M/s. Shri Ram Krishan Gupta, New Delhi V. DCIT, New Delhi

ITSSA 63/DEL/2008

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9294 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 25-07-2013
• Assessment Year: misc
• Appeal Filed On: 21-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VEENA JOSHI
• Assessee Lawyers: RANO JAIN CAS
• Keywords: Unexplained investment; Income from undisclosed sources; Document seized; Opportunity of being heard; Principle of natural justice; Valuation report; Block assessment; Documents seized
• Section: 142(1); 131; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER IT(SS)A.NO.63/DEL/2008 (BLOCK PERIOD : 01.04.1989 TO 27.07.1999) SHRI RAM KRISHAN GUPTA, VS. DCIT, CENTRAL CIRCLE 4, M 187, BASEMENT, NEW DELHI. GREATER KAILASH ENCLAVE II, NEW DELHI. (PAN : AAPPG2672P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN & MS. RANO JAIN, CAS REVENUE BY : MS. VEENA JOSHI, CIT DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT (APPEALS)-III, NEW DELHI DATED 25.03.2008. 2. THE ASSESSEE IS AN INDIVIDUAL. A SEARCH WAS COND UCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AT B 7, GREATER KAILASH ENCLAVE, NEW DELHI ON 27.07.1999. WHILE MAKING THE ASSESSMENT U/S 158BC, AN ADDITION OF RS.37 LACS WAS MADE ON ACCOUNT OF PURCHASE OF 3 RD FLOOR, PROPERTY NO.17, POORVI MARG, VASANT VIHAR, NEW DELHI. THE CIT (A)-III, NEW DELHI VIDE ITS ORDER DATED 15.03.2002 RESTRICTED THE ADDITION TO RS.1,92 ,600/- ON THE BASIS OF THE IT(SS)A.NO.63/DEL/2008 2 VALUATION REPORT FURNISHED. AGAINST THAT ORDER OF T HE CIT (A), THE REVENUE WENT IN APPEAL BEFORE THE ITAT, NEW DELHI AND IN TH E FIRST ROUND, THE ITAT IN ITS ORDER DATED 29.09.2006 SET ASIDE THE MATTER WITH REGARD TO THE ADDITION OF RS.37 LACS WITH THE FOLLOWING OBSERVATIONS :- 3.11 SO FAR AS THE TRANSACTION OF SALE BETWEEN TH E ASSESSEE AND VIGYAN BIKRAM SHAH IS CONCERNED, THE L EARNED CIT (APPEALS) HAS RECORDED A FINDING THAT THE ASSESSEE PURCHASED THE PROPERTY FROM VIGYAN BIKRAM SHAH. THIS FINDING HAS NOT BEEN ASSAILED BY THE ASSESSEE, HENCE IT IS ESTABLISHED T HAT THE ASSESSEE MADE INVESTMENT IN THE PURCHASE OF THE PROPERTY FRO M VIGYAN BIKRAM SHAH. HENCE THE ASSESSEE WAS UNDER OBLIGATIO N TO EXPLAIN THE EXACT AMOUNT FOR WHICH HE PURCHASED PRO PERTY FROM MR. SHAH AND THE MODE OF THE PAYMENT OF THE SAME. I N FACT, THE A.O. SHOULD HAVE SUMMONED AND EXAMINED THE ASSESSEE IN ORDER TO ASCERTAIN THESE FACTS AND SHOULD HAVE ALSO CONFR ONTED HIM IN RELATION TO THE TWO RECEIPTS FOUND DURING THE COURS E OF SEARCH FROM HIS PREMISES IN WHICH IT IS WRITTEN THAT THE S ALE CONSIDERATION AGREED WAS RS.53 LACS. SINCE THE DOCU MENTS WERE FOUND FROM THE PREMISES OF THE ASSESSEE, NECESSARY PRESUMPTION COULD HAVE ALSO BEEN DRAWN AGAINST THE ASSESSEE IF HE FAILED TO REBUT THE CONTENTS, AS PER LAW. NEITHER THE A.O. NO R THE LEARNED CIT (APPEALS) HAS CONSIDERED THESE ASPECTS. NONE OF THESE AUTHORITIES MADE ANY FURTHER INQUIRY TO ELICIT CORR ECT FACTS. EVEN THE WITNESSES TO THE TWO RECEIPTS REFERRED TO ABOVE WERE NOT CALLED AND EXAMINED. NO FURTHER INQUIRY WAS MADE TO ASCERTAIN THE VALUE OF PROPERTY AT THAT TIME. CONSIDERING THE MAJOR DIFFERENCE STATED IN THE TWO RECEIPTS AND THE AMOUN T SAID TO HAVE BEEN PAID TO THE OWNER OF THE PROPERTY, SUCH FURTHE R INQUIRIES WERE VERY MUCH CALLED FOR. IT HAS BEEN MENTIONED TH AT THE PROPERTY WAS ULTIMATELY PURCHASED BY AJAY DHAWAN. H E TOO HAS NOT BEEN EXAMINED. IN VIEW OF THE ABOVE AND OTHER F ACTS AND CIRCUMSTANCES WE SET ASIDE THE FINDING OF THE LEARN ED CIT (APPEALS) IN RESTRICTING THE ADDITION TO RS.1,92,60 0/- AND RESTORE THE MATTER BACK TO THE FILE OF A.O. FOR MAKING PROP ER PROBE INTO THE MATTER AND TO DECIDE THE ISSUE AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AS P ER LAW. IT(SS)A.NO.63/DEL/2008 3 THUS, THE ITAT IN THE FIRST ROUND RESTORED THE MATT ER BACK TO THE FILE OF THE ASSESSING OFFICER FOR MAKING PROPER