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TMI Blog2024 (9) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be treated as executed and enforceable by law. The consent of all parties to an agreement is one of the essential aspect for a valid agreement which is not present in the present case as the appellant has not given her consent by signing the agreement. An agreement not enforceable by law and is void agreement as per section 2(g) of the Indian Contract Act, 1872. Thus, when there is no inquires conducted to controvert the submission made by the assessee the same cannot be considered as evidence against the assessee. The apex court in the case of Dhakeshwari Cotton Mills Ltd. [ 1954 (10) TMI 12 - SUPREME COURT] held that a suspicion remains a suspicion unless the same is established and can never take place of reality. Assessment cannot be made on guesswork without any reference to any material on record. Thus, we see no reasons to sustain the addition in the hands of the assessee and therefore, the same is directed to be deleted. Based on these observations ground no. 1 raised by the assessee is allowed. - Dr. S. Seethalakshmi, Jm And Shri Rathod Kamlesh Jayantbhai For the Assessee : Sh. Tanuj Agarwal, Adv. For the Revenue : Sh. Ajay Malik, CIT ORDER PER: RATHOD KAMLESH J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lac has been paid in advance in cash by Smt. Kanta Devi Jain. This agreement shows that the assessee has paid an amount of Rs. 5,00,000/- in cash to Shri Harinarayan Sharma for purchase of the above land. 3.2 Vide Show cause notice dated 13.09.2019 the assessee was asked to furnish the source of investment in the immovable property. The assessee was also asked to furnish explanation for page no. 1-4 of Exhibit no. 2 seized from the residential premises of the assessee. The assessee filed reply stating that this agreement was not executed between the assessee Kanta Devi Jain and Hari Narayan Sharma. The assessee further contended that however it was drafted but the deal was not fianlised and therefore, the same remained unexecuted. The ld. AO considered the reply of the assessee but not found fully acceptable and therefore, on 19.12.2019 again a show cause was issued to the assessee. 3.3 Ld. AO noted that the assessee has not furnished any new facts and therefore, he found not acceptable observing that the agreement was found from the possession of the assessee. If this was only a draft agreement then why it was kept by the assessee for such a long time. The date of agreement was 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. The appellant is also one of the two parties of the agreement. As per the agreement the appellant has paid cash of Rs. 5 lakhs to the seller of property. The seller of the property has signed the agreement along with the two witnesses. The learned AO has highlighted various facts of the case which have not been disputed by the appellant in the present appeal except merely the arguments regarding the legality of the agreement. The appellant has contended that this agreement cannot be considered as executed and also this cannot be considered a contract. Whether this document is a contract or not is completely irrelevant to the issue at hand. Further whether this document is executed or can be considered as executed or not, is also completely irrelevant to the issue at hand. The issue at hand is whether cash payment of Rs. 5 lakhs was done by the appellant or not. Even if the agreement is considered as a mere payment acknowledgement even then the appellant is required to show the source of the payment made. It cannot be disputed that the document clearly shows and proves as a payment acknowledgement that money was received by the seller of the property. The legality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r thing belong or belongs to such person, (ii) that the contents of such books of account and other documents are true, and that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by or to be in the (iii) handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. (2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of section 132A, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of subsection (1) of section 132A. had been found in the possession or control of that person in the course of a search under section 132. As per the legal presumption, the contents of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and made the addition which was confirmed by the learned CIT(A). Being aggrieved, the appellant has preferred this appeal in order to seek justice. Appellant s Humble Submissions: It is humbly submitted that the both the lower authorities grossly earned in appreciating the facts of the case as well as the provisions of law. Copy of ikrarnama was just an offer made by the seller Mr. Ghan Shyam Sharma which was never accepted and executed by the appellant even till today as the agreement was never agreed and signed by the appellant which is also evident from the copy of agreement furnished at paper book page no. 1 to 5. The learned Assessing Officer grossly failed to exercise his powers in making independent inquires from the seller rather opted for making the impugned addition merely on surmises and conjectures. It is humbly submitted that signature on agreement of all the parties to