Assistant Commissioner of Income-tax, Central Circle -1, Nashik V. M/s.Dhananjay Marketing Private Limited, Mumbai

ITSSA 69/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4857 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-03-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 01-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Loose papers; Document seized; Source of fund; Corroborative evidences; Documents seized; Capital Gains
• Section: 143(3); 153A; 264; 13; 22; 131; 54; 37; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / IT(SS)A NO.65/PUN/2017 / ASSESSMENT YEAR : 2014-15 M/S. DHANANJAY MARKETING PVT. LTD., 37-39, KNATOL NIWAS, MODI STREET, FORT, MUMBAI 400001. PAN : AAACD3552F ....... / APPELLANT / V/S. DCIT, CENTRAL CIRCLE-1, NASHIK. / RESPONDENT . / IT(SS)A NOS.67 & 69/PUN/2017 / ASSESSMENT YEARS : 2012-13 & 2014-15 ACIT, CENTRAL CIRCLE-1, NASHIK. ....... / APPELLANT / V/S. M/S. DHANANJAY MARKETING PVT. LTD., 37-39, KNATOL NIWAS, MODI STREET, FORT, MUMBAI 400001. PAN : AAACD3552F / RESPONDENT ASSESSEE BY : SHRI RAKESH JOSHI REVENUE BY : SHRI DEEPAK GARG / DATE OF HEARING : 26.03.2021 / DATE OF PRONOUNCEMENT : 19.05.2021 / ORDER PER BENCH : THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, PUNE (CIT(A) FOR SHORT) DATED 27.06.2017 FOR THE ASSESSMENT YEAR 2014-15 AND BY REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF 2 IT(SS)A NOS.65, 67 & 69/PUN/2017 INCOME TAX (APPEALS)-12, PUNE DATED 27.06.2017 FOR THE ASSESSMENT YEAR 2012-13. 2. BRIEFLY, THE FACTS OF THE CASE ARE AS UNDER :- A SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE INCOME TAX ACT, 1961 (THE ACT) WERE CONDUCTED IN THE PREMISES OF THAKKER GROUP OF COMPANIES AT NASHIK ON 15.01.2015. THE APPELLANT HEREIN IS ALSO COVERED IN THE SAME SEARCH OPERATION. THE APPELLANT, NAMELY, M/S. DHANANJAY MARKETING PVT. LTD. IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, IT IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 WAS FILED ON 31.03.2015 DECLARING THE TOTAL INCOME OF RS.NIL. CONSEQUENT UPON SEARCH AND SEIZURE ACTION U/S 132, A NOTICE U/S 153A OF THE ACT WAS ISSUED ON 28.10.2015. IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT, THE RETURN OF INCOME WAS FILED ON 01.12.2015 DECLARING RS.NIL INCOME. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, NASHIK (THE ASSESSING OFFICER) VIDE ORDER DATED 30.12.2016 PASSED U/S 153A R.W.S. 143(3) OF THE ACT AT A TOTAL INCOME OF RS.10,06,60,053/-. 3. THE FACTUAL MATRIX OF THE CASE LEADING TO THE ABOVE ADDITION IS AS UNDER :- THE APPELLANT ALONG WITH OTHER 5 PARTIES PURCHASED LAND AT SURVEY NO.53/2 AREA ADMEASURING 20H.65R. (18H.46R.), SURVEY NO.54 AREA ADMEASURING 09H.18R. (08H.97R.) & SURVEY NO.55 AREA ADMEASURING 10H.41R. (09H.57R.) I.E. TOTAL AREA ADMEASURING 92 ACRES 20 GUNTHE OF SAVARGAON, TAL. & DIST. NASHIK FOR CONSIDERATION OF RS.65,21,25,992/- VIDE SALE DEED DATED 05.07.2013 FROM 14 PARTIES KNOWN AS KOKANI GROUP OF 3 IT(SS)A NOS.65, 67 & 69/PUN/2017 NASHIK. THE PURCHASER OF THE PROPERTY IN QUESTION ALONG WITH THE APPELLANT INCLUDES FOLLOWING 6 PARTIES :- (I) M/S. THAKKERS HOUSING DEVELOPMENT PVT. LTD. (II) M/S DHANANJAY MARKETING PVT. LTD. (III) M/S. THAKKERS APNA GHAR PVT. LTD. (IV) M/S. ASIAN FOOD PRODUCTS LTD. (V) SHRI KARAN VIJAY GUPTA (VI) M/S. THAKKERS GRUH NIRMAN PVT. LTD. (HEREINAFTER CALLED THAKKER GROUP) 4. THE SELLER OF THE SAID LANDS ARE AS UNDER :- (I) MS. FARZANA SALLAUDDIN KOKANI (II) MR. FAKRUDDIN SALLAUDDIN KOKANI (III) MS. NOORBANO SALLAUDDIN KOKANI (IV) MR. KADARSAHEB KUTUBUDDIN KOKANI (V) MS. YASMIN KADARSAHEB KOKANI (VI) MR. AIJAJ KUTUBUDDIN KOKANI (VII) MR. MUZAFFAR KUTUBUDDIN KOKANI (VIII) MR. GULNAR ALLAUDDIN KOKANI (IX) MS. NAIDA ANJUM SAMEER KOKANI (X) MR. NIZAMUDDIN FARIDODDIN KOKANI (XI) MR. IFTEKAR FARIDODDIN KOKANI (XII) MR. TAMIZODDIN FARIDODDIN KOKANI (XIII) MR. GULAMGAUS ALLAUDDIN KOKANI (XIV) MR. MAINUDDIN NIZAMODDIN KOKANI (HEREINAFTER CALLED KOKANI GROUP) 5. THERE WERE ALSO SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE ACT IN THE PREMISES OF SAID KOKANI GROUP OF NASHIK ON 15.01.2015. DURING THE COURSE OF SEARCH PROCEEDINGS IN THE SAID KOKANI GROUP, CERTAIN LOOSE SHEETS WERE 4 IT(SS)A NOS.65, 67 & 69/PUN/2017 FOUND AND SEIZED WHICH INCLUDES THE SATHE KHAT AGREEMENT. ALL THESE TRANSACTIONS OF THE LAND WERE ALSO FOUND AND SEIZED FROM THE PREMISES MARKED AS ANNEXURE A-1, ITEM NO.4, PAGE NO.1 TO 76. THAT APART, THE DEPARTMENT ALSO FOUND ITEM NO.5, PAGE NO.17 OF ANNEXURE A-1 A LOOSE SHEET CONTAINING NOTINGS AGGREGATING TO SUM OF RS.8,58,19,700/- AND PAGE NO.5 IN THE SAME ANNEXURE ALSO CONTAINS A NOTINGS AGGREGATING TO SUM OF RS.3,36,00,000/- SCANNED IMAGES OF THESE LOOSE SHEETS ARE EXTRACTED BY THE ASSESSING OFFICER VIDE PAGE NO.7 AND 8 OF THE ASSESSMENT ORDER. ACCORDING TO THE ASSESSING OFFICER, THESE NOTINGS INDICATE THE RECEIPT OF ON-MONEY ON SALE OF THE SAID LAND FROM THIS THAKKER GROUP OF COMPANIES. THE AMOUNT MENTIONED IN THE SAID NOTINGS AGGREGATE TO A SUM OF RS.11,94,19,700/-. THE ABOVE AMOUNT OF RS.11,94,19,700/- CAME TO BE DISCLOSED IN THE HANDS OF THIS KOKANI GROUP U/S 132(4) OF THE ACT STATING THAT THIS REPRESENTS THE AMOUNT RECEIVED OVER AND ABOVE THE STATED CONSIDERATION IN THE SAID SALE DEED FROM THE THAKKER GROUP OF COMPANIES. 6. THE ASSESSING OFFICER THEN PROCEEDED WITH ANALYSIS OF THE SEIZED MATERIAL FOUND FROM THE PREMISES OF THE SELLERS, NAMELY, (I) MR. FAKRUDDIN S. KOKANI (PARTY NO.R-1), (II) MR. IMRAN IFTEKAR KOKANI (PARTY NO.R-2), (III) MRS. NIZAMODDIN KOKANI (PARTY NO.R-4) AND (IV) MR. TAMIZUDDIN KOKANI (PARTY NO.R-5). THE ASSESSING OFFICER AFTER ANALYZING THE DOCUMENTS FOUND AND SEIZED IN THE CASE OF MR. IMRAN IFTEKAR KOKANI SCANNED IMAGES OF WHICH ARE EXTRACTED AT PAGE NO.11 OF THE ASSESSMENT ORDER, CONCLUDED THAT LETTER T FINDING PLACE IN THE LOOSE SHEET REPRESENTS THAKKER AND THE AMOUNTS FOUND THEREIN REPRESENTS THE CONSIDERATION RECEIVED FROM THE SAID THAKKER GROUP OF COMPANY. ACCORDINGLY, HE DREW ADVERSE INFERENCE THAT VENDORS I.E. KOKANI GROUP HAD RECEIVED CASH FROM THE THAKKER GROUP OF COMPANIES OVER AND ABOVE THE STATED CONSIDERATION IN PROPORTION TO THE SHARE OF LAND HELD BY HIM IN THE SUBJECT LAND SOLD TO THAKKER GROUP. 