PROBE IN THE MA TTER TO DECIDE THE ISSUE AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND AS PER LAW. 3. IN THE SECOND ROUND, NEITHER THE ASSESSING OFFIC ER NOR CIT (A) HAD REFERRED THE PROPERTY FOR VALUATION TO ASCERTAIN TH E VALUE OF PROPERTY AT THAT TIME. ASSESSEE MADE THE FOLLOWING SUBMISSIONS BEFOR E ASSESSING OFFICER VIDE LETTER DATED 05.12.2007 :- WITH REFERENCE TO YOUR NOTICE U/S 142(1) OF THE IN COME-TAX ACT, 1961 DATED 27/11/2007, WHEREIN YOU HAVE REQUIRED US TO EXPLAIN THE NATURE OF PAGE 16 OF ANNEXURE A-16 AND PAGE NO. 137 OF ANNEXURE A-22 SEIZED FROM THE PREMISES OF SHRI R.K. GUPTA, WE SUBMIT AS UNDER :- THAT THE PAGE NO.16 OF ANNEXURE A-16 AN ORIGINAL RE CEIPT OF RS.4 LAC EXECUTED BY SHRI VIGYAN BIKARM SHAH AND PA GE NO.137 OF ANNEXURE A-22 IS ALSO AN ORIGINAL RECEIPT FOR RS.1 LAC ONLY EXECUTED BY SHRI VIGYAN BIKRAM SHAH IN FAVOUR OF SHRI R.K. GUPTA. REGARDING THE CONTENTS OF PAGE NO.137 O F ANNEXURE A-22/B-7, G.K. PART-I, NEW DELHI AND THE PAGE NO. 1 6 OF ANNEXURE A-16/B-7, G. K. PART-I, NEW DELHI, IT IS S UBMITTED THAT THE ASSESSEE HAD NEGOTIATED A DEAL WITH MR. AJAY DH AWAN ON BEHALF OF SHRI VIGYAN BIKRAM SHAH RESIDENT OF 76/3/ 1, RAJPUR ROAD, SAKET LANE-II, DEHRADUN, UTTARAKHAN FOR SALE OF HIS FLAT AT 3 RD FLOOR (REAR SIDE) 17, POORVI MARG, VASANT VIHAR, N EW DELHI FOR RS.19 LACS AND OUT OF THIS RS.17 LACS WAS TO BE PAID TO SHRI VIGYAN BIKRAM SHAH AND BALANCE OF RS. 2 LACS WAS COMMISSION/PROFIT OF THE ASSESSEE. IN FACT, THE ASS ESSEE FIRSTLY RECEIVED THE CHEQUES FROM SHRI AJAY DHAWAN AND THAN ON THE SAME DATE ISSUED THE CHEQUES IN FAVOUR OF SHRI VIGY AN BIKRAM SHAH. THE DETAIL OF THE PAYMENTS MADE BY THE ASSESS EE TO SHRI VIGYAN BIKRAM SHAH IS AS UNDER:- IT(SS)A.NO.63/DEL/2008 4 DATE PARTICULARS AMOUNT (RS.) 20.03.1999 PAY ORDER ISSUED 2,00,000.00 28.04.1999 CHEQUE NO.840856 1,00,000.00 26.04.1999 CHEQUE NO.595775 1,00,000.00 19.05.1999 CHEQUE NO.67510 5,50,000.00 19.05.1999 CHEQUE NO.67511 5,00,000.00 21.06.1999 CHEQUE NO.277987 2,00,000.00 TOTAL 16,50,000.00 BALANCE SUM OF RS. 50,000/- WAS TO BE PAID TO SHRI VIGYAN BIKRAM SHAH. IN FACT THE SAID FLAT WAS NEVER PURCHASED BY THE AS SESSEE, BUT WAS SOLD TO SHRI AJAY DHAWAN DIRECTLY THROUGH HIM. MOREOVER DURING THE COURSE OF BLOCK ASSESSMENT PROC EEDINGS AS WELL AS BEFORE THE D.D.I. INVESTIGATION, STATEMENT OF SHRI VIGYAN BIKRAM SHAH WAS RECORDED ON 17/01/2000 WITH REFEREN CE TO THE ACTUAL CONSIDERATION WHICH HAD BEEN RECEIVED BY HIM IN RESPECT OF SALE OF FLAT AT 17, POORVI MARG (3RD FLOOR REAL SIDE), VASANT VIHAR, NEW DELHI. SHRI VIGYAN BIKRAM SHAH HAS NO WH ERE IN HIS STATEMENT HAS EVER CONFIRMED THAT HE HAS RECEIVED A CONSIDERATION OF RS.54 LACS. IN HIS REPLY TO QUESTI ON NO.6 RAISED AT THE TIME OF RECORDING OF HIS STATEMENT BEFORE TH E D.D.I. INVESTIGATION ON 17/0//2000 HE HAS CONFIRMED THAT T HE TOTAL CONSIDERATION WAS RS.17 LACS OUT OF WHICH HE HAD RE CEIVED RS.16.50 LACS AND REMAINING RS.50,000/- HAS YET TO BE RECEIVED. IN THE SAME STATEMENT SHRI VIGYAN BIKRAM SHAH HAS A LSO GIVEN THE COMPLETE DETAILS OF THE ASSETS/PROPERTIES/INVES TMENTS OWNED BY HIM. IN FACT THE SEARCH WAS CONDUCTED ON 27/07/1999 AND THE VENDOR SHRI VIGYAN BIKRAM SHAH HAD APPOINTED SHRI AJAY DHA WAN AS A GENERAL POWER OF ATTORNEY FOR THE FLAT AT 3 RD FLOOR (REAR SIDE), 17, POORVI MARG, VASANT VIHAR, NEW DELHI VIDE DOCUM ENT REGISTERED WITH THE SUB REGISTRAR OF IMMOVABLE PROP ERTIES, NEW DELHI ON 18/05/1999, WHICH CLEARLY SHOWS THAT THE U LTIMATE BENEFICIARY IS SHRI AJAY DHAWAN NOT THE ASSESSEE SH RI R.K GUPTA. PHOTOCOPY OF THE GENERAL POWER OF ATTORNEY D ATED 18/05/1999 EXECUTED BY SHRI VIGYAN BIKRAM SHAH IS F AVOUR OF SHRI AJAY DHAWAN IS BEING ENCLOSED HEREWITH. IT(SS)A.NO.63/DEL/2008 5 THE ASSESSING OFFICER AGAIN MADE AN ADDITION OF RS. 37 LACS AND THE CIT (A) UPHELD THE SAME BY HOLDING AS UNDER :- 4.5 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE ID. AR AND HAVE