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TMI Blog2013 (1) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... The addition was mainly against the sale of property wherein sale consideration was considered Rs. 38.00 lakhs as declared by seller whereas the assessee had declared sale consideration only at Rs. 3,70,000/-. 3. The assessee had purchased a half share of house in plot measuring 61 sqyd No. B-7-1082 from Shri Dig Vijay in February, 1999 and the sale deed for the same was executed showing consideration of Rs. 3,70,000/-. The plot is situated opposite Railway Station which is one of the prime location of the city. Enquiries were made from Shri Dig Vijay i.e. seller of the property and his statement were recorded on 17.8.2000. In the statement Shri Dig Viay stated that he has sold the plot to Shri Joginder Lal for a sum of Rs. 38.00 lakhs but the sale deed was executed only of Rs. 3,70,000/-. Subsequently Shri Dig Vijay filed revised return on 31.3.2001 in which sale consideration was declared at Rs. 38.00 lakhs. On the basis of statement the Assessing Officer was of the view that actual sale consideration must have been Rs. 38.00 lakhs. It was further noted that there was a search on the premise of Smt. Bimla Rani and other members of the family and whole group had surrendered a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, this ground has remained for academic interest only, therefore, automatically remanded to the file of the Assessing Officer for fresh adjudication with liberty to the Assessing Officer for filing evidence, if any." Following the direction of the Tribunal the case was fixed for hearing again and summons were issued to Mrs. Prem Lata and Shri Dig Vijay (seller of the property). Their statements were recorded on 8.5.2008. In view of the directions of the Tribunal the assessee was given full opportunity to cross-examine Mrs. Prem Lata and Shri Dig Vijay. Cross examination was done by Shri Harish Sharma representative of the assessee and Shri Mukesh Bambi son of Smt. Bimla Rani. 4. Smt. Prem Lata and Shri Dig Vijay categorically stated during cross-examination that half share of the property was sold for a sum of Rs. 38.00 lakhs. The copy of the statement recorded during cross-examination were given to the assessee and the assessee raised further objections mainly stating that survey was conducted in the business premises of Shri Dig vijay and his mother Smt. Prem Lata who had filed revised returns of income showing capital gains to avoid effect of other incriminating docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n both the sellers have given brief description of utilization of amounts. It is a well settled law that it is for the person, who asserts, to prove that apparent was not the real. In this case the sellers stated during their cross examination that they had utilized amounts for construction of houses, deposit in Bank Account, amounts given to daughter, purchase of car and payment of taxes etc. The assessee has not proved anything contrary to such statement of seller, such a mere objection and that too without any evidence, deserves to the rejected and accordingly I do so. (iv) The assessee has now produced some sale instances according to which the registered cost shown bythe assessee is allegedly claimed as justified. One such document is photocopy of sale deed dated 12.5.2000 for sle of property measuring 45 sq. yards for Regd value of Rs. 1,20,000/- and the other one is photocopy of sale of 42 sq. yards of 42/208 share in a property for Regd value of Rs. 1,25,000/-. Average cost of these two properties comes to less that 3000 per sq yards whereas another property is claimed to have been sold by PUDA in an auction @ 10,000 per sq yards. From this very reply of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has originally shown it at Rs. 3,70,000/-. He referred to page 1-6 of the paper book which is a copy of the statement of Smt. Prem Lata recorded on 8.5.2008 when cross-examination was also done. In the reply to Q No. 1 that who had given Rs. 35.00 lakhs, Smt. Prem Lata stated that it was given by Shri Joginder Lal whereas in Q No. 2 when it was asked that do you know Shri Joginder Pal She had replied that it was a presumption that the person who gave the money was buyer. The answer to Q No. 3 was also vague. Through Q No. 3 it was asked how the amount was utilized she had replied that the amount was partly given to the daughter and partly kept in the bank account and some amount was used for construction of house, purchase of car and payment of taxes. This clearly shows that she did not know how exactly the amount was disposed off. In fact through Q No. 4 when it was asked that whether she had any details of the bank deposits, she categorically stated that presently she did not remember them because she was not keeping well after suffering from two heart attacks. All these replies clearly show that she was telling lies. Thus the addition have been made mainly on the basis of subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, ITA No. 666/Chd/2010 wherein the above case law has been considered and by various observations it has been clearly held that unless and until revenue has clear evidence of extra consideration such consideration can not be added to the income of the assessee. 