DCIT, Central Circle-1(4), Ahmedabad V. Shri Ravjibhai Manilal Patel, Ahmedabad

ITSSA 121/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3898 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Peak credit; Corroborative evidences; Retraction; Documents seized; Set aside
• Section: 143(3); 13; 153C; 131; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ IT(SS)A NO. 121/AHD/2018 WITH C.O NO.110/AHD/2019 / ASSTT. YEAR: 2011-2012 D.C.I.T., CENTRAL CIRCLE-1(4), AHMEDABAD. VS. SHRI RAVJIBHAI MANILAL PATEL, 1, SARITA BUNGLOW, OPP. DESAVAR HOTEL, SABARMATI, AHMEDABAD-380005. PAN: AALPP3666J (APPLICANT) (RESPONDENT) REVENUE BY : SHRI VIRENDRA OJHA, CIT.D.R ASSESSEE BY : SHRI DHIREN SHAH, A.R. /DATE OF HEARING : 10/08/2021 /DATE OF PRONOUNCEMENT: 29/09/2021 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL AND CO HAVE BEEN FILED AT THE INSTANCE OF THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-11, AHMEDABAD, DATED 21/02/2018 (IN SHORT LD. CIT(A)) ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) R.W.S. 153C OF THE INCOME TAX IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 2 ACT, 1961 (HERE-IN-AFTER REFERRED TO AS 'THE ACT'). THE ASSESSEE HAS FILED THE CROSS OBJECTION IN THE REVENUES APPEAL BEARING IT(SS)A NO. 121/AHD/2018 FOR THE ASSESSMENT YEAR 2011-2012. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C!T{A) ERRED IN DELETING THE ADDITION OF RS.3,00,00,000/- MADE IN HANDS OF ASSESSEE ON ISSUE OF UNACCOUNTED COMMISSION WITHOUT APPRECIATING THAT THE MARKET RATE OF PLOTS OF LANDS WAS RANGING BETWEEN RS.22000/- TO 25000/- INSTEAD OF RS.4000/-PER SQ YARD TAKEN BY LD. CIT(A) AND HENCE THE RATE OF UNACCOUNTED COMMISSION COMES TO ABOUT 3% ON SUCH VALUE AS HAS BEEN MENTIONED IN ASSESSMENT ORDER AND ALSO HELD IN ASSESSMENT ORDERS OF BUYERS AND SELLERS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CLT{A) ERRED IN DELETING THE ADDITION OF RS.3,00,00,000/- MADE IN HANDS OF ASSESSEE ON ISSUE OF UNACCOUNTED COMMISSION WITHOUT APPRECIATING THAT ASSESSEE HAD DELIBERATELY NOT FURNISHED THE DETAILS OF HIS SO-CALLED OTHER THREE PARTNERS DURING INVESTIGATION AND ASSESSMENT PROCEEDINGS SO AS TO THWART THE INQUIRES BY EVADING THE SUMMONS AND LETTERS OF DEPARTMENT. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT{A) ERRED IN DELETING THE ADDITION OF RS.68,00,000/- MADE IN HANDS OF ASSESSEE ON ISSUE OF UNACCOUNTED BROKERAGE ON FOUR PLOTS OF LAND AT ZUNDAL WITHOUT APPRECIATING THAT THE ASSESSEE HAD SUO- MOTU AND VOLUNTARILY DISCLOSED THE SAME UNDER OATH U/S 131 AND HENCE HON'BLE SUPREME COURT'S DECISION IN B. KISHORE KUMAR[2015] 62 TAXMANN.COM 215 (SC) IS APPLICABLE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 3. THE FIRST ISSUE RAISED BY THE REVENUE IS THAT THE LEARNED CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR 3 CRORES REPRESENTING UNACCOUNTED INCOME OF THE ASSESSEE. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF LAND DALALI. THERE WAS A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT CONDUCTED AT THE GROUP OF SOHAM/SARKAR DATED 13 TH JUNE 2013. THE SON OF THE ASSESSEE WAS ALSO SUBJECT TO SEARCH UNDER SECTION 132 OF THE ACT BEING PART OF THE GROUP. DURING THE SEARCH, CERTAIN DOCUMENTS BEING DIARY IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 3 BELONGING TO THE ASSESSEE WERE ALSO FOUND FROM THE PREMISES OF HIS SON. THE DIARY WAS CONTAINING THE DETAIL OF RECEIPT AND PAYMENTS ENTRIES ON PAGES 1 TO 60 FOR THE PERIOD A.Y. 2010-11 TO 13-14. 