PERUSED THE MATERIAL ON RECORD. THE ITAT IN IT S ORDER DATED 29.3.2006 HAS HELD THAT THE APPELLANT HAD PURCHASED THIS PROPERTY FROM SH. V.B. SHAH AND NOT THAT HE RECEIVED ANY COM MISSION OF RS.2 LACS ON THE SALE OF PROPERTY BY V.B. SHAH TO S H. AJAY DHAWAN. THEREFORE, IT IS ESTABLISHED THAT THE APPEL LANT HAD MADE INVESTMENT IN THE PURCHASE OF THE SAID PROPERTY FRO M SH. V.B. SHAH. IT IS UNDISPUTED THAT THE ABOVE MENTIONED TWO DOCUMENTS IN QUESTION WERE SEIZED DURING THE COURSE OF SEARCH OPERATIONS U/S 132 CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE APPELLANT ON 27.7.99. DOCUMENT NO. 137 OF ANNEXURE A-22 SEIZED F ROM THE RESIDENCE OF THE APPELLANT IS RECEIPT DATED 9.3.99 ISSUED BY SH. V.B. SHAH WHEREIN IT IS MENTIONED THAT HE HAS-RECEI VED A SUM OF RS. 1 LAC AS ADVANCE OUT OF TOTAL SALE AMOUNT OF RS . 54 LACS AGAINST HIS FLAT ON PLOT NO. 17, POORVI MARG, VASAN T VIHAR, NEW DELHI, (REAR PORTION) FROM SH. R.K. GUPTA (THE APPE LLANT). IN THIS RECEIPT, IT HAS ALSO BEEN MENTIONED THAT RS. 4.50 L ACS WILL BE PAID ON OR BEFORE 25.3.99 AND THE BALANCE OF RS. 48.50 L ACS WILL BE PAID ON OR BEFORE 30.6.99. THE RECEIPT HAS BEEN SIG NED BY SH. V.B. SHAH AT TWO PLACES, ONE OF THE SIGNATURES BEIN G ON THE REVENUE STAMP. THE RECEIPT HAS BEEN WITNESSED BY SH . SAGAR B. SHAH AND SH. DEVENDER KUMAR. PAGE 16 OF ANNEXURE A- 16 IS AN UNDATED RECEIPT ISSUED BY SH. V.B. SHAH IN RESPECT OF THE SAME FLAT AS MENTIONED ABOVE STATING THEREIN THAT RS. 4 LACS HAD BEEN RECEIVED FROM SH. R.K. GUPTA (THE APPELLANT) AS PAR T-PAYMENT AGAINST THE SAID FLAT. THE DETAILS OF RS. 4 LACS GI VEN IN THE RECEIPT ARE AS UNDER :- I) PAY ORDER NO.595648 DATED 20.3.99 PNB, ALAKNANDA. RS. 2 LACS II) CHEQUE NO.840886 DATED 5.4.99, PNB, ALAKNANDA. RS. 1 LAC III) CHEQUE NO. 840887, DATED 8.4.99, PNB, ALAKNANDA. RS. 1 LAC TOTAL: RS. 4 LACS IT(SS)A.NO.63/DEL/2008 6 IT HAS ALSO BEEN MENTIONED ON THE RECEIPT THAT THE BALANCE PAYMENT OF RS., 49 LACS WILL BE MADE ON OR BEFORE 3 0.6.99. THE RECEIPT HAS BEEN SIGNED ON TWO PLACES BY SH. V.B. S HAH, CONFIRMED BY MRS. ANJU SHAH AND WITNESSED BY SH. SA GAR B. SHAH AND SH. NARVIR SHAH. ALTHOUGH THIS RECEIPT IS UNDATED, BUT IT IS CLEAR THAT THE RECEIPT WAS ISSUED ON OR AFTER 8.4.99 AND BEFORE 30.6.99. AS PER BOTH THESE RECEIPTS, THE SAL E CONSIDERATION OF THE PROPERTY IN QUESTION WAS RS. 54 LACS. THE RE CEIPT OF RS. 1 LAC DATED 9.3.99 IS THE FIRST RECEIPT AND THE RECEI PT OF RS. 4 LACS IS SECOND RECEIPT IN CONTINUATION OF THE FIRST RECEIPT OF RS. 1 LAC. IT IS ALSO TO BE NOTICED THAT AFTER RECEIVING RS. 1 LA C ON 9.3.99, THE BALANCE AMOUNT PAYABLE TO SH. V.B. SHAH WAS RS. 53 LACS. FROM THIS BALANCE, A SUM OF RS. 4 LACS WAS RECEIVED BY S H. V.B. SHAH VIDE SECOND RECEIPT AND THAT IS WHY IN THE SECOND R ECEIPT, HE HAS MENTIONED THAT THE BALANCE PAYMENT DUE IS RS. 49 LA CS WHICH TALLIES WITH THE DIFFERENCE OF RS. 53 LACS AND THE PAYMENT OF RS. 4 LACS RECEIVED VIDE SECOND RECEIPT. THERE IS ABSOL UTELY NO AMBIGUITY IN THE CONTENTS OF THESE TWO DOCUMENTS. A S PER BOTH THE DOCUMENTS, THE BALANCE PAYMENT IS TO BE MADE BE FORE 30.6.99. THE TOTAL CONSIDERATION OF THE PROPERTY IN THE FIRST RECEIPT HAS BEEN MENTIONED IN THE FIGURES AS WELL A S IN WORDS. SIMILARLY, THE BALANCE PAYMENT OF RS. 49 LACS AS PE R SECOND RECEIPT HAS ALSO BEEN MENTIONED IN FIGURES AS WELL AS WORDS. IN HIS STATEMENT RECORDED U/S 131 ON 17.1.2000. SH. V. B. SHAH ADMITTED THAT HE HAD SIGNED ON THESE RECEIPTS. HE A LSO ADMITTED THAT THE WORDS 'BALANCE PAYMENT OF RS. 49 LACS .... ON OR BEFORE 30.6.99' WRITTEN ON THE SECOND RECEIPT WAS IN HIS H ANDWRITING. WHEN HE WAS ASKED TO EXPLAIN THAT AS AGAINST SALE C ONSIDERATION OF RS. 17 LACS IN RESPECT OF THE SAID PROPERTY ADMI TTED BY HIM, THE SALE CONSIDERATION AS PER THE TWO RECEIPTS DISC USSED ABOVE WAS RS. 54 LACS AND WHAT HE HAD TO SAY ABOUT THIS I N REPLY, HE STATED AS UNDER:- 'AS FAR AS I REMEMBER, THE TOTAL CONSIDERATION FOR