5 IT(SS)A NOS.65, 67 & 69/PUN/2017 7. SIMILARLY, THE ASSESSING OFFICER ALSO ANALYZED THE SEIZED DOCUMENTS FOUND AND SEIZED FROM THE PREMISES OF MR. TAMIZUDDIN KOKANI MARKED AS ANNEXURE- A, ITEM NO.1 & 2, CONCLUDED THAT THE SAID MR. TAMIZUDDIN KOKANI INCURRED CASH EXPENSES TO THE EXTENT OF RS.3.34 CRORES ON DEVELOPMENT OF VARIOUS LANDS AT SAVARGAON. THE SCANNED IMAGES OF SEIZED DOCUMENTS ARE REPRODUCED VIDE PAGE NO.13 AND 14 OF THE ASSESSMENT ORDER. HOWEVER, DESPITE SEVERAL NOTICES ISSUED TO THE SAID MR. TAMIZUDDIN KOKANI, HE HAD NOT TURNED UP FOR EXAMINATION BEFORE THE ASSESSING OFFICER. HOWEVER, THE ASSESSING OFFICER TAKING NOTE OF THE FACT THAT THE SHARE OF THE SAID MR. TAMIZUDDIN KOKANI OUT OF THE CASH RECEIPT OF RS.11.94 CRORES IS ONLY RS.1.41 CRORES AND IN THE ABSENCE OF ANY OTHER SOURCE OF INCOME, HE PRESUMED THAT THIS CASH EXPENSES WERE INCURRED ON DEVELOPMENT OF LAND WAS OUT OF ON- MONEY RECEIVED ON THE SALE OF THE SUBJECT LAND TO THE THAKKER GROUP. 8. FURTHER, ON ANALYSIS OF THE DOCUMENTS FOUND AND SEIZED FROM THE PREMISES MR. ASIF NIZAMODDIN KOKANI, WHO HAD 11.82% SHARE IN THE SUBJECT LAND SOLD, THE ASSESSING OFFICER FOUND THAT THE SAID MR. ASIF NIZAMODDIN KOKANI HAD PURCHASED LAND BY PAYING THE CONSIDERATION IN CASH AND CASH EXPENDITURE WAS INCURRED FOR THE PURPOSE OF CONSTRUCTING THE BUNGLOW AND PURCHASE OF JEWELLERY AND CASH DEPOSITS IN BANKS. THE TOTAL EXPENDITURE ON THE ABOVE AGGREGATING TO SUM OF RS.5.91 CRORES. THE DETAILS OF WHICH ARE EXTRACTED BY THE ASSESSING OFFICER AT PAGE NO.15 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER IS OF THE OPINION THAT THE SHARE OF CASH RECEIVED IN SAVARGAON LAND, THE SHARE OF THE SAID MR. ASIF NIZAMODDIN KOKANI IS ONLY 1.41 CRORES AND IN THE ABSENCE OF ANY OTHER SOURCES OF INCOME THERE WAS NO POSSIBILITY INCURRING THE EXPENDITURE TO THE TUNE OF 5.91 CRORES IN CASH. HE THEN CONCLUDED THAT THE SOURCES OF CASH EXPENDITURE ARE ONLY OUT OF ON- MONEY RECEIVED FROM THAKKER GROUP. 6 IT(SS)A NOS.65, 67 & 69/PUN/2017 9. FURTHER, FROM THE DOCUMENTS FOUND AND SEIZED FROM THE PREMISES OF MR. FAKRUDDIN S. KOKANI, ANNEXURE-A, ITEM NO.1 TO 7 FOUND THAT THE CASH RECEIPT OF RS.8.58 CRORES WAS APPLIED BY 3 PARTIES, NAMELY, (I) MR. FAKRUDDIN S. KOKANI, (II) MS. FARZANA S. KOKANI AND (III) MS. NOORBANO S. KOKANI. THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE SELLERS OF LAND NAMELY, KOKANI GROUP THAT CASH OF RS.8.58 CRORES WAS RECEIVED ON BEHALF OF ALL THE SELLERS AND ALSO GAVE A FINDING THAT MR. FAKRUDDIN KOKANI AND MR. FAKRUDDIN S. KOKANI TOGETHER HELD ON 13.16% OF THE SUBJECT LANDS SOLD, THE TOTAL ON-MONEY CASH RECEIVED BY THIS GROUP OF PERSONS COMES TO RS.8,58,19,700/-. BASED ON THIS, HE CONCLUDED THAT ALL OTHER SELLERS ALSO RECEIVED EQUAL AMOUNT OF CASH OVER AND ABOVE THE AMOUNT STATED IN THE SALE DEEDS. 10. SIMILARLY, THE ASSESSING OFFICER ALSO ANALYZED THE DOCUMENTS FOUND AND SEIZED FROM THE PREMISES OF MR. REHANA TAMIZUDDIN KOKANI WHO IS PARTY NO.R-5 CONTAINING TOTAL PAGES NO.1 TO 128 WHEREIN NOTINGS OF TITLE AS SAVARGAON LAND EXPENSES WERE FOUND. COPY OF THE PAPERS IS EXTRACTED AT PAGE NO.19 OF THE ASSESSMENT ORDER. THE AGGREGATE EXPENDITURE INCURRED ON ACCOUNT OF SALE OF THE SAVARGAON LAND BELGAON, MHASRUL & OTHERS TOTALING TO RS.3,31,05,459/- LEAVING BALANCE OF RS.3,36,99,334/-. THE ASSESSING OFFICER ALSO REJECTED THE EXPLANATION GIVEN BY THE APPELLANT THAT THE ABOVE EXPENDITURE WAS INCURRED OUT OF THE CASH RECEIPT OF RS.3.36 CRORES RECEIVED ON BEHALF OF ALL THE SELLERS OF KOKANI FAMILY ON THE GROUND THAT ENTIRE AMOUNT OF RS.3.31 CRORES RECEIVED ON BEHALF OF ALL THE SELLERS, AS TO HOW ONLY MR. REHANA TAMIZUDDIN KOKANI OF SUCH KOKANI GROUP ALONE INCURRED RS.3,31,05,459/- ON HIS BEHALF. BASED ON THE ABOVE ANALYSIS AND FINDINGS, THE ASSESSING OFFICER CAME TO CONCLUSION THAT ALL THE SELLERS OF KOKANI FAMILY HAD RECEIVED SALE CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION RECEIVED BY CHEQUE AND EQUIVALENT AMOUNT IN CASH ALSO. THE SAID AMOUNT OF RS.65,21,25,992/- WAS DIVIDED AMONG ALL THE SELLERS OF THE LAND OF KOKANI FAMILY IN PROPORTION TO THE 7 IT(SS)A NOS.65, 67 & 69/PUN/2017 LAND HELD BY THEM. THE DETAILS OF APPORTIONMENT OF THE SAID ALLEGED ON-MONEY RECEIVED ARE CONTAINED IN PAGE NO.20 OF THE ASSESSMENT ORDER. 11. SIMILARLY, THE ASSESSING OFFICER PRESUMED THAT THE THAKKER GROUP OF COMPANIES WHO PURCHASED THE LAND FROM KOKANI GROUP OF COMPANIES HAVE PAID CONSIDERATION IN CASH, IN ORDER TO EXAMINE THEM, A NOTICE U/S 131 OF THE ACT WAS ISSUED ON 02.01.2015 TO ONE MR. GAURAV J. THAKKER, WHO IS STATED TO HAVE BEEN DENIED HAVING PAID ANY CONSIDERATION OVER AND ABOVE WHAT IS STATED IN THE SALE CONSIDERATION. THE ASSESSING OFFICER ALSO ISSUED A SHOW CAUSE NOTICE TO ONE MR. ABHISHEK THAKKER WHO WAS SUPPOSED TO HAVE BEEN INVOLVED IN THIS LAND TRANSACTION. IT APPEARS THAT HE HAD NOT COMPLIED WITH THE SUMMONS ISSUED U/S 131 OF THE ACT. 12. BASED ON THE INFORMATION AND CONSIDERING THE FACT THAT THE SELLER OF THE SUBJECT LAND I.E. KOKANI FAMILY MEMBERS HAD STATED IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT, DURING THE COURSE OF SEARCH IN THEIR HANDS THAT THEY ACCEPTED THE CASH OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED TO THE TUNE OF RS.11,94,19,700/-, THE ASSESSING OFFICER DREW INFERENCE THAT THE THAKKER GROUP HAD PAID ON-MONEY OF RS.65,21,25,992/- AT THE TIME OF PURCHASE OF LAND TO THE KOKANI GROUP AND SAID CONSIDERATION WAS DIVIDED AMONG THE BUYERS OF THE LAND IN THE PROPORTION OF THE LAND PURCHASED BY THEM. THE APPELLANT WAS BEING PURCHASER OF 20 ACRES OF THE LAND OUT OF 92.5 ACRES WAS ASKED TO EXPLAIN THE SOURCE OF THE ALLEGED ON-MONEY PAYMENT OF RS.14,10,00,214/- VIDE SHOW-CAUSE NOTICE DATED 07.12.2016. IN RESPONSE TO THE SHOW-CAUSE NOTICE, THE ASSESSEE SUBMITTED REPLY VIDE LETTER DATED 23 RD DECEMBER, 2016 SAID REPLY WAS EXTRACTED BY THE ASSESSING OFFICER AT PAGE 24 TO 42 I.E. PARA 11 OF THE ASSESSMENT ORDER. THE GIST OF THE EXPLANATION TO THE SHOW CAUSE NOTICE CAN BE SUMMARIZED AS UNDER :- 8 IT(SS)A NOS.65, 67 & 69/PUN/2017 