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TMI Blog2010 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant. Shri Rakesh Gupta for the Respondent. Shri Shamim Yahya, - This appeal by the Revenue and the cross-objection by the assessee emanate out of order of learned CIT(A) dt. 15th Oct., 2009 for the asst. yr. 2003-04. Revenue's appeal (ITA No. 4802/Del/2009) 2. The issue raised reads as under : "On the facts and circumstances of the case and in law, the order of the CIT(A) has erred in deleting the addition of Rs. 60,36,000 paid in cash for acquisition of plot No. 3-8, Village Jharsently, District Faridabad (Haryana) as the sources of investment were not proved before the AO in spite of several opportunities afforded to the assessee." 3. The assessment in this case was reopened on the basis of following reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourable to the assessee and held it was the onus of the assessee to prove the genuineness of the transactions entered into by it. He held that it was clear that despite availing number of opportunities the assessee has failed to discharge the onus of proving the same and genuineness of the transactions. Hence he held that the entire amount of Rs. 60,36,000 was added to the income of the assessee. 4. Assessee appealed before the learned CIT(A) agitating the reopening as well as the merits of the case. Learned CIT(A) held that reopening was justified. However, with regard to merits of the case, he held as under : "Perusal of seized documents as filed by appellant before AO and here shows that one big chunk of land has been sold by dividin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale consideration was at Rs. 8,00,000 and cheque components Rs. 19,80,000. Further, perusal of these documents shows that p. 48 of the paper book (internal p. 77), the proposed addition has been mentioned at Rs. 72,60,000. Thus, at various places various figures are appearing and the plot number is not matching nor the figures are matching. It is not coming out who has given cash to whom; there is no mention of evidences. It is not coming out who has prepared the papers and these papers belong to whom." 4.1 Thereafter, the learned CIT(A) referred the judgment of the Hon'ble Delhi High Court in the case of CIT v. Pradeep Kumar Gupta [2008] 303 ITR 95 and referred that the primary burden of proof is upon the AO which he has not discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the seized documents were in the handwriting of the assessee or the seller or were seized from the premises of seller and purchaser. Learned CIT(A) has brought out various discrepancies in the seized documents relied upon by the Revenue and striking feature of these anomalies is that in the seized documents, it has been mentioned that the impugned plot was not sold. Thus, the working and the figures mentioned therein can at best be said to be tentative or expected amount. This by no stretch of imagination can be treated as conclusive proofs of on money transactions. Moreover, it is an admitted fact that the documents being relied upon showed account as on 31st Oct., 2001, while as per the registered sale deed the plot was sold on 23rd M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 60,36,000 paid in cash as the source of investment was not proved before the AO in spite of several opportunities afforded to the assessee. In our opinion, this ground itself is misconceived, in as much as the question of proving the source of investment will arise only when the investment is conclusively proved. We have already found above that the claim of on money transactions has not at all been proved in this case. As held by the Hon'ble Supreme Court decisions above, the onus is that of Revenue to prove the same and as clearly found by us above the Revenue has failed to do so the same. 6.6 Accordingly, in the background of the aforesaid discussion and precedents, we uphold the order of the learned CIT(A). 7. In the result, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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