THE PROPERTY WAS RS.17,00,000/- (SEVENTEEN LAKH). OUT O F WHICH I HAVE RECEIVED RS.16,50,000/- AS ON DATE. THIS I HAV E ALREADY STATED IN EARLIER ANSWER. THE BALANCE OF RS.50,000/ -.IS YET TO BE PAID TO ME BY SH. R.K. GUPTA. REGARDING THE STATEME NT OF 'BALANCE RS.49,00,000/- .... ' I CONFIRM THAT THOUG H IT IS IN MY HANDWRITING I DO NOT KNOW, UNDER WHAT CIRCUMSTANCES I HAVE WRITTEN THE SAME,' IT(SS)A.NO.63/DEL/2008 7 THIS CLEARLY SHOWS THAT SH. V.B. SHAH HAD NO EXPLAN ATION TO OFFER WITH REGARD TO THE DIFFERENCE IN THE SALE CONSIDERATION AS PER THE SEIZED DOCUMENTS AND AS SHOWN BY HIM. HE GA VE ONLY EVASIVE REPLY IN SPITE OF THE FACT THAT HE ADMITTED HAVING SIGNED THESE DOCUMENTS. THE DOCUMENTS HAVE BEEN WRITTEN SO METICULOUSLY THAT THE CONTENTS AND EVIDENTIARY VALU E OF THESE DOCUMENTS CANNOT BE IGNORED. THE DOCUMENTS IN QUEST ION WERE SEIZED FROM THE RESIDENTIAL PREMISES OF THE APPELLA NT DURING THE COURSE OF SEARCH OPERATIONS. THEREFORE, AS PER THE PROVISIONS OF SECTION 132 (4A), IT CAN BE PRESUMED THAT THE CONTE NTS OF THESE DOCUMENTS ARE TRUE AND THE ONUS IS ON THE APPELLANT TO EXPLAIN THE SAME. THE PRESUMPTION CAN BE REBUTTED ONLY IF T HE APPELLANT COMES FORWARD TO EXPLAIN THE CONTENTS OF THE PAPERS AND BRINGS EVIDENCE ON RECORD IN REBUTTAL OF THE PRESUMPTION T O BE DRAWN U/S 132 (4A). THUS THE APPELLANT WAS UNDER OBLIGATI ON TO EXPLAIN THE CONTENTS OF THESE DOCUMENTS AND TO EXPLAIN THE EXACT AMOUNT FOR WHICH HE PURCHASED THE PROPERTY. THE CIRCUMSTAN CES UNDER WHICH THESE DOCUMENTS WERE PREPARED HAVE ALSO NOT B EEN EXPLAINED BY THE APPELLANT. THE APPELLANT CANNOT WA SH OFF ITS HANDS BY STATING THAT THE PROPERTY IN QUESTION WAS PURCHASED BY HIM FOR RS. 17 LACS WHEN THE DOCUMENTS IN QUESTION CLEARLY SPEAK THAT THE PROPERTY IN QUESTION WAS PURCHASED F OR RS. 54 LACS. AS PER THE DIRECTIONS OF THE HON'BLE ITAT, TH E AO ISSUED SUMMONS U/S 131 TO THE APPELLANT SH. AJAY DHAWAN, ( THE FINAL BUYER OF THE FLAT) SH. V.B. SHAH (SELLER) AND SH. D EVENDER GUPTA, WITNESS TO THE RECEIPT DT. 9.3.99 OF RS. 1 L AC. SUMMONS IN RESPECT OF SH. AJAY DHAWAN AND SH. V.B. SHAH WERE R ECEIVED BACK UNDELIVERED WITH THE REMARKS 'LEFT WITHOUT ADD RESS, RETURNED TO SENDER. SH. DEVENDER GUPTA (WITNESS) C ONFIRMED THE SIGNATURES ON THE RECEIPT DATED 9.3.99, BUT HE DENIED ANY KNOWLEDGE OF THE TRANSACTION BETWEEN SH. R.K. GUPTA (HIS ELDER BROTHER) AND SH. V.B. SHAH. THUS IT IS INCORRECT TO SAY THAT THE AO DID NOT FOLLOW THE DIRECTIONS ISSUED BY THE HON' BLE ITA T. AS REGARDS MAKING INQUIRIES FROM OTHER FLAT OWNERS IN THE BUILDING, ALTHOUGH THE ASSESSMENT ORDER IS SILENT A BOUT ANY SUCH INQUIRIES HAVING BEEN MADE, BUT THE SAME DOES NOT P REJUDICE THE FINDINGS OF THE AO, PARTICULARLY IN THE LIGHT OF VE RY CLEAR NARRATION OF SALE CONSIDERATION OF RS. 54 LACS AS M ENTIONED IN THE TWO RECEIPTS DISCUSSED ABOVE. AS REGARDS THE APPELL ANT'S CONTENTION THAT NO OTHER EVIDENCE OF PASSING OF MON EY WAS FOUND DURING THE COURSE OF SEARCH, THIS IS OF NO CO NSEQUENCE BECAUSE THE EVIDENCE FOUND DURING THE COURSE OF SEA RCH IN THE IT(SS)A.NO.63/DEL/2008 8 FORM OF TWO RECEIPTS ISSUED BY SH. V.B. SHAH IS STR ONG ENOUGH TO ESTABLISH THAT THE SALE CONSIDERATION OF THE PROPER TY IN QUESTION WAS RS. 54 LACS. IT MAY ALSO BE MENTIONED HERE THAT OUT OF THE ALLEGED SALE CONSIDERATION OF RS. 17 LACS, THE APPE LLANT FILED DETAILS OF RS. 16.50 LACS BEFORE THE AO WHICH ARE R E-PRODUCED AS UNDER:- DATE PARTICULARS AMOUNT (RS.) 20.3.1999 PAY ORDER ISSUED 2,00,000.00 28.4.1999 CHEQUE NO. 840856 1,00,000.00 26.4.1999 CHEQUE NO.595775 1,00,000.00 19.5.1999 CHEQUE NO. 67510 5,50,000.00 19.5.1999 CHEQUE NO.67511 5,00,000.00 21.6.1999 CHEQUE NO.277987 2,00,000.00 TOTAL 16,50,000.00 IF WE COMPARE THE ABOVE PAYMENTS WITH THE PAYMENTS REFLECTED IN THE TWO RECEIPTS DISCUSSED ABOVE, IT IS NOTICED THAT THE PAYMENT OF RS. 1 LAC BY CASH ON 9.3.99 AS REFLECTED IN SEIZED DOCUMENT NO 137 DOES NOT FIND PLACE