I. THE ALLEGATION THAT THE THAKKER GROUP OF COMPANIES HAD PAID ON- MONEY CONSIDERATION TO KOKANI GROUP IS DENIED, AS IT IS BASED ON PURELY ON DOUBT, PRESUMPTION AND CONJECTURES AS THE ANALYSIS OF THE LOOSE SHEETS FOUND IN THE BUSINESS PREMISES OF THE SELLERS OF THE LAND IS PURELY BASED ON ASSUMPTION, PRESUMPTION, AND THERE IS NOTHING ON RECORD SUGGESTING THAT THE FIGURES FINDING PLACE IN THE LOOSE SHEETS ARE IN RELATION TO THE SALE OF THE SUBJECT LAND. II. THE CONCLUSION RECEIVED BY ASSESSING OFFICER BASED ON THE NOTINGS FOUND IN THE LOOSE SHEETS IS BASED ON INVESTIGATION, SUSPICIOUS ETC. THE FINDINGS OF THE ASSESSING OFFICER THAT THE SELLERS OF THE PARTY HAVE INCURRED EXPENDITURE IN CASH IS ONLY OUT OF THE RECEIPT OF ON- MONEY FROM THE THAKKER GROUP OF COMPANIES IS MERELY BASED ON SUSPICIOUS, INVESTIGATION. THERE IS NO MATERIAL ON RECORD TO SUGGESTING THAT THE SELLERS OF THE LAND HAVE INCURRED EXPENSES IN CASH. THE DOCUMENTS FOUND AND SEIZED DOES NOT REVEAL ANYTHING. THEY ARE SIMPLY A DUMB DOCUMENTS AND THE SELLERS OF THE LAND I.E. KOKANI GROUP HAD FLATLY DENIED THE ALLEGATION OF RECEIPT OF ANY ON-MONEY OVER AND ABOVE THE STATED CONSIDERATION OF RS.65,21,25,992/- ON CROSS EXAMINATION. III. THE APPELLANT ALSO RULED OUT THE PROBABILITY OF PAYMENT OF ON- MONEY CONSIDERATION CITING THE FACT THAT THE STATED CONSIDERATION IN A SALE DEED WAS RS.65,21,25,992/- AS AGAINST THE VALUATION AS PER STAMP DUTY READY RECKONER OF RS.6,52,00,000/- I.E. TEN TIMES HIGHER THAN THE STAMP DUTY VALUATION AND ALSO GIVING COMPARABLE SALE INSTANCE OF LOCALITY. IV. DURING THE COURSE OF SEARCH PROCEEDINGS IN THE THAKKER GROUP OF COMPANIES ON 15.01.2015, NO EVIDENCE WHATSOEVER WAS FOUND IN SUPPORT OF PAYMENT OF ON-MONEY CONSIDERATION OF RS.65,21,24,992/- OVER AND ABOVE THE APPARENT CONSIDERATION. THE SELLERS OF THE LAND WERE 9 IT(SS)A NOS.65, 67 & 69/PUN/2017 ALSO ENTERED INTO OTHER LAND DEALS. THEREFORE, IT CANNOT BE PRESUMED THAT, IF AT ALL, THERE IS RECEIPT OF ANY ON-MONEY BY KONKANI GROUP, IT IS ONLY FROM THAKKER GROUP. V. THE APPELLANT ALONG WITH OTHER CO-OWNERS OF SUBJECT LAND OFFERED TO SELL THE LAND TO MIDC FOR CONSIDERATION OF RS.90 LAKHS PER ACRE VIDE OFFER LETTER DATED 06.12.2014 AND THEREFORE THIS FACT ONLY SUGGESTS THAT THERE WAS NO POSSIBILITY OF BUYING THE LAND WORTH RS.83,25,00,000/- FOR RS.130.42 CRORES. VI. ALL THE SELLERS OF THE LAND HAD SPECIFICALLY DENIED THE RECEIPT OF ANY ON-MONEY CONSIDERATION ON THE SALE OF SUBJECT LANDS ON THE CROSS- EXAMINATION AND THE DECLARATION OF RS.11.9 CRORES U/S. 132(4) OF THE ACT WAS ONLY WITH AN INTENTION TO BUY PEACE WITH THE DEPARTMENT. 13. THE LD. ASSESSING OFFICER AFTER EXTRACTING THE REPLY FURNISHED TO THE SHOW CAUSE NOTICE WHILE REITERATING HIS EARLIER FINDINGS, HAD PROCEEDED WITH THE FRAMING OF THE ASSESSMENT ORDER BY MAKING ADDITION IN THE HANDS OF THAKKER GROUP OF COMPANY, IN PROPORTION TO THE LAND PURCHASED BY THE THAKKER GROUP OF COMPANIES. ACCORDINGLY, THE ADDITION OF RS.14,10,00,214/- WAS MADE IN THE HANDS OF APPELLANT HEREIN FOR THE ASSESSMENT YEARS 2011-12, 2012-13, 2013-14 AND 2014-15. 14. ACCORDINGLY, AN AMOUNT OF RS.10,06,60,653/- WAS TAXED FOR THE YEAR UNDER CONSIDERATION VIDE ASSESSMENT ORDER DATED 30.12.2016 PASSED U/S 143(3) R.W.S. 153A OF THE ACT. 15. BEING AGGRIEVED BY THE ASSESSMENT ORDER, AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 27.06.2017 HAD PARTIALLY GRANTED RELIEF TO THE APPELLANT BY CONFIRMING THE ADDITION TO THE EXTENT OF AMOUNT ADMITTED IN THE STATEMENTS RECORDED U/S 132(4) OF THE ACT BY KOKANI GROUP AND GRANTED RELIEF IN RESPECT OF BALANCE OF RS.65,21,25,992/- 10 IT(SS)A NOS.65, 67 & 69/PUN/2017 IN THE ENTIRE GROUP OF COMPANIES. THUS, THE APPEAL FILED BY THE ASSESSEE CAME TO BE PARTIALLY ALLOWED BY THE LD. CIT(A). THE RELEVANT FINDINGS OF LD. CIT(A) WERE PARAS 6.7 AND 6.8 OF THE ORDER OF LD. CIT(A), WHEREIN THE LD. CIT(A) SUMMARIZED AS UNDER: A) THE VERSION OF THE ASSESSING OFFICER THAT KOKANI GROUP OF COMPANIES HAVE STARTED RECEIPT OF ON-MONEY CONSIDERATION IN CASH TWO AND HALF YEARS PRIOR TO THE AGREEMENT OF PURCHASE I.E. 01.07.2013 IS UNBELIEVABLE. B) THERE IS NO INCRIMINATING MATERIAL FOUND IN THE PREMISES OF THE APPELLANT OR ITS GROUP OF COMPANIES AS A RESULT OF SEARCH AND SEIZURE ACTION. C) THE SALE CONSIDERATION PAID BY THE ASSESSEE AND HIS GROUP OF COMPANIES IS TEN TIMES HIGHER THAN THE READY RECKONER VALUE AND THE APPELLANT COMPANY ITSELF HAS OFFERED THE SAME LAND TO MIDC FOR RS.90 LAKHS PER ACRE VIDE OFFER DATED 06.12.2014 AND IN VIEW OF THIS, THE ASSESSING OFFICERS FINDING THAT THE APPELLANT GROUP OF COMPANIES BOUGHT THE LAND AT RS.141 LAKHS PER ACRE IN 2013 DOES NOT HOLD WATER. 16. BASED ON THIS FINDING, THE LD. CIT(A) DELETED THE ADDITION IN THE HANDS OF THAKKER GROUP OF COMPANIES OF ON-MONEY CONSIDERATION EXCEPT RS.11,94,90,700/- WHICH WAS ADMITTED BY KOKANI GROUP U/S 132(4) OF THE ACT. THE LD. CIT(A) ALSO DELETED THE ADDITION MADE FOR THE ASSESSMENT YEARS 2011-12 AND 2012-13, AS THE SEIZED MATERIAL DOES NOT INDICATE ANY PAYMENT OF ON-MONEY CONSIDERATION DURING PERIOD RELEVANT FOR THOSE ASSESSMENT YEARS. THUS, THE LD. CIT(A) CONFIRMED THE ADDITION IN THE HANDS OF APPELLANT ONLY TO THE EXTENT OF RS.2,58,20,476/- I.E. 0.2162% OF RS.11,94,19,700/- FOR A.Y. 2014-15. BEING AGGRIEVED BY THAT PART OF THE ORDER WHICH IS AGAINST THE 11 IT(SS)A NOS.65, 67 & 69/PUN/2017 ASSESSEE, THE APPELLANT IS IN APPEAL IN IT(SS)A NO.65/PUN/2017 AND THE REVENUE IS IN APPEAL BEING AGGRIEVED BY THAT PART OF CIT(A) ORDER WHICH IS AGAINST THE REVENUE IN IT(SS)A NO.69/PUN/2017. 17. NOW, WE SHALL TAKE UP THE APPEAL OF ASSESSEE IN IT(SS)A NO.65/PUN/2017. 18. THE APPELLANT RAISED THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN UPHOLDING THE INITIATION OF LEGALLY UNTENABLE PROCEEDINGS U/S 153A AND IN ISSUING LEGALLY UNTENABLE NOTICE U/S 153A IN ABSENCE OF ANY INCRIMINATING MATERIAL OR UNEXPLAINED ASSET FOUND DURING SEARCH ACTION AT 7, THAKKERS, NEAR NEHRU GARDEN, NASHIK 422001. THEREFORE, IT IS PRAYED TO ANNUL THE ASSESSMENT ORDER, PASSED U/S 153A IN THE CASE OF APPELLANT. 