9911796707
TMI Blog2019 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... d seized Rs. 2 crores during their search action on 22.4.2010. Statement on oath was recorded by the DDlT (Inv.), Delhi, wherein certain questions asked relating to cash lying at the residential premises, the extract of the relevant portion of the statement are reproduced in assessment order. The assessee in answer to the questions stated that about Rs. 15 Lakhs is at his residence and Rs. 2 Crore is in his office which is located in the ground floor. Out of Rs. 15 lacs, a sum of Rs. 10 Lakhs belongs to company namely M/s Nau Nidh Overseas Pvt. Ltd. and Rs. 5 Lakhs is his personal account. The assessee has received Rs. 2 Crores as advance with regard to his agricultural land at Faridabad which he intend to sell the land is small plots. He has further stated that One Mr. Sharma has given him Rs. 2 Crores as advance for the said property. He came with two people whose names he will provide later on. The assessee also stated that he has met Mr. Sharma four times in Oberai Hotel and assessee do not know his exact address who is well known in Faridabad. Mr. Sharma approached the assessee for purchase of the land. The assessee has been promised final settlement within next 2-3 days. No p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arma, whether he is connected with this land deal. His full name/address. 4. Audit report with balance sheet, P & L Account for the previous year. 3.2. On 30.01.2013, the Counsel for Rahul Ahuja filed written submission stating that payment of Rs. 21 Lakhs and Rs. 1.80 Crores in cash were made to assessee on 12.04.2010 and 21.04.2010 respectively. It was also stated that source of these payments were the withdrawals made from Axis Bank account during the month of January and February, 2010. The cash book of M/s Multi Trade Overseas, Proprietorship Firm of Sri Rahul Ahuja from 01.01.2010 to 30.4.2010 was filed. The original MOU and receipts were not produced for verification The full name of Mr. Sharma i.e. Mr Sanjeev Kumar Sharma and his address was filed and it was explained that he signed as witness on the MOU. The balance sheet and Audit report of Shri Rahul Ahuja for the F.Y. 2009-2010 were also furnished. It was also stated that cash in hand of Rs. 2,17,36,182/- was available on 31.03.2010 and the same was used for making the payments to assessee. It was also stated by Counsel for Rahul Ahuja verbally that Shri Rahul Ahuja has filed a court case for recovery of the advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land and consideration for the same because according to him the size of the land was 30 Acres and agreed price was Rs. 4 crores only. He has also stated that he has not met assessee at Oberoi Hotel. 3.3. The A.O. further recorded statements of Shri Rahul Ahuja and explained about the land deal through Shri Sanjeev Kumar Sharma. He has also stated that area of the land was 30 Acres and agreed price was Rs. 4 crores and he has met the assessee at his residence at Vasant Vihar, New Delhi. He has stated that Rs. 21 lakhs was paid in cash on 12.04.2010 and Rs. 1.80 crores was paid in cash on 21.04.2010. He has also submitted copy of the Agreement Dated 12.04.2010. He has stated that assessee has asked for payment in cash. As regards the source of the cash payment, he has stated that on 29.01.2010 he made cash withdrawal of Rs. 1.75 crores from his Bank Account maintained with Axis Bank, Greater Kailash-1, Delhi and another withdrawal of Rs. 20 lakhs was made on 02.02.2010 from the same account. He has also disputed the statement of assessee that land deal was for 50 Acres for agreed price of Rs. 6 crores. He has also explained that he met the assessee at Vasant Vihar, Vasant Conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee stated in Q.No.8 that Mr. Sharma gave him the amount of Rs. 2 Crores as advance and he came with two people whose names were not furnished. Whereas Shn Sanjeev Sharma had stated that on 21.4.2010 four persons (he himself, Anil Trehan. Rahu Ahuja and his friend) went to residence of Jatinder Pal Singh to deliver the cash, and on 12.4.2010 three persons (he himself, Anil Trehan, Rahul Ahuja) went to deliver the cash. It is surprising to note that the assessee could not even give the name of the buyer of the land Shn Rahul Ahuja. at the time of his statement recorded on 22.4.2010, which was only a day earlier on which advance of Rs. 1.80 crores was alleged to have been received. 5. The assessee stated in Q.No.9 that he met Mr. Sharma four times in Oberai Hotel Whereas Mr. Sanjeev Sharma has denied to have met the assessee at any hotel or restaurant etc., he even denied to have met him at Oberai Hotel. Therefore, this version of the assessee is also not correct. 