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TMI Blog2010 (8) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by the assessee under section 260A of the Income-tax Act, 1961 (for short, "the Act") against the order dated 24-6-2009 in ITA No. 341/Chd./2009 for the assessment year 2005-06, passed by the Income-tax Appellate Tribunal, Chandigarh, proposing to raise following substantial questions of law : "(i) Whether the Tribunal has misdirected itself in law as well as on facts in affirming the orders passed both by the CIT(A) as well as by the Assessing Officer, which orders are totally illegal and without jurisdiction, while sustaining the addition in the hands of the assessee-appellant. (ii) Whether the notice issued under section 153C of the Act, in the absence of the satisfaction note of the Assessing Officer of the seller, whose prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f land along with her sister-in-law from one Inder Pal Garg vide sale deed dated 18-6-2004 for ostensible consideration of Rs. 5 lakh. The Assessing Officer served notice under section 153C of the Act on the basis of information received from Assistant Commissioner of Income-tax, Karnal that the value of land was shown to be less than the actual sale price which was Rs. 11,90,000. The source of information was survey under section 133A of the Act on the premises of the firm of the seller on 7-9-2005 by the ADI Wing along with search in the premises of sons of the seller. After due consideration, the Assessing Officer passed order making addition of Rs. 5,34,333 in the hands of the assessee being difference in actual sale consideration and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008. Furthermore, there is no contradiction or inconsistency in the stand of the seller Shri Inderpal Garg. No doubt, the consideration recorded in the Sale Deed dated 18-6-2004 is Rs. 5 lakhs, which was also confirmed by the seller in affidavit dated 29-6-2004, which was before the Assessing Officer in the assessment proceedings. However, subsequent to the search on the seller on 7-9-2005, there is no material to suggest any inconsistency in the stand of the seller in support of the sale consideration of Rs. 11,90,000. The Assessing Officer has referred to the income declared by the seller in his return for the assessment year 2005-06 based on the sale consideration of Rs. 11,90,000. Even during the examination by the Assessing Officer con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving higher consideration was on the revenue which was not discharged. Reliance has been placed on judgment of this Court in Paramjit Singh v. ITO [IT Appeal No. 401, dated 10-2-2010], holding that oral evidence could not be led to contradict terms of a document. 5. We are unable to accept the submission. 6. There is no doubt that burden of proving higher consideration is on the revenue but the same can shift to the assessee by presumption of law and facts having regard to facts and circumstances of the case. The Assessing Authority may presume existence of facts which may appear to have happened, having regard to common course of events or human conduct in the facts of a particular case. 7. It may be worthwhile to refer to formul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, section 118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date in question. In these circumstances, there is no error in the view consecutively taken by all the authorities that the revenue was able to discharge the burden that sale consideration mentioned in the sale deed was not real. 9. As regards judgment of this Court in Paramjit Singh s case (supra), the observations therein are on facts of that case. Section 92 of the Evidence Act excluded oral evidence with regard to contents of a document in relation to a lis between the parties and cannot bind any third person. This principle cannot be applied where it can be inferred in the facts and circumstances that the parties have by mutual self-serving agreement concealed taxable income, which income could be found to be assessable on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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