2. IN THE FACTS OF THE CASE, EVIDENCES ON RECORD, SUBMISSIONS MADE & CASE LAW RELIED, THE LEARNED CIT(A) ERRED IN HOLDING THAT, ON- MONEY AGGREGATING TO RS.11,94,19,700/- WAS PAID BY ALL THE PURCHASERS OF AGRICULTURAL LAND AT S. NOS.53/2, 54 & 55 OF SAVARGAON, TAL & DIST : NASHIK & APPELLANTS SHARE THEREIN AMOUNTED TO RS.2,58,20,476/-, GIVING RISE TO THE UNEXPLAINED INVESTMENT LIABLE FOR TAXATION IN THE HANDS OF APPELLANT FOR A.Y. 2014-15 AT RS.2,58,20,476/-. THEREFORE, IT IS PRAYED TO CANCEL THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS.2,58,20,476/-. 19. THE GROUND OF APPEAL NO.1 CHALLENGING THE LEGALITY OF NOTICE U/S 153A WAS NOT PRESSED DURING THE COURSE OF HEARING OF APPEAL. 20. THE GROUND OF APPEAL NO.2 CHALLENGES THE FINDINGS OF LD. CIT(A) CONFIRMING THE ADDITION TO THE EXTENT OF RS.2,58,20,476/- RESTRICTING THE ADDITION TO THE EXTENT OF DISCLOSURE OF INCOME U/S 132(4) BY KOKANI GROUP FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON ACCOUNT OF ALLEGED RECEIPT OF ON- MONEY CONSIDERATION STATED TO HAVE BEEN PAID TO KOKANI GROUP OF COMPANIES ON PURCHASE OF SUBJECT LAND. 21. ADMITTEDLY, THE ADDITION WAS CONFIRMED BY THE LD. CIT(A) BASED ON THE STATEMENT GIVEN BY KOKANI FAMILY MEMBERS U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS IN THEIR PREMISES. 12 IT(SS)A NOS.65, 67 & 69/PUN/2017 22. THE LD. AR SUBMITTED THAT THE FACT THAT KOKANI GROUP ADMITTED ADDITIONAL INCOME IN THE APPLICATION FILED BEFORE THE SETTLEMENT COMMISSION IS NEITHER CONCLUSIVE NOR HAS ANY IMPACT ON THE ASSESSMENT OF INCOME IN THE HANDS OF BUYERS OF THE PROPERTY AS THE DISCLOSURE SHOULD HAVE BEEN MADE BY THE VENDORS TO SUIT THEIR AGENDA I.E. MINIMIZING THE TAX LIABILITY BY OFFERING THE AMOUNT AS LONG TERM CAPITAL GAINS. IT IS SUBMITTED THAT THE FAMILY MEMBERS OF KOKANI GROUP HAVE ALSO INDULGED IN SEVERAL LAND TRANSACTIONS FOR THE LAST SIX YEARS. THE LD. AR ALSO SUBMITTED THAT THE VENDORS OF PROPERTIES I.E. KOKANI GROUP HAVE DENIED RECEIPT OF ANY ON-MONEY ON CROSS-EXAMINATION. THUS, IT IS SUBMITTED THAT THERE WAS NO CONCLUSIVE EVIDENCE ON RECORD TO ESTABLISH THE PAYMENT OF ON-MONEY CONSIDERATION, THEREFORE, NO ADDITION CAN BE MADE BASED ON THE PRESUMPTIONS, ASSUMPTIONS, CONJUNCTURES, ETC. FINALLY, IT IS SUBMITTED THAT THE FINDINGS OF THE SETTLEMENT COMMISSION IN THE HANDS OF VENDORS IS NOT BINDING IN THE HANDS OF BUYERS OF THE LAND, RELIANCE IN THIS REGARD WAS PLACED ON THE DECISIONS OF CIT VS. VINEETA GUPTA (2014) 46 TAXMANN.COM 439 (DEL) AND P.G. FOILS LTD. VS. INCOME-TAX SETTLEMENT COMMISSION (2008) 302 ITR 331 (MAD). 23. IN REJOINDER, LD. CIT-DR PLACING HEAVY RELIANCE ON THE ORDERS OF ASSESSMENT AS WELL AS LD. CIT(A), SUBMITTED THAT THE STATEMENT RECORDED BY THE DEPARTMENT FROM KOKANI GROUP U/S 132(4) OF THE ACT IS AN ESTABLISHED FACTUM OF PAYMENT OF ON-MONEY CONSIDERATION AND THE KOKANI GROUP OF PEOPLE HAVE NO OTHER SOURCE OF INCOME EXCEPT THE SALE OF SUBJECT LANDS TO THE APPELLANT GROUP OF COMPANIES. IT IS SUBMITTED THAT THE STATEMENT RECORDED U/S 132(4) OF THE ACT READ WITH SEIZED MATERIAL ARE CONCLUSIVE PROOF OF PAYMENT OF ON-MONEY CONSIDERATION AT THE TIME OF PURCHASE OF THE SUBJECT LANDS. THUS, HE PRAYED TO UPHOLD THE ADDITION AS CONFIRMED BY THE LD. CIT(A). 13 IT(SS)A NOS.65, 67 & 69/PUN/2017 24. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ONLY ISSUE IN THE PRESENT APPEAL RELATES TO THE ADDITION OF RS.2,58,20,476/- BASED ON THE STATEMENT GIVEN BY THIRD PARTY NAMELY KOKANI GROUP OF COMPANIES DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS IN THEIR HANDS U/S 132(4) OF THE ACT. ADMITTEDLY, NO INCRIMINATING MATERIAL SUGGESTING THE PAYMENT OF ON-MONEY CONSIDERATION TO THE VENDORS OF THE SUBJECT LAND WAS FOUND AS RESULT OF SEARCH AND SEIZURE ACTION IN THE HANDS OF APPELLANT HEREIN. WE ARE CONSCIOUS OF THE FACT THAT FOR THE PURPOSE OF ASSESSMENT TO TAX FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH AND SEIZURE ACTION HAS NO RELEVANCE, AS THERE IS ABATEMENT WITH REGULAR ASSESSMENT PROCEEDINGS, THEREFORE, THE ADDITION, IF ANY, NEED NOT BE BASED ON INCRIMINATING MATERIAL FOUND AS RESULT OF SEARCH ALONE. ALL OTHER EVIDENCE WHICH IS GATHERED BY THE ASSESSING OFFICER AS A RESULT OF ENQUIRIES CONDUCTED BY HIM CAN ALSO BE CONSIDERED IN REGULAR ASSESSMENT ALONG WITH MATERIAL FOUND AS RESULT OF SEARCH AND SEIZURE ACTION. HOWEVER, THE ADDITIONS, IF ANY, CAN BE MADE ONLY BASED ON THE CONCLUSIVE EVIDENCES BROUGHT ON RECORD BY THE ASSESSING OFFICER. 25. FROM THE PERUSAL OF ASSESSMENT ORDER AS WELL AS LD. CIT(A)S ORDER, IT WOULD SUGGEST THAT THE ADDITION OF RS. 2,58,20,476/- WAS MADE/CONFIRMED MERELY BASED ON THE STATEMENT GIVEN U/S 132(4) OF THE ACT BY THE VENDORS OF THE PROPERTY I.E. KOKANI GROUP THAT THEY RECEIVED ON-MONEY PAYMENT OF RS.11,94,19,700/- ON SALE OF LANDS. 26. WE PERUSED THE COPIES OF STATEMENT RECORDED U/S 132(4) OF THE ACT FROM THE VENDORS OF THE PROPERTY. THE SAME ARE PLACED AT PAGES NO.292 TO 400 OF THE PAPER BOOK FILED BY THE APPELLANT. THE STATEMENTS WERE RECORDED ON 08.09.2015 U/S 132 OF THE ACT DURING THE COURSE OF SEARCH AND SEIZURE 14 IT(SS)A NOS.65, 67 & 69/PUN/2017 OPERATION IN THE CASE OF KOKANI GROUP. THE STATEMENTS WERE RECORDED FROM FOLLOWING PERSONS. (I) MR. FAKRUDDIN SALLAUDDIN KOKANI (II) MS. FARZANA SALLAUDDIN KOKANI (III) MS. NOORBANO SALLAUDDIN KOKANI (IV) MR. AIJAJ KUTUBUDDIN KOKANI (V) MR. TAMIZODDIN FARIDODDIN KOKANI (VI) MR. IMRAN IFTEKHAR KOKANI (VII) NOORUDDIN S. KOKANI (VIII) MOINUDDIN ZIAUDDIN KOKANI (IX) MR. REHANA TAMIZUDDIN KOKANI (X) MR. GULAM GAUS KOKANI 27. THE ABOVEMENTIONED PERSONS UNDOUBTEDLY HAVE STATED THAT THEY RECEIVED ON-MONEY RECEIPT OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE CONSIDERATION ON SALE OF SAVARGAON LAND. HOWEVER, IT IS SIGNIFICANT TO NOTE THAT THEY NEVER MENTIONED THE NAME OF THE THAKKER GROUP NOR FIND PLACE ANYWHERE IN SEIZED MATERIAL. 28. WE FIND FROM THE RECORD THAT THE THAKKER GROUP OF COMPANIES INCLUDING THE APPELLANT WERE AFFORDED AN OPPORTUNITY TO CROSS-EXAMINE THE VENDORS. DURING THE COURSE OF SUCH CROSS-EXAMINATION, ALL OF THEM CATEGORICALLY STATED THAT THEY HAVE NOT RECEIVED ANY ON-MONEY CONSIDERATION ON THE SALE OF SAVARGAON LAND FROM THAKKER GROUP AND IT WAS FURTHER STATED THAT THE ADDITIONAL INCOME WAS OFFERED ONLY IN ORDER TO BUY PEACE OF THE DEPARTMENT. THE STATEMENTS OF CROSS-EXAMINATION WERE PLACED AT PAGE NOS. 256 TO 264 OF THE PAPER BOOK FILED BY THE APPELLANT. 