6. The assessee stated that an amount of Rs. 2 Crores was received as advance money whereas Shri Sanjeev Sharma and Shri Rahul Ahuja have stated that advance money paid was Rs. 2.01 Crores. The figures do not match. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Sager Medical & Hospital, to which the assessee confirmed. 4. On 21.4.2010 at 13.20 hrs., the telephonic conversation between Dr. Sukhvinder Singh with Shri N.S. Bhangoo in which Shri N.S. Bhangoo suggests Dr. Sukhvinder Singh to meet Shri K.A. Paul, Manager. M/s PACL India Ltd., Connought Circus. New Delhi to complete the work of "DO WALA" 5. On 21.4.2010 at 13.33 hrs. the telephonic conversation, Shri K.A Paul, conformed and fixed the time for next day i.e. 22.4.2010. 6. On 21.4.2010 at 19.11 hrs Dr Ketan Desai inquires from Shri Jatinder Pal Singh whether he got or not, to which Shri Jatinder Pal Singh replied that it would reach by tomorrow and he (Dr Ketan Desai) would get it in the morning. 7. On 21.4.2010 at 13.34 hrs. Dr Sukhvinder Singh confirmed the transaction to take place on 22.4.2010. 8. On 22.4.2010 at 12.30 hrs. the telephonic conversation reveals that Dr Kamaljeet Singh, Chief Executive Officer Gain Sagar Medical College & Hospital Patiala collected the amount, the Rs. 2 Crores from Shri K.A Paul near Hanuman Mandir at Karol Bagh and delivers it to Shri Jatinder Pal Singh at his residence which was recovered by team of CBI from the residence of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished cash in hand chart showing cash withdrawal from bank of Rs. 1 lakh each in April, 2009, June, 2009, September, 2009, January, 2010. The A.O. noted that these withdrawals are very old prior to the date of search i.e., 22.04.2010 and same cannot be taken into account. The A.O. further noted that household withdrawals shown at Rs. 7,20,000/- are also debited from the cash in hand chart which appears to be very low looking to the life style, status of the assessee. The assessee owns Mercedes Car, Range Rower Car and possesses Vertu mobiles and owns several costly watches above Rs. 1 lakh and possesses Solitaire diamonds. Looking to his social status his monthly expenses cannot be estimated below Rs. 2 lakhs per month i.e.,Rs. 24 lakhs per annum. The A.O. accordingly made addition of Rs. 16,80,000/-. The assessee also stated to have earned Rs. 4 lakhs as agricultural income, for which, no evidence was filed. The A.O, therefore, noted that whole cash of Rs. 15,74,000/- does not belong to the assessee. In the statement during the course of search, assessee had stated that cash of Rs. 5 lakhs belongs to him. Since assessee has not been able to prove the source of the cash, the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 2 crores etc., The Ld. CIT(A) considering the submissions of the assessee, call for the remand report from the A.O. and after giving opportunity to the assessee to rebut the claim of the assessee, confirmed the addition of Rs. 2 crores and upheld the Order of the A.O. The findings of the Ld. CIT(A) in paras 7 to 7.1.22 is reproduced as under: "7. I have gone through the contents of the assessment order, finding given by the Assessing Officer, written submissions of the appellant, details filed in the paper book and also the case laws relied upon by the appellant in support of his contentions and considered them judiciously on merits. The Assessing Officer made an addition of Rs. 2,00,00,000/- mainly on the ground that the appellant conspired with Dr. Ketan Desai to receive an illegal gratification by extending favors to Gian Sagar Medical College & Hospital and that the receipt of such amount was explained to have been received against a sham agreement disguised as an advance received by the appellant against the sale of an agricultural land situated at Magrauli Village, Faridabad district Haryana. As the source of the cash was not explained by the appellant corrobora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the A.O. is as under : The additional evidences are duly considered and it is found that there is nothing new in the additional evidences. The paper submitted as additional evidences are already filed in the assessment proceedings and the same were duly considered. From the perusal of documents filed during the remand proceedings as well as assessment proceedings, following facts appear as under : (a) Sh. Jatinder Pal Singh is the owner of socalled land in Faridabad Haryana. Other than this fact, all things are after thought and try to camouflage the unexplained/ unaccounted money found during the search. His statements was recorded u/s 131 during the assessment. (b) Statements of buyer of the land Sh. Rahul Ahuja and broker/witness Sh. Sanjeev Sharma was recorded in detailed u/s 131 