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TMI Blog2008 (5) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... f procurement and other development charges and the assessee had sold the land @ 1000 per sq. yd to the Mittal Group and as per page 5 of Annexure A-I, seized during the course of search on Mittal Group, it revealed that said Shri Vinod Mittal had invested in purchase of various properties by him/companies controlled by him. According to the Assessing Officer, as per the said seized paper and other inquiries made, the consideration paid by Mittal Group was @ ₹ 4776 per sq. yard for purchase of 31000 sq. yds of developed plots in AAR DEE City (developed by the assessee) against which the consideration shown by Mittal Group was @ ₹ 1000 per sq. yard. Therefore, the Assessing Officer added a sum of ₹ 11,70,56,000 to the income of the assessee being the difference of purchase consideration shown by the Mittal group @ 1000 per sq. yd. as against the actual investment made by Mittal Group @ ₹ 4776 per sq. yard and the extra consideration was considered to have been received by the assessee as unaccounted consideration. The assessee was required to explain as to why the said sum should not be assessed as unexplained income of the assessee. It has been recorded in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid extra money for purchase of these plots. No such document and/or evidence in support of this contention was mentioned either in the assessment order or in the appeal proceedings by the Revenue. 3. A support was taken from the statement of Shri J.C. Malhotra wherein he has stated that he has paid ₹ 2000 per sq. yd. extra that the declared consideration for the purchase of plots, purchased by him and his other units in Ardee City. Gurgaon. It is very relevant to mention that the statement of Shri Malhotra was recorded on 21.9.2002 and on 23.9.2002 he filed an affidavit with the search party that his earlier statement was given by him under mental shock and pressure from the income tax authorities and he had not paid any extra amount over and above the amount stated in the investors Agreement. 4. The assessing authority in support of the addition had also stated that the cost of plots in Ardee City to Ardee Group of Companies was ₹ 2209 per sq. yd. However, in support of this assumption no facts were-brought forward. The CIT (A) in the case of Chavan Rishi International Ltd. has gone through this aspect and has held that the land was purchased by Ardee Gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lots was the responsibility of the allottees. We also wish to write that this issue had already come up earlier in the case of J.M.D Buildwell Pvt. Ltd., a Mittal Group company to whom the plots were allotted under investors Agreements and the Assessing Officer disbelieved the development expenses incurred by them ad in the appeal after verification of the facts the CIT (A) had accepted the fact that the development of these plots was done by JMD Buildwell Pvt. Ltd. A copy of the order of CIT (A) in the case of JMD Buildwell Pvt. Ltd. and copies of letters written by us to the assessing authority during the assessment proceedings of that company are enclosed. This fact stood established even in March 200 much before even the search took place on Mittal Group of Companies in September, 2002. 5. It is further recorded in the assessment order that Shri Vinod Mittal was cross examined by the counsel of the assessee company and in reply to the question put by the counsel with regard to the said seized paper it was stated by Shri Vinod Mittal that the figure written in the seized document was in fact the expected realizable value of the plots held by Mittal Group in the Aardee City a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed document the Mittal group had made payment to assessee company over and above the price mentioned in investor's agreement and this fact has been clearly brought out in the assessment order. Thus, Ld. DR vehemently pleaded the addition was rightly made by the Assessing Officer and it has wrongly been deleted by the CIT (A). 8. On the other hand, Ld. AR of the assessee has produced before us the copy of order of the Tribunal dated 9th November, 2006 passed in the case of Chavan Rishi International Ltd., Delhi (Group concern of Mittals). He pointed out that the said seized paper, on the basis of which addition has been made in the hands of the assessee, was considered by Chandigarh Bench in the aforementioned order and it was held that no addition could be made on the basis of seized documents. The ld. AR pleaded that addition has been made by the Assessing Officer on the ground that the addition deleted by the CIT (A) in the hands of Mittal Group is not accepted by the Revenue and a further appeal has been filed. He pleaded that even the appeal filed by the Revenue against the order of the CIT (A) has been dismissed by the aforementioned order of the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it was held that on the basis of the said seized paper no addition could be made in the hands of the Mittal group:- 10. We have considered the rival contentions and carefully gone through the material available on record. In the present case the whole controversy revolves around the document A-I page 5 found during the course of search. In that document few entries were noted. The AO opined that the value mentioned in the seized document was the actual value of the properties which were purchased by the assessee while the contention of the assessee was that those were the market value and not the actual price. It is true that in the block assessment the additions can be made on the basis of document or material found during the course of search for which no plausible explanation is given by the concerned person. It is also true that the document should be considered as a whole and not in piece meal, in other words, the cognizance should be given to the document as a whole and not to the part of the document as per doctrine of Aprobate and Reprobate . In the seized document, there were certain entries on one page which appears to be a page from some cash book since cash book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been considered as actual investment and not market value. It is well settled that the document should be read as a whole, it is not permissible to accept part of the document and reject the remaining part as per the ratio laid down by the Hon'ble Gujarat High Court in the case of Glass Lines Equipment Co. Ltd. vs. CIT, 253 ITR 454 (supra) wherein it has been held that: It is well settled canon of interpretation that a document has to be as o whole. It is not permissible to accept a part and ignore the rest of the document. In view of the ratio laid down by the Hon'ble Gujarat High Court in the aforesaid referred to case, the Assessing Officer was not justified in accepting the entries mentioned in the document in part i.e. accepting part of the entries and rejecting the remaining entries. Therefore, the ld. CIT(A) was justified in his action while deleting the addition made by the AO. 10.2 From the above discussion although the case appears to be in favour of the assessee if legal aspect is to be seen but at this stage, we think it appropriate to discuss the issues in question on merit also. As we have already noted in the former part of this order tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of plots was more than that of the plots purchased by the assessee but it is not established that those plots were purchased at the same time when the assessee purchased and the location was also similar. It is also not established that in the cases where the rate was higher, there was an advance agreement as was in the case of the assessee and there was a clause in the agreement that in case license is not awarded to the seller the amount would be refunded i.e. the land would not be sold to the assessee. So, the cases quoted where the rate was higher, cannot be a factor to deny the claim of the assessee which was substantiated by the registration deed, confirmation by the seller and the fact that the payments were made through banking channels. Moreover, no evidence was brought on record to establish that the assessee was in a position to spend more since no evidence about excess withdrawal from bank or from any other source, was brought on record or was discovered during the course of search. It is true that the apparent whatsoever strong, cannot replace the actual. In the present case the AO made the additions on the basis of presumption. He presumed that the entries menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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