4.1 THEREAFTER, THE STATEMENT OF THE ASSESSEE WAS RECORDED UNDER SECTION 131 OF THE ACT ON THE DATE OF SEARCH I.E. AS ON 13 TH JUNE 2013. THE ASSESSEE IN THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT HAS ADMITTED TO HAVE ARRANGED CERTAIN LAND DEALS ON COMMISSION BASIS. IT WAS ADMITTED BY THE ASSESSEE THAT HE ALONG WITH 3 OTHER PERSONS NAMELY SHRI DHAVAL NAVNEETBHAI PATEL, KETAN JASHVANTBHAI PATEL, BHARATBHAI PARABHUDAS PATEL HAS SOLD THREE PIECES OF LAND BEARING SURVEY NUMBERS 389, 315 AND 316 ADMEASURING 66,000 SQUARE YARDS AT THE RATE OF 4,000/- PER SQUARE YARD TO M/S SOHAM GROUP. IN THIS LAND DEAL, A COMMISSION OF RS. 3 CRORES WAS EARNED BY THE ASSESSEE ALONG WITH 3 OTHER PERSONS. ACCORDINGLY, THE SHARE OF THE ASSESSEE WAS COMING TO 75 LACS ONLY. HOWEVER, THE ASSESSEE HAS NOT DISCLOSED SUCH INCOME IN HIS INCOME TAX RETURN THOUGH THE SAME WAS ADMITTED IN THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT. 4.2 ON QUESTION BY THE AO, THE ASSESSEE CONTENDED THAT THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT DATED 13 TH JUNE 2013 WAS NOT A CORRECT STATEMENT FOR THE REASON THAT SAME WAS FURNISHED WITH THE EXHAUSTED MIND. FURTHERMORE, THE SAME WAS RETRACTED VIDE AFFIDAVIT DATED 15 TH OCTOBER 2013. IN THE AFFIDAVIT, AMONG OTHER THINGS, IT WAS FURNISHED THAT: I. ACTUAL AREA OF THE LAND WAS 33,831 SQUARE YARD ONLY OF ALL THE 3 PLOTS AS DISCUSSED ABOVE. II. IN THE LAND TRANSACTION DEAL, THE PREVAILING COMMISSION RATE RANGES BETWEEN 1 TO 2 PERCENT ONLY WHEREAS THE AMOUNT OF COMMISSION OF 3 CRORES CONSTITUTES 22% OF THE LAND TRANSACTION DEAL WHICH IS NOT POSSIBLE IN THIS LINE OF TRADE. IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 4 III. THUS, AT THE MOST THE COMMISSION INCOME FROM SUCH LAND TRANSACTION DEAL CAN BE WORKED OUT AT 27 LACS ONLY BEING 2% OF RS. 13.55 CRORES (33881 SQ YD X RS. 4000, SALE VALUE). BUT, IN ACTUALITY ONLY A SUM OF 18 LACS WAS RECEIVED IN TOTAL AS COMMISSION AGAINST SUCH LAND TRANSACTION DEAL WHICH BELONGS TO ALL THE 4 PARTIES INCLUDING THE ASSESSEE. IV. FURTHERMORE, THE AMOUNT OF COMMISSION ON SUCH LAND WAS ALREADY INCLUDED IN THE DIARY SEIZED DURING THE SEARCH AS DISCUSSED ABOVE. 4.3 BESIDES THE ABOVE, THE ASSESSEE ALSO CONTENDED THAT THERE CANNOT BE ANY ADDITION BASED ON THE STATEMENT UNTIL AND UNLESS IT IS SUPPORTED BY ANY DOCUMENTARY EVIDENCE. 4.4 HOWEVER THE AO DISAGREED WITH THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE STATEMENT WAS RETRACTED BY THE ASSESSEE AFTER A PERIOD OF 4 MONTHS WHICH IS A CONSIDERABLE TIME GAP. FURTHERMORE, THE STATEMENT WAS FURNISHED VOLUNTARILY WITHOUT ANY PRESSURE, COERCION WHICH CAN BE SEEN FROM THE FOLLOW-UP QUESTIONS RECORDED IN THE STATEMENTS. 4.5 THE ASSESSEE HAS NOT CO-OPERATED BEFORE THE INVESTIGATION TEAM POST SEARCH BY RESPONDING TO THE NOTICES ISSUED BY THE INVESTIGATION TEAM TO HIM. 4.6 LIKEWISE, THE ASSESSEE HAS NOT FURNISHED THE CONTACT DETAILS OF THE OTHER 3 PARTIES WHO WERE ALLEGED TO BE INVOLVED IN THE LAND TRANSACTION DEAL. 4.7 THE ASSESSEE HAS ADMITTED TO HAVE SOLD THE LAND IN QUESTION AT 4000 PER SQUARE YARD WHICH IS NOT TRUE AS THE RATE PREVAILING IN THE MARKET. AS SUCH, THE VALUE OF THE LAND WAS RANGING BETWEEN RS. 20,000 TO 25,000 PER SQUARE YARD. THUS THE AMOUNT OF COMMISSION OF 3 CRORES REPRESENTS ONLY 3% APPROX. IN SUCH DEAL OF LAND TRANSACTION WHICH IS THE PREVAILING MARKET RATE. IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 5 4.8 IN VIEW OF THE ABOVE, THE AO HELD THAT THE RETRACTION OF THE STATEMENT CANNOT BE RELIED UPON AND THUS TREATED THE SUM OF 3 CRORES AS UNACCOUNTED INCOME OF THE ASSESSEE BY ADDING TO THE TOTAL INCOME. 5. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A), WHO PROVIDED PART RELIEF TO THE ASSESSEE BY OBSERVING AS UNDER: 4.4 SUBMISSION OF THE APPELLANT AND THE ASSESSMENT ORDER HAS BEEN CAREFULLY CONSIDERED. THE AO HAS MADE THE ADDITIONS ONLY ON THE BASIS OF STATEMENT GIVEN BY THE APPELLANT DURING THE COURSE OF SEARCH U/S. 131 OF THE ACT, WHICH IS HAVING' EVIDENTIARY VALUE. HOWEVER, THE STATEMENT OF THE APPELLANT HAS BEEN FOUND FACTUALLY PARTLY CORRECT. THE APPELLANT STATED THAT HE RECEIVED BROKERAGE ALONGWITH 3 OTHER; PERSONS AMOUNTING TO RS.3 CRORES FOR THE LAND TRANSACTION OF LAND AT SURVEY NO.389 AT I ZUNDAL VILLAGE AND SURVEY NO.315 & 316 AT CHANDKHEDA VILLAGE. THE TOTAL AREA OF ALL\ THESE LANDS WAS STATED AS 66000 SQ.YDS AND SALE CONSIDERATION WAS STATED AT THE , RATE OF RS-4000/- PER SQ.YD, THUS, TOTAL CONSIDERATION COMES TO RS. 26.40 CRORES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE APPELLATE PROCEEDINGS, THE APPELLANT FILED COPY OF SALE DEEDS OF