during the assessment (copy enclosed). (c) After careful examination and comparison of above three statements given by the assessee, Sh. Sanjeev Sharma and Sh. Rahul Ahuja certain observation were made and discussed in detail on page no. 9, 10 and 11 of the assessment order. Relevant portion of the above three statements was also reproduced in assessment order. (d) In compliance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a day earlier on which advance of Rs. 1.80 crores was alleged to have been made. v. The assessee stated in Q. No. 9 that he met Mr. Sanjeev Sharma four times in Oberai Hotel. Whereas, Mr. Anil Trehan has stated that he met mostly at the residence of the assessee D-Block, Vasant Vihar, and only once he met the assessee along with his partner Sh. Sanjeev Kumar Sharma. Whereas, the assessee in his statement never stated that he met Sh. Anil Kumar Trehan of Sh. Sanjeev Sharma was meeting him with someone. vi. Sh. Anil Trehan stated that every time he met the assessee along with his partner Sh. Sanjeev Kumar Sharma. Whereas, the assessee in his statement never stated that he met Sh. Anil Kumar Trehan or Sh. Sanjeev Sharma was meeting him with someone. vii. The assessee stated that an amount of Rs. 2 crores was received as advance money whereas Sh. Anil Trehan has stated that advance money paid was Rs. 2.01 crores. The figures do not match. Further, ITI of this office was deputed to verify the suit filed by Rahul Ahuja vs. Jatinder Pal Singh in the court of Civil Judge Sr. Division, Faridabad. The case has been filed on 23.1.2013 and next date of hearing in on 10.11.2014 a ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned above are not applicable in this case. Sufficient opportunity was given to the assessee by the Assessing Officer and hence provisions of Rule 46A are not applicable in this case. The condition [b) & [c] as mentioned above are also no applicable as the assessee did not submit any evidences to substantiate the he was prevented by sufficient cause. Therefore, it is a fit case for not admitting additional evidences under Rule 46A of Income Tax Rules and you are kindly requested not to admit the additional evidence filed by the assessee." 7.1. The said said report was provided to the AR of the appellant. Vide letter dated 14.10.2014 the AR of the appellant submitted his comments as a rebuttal which is extracted below : "AO's Report : AO report can be summarized as follows : * The documents which the Ld. CIT(A) was referring, while remanding the matter to the AO, were available with the AO and that the assessee has not filed anything new to the AO. * Mr. Rahul Ahuja, Mr. Sanjeev Sharma and the assessee was already enquired during the assessment and the discrepancies were already pointed out in the Assessment Order. * Additionally, Mr. Anil Kumar Trehan was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls for your perusal. The third allegation of the AO, in this report, shows the lack of application of mind by the AO while making the Remand Report. The AO was completely oblivious to the fact that the search was conducted at the premises of the assessee and the MoU was available with the purchaser, i.e., Mr. Rahul Ahuja, who was issued summons under Section 131 of the Act by the AO. It is further brought to your notice that the AO has put the purchaser under oath and recorded his statement. In view of the above submissions, it is submitted before your goodself that the MoU is a genuine document and it is only the AO who is trying to camouflage the truth by making baseless allegations. It is brought to your kind notice that the case of the assessee was proved beyond doubt by the assessee as well as by the purchasers and brokers, who were summoned by the AO u/s 131, and it is up to the AO now to disprove the submissions of the assessee bv bringing some positive evidences on record. However, in this instant case, the AO is only making baseless allegations based on surmises and conjectures. Discrepancy # 3 : Assessee stated that he did not possess the receipt whereas Mr. Anil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser had NOT used the said amount for the purchase of impugned land. In the absence of any evidence to suggest that the assessee has obtained from any other source, it cannot be held as unaccounted cash. Discrepancy # 5 : The assessee has stated that he met Mr. Sanjeev Sharma four times in M/s. Oberai Hotel whereas the Mr. Anil Trehan has stated that he has met the assessee only once in M/s. Oberai Hotels. We would like to reiterate that the AO has to conclusively prove that the assessee had obtained the money from the source other than Mr. Rahul Ahuja or that Mr. Rahul Ahuja has NOT given the money as advance towards the purchase of the