29. THE VENDORS ALSO FILED AN AFFIDAVIT STATING THAT THE DECLARATION OF ADDITIONAL INCOME WAS MADE ONLY WITH AN INTENTION TO BUY PEACE OF THE 15 IT(SS)A NOS.65, 67 & 69/PUN/2017 DEPARTMENT AND AVOID FURTHER LITIGATION AND ALSO DENIED THE KNOWLEDGE OF RECEIPT OF THE ON-MONEY CONSIDERATION AS THE SUBJECT TRANSACTION OF SALE OF LAND TO THAKKER WAS NEGOTIABLE BY TWO OF THE DECEASED FAMILY MEMBERS NAMELY, MOINUDDIN ZIAUDDIN KOKANI AND IMRAN IFTEKHAR KOKANI. THE SAID AFFIDAVITS WERE PLACED AT PAGE NO. 265 TO 291 OF THE PAPER BOOK. 30. IN THE ABOVE FACTUAL BACKDROP, WE ARE REQUIRED TO EVALUATE THE EVIDENTIARY VALUE OF THE STATEMENT GIVEN BY THE VENDORS U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH AND SEIZURE ACTION IN THEIR PREMISES. AS STATED (SUPRA), THERE ARE CLEAR CONTRADICTION IN THE STATEMENTS GIVEN BY THE VENDORS. IT IS SETTLED POSITION OF LAW THAT THE CONTRADICTORY STATEMENT HAS NO EVIDENTIARY VALUE AND REFERENCE IN THIS REGARD CAN BE MADE TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF DHIRAJLAL GIRIDHARILAL VS. CIT, 26 ITR 736 (SC). 31. FURTHERMORE, DURING THE COURSE OF SEARCH AND SEIZURE ACTION IN THE PREMISES OF THE APPELLANT GROUP, NO INCRIMINATING MATERIAL WAS FOUND SUGGESTING THE PAYMENT OF ANY ON-MONEY CONSIDERATION. IT IS ALSO SETTLED POSITION OF LAW THAT NO ADDITION CAN BE MADE THE MERELY BASED STATEMENT U/S 132(4) OF THE ACT BY THIRD PARTY IN THE ABSENCE OF ANY INCRIMINATING MATERIAL ON RECORD AND REFERENCE CAN BE MADE TO THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF PCIT VS. KUNVARJI COMMODITIES BROKERS PVT. LTD., 432 ITR 150. IN THE LIGHT OF THE ABOVE DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT THE MERE STATEMENT GIVEN BY THE VENDORS OF THE LAND U/S 132(4) OF THE ACT, CANNOT FORM BASIS FOR MAKING ANY ADDITION IN THE HANDS OF APPELLANT. 32. ANOTHER IMPORTANT FACTOR TO BE CONSIDERED IS THE FACT THAT THE VENDORS HAD ADMITTED EQUIVALENT ADDITIONAL INCOME TO THE AMOUNT STATED IN THE SALE DEED AS THE ADDITIONAL INCOME. UNDISPUTEDLY, THE VENDORS OF THE PROPERTIES I.E. KOKANI GROUP HAD DISCLOSED ADDITIONAL INCOME OF RS.65,21,25,992/- AS 16 IT(SS)A NOS.65, 67 & 69/PUN/2017 ADDITIONAL INCOME IN THE APPLICATION FILED BEFORE THE SETTLEMENT COMMISSION STATED TO BE ON ACCOUNT OF SALE OF LANDS. IT IS SIGNIFICANT TO NOTE THAT ON PERUSAL OF PAGE NO.14 ORDER DATED 17.07.2018 PASSED BY SETTLEMENT COMMISSION IN THE CASE OF KOKANI GROUP, IT IS CLEAR THAT THOUGH THEY OFFERED ADDITIONAL INCOME OF RS.65,21,25,992/- AN AMOUNT OF RS.52,34,32,696/- WAS CLAIMED AS DEDUCTION U/S 54, THIS FACT CASTS DOUBT AND BONA-FIDES ON THE PART OF KOKANI GROUP IN OFFERING ADDITIONAL INCOME. 33. THEREFORE, THE QUESTION IS WHETHER ABOVEMENTIONED FACTS CAN FORM THE BASIS TO FORM AN OPINION THAT THE APPELLANT MADE AN UNDISCLOSED INVESTMENT IN THE PURCHASE OF PROPERTY IN THE FORM OF PAYMENT OF ON-MONEY CONSIDERATION. THE ANSWER IS NO. IT IS TRITE LAW THAT A FINDING IN THE ASSESSMENT OF ONE PERSON IS NOT CONCLUSIVE IN THE ASSESSMENT OF ANOTHER PERSON IN VIEW OF THE SETTLED POSITION OF LAW THAT MATERIAL GATHERED IN THE ASSESSMENT PROCEEDINGS OF ONE PERSON IS NOT LEGAL EVIDENCE IN THE ASSESSMENT OF ANOTHER PERSON. REFERENCE CAN BE MADE TO THE DECISION OF N. S. CHOODAMANI VS. CIT, 35 ITR 676 (KERALA). THE ASSESSMENT OF EACH PERSON IS SEPARATE AND DISTINCT AND AN ADDITION IS TO BE MADE ONLY ON THE BASIS OF INDEPENDENT CORROBORATIVE EVIDENCE, BROUGHT ON RECORD BY THE ASSESSING OFFICER. IT IS TRITE LAW THAT THE ASSESSMENT IS FINAL AND CONCLUSIVE BETWEEN PARTIES AND ONLY IN RELATION TO ASSESSMENT FOR THE FINANCIAL YEAR FOR WHICH IT IS MADE. REFERENCE CAN BE MADE DECISION OF HONBLE SUPREME COURT IN THE CASE OF M.M. IPOH & ORS. VS. CIT, 67 ITR 106 (SC). 34. THIS IS UNDERLYING PRINCIPLE IN THE DECISION BY HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD VS. CIT, 243 ITR 83, WHEREIN THE HONBLE SUPREME COURT AFTER REFERRING TO THE EARLIER DECISION IN THE CASE OF SMT. TARADEVI AGRAWAL, 88 ITR 323 HELD THAT MERELY BECAUSE OF AN ASSESSMENT OF INCOME IN THE WRONG HANDS IS NOT BAR TO ASSESS THE SAME 17 IT(SS)A NOS.65, 67 & 69/PUN/2017 INCOME IN THE RIGHT HANDS AND FAILURE BY THE ASSESSING OFFICER TO ASSESS THE INCOME IN THE RIGHT HANDS RENDERS THE ASSESSMENT ORDER ERRONEOUS. 35. FURTHER, WE NOTICE THAT BOTH ASSESSING OFFICER AS WELL AS CIT(A) MISDIRECTED THEMSELVES BY APPLYING PRESUMPTION U/S 132(4A) OF THE ACT. THE PROVISION OF SECTION 132(4A) INCORPORATES THE RULE OF EVIDENCE RELATING TO MATERIAL FOUND DURING COURSE OF SEARCH. ON PLAIN READING OF SAID PROVISION, IT IS EVIDENT THAT IT HAS APPLICATION IN THE CASE OF SEARCHED PERSON, IN WHOSE HANDS THE MATERIAL WAS FOUND AND SEIZED. THE PRESUMPTION ENVISAGED UNDER SAID PROVISION CANNOT BE EXTENDED TO ASSESSMENT OF THIRD PARTY. THE CBDT ALSO RECOGNIZED THE PRINCIPLE THAT NO ADDITION CAN BE MADE ON MERE STATEMENT MADE U/S 132(4) WITHOUT BRINGING ANY CORROBORATIVE EVIDENCE. THE CBDT CIRCULAR READS AS UNDER :- ADMISSIONS OF UNDISCLOSED INCOME UNDER COERCION/PRESSURE DURING SEARCH/SURVEY - 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. 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.LETTER [F.NO. 286/98/2013-IT (INV.II)], DATED 18-12-2014. 36. IN THE PRESENT CASE, THE ADDITIONS ARE MADE MERELY BASED ON STATEMENT OF THIRD PARTIES WITHOUT BRINGING ON RECORD ANY CORROBORATIVE EVIDENCE. NO SUCH ADDITION CAN BE MADE IN THE LIGHT OF ABOVE DISCUSSED LEGAL POSITION. 