THE ABOVE MENTIONED 3 PLOTS OF LAND I.E. SURVEY NO.389 AT ZUNDAL VILLAGE AND SURVEY NO.315 & 316 AT CHANDKHEDA VILLAGE. THE LAND AT SURVEY NO.389 AT ZUNDAL ADMEASURING 18413 SQ. MTR, FOR WHICH SALE DEED WAS REGISTERED ON 13.4.2010 FOR RS.4.05 CRORE. AS PER THE SALE DEED OF LAND OF SURVEY NO.315 AT CHANDKHEDA (REGISTERED ON DATED 10/11/2009), THE AREA IS 5059 SQ.MTR AND CONSIDERATION IS RS.1.5 CRORE. THE AREA OF LAND OF SURVEY NO.316 AT CHANDKHEDA IS 4856 SQ.MTR (REGISTERED ON 6 TH APRIL, 2010) AND SALE CONSIDERATION IS RS.1.44 CRORES. THEREFORE, THE TOTAL AREA OF THESE THREE PLOTS OF LAND COMES TO 28328 SQ.RNTRS, WHICH IS EQUAL TO 33881 SQ.YARDS. THESE FACTS CLEARLY PROVE THAT THE APPELLANT HAS STATED THE LAND AREA OF THESE THREE PLOTS WHICH IS ABOUT DOUBLE THE AREA SHOWN IN THE SALE DEEDS. THEREFORE, THE APPELLANT'S STATEMENT IS FACTUALLY INCORRECT BEYOND DOUBT TO THIS EXTENT. THESE FACTS WERE SUBMITTED BEFORE THE ADIT(LNV) BY FILING AFFIDAVIT DATED 15.10.2013.THE APPELLANT FILED ABOVE AFFIDAVIT 4 MONTHS AFTER THE DATE OF SEARCH WHICH CAN BE SAID AS AFTERTHOUGHT. HOWEVER, THE CORRECT FACTS MENTIONED IN THE AFFIDAVIT ALONGWITH THE DOCUMENTARY EVIDENCE CANNOT BE BRUSHED ASIDE AND IGNORED TO FIND OUT THE CORRECT NATURE OF TRANSACTION. LT_IS IMPORTANT TO NOTE THAT THE LAND AT SURVEY NO.315 AT CHANDKHEDA WAS REGISTERED ON 10 TH NOVEMBER, 09, WHICH FALLS IN THE F.Y. 2009-10 AND RELATED TO AY 2010-11 AND THE SAME IS BEYOND THE PERIOD OF THE ASSESSMENT YEAR UNDER CONSIDERATION. EVEN IF THE SALE CONSIDERATION AT THE RATE OF RS.4000/- PER SQ YD FOR TOTAL AREA OF 33881 SQ YD IS TAKEN, THE TOTAL SALE CONSIDERATION COMES TO RS.13.55 CRORE AND UPON THIS CONSIDERATION, RECEIPT OF BROKERAGE OF RS.3 CRORE IS NOT FOUND JUSTIFIED AS PER THE MARKET PRACTICE. AS PER THE PREVAILING MARKET RATE, AT ANY GIVEN POINT OF TIME, THE BROKERAGE IS 1 TO 2% OF THE SALE CONSIDERATION. IN THE APPELLANT'S CASE, THE APPELLANT STATED BROKERAGE OF RS.3 CRORE, WHICH COMES TO 22% OF THE SALE CONSIDERATION, WHICH IS UNREASONABLE, ILLOGICAL AND NOT AS PER THE PREVAILING MARKET RATE OF BROKERAGE AT ANY POINT OF GIVEN TIME IN REAR ESTATE BUSINESS. MOREOVER, THE APPELLANT STATED THAT HE HAS RECEIVED BROKERAGE ALONGWITH 3 OTHER PEOPLE NAMELY DHAVAI NAVNITBHAI PATEL, KETAN JASHVANTBHAI PATEL (UKABHAI) AND BHARATBHAI PRABHUDAS PATEL (LALBHAI) WHILE ANSWERING TO QUESTION NO.26 OF THE STATEMENT. HOWEVER, ADDITIONS OF TOTAL BROKERAGE AMOUNT HAVE BEEN MADE IN THE HANDS OF THE APPELLANT WHICH IS NOT LEGALLY SUSTAINABLE. DURING THE COURSE PF APPELLATE PROCEEDINGS, THE APPELLANT SUBMITTED ADDRESSES ALONGWITH THE PAN OF THE PARTNERS WHICH ARE REPRODUCED BELOW:- SR.NO. NAME ADDRESS PAN IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 6 1 DHAVSL NAVNITBHAI PATEL B/203, ELANZA CREST,B/S. SIGMA CORPORATES, NR HOF LIVING, SINDHU BHAVAN ROAD,BODAKDEV,AHMEDABAD 2 RAVJIBHAI MANILAL PATEI 1, SARITA BUNGLOWS PART- LLL,B/H.PITTESHWAR MSHADEV, MOTERA, AHMEDABAD-380005 AALPP3666J 3 KETAN JASHVANTBHAI PATELFUKABHAI) 7, SANKALP BUNGLOWS, MOTERA, AHMEDABAD. AGZPP2421M 4 BHARATBHAI PRABHUDAS PATEL (LALBHAI) 36, MARUTI SOCIETY, OPP. VISHWAKARMA TEMPLE, MOTERA, AHMEDABAD-380005 AHAPP7427P KEEPING IN VIEW THE FACTS DISCUSSED ABOVE, THE ADDITIONS OF RS.3 CRORE MADE BY THE AO IS FOUND EXCESSIVE IN THE HANDS OF THE APPELLANT. THERE IS NO DOUBT THAT THE APPELLANT WAS INVOLVED M THESE LAND TRANSACTIONS AND RECEIVED BROKERAGE INCOME. THE TOTAL SALE CONSIDERATION AS MENTIONED IN THE SALE DEED COMES TO RS.6.99 CRORE FOR THESE 3 LANDS, HOWEVER, IF THE SALE CONSIDERATION IS TAKEN AT RS.13.55 CRORE (CONSIDERING @4000/- PER SQ YARDS) AND BROKERAGE IS TAKEN AT THE RATE OF 3%, THE TOTAL BROKERAGE AMOUNT COMES TO RS.40.65 LAKHS ON THESE 3 LAND TRANSACTIONS. IF IT IS DIVIDED INTO 4 PARTNERS INCLUDING THE APPELLANT, THE SHARE OF THE APPELLANT COMES TO RS.10,16,2507-. THEREFORE, ADDITIONS OF RS.10.16.250/- IS CONFIRMED IN THE HANDS OF THE APPELLANT AND REMAINING ADDITIONS IS DELETED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. THE AO MAY CONSIDER INITIATION OF PROCEEDINGS IN THE HANDS OF OTHER THREE PARTNERS. 6. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), BOTH THE REVENUE AND THE ASSESSEE ARE IN BEFORE US. THE REVENUE IS IN APPEAL AGAINST THE DELETION OF THE ADDITION MADE BY THE LEARNED CIT (A) FOR RS. 2,89,83,750/- WHEREAS THE ASSESSEE IS IN THE CO AGAINST THE CONFIRMATION OF THE ADDITION OF RS. 10,16,250/- LACS ONLY. 7. THE GROUNDS RAISED BY THE ASSESSEE IN THE CO BEARING NO. 110/AHD/2019 IN IT(SS)A NO.121/AHD/2018 FOR A.Y. 2011-12 STAND AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.10,16,250/- OUT OF TOTAL ADDITION OF RS.3,00,00,000/- ON ACCOUNT OF ALLEGED BROKERAGE INCOME. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) OUGHT TO HAVE DELETED THE ENTIRE ADDITION OF RS.3,00,00,000/- 2. THE LD. CIT(A) AFTER CAREFULLY CONSIDERING THE FACTS OF THE CASE AND SUBMISSION OF THE RESPONDENT HAS RIGHTLY DELETED THE ADDITION OF RS. 68,00,000/- ON ACCOUNT OF ALLEGED BROKERAGE INCOME BY HOLDING THAT THE RESPONDENT HAS OFFERED BROKERAGE INCOME AND THERE WAS NO OTHER EVIDENCE TO SHOW THAT THE RESPONDENT HAS EARNED INCOME OTHER THAN HE HAS SHOWN IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S.153C OF THE ACT AND HENCE IT IS CONSIDERED THAT THE RESPONDENT HAS RETURNED THE COMMISSION INCOME EARNED ON THESE TRANSACTIONS AS STATED IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH AND NO OTHER EVIDENCE WAS FOUND WHICH PROVE EARNING OF BROKERAGE INCOME ON ANY OTHER LAND TRANSACTION. IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 7 8. THE LEARNED DR FOR US CONTENDED THAT THE ASSESSEE DID NOT EXTEND THE CORPORATION BEFORE THE INVESTIGATION WING POSTS SEARCH. THERE WAS NO DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE SUGGESTING THAT THERE WERE INVOLVED FOUR PERSONS IN THE LAND TRANSACTION DEALS. FURTHERMORE, PREVAILING MARKET RATE WAS WORKED OUT BY THE AO AFTER EXAMINING THE RECORDS. SIMILARLY, THERE WAS NO PRESSURE, COERCION USED ON THE ASSESSEE AT THE TIME OF RECORDING THE STATEMENT UNDER SECTION 131 OF THE ACT. THEREFORE, THE STATEMENT FURNISHED BY THE ASSESSEE CANNOT BE BRUSHED ASIDE BASED ON THE RETRACTED STATEMENT FILED BY THE ASSESSEE. 9. ON THE OTHER HAND THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 550 AND CONTENDED THAT THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT WAS RETRACTED AND THEREFORE NO REFERENCE CAN BE MADE TO SUCH STATEMENT WHILE DECIDING THE ISSUE ON HAND. LIKEWISE, THERE WAS NO BASIS FOR ADOPTING THE MARKET RATE AT 25,000 PER SQUARE YARD AND WORKING OUT THE COMMISSION AT THE RATE OF 3% ON THE VALUE OF SUCH LANDS. THE VALUE IN THE REGISTERED DOCUMENTS IS OF RS. 6.99 CRORES ONLY. THE DETAILS OF THE OTHER PERSONS INVOLVED IN THE LAND TRANSACTION DEALS WERE FURNISHED BUT THERE WAS NO ENQUIRY CONDUCTED FROM THEM. THE LEARNED AR ALSO CONTENDED THAT THE AMOUNT OF INCOME DETERMINED AT 10,16,250 HAS ALREADY BEEN COVERED IN THE INCOME OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME. 10. BOTH THE LEARNED DR AND THE AR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW TO THE EXTENT FAVOURABLE TO THEM. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY, THE INCOME AS DISCUSSED ABOVE WAS BASED ON THE STATEMENT FURNISHED BY THE ASSESSEE UNDER SECTION 131 OF THE ACT. IT WAS SUBMITTED IN THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT THAT THE ASSESSEE ALONG WITH 3 OTHER PERSONS HAS ENTERED INTO A LAND TRANSACTION DEAL AND EARNED AN IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 8 INCOME OF RS. 3 CRORES BY WAY OF COMMISSION. THERE WAS NO DISCUSSION ABOUT ANY PIECE OF EVIDENCE/DOCUMENT FOUND DURING THE SEARCH PROCEEDINGS UNDER SECTION 132 OF THE ACT AT THE PREMISES OF THE ASSESSEE SUGGESTING THAT THE ASSESSEE HAS EARNED COMMISSION INCOME. WE NOTE THAT THE CBDT BY WAY OF INSTRUCTION BEARING NUMBER F.NO. 286/98/2013-IT(INV.III) DATED 18 TH DECEMBER 2014 HAS DISCOURAGED ITS OFFICERS TO MAKE ANY ADDITION BASED ON THE STATEMENT OBTAINED DURING SURVEY/SEARCH PROCEEDINGS UNTIL AND UNLESS IT IS CORROBORATED