property. A disallowance cannot be made on surmises and conjectures. If the AO is not satisfied with the explanation provided by the assessee, it can ask the assessee to substantially prove the source of the assessee and when the assessee completed his duty to prove the genuineness of the transaction and the source of the transaction; it is for the AO to prove it otherwise conclusively and NOT by surmises. Here, we would like state that the small discrepancies in the statement of the parties, like the meeting place and the number of meetings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser had further established his source of income for Rs. 2 crores and hence the primary preconditions of 'Unexplained investment/ unaccounted cash' has been satisfied and moreover, the AO also did not bring on anything positive to prove it otherwise. In this regard, the assessee would like to rely on the following decisions: Shri. Birbal Ram Meera Vs ITO (ITA No.410/JP/2011, A.Y. : 2003-04) wherein it was held that the certain discrepancies in the statement of the parties with respect to the location of the property could be a mistake. But when the fact that the property was sold by the sellers and purchased by the purchasers is proved, an addition cannot be made. The relevant extracts is s follows: "Statement of both the persons i.e. Shri Laxminarain and Shri Chittarmal were recorded and they have categorically admitted that they have purchased the property from Shri Rattan Lai. There are certain discrepancies i.e. one person says that the property situated at village Surajnagar and other says that property situated at village Suryanagar. It may be mistake in pronouncement but the fact is that property was sold by Shri Ratan Lai Meena and same was purchased by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete particulars are furnished to AO and the AO has not conducted enquiry in to the same or has no material in his possession to show that those particulars are false and cannot be acted upon, then no addition can be made under Section 68. We would also like to draw a parlance to the assessment completed based on information received by Investigation vis-a-vis assessment completed based on the CBI enquiry. In this regard, we would like to rely on the decision of jurisdictional Delhi ITAT in the case of DCIT Vs Heminder Kumari (ITA.No.4210 to 4213/Del/ 2013, AY 2002-03 to 2005-06) wherein it was held that the information received by the Investigation wing, at best, be regarded as a prima facie material, but could not be construed as conclusive for use against the assessee to fasten tax liability, because the same has to be corroborated with credible and independent evidence. Similarly, the AO cannot conclude assessment based on the CBI enquiry but has to substantiate itself with credible and independent evidence which the AO had failed to do so in this instant case. For the foregoing reasons, we request your goodself to kindly delete the disallowance made by the AO as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et the appellant in Hotel Oberoi, whereas the appellant claimed that he received an amount of Rs. 2,00,00,000/- from Mr. Sharma at Hotel Oberoi. It is also an important fact to bring on record that admittedly, the alleged deal for the sale of land was initiated in February, 2010 and the land was not transferred till the date the alleged buyer/purchaser claimed to have filed a suit for recovery of the advance amount. It was only when the Assessing Officer asked for the copy of the suit for recovery of alleged advance, Mr. Rahul Ahuja furnished the copy of the suit on 5.2.2013. It was pertinently mentioned by the Assessing Officer in his order, that the suit for recovery of the advance was filed only on 22.1.2013, which was almost after 3 years whereas as per clause 7.5 of the Memorandum of Understanding dated 22.4.2010, the deal was to be completed on or before 15.7.2010. In these circumstances, where there is an inconsistency in the versions given, variation of facts and difference in the statements of all the related parties, there are serious doubts on the alleged transaction of the sale of land. In the normal circumstances for a normal person it is beyond comprehension to believ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I gave him choice of cash/cheque. Q.No.12 Please explain your sources of cash in hand as on 12.4.2010 Rs. 21 lakhs and on 21.4.2010 Rs. 1.80 crores. Ans. On 29.1.2010 I made cash withdrawal of Rs. 1.75 crores from my bank a/c no. 049010200029078 in Axis Bank, GK-1, Delhi. There was another withdrawal of Rs. 20 lakhs on 2.2.2010 from the same account. There were other withdrawals and cash in hand as on 1.4.2010 was Rs. 2,17,36,182/-." 