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2014 (4) TMI 77 - KERALA HIGH COURTOnus to prove – Actual expenses not declared – Undervaluation made by the assessee – Undisclosed investment - Held that:- The oral evidence, which is supported by Section 132(4) statement and the affidavit of Mr. Noushad, which is uncontroverted even during cross examination, can be treated as sufficient evidence to show that the property has been sold for ₹ 78,20,000 - The first appellate authority had gone a little further and had indicated that the revenue has not adduced any further evidence to show that Mr. Noushad had paid ₹ 66,20,000/- to Smt. Mariamma Kurian for purchasing the property and the assessee has paid the differential amount to Mr. Noushad - these are all instances where the parties do not maintain any records and they deal in undisclosed amounts – Relying upon Commissioner of Income-tax v. Medical Trust Hospital and others [2008 (3) TMI 645 - KERALA HIGH COURT] the evidence made available by the Revenue is a probable evidence. If at all the assessee wanted to disprove the evidence given by Mr. Noushad, the assessee could have proved otherwise by giving some evidence to show the market value of the land in the locality. No such evidence is adduced by the assessee - the revenue has to prove the existence of a fact that undervaluation was made by the assessee and that the assessee has paid more amounts for purchase of property amounting to ₹ 54,20,000 - When that fact is proved, the burden shifts to the assessee to prove otherwise - even in the absence of any other material produced by the revenue, the uncontroverted evidence of Mr. Noushad was in favour of coming to a finding that the assessee has not declared the actual investment made for acquiring the building – thus, the order of the CIT(A) set aside – Decided in favour of Revenue.
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