BY THE DOCUMENTARY EVIDENCE. THE RELEVANT EXTRACT OF THE INSTRUCTION OF THE CBDT READS AS UNDER: INSTANCES/COMPLAINTS OF UNDUE INFLUENCE/COERCION HAVE COME TO NOTICE OF THE CBDT THAT SOME ASSESSEES WERE COERCED TO ADMIT UNDISCLOSED INCOME DURING SEARCHES/SURVEYS CONDUCTED BY THE DEPARTMENT. IT IS ALSO SEEN THAT MANY SUCH ADMISSIONS ARE RETRACTED IN THE SUBSEQUENT PROCEEDINGS SINCE THE SAME ARE NOT BACKED BY CREDIBLE EVIDENCE. SUCH ACTIONS DEFEAT THE VERY PURPOSE OF SEARCH/SURVEY OPERATIONS AS THEY FAIL TO BRING THE UNDISCLOSED INCOME TO TAX IN A SUSTAINABLE MANNER LEAVE ALONE LEVY OF PENALTY OR LAUNCHING OF PROSECUTION. FURTHER, SUCH ACTIONS SHOW THE DEPARTMENT AS A WHOLE AND OFFICERS CONCERNED IN POOR LIGHT. 2. I AM FURTHER DIRECTED TO INVITE YOUR ATTENTION TO THE INSTRUCTIONS/GUIDELINES ISSUED BY CBDT FROM TIME TO TIME, AS REFERRED ABOVE, THROUGH WHICH THE BOARD HAS EMPHASIZED UPON THE NEED TO FOCUS ON GATHERING EVIDENCES DURING SEARCH/SURVEY AND TO STRICTLY AVOID OBTAINING ADMISSION OF UNDISCLOSED INCOME UNDER COERCION/UNDUE INFLUENCE. 3. IN VIEW OF THE ABOVE, WHILE REITERATING THE AFORESAID GUIDELINES OF THE BOARD, I AM DIRECTED TO CONVEY THAT ANY INSTANCE OF UNDUE INFLUENCE/COERCION IN THE RECORDING OF THE STATEMENT DURING SEARCH/SURVEY/OTHER PROCEEDING UNDER THE I.T.ACT,1961 AND/OR RECORDING A DISCLOSURE OF UNDISCLOSED INCOME UNDER UNDUE PRESSURE/ COERCION SHALL BE VIEWED BY THE BOARD ADVERSELY. 4. THESE GUIDELINES MAY BE BROUGHT TO THE NOTICE OF ALL CONCERNED IN YOUR REGION FOR STRICT COMPLIANCE. 5. I HAVE BEEN FURTHER DIRECTED TO REQUEST YOU TO CLOSELY OBSERVE/OVERSEE THE ACTIONS OF THE OFFICERS FUNCTIONING UNDER YOU IN THIS REGARD. 6. THIS ISSUES WITH APPROVAL OF THE CHAIRPERSON, CBDT. 11.1 WE ALSO NOTE THAT THE HONBLE COURTS IN NUMEROUS CASES HELD THAT THERE CANNOT BE ANY ADDITION MERELY ON THE BASIS OF THE STATEMENT FURNISHED DURING SURVEY/SEARCH PROCEEDINGS. IN THIS CONNECTION WE DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN CASE OF R BHOPATHY VS CIT REPORTED IN 103 TAXMANN.COM 283 WHERE IT WAS HELD AS UNDER: MERELY BECAUSE THE STATEMENTS RECORDED UNDER SECTION 132(4) ARE ADMISSIBLE IN EVIDENCE, IT DOES NOT MEAN THAT THE SAID STATEMENTS OR THEIR CONTENTS CAN BE READ OUT OF CONTEXT AND BEYOND THE TERMS OF THE STATEMENTS ITSELF AND WITHOUT THE CORROBORATING MATERIAL. THERE IS NO ADMISSION ON THE PART OF THE ASSESSEE IN THE PRESENT CASE THAT CAPITATION FEE WAS PAID IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 9 BY THE ASSESSEE OUT OF UNDISCLOSED INCOME NOT SO FAR DECLARED. JUST BECAUSE THE STATEMENTS STATE THAT HE PAID CAPITATION FEE TO THE ENGINEERING COLLEGE, IT DOES NOT MEAN THAT IT COULD RESULT IN AN ADDITION IPSO FACTO IN THE ALREADY DECLARED UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE IN HIS RETURNS FILED AFTER THE SEARCH. 11.2 HOWEVER, THE FACTS OF THE CASE ON HAND IS PECULIAR IN THE SENSE THAT THE ASSESSEE HIMSELF IN THE RETRACTION AFFIDAVIT HAS ADMITTED TO HAVE ENTERED INTO THE LAND TRANSACTION DEAL ALONG WITH OTHER PERSONS. BUT IN THE AFFIDAVIT IT WAS CLAIMED THAT HE HAS EARNED ALONG WITH OTHER PERSONS ONLY A SUM OF 18 LACS ONLY OUT OF THE IMPUGNED LAND TRANSACTION DEALS. THE RELEVANT EXTRACT OF THE AFFIDAVIT READS AS UNDER: WE HAVE RECEIVED ABOUT RS.18,00,000 WHICH HAS BEEN ENTERED IN MY DIARY IN BITS AND PIECES AND HENCE, THE SAID REPLY NO.26 BY ME, SHOULD NOT BE TREATED AS ACCEPTABLE OR RECOGNIZED BY ME. 11.3 IN OUR CONSIDERED VIEW, THE AFFIDAVIT DISCUSSED ABOVE IS A VITAL PIECE OF EVIDENCE WHEREIN THE ASSESSEE HIMSELF HAS ADMITTED TO HAVE EARNED COMMISSION INCOME. IN THE AFFIDAVIT IT WAS FURNISHED THAT THE AREA OF THE LAND IN DISPUTE WAS 33,881 SQUARE YARD WHICH MATCHES WITH THE REGISTRY DOCUMENTS OF THE PROPERTIES IN DISPUTE AS EVIDENT FROM THE FINDING OF THE AUTHORITIES BELOW. ACCORDINGLY, THERE REMAINS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS EARNED COMMISSION INCOME OUT OF THE LAND TRANSACTION DEAL AS DISCUSSED ABOVE. 11.4 THE LIMITED ISSUE THAT REQUIRES ADJUDICATION IS THE QUANTUM OF COMMISSION EARNED BY THE ASSESSEE ALONG WITH THE OTHER PARTIES. AS PER THE ASSESSEE, HE ALONG WITH OTHER PARTIES HAS EARNED A SUM OF 18 LACS ONLY WHEREAS THE REVENUE ALLEGES TO HAVE EARNED A SUM OF 3 CRORES OUT OF SUCH LAND TRANSACTION DEAL. IT WAS CONTENDED BY THE ASSESSEE THAT THE LAND IN DISPUTE WAS SOLD AT THE RATE OF RS. 4,000 PER SQUARE YARD WHEREAS IT WAS ALLEGED BY THE REVENUE TO HAVE SOLD IMPUGNED LAND AT THE RATE OF RS. 20,000/- TO 25,000/- PER SQUARE YARD AS PER THE PREVAILING MARKET RATE. THUS THE REVENUE WAS OF THE VIEW THAT THE ASSESSEE MUST HAVE EARNED COMMISSION AT THE RATE OF 3% APPROXIMATELY ON SUCH VALUE OF LAND BEING 33,881 IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 10 SQUARE YARD MULTIPLIED BY RS. 20000/- OR 25000/- PER SQUARE YARD AS THE CASE MAY BE. 11.5 HOWEVER, FROM REGISTERED DOCUMENT WE NOTE THAT THE IMPUGNED THREE LANDS WERE SOLD FOR AN AGGREGATE AMOUNT OF RS. 6.99 CRORES WHICH MEANS AVERAGE RATE OF PER SQUARE YARD COMES AT RS. 2,100/- APPROXIMATELY. THUS, TO OUR MIND THERE WAS NO DOCUMENTARY EVIDENCE BROUGHT ON RECORD BY THE REVENUE SUGGESTING THAT THE IMPUGNED LAND WERE SOLD AT THE RATE OF RS. 20,000/25,000.00 PER SQUARE YARD. WE ALSO NOTE THAT THE AO HAS NOT CONDUCTED ANY ENQUIRY FROM THE RESPECTIVE PARTIES TO FIND OUT THE ACTUAL RATE AT WHICH THE LAND DEAL WAS TRANSACTED. THEREFORE IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCES, WE LEFT WITH NO OPTION BUT TO HOLD THAT THE LAND WAS SOLD AT 4000 PER SQUARE YARD I.E. FOR AGGREGATE CONSIDERATION OF 13.55 CRORE AS ADMITTED BY THE ASSESSEE. LIKEWISE, THE AO HAS NOT BROUGHT ANY COMPARATIVE DATA SUGGESTING THE PREVAILING MARKET RATE OF LAND AT THAT POINT OF TIME RANGING BETWEEN RS. 20,000 TO RS. 25,000 PER SQUARE YARD. ACCORDINGLY, WE DISAGREE WITH THE CONTENTION OF THE REVENUE. 11.6 NOW COMING TO THE QUANTUM OF COMMISSION ON SALE OF SUCH LANDS ASSUMING AGGREGATE SALE CONSIDERATION IS OF RS. 13.55 CRORES. BOTH THE ASSESSEE AND REVENUE ARE IN CONFORMITY WITH REGARD TO THE RATE OF COMMISSION I.E. 1 TO 3 % OF TOTAL CONSIDERATION. THE ASSESSEE IN THE RETRACTION AFFIDAVIT ADMITTED TO HAVE RECEIVED COMMISSION OF RS. 18 LACS WHICH COMES AT 1.3% OF CONSIDERATION. HOWEVER THE LEARNED CIT (A) WORKED OUT COMMISSION AT RS. 40.65 LACS ASSUMING RATE OF COMMISSION AT 3 % OF TOTAL CONSIDERATION. IN THIS REGARD, WE NOTE THAT THE STATEMENT FURNISHED BY THE ASSESSEE BY WAY OF RETRACTED AFFIDAVIT HAS TO BE ADMITTED EITHER IN FULL OR IT SHOULD BE REJECTED IN FULL. AS SUCH IT CANNOT BE ADMITTED IN PIECE MEAL BASIS ESPECIALLY IN A FACT AND CIRCUMSTANCES WHERE NO OTHER MATERIAL AVAILABLE ON RECORD EXCEPT ADMISSION OF THE ASSESSEE IN SUCH AFFIDAVIT. LIKEWISE, THERE WAS NO INQUIRY CONDUCTED BY THE AUTHORITIES BELOW FROM THE CONCERNED PARTIES DESPITE HAVING THE IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 11 NECESSARY DETAILS ON RECORD. FURTHERMORE, THERE IS NO YARDSTICK TO TAKE THE RATE OF COMMISSION AT 3% ON THE VALUE OF THE LAND SOLD. IT WAS THE RANGE OF THE RATE I.E. 1 TO 3% SUGGESTED BY THE ASSESSEE TO INDICATE THE PREVAILING RATE WHICH PURELY DEPENDS UPON THE FACTS AND CIRCUMSTANCES. THUS THE SAME CANNOT BE TAKEN ON PRESUMPTION BASIS TO DETERMINE THE COMMISSION INCOME. THUS, IN SUCH FACTS AND CIRCUMSTANCES, WE HOLD THAT THE AMOUNT OF COMMISSION IN IMPUGNED TRANSACTION STANDS AT RS. 18 LACS ONLY. 11.7 NOW COMING TO SHARE OF ASSESSEE IN IMPUGNED COMMISSION. THE ASSESSEE WHILE FURNISHING STATEMENT UNDER SECTION 131 OF THE ACT AT THE TIME OF SEARCH AS WELL AS IN AFFIDAVIT STATED THAT LAND DEAL WAS ARRANGED BY HIM ALONG 3 OTHER PARTNERS NAMELY DHVAL NAVNEETBHAI PATEL, KETAN JASHVANTBHAI PATEL AND BHARATBHAI PRBHUDAS PATEL. HOWEVER THE AO HELD THAT THE ENTIRE AMOUNT OF COMMISSION IS TO BE TAXED IN THE HAND OF ASSESSEE ONLY ON THE REASONING THAT HE FAILED TO PROVIDE DETAILS OF SUCH PARTNERS. HOWEVER WE NOTE THAT THE LEARNED CIT (A) HAS GIVEN CATEGORICAL FINDING THAT THE ASSESSEE HAS SOLD THE LAND IN DISPUTE ALONG WITH 3 OTHER PARTIES AND THEREFORE THE SHARE OF THE ASSESSEE STANDS ONLY AT 25% OF THE COMMISSION INCOME. IN THIS REGARD, WE NOTE THAT THE ASSESSEE BEFORE THE LEARNED CIT (A) HAS FURNISHED THE PAN ALONG WITH ADDRESSES OF ALL THE OTHER 3 PARTIES. THEREFORE IN VIEW OF ABOVE DISCUSSED FACTS, THERE REMAINS NO AMBIGUITY TO THE FACT THAT THE ASSESSEES SHARE IS ONLY OF 1/4 TH I.E. 25% OF ENTIRE AMOUNT OF COMMISSION OF RS. 18 LACS. THUS ASSESSEE SHARE WILL BE OF RS. 4.5 LACS ONLY. 11.8 NOW THE NEXT QUESTION ARISES WHETHER THE IMPUGNED AMOUNT HAS ALREADY BEEN TO TAX IN THE INCOME OFFERED BY THE ASSESSEE BASED ON THE DIARY FOUND DURING THE SEARCH. IT IS IMPORTANT TO MENTIONED HERE THAT THE PROCEEDING IN THE CASE OF ASSESSEE WAS STARTED BASED ON DIARY FOUND DURING SEARCH WHERE RECEIPT ENTRIES OF RS. 2,71, 95,577/- FOR PERIOD A.Y. 2010-11 TO 2013-14 WERE RECORDED. SIMILARLY DIARY WAS ALSO CONTAINING THE DETAILS OF THE PAYMENT ENTRIES. ACCORDINGLY THE ASSESSEE IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 12 OFFERED INCOME ON THE BASIS OF PEAK CREDIT IN ALL THOSE ASSESSMENT YEARS DETAILED AS UNDER: A. YEAR PEAK CREDIT OFFERED (RS) 2010-11 NIL 2011-12 16,50,000/- 2012-13 9,26,000/- 2013-14 4,58,450/- TOTAL 30,34,450/- 11.9 THE ABOVE WORKING OF THE ASSESSEE WAS ACCEPTED BY THE AO IN PARA 4 OF HIS ORDER. NOW COMING TO THE ISSUE ON HAND, THE ASSESSEE IN AFFIDAVIT AND BEFORE LEARNED CIT (A) SUBMITTED THAT WHATEVER COMMISSION RECEIVED ON IMPUGNED LAND TRANSACTION WAS RECORDED IN DIARY. WE ARE ALSO CONSCIOUS TO THE FACT THAT OUT OF 3 LAND TRANSACTION ONE WAS EXECUTED IN THE A.Y. 2010-11 AND OTHER TWO WERE EXECUTED IN THE YEAR UNDER CONSIDERATION I.E. A.Y. 2011-12. MOREOVER, THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS OFFERED PEAK AMOUNT OF RS. 16,50,000/- TO TAX. THIS FACT HAS NOT BEEN DISPUTED BY THE REVENUE IN ITS APPEAL. THUS WE HOLD THAT AMOUNT OF COMMISSION HAS ALREADY BEEN OFFERED BY THE ASSESSEE IN THE AMOUNT OF INCOME OFFERED TO TAX ON PEAK CREDIT THEORY BASIS. MOREOVER, THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD ESTABLISHING THAT THE IMPUGNED WAS NOT PART AND PARCEL OF THE SEIZED DOCUMENT. HENCE, NO FURTHER ADDITION IS REQUIRED TO BE MADE. IN VIEW OF THE ABOVE WE DISMISS THE GROUND OF APPEAL RAISED BY THE REVENUE WHEREAS ASSESSEES GROUND IN CO IS ALLOWED. 12. THE NEXT GROUND RAISED BY THE REVENUE IS THAT THE LEARNED CIT (A) ERRED IN DELETING THE UNACCOUNTED COMMISSION OF RS. 68 LACS ONLY. 13. THE ASSESSEE IN THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT DATED 13 TH JUNE 2013 HAVE STATED THAT HE ALONG WITH 2 OTHER PERSON EARNED COMMISSION OF RS. 33 LACS IN LAND DEAL BEARING SURVEY NUMBER 409 AT JUNDAL VILLAGE AND HIS SHARE IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 13 WAS OF RS. 11 LACS. SIMILARLY ALONG 3 OTHER PERSONS EARNED COMMISSION OF RS. 35 LACS IN LAND DEAL BEARING SURVEY NUMBER 406, 407, 412, AND 413 AT JUNDAL VILLAGE. THUS HIS SHARE WAS OF RS. 8.75 LACS. THE ASSESSEE IN STATEMENT ALSO STATED THAT ALL THESE RECEIPTS ARE PART OF THE DAIRY. 13.1 HOWEVER, THE AO TREATED THE ENTIRE AMOUNT OF COMMISSION I.E. 68 LACS AS INCOME OF THE ASSESSEE ONLY AND ADDED TO HIS TOTAL INCOME WHICH CAME TO BE DELETED BY THE LEARNED CIT (A) BY OBSERVING AS UNDER: FACTS OF THE CASE, ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. THE AO HAS MADE THE ADDITIONS OF TOTAL BROKERAGE INCOME IN APPELLANT'S HANDS INSPITE OF THE FACT THAT HE STATED DURING THE COURSE OF SEARCH ITSELF THAT HE SHARED BROKERAGE WITH OTHER PARTNERS IN THESE LAND TRANSACTIONS. NO OTHER QUESTION WAS ASKED ABOUT THE NAME AND ADDRESSES OF THESE PARTIES DURING THE SEARCH, POST SEARCH OR DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, IT IS REASONABLE TO HELD THAT THE APPELLANT'S SHARE IN BROKERAGE SHOULD ONLY BE CONSIDERED AS HIS INCOME STATED BY HIM, HENCE TOTAL ADDITIONS MADE BY THE AO IN HIS HANDS ARE NOT JUSTIFIED. THE APPELLANT HAS FILED PROFIT & LOSS ACCOUNTS FOR THE PERIOD FROM 1.4.2010 TO 31.3.2014, IN WHICH EVERY YEAR HE HAS SHOWN BROKERAGE INCOME. FOR A.Y. 2011-12, HE HAS OFFERED BROKERAGE INCOME OF RS.11.35 LACS AND FOR A.Y. 2012-13, BROKERAGE INCOME OF RS.20.75 LAKHS HAS BEEN OFFERED. IN A.Y. 2013-14 BROKERAGE INCOME OF RS.6 LAKH AND FOR A.Y. 2014-15, BROKERAGE INCOME OF RS.5.75 LAKHS HAS BEEN OFFERED. AS THE APPELLANT HAS OFFERED BROKERAGE INCOME AND THERE WAS NO OTHER EVIDENCE TO SHOW THAT THE APPELLANT HAS EARNED INCOME OTHER THAN HE HAS SHOWN IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153C OF THE ACT, IT IS CONSIDERED THAT THE APPELLANT HAS RETURNED THE COMMISSION INCOME EARNED ON THESE TRANSACTIONS AS STATED IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH. NO OTHER EVIDENCE WAS FOUND WHICH PROVE EARNING OF BROKERAGE INCOME ON ANY OTHER LAND TRANSACTION. THEREFORE, THE ADDITIONS MADE BY THE AO ARE NOT FOUND JUSTIFIED, HENCE, THESE ARE DELETED. THIS GROUND OF APPEAL IS ALLOWED. 14. BEING AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 15. THE LEARNED DR BEFORE US SUBMITTED THAT THERE IS NO EVIDENCE AVAILABLE ON RECORD SUGGESTING THAT THE IMPUGNED INCOME WAS APPEARING IN THE SEIZED DOCUMENTS. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO. 16. ON THE OTHER THE LEARNED AR CONTENDED THAT THE IMPUGNED INCOME HAS ALREADY BEEN CONSIDERED IN THE AMOUNT OF INCOME CALCULATED BASED ON PEAK CREDIT. IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 14 THEREFORE, NO FURTHER ADDITION CAN BE MADE. THE LEARNED AR VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT (A). 17. WE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY, THE AMOUNT IN DISPUTE WAS VERY MUCH APPEARING IN THE DIARY SEIZED DURING THE SEARCH PROCEEDINGS. THE INCOME BASED ON SEIZED DIARY HAS ALREADY BEEN OFFERED TO TAX BY THE ASSESSEE CONSIDERING THE PEAK AMOUNT. THE PEAK CREDIT THEORY WAS APPLIED FOR THE REASON THAT THERE WERE MANY ENTRIES REFLECTING THE RECEIPT OF CASH AS WELL AS THE PAYMENT OF CASH. THE IMPUGNED AMOUNT OF COMMISSION WAS ALSO VERY MUCH APPEARING AS CASH RECEIPT IN THE IMPUGNED DIARY. IT WAS ALSO CONTENDED BY THE ASSESSEE THAT HIS SHARE IN THE IMPUGNED LAND TRANSACTION DEALS STANDS AT 8.75 LACS AND 11 LACS ONLY. THIS CONTENTION OF THE ASSESSEE WAS NOWHERE DOUBTED BY THE AUTHORITIES BELOW WHICH IS ALSO APPEARING IN QUESTION NO. 27 TO 34 OF THE STATEMENT FURNISHED UNDER SECTION 131 OF THE ACT. THE RELEVANT EXTRACT OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER: 'AS REPLIED TO QUESTION NO.26 THE AMOUNT OF 75,00,000/- RECEIVED BY ME FOR SALE OF SURVEY NO.389 OF ZUNDAL AND 315/316 OF CHANDKHEDA DURING THE PERIOD 01/04/2009 TO 31/12/2010 IS ENTERED IN THIS DIARY BY MY SON SHRI TUSHAR ON MY INSTRUCTION. I DO NOT KNOW THE DETAILS OF DEBIT SIDE ENTRIES AND THE SAME SHALL BE FURNISHED LATER.' ON BEING ASKED THAT THE TOTAL OF CREDIT SIDE ENTRY OF THIS DIARY COMES TO RS.2,71,95,577/- AND YOU HAVE STATED THAT RS.75,00,000/- IS RECEIVED BY YOU. THEN PLEASE EXPLAIN THE SOURCE OF BALANCE CREDIT SIDE ENTRY, THE ASSESSES STATED THAT, 'I HAVE RECEIVED AS COMMISSION OF RS. 35,00,000/- | FOR LAND SOLD AT SURVEY NO.406, 4O7, 412 & 413 AT JIINDAL VILLAGE AND SURVEY NO.409 AT JUNDAL I HAVE RECEIVED AS COMMISSION RS.33,00,000/-. IN THIS AMOUNT OF RS.33,00,000/-WE WERE THREE PARTNERS THREE PARTNERS AND IN MY SHARE RS. 11,00,000 RECEIVED I DURING 2O1O-11 AND REMAINING ENTRY PRESENTLY I DON'T KNOW AND DETAILS SUBMITTED LATER ON OF THE SAME. THE CREDIT SIDE ENTRIES INCLUDE COMMISSION AND INTEREST ALSO. 17.1 SINCE THE IMPUGNED AMOUNT OF COMMISSION HAS ALREADY BEEN CONSIDERED BY THE AO IN THE WORKING OF PEAK BALANCE BASED ON THE DIARY SEIZED, THEREFORE THERE CANNOT BE ANY SEPARATE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. IF IT IS DONE SO, IT WOULD LEAD TO THE DOUBLE ADDITION WHICH IS UNWARRANTED UNDER THE PROVISIONS IT(SS)A NO.121/AHD/2018 WITH C.O NO.110/AHD/2019 A.Y. 2011-2012 15 OF LAW. HENCE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 17.2 IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED WHEREAS THE CO FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 29/09/2021 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 29/09/2021 MANISH