9. On the other hand, the ld. DR for the revenue while strongly supporting the order of the Assessing Officer and the ld. CIT(A) brought to our notice the observations of the Assessing Officer in Para 7 wherein it is clearly mentioned that a search was conducted in the group of assessee and the assessee group ultimately approached the Settlement Commission. During the settlement proceedings, the Settlement Commission gave a choice to the assessee to offer the clear extra consideration of the sale of this property or to allow the matter to be taken up with the Department. This clearly shows that the Settlement Commission was of the opinion that extra amount paid by the assessee has to be considered as income. Apart from this there is clear evidence available that the Department in the form of return filed by the seller wherein higher sale consideration has been declared by the seller, therefore, the cases relied on by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, the documentary evidence would certainly prevail. 8. The issue in the present appeal is directly covered in favour of the appellant by the following decisions : i) The Hon'ble Punjab & Haryana High Court, in the case of Paramjit Singh V ITO (2010) 323 ITR 588 (P&H) has held that the assessee, had purchased a property from his uncles, for a consideration, specified in the registered sale deed, but the assessee claimed that no amount was paid on the basis of oral evidence of uncles. The inference of the AO, that the amounts shown to have been paid in the sale deed was actually paid, was upheld by the Hon'ble High Court. The Hon'ble High Court pointed out that oral evidence is not conclusive as against documentary evidence u/s 91 and 92 of the Indian Evidence Act, 1872 and upheld the inference of the AO. The relevant part of the decision of the Hon'ble Punjab & Haryana High Court in the case of Paramjit Singh V ITO, 323 ITR 588 (P&H) is reproduced hereunder : "We have thoughtfully considered the submissions made by the learned counsel and are of the view that they do not warrant acceptance. There is well known principle that no oral evidence is admissible once the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income-Property purchased by assessee - Burden on revenue to prove that price had been understated-No enquiry and no evidence except conflicting statements of seller-Amount not assessable as undisclosed income - Income-tax Act, 1961, s. 158BC." Assessment was made on the assessee under Section 158BC of the Income-tax Act, 1961, for the period April 1,1988 to December 8,1988. The assessee has purchased land on October 26,1998. The land was registered for Rs.4,10 lakhs. During the course of the search certain notings had been found. The assessee stated that he did not remember for what purpose he had made notings, which was confirmed by the assessee in a subsequent statement recorded on December 11,1998. The land was purchased from one R. The purchasers' statement was also recorded on the date of search, i.e. December 8,1998. R admitted that he had received Rs.34.85 lakhs but subsequently in an affidavit he mentioned that the sale consideration received was Rs.4.10 lakhs. In a further sworn statement R again stated that he had received Rs.34.85 lakhs. In the cash flow statement for the assessment year 1999-2000, i.e. block period April 1,1988, to December 8,1998, the AO adopted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, "Due to harassment from Shri R.K. Khosla, Partner of M/s Rajdeep Builders, I stated "that sale consideration for the Flat No. 4, Santoshi Complex, Khalini, Shimla paid by me to M/s Rajdeep Builders was Rs. 16 lacs." Thus from above it is clear that Shri Subhash Sharma had retracted from his statement and revenue had no evidence other than the statement of Shri Subhash Sharma for payment of on money that is why after considering various decisions it was held by the Tribunal that the burden was on the revenue to prove that the assessee had received extra consideration and accordingly the addition was deleted. 