7.1.2. In view of the above discussion and reason, I find that the conduct of the appellant is against the normal probability and human behavior. It is a settled law that the conduct of the appellant is a strong evidence to determine the status of a person. For this proposition I make a reference to the judgment passed by the Hon'ble Supreme Court in the case of ITO VS Mangat Ram Narota Ram Narwana and another 2011 336 ITR 624 (SC). 7.1.3. Subsequently during the remand proceedings, when the ITI was deputed to enquire about the status of the suit, it was informed by him that Sh. Rahul Ahuja filed a suit for recovery of Rs. 2,00,00,000/- from the appellant in the Court of Civil Judge, Faridabad on 23.1.2013 and the date of hearing was 10.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tament executed by Sh. Sawan Singh S/o Late Sh. Arjan Singh in favour of Sh. Jatinder Pal Singh S/o Dr. S.S. Giani, IFS dated 5.2.1997. b) Bai namah document for an amount of Rs. 35,000/- and stamp duty of Rs. 4,375/- and two other sale deeds. c) Submission titled "Annexure of justification of cash in hand (Sh. Jatinder Pal Singh)". 7.1.5. In the document of will/testament, executed by Sh. Sawan Singh S/o Late Sh. Arjan Singh in favor of his grandson Sh. Jatinder Pal Singh, the appellant the following property mentioned at A has been bequeathed. An extract of the same is reproduced below: "Agricultural land : Total share area 60/130 Bhag of Khasra Nos. 36(18-18-0), 37(20-23-0), 38(28-2- 0), 39(24-4-0), 40(33-1-0), 44(23-0-0), 45(20-0-0), 46(3-15-0), .. 08 MIN (17-0-0+,109(9-14-0), 110(44- 17-0), 111(16-2-0), 119(83-3-0), 120(15-0-0), 41(7- 15-0), 42(24-0-0 + and 43(17-17-0) in village Magrauli Khadar, Pargana, Dadri, Tehsil Sikanderabad, Distt. Bulandshahr, U.P. The said land was purchased by me on 15.6.83, 17.6.83 and 20.6.83 vide Sale Deed Registration Nos. 3938, 4058 and 4/06 in the Revenue record of Sub-Registrar, Ballabhgarh [Haryana]." 7.1.6. In India, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initially located in Dospur, Magrauli Khadar, Pargana Dadri, Tehsil Sikanderabad, District Bulandshahr. Subsequently, due to the diversion of the river Yamuna the above survey nos. falling in the district of Bulandshahr were shifted to Village Vidavalli, Tehsil Ballabhgarh, District Faridabad and the following khasra nos. were allotted in the revenue record >2(95- 14), 1/3(9- 0), 1/6(229-11), 3(77-12), 4(55-14) of 477 bigha, 1/2 bhagdar, 238 10 biswa pukta in this total land 7/28 share i.e. ¼th share bhagdar is 59 bigha 12 biswa in the ownership and possession of the above mentioned persons. Therefore initially the lands which were situated in District Bulandshahr Uttar Pradesh, were shifted to District Faridabad, Haryana due to the change of the course of the river Yamuna. In the said sale deed it was mentioned that there are many share holders and that the owners were not in a position to cultivate the land and in the interest of everybody mentioned above the land admeasuring 59 bighas 12 biswa pakka with all the rights in the land were sold in lieu of an amount of Rs. 35,000/- and ½ of this is Rs. 17,500/- to the following persons : 1. Jaswant Singh Bhullar S/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey nos. mentioned in the sale document and that on the will/testament executed by Sh. Sawan Singh are same but the will did not contain the survey nos. that were changed when the land was shifted to Faridabad. It is also pertinently mentioned here that Sh. Sawan Singh was not the absolute owner of 59 bighas 12 biswas but was only a co-owner to the extent of 30/130 share out of 59 bighas 12 biswas along with the others. Therefore the actual extent of the land mentioned in the MOU dated 12.4.2010, and the share of his grandfather that was inherited and sold by the appellant to Sh. Rahul Ahuja is found to be incorrect. 7.1.11. The above calculations were only worked out to establish that the grandfather of the appellant bequeathed only his share to the extent of the land owned by him mentioned in the sale document which is less than 30 acres and approximately 4 acres (3.723). It is also pertinently mentioned that the total share of Sh. Sawan Singh in the will was mentioned as 60/130 whereas the actual share is only 30/130. From this it is evident that the appellant attempted to build-up a story around these agricultural lands to show that these lands were inherited by him and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of land i.e. real estate due to the reason why an agreement usually is drawn even to lease out a residential house that mandates the so called agreement to be notarized. Time is the essence of this MOU, and on the basis of this MOU, and within the said time frame a definite agreement was to be entered between them