2013 (2) TMI 574

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..... s whose statements were recorded have merely visited the site but has not actually transacted with the assessee - The Site Engineer is not empowered either book the plots or to quote the rate – Since these persons are not competent to admit any undisclosed income, their statements cannot be admitted in evidence for taking a view against the assessee - Merely on presumption no amount can be added as undisclosed turnover or profit thereon - Addition not sustainable – Against the revenue. - TAX APPEAL No. 2127 of 2010 - - - Dated:- 11-1-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MR MANISH BHATT, SR COUNSEL for Appellant(s):1, ORAL ORDER (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Revenue is in app .....

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..... statements were retracted by such prospective buyers. Assessee requested for cross examining the witnesses which opportunity also was not granted. Additionally, we also notice that Site Engineer whose statement was recorded during search operations had also retracted his statement shortly thereafter. Tribunal in particular made following observations for rejecting the Revenue s appeal: 8. We have carefully considered the relevant facts, arguments advanced by the parties and the decision cited. The bases of addition made by the Assessing Officer are: (i) That, the statement of prospective buyers and statement of Site Engineer. (ii) That, disclosure of Rs.180 lacs by the assessee. (iii) That, alternative pleas raised. (iv) Pre-pond .....

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..... Act. One cannot presume that all the transactions in real estate can be effected only after payment of 'onmoney'. Therefore, presumption alone howsoever strong cannot be allowed to par take the character of proof. 8.3 A person who while defending his case is entitled to raise alternative plea. However, when alternative pleas are raised, it do not result that the original plea is not to be considered. So long as the alternative pleas are not mutually destructive, such alternative pleas are valid in the eyes of law and permissible under the Civil Procedure Code. The decision of Hon'ble Supreme Court in the case of CIT v. P.V. Kalyanasundaram (2007) 294 ITR 49(SC) assists the case of the assessee. The head notes in the said case are extra .....

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