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TMI Blog2010 (9) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... the property preponderance of probability of entire value of the property as per the seized sale deed payment @ ₹ 79,00, 000/- should not be taken as real value? (ii) Whether the burden of proof was not on the assessee and whether the assessee has not failed to satisfy the onus upon him? (iii) Whether ITAT has not erred in holding that the assessee had not been confronted with the seized documents especially when the A.O. has clearly shown the documents bearing her signatures and the assessee in her reply, stated that the signatures and the assessee in her reply, stated that the signatures shown to her resembles to her signatures? (iv) Whether the order of the learned ITAT is perverse as it has ignored the relevant facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entually, her statement was recorded at her residence and during recording of statement, she was shown the document bearing her signature and to identify her signatures. She, in the reply, stated that the signatures shown to her resembles with her signatures. The assessing officer taking note of the fact that the assessee had denied the consideration involved in the documents thought it appropriate to make local enquiries to find out the probable consideration involved at that time in the transaction. It was gathered from the enquiries that the consideration as referred to in the documents, that is, ₹ 79 lakhs, looked to be genuine keeping in view the fact that the property is situated in a posh area and is ad measuring 400 sq. yards. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng vital facts of the matter and for withholding material facts which were within the knowledge of the appellant. 13. The appellant, therefore, cannot be permitted to succeed on the negative approach adopted by her which is contrary to the facts on record and her own submissions in the income tax returns as also in the course of the assessment proceedings. Therefore on the totality of facts of the matter and in view of the principles of natural justice as per the directions of the Hon‟ble ITAT, I am of the considered view that the agreement to sell dt. 14.5.93 is the actual and material evidence in support of the sale transaction of the property in question, pursuant to which the vacant, physical possession of the property was hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision that how the matter was remanded and referred to the order passed by the CIT(A) dated 16th January, 2008 whereby the additions were confirmed. The tribunal, as is manifest from the order impugned, took note of the contentions especially that the letters were issued by the assessee on 10th October, 2006, 7th November, 2006, 17th November, 2006, 18th December, 2006, 20th December, 2006, 22nd December, 2006 and 14th June, 2007 to the assessing officer asking to be confronted with the seized material and the fact that though the first appellate authority had accepted the position that it was not possible for the original documents to be confronted to the assessee, yet it proceeded to confirm the addition which was against the law. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of an alleged photo copy of a document, it cannot be assumed that the transaction was in fact entered into by the assessee. Definite positive evidence cannot be substituted by alleged photo copies, which have no evidentiary value in law. It cannot be gainsaid that by as many as seven letters (supra) beginning from 1.10.2006 to 14.7.2007, copies whereof have been found placed at pages 54 to 65 of the APB, the assessee repeatedly requested the AO even in the second round, pursuant to the aforesaid directions of the Tribunal to confront her with the seized document. This was not done. Now, the AO, in these circumstances, has obviously erred in making the addition, which was entirely uncalled for. The ld. CIT(A) has further erred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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