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TMI Blog2022 (1) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in the finding of ld. CIT(A) and the same is confirmed. Decided against revenue. - ITA No. 39/Ind/2021 - - - Dated:- 28-1-2022 - Shri Mahavir Prasad, Judicial Member And Shri Manish Board, Accountant Member Virtual Hearing For the Appellant : Shri S.S. Deshpande, AR For the Respondent : Shri Amit Soni, Sr. DR ORDER PER MANISH BOARD : The above captioned appeal at the instance of Revenue is directed against the order of Ld. Commissioner of Income Tax(Appeals)-3, (in short CIT(A) ), Bhopal dated 14.08.2020 which is arising out of the order u/s 143(3) of the Income Tax Act 1961(In short the Act ) dated 18.02.2015 framed by DCIT-Central-I, Bhopal. The Revenue has raised following grounds of appeal: 1.On the facts and in the circumstances of the case, the ld. CIT(A) has erred in law in deleting the addition of Rs.3,53,80,000/- made by the AO on substantive basis on account of unexplained investment u/s 69 of the Income Tax Act 1961. 2. Brief facts of the case as culled out from the records are that the assessee is a partnership firm engaged in the business of builder and developer. Nil income was shown in the return filed on 12.02.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered sale deed. Further, the land was purchased from Shri Pradeep Sharma and Pradeep Hirani and has no knowledge of agreement dated 27.11.2010. The AO after considering reply of the assessee did not find the same acceptable and made additions for unexplained investment u/s 69 of the act for alleged on money paid at Rs.3,53,80,000/- for purchase of the above said land through its partner Shri Sanjeev Agrawal and further observed that the payment of on money in cash is not recorded in the books of account of the assessee nor in the books of account of the partner Shri Sanjeev Agrawal. After making alleged addition u/s 69 of the Act income assessed at Rs.3,53,80,000/- 3. Aggrieved assessee preferred an appeal before the ld. CIT(A) and stated that during the course of search registered deeds were found relating to appellant firm but during the post search inquiry summons u/s 131 of the Act were issued only to the broker and his statements were recorded but the statements of seller was not recorded who is alleged to have received on money from the assessee. Further the appellant s request for providing opportunity of cross examination was declined by the Ld. AO and thus the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in making additions simply the basis of statements of (b) The AO erred in making additions on the basis of statement of sellers and without providing opportunity of cross examination before making such additions; (c) The AO erred in making additions on the basis of oral evidences; (d) The AO erred in making additions on assumption and presumption basis and without having any incriminating material on record; (a) Additions made on the basis of statement of third party/seller : This is an admitted fact that statements of sellers were recorded by DDIT(Inv), Bhopal and not by the AO. Now, let me discuss each and every point in detail regarding the findings of the AO and plea raised by the appellant. The brief details of statement of sellers recorded by DDIT(Inv), Bhopal and my findings are as under:- (i) Shri Lalaram, Shri Devi Singh and Smt Rekha Bai: During post search enquiry statements of Shri Lalaram, Shri Devi Singh and Smt Reha Bai were recorded on oath by DDIT(Inv )-1, Bhopal on 30.10.2011. An agreement dated 27.11.2010 was brought on record stating that the impunged land was to be sold by Shri Lalaram, Shri Devi Singh and Smt Reha Bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of third party without having any cogent evidence on record having direct nexus of impunged on money payment. Hon'ble Supreme Court in the case of CIT vis KP Varghese 131 ITR 574 (SC) has held that in absence of evidence that actually assessee paid more amount than declared in registered deed, no addition can be made. In the case of Bansal Strips (P) Ltd Ors Vs. ACIT (2006) 99 lTD 177 (Del) it has been held that:- If an income not admitted by assessee is to be assessed in the hands of the assessee, the burden to establish the such income is chargeable to tax is on the AO. In the absence of adequate material as to nature and ownership of the transactions, undisclosed income cannot be assessed in the hands of the assessee merely by arithmetically totally various figures jotted down on loosed document . (b) No opportunity of cross examination given : Statement of third party was recorded by DDIT(Inv), Bhopal who is not the authorized authority to issue summons uls 131 of the Act. Nevertheless, statements of third party were recorded and evidences brought by them were solely relied by the AO and subsequently additions were made to the total income of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO (ITA.379/Ind/2013 dated 18.07.2014 wherein it has been held that:- As per the provision of Section 54 of the Transfer of Property Act, any tangible immovable property for an amount exceeding Rs.100 can be transacted only through a registered instrument and since the registered document is duly signed by the parties i.e. sellers and the purchasers and duly witnessed by independent persons, that too, in the presence of registering authorities, therefore, oral statement loses its credibility, more specifically when at pages 2 3 of each sale deed, there is a receipt/mentioning of consideration amount agreed between the parties. When the documents are reduced in writing then provision of Section 91 92 of 18 the Indian Evidence Act expressly bars/prohibits acceptance of oral evidence against such documents, more specifically when the registered documents are duly admitted to be correct by both the parties. The only admissible evidence regarding the terms of such contract/agreement, available before us, is the registered sale deed itself, therefore, the oral evidence loses its credibility in view of Section 92 of the Indian Evidence Act. Section 54 of the Transfer of the Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, strong cannot take place of proof. It would be most pertinent to refer to the decision of Hon'ble Supreme court in the case ofK P Varghese vis ITO (1981) 131 ITR 597(SC) wherein it was held that assessee must be shown to have received more than what is disclosed by him as consideration. In the present case, onus probandi is on the department. There is legal maxim which says affirmanti non neganti incumbit probation means burden of proof lies upon him which affirms not upon him who denies. Here the ratio of the above cited case is squarely applicable to the facts of this case, the AO is required to bring some tangible and positive material on record to prove that assessee has paid more consideration than disclosed by it in the books. Hon'ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd vis CIT (1954) 26 ITR 775 (SC) has held that although strict rules of evidence Act do not apply to income tax proceedings, assessment cannot be made on the basis of imagination and guess work. Similar views have been expressed by Apex court in the case of Dhiraj Lal Girdharilal vis CIT (1954) 26 ITR 736 (SC). 4.2.3 Nonetheless, Hon'ble ITAT Indore in the case of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of appeal the appellant has challenged the charging of interest under section 234A, 234B and 234C of IT Act, 1961. The charging of interest is mandatory and consequential in nature. However, the AO is directed to recalculate the interest while giving effect to this order. Therefore, the appeal on this ground is Dismissed. 4.4 Ground No. 6 :- These grounds of appeal are general in nature which does not require any specific adjudication. 8. From perusal of the above finding wherein Ld. CIT(A) has referred to various settled judicial precedents, we find that Ld. DR failed to controvert the facts that firstly the additions were made simply on the basis of statement of power of attorney holders, secondly the addition was made without providing any opportunity of cross examination to the assessee with the 3rd party on whose statement addition has been made, thirdly, the additions are made merely on the basis of oral evidences and there is no evidence on record which could prove that the seller has received on money and offered the same before the revenue authorities and lastly the addition seems to be made on assumption and presumption as except the registered sale dee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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