37. THE HONBLE SUPREME COURT IN THE CASE OF P.V. KALYANASUNDARAM, 294 ITR 49 (SC) IN A CASE INVOLVING THE IDENTICAL FACTS WHEREIN THE VENDORS OF THE PROPERTY ADMITTED ADDITIONAL INCOME IN THE ORIGINAL RETURN OF INCOME AND IT WAS HELD THAT IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE IN THE HANDS OF THE BUYERS, NO ADDITION CAN BE MADE. NO DOUBT, THE FACT THAT THE VENDORS HAD 18 IT(SS)A NOS.65, 67 & 69/PUN/2017 ADMITTED ADDITIONAL INCOME ON-MONEY ON SALE OF LAND BEFORE THE SETTLEMENT COMMISSION THOUGH RISES SUSPICIOUS. IPSO FACTO , CANNOT FORM BASIS OF ADDITION IN THE HANDS OF THIRD PERSON IN THE ABSENCE OF ANY INDEPENDENT CORROBORATIVE EVIDENCE. AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. DAULATRAM RAWATMULL, 53 ITR 574 EVEN THE CIRCUMSTANCES RAISES SUSPICION, SUSPICION CANNOT TAKE PLACE OF THE EVIDENCE. THAT APART, THE CONTENTIONS OF THE APPELLANT I.E. THE ASSESSEE THAT THE VENDORS HAD DECLARED ADDITIONAL INCOME ONLY IN ORDER TO ESCAPE THE RIGOUTS OF THE LAW TO CLAIM THE BENEFITS U/S 54 OF THE ACT REMAINS UNCONTROVERTED. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE FACT THAT THE VENDORS HAD DISCLOSED ADDITIONAL INCOME ON ACCOUNT OF SALE OF LAND AS ADDITIONAL INCOME BEFORE THE SETTLEMENT COMMISSION CANNOT FORM ANY BASIS FOR THE ADDITION IN THE HANDS OF THE APPELLANT HEREIN. 38. IN THE LIGHT OF THE ABOVE FACTS AND LEGAL POSITION, WE ARE OF THE CONSIDERED OPINION THAT THE DEPARTMENT HAD FAILED TO ESTABLISH THAT THE APPELLANT HAD PAID ANY ON-MONEY OVER AND ABOVE STATED CONSIDERATION OF THE SALE DEED TO THE VENDORS OF THE PROPERTY AT THE TIME OF PURCHASE OF SAVARGAON LAND. THEREFORE, NO ADDITION CAN BE MADE ON THE MERE STATEMENT GIVEN BY THE THIRD PARTY. THEREFORE, THE ORDERS OF THE LOWER AUTHORITIES ARE REVERSED, WE DIRECT ASSESSING OFFICER TO DELETE ADDITION OF RS.2,58,20,476/- FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 39. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. REVENUES APPEAL : 40. BEING AGGRIEVED BY THAT PART OF THE ORDER OF THE LD. CIT(A) WHICH IS AGAINST THE REVENUE, THE REVENUE IS IN APPEAL BEFORE US. 41. THE REVENUE RAISED THE FOLLOWING GROUNDS OF APPEAL :- 19 IT(SS)A NOS.65, 67 & 69/PUN/2017 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 10,06,60,053/- MADE BY THE AO FOR A.Y.2014-15 IN THE CASE OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS THAT THE ADDITION MADE BY THE AO ARE BASED ON THE STRONG CORROBORATIVE EVIDENCES IN THE FORM OF THE SEIZED MATERIALS WITH LOGICAL AND JUSTIFIABLE REASONS TO ARRIVE AT THE ADDITION OF RS. 10,06,60,053/- PERTAINING TO THE ASSESSEE IN THE A.Y.2014- 15 OUT OF THE TOTAL UNDISCLOSED CASH TRANSACTION WORKED OUT AT RS.65,21,25,992/- IN RESPECT OF THE LAND DEALING OF THE SAVARGAON PLOTS OF LAND BY THAKKER GROUP. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN REJECTING THE WORKING OF ADDITION MADE BY THE AO ON THE BASIS OF HIS FINDINGS THAT THE MEMBERS OF KOKANI FAMILY INVOLVED IN SALE TRANSACTION OF SAVARGAON LAND HAVE RECEIVED 50% CONSIDERATION IN CHEQUE AND 50% IN CASH SHOWING UNACCOUNTED CASH AMOUNT OF RS.65,21,25,992/- WHICH IS INCLUDING THE AMOUNT OF RS. 11,94,19,700/- DECLARED BY THE KOKANI GROUP INITIALLY IN THE STATEMENT U/S 132(4) IN THE SEARCH ACTION ON THE PREMISES OF KOKANI GROUP. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 42. FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS CLEAR THAT BASED ON THE NOTINGS FOUND IN THE LOOSE SHEETS SEIZED AND FOUND IN THE CASE OF KOKANI GROUP OF PEOPLE, MR. ASIF NIZAMODDIN KOKANI, MR. FAKRUDDIN S. KOKANI, THE ASSESSING OFFICER INFERRED THAT THE RESPONDENT ASSESSEE HAD PAID ON-MONEY CONSIDERATION TO THE VENDORS OF THE PROPERTY OF SUBJECT LAND. ACCORDINGLY, THE ADDITION IN PROPORTION TO THE PURCHASE OF LAND MADE BY THE RESPONDENT ASSESSEE WAS MADE IN THE HANDS OF THE RESPONDENT ASSESSEE. AS STATED BY US (SUPRA), THE LD. CIT(A) HAD CONFIRMED THE ADDITION IN THE HANDS OF THE PURCHASER OF THE PROPERTY I.E. RESPONDENT ASSESSEE ONLY TO THE EXTENT OF AMOUNT DECLARED UNDER 132(4) OF THE ACT BY THE VENDORS OF THE PROPERTY I.E. KOKANI GROUP. THE BALANCE OF ADDITION WAS DELETED BY THE LD. CIT(A) BY HOLDING THAT THERE IS NO MATERIAL ON RECORD WHICH COULD BE LINKED TO THE RESPONDENT ASSESSEE SHOWING THE PAYMENT OF ON-MONEY CONSIDERATION. THE NOTINGS FOUND IN THE SEIZED MATERIAL IN THE CASE OF SOME OF THE VENDORS ONLY SHOWS INCURRING OF SOME EXPENDITURE BY THE VENDORS OF PROPERTY, THE CONTENTS OF LOOSE SHEET DOES NOT LEAD TO THE CONCLUSION THAT THIS EXPENDITURE WAS INCURRED OUT OF THE MONEY PAID BY THE RESPONDENT ASSESSEE. IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE AND TAKING NOTE OF THE FACT STATEMENT GIVEN BY VENDORS ON CROSS EXAMINATION, THE LD. CIT(A) GAVE FINDING THAT NONE OF THESE 20 IT(SS)A NOS.65, 67 & 69/PUN/2017 PARTIES HAD ADMITTED TO HAVE RECEIVED ANY ON-MONEY FROM THE RESPONDENT ASSESSEE OR ITS GROUP COMPANIES. THE LD. CIT(A) ALSO TOOK NOTE OF THE FACT THAT THE AGREEMENT OF PURCHASE WAS MADE ONLY IN JULY, 2013, THERE IS NO POSSIBILITY OF MAKING CASH PAYMENT PRIOR TO THAT DATE TO THE TUNE OF RS.21 CRORES AND ALSO THE APPARENT CONSIDERATION WAS 10 TIMES HIGHER THAN READY RECKONOR, THEREFORE, THE LD. CIT(A) RULED OUT POSSIBILITY OF PAYING OVER AND ABOVE THE STATED CONSIDERATION AND, ACCORDINGLY, HELD THAT THE PRESUMPTIONS DRAWN BY THE ASSESSING OFFICER THAT THE RESPONDENT ASSESSEE WOULD HAVE PAID ON-MONEY CONSIDERATION CANNOT BE JUSTIFIED AND, ACCORDINGLY, DELETED THE ADDITIONS. 43. BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 44. IT IS CONTENDED ON BEHALF OF THE REVENUE THAT THE VENDORS OF THE SUBJECT LAND HAVE ADMITTED ADDITIONAL INCOME BEFORE THE HONBLE SETTLEMENT COMMISSION TO THE TUNE OF RS.65 CRORES IN THE APPLICATION EQUIVALENT TO APPARENT CONSIDERATION. IN SUPPORT OF THIS HE ALSO FILED THE ORDER OF THE HONBLE SETTLEMENT COMMISSION, COPY OF THE PROCEEDINGS BEFORE THE HONBLE SETTLEMENT COMMISSION, AS WELL AS, THE STATEMENT OF COMPUTATION OF TOTAL INCOME OF ALL THE VENDORS. IT WAS FURTHER SUBMITTED THAT THE VENDORS OFFERED ADDITIONAL INCOME AS UNDISCLOSED CAPITAL GAINS ON SALE OF LANDS. HE FURTHER SUBMITTED THAT THE VENDORS HAVE NOT INDULGED ANY OTHER SALE OF THE LAND TRANSACTIONS EXCEPT WITH THE RESPONDENT GROUP. HE FURTHER CONTENDED THAT THE PRESUMPTIONS DRAWN BY THE ASSESSING OFFICER ARE BASED ON THE MATERIAL FOUND IN THE CASE OF VENDORS. 45. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE SEIZED MATERIAL DOES NOT INDICATE THAT THE EXPENDITURE INCURRED BY THOSE PARITIES WAS MET OUT OF THE ON-MONEY CONSIDERATION PAID BY THE RESPONDENT. FURTHER, THE SEIZED 21 IT(SS)A NOS.65, 67 & 69/PUN/2017 DOCUMENTS IS NON-SPEAKING ONE AND DUMB AND DOES NOT CONVEY ANYTHING AS TO THE TRUE NATURE OF THE TRANSACTIONS. JUST BECAUSE OF FACT THAT ONE OF THE VENDORS I.E. MR. TAMIZODDIN FARIDODDIN KOKANI HAD FAILED TO APPEAR BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SUMMONS ISSUED U/S 131 OF THE ACT, DOES NOT ENABLE THE ASSESSING OFFICER TO DRAW THE ADVERSE INFERENCE AGAINST THE RESPONDENT ASSESSEE. HE FURTHER SUBMITTED THAT FROM THE SEIZED MATERIAL FOUND AND SEIZED FROM THE PREMISES ONE MR. NIZAMUDDIN FARIDODDIN KOKANI IT IS CLEAR THAT THE VENDORS ARE ALSO ENGAGED IN THE LAND DEALS OTHER THAN THE SUBJECT LAND. FINALLY, HE SUBMITTED THAT ON THE CROSS-EXAMINATION, ALL THE VENDORS HAD CATEGORICALLY DENIED HAVING RECEIVED ANY ON-MONEY ON SALE OF SUBJECT LAND FROM THE RESPONDENT ASSESSEE OR GROUP OF COMPANIES. 46. HE FURTHER SUBMITTED ON THE CROSS-EXAMINATION, ALL THE VENDORS HAD CONFIRMED THE REASONS FOR DECLARING OF ADDITIONAL INCOME IS OUT TO BUY PEACE WITH DEPARTMENT. HE FURTHER SUBMITTED THAT NONE OF THE SEIZED PAPERS FOUND AND SEIZED FROM THE PREMISES OF THE VENDORS CAN BE CALLED A DOCUMENT AS THERE WERE NOT PART OF THE ACCOUNT BOOKS AND LOOSE SHEETS CANNOT BE TREATED AS PART OF THE REGULAR BOOKS OF ACCOUNT AND NOT ADMISSIBLE U/S 37 OF THE EVIDENCE ACT AS EVIDENCE PLACING RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. V. C. SHEKHAL 1993 SCC 410. THUS, HE SUBMITTED THAT THE SEIZED MATERIAL IN THE FORM OF LOOSE SHEETS CANNOT FORM THE BASIS OF ADDITION IN THE ASSESSEES HANDS. HE ALSO SUBMITTED THAT MERE FACT THAT THE ADDITIONAL INCOME WAS OFFERED IN THE HANDS OF THE VENDORS BEFORE THE HONBLE SETTLEMENT COMMISSION DOES NOT MEAN THAT THE ADDITION IS CALLED FOR IN THE HANDS OF THE PURCHASER OF THE LAND AS THE FINDING IN THE ASSESSMENT OF ONE PERSON IS NEITHER DECISIVE NOR IS BINDING ON ANOTHER PERSON IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. 22 IT(SS)A NOS.65, 67 & 69/PUN/2017 47. WE HAVE HEAD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AND CAREFULLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. THE ISSUE IN THE PRESENT APPEAL OF THE REVENUE CENTRES AROUND THE FACTUAL MATRIX OF SEIZED MATERIAL IN THE CASE OF VENDORS OF THE PROPERTY I.E. 3 PARTIES. THE ASSESSING OFFICER HAD PRESUMED THAT BASED ON THE MATERIAL FOUND AND SEIZED FROM THE PREMISES OF THE VENDORS OF THE LAND RECEIVED ON-MONEY CONSIDERATION FROM THE RESPONDENT ASSESSEE AND IN ITS GROUP COMPANIES IN CONNECTION WITH THE PURCHASE OF LAND AT SAVARGAON. THE QUESTION THEREFORE WHICH REQUIRES TO BE DECIDED BY US IS THAT WHETHER OR NOT THE ASSESSING OFFICER IS JUSTIFIED IN DRAWING SUCH CONCLUSION BASED ON THE SEIZED MATERIAL FOUND AND SEIZED FROM THE PREMISES OF THE VENDORS. THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) HAD REPRODUCED SCANNED IMAGES OF THE SEIZED MATERIAL WHICH FORM THE BASIS OF THE ADDITION IN THE ASSESSMENT. THAT APART THE VENDORS HAD ADMITTED BEFORE THE HONBLE SETTLEMENT COMMISSION, THE ADDITIONAL INCOME IN THE FORM OF UNDISCLOSED CAPITAL GAINS ON SALE OF LAND EQUIVALENT TO APPARENT SALE CONSIDERATION MENTIONED IN THE SALE DEED ON THE SALE OF SAVARGAON LAND. NO DOUBT FROM THE PERUSAL OF THE SEIZED MATERIAL, THE NOTINGS IN THE FORM OF FIGURES WERE FOUND AND IN SOME CASES THE NOTINGS DENOTES INCURRING OF EXPENDITURE ON HOUSEHOLD ITEMS AND DEVELOPMENT OF LAND, AND PURCHASE OF MATERIAL BY THE VENDOR COMPANY. 48. WE HAVE CAREFULLY PERUSED THE SEIZED MATERIAL OF WHICH SCANNED IMAGES WERE REPRODUCED IN THE ASSESSMENT ORDER AS WELL AS IN THE ORDER OF LD. CIT(A). ONE OF SUCH SEIZED MATERIAL IS REPRODUCED VIDE PAGE NO.27 OF THE IMPUGNED ORDER VIDE PARA 6.7. ON MERE PERUSAL OF THE SAID SEIZED MATERIAL, IT IS CLEAR THAT THIS DOCUMENT CONTAINS SOME NUMERIC FIGURES ON THE LEFT SIDE AS WELL AS ON THE RIGHT SIDE. AGAINST THE FIGURES, FINDING ON THE LEFT SIDE OF THE PAGE, AN ALPHABET T WAS FOUND. FROM THE THIS IT CANNOT BE SAID THAT THE DOCUMENT CONTAINS SOME TRANSACTIONS GIVING RISE TO THE TAXABLE INCOME NOR IT INDICATE 23 IT(SS)A NOS.65, 67 & 69/PUN/2017 ANY DATE OF ANY TRANSACTION NOR DOES NOT INDICATE ANY NAMES OF THE PARTIES TO THE TRANSACTION. THEREFORE, THIS DOCUMENT CANNOT SAID TO BE A SPEAKING ONE, CAN BE TERMED AS DUMB DOCUMENT. SO IS THE CASE IN RESPECT OF THE DOCUMENT REPRODUCED AT PAGE NOS.28, 29 AND 30 OF THE IMPUGNED ORDER. THE ASSESSING OFFICER BASED ON THE SEIZED MATERIAL HAD CONCLUDED THAT THE VENDORS HAD INCURRED EXPENDITURE IN THE FORM OF DEVELOPMENT, PURCHASE OF LANDS OUT OF ON-MONEY RECEIVED OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED FROM THE BUYERS OF THE LAND I.E. THE RESPONDENT-ASSESSEE HEREIN AND ITS GROUP COMPANIES AND THEN PROCEEDED TO MAKE ADDITION IN THE HANDS OF ASSESSEE AS UNDISCLOSED INVESTMENT ON PURCHASE OF LANDS. 49. IT IS ALSO IMPORTANT TO SIGNIFICANT NOTE THAT EVEN THE VENDORS OF THE LAND IN THE STATEMENT U/S 132(4) OF THE ACT HAD ONLY CONFIRMED THE RECEIPT OF THE ON-MONEY TO THE EXTENT OF RS.11,94,19,700/- ALTOGETHER. THEY NOWHERE STATED THAT THEY RECEIVED ON-MONEY CONSIDERATION FROM THE RESPONDENT ASSESSEE OR ITS GROUP COMPANIES ON SALE OF THE LAND. EVEN ON CROSS-EXAMINATION ALSO, THEY HAD DENIED TO HAVE RECEIVED ANY ON-MONEY ON SALE OF THE SUBJECT LAND FROM RESPONDENT ASSESSEE. ON THE MERE FACT THAT THE DEPARTMENT HAS FOUND CERTAIN EVIDENCE IN THE FORM OF LOOSE SHEETS INDICATING INCURRING OF CERTAIN EXPENDITURE ON HOUSEHOLD ITEMS AND DEVELOPMENT OF LANDS AND PURCHASE OF LANDS ETC DOES NOT LEAD TO CONCLUSION THAT THE RESPONDENT ASSESSEE OR ITS GROUP COMPANIES HAD PAID ON-MONEY CONSIDERATION, ALSO CONSIDERING THE FACT THAT THE SEIZED MATERIAL INDICATES INCURRING OF SUCH EXPENDITURE MUCH BEFORE THE DATE OF AGREEMENT OF PURCHASE I.E. JULY, 2013, NO PRUDENT PERSON WOULD HAVE PAID THE ON-MONEY CONSIDERATION MUCH BEFORE I.E. 2 AND 2/1 YEARS BEFORE DATE OF AGREEMENT OF SALE. 50. IT IS SETTLED POSITION OF LAW THAT ONUS LIES UPON THE DEPARTMENT TO COLLECT COGENT EVIDENCE TO CORROBORATE THE NOTINGS ON THE LOOSE SHEETS. THE 24 IT(SS)A NOS.65, 67 & 69/PUN/2017 ADDITIONS CANNOT BE MADE MERELY ON THE