13 Similarly in case of K.P. Verghese V ITO (supra) the assessee was owner of a house which was purchased in 1958 for Rs. 16500/-. This house was sold at the same price in 1965 to his daughter-in-law and five of his children. The assessment for Assessment Year 1966-67, for which the relevant accounting year was the calendar Year 1965, was completed without any capital gain. Later on a notice u/s 148 was issued and through subsequent letter it was clarified that by the ITO that he proposed to fix the fair market value of the house sold by the assessee at Rs. 65,000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Bimla Rani. The other Co-owner was Shri Dig vijay - my son. Q 2. What was the sale consideration of your share in the said property? Ans. It was for a consideration of Rs. 38.00 lakhs. Same facts were stated by me in my earlier statement recorded in this office last year also and that statements be also kept in mind. Q 4. Did you file any return of income to pay capital gains tax on such transaction? Ans. Yes, return for Assessment Year was filed on 28.11.2000 showing such capital gain at Rs. 33,78,800/- and tax was duly paid thereon. Photocopy of the return is also having submitted. 17. After the statement of assessee's representative Smt. Prem Lata was cross-examined by the representative of assessee Shri Harish Sharma and Shri Mukesh Bambi who is the son of the assessee. The various questions and answers are as under:- Q 1. Who had given this amount of Rs. 38.00 lakhs to you? Ans. It was given by your father Shri Joginder Lal who was accompanied by another person but name I do not recall. I do not remember exactly now but most probably it was Shri Joginder Lal (buyer) who was accompanied by another person. Q 2. Do you kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ans. Original return was field as per sale deed only. Q 6. After survey what were the reasons for declare cash amount in the revised return / revised income computation chart filed with the letter dated 6.11.2000? 20. The main objection of the ld. counsel of the assessee is that the survey was conducted in the premise of the seller and some incriminating documents were found and to convert the concealed income the sellers have preferred to declare the income by way of extra consideration. The seller was not able to give the names and addresses who had paid such amounts. The Assessing Officer has already dealt with these objections in para 11 elaborately and we find nothing with these observations. The seller Smt. Prem Lata has clearly stated that money was given to her by Shri Joginder Lal. We fail to understand what is wrong if the husband of the assessee who was also part purchaser of the property then definitely he would take cash for delivery. Simply that Smt. Prem Lata did not know him personally would not make her statement incorrect. It is wrong that she has not given proper utilization of the sums. She had clearly stated in reply to Q No. 3 that part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been reproduced by the Assessing Officer as under: "(i) It is totally incorrect on the part of the assessee or his A/R to claim that during survey various incriminating documents were found from business premises of seller Shri Digvijay but the Department accepted revised return showing capital gains based on sale consideration of 38 lakhs and ignoring other incriminating documents found during survey. Such a contention raised by the assessee is just without any evidence and is totally devoid of any merit. The assessee has not pointed out as to what incriminating documents were found at the premises of sellers and how the assessee had come to know about such incriminating documents. In their statements or even in cross examination both the sellers have not admitted that statements recorded during survey were under any threat." 22. The above clearly shows that the Settlement Commission was of the view that the evidence produced by the Department for purchase of property at Rs. 76.00 lakhs cannot be brushed aside. In fact the Settlement Commission wanted the assessee to declare this amount also as undisclosed income but the assessee choose to litigate the same bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT. 195 Taxman 332 (PH). In this case also the assessee has purchased a piece of land along with another from one Shri Inder Pal Garg by a sale deed dated 8.6.2004 for ostensible consideration of Rs. 5.00 lakhs. A notice u/s 153C was served. On the basis of information that sale price was offered at Rs. 11,19,000/- which was detected because of survey conducted on the premise of seller. The difference was added to the income of the assessee. The Hon'ble Punjab & Haryana High Court discussed the case of K.P. Varghese V. ITO (supra) as well as Paramjit Singh V. ITO (supra) and observed that definitely the revenue has to prove higher consideration. Ultimately the head note reads as under: "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. In the present case, the seller declared the sale consideration to be Rs. 11,90,000/- in his return as against Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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