IN THE DETAILS OF PAYMENT SHOWN BY THE APPELLANT. THE PAYMENT OF RS. 2 LACS O N 20.3.99 FINDS PLACE IN THE SEIZED DOCUMENT PAGE NO. 16 AS W ELL AS IN THE CHART ABOVE. BUT THE TWO PAYMENTS OF RS. 1 LAC EACH ON 5.4.99 AND 8.4.99 BY CHEQUE NO. 840886 AND CHEQUE NO. 8408 87 DO NOT FIND PLACE IN THE ABOVE CHART. IT FURTHER PROVES TH E FACT THAT SEIZED DOCUMENT PAGE NO. 16 CANNOT BE DENIED BY THE APPELLANT BECAUSE ONE OF THE PAYMENTS MENTIONED IN THIS DOCUM ENT MATCHES WITH ONE OF THE PAYMENTS SHOWN BY THE APPEL LANT IN HIS BOOKS OF ACCOUNT. AS REGARDS RELIANCE ON THE VARIOUS CASE LAWS BY TH E APPELLANT, THESE DECISIONS WERE RENDERED ON THE SPE CIFIC FACTS OF INDIVIDUAL CASES WHEREAS IN THE PRESENT CASE, THE E NTRIES ON THE SEIZED DOCUMENTS ARE SO CLEAR, UNAMBIGUOUS AND SPEA KING THAT NO OTHER INFERENCE THAN THE ONE DRAWN BY THE AD CAN BE DRAWN ON THE BASIS OF THESE DOCUMENTS. IN THE PRESENT CAS E, THE AD HAS DISCHARGED HIS BURDEN OF PROVING THAT THE ACTUAL SA LE CONSIDERATION WAS RS. 54 LACS AND NOT RS. 17 LACS B Y RELYING ON TWO DOCUMENTS WHICH WERE SEIZED FROM THE RESIDENCE OF THE APPELLANT AND THE SAME HAVE NEITHER BEEN DENIED BY THE APPELLANT NOR BY SH. V.B. SHAH (SELLER). THE APPELLANT AS WEL L AS THE SELLER IT(SS)A.NO.63/DEL/2008 9 FAILED TO EXPLAIN THE CIRCUMSTANCES IN WHICH THE DO CUMENTS IN QUESTION WERE PREPARED AND WHY IN BOTH THESE DOCUME NTS FIGURES WERE CLEARLY WRITTEN AT RS 54 LACS INSTEAD OF RS. 1 7 LACS SHOWN BY THE APPELLANT. IN VIEW OF THE FACTS AND CIRCUMST ANCES STATED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE AD WAS JUSTIFIED IN TAKING THE SALE CONSIDERATION OF THE PROPERTY IN QU ESTION AT RS. 54 LACS AND WAS JUSTIFIED IN HOLDING THE DIFFERENCE AMOUNT OF RS. 37 LACS AS THE APPELLANT'S INCOME FROM UNDISCLOSED SOURCES WITHIN THE MEANING OF SECTION 69 OF THE I.T. ACT, 1 961. THEREFORE, THE ADDITION OF RS. 37 LACS MADE BY THE AO IS UPHELD. 4. NOW, THE ASSESSEE IS IN APPEAL BEFORE US BY TAKI NG THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LD. CIT APPEALS-III, NEW DELHI ERRED I N LAW AS WELL AS ON FACTS WHILE CONFIRMING THE ADDITION OF R S. 37.00 LACS AS INCOME FROM UNDISCLOSED SOURCES WITHIN THE MEANI NG OF SECTION 69 OF THE INCOME TAX ACT 1961. 2. THAT THE FOLLOWING OBSERVATIONS OF THE LD CIT AP PEALS - III, NEW DELHI IN THE ORDER ARE PERVERSE, ARBITRARY , BASELESS AND MISLEADING: - I AM OF THE CONSIDERED VIEW THAT THE AO WAS JUSTIFI ED IN TAKING THE SALE CONSIDERATION OF THE PROPERTY IN QU ESTION AT RS 54.00 LACS AND WAS JUSTIFIED IN HOLDING THE DIFF ERENCE AMOUNT OF RS 37.00 LACS AS THE APPELLANTS INCOME FR OM UNDISCLOSED SOURCES WITHIN THE MEANING OF SECTION 6 9 OF INCOME TAX ACT 1961. 3. THAT THE LD. CIT APPEALS -III, NEW DELHI HAS ERR ED IN OVERLOOKING AND IN SUMMARILY REJECTING THE DETAILED STATEMENT OF FACTS, VARIOUS DOCUMENTS AND EVIDENCE, AND CASE LAW S PLACED IN THE PAPER BOOK FILED. 4. THAT THE ORDER PASSED BY THE LD. CIT APPEALS -II I, NEW DELHI IS BAD IN LAW, ILLEGAL, ARBITRARY AND AGAINST THE LAW OF NATURAL JUSTICE AND FACTS OF THE CASE. IT(SS)A.NO.63/DEL/2008 10 5. THAT THE ASSESSEE CRAVES RIGHT TO ADD, DELETE, S UBSTITUTE, MODIFY NAY ONE OR MORE OF THE GROUNDS OF APPEALS AT THE TIME OF HEARING. IT IS THEREFORE PRAYED THAT ADDITIONS AMOUNTING TO RS. 37.00 LACS SO MADE MAY KINDLY BE DELETED AND THE APPEAL OF THE ASSESSEE BE ALLOWED. 