BASIS OF NOTINGS ON THE LOOSE SHEET PAPERS WHICH ARE IN THE NATURE OF DUMB DOCUMENTS HAVING NO EVIDENTIARY VALUE. THE ONUS LIES ON THE DEPARTMENT TO COLLECT THE EVIDENCE TO CORROBORATE THE NOTINGS ON THE LOOSE SHEETS. IN THE PRESENT CASE, IT IS UNDISPUTED POSITION THAT AS A RESULT OF SEARCH AND SEIZURE ACTION IN THE CASE OF RESPONDENT- ASSESSEE AND ITS GROUP COMPANIES, NO MATERIAL WHATSOEVER WAS SEIZED AND FOUND INDICATING PAYMENT OF ON-MONEY CONSIDERATION AT THE TIME OF PURCHASE OF THE LANDS. RELIANCE IN THIS REGARD CAN BE PLACED ON THE FOLLOWING DECISIONS: I) PR.CIT VS. UMESH ISHRANI (2019) 108 TAXMANN.COM 437 (BOM) II) CIT VS. ATAM VALVES (P.) LTD. (2009) 184 TAXMAN 6 (P&H) III) CIT VS. MAULIKKUMAR K. SHAH (2008) 307 ITR 137 (GUJ) IV) CIT VS. C.L. KHATRI (2006) 282 ITR 97 (MP) V) PR.CIT VS. KAMLESH PRAHLADBHAI MODI (2018) 94 TAXMANN.COM 356 (GUJ) VI) CIT VS. SHRI GIRISH CHAUDHARY (2008) 296 ITR 619 (DEL) VII) CIT VS. VIVEK AGGARWAL (2015) 56 TAXMANN.COM 7 (DEL) VIII) CIT VS. SALEK CHAND AGARWAL (2008) 300 ITR 426 (ALL) IX) CIT VS. DINESH JAIN (HUF) 352 ITR 629 (DEL) 51. WE FIND THAT THE CONCLUSIONS REACHED BY THE ASSESSING OFFICER ARE MERELY BASED ON PRESUMPTIONS AND ASSUMPTIONS WITHOUT BRINGING CORROBORATIVE MATERIAL ON RECORD. IT IS SETTLED POSITION OF LAW THAT NO ADDITION IN THE ASSESSMENT CAN BE MADE MERELY BASED ON ASSUMPTIONS, SUSPICION, GUESS WORK AND CONJUNCTURE OR ON IRRELEVANT INADMISSIBLE MATERIAL. RELIANCE CAN BE PLACED IN THIS REGARD ON THE FOLLOWING DECISIONS: I) DHIRAJLAL GIRDHARILAL VS. CIT (1954) 26 ITR 736 (SC) II) DHAKESWARI COTTON MILLS LTD. VS. CIT (1954) 26 ITR 775 (SC) III) CIT VS. MAHARAJADHIRAJA KAMESHWAR SINGH OF DARBHANGA (1933) 1 ITR 94 (PC) 25 IT(SS)A NOS.65, 67 & 69/PUN/2017 IV) LALCHAND BHAGAT AMBICA RAM VS. CIT (1959) 37 ITR 288 (SC) V) UMACHARAN SHAW & BROS VS. CIT (1959) 37 ITR 271 (SC) VI) OMAR SALAY MOHAMED SAIT VS. CIT (1959) 37 ITR 151 (SC) 52. RECENTLY, THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DINESH JAIN (HUF), 352 ITR 629 AFTER REFERRING TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF LALCHAND BHAGAT AMBICA RAM VS. CIT (1959) 37 ITR 288 (SC) HELD THAT NO ADDITION CAN BE MADE TAKING INTO ACCOUNT NOTORIOUS PRACTICE PREVALENT IN THE SIMILAR TRADE. THE RELEVANT FINDINGS VIDE PARA 14 AND 15 ARE AS UNDER: .. 14. IN LALCHAND BHAGAT AMBICA RAM VS. COMMISSIONER OF INCOME TAX, BIHAR AND ORISSA (1959) 37 ITR 288, THE SUPREME COURT DISAPPROVED THE PRACTICE OF MAKING ADDITIONS IN THE ASSESSMENTS ON MERE SUSPICION AND SURMISE OR BY TAKING NOTE OF THE NOTORIOUS PRACTICES PREVAILING IN TRADE CIRCLES. AT PAGE 299 OF THE REPORT, IT WAS OBSERVED AS FOLLOWS : 'ADVERTING TO THE VARIOUS PROBABILITIES WHICH WEIGHED WITH THE INCOME-TAX OFFICER WE MAY OBSERVE THAT THE NOTORIETY FOR SMUGGLING FOOD GRAINS AND OTHER COMMODITIES TO BENGAL BY COUNTRY BOATS ACQUIRED BY SAHIBGUNJ AND THE NOTORIETY ACHIEVED BY DHULIAN AS A GREAT RECEIVING CENTRE FOR SUCH COMMODITIES WERE MERELY A BACKGROUND OF SUSPICION AND THE APPELLANT COULD NOT BE TARRED WITH THE SAME BRUSH AS EVERY ARHATDAR AND GRAIN MERCHANT WHO MIGHT HAVE BEEN INDULGING IN SMUGGLING OPERATIONS, WITHOUT AN IOTA OF EVIDENCE IN THAT BEHALF. ' 15. THIS TAKES CARE OF THE ARGUMENT OF MR. SABHARWAL THAT JUDICIAL NOTICE CAN BE TAKEN OF THE PRACTICE PREVAILING IN THE PROPERTY MARKET OF NOT DISCLOSING THE FULL CONSIDERATION FOR TRANSFER OF PROPERTIES. 53. THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE VS. ITO (1981) 131 ITR 597 (SC) HELD THAT THE CAPITAL GAINS IS INTENDED TO TAX THE GAINS OF ASSESSEE NOT WHAT AN ASSESSEE MIGHT HAVE GAINED AND WHAT IS NOT GAINED CANNOT BE COMPUTED AS GAIN AND THE ASSESSEE CANNOT FASTENED WITH THE LIABILITY ON A FICTIONAL INCOME. SIMILARLY, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SHIVAKAMI CO. (P.) LTD. (1986) 159 ITR 71 (SC) HELD THAT UNLESS THERE IS EVIDENCE THAT MORE THAN WHAT WAS STATED WAS RECEIVED, NO HIGHER PRICE CAN BE TAKEN TO BE THE BASIS FOR MAKING ADDITION. IN THE PRESENT 26 IT(SS)A NOS.65, 67 & 69/PUN/2017 CASE, WE DO NOT FIND ANY MATERIAL ON RECORD SUGGESTING THE PAYMENT OF ON- MONEY CONSIDERATION AT THE TIME OF PURCHASE OF LAND BY THE RESPONDENT- ASSESSEE AND ITS GROUP COMPANIES. THEREFORE, IT CAN BE SAID THAT THE ASSESSING OFFICER HAD FAILED TO BRING ON RECORD ANY RELIABLE EVIDENCE TO PROVE THAT THE RESPONDENT ASSESSEE HAD MADE INVESTMENT IN PURCHASE OF LANDS OVER AND ABOVE THE STATED CONSIDERATION. THEREFORE, WE DO NOT SEE ANY PERVERSITY IN THE FINDINGS OF THE LD. CIT(A) IN DELETING THE ADDITION BASED ON THE SEIZED MATERIAL. THE FINDINGS GIVEN BY US IN RELATION TO THE APPEAL FILED BY THE ASSESSEE FOR THE SAME YEAR ALSO EQUALLY HOLDS GOOD IN RESPECT OF PRESENT APPEAL AND THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPEAL FILED BY THE REVENUE AND WE DISMISS THE APPEAL. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE. REVENUES APPEAL FOR THE A.Y. 2012-13 : 54. IN THE APPEAL NOS.65/PUN/2017 AND 69/PUN/2017 FOR ASSESSMENT YEARS 2014-15, WE HELD (SUPRA) THAT THERE IS NO MATERIAL FOUND AS A RESULT OF SEARCH AND SEIZURE ACTION WARRANTING ADDITION IN RELATION TO THE ASSESSMENT YEAR 2014-15. ACCORDINGLY, SINCE THE ASSESSMENT IN THE PRESENT YEAR IS ALSO MADE BASED ON VERY SAME SEIZED MATERIAL, THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPEAL FILED BY THE REVENUE. WE FIND THAT IMPUGNED ADDITION IN PRESENT APPEAL ALSO IS BASED ON SAME MATERIAL WHICH IS RELIED UPON BY AO IN THE ASSESSMENT YEAR 2014-15. THE FINDINGS GIVEN BY US IN THE APPEAL IN ITA NO.65/PUN/2017 FOR ASSESSMENT YEAR 2014-15 EQUALLY HOLDS GOOD FOR THE ASSESSMENT YEAR 2012-13. 55. IN THE RESULT, THE BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. 27 IT(SS)A NOS.65, 67 & 69/PUN/2017 56. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ALLOWED AND BOTH THE APPEALS OF THE REVENUE ARE DISMISSED, AS ABOVE. ORDER PRONOUNCED ON THIS 19 TH DAY OF MAY, 2021. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 19 TH MAY, 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-12, PUNE. 4. THE PR. CIT, CENTRAL, NAGPUR. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.