the agreement is very important without which it cannot be treated as executed and enforceable by law. Consent of all parties to an agreement is one of the essential aspect for a valid agreement which is not present in the present case as the appellant has not given her consent by signing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the assessee u/s. 69A of the Act. To support this proposition the Ld.AR has relied on various orders and judgments of Hon ble High Courts and coordinate benches of Tribunal which are listed below:- i) Commissioner of Income Tax vs. Ravi Kumar [(2008) 168 taxman 150 (Punjab Haryana) ii) Kantilal Chandulal Co. v. Commissioner of Income Tax [1992] 136 ITR 889 iii) PCIT vs. Nexus Builders and Developers (p.) Ltd. (2022) 134 taxmann.com 82 (Bom) (iv) Monohar lal Rattan lal vs. DCIT [2004 (2) TMI-275-ITAT Amritsar] (v) Saamag Developers (P.) Ltd. vs. ACIT [(2018) 90 taxmann.com 20m (Delhi- Trib) (vi) DCIT vs. Rajat Agarwal [(2012) 27 taxmann.com vii) DCIT vs. M/s Signature Colonisers, Bhopal [ITA No. 218/Ind/2020 and ITA No. 219/Ind/2020] (ix) M.M Financiers (P.) Ltd. vs. DCIT [(2007) SOT 5 (Chennai) (URO)] (x) Anil Kumar Bhatia vs. ACIT [(2010) 1 ITR (T) 487 (Delhi)] (xi) Commissioner of Income Tax vs. Tips Industries (P.) Ltd., [(2010) 321 ITR 154 (Bom) (xii) S.K Gupta vs. DCIT (1999) 69 TTJ Del 535. 33. On careful perusal of above judgments and other we find that the Hon ble Bombay High Court in the case of PCIT vs. Nexus Builders and Developers (P.) Ltd. (supra) held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be it a notice, order, letter, agreement, audit report, valuation report, cheque or any other document. Courts have held on various occasion that an income tax notice without signature of AO is invalid. Reliance is being placed on the judgment of Prakash Krishnavtar Bhardwaj Vs ITO (Bombay High Court) WP No. 9835/2022 dated 09.01.2023, wherein the Hon ble Bombay High Court held that notice without signature affixed on it, digitally or manually, is invalid and would not vest AO with any further jurisdiction to proceed to reassess the income of the petitioner. The learned Assessing Officer grossly failed to exercise his powers in making independent inquires from the seller seller rather opted for making the impugned addition merely on surmises and conjectures. Reliance is being placed on the case of Dhakeshwari Cotton Mills Ltd. 26 ITR 775 wherein Hon ble Supreme Court held that a suspicion remains a suspicion unless the same is established and can never take place of reality. Assessment cannot be made on guesswork without any reference to any material on record. In the aforesaid circumstances and in the interest of justice, it is most respectfully requested that the appeal may kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken by the assessee. As contended by the assessee that this is merely an offer made by the seller Mr. Ghan Shyam Sharma which was never accepted and executed even till the date of search the agreement was never agreed and signed by the assessee, as is evident from the copy of agreement furnished. The ld. AO though the document in possession since 28.09.2017 to till the completion of the assessment till 27.12.2019 did not controvert the contention of the assessee that he has in fact not undertaken the transaction. Though the land is agreed to purchase at 70 lac per vigha he satisfied by making addition of Rs. 5 lac only and that too without making any efforts of finding the truth by making independent inquiries from the seller rather or of the witness but he opted for making the impugned addition of Rs. 5 lacs merely on surmises and conjectures. The bench noted that signature on agreement of all the parties to the agreement is very important without which it cannot be treated as executed and enforceable by law. The consent of all parties to an agreement is one of the essential aspect for a valid agreement which is not present in the present case as the appellant has not given h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during the search operation. Only on the basis of such document which cannot be branded or labelled as an agreement in absence of signature of both the parties no addition can be in the hands of the assessee u/s. 69A of the Act. To support this proposition the Ld.AR has relied on various orders and judgments of Hon ble High Courts and coordinate benches of Tribunal which are listed below:- i) Commissioner of Income Tax vs. Ravi Kumar [(2008) 168 taxman 150 (Punjab Haryana) ii) Kantilal Chandulal Co. v. Commissioner of Income Tax [1992] 136 ITR 889 iii) PCIT vs. Nexus Builders and Developers (p.) Ltd. (2022) 134 taxmann.com 82 (Bom) (iv) Monohar lal Rattan lal vs. DCIT [2004 (2) TMI-275-ITAT Amritsar] (v) Saamag Developers (P.) Ltd. vs. ACIT [(2018) 90 taxmann.com 20m (Delhi-Trib) (vi) DCIT vs. Rajat Agarwal [(2012) 27 taxmann.com vii) DCIT vs. M/s Signature Colonisers, Bhopal [ITA No. 218/Ind/2020 and ITA No. 219/Ind/2020] (ix) M.M Financiers (P.) Ltd. vs. DCIT [(2007) SOT 5 (Chennai) (URO)] (x) Anil Kumar Bhatia vs. ACIT [(2010) 1 ITR (T) 487 (Delhi)] (x) Anil Kumar Bhatia vs. ACIT[(2010) 1 ITR(T) 487(Delhi)] (xi) Commissioner of Income Tax vs. Tips Industries (P.) Ltd., [(2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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