for any legal enforceability. Another predominant and important factor is that the "termination" of the MOU. There is no "termination clause" in the MOU dated 12.4.2010, as to how the same would be annulled after the completion of the sale transaction. In the back drop of these facts pertaining to the MOU dated 12.4.2010, it is not understood as to how this MOU which is nonbinding, unregistered was enforceable in the Court of Faridabad where the purchaser/buyer of the alleged land filed a suit for recovery of alleged advance of Rs. 2,00,00,000/- on distorted facts, as found in the documents submitted by appellant, defects, gaps, deficiencies in these so called evidentiary pieces. It is evident that the event of alleged sale transaction is only an afterthought, and not a genuine transaction binding the appellant and the purchaser for any legal recourse subsequently crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion should take into consideration the entire material, which is germane and which should not be ignored and exclude that which is irrelevant. Certain facts or aspects may be neutral and should be noted. These should not be ignored but they cannot become the bedrock or substratum of the conclusion. The provisions of Evidence Act are not applicable, but the Assessing Officer being a quasi judicial authority, must take care and caution to ensure that the decision is reasonable and satisfies the canons of equity, fairness and justice. The evidence should be impartially and objectively analyzed and ensure that the adverse findings against the assessee when recorded are adequately and duly supported by material and evidence and can withstand the challenge in appellate proceedings. Principle of preponderance of probabilities applies. What is stated and the said standard, equally apply to the Tribunal and indeed this Court. The reasoning and the grounds given in any decision or pronouncement while dealing with the contentions and issues should reflect application of mind on the relevant aspects." Further, in paragraph 23, the Lordship in the case of N R Portfolio (P) Ltd., supra had he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the law that any and every narration by the assessee must be accepted. It must be an explanation acceptable to the fact finding body." 7.1.18. The Hon'ble Supreme Court of India in the case of Chuharmal Vs CIT (1988) 172 ITR 250 (SC) held as under: "What was meant by saying that the Evidence Act did not apply to proceedings under Income Tax Act, 1961, was that the rigour of the rules of evidence contained in the Evidence Act was not applicable, but that did not mean that when the taxing authorities were desirous of invoking the principles of Evidence Act in the proceedings before them, they were prevented from doing so. The Supreme Court further held that all that section 110 of the Evidence Act, 1972 did say was to embody a salutary principle of common law jurisprudence, viz., where a person was found possession of anything, the onus of proving that he was not its owner was on that person. This principle could be attracted to a set of circumstances that satisfy the conditions and was applicable to taxation proceedings." 7.1.19. The Hon'ble Supreme Court of India in the case of Me Dowell & Co. Ltd. vs. Commercial Tax Officer (1985) 154 ITR 148 (SC) held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and also after relying on the various judicial pronouncements cited above, I find no reason to interfere and disturb the addition made by the Assessing Officer as the same is based on evidence, proper appreciation of facts and circumstances of the case. The argument of the AR of the appellant that the Assessing Officer did not appreciate the facts in a proper prospective and did not bring any material on record though seems attractive but is not believable. The Assessing Officer conducted an in-depth enquiry and indeed has determined the true and the legal relation resulting from alleged transactions and established that the alleged transaction is an afterthought and a make to believe story. The decisions referred and relied upon by the AR of the appellant are not applicable to the facts of this case. The facts of the present case as noticed above speak for themselves and are obvious. What is unmistakably visible and apparent, cannot be spurred by formal but unreliable pale evidences ignoring the patent and what is plain and writ. In view of the aforesaid discussion the addition of Rs. 2,00,00,000/- made by the Assessing Officer is upheld and confirmed." 5. Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt was with the purchaser who has produced the receipt later on, therefore, claim of assessee should not be denied. The conversation recorded by the CBI was not with regard to any payment of Rs. 2 crores. Since CBI has filed the charge sheet against Shri Ketan Desai which is yet pending for decision and no conviction have been made, therefore, charge sheet pending in Criminal Court cannot be used against the assessee. 6. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and submitted that amount was recovered by CBI who were recording telephone calls and all the conversation was intercepted by the CBI. The recovery of the amount was made from the assessee. the original of the MOU was never produced before the authorities below. The original of cash receipt was also not produced. As per provisions of Sections 63 and 64 of Indian Evidence Act, photo copy being secondary evidence could be proved by primary evidence i.e., by production of the original documents for inspection of the Court. Since no original MOU or cash receipts were produced before the authorities below, therefore, photo copies are not admissible in evidence. There are contradictions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cultural land. The issue has to be appreciated in the light of preponderance of probability and surrounding circumstances. The surrounding circumstances lead to the conclusion that the alleged sale of agricultural land and MOU was an afterthought of assessee to save himself from criminal proceedings and also income tax liability. The Ld. D.R, therefore, submitted that addition may be confirmed. 7. We have considered the rival submissions and perused the material available on record. The A.O. on examination and comparison of the three statements given by Assessee, Shri Sanjeev Kumar Sharma and Shri Rahul Ahuja has made certain observations against the assessee in the assessment order which have been reproduced above. There is a discrepancy with regard to land agreed to be sold was whether for 50 Acres or 30 Acres. The consideration also differ whether it was for 6 Acre or 4 Acre. Nothing have been explained by the assessee to the satisfaction of the authorities below. The assessee has stated in his statement that no agreement was signed. However, Shri Rahul Ahuja submitted copy of MOU Dated 12.04.2010. Therefore, the statement of Shri Rahul Ahuja was not reliable. It would not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of land. It is highly unbelievable that a person who is having banking facility kept substantial amount of Rs. 2 crores in cash with him for more than two months. The assessee at the time of making statement has clearly agreed that no Agreement to Sell pertaining to the sale of agricultural land was executed between the parties. When there was a substantial difference between the area of the land to be sold and consideration, there was no reason to record lesser amount or lesser area in MOU signed by the assessee. The assessee at the time of search by CBI did not explain the details of persons who has given the amount in question to the assessee. No mode of payment was also explained. It, therefore, appears that entire story have been cooked-up by the assessee later on and is clearly an afterthought. According to Section 110 of Evidence Act when assessee was found in possession of Rs. 2 crores at the time of search by CBI and assessee denied the ownership of the same, the burden would be upon the assessee to prove as to who was the owner of the cash found from his residence and possession. However, the assessee failed to discharge onus upon him to prove as to who is the lawful o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances clearly prove that assessee has no explanation whatsoever of the cash found from his possession during the course of search by the CBI. The Hon'ble Supreme Court in the case of Durga Prasad More 82 ITR 540 (SC) and in the case of Sumati Dayal 214 ITR 80 (SC) has held that "the Courts and Tribunals have to judge the evidence before them by applying the test of human probability". If the said test is applied in this matter, it is clearly established that the assessee has failed to prove source of Rs. 2 crores found during the course of search by the CBI at his residence. Thus, appeal of assessee has no merit and the same is accordingly on this ground. Ground Nos. 1 and 2 of appeal of Assessee are accordingly dismissed. 8. On Ground Nos.3 and 4, assessee challenged the Order of Ld. CIT(A) in confirming the addition of Rs. 15,74,000/- and Rs. 5 lakhs. 9. The Ld. CIT(A) on this issue while giving his findings recorded that assessee either in the course of assessment proceedings or in the course of appellate proceedings did not specify the source of the balance amount of Rs. 5 lakhs with satisfactory corroborative evidence. He has also recorded in the absence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