5. WHILE PLEADING ON BEHALF OF THE ASSESSEE THE LD. AR SUBMITTED THAT THIS IS A CASE OF BLOCK ASSESSMENT U/S 158BC WHERE SEARC H WAS CONDUCTED ON 27.07.1999 AND ADDITION OF UNDISCLOSED INCOME CAN B E MADE ONLY TO THE INCOME WHICH PERTAINS TO THE PERIOD UP TO THE DATE OF SEARCH, I.E. 27.07.1999. THE AMOUNT OF DISPUTE INVOLVED IN THE APPEAL IS RS. 37 LACS WHICH IS CLAIMED TO HAVE BEEN PAID OVER AND ABOVE THE AMOUNT STATED IN THE SALE DEED FOR PURCHASE OF FLAT BASED ON THE TWO RECEIPTS SEIZED C OPY PLACED AT PAPER BOOK AT PAGES 49 & 50. THESE RECEIPTS SHOW THAT PAYMENT OF RS.1 LAC WAS RECEIVED AS PER RECEIPT AT PAGE 50 OF PAPER BOOK AND RS.4 LACS WAS RECEIVED BY THREE CHEQUES AS PER RECEIPT PLACED AT PAGE 49 OF THE PAP ER BOOK. BALANCE AMOUNT WAS TO BE PAID BY 30.06.1999. THERE IS NO DETAIL OF ACTUAL PAYMENT OF BALANCE AMOUNT AS MENTIONED IN THESE RECEIPTS. THE RECEIPT PLACED AT PAGE 50 SHOWS THAT ONLY RS.1 LAC WAS RECEIVED BY SHRI VIGYAN BIKR AM SHAH FROM ASSESSEE. SIMILARLY, THE RECEIPT AT PAGE 49 SHOWS THAT RS.4 L ACS WERE RECEIVED BY SHRI SHAH BY THREE CHEQUES AND THE BALANCE AMOUNT OF RS. 49 LACS IS TO BE PAID ON OR BEFORE 30.06.1999. THERE IS NO EVIDENCE FOUND DU RING THE SEARCH AND EVEN IN THE POST SEARCH ENQUIRIES THAT THIS BALANCE AMOU NT WAS PAID ON ANY IT(SS)A.NO.63/DEL/2008 11 SUBSEQUENT DATE. EVEN IN THE SECOND ROUND OF INVEST IGATION AS DIRECTED BY ITAT, NO EVIDENCE WAS COLLECTED WHICH COULD THROW A NY LIGHT ON THE ISSUE OF PAYMENT OF BALANCE AMOUNT AS STATED IN THESE RECEIP TS. NONE OF THE PERSON CONNECTED WITH THIS TRANSACTION HAD BEEN ASKED BY A SSESSING OFFICER IN THIS REGARD. IN ABSENCE OF ANY EVIDENCE, NO ADDITION CAN BE MADE ONLY ON THE BASIS OF THESE RECEIPTS WHERE THE BALANCE AMOUNT IS SHOWN PAYABLE BY SOME FUTURE DATE. THESE SEIZED PAPERS IN THE FORM OF RECEIPTS W ERE WITH REGARD TO SOME PAYMENT RECEIVED BUT THE BALANCE AMOUNT WAS TO BE R ECEIVED BY SAME DATE. THEREFORE, THESE RECEIPTS CANNOT BE MADE A BASIS TO PRESUME THAT BALANCE AMOUNT MUST HAVE BEEN PAID BY THAT DATE AND TRANSAC TION WAS COMPLETE. THERE HAS TO BE SOME EVIDENCE IN THIS REGARD. THERE CANNO T BE ANY PRESUMPTION THAT MONEY WAS SUPPOSED TO HAVE BEEN PAID WHEN THERE IS NO SUCH EVIDENCE TO ESTABLISH THE SAME. THE SALE OF PROPERTY IN QUESTIO N WAS COMPLETED ON 05.11.1999 BETWEEN SHRI AJAY DHAWAN AS PURCHASER AN D SHRI VIGYAN BIKRAM SHAH AS SELLER. THE DATE FALLS BEYOND THE BLOCK PER IOD. THERE WAS EXECUTION OF GENERAL POWER OF ATTORNEY IN FAVOUR OF SHRI AJAY DH AWAN PRIOR TO THE DATE OF SEARCH AND EVEN PRIOR TO THE DATE THE BALANCE AMOUN T TO BE PAID AS PER THESE RECEIPTS. NO ASSUMPTION CAN BE DRAWN THAT BALANCE P AYMENT WAS MADE PRIOR TO 18.05.1999, THE DAY G.P.A. WAS EXECUTED IN FAVOU R OF SHRI AJAY DHAWAN BY SELLER. THE ITAT IN THE FIRST ROUND GAVE SPECIFI C DIRECTION TO ASSESSING OFFICER AS REPRODUCED AT PAGE 2 OF THIS ORDER. THE ASSESSING OFFICER WAS IT(SS)A.NO.63/DEL/2008 12 ASKED TO SUMMON AND EXAMINE THE ASSESSEE AND OTHER PERSONS CONNECTED WITH THIS TRANSACTION. THE ASSESSING OFFICER WAS DIRECTE D TO COLLECT FURTHER EVIDENCES. THE ASSESSING OFFICER WAS DIRECTED TO CA LL THE WITNESSES TO THE RECEIPTS AND EXAMINE THEM. THE ITAT ALSO DIRECTED T O ASCERTAIN THE VALUE OF THE PROPERTY AT THE RELEVANT TIME. ITAT ALSO DIRECT ED TO EXAMINE AJAY DHAWAN WHOM HAD ULTIMATELY PURCHASED THE PROPERTY. THE ASS ESSING OFFICER COMPLETELY FAILED TO CARRY OUT THE INVESTIGATION TO A LOGICAL END AS DIRECTED BY ITAT IN ITS ORDER IN THE FIRST ROUND. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON SAME FACTS ON WHICH THE CIT (A) DELET ED THE ADDITION IN FIRST ROUND. THERE IS NO DOCUMENT ON RECORD TO ESTABLISH THAT THE PAYMENT FOR BALANCE AMOUNT HAS BEEN MADE BY THE ASSESSEE. NEITH ER THE SELLER, SHRI VIGYAN BIKRAM SHAH NOR THE ULTIMATE PURCHASER OF FL AT, SHRI AJAY DHAWAN HAS EVER STATED THAT SUCH PAYMENTS WERE RECEIVED/MADE. THE ASSESSING OFFICER HAS COMPLETELY FAILED TO BRING POSITIVE MATERIAL ON RECORD TO JUSTIFY THE ADDITION IN THE BLOCK ASSESSMENT U/S 158BC OF THE A CT. LD. AR PLEADED THAT THE ONUS WAS ON THE ASSESSING OFFICER TO BRING POSI TIVE MATERIAL ON RECORD. THESE RECEIPTS DID NOT STATE ANYTHING ABOUT THE ACT UAL PAYMENT OF BALANCE AMOUNT. LD. AR ALSO RELIED ON THE DECISION OF HON'B LE KERALA HIGH COURT IN THE CASE OF CIT VS. SMT. K.C. AGNES REPORTED IN 262 ITR 354 (KERALA), AMARJIT SINGH BAKSHI HUF VS. ACIT 86 ITR 13 (DEL. ) AND CIT VS. CHAMAN LAL DHINGRA (1994) 121 TAXMAN 272 (ALL.) IT(SS)A.NO.63/DEL/2008 13 6. LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES B ELOW AND SUBMITTED THAT THESE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF T HE ASSESSEE DURING THE SEARCH OPERATION. THE RECEIPTS ITSELF SHOW THAT TRA NSACTION WAS SETTLED FOR RS.54 LACS. THE RECEIPT IS SIGNED BY RECIPIENT AND ALSO SIGNED BY WITNESSES. THEREFORE, THE AMOUNT REFERRED IN THESE RECEIPTS AR E TRUE AND ASSESSEE HAS FAILED TO CONTROVERT THIS. SHE FURTHER SUBMITTED TH AT THIS PROPERTY WAS PURCHASED BY THE ASSESSEE FROM SHRI V.B. SHAH. THER EFORE, THE CLAIM THAT HE HAS RECEIVED COMMISSION OF RS.2 LACS ONLY IS NOT CO RRECT. SHE FURTHER SUBMITTED THAT SINCE THE RECEIPTS WERE SIGNED BY TH E WITNESSES AND THE ASSESSEE HAS PURCHASED THE PROPERTY AND AS PER THE RECEIPTS, THE PAYMENT WAS TO BE MADE BY 30.06.1999, THEREFORE, THE ADDITION I N THE HANDS OF ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT IS JUSTIFIED. SIN CE THE DOCUMENTS SEIZED FROM THE PREMISES OF THE ASSESSEE AND IN VIEW OF TH E PROVISIONS OF SECTION 132(4A), THE DOCUMENTS ARE PRESUMED TO BE TRUE AND THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE SAME. THE ASSESSEE WAS UNDE R OBLIGATION TO EXPLAIN THE CONTENTS OF THESE DOCUMENTS. SHE FURTHER SUBMITTED THAT CASE LAWS RELIED UPON BY THE ASSESSEE ARE RENDERED ON SPECIFIC FACTS OF I NDIVIDUAL CASES. IN THE ASSESSEES CASE, THE RECEIPTS ARE SO CLEAR AND UNAM BIGUOUS THAT NO OTHER INFERENCE CAN BE DRAWN ON THE BASIS OF THESE DOCUME NTS EXCEPT THE FACT THAT ASSESSEE PURCHASED THE PROPERTY AT RS.54 LACS AND P AYMENT HAS BEEN MADE. IT(SS)A.NO.63/DEL/2008 14 7. WE HAVE HEARD BOTH THE SIDES. WE ALSO CONSIDERED THE CASE LAWS RELIED UPON AND ALSO PERUSED THE SEIZED MATERIAL AND OTHER DOCUMENTS SUBMITTED BEFORE US. AS PER THE RECEIPTS PLACED AT PAGE 50 OF THE PAPER BOOK, THE TOTAL SALE CONSIDERATION WAS RS.54 LACS AND RS.1 LAC WAS PAID BY ASSESSEE TO THE OWNER OF THE FLAT, SHRI VIGYAN BIKRAM SHAH. SEIZED RECEIPT PLACED AT PAGE 49 OF THE PAPER BOOK SHOWS THAT RS.4 LACS HAVE BEEN P AID BY THREE CHEQUES AND BALANCE RS.49 LACS TO BE PAID BY 30.06.1999. BOTH T HESE PAYMENTS WERE MADE BY ASSESSEE. THE SEIZED MATERIAL ITSELF SHOWS THAT THE BALANCE AMOUNT WAS TO BE PAID ON OR BEFORE 30.06.1999. THE SELLER OF THE FLAT IN QUESTION EXECUTED A GENERAL POWER OF ATTORNEY ON 18.05.1999 IN FAVOUR O F SHRI AJAY DHAWAN WHO WAS ULTIMATE PURCHASER OF THIS FLAT. NO EVIDENC E OR DOCUMENT FOUND AND SEIZED WHICH SHOWS THAT BALANCE PAYMENT WAS MADE BY ASSESSEE BY THAT DATE. IT IS ALSO A FACT THAT THE OWNER OF THE FLAT, SHRI VIGYAN BIKRAN SHAH HAS EXECUTED A GENERAL POWER OF ATTORNEY IN FAVOUR OF S HRI AJAY DHAWAN ON 18.05.1999, I.E. THIS DATE IS PRIOR TO THE DATE BY WHICH THE ASSESSEE WAS TO MAKE THE FULL AND FINAL PAYMENTS AS SHOWN IN THE SE IZED RECEIPTS PLACED AT PAGES 49 & 50 OF THE PAPER BOOK. IT IS ALSO A FACT THAT ULTIMATE PURCHASE DEED IN RESPECT OF THIS FLAT WAS EXECUTED ON 05.11.1999 BETWEEN THE OWNER, SHRI VIGYAN BIKRAM SHAH AND AJAY DHAWAN. THERE IS NO DOC UMENT SEIZED AND FOUND OR EVEN STATED IN THE STATEMENTS RECORDED DUR ING THE SEARCH AND AFTER THE SEARCH THAT THE BALANCE AMOUNT AS STATED IN THESE R ECEIPTS WAS MADE BY IT(SS)A.NO.63/DEL/2008 15 ASSESSEE ON OR BEFORE 30.06.1999 OR EVEN TILL THE D ATE OF THE SEARCH. THE SEARCH WAS CONDUCTED ON 27.07.1999. NO OTHER DOCUME NT WAS FOUND AND SEIZED EXCEPT THESE TWO RECEIPTS WHICH SHOW THAT TH E BALANCE PAYMENT WAS TO BE MADE. IN THE SECOND ROUND ALSO, ASSESSING OFFICE R FAILED TO COLLECT ANY EVIDENCE IN THIS REGARD. IN THE ABSENCE OF ANY DOCU MENTARY EVIDENCE, NO PRESUMPTION CAN BE DRAWN THAT AMOUNT WOULD HAVE BEE N PAID BY THAT DATE. THERE IS NO EVIDENCE WHATSOEVER TO ESTABLISH THAT A CTUAL MONEY HAS BEEN PAID. THE EXECUTION OF POWER OF ATTORNEY IN FAVOUR OF AJA Y DHAWAN ON 18.05.1999 AND FINAL SALE TO SHRI AJAY DHAWAN ON 05.11.1999 SH OWS THAT ACTUAL TRANSACTION OF SALE WAS BETWEEN SHRI VIGYAN BIKRAM SHAH, SELLER AND SHRI AJAY DHAWAN, AS PURCHASER. ASSESSEE WAS JUST A MEDI ATOR AND FOR THE SAME HE HAD RECEIVED COMMISSION OF RS.2 LACS WHICH HAD BEEN DULY DISCLOSED IN HIS INCOME. IN THE FIRST ROUND OF THE APPEAL, THE ITAT HAS RESTORED BACK THE MATTER TO THE ASSESSING OFFICER TO MAKE PROPER ENQUIRY AS REPRODUCED IN EARLIER PART OF THIS ORDER. THE ITAT DIRECTED THE ASSESSING OFFI CER TO SUMMON THE WITNESSES OF THESE RECEIPTS AND ALSO THE SELLER AND ULTIMATE PURCHASER, SHRI AJAY DHAWAN. ITAT ALSO DIRECTED TO ASCERTAIN THE VA LUE OF THE PROPERTY AT THAT TIME. THE ASSESSING OFFICER HAS FAILED TO CARRY OUT FURTHER INVESTIGATION AS PER THE DIRECTION OF ITAT AND REACH AT LOGICAL END. THE ASSESSMENT IN REMAND PROCEEDINGS HAS BEEN CONCLUDED ON THE SAME FACTS ON WHICH THE CIT (A) DELETED THE ADDITION IN THE FIRST ROUND. ASSESSING OFFICER HAS FAILED TO COLLECT IT(SS)A.NO.63/DEL/2008 16 ANY EVIDENCE TO ESTABLISH THAT THE BALANCE PAYMENT AS STATED IN THESE RECEIPTS HAS BEEN MADE BY THE ASSESSEE TO SHRI SHAH BY 30.06 .1999 OR EVEN UP TO THE DATE OF THE SEARCH. NEITHER THE SELLER NOR THE ULTI MATE PURCHASER AJAY DHAWAN HAS EVER STATED THAT SUCH PAYMENTS WERE MADE. SINCE THERE WAS NO EVIDENCE REGARDING THE PAYMENT OF BALANCE AMOUNT AS STATED I N THESE RECEIPTS PRIOR TO THE DATE OF THE SEARCH THERE CANNOT BE AN ADDITION ON THE BASIS OF PRESUMPTION THAT SUCH PAYMENTS WOULD HAVE BEEN MADE IN THE BLOC K ASSESSMENT U/S 158BC OF THE ACT. FACTS AVAILABLE IN RECORD SHOW THAT ASS ESSEE ACTED AS MEDIATOR IN TRANSACTION AND HE HAD RECEIVED THE COMMISSION ONLY . AS STATED, DURING THE HEARING OF APPEAL, NO ACTION HAS BEEN TAKEN IN THE CASE OF SELLER, SHRI VIGYAN BIKRAM SHAH AND ULTIMATE PURCHASER, SHRI AJAY DHAWA N. VIEW TAKEN ABOVE IS ALSO SUPPORTED BY VARIOUS DECISIONS ON WHICH THE LD . AR HAS RELIED UPON. IN THE CASE OF CIT VS. SMT. K.C. AGNES, CITED SUPRA, H ON'BLE KERALA HIGH COURT HAS HELD AS UNDER :- THE SALE DEED SHOWS THAT THE PRICE WAS RS. 8,000 P ER CENT WHEN THE AGREEMENT DT. 1ST MARCH, 1983, SHOWS THAT THE P ARTIES AGREED TO PURCHASE THE PROPERTY AT RS.12,951 PER CENT. A R ECEIPT IS ALSO RELIED ON IN THE FORM OF A LETTER DT. 2ND APRIL, 19 83, TO SHOW THAT THE PROPERTY WAS AGREED TO BE PURCHASED AT RS.12,95 1 PER CENT. WHEN THE DOCUMENT SHOWS A FIXED PRICE, THERE WILL B E A PRESUMPTION THAT IT IS THE CORRECT PRICE AGREED UPO N BY THE PARTIES. IT IS TRUE THAT ON THE BASIS OF THE AGREEM ENT THE SALE DEED WAS EXECUTED. BUT IT IS NOT NECESSARY THAT THE PRIC E STATED IN THE AGREEMENT WILL BE THE PRICE SHOWN IN THE SALE DEED. SOMETIMES, IT MAY BE HIGHER AND SOMETIMES IT MAY BE LOWER. SOM ETIMES INTENTIONALLY A LESSER VALUE MAY BE SHOWN IN THE SA LE DEED. EVEN IF IT IS ASSUMED TO BE SO, UNLESS IT IS PROVED THAT THE AGREEMENT WAS ACTED UPON AND UNLESS THE AMOUNT STATED IN THE AGREEMENT IT(SS)A.NO.63/DEL/2008 17 WAS PAID FOR THE SALE ONE CANNOT COME TO THE CONCLU SION THAT THE PRICE MENTIONED IN THE SALE DEED IS NOT CORRECT. IN THIS CASE, FURTHER IT IS FOUND THAT IN THE ASSESSMENT OF PURCH ASER, IT WAS FINALLY FOUND THAT THE AMOUNT WAS RECEIVED ONLY AT RS.8,000 PER CENT. IT IS TAKING INTO ALL THESE MATTERS INTO CONS IDERATION THAT THE TRIBUNAL HELD THAT THE PROPERTY WAS SOLD AT THE RAT E OF RS.8,000 PER CENT. THUS, THE TRIBUNAL, ON THE BASIS OF THE F ACTS AND CIRCUMSTANCES OF THE CASE AND ON THE APPRECIATION O F EVIDENCE, RIGHTLY CAME TO THE CONCLUSION THAT RS.12,951 WAS N OT THE AMOUNT FOR WHICH THE PROPERTY WAS SOLD. THERE IS NO RULE THAT THE AMOUNT SHOWN IN THE RECEIPT WAS THE ACTUAL AMOUNT P AID. CONSIDERING ALL THESE FACTS, WE SET ASIDE THE ORDER S OF THE AUTHORITIES BELOW AND DIRECT TO DELETE THE ADDITION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF JULY, 2013. SD/- SD/- (C.M. GARG) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 31 ST DAY OF JULY, 2013 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.