST THE ASSESSEE AND SO ALLEGED BY DEVIATING WITHOUT REASON FROM HIS EARLIE R STATEMENTS RECORDED UNDER SECTION 132 (4) OF THE ACT, WITH THE FIGURE APPEARI NG IN SOME DOCUMENTS RECEIVED ON FAX BY THE DEPARTMENT UNANIMOUSLY FROM THE UNKNO WN SOURCE, IN OUR VIEW CANNOT BE GIVEN THE STATUS OF 'CORROBORATION OF FAC T' IN ABSENCE OF SOME RELIABLE EVIDENCE AND CIRCUMSTANCES IN SUPPORT. REASON BEING THE ONUS LIES HEAVILY ON THE PERSON WHO WISHES TO TURN AN ADMISSIBLE EVIDENC E AS FALSE AND UNRELIABLE. IN THIS REGARD WE ALSO FIND STRENGTH FROM THE DECISION IN THE CASE OF CIT VS. KRISHNA VENI AMMAL (SUPRA) RELIED UPON BY THE LD. DR HOLDIN G THAT WHEN EVEN ACCORDING TO ASSESSEE THERE IS OTHER DOCUMENTARY EVIDENCE OF CORROBORATIVE VALUE AND SAME IS WITHIN REACH OF ASSESSEE, JUDICIAL BODY CANNOT A CT ON SUCH INTERESTED TESTIMONY OF ASSESSEE ALONE. THE HON 'BLE HIGH COUR T HAS HELD FURTHER THAT IF BASED EVIDENCE IS NOT PLACED BEFORE THE COURT, AN A DVERSE INFERENCE CAN BE DRAWN AS AGAINST PERSON WHO OUGHT TO HAVE PRODUCED IT. 17 UNDER THESE CIRCUMSTANCES WE COME TO THE CONCLUSION THAT THE ASSESSING OFFICER IN THE PRESENT CASE HAS FAILED TO ESTABLISH BEYOND DOUBT THAT THE PROPERTY IN QUESTION WAS ACTUALLY PURCHASED FOR RS.18 CRORE OUT OF WHICH THE AMOUNT OF RS.5.50 CRORE PAID THROUGH CHEQUE ONLY HAS BEEN SH OWN AS CONSIDERATION IN THE SALE DEED AND THE REMAINING AMOUNT HAS BEEN PAID IN CASH FROM UNKNOWN SOURCES TO JUSTIFY THE ADDITION OF RS.12.50 CRORE M ADE BY HIM AND SUSTAINED BY THE LD.COMMISSIONER OF INCOME TAX (APPEALS). WE TH US WHILE SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIREC T THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.12.50 CRORES QUESTIONED BY THE A SSESSEE. THE GROUND NOS. 3 TO 9 ARE THUS ALLOWED. 4. IN THE RESULT APPEAL IS PARTLY ALLOWED. 9. THE TRIBUNAL HAS CONSIDERED ALL THE EVIDENCES IN QUESTION AND AFTER ANALYZING THE SAME, DELETED THE ADDITIONS IN THE HA NDS OF THE PURCHASER. A DIFFERENT VIEW CANNOT BE TAKEN ON THE SAME SET OF F ACTS AND EVIDENCES. HENCE, RESPECTFULLY FOLLOWING THE SAME, WE DELETE THE ADDI TIONS IN QUESTION IN THE HANDS OF THE ASSESSEE. 10. IN THE RESULT BOTH THE APPEALS OF THE ASSESSSEE S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER, 2013. SD/- SD/- (DIVA SINGH) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: THE 22 ND NOVEMBER, 2013 *MANGA 18 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR