The DCIT, Central Circle-1(2), Ahmedabad V. Shri Abhalbhai Arjanbhai Jadeja, Porbandar

ITSSA 174/AHD/2009

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8284 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-07-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 09-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJNISH VOHRA
• Keywords: Loose papers; Document seized; Corroborative evidences; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.174, 175 & 176 / AHD/2009 (ASSESSMENT YEAR 2003-04, 2004-05 & 2005-06) DCIT, CC-1(2), AHMEDABAD VS. SHRI ABHALBHAI ARJANBHAI JADEJA, AT & POSTS MEMNAWADA, DISTT. PORBANDAR PAN/GIR NO. : ACCPJ2090D C.O. NO. 6, 7 & 8/AHD/2010 (ASSESSMENT YEAR 2003-04, 2004-05 & 2005-06) SHRI ABHALBHAI ARJANBHAI JADEJA VS. DCIT, CC-1(2) , AT & POST MEMNAWADA, AHMEDABAD DISTT. PORBANDAR (APPELLANT) .. (RESPONDENT) ASSESSEE BY: SHRI RAJNISH VOHRA, SR. DR RESPONDENT BY: SHRI S N SOPARKAR, SR. ADV. SHRI P M MEHTA, AR. DATE OF HEARING: 03.07.2012 DATE OF PRONOUNCEMENT: 31.08.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THESE APPEALS ARE FILED BY THE REVENUE AND THE CRO SS OBJECTION BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THREE SEPAR ATE ORDERS OF LD. CIT(A) I, AHMEDABAD ALL DATED 05.10.2009 FOR THE AS SESSMENT YEARS 2003-04, 2004-05 & 2005-06. ALL THESE APPEALS AND THE C.O. WERE HEARD I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 2 TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE CROSS OBJECTION FILED BY T HE ASSESSEE. IN ALL THE THREE CROSS OBJECTIONS, THE ONLY GROUND TAKEN B Y THE ASSESSEE IS IDENTICAL AND HENCE, WE REPRODUCE GROUND OF C.O. FR OM C.O. NO.06/AHD/2010 FOR THE ASSESSMENT YEAR 2003-04, WHI CH IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN NOT UPHOLDING THE ASSESSEES PLEA THAT IT WAN TO AT ALL A FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 153C. 3. IT WAS SUBMITTED BY THE LD. A.R. THAT DATE OF AG REEMENT IS 21.10.2002 AND THE AGREEMENT IS AVAILABLE ON PAGE 1 10 OF THE PAPER BOOK. DATE OF SEARCH IS 09.02.2005 AND THE DOCUMENT IS NO T BELONGING TO THE ASSESSEE AND, THEREFORE, THE INVOKING OF PROVISIONS OF SECTION 153C IS NOT JUSTIFIED. HE PLACED RELIANCE ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF VIJAYBHAI N. CHANDRAN I VS ACIT AS REPORTED IN 333 ITR 436. AS AGAINST THIS, IT WAS S UBMITTED BY THE LD. D.R. THAT THE AGREEMENT WAS DULY SIGNED BY THE ASSE SSEE AND HENCE, BELONGING TO HIM. REGARDING THE RELIANCE PLACED BY THE LD. A.R. ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N CHANDRANI (SUPRA), IT WAS SUBMITTED BY HIM THAT THE FACTS ARE DIFFERENT AND THEREFORE, THIS JUDGMENT IS NOT APPLICABLE IN THE P RESENT CASE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. FIRST OF ALL, WE EXAMINE THE FACTUAL ASPECT AS TO WHETHER THE DOC UMENTS SEIZED IN THE COURSE OF SEARCH WERE BELONGING TO THE ASSESSEE OR NOT. THE DOCUMENT IN QUESTION WAS THE AGREEMENT DATED 21.10.2002, COPY O F WHICH IS AVAILABLE ON PAGES 110-117 OF THE PAPER BOOK. THIS AGREEMENT IS BETWEEN SHRI AMRATBHAI TALSHIBHAI DESAI BEING THE PARTY OF ONE P ART AND SHRI VIKAS I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 3 ARVINDBHAI SHAH AND ABHABHAI ARJANBHAI JADEJA I.E. THE PRESENT ASSESSEE BEING THE OTHER PART. THIS AGREEMENT WAS IN RELATI ON TO SALE OF LAND OWNED BY PARTY OF ONE PART TO THE PARTIES OF OTHER PART FOR A CONSIDERATION OF RS.1,65,73,410/-. THE AGREEMENT IS DULY SIGNED BY THE ASSESSEE AND OTHER TWO PERSONS AND IT WAS DULY NOTARIZED ALSO. CONSIDERING THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT IT CANNOT BE SAID THAT THIS DOCUMENT IS NOT BELONGING TO THE ASSESSEE AND, THEREFORE, TH IS OBJECTION OF THE ASSESSEE IS NOT VALID. - REGARDING THE RELIANCE PLACED BY THE LD. A.R. ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N. CHANDRANI (SUPRA), WE FIND THAT THIS IS NOTED BY HONBLE GUJA RAT HIGH COURT IN THAT CASE THAT 3 LOOSE PAPERS RECOVERED DURING SEARCH PR OCEEDINGS DO NOT BELONG TO THE PETITIONER. IT IS FURTHER NOTED THAT IT MAY BE THAT THERE IS A REFERENCE TO THE PETITIONER HAVING HIS NAME REFLECT ED IN THE LISTS UNDER THE HEADING SAMUTKARS MEMBERS AND THE DETAILS ARE GIVEN UNDER DIFFERENT COLUMN AGAINST THE NAME OF THE PETITIONERS ALONG WI TH OTHER MEMBERS BUT IT IS NOBODYS CASE THAT THE SAID DOCUMENT BELONGS TO THE PETITIONER. IN THE PRESENT CASE, NOT ONLY THE NAME OF THE ASSESSEE IS APPEARING IN THE SEIZED PAPERS BUT IT IS AN AGREEMENT BETWEEN THE AS SESSEE ALONG WITH ONE OTHER PERSON TO THE SALE OF LAND AND THIS AGREEMENT IS DULY SIGNED BY THE ASSESSEE ALSO AND, THEREFORE, THE DOCUMENT FOUND IN THE COURSE OF SEARCH IS DEFINITELY BELONGING TO THE ASSESSEE AND, THEREFORE , THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE. - IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND A NY MERIT IN THE GROUND RAISED BY THE ASSESSEE IN THESE THREE CROSS OBJECTIONS AND HENCE, THE SAME IS REJECTED IN ALL THE THREE ASSESSMENT YE ARS. I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 4 5. NOW, WE TAKE UP THE APPEALS FILED BY THE REVENUE . THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: I.T.A.NO. 174/AHD/2009 (ASSESSMENT YEAR 2003-04): 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.15 LACS WITHOUT APPRECIATING THE FAC T THAT THE AFORESAID SUM WAS UNACCOUNTED RECEIPT IN THE HANDS OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A. O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. I.T.A.NO. 175/AHD/2009 (ASSESSMENT YEAR 2004-05): 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.42.40 LACS WITHOUT APPRECIATING THE FACT THAT THE AFORESAID SUM WAS UNACCOUNTED RECEIPT IN THE HANDS OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A. O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. I.T.A.NO. 176/AHD/2009 9AY 2005-06): 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.91.50 LACS WITHOUT APPRECIATING THE FACT THAT THE AFORESAID SUM WAS UNACCOUNTED RECEIPT IN THE HANDS OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A. O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 6. IT WAS AGREED BY BOTH THE SIDES THAT IN ALL THE THREE YEARS, FACTS ARE SIMILAR AND HENCE, APPEAL FOR ALL THE THREE YEARS C AN BE DECIDED ON THE BASIS OF THE FACTS OF ANY ONE YEAR AND HENCE, WE DI SCUSS THE FACTS FOR THE ASSESSMENT YEAR 2003-04. I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 5 7. BRIEF FACTS TILL THE ASSESSMENT STAGE ARE NOTED BY LD. CIT(A) IN PARA 4 OF HIS ORDER FOR THE ASSESSMENT YEAR 2003-04, WHI CH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 4. SO FAR AS THE GROUNDS OF APPEAL RELATED TO ADDI TIONS OF RS.15 LAKH ARE CONCERNED, THE BASIS OF THE ADDITION AS PE R THE A.O'S NOTICE U/S.142(1) DATED 19-12-2006 WAS NARRATED AS UNDER: '1) PLEASE REFER TO PAGE NO. 39 OF A-195, BACK SIDE OF PAGE 8 OF A-171 AND 39 OF A-62 ON WHICH AMOUNT OF RS.3,000/-, RS. 15,50,000/- AND RS.7,000/- RESPECTIVELY ARE SHOWN T O BE RECEIVED BY YOU. PLEASE ALSO REFER TO ANS. NO. 38, 64 AND 73 OF VIKAS A. SHAH RECORDED U/S. 131(1 A) OF THE ACT BEFORE ADIT, MEHSANA. IN THIS REGARD, YOU ARE REQUIRED TO SHOW CAUSE THAT WH Y THE SAME SHOULD NOT BE ADDED IN YOUR TOTAL INCOME AS UNACCOU NTED RECEIPT (A.Y.03-04)' THE CONCLUSION REACHED BY THE A.O. IN ASSESSMENT OR DER ARE AS UNDER: '(A) THE ASSESSEE HAS DISOWNED THE TRANSACTION NOTED ON PAGE NO. 8 BACKSIDE OF A-62, SEIZED FROM THE CUSTODY OF SHRI VIKAS A. SHAH. HE FURTHER CLAIMED THAT THE AMOUNT .IS STATED TO HAVE BEEN PAID BACK AND THEREFORE, IT AMOUNTS TO DUPLICATION OF ENTRIES BEING POSTING OF ENTRIES MADE ELSEWHERE IN THE MATERIAL R EFERRED TO THE LETTER/NOTICE ADDRESSED TO ME. IN THIS REGARD, IT C AN BE SAID THAT SHRI VIKAS A. SHAH HAS CATEGORICALLY STATED IN HIS STATE MENT RECORDED U/S. 131(1 A) OF THE ACT THAT AMIT JADEJA - RS.15,5 0.000/- IS THE DETAILS OF CASH PAID BACK TOWARDS CANCELLATION OF D EAL IN RESPECT OF SURVEY NO. 183 OF VILLAGE GANPATHPURA. IT MEANS, TH E ASSESSEE HAD BEEN ENTERED INTO TRANSACTION WITH VIKAS A. SHAH FO R THE LAND AT SURVEY NO.183 OF VILLAGE GANPATHPURA, FOR WHICH HE HAD PAID RS.15,50,000/- TO VIKAS A. SHAH. SINCE THE SAID TRA NSACTION COULD NOT BE MATERIALIZED SHRI VIKAS A. SHAH HAS REPAID T HE AMOUNT TO ABHEL A. JADEJA (NICKNAME AMIT JADEJA) . SINCE THE ASSESSEE HAS NOT DISCLOSED SAID RECEIPT TO THE DEPARTMENT AND IT IS ALSO NOT CLEAR FROM THE SEIZED PAPER THAT IN WHICH YEAR THE ASSESS EE HAS PAID SAID AMOUNT TO VIKAS A. SHAH, AMOUNT RECEIVED BACK IN TH E A.Y. 2003- 04 IS CONSIDERED AS UNACCOUNTED RECEIPT OF THE ASSE SSEE FOR THE YEAR IN QUESTION. (B) SO FAR AS CONTENTION MADE BY THE ASSESSEE REGARDING QUESTIONING THE EVIDENTIARY VALUE OF SEIZED PAPERS AND GENUINENESS OF TRANSACTION NOTED ON SAID PAPER, IT CAN BE SAID THAT THE I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 6 TRANSACTIONS NOTED IN THE SEIZED PAPERS WERE DULY C ONFIRMED BY SHRI VIKAS A. SHAH IN HIS ANSWER NO. 64 OF THE STAT EMENT RECORDED U/S. 131(1 A) OF THE ACT. FURTHER, FROM THE MOU DTD . 21.10.2002 DULY SIGNED BY THE ASSESSEE AND SHRI VIKAS A. SHAH AND AMRUT D. DESAI AND OTHER SEIZED PAPERS, IT IS CLEARLY ESTABL ISHED THAT THE ASSESSEE HAS BEEN ENTERED INTO VARIOUS TRANSACTIONS WITH SHRI VIKAS A. SHAH AND HE HAS BEEN CLOSELY ASSOCIATED WITH SHR I VIKAS A. SHAH AND MANSI BUILDERS AND ALSO SEIZED PAPERS AS R EFERRED ARE BELONG TO THE ASSESSEE. IN THE CASE OF ROGER ENTERPRISES (P.) LTD. VS. DEPU TY COMMISSIONER OF INCOME-TAX, HONOURABLE IT AT, DELHI (88 ITD 95 DELHI B BENCH) HAS HELD THAT ANY STATEMENT OF A PERSON WHO IS ONE OF THE PARTY OF THE TRANSACTION/TRANSACTIONS HA S EVIDENTIARY VALUE AND THEREFORE CAN NOT BE IGNORED. HERE IN THE INSTANT CASE ONE OF THE PARTIES OF TRANSACTION SHRI VIKAS A. SHAH HA S CATEGORICALLY STATED THAT HE HAS PAID AN AMOUNT OF RS.15,50,000/- TO AMIT JADEJA, TOWARDS CANCELLATION OF DEAL IN RESPECT OF LAND AT SURVEY NO. 183 OF VILLAGE GANPATHPURA. THEREFORE, IT CAN BE SAFELY CO NCLUDED THAT SEIZED PAPERS IS ALSO BELONG TO THE ASSESSEE AND TR ANSACTION NOTED ON THAT ARE GENUINE. (C) AS THE ASSESSEE HAS NOT DISCLOSED SAID RE CEIPT TO THE DEPARTMENT, THE SAME IS REQUIRED TO BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNACCOUNTED RECEIPT.' 8. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A). LD. CIT(A) HAS DELETED THE ADDITION AN D NOW, THE REVENUE IS IN APPEAL BEFORE US. 9. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. HE DRE W OUR ATTENTION TO PAGE 6 OF THE ASSESSMENT ORDER WHERE IT IS NOTED BY THE A.O. THAT SHRI VIKAS A. SHAH HAS CATEGORICALLY STATED IN HIS STATE MENT MADE U/S 131(1A) OF THE ACT THAT SHRI AMIT JADEJA RS.15.50 LACS IS A DETAILS OF CASH PAID BACK TOWARDS CANCELLATION OF THE DEAL IN RESPECT OF SURVEY NO.183 OF VILLAGE GANPATPURA. HE ALSO PLACED RELIANCE ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF ROZAR ENTERPRISE PVT. LTD. VS DCIT AS REPORTED IN 88 ITD 95, WHEREIN IT WAS HELD THAT ANY STATEMENT O F A PERSON WHO IS ONE I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 7 OF THE PARTIES TO THE TRANSACTION HAS EVIDENTIARY V ALUE AND, THEREFORE, CANNOT BE IGNORED. HE HAS ALSO GIVEN A FINDING THA T THE ASSESSEE HAD RECEIVED THIS AMOUNT OF RS.15.50 LACS FROM VIKAS A SHAH AS DALALI/BROKERAGE. 10. AS AGAINST THIS, LD. A.R. SUPPORTED THE ORDER O F LD. CIT(A). HE ALSO SUBMITTED THAT NO CROSS EXAMINATION OF MR. SHA H WAS ALLOWED AND FOR THIS REASON ALSO, HIS STATEMENT CANNOT BE RELIE D UPON. HE ALSO SUBMITTED THAT NO ADDITION CAN BE MADE ON THE BASIS OF ENTRY IN A DIARY OF A THIRD PERSON AND IN SUPPORT OF THIS CONTENTION, R ELIANCE WAS PLACED ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERE D IN THE CASE OF KRISHNA TEXTILES VS CIT AS REPORTED IN 310 ITR 227. HE ALSO DRAWN OUR ATTENTION TO PAGE 6 OF THE ORDER OF LD. CIT(A) WHER E HE HAS CONSIDERED THE ORDER OF LD. CIT(A) PASSED IN THE CASE OF AMIT KANTILAL GURU AND AJAY SINGH C CHUDASAMA. HE FURTHER SUBMITTED THAT THE ORDER OF LD. CIT(A) IN THE CASE OF AMIT KANTILAL GURU WAS UPHELD BY THE TRIBUNAL IN I.T.A.NO. 2292 & 2293/AHD/2007 DATED 26.03.2010 AND HE SUBMITTED A COPY OF THIS TRIBUNAL DECISION. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGEMENTS CITED BY BOTH THE SIDES. WE FIND THAT T HIS ISSUE WAS DECIDED BY LD. CIT(A) AFTER OBTAINING REMAND REPORT FORM TH E A.O. AND HIS DECISION IS AS PER PARAS 6, 7 & 8 AND THEREFORE, TH ESE PARAGRAPHS FORM THE ORDER OF LD. CIT(A) ARE REPRODUCED BELOW FOR THE SA KE OF READY REFERENCE: 6. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE FAC TS, THE REASONING GIVEN BY THE ASSESSING OFFICER AND THE SUBMISSIONS MADE BY THE APPELLANT. WITH REGARD TO THE NOTINGS ON PAGE 39 OF A-195, SHRI VIKAS ARVINDBHAI SHAH HIMSELF STATED THAT THIS IS I N THE NATURE OF CASH REPORTS OF MANSI BUILDERS AND VIKAS A. SHAH WH ICH IS ONLY A I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 8 PROPOSED WORKING. THIS ANSWER GIVEN BY SHRI VIKAS A RVINDBHAI SHAH CANNOT BE INTERPRETED TO ASSUME THAT SUM OF RS .3,000 WAS PAID TO THE ASSESSEE. WITH REGARD TO THE NOTINGS ON PAGES OFA-171, SHRI VIKAS ARVINDBHAI SHAH STATED THAT THIS REPRESE NTS CASH PAID BACK TOWARDS CANCELLATION OF DEAL. IT IS NOWHERE ST ATED THAT THE SAID AMOUNT WAS PAID TO THE APPELLANT EITHER AS DALALI O R BROKERAGE. THERE IS NO OTHER MATERIAL TO SHOW THAT THE APPELLA NT EVER ENTERED INTO ANY DEAL IN RESPECT OF SURVEY NO.183. EVEN IF FOR THE SAKE OF ARGUMENT, IT IS ASSUMED THAT THE AMOUNT OF RS. 15,5 0,000 REPRESENTS PAYMENT ON ACCOUNT OF CANCELLATION OF DE AL, SUCH AMOUNT CANNOT BE CONSIDERED AS APPELLANT'S INCOME C HARGEABLE TO TAX. WITH REGARD TO PAGE NO.39 OF A-62, NO CONVINCI NG REPLY WAS GIVEN BY SHRI VIKAS ARVINDBHAI SHAH AND HE ONLY STA TED THAT PAGES 31 TO 43 IS SUMMARY OF CERTAIN PAYMENTS AND THAT HE WILL RECONCILE THE SAME IN THE FINAL ACCOUNTS. NO SUCH RECONCILIAT ION HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER. IN MY V IEW, THERE IS NO BASIS WHATSOEVER FOR THE ASSESSING OFFICER'S ASSUMP TION THAT A SUM OF RS.15,50,000 WAS PAID TO THE APPELLANT BY WAY OF DALALI OR BROKERAGE. 7. IN SO FAR AS THE SECOND ASPECT IS CONCERNED, I H AVE CONSIDERED THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT. IT IS AN ACCEPTED FACT THAT THERE WAS NO SEARCH IN THE CASE OF THE APPELLA NT AND NO DOCUMENT WAS SEIZED. THE SEIZURE WAS IN THE CASE OF VIKAS SHAH. IN THE CIRCUMSTANCES, THE DECISION OF THE JURISDICT IONAL ITAT IN THE CASE OF PRARTHANA CONSTRUCTION AND PRABHAT OIL MILL S REFERRED TO ABOVE ARE SQUARELY APPLICABLE TO THE FACTS OF THE P RESENT CASE. FURTHER, THE DECISION OF HON'BLE SUPREME COURT IN T HE CASE OF V.C. SHUKA, SUPRA, IS RELEVANT WHEREIN IT IS HELD AS UND ER: 'FROM A PLAIN READING OF S. 34, IT IS MANIFEST THAT TO MAKE AN ENTRY RELEVANT THEREUNDER IT MUST BE SHOWN THAT IT HAS BE EN MADE IN A BOOK, THAT BOOK IS A BOOK OF ACCOUNT AND THAT BOOK OF ACCOUNT HAS BEEN REGULARLY KEPT IN THE COURSE OF BUSINESS. FROM THE ABOVE SECTION AT IS ALSO MANIFEST THAT EVEN IF THE ABOVE REQUIREMENTS ARE FULFILLED AND THE ENTRY BECOMES ADMISSIBLE AS RELEV ANT EVIDENCE, STILL, THE STATEMENT MADE THEREIN SHALL NOT ALONE B E SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS THUS SEEN THAT WHILE THE FIRST PART OF THE SECT/ON SPEAKS OF THE R ELEVANCY OF THE ENTRY AS EVIDENCE, THE SECOND PART SPEAKS; IN A NEG ATIVE WAY, OF ITS EVIDENTIARY VALUE FOR CHARGING A PERSON WITH A LIAB ILITY. 'BOOK' ORDINARILY MEANS A COLLECTION OF SHEETS OF PAPER OR OTHER MATERIAL, BLANK, WRITTEN, OR PRINTED, FASTENED OR BOUND TOGET HER SO AS TO FORM I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 9 A MATERIAL WHOLE. LOOSE SHEETS OR SCRAPS OF PAPER C ANNOT BE TERMED AS 'BOOK' FOR THEY CAN BE EASILY DETACHED AND REPLA CED' 8. MY PREDECESSOR IN OFFICE HAS AFTER CONSIDERING T HE ABOVE REFERRED DECISION IN SIMILAR CIRCUMSTANCES, DELETED THE ADDITION MADE IN THE CASE OF AMIT KANTILAL GURU WHICH WAS MA DE BASED ON THE SEIZED DOCUMENTS FROM THIRD PERSON AND IT WAS H ELD THAT NO ADDITION COULD BE MADE ON THE BASIS OF NOTINGS MADE IN THE SEIZED DOCUMENTS OF THIRD PERSON. IN THE PRESENT CASE TOO, ENTRIES FOUND FROM THE BOOKS/ DOCUMENTS OF THIRD PARTY, DOES NOT CONCLUSIVELY PROVE THAT THE AMOUNTS MENTIONED IN THE DOCUMENTS, IN THE ABSENCE OF OTHER CORROBORATIVE EVIDENCE, PERTAINS TO THE AP PELLANT. AS MENTIONED IN THE INSTANT APPELLATE ORDER, IN THE RE MAND PROCEEDINGS TOO, NO FURTHER CORROBORATIVE EVIDENCES HAVE BEEN G ATHERED SO AS TO JUSTIFY THE ADDITIONS. SUCH ADDITIONS COULD NOT BE MADE ON THE BASIS OF PRESUMPTIONS AND ON THE BASIS OF MERE STATEMENTS OF THIRD PARTY, PARTICULARLY WHEN THE SEIZED DOCUMENTS WERE DISCOVE RED FROM THIRD PARTY'S PREMISES. ACCORDINGLY, I AGREE WITH THE APP ELLANT'S SUBMISSION THAT NO ADDITION COULD BE MADE IN THE HA NDS OF THE APPELLANT BASED ON LOOSE' PAPERS FOUND FROM VIKAS S HAH. THE ADDITION OF RS.15.00 LAKHS IS DELETED. 12. FROM THE ABOVE PARAGRAPHS OF THE ORDER OF LD. C IT(A), WE FIND THAT HE HAS DELETED THIS ADDITION ON THIS BASIS THAT SHR I VIKAS A SHAH STATED THAT THIS REPRESENTS CASH PAID BACK TOWARDS CANCELL ATION OF THE DEAL AND IT IS NOWHERE STATED THAT THE SAID AMOUNT WAS PAID TO THE ASSESSEE EITHER AS DALALI OR BROKERAGE. THIS FINDING IS ALSO GIVEN BY HIM THAT THERE IS NO OTHER MATERIAL TO SHOW THAT THE ASSESSEE HAS ENTERE D INTO ANY DEAL IN RESPECT OF SURVEY NO.183 AND EVEN IF FOR THE SAKE O F ARGUMENT, IT IS ASSUMED THAT THIS AMOUNT OFRS.15.50 LACS REPRESENTS PAYMENT ON ACCOUNT OF CANCELLATION OF DEAL, SUCH AMOUNT CANNOT BE CONS IDERED AS ASSESSEES INCOME CHARGEABLE TO TAX. LD. D.R. COULD NOT CONTR OVERT THESE FINDINGS OF LD. CIT(A) AND IT IS ALSO SEEN IN THE ASSESSMENT OR DER ALSO, THE A.O. HAS ALSO NOTED ON PAGE 6 OF THE ASSESSMENT ORDER THAT A S PER THE STATEMENT OF SHRI VIKAS A SHAH, HE HAS CATEGORICALLY STATED THAT THE AMOUNT OF I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 10 RS.15.50 LACS AGAINST THE NAME OF AMIT JADEJA IS A DETAIL OF CASH PAID BACK TOWARDS CANCELLATION OF THE DEAL IN RESPECT OF SURVEY 183 OF VILLAGE GANPATPURA AND, THEREAFTER, THE A.O. HAS JUMPED TO THE CONCLUSION THAT THIS RECEIPT IN THE HANDS OF THE ASSESSES IS ON ACC OUNT OF DALALI/BROKERAGE WITHOUT INDICATING ANY BASIS FOR HOLDING SO. REGAR DING THE TRIBUNAL DECISION RENDERED IN THE CASE OF ROZER ENTERPRISES, WE FIND THAT IN THIS TRIBUNAL DECISION, IT WAS HELD THAT ANY STATEMENT O F A PERSON WHO IS ONE OF THE PARTIES OF THE TRANSACTION, HAS EVIDENTIARY VALUE AND, THEREFORE, CANNOT BE IGNORED. WE FIND THAT LD. CIT(A) HAS NOT IGNORED THE STATEMENT OF SHRI VIKAS A SHAH BUT AS PER LD. CIT(A ), EVEN AS PER THE STATEMENT OF SHRI VIKAS A SHAH, THE AMOUNT RECEIVED IN THE HANDS OF THE ASSESSEE IS ON ACCOUNT OF CASH PAID BACK BY THAT PE RSON TOWARDS CANCELLATION OF DEAL IN RESPECT OF SURVEY 183 OF VI LLAGE GANPATPURA AND IT IS NOWHERE SAID BY HIM THAT THIS IS ON ACCOUNT OF P AYMENT OF DALALI/BROKERAGE TO THE ASSESSEE. HENCE, THIS TRIB UNAL DECISION CITED BY THE LD. D.R. IS NOT OF ANY HELP TO THE REVENUE IN T HE PRESENT CASE. WE FIND THAT EVEN AS PER THE STATEMENT OF SHRI VIKAS A SHAH, THIS PAYMENT BY HIM TO THE ASSESSEE IS NOT ON ACCOUNT OF DALALI/BRO KERAGE AND THE SAME IS ON ACCOUNT OF CANCELLATION OF THE DEAL, THERE IS N O BASIS OF ASSUMPTION THAT THIS RECEIPT OF THE ASSESSEE IS AN INCOME IN T HE HANDS OF THE ASSESSEE. WE ALSO FIND THAT LD. CIT(A) HAS RELIED UPON THE JU DGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF V.C. SHUKLA AS R EPORTED IN 3 SCC 410. RELIANCE ON THIS JUDGMENT WAS PLACED BY LD. CIT(A) IN SUPPORT OF THIS CONTENTION THAT SINCE THERE WAS NO SEARCH IN T HE CASE OF THE ASSESSEE AND NO DOCUMENT WAS SEIZED AND THE SEIZURE WAS IN T HE CASE OF VIKAS A SHAH, NO ADDITION CAN BE MADE IN THE HANDS OF THE A SSESSEE. THIS IS ALSO RELEVANT THAT A CLEAR FINDING IS GIVEN BY LD. CIT(A ) THAT EVEN IN REMAND I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 11 PROCEEDINGS, NO FURTHER CORROBORATIVE EVIDENCE HAVE BEEN GATHERED BY THE A.O. TO JUSTIFY THE ADDITION MADE BY HIM. WE HAVE ALREADY NOTED THAT EVEN AS PER THE STATEMENT OF SHRI V.A. SHAH, THE AM OUNT RECEIVED BY THE ASSESSEE WAS ON ACCOUNT OF REFUND OF CANCELLATION O F DEAL AND NOT ON ACCOUNT OF DALALI/BROKERAGE. CONSIDERING ALL THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A) FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. 13. IN ASSESSMENT YEAR 2005-06, THE FACTS ARE SLIGH TLY DIFFERENT. IN THIS YEAR, THE ADDITION OF RS.91.50 LACS WAS MADE ON ACC OUNT OF ALLEGED PAYMENT OF ON MONEY. IN THIS YEAR ALSO, THE A.O. W AS OF THE OPINION THAT ADDITION OF RS.44.80 LACS IS REQUIRED TO BE MADE IN RESPECT OF PAYMENT BY SHRI VIKAS A SHAH AS DALALI/BROKERAGE BUT SINCE ADD ITION RS.91.50 LACS WAS MADE ON ACCOUNT OF ON MONEY, A SEPARATE ADDITIO N OF RS.44.80 LACS WAS NOT MADE IN THIS YEAR. THE ADDITION OF RS.91. 50 LASS IN THIS YEAR WAS DELETED BY LD. CIT(A) ON THIS BASIS THAT EXCEPT THE NOTING ON THE REFERENCE PAPER AND THE STATEMENT OF SHRI VIKAS A S HAH, THERE IS NO OTHER CORROBORATIVE MATERIAL/EVIDENCE TO SUGGEST THAT THE ASSESSEE PAID ON MONEY OF RS.92 LACS. IT IS FURTHER NOTED BY LD. CI T(A) THAT SHRI VIKAS A SHAH STATED THAT HE IS YET TO RECEIVE RS.32 LACS FO RM THE ASSESSEE, WHICH APPEARS TO BE IMPROBABLE BECAUSE NO PRUDENT MAN COU LD LEAVE SUCH A HUGE AMOUNT OUTSTANDING WHEN THE SALE TRANSACTION I S REGISTERED. HE FURTHER NOTED THAT THE LAND WAS PURCHASED BY THE AS SESSEE AND KANTIBHAI JOINTLY AND AS PER THE DOCUMENTS FOR PURCHASE WHICH IS REGISTERED WITH THE SUB-REGISTRAR AT A VALUE OF RS.9 LACS AND THIS VALU ATION HAS NOT BEEN CHALLENGED BY THE STAMP DUTY AUTHORITY AND, THEREFO RE, THERE IS NO REASON FOR PRESUMPTION THAT THE ASSESSEE HAS MADE ANY PAYM ENT IN EXCESS OF THE SAID PURCHASE PRICE OF RS. 9 LACS. FINALLY, LD. CI T(A) HAS DELETED THIS I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 12 ADDITION BY STATING THAT IN THE ABSENCE OF ANY OTH ER CORROBORATIVE EVIDENCE AND IN VIEW OF THE FACT THAT IN THE REMAN D PROCEEDING ALSO, NO FURTHER CORROBORATIVE EVIDENCE HAVE BEEN GATHERED T O JUSTIFY THE ADDITION, THE ADDITION CANNOT BE MADE ON THE BASIS OF PRESUMP TION AND ON THE BASIS OF THE STATEMENT OF ANY THIRD PARTY AND PARTICULAR LY WHEN SEIZED DOCUMENT WAS RECOVERED FORM THIRD PARTYS PREMISES. CONSIDERING ALL THESE FACTS, WE ARE OF THE CONSIDERED OPINION, NO I NTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A) IN RESPECT OF THE ADDITI ON MADE BY THE A.O. OF RS.91.50 LACS ON ACCOUNT OF ALLEGED ON MONEY PAYMEN T BY THE ASSESSEE OR IN RESPECT OF ADDITION OF RS.44.80 LACS ULTIMATELY NOT MADE BY THE A.O. IN RESPECT OF RECEIPT OF DALALI/BROKERAGE BY THE ASSE SSEE FROM SHRI VIKAS A SHAH. HENCE, IN THIS YEAR ALSO, WE DECLINE TO INTE RFERE IN THE ORDER OF LD. CIT(A). 14. IN THE RESULT, THE REVENUES APPEALS ARE DISMIS SED IN ALL THE THREE YEARS. 15. IN THE COMBINED RESULT, AL THE THREE CROSS OBJE CTIONS OF THE ASSESSEE AND ALL THE THREE APPEALS OF THE REVENUE ARE DISMIS SED. 16. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD I.T.A.NO174,175,176 /AHD/2009 C.O.NOS.6,7,8/AHD/2010 13 1. DATE OF DICTATION 22/08/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/08/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 31/08/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/8/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/08/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .