Shri Ashok Goyal, Bhopal v. The ACIT 1(1), Bhopal

CO 37/IND/2013 | 2006-2007
Pronouncement Date: 26-07-2013 | Result: Dismissed

Appeal Details

RSA Number 3722723 RSA 2013
Assessee PAN AFGPG3031D
Bench Indore
Appeal Number CO 37/IND/2013
Duration Of Justice 5 month(s) 7 day(s)
Appellant Shri Ashok Goyal, Bhopal
Respondent The ACIT 1(1), Bhopal
Appeal Type Cross Objection
Pronouncement Date 26-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 26-07-2013
Assessment Year 2006-2007
Appeal Filed On 18-02-2013
Judgment Text
-: 1: - 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH J.M. AND SHRI R.C.SHARM A A.M. PAN NO. : AFGPG3031D I.T(SS).A.NOS. 410 TO 416/IND/2012 A.YS. : 2003-04 TO 2009-10 ACIT 1(1) BHOPAL VS. SHRI ASHOK GOYAL BHOPAL ASSESSEE RESPONDENT C.O.NO. 34 TO 40/IND/2013 (ARISING OUT OF I.T(SS).A.NOS. 410 TO 416/IND/2013) A.Y. : 2003-04 TO 2009-10 SHRI ASHOK GOYAL BHOPAL VS. ACIT 1(1) BHOPAL CROSS OBJECTOR RESPONDENT DEPARTM ENT BY : SHRI S.S.DESHPANDE AND SHRI RAJENDRA SHARMA CAS ASSESSEE B Y : S MT. MRIDULA BAJPAI CIT DR DATE OF HEARING : 20 . 0 6 .201 3 DATE OF PRONOUNCEMENT : 26 . 0 7 .201 3 O R D E R PER R. C. SHARMA A.M. -: 2: - 2 THESE ARE THE APPEALS FILED BY THE REVENUE AND CROS S OBJECTIONS BY THE ASSESSEE AGAINST THE ORDER OF CIT (A) DATED 30.8.2012 FOR THE ASSESSMENT YEAR 2003-04 TO 2009- 10 IN THE MATTER OF ORDER PASSED U/S 153A/143(3) OF THE I NCOME- TAX ACT 1961. 2. THE RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. SHRI ASHOK GOYAL THE ASSESSEE R ESIDES AT 18 SHYAMLA HILLS BHOPAL ALONG-WITH HIS WIFE SM T JYOTI GOYAL MOTHER SMT OMVATI GOYAL FATHER SHRI PRAHLAD DAS GOYAL SON SHRI ANCHIT GOYAL & DAUGHTER MS. AARCHEE GOYAL. OPERATION OF SEARCH AND SEIZURE WERE CONDUCT ED U/S 132 OF THE INCOME TAX ACT 1961 AT THE RESIDENT IAL PREMISES OF SHRI ASHOK GOYAL WHICH COMMENCED ON 30.5.2008. THE BUSINESS PREMISES OF THE ASSESSEE G ROUP WAS ALSO COVERED U/S 132 OF THE I.T.ACT. THE VARIOU S LOCKERS BELONGING TO THEIR FAMILY WERE ALSO SEARCHE D. DURING THE COURSE OF SEARCH VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED AS PER VARIOUS PANCHNAMAS. VARIOUS ADDITIONS WERE MADE BY THE ASSESSING OFFICER ON THE BASIS OF INCRIMINATING DOC UMENTS FOUND DURING SEARCH. -: 3: - 3 3. BEFORE THE LD. CIT(A) THE ASSESSEE WAS AGGRIEVED FOR ISSUE OF NOTICE U/S 153A WITHOUT VALID JURISDIC TION. 4. BY THE IMPUGNED ORDER THE LD. CIT(A) DISMISSED THE ASSESSEES GROUND AFTER HAVING THE FOLLOWING OBSERVATIONS :- 4.2 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE ASSESSEE. IT IS FOUND THAT VIDE ORDER DATED 14.7.2010 THE CIT BHOPAL HAS TRANSFERRED THE ASSESSEES CASE TO THE PRESENT ASSESSING OFFICER. THE ENTIRE ASSESSMENT PROCEEDINGS BARRING ISSUE OF NOTICE U/S 153A WERE CONDUCTED BY THE ASSESSING OFFICER SUBSEQUENT TO THE SAID DATE. AS PER PARA 2.12 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS ISSUED NOTICE U/S 143(2) ON 10.8.2010 AND ON 25.10.2010 AFTER FILING OF THE RETURNS. THE ASSESSEE HAS NOT FILED ANY OBJECTION TO THIS NOTICE AS REQUIRED U/S 124(3) OF THE ACT. IN THE PRESENT APPEAL HE IS COUNTING THE TIME WITH REFERENCE TO NOTICE U/S 142(1) AND NOT WITH REFERENCE NOTICE U/S 143(2). THEREFORE THE OBJECTION IS NON -: 4: - 4 SUSTAINABLE BEING HIT BY THE TIME LIMITATION PROVIDED IN SECTION 124(3) OF THE ACT. FURTHER THE ASSESSEE HAS PARTICIPATED IN THE ENTIRE PROCEEDINGS WITHOUT ANY GRIEVANCE. THUS IT CANNOT BE SAID THAT THE ASSESSMENT PROCEEDINGS WERE CONDUCTED BY THE ASSESSING OFFICER WITHOUT VALID JURISDICTION. THIS GROUND OF APPEAL IS ACCORDINGLY DISMISSED FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. 5. THE ASSESSEE WAS ALSO AGGRIEVED ON THE PLEA THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS BARRE D BY LIMITATION. BY THE IMPUGNED ORDER THE LD. CIT(A) D ISMISSED THE ASSESSEES GROUND AFTER HAVING THE FOLLOWING OBSERVATIONS :- 5.2 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE ASSESSEE. AS PER THE PROVISIONS OF SECTION 153D NO ASSESSMENT ORDER CAN BE PASSED BY THE ASSESSING OFFICER WITHOUT THE APPROVAL OF JT. COMMISSIONER. THE FACT THAT THE JT. COMMISSIONER HAS APPROVED SUCH ASSESSMENT ORDER VIDE HIS ORDER DATED 31.12.2010 -: 5: - 5 IS NOT IN DISPUTE. THUS THE ASSESSING OFFICER COUL D NOT HAVE MADE ANY CHANGES TO THE ASSESSMENT ORDER AFTER SUCH DATE AND ACCORDINGLY THE ASSESSMENT HAS TO BE TREATED AS COMPLETED ON THAT DATE AS THE ASSESSMENT ORDER WAS BEYOND THE CONTROL OF THE ASSESSING OFFICER ON SUCH DATE. THE ASSESSEE DID NOT BRING FORTH ANY MATERIAL TO THE CONTRARY. FURTHER AS PER THE DECISION OF HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF K.U. SHRINIVASA RAO VS. CWT (1985) 46 CTR (AP) 256 THE ASSESSMENT CANNOT BE SAID TO BE TIME BARRED IF IT IS PASSED WITHIN THE LIMITATION BUT COMMUNICATED TO THE ASSESSEE THEREAFTER. AS REGARDS THE ISSUE OF NOTICE 281B IT CANNOT BE HELD THAT THE SAID NOTICE ESTABLISHES THAT THE ASSESSMENT WAS PENDING ON 31.12.2010 AT THE TIME OF PASSING OF THE ASSESSMENT ORDER BECAUSE IT IS LIKELY THAT THE SAID NOTICE WAS ISSUED IN THE MORNING AND THE ASSESSMENT WAS PASS DIN THE EVENING OBVIOUSLY FOR SAFEGUARDING THE INTERESTS O F -: 6: - 6 REVENUE. THUS THIS GROUND OF APPEAL IS DISMISSED. 6. IT WAS ALSO CONTENDED BEFORE THE CIT(A) THAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WA S NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A/1 53B OF THE INCOME-TAX ACT 1961. 7. BY THE IMPUGNED ORDER THE LD. CIT(A) DISMISSED ASSESSEES GROUND AFTER HAVING THE FOLLOWING OBSERV ATIONS :- I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AUTHORIZED REPRESENTATIVE . IT IS FOUND THAT THE ASSESSING OFFICER HAS MADE ONE CONSOLIDATED ORDER BUT AT THE END OF THE ORDER COMPUTED THE INCOME SEPARATELY FOR EACH OF THE YEARS COVERED BY THE ASSESSMENT. HE HAD ALSO ISSUED DEMAND NOTICES COMPUTING THE TAX LIABILITY SEPARATELY FOR EACH ASSESSMENT YEAR. THIS SATISFIES THE REQUIREMENT OF SECTION 153A(1) WHICH STATES THAT PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR -: 7: - 7 REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS.THEREFORE I AM OF THE CONSIDERED OPINION THAT THE ACTION OF THE ASSESSING OFFICER IS CORRECT AND DOES NOT CALL FOR ANY INTERFERENCE. THIS GROUND OF APPEAL IS THEREFORE DISMISSED. 8. IN THE ASSESSMENT YEAR 2003-04 2006-07 2007- 08 AND 2008-09 ADDITIONS WERE MADE BY THE ASSESSIN G OFFICER ON THE BASIS OF LOOSE PAPERS LPS-1. ON VERI FICATION OF THE SEIZED DOCUMENTS THE AO FOUND THAT THE ASSESSE E IS RUNNING BUSINESS OF EDUCATIONAL INSTITUTE IN THE NA ME OF A SOCIETY SIR SYED EDUCATIONAL SOCIETY ALONG WITH SHR I SHOIB AND SHRI SHAKIL. AS PER LOOSE PAPERS LPS 1 PAGE 1 LPS- 1/34 PAGE NO.1 REPRODUCED IN THE ASSESSMENT ORDER THE ASSESSEE WAS FOUND TO HAVE MADE SEVERAL INVESTMENTS IN THE SAID COLLEGE THE SOURCES OF WHICH WERE NOT SATISFA CTORILY EXPLAINED. THEREFORE THE A.O.MADE THE FOLLOWING AD DITIONS: A.Y 2003-04 RS. 12 00 000/- A.Y 2006-07 RS. 35 00 000/- A.Y 2007-08 RS. 74 13 500/- A.Y 2008-09 RS. 90 58 265/- 9. IN COURSE OF APPEAL PROCEEDINGS BEFORE CIT(A) THE LD. -: 8: - 8 AR HAS SUBMITTED THAT THE LOOSE PAPERS WERE NOT SEI ZED FROM THE POSSESSION OF THE ASSESSEE. THE AO HAVING SATISFIED THAT THE SAID PAPER BELONGED TO SIR SYED EDUCATIONAL SOCIETY INITIATED PROCEEDINGS U/S 153C IN THAT CASE AND THESE AMOUNTS WERE ALSO ADDED IN THAT CASE . THEREFORE THE ADDITION IN THE CASE OF THE ASSESSEE WITHOUT ANY CORROBORATIVE EVIDENCE IS NOT CORRECT. FURTHER THE PAPER DOES NOT SHOW ANY PAYMENT MADE BY THE ASSESSEE AND RECEIVED BY MR. SHOAIB. IT IS SIMPLY WRITTEN AS +12 00000/- AGAINST THE ASSESSEES NAME AND -1200000/- AGAINST THE NAME OF MR. SHOAIB. THE SAME COLUMN ALSO SHOWS RS. 15 00 000/- AS RECEIVED FROM MR.SHAKEEL. THUS EVEN IF THESE AMOUNTS ARE PRESUMED TO HAVE BEEN GIVEN BY TH E ASSESSEE THE SOURCE OF PAYMENT WAS FROM MR.SHAKEEL WHICH IS ALSO APPEARING ON THE PAPER ITSELF. REGARD ING LPS 1/34 PAGE 1 LD. A.R. FURTHER SUBMITTED THAT THE NOT INGS IN PAPER LIKE ' ... TAK GOYAL SAHIB KO COLLEGE SE PRAP T ... ' SHOW THAT IT WAS NOT WRITTEN BY THE ASSESSEE OR HIS FAMI LY MEMBERS AS NEITHER HE NOR HIS FAMILY MEMBERS WOULD REFER HIM AS 'GOYAL SAHAB'. THE ASSESSEE DOES NOT HAVE AN Y EMPLOYEES; HENCE THIS PAPER CANNOT BE SAID TO HAVE BEEN -: 9: - 9 PREPARED BY ANY EMPLOYEE. THUS SINCE IT IS ESTABLI SHED THAT THE PAPER IS NOT IN HIS HANDWRITING NOR WRITTEN BY HIS RELATIVES OR EMPLOYEES AND SINCE IT WAS NOT RECOVER ED FROM HIS CONTROL OR POSSESSION NO ADDITION COULD HAVE B EEN MADE IN THE ASSESSEES CASE WITHOUT ANY CORROBORATIVE EV IDENCE. 10. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 8.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR AND VERIFIED THE SEIZED PAPERS. THE PAPERS WERE SEIZED FROM THE OFFICE AT KILOL PARK WHICH IS OCCUPIED BY VARIOUS FAMILY MEMBERS OF THE ASSESSEE IS NOT IN DISPUTE. THE AO HAS CONSIDERED THAT THESE PAPERS AS BELONGING TO SIR SYED EDUCATION SOCIETY AND HAD ACCORDINGLY INITIATED PROCEEDINGS U/S153C AGAINST THE SAID SOCIETY. THE ASSESSMENT OF THE SAID SOCIETY HAS BEEN SIMULTANEOUSLY COMPLETED BY THE SAME AO U/S.153C WHEREIN HE DID NOT ACCEPT THAT THESE INVESTMENTS WERE MADE BY THE ASSESSEE AND HAVE CONSIDERED THE SAME AS UNEXPLAINED. THUS ONCE THE A.O. HAS ACCEPTED -: 10: - 10 THAT THE PAPER BELONGED TO A PERSON OTHER THAN THE ASSESSEE AND THE PAPER WAS NOT SEIZED FROM THE POSSESSION OR CONTROL OF THE ASSESSEE HE IS NOT JUSTIFIED IN MAKING THE ADDITION WITHOUT BRINGING ON RECORD ANY MATERIAL OR CORROBORATIVE EVIDENCE TO SUPPORT SUCH ADDITION. THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED AND ADDITIONS MADE OF RS. 12 00 000/- 35 00 000/ 74 13 500/- & 90 58 205/- ARE DELETED. 11. AGAINST THE ABOVE ORDER OF CIT(A) THE REVENUE IS I N FURTHER APPEAL BEFORE US. THE LD. CIT DR RELIED ON THE LOOSE PAPERS FOUND DURING SEARCH AND THE FINDINGS RECORDE D BY THE ASSESSING OFFICER WITH RESPECT TO THE NOTINGS O N THESE LOOSE PAPERS. 12. ON THE OTHER HAND THE LD. AUTHORIZED REPRESENTATIVE CONTENDED THAT PAPER AT P-54 WERE UNEXPLAINED INVESTMENT OF THE SOCIETY AND NOT THE A SSESSEE. OUR ATTENTION WAS ALSO INVITED TO THE BALANCE SHEET OF THE SOCIETY FOR ASSESSMENT YEAR 2007-08 WHICH REVEALS TOTAL INVESTMENT AT RS. 6 62 61 110/- AND FOR THE ASSESSM ENT YEAR 2006-67 IT REVEALS THE TOTAL ASSETS OF RS. 3 14 21 952/- -: 11: - 11 . IT WAS CONTENDED THAT REGULAR RETURNS FOR THE ASS ESSMENT YEAR 2006-07 HAS BEEN FILED ON 17.8.2006 MUCH BEFOR E THE DATE OF SEARCH AND THAT REGULAR BOOKS OF ACCOUNT WE RE MAINTAINED BY THE SOCIETY AND THE REGULAR ENTRIES A RE MADE THEREIN. ALL THE INVESTMENTS WERE SHOWN IN THE BALA NCE SHEET OF THE SOCIETY. OUR ATTENTION WAS ALSO DRAWN TO PAPER REPRODUCED AT PAGE 54 OF THE ASSESSMENT ORDER WHICH HAS ALSO BEEN REPRODUCED IN THE ASSESSMENT ORDER OF SOC IETY AT P-12 AND ON THE BASIS OF THIS ADDITION OF RS. 3 91 97 713/- INCLUDING AN AMOUNT OF RS. 2 10 86 799/- HAS BEEN M ADE IN THE HANDS OF SOCIETY. IT WAS FURTHER SUBMITTED THAT THESE ADDITIONS HAVE BEEN MADE IN THE HANDS OF SOCIETY AN D HENCE THE SAME CANNOT BE MADE IN THE HANDS OF SHRI ASHOK GOYAL. COPIES OF ORDER OF ASSESSING OFFICER AND THE CIT(A) IN THE CASE OF SOCIETY WERE ALSO PLACED ON RECORD. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT AFTER SEARCH AT ASSESSEES PREMISE S PROCEEDINGS WERE INITIATED AGAINST THE SYED EDUCATI ONAL SOCIETY U/S 153C. THE ENTRIES ON THE PAPER WAS RELA TED TO THIS SOCIETY. THE SAME PAPER I.E. P 54 WAS ALSO REP RODUCED -: 12: - 12 BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER OF SOCIETY AT P-12 AND ON THE BASIS OF THIS AN ADDITION OF RS . 3 91 97 713/- INCLUDING AN AMOUNT OF RS. 2 10 86 79 9/- HAS BEEN MADE IN THE HANDS OF THE SOCIETY. AS THE A DDITIONS HAVE ALREADY BEEN MADE IN THE HANDS OF SOCIETY WHI LE FRAMING ITS ASSESSMENT U/S 153C THE CIT(A) HAD DEL ETED THE ADDITION IN THE HANDS OF THE ASSESSEE. IN THE INTEREST OF JUSTICE WE DIRECT THE ASSESSING OFFICER TO VERIFY IF THE ADDITION ON THE BASIS OF SOME LOOSE PAPERS HAVE BEE N DONE IN THE HANDS OF SOCIETY WHILE FRAMINGS ITS ASSESSME NT U/S 153C NO SEPARATE ADDITION IS WARRANTED IN THE HAND S OF ASSESSEE. WE DIRECT ACCORDINGLY. 14. AN ADDITION OF RS. 7 75 000/- WAS MADE IN THE ASSESSMENT YEAR 2003-04 AND RS. 6 05 790/- WAS MADE IN THE ASSESSMENT YEAR 2004-05. THE SAID ADDITION IS M ADE ON THE BASIS OF A LETTER RECEIVED FROM SHRI. RAMSINGH VISHWAKARMA WHO HAS SUBMITTED THAT HIS ACCOUNT NO 15370 IN CENTRAL BANK OF INDIA WAS ACTUALLY OPERATE D BY THE ASSESSEE AND ON THIS BASIS ALL THE AMOUNTS DEPOSITE D IN THE SAID ACCOUNT WERE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. THE AO ALSO OBSERVED THAT THE ACCOUNT OF THE SAID -: 13: - 13 PERSON WAS INTRODUCED BY GOYAL BUILDERS AND DEVELOP ERS AND THE DEPOSIT SLIPS WERE FILLED BY SHRI SITA RAM YADAV ONE OF THE EMPLOYEES OF THE ASSESSEE. 15. IN THIS REGARD BEFORE CIT(A) THE LD. AR HAS SUBMITTED THE SAID ADDITION WAS MADE ON THE BASIS O F A LETTER RECEIVED FROM THE SAID PERSON BY THE A.O IN RESPONSE TO SUMMONS ISSUED U/S 131 WITHOUT GIVING ANY OPPOR TUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SAID PERSON. A S DETAILED IN THE LETTER THE SAID PERSON HAD EXECUTE D POP WORK FOR THE M/S . GOYAL BUILDERS AND DEVELOPERS. ALL THE CHEQUES DEPOSITED WERE ACCOUNT PAYEE CHEQUES AND TH E PAYMENTS ARE VERIFIABLE FROM THE BOOKS OF THE SAID PARTY WHICH WERE PRODUCED BEFORE THE A.O. THUS THE SAID LETTER WAS A SELF-SERVING STATEMENT OBVIOUSLY FILED BY THE SAID PERSON TO AVOID ANY PROCEEDINGS IN HIS CASE AND THE SAME CANNOT BE TREATED AS EVIDENCE AGAINST THE ASSESSEE. THE ASSESSEE HAD NOT INTRODUCED THE SAID PERSON TO THE BANK. EVEN OTHERWISE INTRODUCTION OF A PERSON TO THE BANK OR FILLING OF THE PAY IN SLIP CANNOT BE MADE THE SOLE BASIS FOR DRAWING ADVERSE INFERENCE. THE UNCONTROVERTED FACT ON RECORDS IS THAT THE SAID PERSON HAD WORKED AS A CON TRACTOR -: 14: - 14 IN THE CONCERNS RUN BY THE ASSESSEE'S PARENTS. THE SAID PERSON WAS NOT VERY LITERATE AND IT IS LIKELY THAT HE COULD HAVE MADE SOME PERSONNEL ARRANGEMENT WITH ONE OF TH E EMPLOYEES OF THE PARENTS OF THE ASSESSEE TO GET HIS PAY IN SLIPS FILLED BY THAT PERSON. THIS IN ITSELF WAS ALS O NOT VERY ABNORMAL OR UNNATURAL. IT WAS FURTHER MENTIONED THA T THE LETTER WRITTEN BY THE SAID PERSON IS CONTRADICTORY IN ITSELF AS WOULD BE OBVIOUS FROM THE FOLLOWING: I. MUJHE ASHOK GOYAL KI SITE PER POP KA KAM MILA THA. II. KARYA SHURE HONE KE BAD SHRI. ASHOK GOYAL NE MUJHE EK BANK MAI KHATA KHULWANE KE LIYE KAHA JISSE KI JOB HI PAYMENT HOGI WHO SIDHE MERE KHATE JAMA KAR DENGE. III. BANK MAI KHATE MAI HUA SABHI VYABHAR MAIRI JANKARI KE BAHAR HAI. THE SAID PERSON HAS CONFIRMED THAT HE HAS RECEIVED CONTRACT FOR DOING POP WORK AND THE BANK ACCOUNT WA S OPENED TO DEPOSIT PAYMENTS OF SUCH WORK. IN THE SEC OND BREATH HE HAS ALSO STATED THAT HE IS UNAWARE OF ALL THE TRANSACTIONS IN THE SAID ACCOUNT WHICH IS PARADOXICAL. NO EVIDENCE WAS FOUND DURING THE SEARCH OR THEREAFTER -: 15: - 15 TO SHOW THAT THE ASSESSEE HAS DEPOSITED/WITHDRAWN T HE MONEY FROM THE BANK OR HE HAS UTILIZED THE MONEY FO R HIS PERSONNEL BENEFIT. THE ASSESSEE IN HIS REPLY FILED BEFORE THE AO ON 30.11.2010 HAD SPECIFICALLY REQUESTED THAT AN OPPORTUNITY TO CROSS EXAMINE THE SAID PERSON BE PRO VIDED TO HIM. HOWEVER THE AO HAS IGNORED THE REQUEST OF THE ASSESSEE. 16. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE ID. AR AND COPY OF THE LETTE R. THE ONLY BASIS FOR MAKING THIS THE ADDITION IS THE LETTER OF BY SHRI RAMSINGH VISHWAKARMA RECEIVED IN REPLY TO SUMMONS U/S 131 ALLEGING THAT THE TRANSACTIONS IN HIS BANK ACCOUNTS WERE CARRIED OUT BY THE ASSESSEE. THE A.O. HAS MADE THIS ADDITION WITHOUT AFFORDING ANY OPPORTUNITY TO CROSS EXAMINE THE DEPONENT DESPITE SPECIFIC REQUEST BY THE ASSESSEE. THE HON'BLE JURISDICTIONAL HIGH COURT HAS HELD IN THE CASE OF PRAKASH CHAND NAHTA VS CIT REPORTED IN 2008 301 ITR 134 MP THAT NO -: 16: - 16 ADDITION IS POSSIBLE WITHOUT AFFORDING OPPORTUNITY TO CROSS EXAMINE THE DEPONENT TO THE ASSESSEE WHEN HE HAS MADE A REQUEST. UNDER THESE CIRCUMSTANCES THE ADDITIONS MADE BY THE A.O. ARE NOT SUSTAINABLE HENCE DELETED. FOR THESE REASONS THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION O F RS.7 75 000/& RS. 6 05 790/- ARE DELETED. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION OF RS. 7 75 000/- AND RS. 6 05 790/- IN THE ASSESSMENT YEAR 2003-04 AND 2004- 05 RESPECTIVELY ON THE BASIS OF LETTER RECEIVED FROM S HRI RAM SINGH VISHWAKARMA WHEREIN IT WAS STATED THAT THE B ANK ACCOUNT NO.15370 WAS ACTUALLY OPERATED BY THE ASSES SEE. ACCORDINGLY ALL THE AMOUNT DEPOSITED IN THE ACCOUN T WAS TREATED AS ASSESSEES INCOME. THE LD. CIT(A) HAS DE LETED THE SAME BY OBSERVING THAT THE ASSESSING OFFICER HAS MA DE THESE ADDITIONS WITHOUT AFFORDING ANY OPPORTUNITY T O CROSS- EXAMINE THE DEPONENT DESPITE SPECIFIC REQUEST BY TH E ASSESSEE. WE DO NOT FIND ANY MERIT IN THE ORDER OF CIT(A) FOR SUCH DELETION. IN THE INTEREST OF JUSTICE WE RESTO RE BOTH THESE ADDITIONS TO THE FILE OF THE ASSESSING OFFICE R FOR -: 17: - 17 DECIDING AFRESH WITH A DIRECTION TO ALLOW THE ASSES SEE TO CROSS EXAMINE SHRI RAM SINGH VISHWAKARMA IN WHOSE ACCOUNT AMOUNT WAS FOUND DEPOSITED. WE DIRECT ACCORDINGLY. 18. IN THE RESULT THE GROUNDS TAKEN BY THE REVENUE IN THE ASSESSMENT YEAR 2003-04 AND 2004-05 ARE ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE ASSESSMENT YEAR 2005-06 AN ADDITION OF RS. 37.50 LAKHS WAS MADE ON THE BASIS OF LPS-1 WHICH W AS DELETED BY THE LD.CIT(A). 20. THIS GROUND OF APPEAL IS DIRECTED AGAINST DELETI ON OF ADDITION OF RS. 37 50 000/- MADE ON THE BASIS OF LO OSE PAPER NO. LPS-1/31 PAGE NO.21-26. THE AO OBSERVED T HAT THE ASSESSEE HAS PURCHASED 2.16 ACRE OF LAND AT VIL LAGE- AHMEDPUR FROM S/SHRI ARVIND AND R.P. AGRAWAL ON POA AND IT WAS LATER ON REGISTERED IN THE NAME OF SMT. OMWATI AGRAWAL FOR RS. 28 00 000/-. HOWEVER ON ENQUIRY TH ROUGH DDIT RAIPUR IT WAS FOUND THAT THE ASSESSEE HAS IN ITIALLY PURCHASED THE PROPERTY ON 23.02.2005 FOR RS. 37 50 000/- FROM THE SELLER BY MAKING THE PAYMENTS IN CASH. THE REFORE THE AO HAS MADE THIS ADDITION. -: 18: - 18 21. IN THE COURSE OF APPEAL PROCEEDINGS BEFORE THE C IT(A) THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE SEIZED PAPERS ARE UNDATED AND UNSIGNED. THEY WERE NOT IN T HE SIGNATURE OF THE ASSESSEE OR SMT. OMWATI GOYAL. IT WAS CONTENDED THAT AT THE TIME OF ISSUE OF POA NO AMOU NT WAS PAID AND THIS FACT WAS CONFIRMED BY THE COURT. DURI NG THE COURSE OF TRANSACTION SOME DISPUTES CROPPED UP BET WEEN THE PARTIES. THE SELLERS HAVE FILED A LEGAL SUIT AG AINST THE ASSESSEE ON THE ALLEGATION THAT THE ASSESSEE HAS MI SUSED THE POA. DUE TO UNWANTED LITIGATION AFTER NEGOTIAT IONS THE ASSESSEE HAD OBTAINED RS.28 00 000/- FROM HIS MOTHE R AND HANDED OVER TO SHRI ARVIND AGRAWAL. A FURTHER AMOUN T OF RS.7 50 000/WAS DEPOSITED BY SMT. OMWATI GOYAL IN T HE COURT AGAINST THE SETTLEMENT AMOUNT AND EFFECTIVELY THE SELLER HAD RECEIVED RS.35 50 000/-. FURTHER AMOUNT OF RS.2 00 000/- WAS RETAINED TOWARDS LEGAL COSTS AGAI NST THE PENDING PROCEEDINGS. THE ASSESSEE FURTHER CONTENDED THAT THE MARKET VALUE FOR STAMP DUTY AS PER THE REGISTRA R WAS RS. 34 98 000/- AND IT APPEARS THAT THE SELLER MIGH T HAVE SHOWN THE CONSIDERATION IN THEIR RECORDS AT RS.37.5 0 LAKH TO AVOID PAYMENTS OF CAPITAL GAIN TAX ON UNRECOGNIZED CAPITAL -: 19: - 19 GAIN. FINALLY THE LD. COUNSEL CONTENDED THAT THE A DDITION MADE IN THE ASSESSEES CASE IS NOT CORRECT. 22. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR AND COPY OF THE RELEVANT SEIZED DOCUMENTS THE ORDER OF LD. SDM IN THE SUIT FILED BY THE SELLERS. IT IS FOUND THAT THE STATEMENT OF THE SELLERS GIVEN BEFORE THE DDIT (INV) ARE CONTRADICTORY. IF FULL CONSIDERATION WAS RECEIVED BY THE SELLER THE TRANSFER CANNOT BE FRAUDULENT. IT IS FURTHER FOUND THAT THE SAME SELLERS HAVE SUBMITTED BEFORE THE COURT THAT THE POA WAS 'WITHOUT CONSIDERATION' AND THAT WAS CONFIRMED BY THE COURT. THE COURT HAS STAYED THE TRANSFER OF THE SAID LAND IN THE NAME OF SMT. OMWATI GOYAL IN THE LAND RECORDS. THUS NO RELIANCE COULD HAVE BEEN GIVEN TO SUCH STATEMENT OF THE SELLERS. THE -: 20: - 20 ASSESSEE'S MOTHER HAS ALREADY PAID RS. 28 00 000/- AND HAS FURTHER DEPOSITED RS. 7 50 000/- IN THE COURT TOWARDS PURCHASE OF THE LAND AND HAS THUS MADE TOTAL PAYMENTS OF RS. 35 50 000/-. THE EXPLANATION OF THE ASSESSEE THAT RS. 2 00 000/- IS RETAINED TOWARDS LEGAL AND OTHER COSTS WITH REFERENCE TO THE SETTLEMENT OF THE PENDING DISPUTE WHICH WAS TO BE DEDUCTED FROM THE SALE CONSIDERATION PAYABLE TO THE SAID SELLERS APPEARS TO BE REASONABLE. UNDER THE CIRCUMSTANCES THE AO IS NOT JUSTIFIED IN MAKING THE ADDITION IN THE ASSESSEE'S CASE MERELY ON THE BASIS OF SUSPICION. THIS GROUND OF APPEAL IS THEREFORE ALLOWED AND THE ADDITION MADE OF RS. 37 50 000/-IS DELETED. 23. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. AN ADDITION OF RS. 37 50 000/- WAS MADE ON THE BASIS OF LOOSE PAPERS AND TS-I/31 PAGE NOS. 21 26 WHEREIN IT WAS FOUND BY THE ASSESSING OFFICER THAT THE -: 21: - 21 ASSESSEE HAS PURCHASED PROPERTY ON 23.2.2005 FOR RS . 37.50 LAKHS. THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING THAT THE PROPERTY WAS PURCHASED BY THE ASSESSEES M OTHER AND HON'BLE COURT HAS FOUND THAT ASSESSEES MOTHER HAS ALREADY PAID RS. 28 LAKHS HAS FURTHER DEPOSITED RS. 7.50 LAKHS IN THE COURT TOWARDS PURCHASE OF LAND AND TH US MADE A TOTAL PAYMENT OF RS. 35.50 LAKHS. IN VIEW O F THE FINDING OF THE COURT SINCE THE PAYMENT WAS MADE B Y THE MOTHER OF THE ASSESSEE ADDITION TO THE EXTENT OF R S. 35.50 LAKHS WAS NOT WARRANTED IN THE HANDS OF ASSESSEE SH RI ASHOK GOYAL. KEEPING IN VIEW THE FINDING OF THE CIT (A) WHICH IS BASED ON THE ORDER OF THE COURT WE CONFIR M THE DELETION OF ADDITION TO THE EXTENT OF RS. 35.50 LAK HS WITH REFERENCE TO RS. 2 LAKHS TOWARDS THE COST OF SETTL EMENT OF PENDING DISPUTE NO MATERIAL WAS PLACED ON RECORD A ND TO SUBSTANTIATE THE SOURCE. ACCORDINGLY WE CONFIRM TH E ADDITION OF RS. 2 LAKHS. 24. IN THE ASSESSMENT YEAR 2005-06 2006-07 2007-08 2008-09 AND 2009-10 ADDITIONS WERE MADE ON THE BAS IS OF DIARIES SEIZED FROM ASSESSEES PREMISES . 25. THESE ADDITIONS WERE MADE ON THE BASIS OF CERTAIN -: 22: - 22 SMALL DIARIES SEIZED FROM KILOL PARK OFFICE. THE A SSESSEE EXPLAINED THAT THE DIARIES RELATE TO THE SALARY ETC . OF EMPLOYEES. HOWEVER THE AO HAS ADDED THE SAME FOR W ANT OF SATISFACTORY EXPLANATION. 26. IN THE COURSE OF APPEAL PROCEEDINGS BEFORE CIT(A) THE LD. AR HAS SUBMITTED THAT ADMITTEDLY T HE ASSESSEE IS NOT HAVING ANY EMPLOYEES. THUS THERE W AS NO OCCASION TO TREAT SUCH SALARY PAYMENTS AS HAVING BE EN MADE FROM HIM OUT OF UNDISCLOSED SOURCES. HE FURTHE R CONTENDED THAT PARENTS OF THE ASSESSEE WERE RETAINI NG THE EMPLOYEES AND WERE MAKING SALARY PAYMENTS TO SUCH EMPLOYEES AND THE SAME IS APPARENT FROM THEIR ACCOU NTS. THE SALARY PAID BY THE PARENTS IN VARIOUS YEARS AS PER THE DETAILS APPEARING IN THE PROFIT & LOSS ACCOUNT AND BOOKS OF ACCOUNTS AS FILED WITH THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ARE AS UNDER: FINANCIAL YEAR 2004-05 2005-06 2006-07 2007- 08 OMWATI GOYAL RS. 166200 RS. 184800 RS. 187800 RS. 215400 P.D.GOYAL RS. 204000 -: 23: - 23 27. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 3. I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE LD. AR. THE QUERY LETTER REPRODUCED AT PARA 4.60 OF THE ASSESSMENT ORDER SHOWS THAT THE AO HAS ASKED AS TO WHY THE TRANSACTIONS SHOULD NOT BE CONSIDERED IN THE CASE OF THE ASSESSEE AND HIS FAMILY MEMBERS. THESE DIARIES WERE SEIZED FROM KILOL PARK OFFICE FROM WHERE FOUR MEMBERS OF THE ASSESSEE'S FAMILY WERE CARRYING ON THEIR BUSINESS. THEIR ACCOUNTS BOOKS ALSO SHOW PAYMENT OF SALARY. UNDER SUCH CIRCUMSTANCES THE AO IS NOT JUSTIFIED IN MAKING THE ADDITIONS IN THE ASSESSEE'S CASE WITHOUT BRINGING FORTH ANY MATERIAL TO SUPPORT HIS OBSERVATION. THIS GROUND OF APPEAL IS THEREFORE ALLOWED AND THE ADDITIONS OF RS. 38613/- 31500/- 44950/- 59100/- 45900/- 9000/- & 11000 /- ARE DELETED. -: 24: - 24 28. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. ADDITIONS OF RS. 38 613/- RS. 31 500/- R S. 44 950/- RS. 59 100 RS. 45 900/- RS. 9 000/- AND RS. 11 000/- WERE MADE IN THE ASSESSMENT YEAR 2005-06 T O 2009-10 RESPECTIVELY IN RESPECT OF SALARY ALLEGED T O BE PAID BY THE ASSESSEE TO ITS EMPLOYEES. THE LD. CIT(A) DE LETED THE ADDITION BY OBSERVING THAT SALARY WERE PAID BY THE PARENTS OF THE ASSESSEE WHO HAD ALSO DEBITED IN THEIR PROF IT AND LOSS ACCOUNT SALARY PAYMENT OF RS. 1 66 200/- RS. 1 84 800/- RS. 1 87 800/- AND RS. 2 15 400/- FOR THE ASSESSMEN T YEARS 2004-05 TO 2007-08 IN THE CASE OF OMWATI GOYAL AND RS. 2 04 000/- IN THE CASE OF P.D. GOYAL. SINCE THE REL ATIVES OF THE ASSESSEE WERE CARRYING ON BUSINESS FROM THE SAM E PLACE THE LD. CIT(A) DELETED THE ADDITION BY OBSER VING THAT ACCOUNTS BOOKS OF RELATIVES SHOWS PAYMENT OF SALARY THEREFORE NO ADDITION IS WARRANTED IN THE HANDS OF ASSESSEE. HOWEVER NO CLEAR FINDING HAS BEEN GIVEN BY THE LD. CIT(A) WITH REGARD TO ACCOUNTS BOOKS OF RELATIVES HAVING B EEN PRODUCED BEFORE THE ASSESSING OFFICER SO AS TO ALL OW OPPORTUNITY TO HIM TO VERIFY AS TO WHETHER THESE PA YMENTS OF SALARY WERE PROPERLY ACCOUNTED FOR IN THEIR RESPECT IVE BOOKS -: 25: - 25 AND CLAIM AS EXPENDITURE. IN THE INTEREST OF JUSTIC E WE RESTORE THE GROUNDS RAISED BY THE REVENUE IN ALL TH E ASSESSMENT YEARS I.E. 2004-05 2006-07 2007-08 20 08-09 AND 2009-10 TO THE FILE OF THE ASSESSING OFFICER FO R DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE BOOKS O F ACCOUNT OF THE RELATIVES WHEREIN SUCH SALARY HAS BEEN ALLEGED TO BE DEBITED AND CLAIMED AS EXPENSES. IF THE ASSESSING O FFICER FINDS THAT THESE PAYMENTS OF SALARY HAVE ALREADY BE EN ACCOUNTED FOR IN THE BOOKS OF RELATIVES WHO WERE A LSO CARRYING ON BUSINESS TO THE SAME PLACE NO ADDITION IS WARRANTED IN THE HANDS OF THE ASSESSEE. WE DIRECT ACCORDINGLY. 29. AN ADDITION OF RS. 5 LAKHS WAS MADE IN THE ASSESSMENT YEAR 2005-06 WAS DELETED BY THE LD.CIT(A ) WHICH WAS MADE BY THE ASSESSING OFFICER ON THE BASI S OF LPS-30. 30. THIS GROUND OF APPEAL IS DIRECTED AGAINST DELETION OF ADDITION OF RS. 5 00 000/- MADE ON THE BASIS OF SEIZED PAPER NO. LPS-30 PAGE 25-26 WHICH IS A LEGAL NOTIC E ADDRESSED TO THE ASSESSEE AS CHAIRMAN PANCH SEWA G RAH -: 26: - 26 NIRMAN SAHAKARI SANSTHA DEMANDING REFUND OF ADVANCE OF RS. 5 00 000/-. THE ASSESSING OFFICER OBSERVED THAT THIS AMOUNT WAS NOT CREDITED IN THE BOOKS OF SOCIETY BUT WAS APPROPRIATED BY THE ASSESSEE. 31. BEFORE THE CIT (A) THE LD. COUNSEL FOR THE ASSESSE E CONTENDED THAT THERE IS NO EVIDENCE TO SHOW THAT TH E ASSESSEE HAD RECEIVED ANY AMOUNT AND THE ALLEGATION S MADE ARE NOT CORRECT. IN HIS ALTERNATIVE SUBMISSION THE LD. AR CONTENDED THAT THERE IS ALSO NO EVIDENCE TO HOLD THAT THE ASSESSEE HAS MISAPPROPRIATED THE SUM AND IF HE DID SO IT IS ALWAYS A LIABILITY IN THE HANDS OF THE AS SESSEE. THEREFORE IT CANNOT BE TREATED AS INCOME. 32. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 14.3 I HAVE GONE THROUGH THE DETAILS CONTAINED IN THE ASSESSMENT ORDER AND CONSIDERED THE SUBMISSIONS OF THE LD. AR. THE ADDITION WAS MADE SOLELY ON THE BASIS OF A LEGAL NOTICE ISSUED BY AN ADVOCATE TO THE ASSESSEE IN HIS REPRESENTATIVE CAPACITY AS -: 27: - 27 CHAIRMAN OF A SOCIETY. THE AO DID NOT BRING FORTH ANY MATERIAL TO SUBSTANTIATE THAT ANY SUCH AMOUNT WAS IN FACT RECEIVED BY THE ASSESSEE AND WAS MISAPPROPRIATED BY HIM. THIS AMOUNT EVEN IF RETAINED BY THE ASSESSEE WOULD ONLY CONSTITUTE HIS LIABILITY TOWARDS THE SAID SOCIETY AND CANNOT NOT BE TREATED AS HIS INCOME. THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE. THIS GROUND OF APPEAL IS THEREFORE ALLOWED AND THE ADDITION OF RS.5 00 000/- IS DELETED. 33. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. AN ADDITION OF RS. 5 LAKHS WAS MADE ON THE BASIS OF LPS-30 PAGE 25 26 WHICH IS A LEGAL NOTICE AD DRESSED TO THE ASSESSEE. THE LD. CIT(A) DELETED THE ADDITION B Y OBSERVING THAT ADDITION WAS MADE SOLELY ON THE BASI S OF LEGAL NOTICE ISSUED BY AN ADVOCATE TO THE ASSESSEE IN ITS REPRESENTATIVE CAPACITY AS CHAIRMAN OF SOCIETY. IT WAS FURTHER OBSERVED THAT NO MATERIAL WAS PLACED ON REC ORD TO SUBSTANTIATE THAT AS PER LEGAL NOTICE THE ASSESSEE WAS ACTUALLY IN RECEIPT OF SAID AMOUNTS. -: 28: - 28 THIS FINDING OF THE CIT(A) HAS NOT BEEN CONTROVERTE D. ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE IN THE SAME WHEREIN NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE ASSESSEE WAS ACTUALLY IN RECE IPT OF AMOUNT AS PER THE LEGAL NOTICE. 34. VARIOUS ADDITIONS WERE MADE IN THE ASSESSMENT YEARS 2005-06 2006-07 2007-08 2008-09 AND 2009-1 0 ON THE PLEA THAT ASSESSEE AND HIS FAMILY MEMBERS WERE INDULGED IN MONEYLENDING BUSINESS. 35. BEFORE THE CIT(A) THE LD. COUNSEL FOR THE ASSESSE E HAS CONTENDED THAT THE OBSERVATIONS OF THE AO ARE NOT C ORRECT. THOUGH THE AO HAS STATED THAT THE REASONS ARE GIVE N IN ANNEXURE-2 TO ASSESSMENT ORDER NO SUCH ANNEXURE WA S FOUND ENCLOSED NOR WAS SUPPLIED DESPITE SPECIFIC RE QUEST. THE ASSESSEE WAS NEVER CONFRONTED WITH THE CHEQUES NOR ANY QUERY WAS ISSUED. THEREFORE THE ACTION OF THE AO IS NOT CORRECT BEING MADE AGAINST THE PRINCIPLES OF NATUR AL JUSTICE. THE ID.AR GIVING DETAILS OF LOANS TAKEN BY VARIOUS FAMILY MEMBERS CONTENDED THAT THEY HAVE MADE HEAVY BORROW INGS FROM THE MARKET TO CARRY ON THEIR BUSINESS. THUS A CCORDING TO THE LD. A.R. IT IS HIGHLY IMPROBABLE THAT THE F AMILY WOULD -: 29: - 29 INVEST IN MONEY LENDING BUSINESS. IT WAS FURTHER CO NTENDED THAT AO DID NOT CONDUCT ANY ENQUIRY FROM CONCERNED PARTIES DESPITE THEIR PARTICULARS ARE ASCERTAINABLE FROM BANKS ON THE BASIS OF CHEQUES. MOST OF THE CHEQUES WERE ISSUED BEYOND SIX MONTHS AND THEY CANNOT BE USED AS SECURITY AS OPINED BY THE AO. EXPLAINING THE NATURE OF THE CHEQUES IT WAS SATED THAT AT TIMES IN ORDER TO MAK E PAYMENTS TO THE PROSPECTIVE SELLERS THESE CHEQUES ARE PROVIDED BY THE PERSONS TO ENSURE BINDING EFFECT OF THE CONTRACT AND WHEN THE DEALS ARE FINALIZED AFTER SE EKING TELEPHONIC CONFIRMATION FROM THE PURCHASER NAMES O F THE SELLERS ARE FILLED. THE CHEQUES ARE NOT RETURNED AN D ARE LYING IN TRUST TILL THAT TIME. 36. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 15.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER COPIES OF BALANCE SHEETS OF VARIOUS FAMILY MEMBERS PRODUCED BEFORE ME AND THE SUBMISSIONS OF THE ID.AR. IT IS SEEN THAT THE ASSESSMENT ORDER DOES NO T CONTAIN ANY REASONS REQUIRING SUCH ADDITIONS AND TH E -: 30: - 30 SAME ARE STATED AS GIVEN IN ANNEXURE 2 OF THE ASSESSMENT ORDER. BUT NO SUCH ANNEXURE WAS FOUND SUPPLIED OR AVAILABLE ON THE RECORDS. THUS THE ADDITIONS WERE APPARENTLY MADE WITHOUT PROPER REASONS. THE LD. AR'S CONTENTION THAT THE FAMILY OF THE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE AND THEY HAVE BORROWED HEAVILY FROM THE MARKET FOR THEIR BUSINESS NEEDS AND THUS THEY CANNOT ENGAGE IN MONEY LENDING BUSINESS CARRIES SOME FORCE. IT IS A LSO FACT THAT THE AO HAS NOT CONDUCTED ANY ENQUIRY FROM THE SO CALLED BORROWERS! BANKS TO BRING FORTH ANY OTHER MATERIAL TO SUPPORT HIS OPINION THAT THE ASSESSEE HAS RECEIVED THESE CHEQUES AS SECURITY AGAINST CASH \ LOANS GIVEN. THE EXPLANATION OF THE ASSESSEE REGARDING REASONS FOR AVAILABILITY OF SUCH CHEQUE IS QUITE PROBABLE. THUS THE ADDITIONS ARE APPARENTLY MADE ON THE BASIS OF SUSPICION AND ARE NOT SUSTAINABLE. THIS GROUND OF APPEAL IS THEREFOR E ALLOWED AND THE ADDITION MADE IN VARIOUS ASSESSMENT YEARS OF RS. 10 80 000/- 27 15 000/- 24 00 000/- 23 40 000/- 71 57 580/- RESPECTIVELY -: 31: - 31 ARE DELETED. 37. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITIONS HAVE BEEN MADE ON TH E PLEA THAT THE ASSESSEE HAD GIVEN LOANS IN CASH AND OBTAI NED SIGNED CHEQUES FROM THE BORROWERS AS SECURITY. ACCO RDINGLY ADDITION OF RS. 10.80 LAKHS RS. 27.15 LAKHS RS. 2 4 LAKHS RS. 23.40 LAKHS RS. 71 57 580/- WAS MADE IN THE ASSESSMENT YEARS 2005-06 2006-07 2007-08 AND 2008 -09 RESPECTIVELY. THE LD. CIT(A) DELETED THE ADDITION B Y STATING THAT ADDITIONS WERE MADE WITHOUT PROPER REASONS AND ANNEXURE 2 OF ASSESSMENT ORDER NARRATING REASONS OF ADDITION WERE ALSO NOT FOUND TO BE ANNEXED WITH THE ASSESSMENT ORDER. THE LD. CIT(A) ALSO FOUND THAT SI NCE THE ASSESSEE WAS INVOLVED IN THE BUSINESS OF REAL STATU S AND THEY HAVE BORROWED HEAVILY FROM THE MARKET FOR THEI R BUSINESS NEEDS THEREFORE THEY CANNOT ENGAGE IN MO NEY LENDING BUSINESS. THE OBSERVATIONS OF CIT(A) IS DEV OID OF ANY MERIT. BY STATING THAT THE ASSESSING OFFICER HAS NO T CONDUCTED ANY INQUIRY FROM THE SO CALLED BORROWS/BA NKS TO BRING FORTH ANY MATERIAL TO SUPPORT THIS OPINION TH AT THE ASSESSEE HAS RECEIVED THESE CHEQUES AS SECURITY AGA INST -: 32: - 32 CASH LOAN GIVEN HE HAS DELETED THE ADDITION. THE L D. CIT(A) HAS GOT CO-TERMINUS POWER TO DO WHAT THE ASSESSING OFFICER HAS FAILED TO DO. IN THE INSTANT CASE THE LD. CIT( A) HAS DONE NOTHING TO FIND OUT THE FACTUAL POSITION REGARDING CHEQUES FOUND IN THE ASSESSEES POSSESSION DURING COURSE OF SEARCH WHICH HAS BEEN MADE BASIS BY THE ASSESSING OFFICER FOR MAKING ADDITION. ACCORDINGLY WE SET-ASIDE THE ORDE R OF CIT(A) AND MATTER IS RESTORED BACK TO THE FILE OF A SSESSING OFFICER FOR DECIDING AFRESH AFTER MAKING PROPER INQ UIRY FROM THE SO CALLED BORROWERS. WE DIRECT ACCORDINGLY. 38. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLOWED WITH RESPECT TO THE DELETION OF ADDITION OF RS. 10 80 000/- RS. 27 15 000/- RS. 24 00 000/- RS. 23 40 000/- RS. 71 57 580/- IN THE ASSESSMENT YEARS 2005-06 TO 2009-10 RESPECTIVELY. 39. THE ADDITIONS MADE BY THE AO TOWARDS INTEREST INCOME OF RS. 48 600/- RS. 7 41 275/- RS. 18 84 9 06/- RS. 56 60 104/- RS. 1 51 09 826/- RESPECTIVELY FOR ABOVE YEARS. 40. FOLLOWING THE SAME REASONING AS GIVEN HEREINABOVE WE SET-ASIDE THE ORDER OF CIT(A) THE MATTER IS RES TORED BACK -: 33: - 33 TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING A FRESH IN RESPECT OF ADDITION MADE ON ACCOUNT OF INTEREST INC OME ALLEGED TO BE ACCRUED ON SUCH ADVANCE. 41. AN ADDITION OF RS. 2 96 000/- AND RS. 32.80 LAKHS WAS MADE IN THE ASSESSMENT YEAR 2006-07 AND 2007-08 ON THE BASIS OF SEIZED PAPERS LPS/162 PAGE 39. 42. IN THE COURSE OF APPEAL PROCEEDINGS BEFORE THE CIT(A) THE LD. AR OF THE ASSESSEE HAS CONTENDED TH AT THE IMPUGNED PAPER IS A ROUGH PAPER AND DOES NOT CARRY ANY EVIDENTIARY VALUE. THE WORD 'PROPOSAL' WRITTEN ON T HE TOP OF THE PAPER. THE NOTINGS WHICH ARE IN FUTURE TENSE LIKE 'AAPKO 1 ACRE KI JAGAH 0.90 ACRE HI MELEGI' AND SPE AK ARRANGEMENTS OF LOANS TO SOMEONE CALLED MAMA 'MAMA KO NAGAD UDHAR DILWAI' ESTABLISHES THIS FACT. IT WAS A LSO CONTENDED THAT IT DOES BEAR EITHER THE NAME OR THE SIGNATURE OF THE ASSESSEE. THEREFORE THE ACTION OF THE AO IS NOT CORRECT. 43. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- I HAVE GONE THROUGH THE OBSERVATIONS OF THE -: 34: - 34 A.O. AND THE SUBMISSIONS OF THE LD AR. IT IS FOUND THAT THE SAID PAPER DOES NOT CONTAIN THE NAME OF THE ASSESSEE AT ANY PLACE. THE HEADING SPECIFICALLY STATES THAT IT IS A 'PROPOSAL'. THE NOTINGS ARE MADE IN FUTURE TENSE 'AAPKO 1 ACRE KI JAGAH 0.90 ACRE HI MILEGI' WHICH ALSO SUPPORT IT TO BE A PROPOSAL. THE AO DID NOT ENQUIRE ABOUT THE NATURE OF THE PAPER. AS REGARDS THE NOTINGS THAT 'MAMA KO NAGAD UDHAR DILWAI' SINCE NAME OF THE ASSESSEE IS NOT APPEARING IT CANNOT BE CONCLUSIVELY HELD THAT THE ASSESSEE HAS ARRANGED FOR A LOAN FOR MAMA. THE AO HAS NOT BROUGHT ON RECORD ANY OTHER MATERIAL TO SUBSTANTIATE THAT THIS TRANSACTION RELATES TO PURCHASE OF PROPERTY FOR ARRANGEMENT OF LOAN BY THE ASSESSEE. FOR THE REASONS MENTIONED ABOVE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITIONS MADE OF RS. 2 96 000/- & RS.32 80 000/- ARE DELETED. -: 35: - 35 44. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITIONS WERE MADE ON THE BAS IS OF SEIZED PAPERS LPS/162 HOWEVER THE LD. CIT(A) HAS DELETED THE SAME BY OBSERVING THAT THESE PAPERS SUGGEST ONL Y PROPOSAL AND NO ACTUAL TRANSACTION TOOK PLACE. TH E LD. CIT(A) ALSO STATED THAT THE ASSESSING OFFICER HAS N OT BROUGHT ANY OTHER MATERIAL TO SUBSTANTIATE THIS TRANSACTION WHICH RELATE TO PURCHASE OF PROPERTY FOR ARRANGEMENT OF LOAN BY THE ASSESSEE. HOWEVER WE DO NOT FIND ANY JUSTIFICA TION IN THE ORDER OF CIT(A) FOR DELETING THE ADDITION WITHO UT GIVING DEFINITE FINDING WITH REGARD TO NATURE OF ENTRY FOU ND IN LOOSE PAPER. IN THE INTEREST OF JUSTICE THE MATTER IS RE STORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVIN G DUE OPPORTUNITY TO THE ASSESSEE. 45. IN THE ASSESSMENT YEAR 2006-07 AN ADDITION OF RS. 5 75 000/- WAS MADE ON THE BASIS OF LOOSE PAPER NO. LPS - 1/60 PAGES 11-12 AND LPS -1/16 PAGE 4-6. THE AO OBSERVED THAT THE ASSESSEE HAS DELIBERATELY AVOIDED FURNISHING OF CORRECT INFORMATION AND THOUGH THE DO CUMENT WAS UNSIGNED PREPARATION AND RETENTION THEREOF SH OWS THAT -: 36: - 36 SUCH AGREEMENT WAS INDEED EXECUTED AND THE SIGNED C OPIES WAS DESTROYED THEREAFTER. 46. BEFORE THE CIT(A) THE LD. AR OF THE ASSESSEE CONTENTED THAT IT WAS COPY OF A DRAFT WILL AND CON TAINS FULL ADDRESS OF SHRI ANIL BAJPAI . THEREFORE THE OBSERV ATION THAT THE ASSESSEE HAS NOT PROVIDED THE CORRECT INFORMATI ON IS NOT CORRECT. THE DOCUMENTS SEIZED WERE DRAFT DOCUMENTS. THEY DID NOT BEAR THE SIGNATURE OF ANY OF THE PARTIES. T HE AO -HAS STRONGLY RELIED ON THESE PAPERS WITHOUT ANY SUPPORT ING EVIDENCES REGARDING MAKING OF PAYMENTS. IT WAS ALSO CONTENDED THAT IN THE LINE OF REAL ESTATE BUSINESS SUCH AGREEMENTS ARE PREPARED BUT ARE ACTED UPON ONLY WHE N THE PAYMENTS ARE RECEIVED. 47. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 18.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE LD. AR. THE FACT THAT THE PAPERS ARE 'DRAFT WILL' & 'DRAFT AGREEMENT' IS NOT IN DISPUTE. THE AO HAS MADE THE ADDITION SOLELY ON THE GROUND THAT THE ASSESSEE HAS -: 37: - 37 AVOIDED TO GIVE ANY DETAILS OF SHRI.ANIL BAJPAI. HOWEVER IN THE QUERY LETTER ITSELF HE HAD MENTIONED THE DETAILED POSTAL ADDRESS OF SHRI. BAJPAI. IN SUCH PREMISE HE COULD HAVE CONDUCTED SOME DIRECT ENQUIRY INSTEAD CONCLUDING THAT THE ASSESSEE HAS AVOIDED GIVING DETAILS OF THE SAID PERSON. SINCE NAME OF THE ASSESSEE IS APPEARING ON THE REFERRED DOCUMENT AND SINCE THE DOCUMENTS WERE FOUND FROM THE RELATED PREMISES OF THE ASSESSEE THOUGH UNSIGNED A STRONG PRESUMPTION ARISES THEREFROM. HOWEVER WITHOUT ENQUIRY AND WITHOUT BRINGING FORTH ANY MATERIAL NO ADDITION COULD BE MADE MERELY ON PRESUMPTION HOWSOEVER STRONG IT MIGHT BE. THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUPPORT THE ADDITION HENCE IT IS DELETED. THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 48. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF LOOSE -: 38: - 38 PAPER LPS/1/60 PERTAINING TO PURCHASE OF SOME PROPE RTY. AS PER THE ASSESSEE THE DOCUMENT WAS MERELY A DRAF T WILL AND CONTAINS FULL ADDRESS OF SHRI ANIL BAJPAI. AS T HE ASSESSEE COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE OR ANIL BAJPAI BEFORE THE ASSESSING OFFICER THE ASSES SING OFFICER MADE ADDITION. BY OBSERVING THAT THE ASSESS ING OFFICER HAS NOT MADE ANY INQUIRY THE LD. CIT(A) DE LETED THE ADDITION. WE DO NOT FIND ANY MERIT IN THE ACTION OF CIT(A) IN SO FAR AS HE IS EQUALLY COMPETENT TO MAKE INQUIRY B EFORE DELETING THE ADDITION. THE LD. CIT(A) HAS ALSO NOT RECORDED ANY POSITIVE FINDING ON THE DOCUMENTS SO AS TO CONC LUDE THAT IT WAS NOT INCOME OF THE ASSESSEE. IN THE INTE REST OF JUSTICE THIS ISSUE IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 49. IN THE ASSESSMENT YEAR 2007-07 AN ADDITION OF RS. 36 50 000/- WAS MADE ON THE BASIS OF LPS-1/60 PAGE NOS. 31-41. 50. BEFORE THE LD. CIT(A) THE LD. AR CONTENTED THOUGH THE SELLER HAS PREPARED THE AGREEMENT THE ASSESSEE DID NOT ENTER INTO IT AS SOME OF THE TERMS WERE NOT ACCEPTA BLE TO HIM. THEREFORE HE DID NOT SIGNED THE SAME. THE REF ERRED -: 39: - 39 PAPERS WERE PHOTO COPIES AND HAVE LITTLE EVIDENTIAR Y VALUE. THE AVAILABILITY OF THE SELLER'S SIGNATURE IS MEANI NGLESS AS IT WAS SIMPLY COPY OF THE SIGNATURE AND IT CANNOT B E RELIED UPON WITHOUT ORIGINAL SIGNATURE. IT WAS ALSO CONTEN DED THAT NO DOCUMENTS SHOWING OWNERSHIP 0.[ 37 PLOTS WERE FO UND DURING THE SEARCH OR SUBSEQUENTLY IN THE COURSE OF ENQUIRY U/S. 131. THE SAID SELLER MR. BANWARI AS INFORMED TO THE ASSESSEE HAS DENIED OF MAKING ANY SUCH SALE. THERE FORE THE ACTION OF THE AO WITHOUT PROPER ENQUIRY AND BAS IS IS NOT CORRECT. 51. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 19.3 I HAVE GONE THROUGH CONTENTS OF THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR. THE ASSESSEE HAS DENIED OF HAVING DONE ANY SUCH TRANSACTION. DESPITE SUCH DENIAL NO ENQUIRIES SEEM TO HAVE BEEN CONDUCTED BY THE AO FROM THE SELLER OR WITNESSES MENTIONED IN THE PAPER. THE PAPERS ARE REPORTEDLY PHOTOCOPIES AND NO OTHER CORROBORATIVE EVIDENCES WERE -: 40: - 40 BROUGHT ON RECORD TO SUBSTANTIATE THAT THE ASSESSEE HAS MADE ANY SUCH PAYMENT. IN THE ABSENCE OF ORIGINALS PHOTO COPY HAS GOT VERY LITTLE EVIDENTIARY VALUE. UNDER THESE CIRCUMSTANCES THE AO IS NOT JUSTIFIED IN MAKING THE ADDITION. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION MADE OF RS. 36 50 000/- IS DELETED. 52. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE LD. CIT(A) HAS DELETED T HE ADDITION MADE BY THE ASSESSING OFFICER JUST BY STAT ING THAT THE ASSESSING OFFICER HAS NOT MADE ANY INQUIRY FROM THE SELLER OR WITNESS MENTIONED IN THE PAPER. THERE IS NO JUSTIFICATION FOR CIT(A)S ACTION. IN VIEW OF THE D ISCUSSION MADE HEREINABOVE THE MATTER IS RESTORED BACK TO TH E FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNI TY TO THE ASSESSEE. 53. IN THE ASSESSMENT YEAR 2006-07 AN ADDITION OF RS. 1 CRORE WAS MADE ON THE BASIS OF LOOSE PAPER LP S-1/15 PAGE 29 TO 30 WHICH IS AN UNSIGNED COPY OF POSSESS ION -: 41: - 41 LETTER BY ONE OF THE PURCHASERS IN FAVOUR OF THE A SSESSEE. THE AO HAS MADE THIS ADDITION ON THE OBSERVATION TH AT THE ASSESSEE HAD REMAINED SILENT REGARDING THE FACT WHE THER OR NOT HE PURCHASED THIS PROPERTY ON POA AND SUBSEQUEN TLY SOLD IT AND GOT IT REGISTERED IN THE NAME OF THE UL TIMATE BUYER. 54. BEFORE THE LD. CIT(A) THE LD. AR SUBMITTED THAT THE IMPUGNED PAPER IS AN UNDATED UNSIGNED POSSESSI ON LETTER WITHOUT ANY MENTION OF AMOUNT ETC. THEREFORE IT HAS NO SIGNIFICANCE. THE ASSESSEE DID NOT PURCHASE THE LAND. THE PAPER CONTAINS NAME AND ADDRESS OF THE SE LLERS AND THE BUYERS BUT ASSESSING OFFICER DID NOT CONDU CT ANY ENQUIRY. HE DID NOT ESTABLISH HIS INFERENCE WHETHE R THE ASSESSEE HAS ACTED AS POA HOLDER OR OTHERWISE WHIC H IS NOT CORRECT. THEREFORE ACCORDING TO THE ASSESSEE THE ADDITION MADE BY THE AO IS NOT CORRECT. THE ASSESSE E HAS ALSO RELIED ON THE DECISION OF HON'BLE JURISDICTION AL TRIBUNAL REPORTED AT (2007) 9 ITJ (IND) 643. 55. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 20.3 I HAVE GONE THROUGH THE -: 42: - 42 OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE LD. AR. IT IS FOUND THAT THE SAID POSSESSION LETTER WAS NOT SIGNED BY ANY PARTY AND NO RELEVANT FACT JUSTIFYING SUCH ADDITION WAS BROUGHT ON RECORD. WHEN THE COMPLETE NAME AND ADDRESS OF THE PURCHASER AND SELLER ARE AVAILABLE WITH THE AO HE COULD HAVE CONDUCTED NECESSARY ENQUIRY FROM THOSE PARTIES. THUS THE ADDITION IS MADE SIMPLY ON ASSUMPTIONS AND PRESUMPTIONS WITHOUT BRINGING ANY MATERIAL ON RECORD TO SUPPORT SUCH ADDITION. THEREFORE AFTER CONSIDERING THE ASSESSEES SUBMISSION THE CASE LAW RELIED UPON AND THE FACTS OF THE CASE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS. 1 00 00 000/- IS DELETED. -: 43: - 43 56. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE LD. CIT(A) HAS DELETED T HE ADDITION MERELY BY STATING THAT WHEN COMPLETE NAME AND ADDRESS OF THE PURCHASER AND SELLER WERE AVAILABLE WITH THE ASSESSING OFFICER HE COULD HAVE CONDUCTED NECESSAR Y ENQUIRIES FROM THOSE PARTIES. HOWEVER NO EFFORTS W ERE MADE BY THE LD.CIT(A) TO DO WHAT THE ASSESSING OFFI CER HAS FAILED TO DO. SINCE THE DOCUMENTS WERE FOUND IN POS SESSION OF THE ASSESSEE THE ONUS WAS ON THE ASSESSEE TO BR ING CORROBORATIVE MATERIAL ON RECORD TO SUGGEST THAT TH E TRANSACTION RECORDED IN THE DOCUMENT SO FOUND WAS N OT ITS INCOME. ONCE THE ASSESSEE FURNISHES SUCH EVIDENCE THE ONUS SHIFTED TO THE ASSESSING OFFICER HOWEVER IN THE INSTANT CASE THE ASSESSEE HAS NOT BROUGHT ANY MATE RIAL TO CONTROVERT THE FINDINGS OF THE ASSESSING OFFICER. J UST BY FINDING FAULT IN ASSESSING OFFICER THE CIT(A) DELE TED THE ADDITION. WE SET ASIDE THE ORDER OF CIT(A) AND MAT TER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER AND DECIDE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . 57. AN ADDITION OF RS. 85 607/- RS. 21 00 000/- RS. 4 29 072/- RS. 42 00 000/- RS. 3 75 241/- RS. -: 44: - 44 32 00 000/- WAS MADE IN THE ASSESSMENT YEARS 2006-0 7 2007-08 AND 2008-09. THE ADDITION MADE ON THE BASIS OF LOOSE PAPERS NO. LPS 1/9 PAGE 14-15. THE AO HELD TH AT THE SUMS REPRESENT THE AMOUNT OF UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE IN LOANS AND THE INTEREST RECE IVED THEREON. 58. BEFORE THE CIT(A) THE LD. COUNSEL FOR THE ASSESS EE HAS CONTENDED THAT THE SAID PAPERS ARE NOT IN THE HANDWRITING OF THE ASSESSEE NOR BEAR HIS NAME NOR THEY WERE SEIZED FROM HIS POSSESSION. THE PAPERS DO NOT STATE THE NATURE OF THE AMOUNTS APPEARING THEREIN AS 'REC EIPT' OR 'PAYMENT'. IT ALSO REFERS CHEQUES AT SEVERAL PLACES BUT NO SUCH CHEQUES RECEIVED ON SUCH TRANSACTIONS DID FIND PLACE IN THE ASSESSEES' BANK ACCOUNT. THEREFORE THE AVER MENTS MADE IN THE ASSESSMENT ORDER ARE PURELY BASED ON CONJECTURES AND SURMISES. 59. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 21.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE LD. AR AND THE RELEVANT LOOSE PAPERS. IT IS -: 45: - 45 SEEN THAT THE SAID PAPER DOES NOT CONTAIN THE NAME OF THE ASSESSEE AT ANY PLACE. THOUGH THE AO HAS HELD THAT THE SAID PAPER IS IN THE HANDWRITING OF THE ASSESSEE AND THE LD. AR HAS DENIED THE SAME. IN SUCH CIRCUMSTANCE THE A.O. COULD HAVE OBTAINED EXPERT'S OPINION WHICH WAS NOT DONE. IT IS FURTHER SEEN THAT AT VARIOUS PLACES THE AMOUNTS ARE SHOWN TO HAVE BEEN RECEIVED BY CHEQUE THE AO HAS NOT BROUGHT ON RECORD THE DETAILS OF THE BANK ACCOUNT OF THE PERSON IN WHICH SUCH CHEQUES WERE DEPOSITED. THEREFORE ACTION OF THE AO IS NOT SUSTAINABLE BEING NOT BASED ON ANY COGENT MATERIAL. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITIONS MADE IN THE ABOVE ASSESSMENT YEARS OF RS. 85 607/- 2100000/ 429072/- 42 00 000/- 3 75 241/- 32 00 000/- RESPECTIVELY ARE DELETED. -: 46: - 46 60. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE LD. CIT(A) HAS DELETED T HE ADDITION WITHOUT CONTROVERTING THE FINDINGS RECORDE D BY THE ASSESSING OFFICER. SINCE THE ONUS WAS NOT PROPERLY DISCHARGED BY THE ASSESSEE TO BRING CORROBORATIVE M ATERIAL THE LD. CIT(A) WAS NOT JUSTIFIED IN SHIFTING SUCH O NUS ON THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE OR DER OF CIT(A) AND THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 61. THE ADDITIONS WERE MADE ON THE BASIS OF SEIZED DOCUMENT NO. LPS 1/60 PAGE 2226 WHICH IS STATED TO BE A COPY OF DULY EXECUTED SALE AGREEMENT RELATING TO PU RCHASE OF 3.5 ACRE OF LAND AT NEORI FROM SEVEN DIFFERENT P ERSONS. THE A.O. HAS MADE THIS ADDITION AFTER REJECTING THE ASSESSEE'S EXPLANATION THAT THE AGREEMENT WAS NOT EXECUTED. 62. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED TH AT THE IMPUGNED PAPERS ARE PHOTO COPY OF AN AGREEMENT. WITH MANY ADDITIONS AND ALTERATIONS. THE AO HAS PRESUMED THAT THE SAID AGREEMENT WAS ACTUALLY EXECUTED AND THE -: 47: - 47 PAYMENTS MENTIONED THERE IN WERE ACTUALLY MADE. EVE N THE CHEQUES MENTIONED IN THE SAID AGREEMENT WERE FOUND DURING THE COURSE OF SEARCH WHICH SUBSTANTIATE THA T SUCH CHEQUE WERE NEVER ISSUED AND ACCORDINGLY IT FORTIFI ES THAT THE AGREEMENT WAS NEVER EXECUTED. HOWEVER THE AO H AS IGNORED THE SAME AND PRESUMED THAT THE ASSESSEE HAS PAID THE REFERRED SUMS TO THE PARTIES IN CASH AND HAD TA KEN BACK THE CHEQUES. THIS PRESUMPTION IS BASELESS. THE ASSESSEE CONTENDED THAT THAT THE AO HAS ALSO IGNORE D LOOSE PAPER NOS. LPS 1/37 PAGE 112-113 WHICH ARE LEGAL N OTICES OF THE COUNSEL OF THE SAID PARTIES AND SHOW THAT TH E ASSESSEE HAD NOT PURCHASED THE SAID LAND. REGARDING THE OBSERVATION THAT THE ASSESSEE HAS PAID RS.10 LAKH C ASH IT WAS CONTENDED THAT THERE IS NO MENTION OF ANY SUCH CASH PAYMENT IN THE SAID PAPERS AND THE AO DID NOT CONDU CT ANY ENQUIRY FROM THE SELLERS OR BROUGHT FORTH ANY M ATERIAL TO SUPPORT HIS PRESUMPTION. 63. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 22.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND -: 48: - 48 SUBMISSIONS OF THE LD. AR. THE SEIZED PAPER IS ADMITTEDLY A XEROX COPY WITH SEVERAL ALTERATIONS. IT IS SEEN THAT ALL THE REFERRED PAYMENTS THE DETAILS OF WHICH ARE MENTIONED AT PAGE 19 OF THE ASSESSMENT ORDER ARE STATED TO HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUES AND NO PART OF IT WAS PAID IN CASH. THESE CHEQUES WERE SEIZED DURING THE SEARCH. ALL THESE FACTS ESTABLISH THAT THE AGREEMENT WAS NEVER EXECUTED. THE ABOVE FACT IS FURTHER STRENGTHENED BY LPS 1/37 PAGE 112-113 WHICH IS A LEGAL NOTICE FROM THE ADVOCATES OF THE SAID SELLERS DEMANDING THAT PAYMENT SHOULD BE MADE AND REGISTRATION SHOULD BE EXECUTED. THE AO HAS PRESUMED THAT THE CHEQUES HAVE BEEN REPLACED AND CASH HAS BEEN PAID AND HENCE HE MADE THE ADDITION. HOWEVER THIS PRESUMPTION IS FOUND TO BE IMPROBABLE BECAUSE HAD -: 49: - 49 SUCH PAYMENT BEEN MADE IN CASH THE ASSESSEE WOULD NOT HAVE BEEN SERVED WITH ANY LEGAL NOTICE BY THE SELLERS AND ON THE OTHER HAND THE ASSESSEE WOULD BE CHASING THE SELLERS. MOREOVER THE AO WAS REQUIRED TO BRING SOME MATERIAL ON RECORD TO SUBSTANTIATE HIS INFERENCES WHICH HE FAILED TO DO. UNDER THESE CIRCUMSTANCES THE ADDITION MADE CANNOT BE SUSTAINED. FOR THE REASONS GIVEN ABOVE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITIONS MADE OF RS. 3 50 000/- 10 00 000/- 40 00 000/- IN THE ABOVE YEARS ARE DELETED. 64. IN VIEW OF THE REASONING GIVEN IN PARA 60 WE RESTORE THE MATTER BACK TO THE FILE OF A.O. FOR DEC IDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . 65. IN THE ASSESSMENT YEAR 2007-08 AN ADDITION OF RS. 89 27 500/- WAS MADE ON THE BASIS OF LOOSE PAPERS N O. LPS 1 /2 PAGES 88-90 WHICH REFER TO THE PURCHASE OF LA ND AT -: 50: - 50 AHEMADAPUR BY SMT. OMWATI GOYAL. THE AO OBSERVED TH AT AS PER THE SALE AGREEMENT DATED 10-11-2004 THE PUR CHASER HAD FIXED THE PRICE OF THE LAND AT RS. 175/- PER SQ FT. BUT THE PURCHASE CONSIDERATION WAS SHOWN AT RS.75 00 00 0/-. ACCORDING TO THE A.O. IT COULD NOT BE SOLD AT LESS THAN THE RATE INDICATED IN THE AGREEMENT ON 10.11.2004 RATE. THEREFORE THE AO MADE THE ADDITION APPLYING THAT R ATE TO THE TOTAL LAND. 66. BEFORE CIT(A) THE LD. COUNSEL FOR THE ASSESSEE CONTENTED THAT THE ASSESSEE WAS NOT AWARE OF ANY AGREEMENT DATED 10-11-2004 AGREEING SALE RATE OF RS . 175/- PER SQFT NOR THE AO HAD BROUGHT ANY REFERENCE OF SUCH AGREEMENT IN THE ASSESSMENT ORDER. REPRODUCING HIS REPLY BEFORE THE AO IT WAS REITERATED THAT THE AO HAS MADE ADDITION ON THE BASIS OF NON-EXISTING AGREEMENT WHICH IS NOT CORRECT. IT WAS CONTENTED T HAT THE PROPERTY WAS PURCHASED BY SMT OMWATI GOYAL AND IT IS VERIFIABLE FROM HER BOOKS OF ACCOUNTS. 67. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 23.2 I HAVE GONE THROUGH THE -: 51: - 51 ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR. IT IS NOT IN DISPUTE THAT PURCHASE OF THIS LAND IS DULY RECORDED IN THE BOOKS OF ACCOUNT OF SMT. OMWATI GOYAL AT THE STATED PRICE. THE AO HAS HOWEVER ESTIMATED THE PURCHASE PRICE @ RS.175/- PER SQ FT BASED ON SOME AGREEMENT THE REFERENCE OF WHICH HAS NEITHER BEEN GIVEN IN THE ASSESSMENT ORDER NOR WAS IT CONFRONTED TO THE ASSESSEE DESPITE HIS SPECIFIC REQUEST. IT IS A WELL ESTABLISHED PRINCIPLE OF LAW THAT NO EVIDENCE CAN BE USED- AGAINST A PARTY WITHOUT CONFRONTING HIM WITH SUCH EVIDENCE. IT IS ALSO SEEN THAT THE ASSESSEE HAS MENTIONED IN HIS WRITTEN SUBMISSION BEFORE THE AO THAT STATEMENT OF THE SELLER HAD BEEN RECORDED U/S 131 OF THE ACT AND SHE CONFIRMED THE SALE PRICE AT THE VALUE AS RECORDED IN THE BOOKS OF ACCOUNT OF SMT. OMWATI GOYAL. THIS FACT HAS NOT BEEN DISPROVED BY THE AO. UNDER THESE CIRCUMSTANCES THE ADDITION -: 52: - 52 MADE BY THE AO IS NOT SUSTAINABLE. THIS GROUND OF APPEAL IS THEREFORE ALLOWED AND THE ADDITION OF RS 8927500/- IS DELETED. 68. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. DURING THE COURSE OF SEARCH IT WAS FOUND THAT LAND AT AHMEDPUR WAS PURCHASED BY SMT. OMWATI GOYAL. THI S TRANSACTION WAS DULY RECORDED IN THE BOOKS OF ACCOU NT OF SMT. OMWATI GOYAL AT THE STATED PRICE. THE STATEMEN T OF SELLER HAD BEEN RECORDED U/S 131 WHEREIN SHE FORMED THE SAID PRICE AT THE VALUE SHE RECORDED U/S 131 WHEREI N SHE FORMED THE SAID PRICE AT THE VALUE SHE RECORDED IN THE BOOKS OF ACCOUNT OF SMT. OMWATI GOYAL. THIS FACT HAS NOT BEEN DISAPPROVED BY THE ASSESSING OFFICER. FURTHER DETAI LED FINDING HAS BEEN RECORDED BY THE LD.CIT(A) AT PARA 23.2 REPRODUCED HEREINABOVE WHICH HAS NOT BEEN CONTROVE RTED BY THE LD. SENIOR DR. ACCORDINGLY WE DO NOT FIND A NY REASON TO INTERFERE IN THE ORDER OF CIT(A) DELETING THE AD DITION OF RS. 89 27 500/- MADE BY THE ASSESSING OFFICER. 69. IN THE ASSESSMENT YEAR 2007-08 AN ADDITION OF RS. 5 LAKHS WAS MADE ON THE BASIS OF LOOSE PAPER L PS -: 53: - 53 1/62 PAGE 29-30 AND 22-23 WHICH IS A PHOTOCOPY OF AN AGREEMENT FOR PURCHASE OF PROPERTY IN WHICH IT WAS MENTIONED THAT THE ASSESSEE HAS PAID RS. 5 00 000/- IN CASH AND RS. 45 LAKHS BY CHEQUE IN ONE SET OF PAPERS (PAGE 22-23') AND RS. 4 LAKH IN CASH AND RS. 46 LAKH BY CHEQUE IN THE OTHER SET OF PAPERS (PAGE 29- 30). THE AO HAS HELD THAT THE CASH PAYMENT WAS MADE OUT OF UNEXPLAINED SOURCES AND HENCE HE MADE ADDITION. 70. BEFORE THE LD. CIT(A) THE LD. AR FOR THE ASSESSEE HAS CONTENDED THAT THE SAID PAPER WAS NOT IN THE HANDWRITING OF THE ASSESSEE NOR WAS IT SEIZED F ROM HIS POSSESSION. IT IS A PHOTOCOPY AND DOES NOT HAVE MUCH EVIDENTIARY VALUE. THE CHEQUE MENTIONED IN THE AGREEMENT WAS ON ANDHRA BANK WHERE THE ASSESSEE DOES NOT HAVE ANY ACCOUNT. THOUGH THE ASSESSEE REQUESTED THE AO TO ISSUE SUMMONS TO THE SELLER NAMED IN THE AGREEMENT NO ACTION WAS TAKEN AND THE ADDITION WAS MADE PARTLY REJECTING THE SUBMISSIONS WITHOUT ANY BASIS. 71. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- -: 54: - 54 24.3 I HAVE GONE THROUGH OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE ASSESSEE. IT IS SEEN THAT THE PAPERS SEIZED ARE PHOTOCOPY OF PAGES WHICH THE ASSESSEE HAS STATED BEFORE THE AO ARE FABRICATED COPIES TO INDUCE PROSPECTIVE BUYERS AND HAVE DENIED MAKING ANY SUCH PAYMENT. THE ASSESSEE HAS ALSO BEEN FOUND TO HAVE REQUESTED THE AO TO ISSUE SUMMONS TO THE SELLER IN CASE HE WAS NOT SATISFIED WITH THE EXPLANATION. THUS ONCE THE PAPER SEIZED IS A PHOTOCOPY WHICH WAS STATED TO HAVE BEEN FABRICATED NO ADDITION WAS WARRANTED WITHOUT CONFIRMING THE FACTS WITH THE SELLER IT IS ALSO NOTED THAT THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO ESTABLISH THAT THE PROPERTY UNDER REFERENCE WAS PURCHASED BY THE ASSESSEE OR ANY OF HIS FAMILY MEMBERS AT ANY TIME. UNDER -: 55: - 55 THESE CIRCUMSTANCES NO ADDITION CAN BE MADE ON THIS ACCOUNT. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION MADE OF RS. 5 00 000/- IS DELETED AND THE APPEAL IS ALLOWED ON THIS GROUND. 72. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. DURING THE COURSE OF SEARCH LPS-1/62 PAG E 29-30 AND 23 WAS FOUND WHICH WAS AN AGREEMENT FOR PURCH ASE OF PROPERTY IN WHICH IT WAS MENTIONED THAT THE ASSESSE E HAS PAID RS. 5 LAKHS IN CASH AND RS. 45 00 000/- BY CHE QUE. AS THE CASH PAYMENT WAS NOT RECORDED IN THE BOOKS OF A CCOUNT THE ASSESSING OFFICER MADE AN ADDITION OF RS. 5 LAK HS WHICH WAS PAID IN CASH. THE LD. CIT(A) DELETED THE ADDITI ON BY STATING THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO ESTABLISH THAT PROPERTY UNDER REFERENCE WAS PURCHASED BOOKS OF ACCOUNT FOR ANY OF HIS FAMILY MEMBERS AT ANY TIME. SINCE THE DOCUMENT WAS FOUND IN THE POSSESSION OF THE ASSESSEE ONUS WAS ON THE ASSESSEE TO PROVE THAT NO CASH PAYMENT WAS MADE. THE LD. CIT (A) WAS -: 56: - 56 NOT JUSTIFIED IN DELETING THE ADDITION WITHOUT CONT ROVERTING THE FINDING OF ASSESSING OFFICER. ACCORDINGLY WE S ET-ASIDE THE ORDER OF CIT(A) AND MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNI TY TO THE ASSESSEE. 73. IN THE ASSESSMENT YEARS 2007-08 AND 2008-09 ADDITION WAS MADE ON THE BASIS OF LOOSE PAPERS NO. LPS 1/10 PAGE 25 26 28-35. THE NOTING IN SAID PAG ES GIVE DETAILS OF SOME SALARY PAYMENTS AND DETAILS OF OPENING BALANCES AND AMOUNT RECEIVED. ALL THE AMOUNTS WERE ADDED AS UNEXPLAINED INCOME/ EXPENSES. 74. BEFORE THE LD. CIT(A) CONTENTION OF LD. AUTHORIZED REPRESENTATIVE WAS THAT THE ADDITIONS O F RS. 29 000/- AND RS. 38 000/- MADE ON THE BASIS OF PAGE 33 AND 34 OF THE LOOSE PAPERS WERE CLAIMED AS INCORRECT BECAUSE THE FIGURES 13 AND 16 14 AND 24 WERE READ AS THOUSANDS WHEREAS THEY RELATE TO THE RECORD OF ATTENDANCE OF THE PERSONS EMPLOYED BY HIS FATHER. THE LD. AR CONTENTED THAT THE ADDITIONS OF RS. 12 76 525/- ON THE BASIS OF PAGE 25-26 28-35 RELAT E TO -: 57: - 57 THE COMBINED CASH IN HAND OF SHRI P.D. GOYAL SMT. OMWATI GOYAL SMT. JYOTI GOYAL AND SMT. ANCHIT GOYA L AVAILABLE IN HIS HANDS FOR TRANSACTING BUSINESS DEA LS WITH VARIOUS PERSONS AS PER THEIR DIRECTIONS. THESE PAPERS WERE SEIZED FROM THE OFFICE AT KILOL PARK AN D NOT FROM THE ASSESSEE. REGARDING THE ADDITION OF RS. 3 81 130/- THE ASSESSEE CONTENTED THAT THESE TRANSACTIONS ALSO RELATE TO THE TRANSACTIONS MADE O N BEHALF OF HIS FAMILY MEMBERS. ACCORDING TO THE LD. AR SINCE LOOSE PAPERS DO NOT CONSTITUTE BOOKS OF ACCOU NTS NO ADDITIONS CAN BE MADE AS UNEXPLAINED CREDITS. FURTHER NO ADDITION IS POSSIBLE SOLELY ON THE BASI S OF THE PAPER SINCE NO CASH WAS FOUND DURING SEARCH. 75. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 25.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AND SUBMISSIONS OF THE LD. AR. IT APPEARS THAT THE RECORD OF LEAVE OF THE EMPLOYEES HAS BEEN CONSIDERED AS AMOUNT PAID BY SUFFIXING -: 58: - 58 '000' TO THE WRITTEN TEXT AND ADDITIONS OF RS. 29000/- & RS. 38000/- WERE MADE WHICH ARE NOT JUSTIFIED AND HENCE DELETED. AS REGARDS OPENING BALANCE IT IS SEEN THAT THE LOOSE PAPERS WERE SEIZED FROM THE BUSINESS PREMISES AT KILOL PARK FROM WHERE BUSINESS OF MORE THAN ONE PERSON WAS BEING UNDERTAKEN AND THE EXPLANATION OF THE ASSESSEE THAT THE SAME REPRESENTED THE DETAILS OF CASH-IN-HAND HELD BY HIM JOINTLY FOR ALL SUCH PERSONS IS QUITE PROBABLE. UNDER SUCH CIRCUMSTANCES THE AO IS NOT CORRECT IN MAKING THE ADDITION WITHOUT CONSIDERING THE CASH-IN-HAND ON SUCH DATES HELD BY ALL THE PERSONS. THEREFORE THE ADDITION OF RS. 1276525/- IS DELETED. AS REGARDS THE AMOUNT RECEIVED OF RS.381130/- NO MATERIAL WAS BROUGHT BY THE AO ON RECORD TO SUBSTANTIATE THAT THE SAID AMOUNT WAS -: 59: - 59 RECEIVED BY THE ASSESSEE OR IT WAS INCOME IN THE HANDS OF THE ASSESSEE. ACCORDINGLY NO ADDITION WAS WARRANTED AND THE ADDITION OF RS. 381130/- IS THEREFORE DELETED. THIS GROUND OF APPEAL IS ALLOWED. THE ASSESSEE GETS RELIEF OF RS. 29000/- 38000/- 1276525/- & 381130/- RESPECTIVELY AS PRAYED IN THIS GROUND OF APPEAL. 76. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT ADDITIONS WERE MADE ON THE B ASIS OF LOOSE PAPERS SEIZED FROM THE BUSINESS PREMISES AT K ILOL PARK FROM WHERE BUSINESS OF ASSESSEE WERE BEING UNDERTAK EN. WITHOUT CONTROVERTING THE DETAILED FINDINGS RECORDE D BY THE ASSESSING OFFICER THE LD. CIT(A) HAS DELETED THE A DDITION. THE LD. CIT(A) HAS NOT GIVEN POSITIVE FINDING AND T HE REASONS FOR THE SAME ACCORDINGLY WE SET-ASIDE THE ORDER O F CIT(A) AND THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. -: 60: - 60 77. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 1 38 00 000/- WAS MADE ON THE BASIS OF LOOSE PAPER LPS- 1/62-PG 55 HOLDING THAT THE REFERRED LAND WAS SOLD TO SHRI PARASHARJI. 78. BEFORE THE LD. CIT(A) THE LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT THE IMPUGNED PAPER IS A ROUGH PAPER AND DOES NOT RELATE TO ASSESSEE EITHER AS BUYER OR AS SELLER. IT STATES RECEIPT OF RS.22 09 5 00/- IN CHEQUE AND NEITHER THE ASSESSEE NOR HIS RELATIVES H AD RECEIVED ANY SUCH AMOUNT AS IS VERIFIABLE FROM THEI R BANK STATEMENTS. THE AO MADE HAS THE ADDITION ON THE PRESUMPTION DESPITE ENDORSING THAT THERE IS NO EVIDENCE TO SHOW THAT THE ASSESSEE HAD PURCHASED TH E LAND. THE AO HAS MADE THE ADDITION AS RECEIPT OF CA SH BY REPLACING CHEQUE WITHOUT ANY BASIS. IT WAS ALSO CONTENDED THAT DURING ASSESSMENT PROCEEDINGS IT WAS SUBMITTED THAT THE ASSESSEE ARRANGED THE TRANSACTIO NS FOR OTHER PERSONS TO ENSURE AMICABLE COMPLETION OF THE DEAL BUT THE AO HAS IGNORED THIS FACT. 79. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- -: 61: - 61 26.3.1 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE ASSESSEE AND THE RELEVANT LOOSE PAPERS. THE AO HAS MADE THE ADDITION MAINLY ON THE BASIS OF SUSPICION WITHOUT BRINGING FORTH ANY EVIDENCE TO SUPPORT HIS VIEW. THOUGH THE TELEPHONE NUMBERS OF THE SELLER ARE MENTIONED ON THE LOOSE PAPERS NO ENQUIRIES WERE MADE. THE AVERMENT THAT THE CHEQUE MENTIONED IN THE PAPER WAS REPLACED BY CASH IS WITHOUT ANY BASIS. SIMILARLY THE OBSERVATION THAT THE ASSESSEE HAD PURCHASED THE PROPERTY ON AGREEMENT/POA AND SUBSEQUENTLY SOLD IT TO SOME OTHER PERSON RETAINING PROFIT FOR HIMSELF IS NOT BASED ON ANY SOUND FOOTING. UNDER THESE CIRCUMSTANCES THE ACTION OF THE AO MERELY ON THE BASIS OF THE PAPERS IS NOT SUSTAINABLE; HENCE THE ADDITION MADE IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. -: 62: - 62 80. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. THE ADDITION WAS MADE ON THE BASIS OF LPS- 1/62 INDICATING SALE OF LAND TO SHRI PARASHARJI. THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING THAT THOUGH THE T ELEPHONE NUMBERS OF SELLER WAS MENTIONED IN THE LOOSE PAPERS NO INQUIRY WAS MADE BY THE ASSESSING OFFICER. WITHOUT CONTROVERTING THE FINDINGS OF THE ASSESSING OFFICER THE LD. CIT(A) DELETED THE ADDITION JUST BY STATING THAT TH E ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF SUSPI CION WITHOUT BRINGING FORTH ANY EVIDENCE TO SUPPORT HIS VIEW. WE DO NOT FIND ANY MERIT IN THE CIT(A)S ACTION. IN TH E INTEREST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 81. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 11 59 315/- WAS MADE ON THE BASIS OF LOOSE PAPE R NO. LPS 1/61 PAGE 97 IN WHICH THE STATEMENT OF ACCOUNT OF A STAMP VENDOR WAS FOUND. THE AO OBSERVED THAT THE EXPLANATION OF THE ASSESSEE IN TH IS REGARD IS NOT SATISFACTORY AND HE MADE ADDITION OF THE STAMP EXPENSES MENTIONED IN THIS SHEET AS MADE FRO M UNDISCLOSED INCOME. -: 63: - 63 82. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PAPER IS AN ACCOUNT OF STAMP VENDOR SUPPLYING STAMP PAPERS TO VARIOUS PERSONS ON THE INSTRUCTIONS OF THE ASSESSEE FROM TIME TO TIME AND THE ACCOUNT WAS SETTLED BY THE ASSESSEE BY ASKING THE RESPECTIVE PERSONS TO PAY THE DUES TO THE STAMP VENDOR. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PURCHASED OR SOLD ANY LAND AT ANY AT ANY TIME A ND THERE IS NO QUESTION OF HIS INCURRING ANY LIABILITY FOR SUCH EXPENSES. ALL THE STAMP DUTY EXPENSES OF VARIO US FAMILY MEMBERS OF THE ASSESSEE WERE EXPLAINED IN DETAIL IN THE ASSESSMENT/APPEAL PROCEEDINGS OF THE RESPECTIVE FAMILY MEMBERS. IT WAS FURTHER SUBMITTED THAT THE ACTUAL TOTAL OF THE AMOUNTS MENTIONED IN T HE SAID PAPER COMES TO RS. 9 40 315/- ONLY BUT IT WAS WRONGLY TOTALED AS RS.11 59 315/- AND THE MISTAKE OCCURRED DUE TO READING OF FIGURE 25 960 AS 2 50 96 0. THE ASSESSEE ALSO GAVE SOME EXAMPLES OF THE AMOUNTS INCURRED BY OTHER FAMILY MEMBERS BUT WERE TREATED A S INCURRED BY HIM. -: 64: - 64 83. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 27.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE ASSESSEE AND THE RELEVANT LOOSE PAPER REPRODUCED IN THE ASSESSMENT ORDER. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS NOT PURCHASED/SOLD ANY LAND ON HIS OWN ACCOUNT. UNDER THESE CIRCUMSTANCES IT IS MOST IMPROBABLE THAT THE ASSESSEE HAD INCURRED ANY EXPENDITURE ON STAMP DUTY. IT IS FURTHER SEEN THAT THE A.O. HAS MADE SOME ADDITIONS TOWARDS UNRECORDED STAMP DUTY EXPENSES IN THE CASES OF ASSESSEE'S FAMILY MEMBERS AND SOME OF THE ADDITIONS WERE ALSO CONFIRMED. UNDER THESE CIRCUMSTANCES ANY ADDITION ON THIS ACCOUNT IN THE HANDS OF THE ASSESSEE IS NOT JUSTIFIED. ACCORDINGLY THIS GROUND OF -: 65: - 65 APPEAL IS ALLOWED AND THE ADDITION MADE IS DELETED. 84. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT ADDITION WAS MADE ON THE BASIS OF NOTINGS ON LOOSE PAPERS LPS-1/61 PAGE 97 INDICATING PAYMENT OF STAMP DUTY. IT WAS SUBMITTED THAT STAMP DUTY EXPENS ES WERE PERTAINING TO VARIOUS FAMILY MEMBERS OF THE AS SESSEE AND SOME WERE EXPENDITURE IN THE COURSE OF THEIR ASSESSMENT. THE LD. CIT(A) DELETED THE SAME BY OBSE RVING THAT THE ASSESSEE HAS NOT INCURRED ANY SUCH EXPENSE S WITHOUT BRINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY WE SET-ASIDE THE ORDER OF CIT(A) AND T HE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING A FRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 85. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 43 20 000/- WAS MADE. DURING THE COURSE OF SEARCH ONE SALE AGREEMENT (LPS 1/36 PAGE 14-17 LPS 1/31 PAGE 35-39 AND LPS 1/31 PAGE 30 TO 34) MENTIONING SALE CONSIDERATION AT RS. 43 20 000/- WA S FOUND. IT STATES ADVANCE PAYMENT OF RS. 5 20 000/ W AS -: 66: - 66 MADE. ACCORDING TO THE AO THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF PAYMENT OF THE SAID CONSIDERATION AND ACCORDINGLY HE ADDED THIS AMOUNT AS UNEXPLAINED INVESTMENT. 86. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE ADDITION WAS MADE WITH THE OBSERVATION THA T 'THE AGREEMENT HAS BEEN SIGNED AND PAYMENT OF RS. 5 20 000/- IS STATED TO HAVE BEEN MADE TILL 16.01.2008 WHICH IS THE DATE OF SIGNING OF THE AGREEMENT. SUBSEQUENTLY THE BALANCE PAYMENTS AS PER SCHEDULE WERE PAID AND SEARCH HAS TAKEN PLACE IN TH E ASSESSEE'S PREMISES IN MAY 2008 THE ASSESSEE HAS AVOIDED GETTING THE PROPERTY REGISTERED.' EXCEPT TH AT NO BASIS WAS GIVEN. THE SAID PAPER IS A PHOTOCOPY WITH AROUND 100 CORRECTIONS AND ALTERATIONS AND PHOTOCOP Y OF SIGNATURE HAS NO EVIDENTIARY VALUE. THE AGREEMEN T STATES THAT THE ASSESSEE HAS PAID 20 000/- IN CASH AND RS. 5 00 000/- BY CHEQUE NO 278194 DRAWN ON BANK OF INDIA. THE TELEPHONE NUMBER AND COMPLETE ADDRESS OF THE SELLER ARE AVAILABLE ON THE PAPER. BUT THE A .O. HAS MADE THIS ADDITION WITHOUT ANY INQUIRY. IT WAS ALSO -: 67: - 67 CONTENDED THAT THE ASSUMPTION THAT THE ASSESSEE HAS MADE THE PAYMENTS SUBSEQUENT TO SEARCH IS IMAGINARY AND WITHOUT ANY BASIS. 87. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 28.2 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE LD. AR. ADMITTEDLY THE IMPUGNED LOOSE PAPERS ARE PHOTOCOPIES WITH SEVERAL CORRECTIONS AND ALTERATIONS. THEREFORE THEY HAVE VERY LITTLE EVIDENTIARY VALUE. THE TELEPHONE NUMBER AND COMPLETE ADDRESS OF THE SELLER ARE STATED ON THE PAPER. THE A.O. SHOULD HAVE CONDUCTED SOME INQUIRY BEFORE DERIVING ANY CONCLUSIONS. THE CLAIM OF PAYMENT OF RS.5 00 000/- THROUGH CHEQUE COULD HAVE BEEN VERY EASILY VERIFIED FROM THE -: 68: - 68 CONCERNED BANK WHICH WAS NOT DONE. THE ASSESSEE'S CONTENTION THAT NO AGREEMENT WAS FINALLY EXECUTED ALSO REMAINED UNREBUTTED. THE AO HAS PRESUMED THAT THE ASSESSEE HAS PAID THE FULL CONSIDERATION SUBSEQUENTLY WITHOUT BRINGING OUT ANY SUPPORTING MATERIAL. UNDER THESE CIRCUMSTANCES THE ADDITION BEING UNSUBSTANTIATED CANNOT BE SUSTAINED. THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED AND THE ADDITION MADE IS DELETED. 88. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT DURING THE COURSE OF SEARCH AN AGR EEMENT WAS FOUND WHEREIN PAYMENT OF RS. 5.20 LAKHS WAS SH OWN. AS THE ASSESSEE DID NOT EXPLAIN THE SOURCE THE ADD ITION WAS MADE. THE LD. CIT(A) DELETED THE ADDITION BY OBSERV ING THAT TELEPHONE NUMBER AND COMPLETE ADDRESS OF THE SELLER WAS AVAILABLE ON THE PAPER THE ASSESSING OFFICER SHOUL D HAVE -: 69: - 69 MADE INQUIRY. HOWEVER THE CIT(A) HIMSELF HAS NOT M ADE ANY INQUIRY AND DELETED THE ADDITION WHICH IS LIAB LE TO BE SET-ASIDE AND THE MATTER IS RESTORED BACK TO THE FI LE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 89. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 75 LAKHS WAS MADE. THE ASSESSING OFFICER HELD THAT ON VERIFICATION OF SEIZED PAPER LPS 1/31 LPS-21 PAGE 53-54 LPS 1-1 IT WAS FOUND THAT THE ASSESSEE HAS MADE SET TLEMENT FOR LAND PURCHASED BY HIS MOTHER AT KHASRA NO 63/1/ 1/1 FOR RS. 75 LAKH WHICH HAVE BEEN PAID BY HIM OUT OF UNEXPLAINED SOURCES ACCORDINGLY HE MADE THE ADDIT ION. 90. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE ASSESSEE'S MOTHER HAD PURCHASED THE PROPER TY AT KHASRA NO.63/1/1/1 FOR RS.75 00 000/- AND THE TRANSACTION IS VERIFIABLE FROM HER BOOKS OF ACCOUNT . THE LOOSE PAPER LPS 1/31(REPRODUCED AT PAGE 65 & 66 OF THE ORDER) IS NOT UNDER THE SIGNATURE OR IN THE HAN D WRITING OF THE ASSESSEE AND ACCORDINGLY NO RELIANCE CAN BE PLACED ON SUCH PAPER. THE LOOSE PAPER LPS 1-1 (REPRODUCED AT PAGE 64) OF THE ORDER DID NOT SHOW A NY -: 70: - 70 PAYMENT. IT CLEARLY MENTIONS THAT THERE ARE SOME DEDUCTIONS AND POST DATED CHEQUES OF 45 LAKHS ARE ISSUED. THUS THE SAID PAPER HAS ALSO NOT DISCLOSED ANY PAYMENT MADE BY THE ASSESSEE IN CASH. UNDER SUCH CIRCUMSTANCES THE ADDITION MADE BY THE A.O. I S NOT CORRECT. 91. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 29.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE LD. AR. IT IS NOT IN DISPUTE THAT THE LETTER UNDER REFERENCE IS NOT UNDER THE SIGNATURE OR IN THE HANDWRITING OF THE ASSESSEE AND HENCE IT CANNOT BE RELIED UPON IN ISOLATION. THE SAID LETTER NOWHERE MENTIONS THAT ANY CASH PAYMENT WAS MADE BY THE ASSESSEE OR ANYONE. IT IS FURTHER OBSERVED THAT AS PER -: 71: - 71 DETAILS MENTIONED IN PAGE 64 OF THE ASSESSMENT ORDER THAT NO PAYMENT WAS MADE IN CASH. ON ENQUIRY FROM THE ASSESSEE REGARDING THE PRESENT STATUS OF THE PENDING CASE IT WAS INFORMED THAT THE MATTER IS STILL PENDING IN THE COURT. THIS FACT ALSO ESTABLISHES THAT NO AMOUNT HAS BEEN PAID TOWARDS SUCH SETTLEMENT. THUS AS NO MATERIAL WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE ASSESSEE HAS MADE ANY PAYMENT IN CASH AND HENCE THE ADDITION MADE WITHOUT ANY CORROBORATIVE EVIDENCES CANNOT BE SUSTAINED. THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS. 75 00 000/- IS DELETED. -: 72: - 72 92. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. DURING THE COURSE OF SEARCH IT WAS FOUND THAT THE ASSESSEES MOTHER HAD PURCHASED PROPERTY AT KHASRA NO. 63/1/1/1 FOR RS. 75 LAKHS. LOOSE PAPER MARKED AS LP S WAS FOUND WHICH MENTIONED THAT THERE WAS SOME DEDUCTION AND POST DATED CHEQUES OF RS. 45 LAKHS. JUST BY OBSERVI NG THAT NO MATERIAL WAS BROUGHT ON RECORD TO SUBSTANTIATE T HAT THE ASSESSEE HAS MADE ANY PAYMENT IN CASH. THE LD. CIT( A) HAS NOT CONTROVERTED THE FINDING WITH REGARD TO THE PUR CHASE DEED FOUND DURING COURSE OF SEARCH AND ENTRIES MENT IONED IN THE LOOSE PAPERS MARKED AS LPS1/31. IN THE INTER EST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 93. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 1.75 LAKHS WAS MADE. DURING THE COURSE OF SEARC H ONE SIGNED RECEIPT ACKNOWLEDGING RECEIPT OF RS. 175000/- FROM ASSESSEE FOR CONSTRUCTION OF WALL ON 4.31 ACRE OF LAND WAS FOUND (LPS 1/31 PAGE 26A). TH E EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED AND TH E AMOUNT WAS ADDED AS UNEXPLAINED INCOME. -: 73: - 73 94. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PAPER IS A ROUGH LOOSE PAPER AND THE ASSESSEE HAS NOT MADE ANY SUCH PAYMENT. IT WAS ALSO ARGUED THAT THE AO HAS CLAIMED THAT THE DATE MENTIONED IN THE LEFT HAND SIDE OF THE PAPER IS TH E DATE AND SIGNATURE OF THE RECIPIENT OF THE AMOUNT. HOWEVER ACCORDING TO THE ASSESSEE IT IS MOST UNUS UAL FOR ANY PERSON TO SIGN AND DATE THE TRANSACTION IN A FASHION AS APPEARING IN THE SAID PAPER. THEREFORE HE CONTENDED THAT THE ADDITION MADE IS NOT CORRECT. 95. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 30.3 I HAVE GONE THROUGH THE SEIZED PAPER AS REPRODUCED IN THE ASSESSMENT ORDER. THE NOTATION IN HINDI CLEARLY STATE THAT '1 75 000/- RU ASHOK GOYAL SE LIYE BOUNDRY WALL BANWAI'. THE SIGNATURE AND DATE ARE APPEARING ON THE LEFT SIDE MARGIN OF THE PAPER. THE ASSESSEE DID NOT PROPERLY EXPLAIN THE TRANSACTION RECORDED IN THIS PAPER EITHER DURING THE ASSESSMENT -: 74: - 74 PROCEEDINGS OR DURING APPEAL PROCEEDINGS. THOUGH OPPOSED BY THE ASSESSEE THERE CANNOT BE ANY BETTER ACKNOWLEDGEMENT IN RESPECT OF UNRECORDED TRANSACTIONS. ACCORDINGLY LOOKING TO THE CONSPICUOUS ACKNOWLEDGMENT OF THE RECIPIENT THE ADDITION MADE BY THE AO IS CONFIRMED. THE APPEAL IS DISMISSED ON THIS GROUND. 96. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VIEW O F THE FACT THAT RECIPIENT OF RS. 1.75 LAKHS HAS ACKNO WLEDGED THE PAYMENT MADE BY THE ASSESSEE WHICH WAS NOT FOU ND RECORDED IN THE REGULAR BOOKS OF ACCOUNT. THERE IS NO INFIRMITY IN THE ORDER OF CIT(A) FOR CONFIRMING ADD ITION OF RS. 1.75 LAKHS PAID FOR CONSTRUCTIONS OF BOUNDARY WALL. 97. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 66 96 000/- WAS MADE ON THE BASIS OF LOOSE PAPER NO. LPS 1/24 PAGE 7-9. IT IS AN AGREEMENT BETWEEN SHRI. MOHD SALEEM (SELLER) AND SHRI. ASHOK GOYAL (PURCHASER) FOR RS.66 96 000/- FOR PURCHASE O F 5.58 ACRE OF LAND AT BADWAI (KHASRA NO 29/3). IT ST ATES THAT AN AMOUNT OF RS. 6 01 100/- WAS PAID AS ADVANC E -: 75: - 75 AND RS. 57 94 400/- WILL BE PAID WITHIN 6 MONTHS. T HE ASSESSEE'S REPLY THAT IT WAS PURCHASED BY HIS WIFE SMT. JYOTI GOYAL AND ADVANCE OF RS.19 00 000/- WAS PAID AND DUE TO DISPUTE THE BALANCE WAS NOT PAID AND THE MATTER IS PENDING BEFORE THE COURT WAS NOT ACCEPTED BY THE A.O. A CCORDING TO THE AO THE REPLY OF THE ASSESSEE IS EVASIVE AND AS THE PAYMENT WAS TO BE MADE WITHIN SIX MONTHS THE ASSESSEE MUST HAVE MADE THE PAYMENT AND HENCE HE MADE AN ADDITION OF RS. 66 96 000/-. 98. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PROPERTY WAS PURCHASED BY SMT. JYOTI GOYAL AND NO ADDITION WAS WARRANTED IN THE HANDS OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE AO HAS HIMSELF MENTIONED THAT THE SAID PAPERS RELATE TO SM T. JYOTI GOYAL AND SHE HAS ACCEPTED THAT SHE PURCHASED THE SAID PROPERTY. SHE HAD ALSO CONFIRMED PAYMENT O F RS. 19 LAKHS AS ADVANCE AND IT IS DULY RECORDED IN HER BOOKS. SHE HAS FURTHER CONFIRMED THAT FURTHER PAYMENTS WERE NOT MADE AS THE PROPERTY WAS -: 76: - 76 SUBSEQUENTLY FOUND TO BE IN DISPUTE AND THE SALE OF THE PROPERTY WAS FOUND TO HAVE BEEN STAYED BY THE COURT . 99. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 31.3 I HAVE GONE THROUGH OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE LD. AR. IT IS FOUND THAT THE AO HIMSELF HAS STATED THAT THE SAID LAND WAS PURCHASED BY WIFE OF THE ASSESSEE AND PART PAYMENT WAS MADE BY HER FROM HER BANK ACCOUNT WHICH IS MORE THAN THE AMOUNT OF PAYMENT RECORDED IN THE SEIZED PAPERS. FURTHER THE SALE HAS BEEN STAYED BY THE COURT. UNDER THESE CIRCUMSTANCES IT IS NOT CORRECT ON THE PART OF THE A.O. TO ASSUME THAT THE SUBSEQUENT PAYMENT MUST HAVE BEEN MADE AS PER THE TERMS OF THE AGREEMENT. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SUBSTANTIATE THE PRESUMPTION THAT SUCH PAYMENT HAS -: 77: - 77 BEEN MADE IN CASH AND HENCE THE ADDITION CANNOT BE SUSTAINED. THIS GROUND OF APPEAL IS THEREFORE ALLOWED AND THE ADDITION OF RS. 66 96 000/- IS DELETED. 100. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT ON THE LOOSE PAPER LPS/24 THERE W AS AGREEMENT BETWEEN SHRI MOHD. SALEEM AND ASSESSEE SH RI ASHOK GOYAL FOR PURCHASE OF PROPERTY FOR RS. 66 96 000/-. IT WAS ALSO AGREED BY THE ASSESSEE THAT THE PROPERTY W AS PURCHASED BY HIS WIFE SMT. JYOTI GOYAL AND ADVANCE OF RS. 19 LAKHS WAS PAID HOWEVER DUE TO DISPUTE THE BALA NCE WAS NOT PAID AND THE MATTER WAS PENDING BEFORE THE COUR T. WITHOUT BRINGING ANY MATERIAL ON RECORD THE LD. CI T(A) HELD THAT THE ASSESSEE HAS NOT PAID SUBSEQUENT AMOUNT. B Y FINDING FAULT IN ASSESSING OFFICERS ORDER AND STAT ING THAT THE ASSESSING OFFICER HAS NOT MADE FURTHER INQUIRY THE LD. CIT(A) DELETED THE ADDITION. WE DO NOT FIND ANY MER IT IN THE ACTION OF THE CIT(A). IN THE INTEREST OF JUSTICE T HE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRE SH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. -: 78: - 78 101. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 18 LAKHS WAS MADE. THE ASSESSEE WAS FOUND TO HAVE OBTAINED A POA FOR 2.25 ACRE LAND AT VILLAGE RAT BA D (LPS 1/12 PAGE 7-19). THE AO HELD THAT THIS POA WAS OBTAINED AFTER MAKING THE PAYMENT FOR PURCHASE OF THE SAID L AND AND MADE ADDITION OF RS. 18 00 000/- AS THE PURCHASE CONSIDERATION ON THE BASIS OF THE FOLLOWING NOTHING S ON PAGE-2 OF THE POA 20.11.2007 15+13= 18 SH. LELA KR ISHNA 102. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE AO WAS INFORMED THAT THE POA WAS WITHOUT CONSIDERATION AND FURTHER THAT NO ACTIO N WAS TAKEN BY THE ASSESSEE IN PURSUANCE OF SUCH POA. IT WAS CONTENDED THAT NO NOTING AS MENTIONED BY THE AO WAS FOUND. THE POA CATEGORICALLY STATES THAT IT IS 'PRATIPHAL RAHIT' I.E WITHOUT CONSIDERATION. THE SA ID POA CONTAINED FULL NAME AND ADDRESS OF THE PERSON WHO HAS GIVEN IT. BUT THE A.O. HAS MADE THE ADDITIO N WITHOUT CONDUCTING ANY ENQUIRY. FURTHER EVEN PRESUMING THAT THERE WAS A MENTION OF 15+ 13=28 ON SOME PAPER THE SAME COULD NOT HAVE BEEN READ AS PAYMENT OF RS.18 LAKH AS THE SUM TOTALS TO 28 AND -: 79: - 79 NOT 18. IT COULD HAVE BEEN DETAILS OF EXPENSES REQUIRED FOR REGISTRATION OF THE SAID POA. 103. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 32.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE LD. AR. THE AO HAS NOT BROUGHT FORTH ANY MATERIAL TO SUBSTANTIATE THAT THE POA WAS OBTAINED BY THE ASSESSEE AFTER PAYMENT OF RS. 18 00 000/-. IT IS ALSO NOTED THAT THE ASSESSEE HAS NOT ACTED UPON THE SAID POA WHICH HAS NOT BEEN NEGATED BY THE AO. UNDER THE CIRCUMSTANCES THE ADDITION IS NOT JUSTIFIED AND THEREFORE THIS GROUND OF APPEAL IS ALLOWED. THE ADDITION OF RS. 18 00 000/- IS DELETED. 104. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT ADDITION WAS MADE ON THE BASIS OF POWER OF ATTORNEY OBTAINED BY THE ASSESSEE WHICH WAS FOUND DURING -: 80: - 80 COURSE OF SEARCH IN RESPECT OF LAND AT VILLAGE RATB AD. THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING THAT THE A SSESSING OFFICER HAS NOT MADE ANY INQUIRY. AS PER OUR CONSID ERED VIEW ONUS IS ON THE ASSESSEE TO PROVE THAT EVEN TH OUGH POWER OF ATTORNEY WAS FOUND BUT ACTUALLY NOTHING WA S PAID AND FOR THIS PURPOSE HE CAN PRODUCE THE PERSON WH O HAS EXECUTED POWER OF ATTORNEY IN FAVOUR OF THE ASSESSE E. ORDER PASSED BY THE LD.CIT(A) IS DEVOID OF ANY MERIT. ACC ORDINGLY THE SAME IS SET-ASIDE AND MATTER IS RESTORED BACK T O THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH AFTER GIVI NG DUE OPPORTUNITY TO THE ASSESSEE. 105. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 51 LAKHS WAS MADE. THIS ADDITION IS BASED ON LOOSE PAPER NO. LPS 1/6 PAGE 60 AND LPS 1 PAGE-I. THIS LOOSE PA PER IS A LETTER WRITTEN BY THE ASSESSEE TO SHRI BRIJESH SHUK LA WHEREIN THE ASSESSEE HAS STATED THAT HE WILL COME T O BHOPAL ON 31.3.2008 AND SHRI SHUKLA SHOULD KEEP RS. 47 00 000/- READY. A FURTHER NOTING ON SEIZED PAPER LPS 1 PAGE 1 STATES THAT RS.4 00 000/- BRIJESH SHUKLA OLD DUES. THE AO HAS HELD THAT CASH OF ASSESSEE OF RS.47 00 000/- WAS KE PT WITH SH. BRAJESH SHUKLA AND HE WAS FURTHER TO RECEIVE -: 81: - 81 RS.4 00 000/- ON SOME OTHER ACCOUNT FORM HIM AND ACCORDINGLY HE MADE AN ADDITION OF RS.51 00 000/- AS UNDISCLOSED INCOME OF THE ASSESSEE. 106. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE INFERENCE DRAWN BY THE A.O. IS NOT CORRECT . THE NOTINGS ON THE PAPER CLEARLY STATE AS UNDER:- ' MAI 31.3.2008 KO BHOPAL AAUNGA KRIPYA NASEEM KE LIYE 4700000 RUPAI TAIYAAR RAKHNA.PAHLE 1 ACRE KI REGISTREE KARA LE ..... THUS IT WOULD BE OBVIOUS THAT THE MONEY WAS TO BE RECEIVED FROM SHRI BRAJESH AND TO BE PAID TO MR. NASEEM TOWARDS REGISTRATION OF I ACRE OF LAND. THUS IT WAS A TRANSACTION BETWEEN THOSE TWO PARTIES WHICH WAS BEING COORDINATED /ASSISTED BY THE ASSESSEE. THE SAID PAPER NOWHERE INDICATES THAT THE AMOUNT WAS KEPT BY THE ASSESSEE AS ALLEGED BY THE AO. AS REGARDS BALANCE OF RS. 4 LAKH IT WAS STATED THAT IT RELATES TO PENDING COMMISSION WHICH THE ASSESSEE HAS NOT RECEIVED TILL DATE. THE AO HAD -: 82: - 82 NOT BROUGHT OUT ANY REASON FOR NOT ACCEPTING THE SAID EXPLANATION AND HAS MADE ARBITRARY ADDITION. 107. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 33.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE LD. AR. THE LETTER UNDER REFERENCE ADDRESSED TO SHRI. BRIJESH SHUKLA CLEARLY MENTIONS THAT 'NAIRN KE LIYE 47 00 000/- TAIYAAR RAKHNA'. THUS THE ONLY CONCLUSION THAT CAN BE DRAWN IS THAT RS. 47 00 000/- WAS TO BE PAID TO SHRI NAIM BY SHRI BRAJESH SHUKLA. FURTHER AS REGARDS MENTION OF RS. 4 00 000/- THERE IS NO EVIDENCE TO HOLD THAT IT WAS RECEIVED BY THE ASSESSEE. THERE IS NO REASON TO DISBELIEVE THE ASSESSEE'S SUBMISSION THAT IT IS A DEMAND OF THE ASSESSEE FOR COMMISSION WHICH WAS NOT ACCEPTED/ PAID BY SAID PERSON. UNDER THESE CIRCUMSTANCES THE ADDITION WAS NOT JUSTIFIED -: 83: - 83 AND THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION MADE OF RS. 51 00 000/- IS DELETED. 108. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. THE ADDITION WAS MADE ON THE BASIS OF LOOS E PAPERS MARKED AS LPS-1/6 PAGE 60 IN LPS-1/ PAGE 1. THE ADDITION WAS MADE ON THE BASIS OF NOTINGS ON LOOSE PAPERS. THE ASSESSEE WAS TO COLLECT RS. 47 LAKHS FROM SHRI BRIJESH SHUKLA OF BHOPAL. THE LD. CIT(A) HAS DELETED THE AD DITION WITHOUT CONTROVERTING THE FINDINGS OF THE ASSESSING OFFICER NOR ANY CORROBORATIVE MATERIAL WAS BROUGHT ON RECOR D TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE THAT AMOUNT WAS NOT ACTUALLY RECEIVED BY HIM. NEITHER SHRI BRIJESH SHUK LA WAS PRODUCED NOR ANY CONFIRMATION WAS FILED. ACCORDINGL Y THERE IS NO MERIT IN THE ACTION OF THE CIT(A). IN THE INT EREST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 109. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 75 000/- WAS MADE. THE AO HAS OBSERVED THAT AS PER LOOSE PAPER NO. LPS 1/6 PAGE 59 THE ASSESSEE HAS GIVEN A LOAN OF -: 84: - 84 RS. 50 000/- TO SHRI ASHRAF AND RS. 25 000/- TO SHR I S.K.RAI BUT HE COULD NOT SATISFACTORILY EXPLAIN THE SAME. THEREFORE HE MADE THE ADDITION. 110. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SEIZED PAPER IS A LETTER UNDER T HE SIGNATURE OF THE ASSESSEE ADDRESSED TO SHRI ASHRAF BHAI AND AS MAY BE APPRECIATED FROM THE NOTINGS IT REFERS TO A CLAIM AND NOT ACTUAL OUTFLOW OF FUNDS. IT SAYS THAT 'AFSAR BHAI NE APNE PAKSH MAI FAISLA KARE NE KE LIYE 40000 RISHWAT AUR 10000 FEES AAPKE NAAM SE MANGHI THI .... '. IT WAS CONTENDED THAT SINCE NO PAYMENT WAS MADE BY THE ASSESSEE NO ADDITION WAS CALLED FOR. AS REGARD S THE LOAN OF RS. 25 0001- TO SHRI S.K.RAI IT WAS CONTEN DED THAT THE SAID PAPER DOES NOT REFLECT ANY PAYMENT MA DE BY THE ASSESSEE OR MADE DURING THE YEAR. THUS NO ADDITION WAS WARRANTED. 111. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- -: 85: - 85 34.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE LD. AR. IT IS SEEN THAT THE SAID PERSON HAS DEMANDED AN AMOUNT OF RS.50 000/-. HOWEVER THERE IS NO MENTION THAT ANY SUCH AMOUNT WAS PAID BY THE ASSESSEE. AS REGARDS PAYMENT OF RS. 25000/- THERE IS NO MATERIAL TO SUBSTANTIATE THAT THE TRANSACTION WAS MATERIALIZED AND THAT THE ASSESSEE HAS MADE ANY PAYMENT TO THE SAID PERSON DURING THE YEAR. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION MADE OF RS.50 000/- AND OF RS.25 000/- IS DELETED. 112. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF LOOSE PAPER LPS-1/6 PAGE 59 WHICH INDICATED THAT THE ASS ESSEE HAS GIVEN LOAN OF RS. 50 000/- TO SHRI ASHRAF AND R S. 25 000/- TO SHRI S.K. RAI. WITHOUT CONTROVERTING TH E FINDING OF ASSESSING OFFICER THE LD. CIT(A) HAS DELETED TH E ADDITION. WE DO NOT FIND ANY JUSTIFICATION IN THE ACTION OF T HE CIT(A). IN THE INTEREST OF JUSTICE THE MATTER IS RESTORED BACK TO THE -: 86: - 86 FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE O PPORTUNITY TO THE ASSESSEE. 113. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 7.50 LAKHS WAS MADE. THIS ADDITION IS BASED ON LOOSE PAPER NO. LPS 1/6 PAGE 56. THE IMPUGNED PAPER IS A LETTER ISSUED IN THE NAME OF SHRI ASHOK GOYAL ADDRESSED TO SHRI AKHILENDRA JI DEMANDING RS. 5 00 000/- AND RS. 2 50 000/- TOWARDS SOME SERVICES RENDERED TO THE SAID PERSON. THESE AMOUNTS WERE ADDED AS INCOME OF THE ASSESSEE. 114. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PAPER WAS SEIZED FROM KILOL PARK OFFI CE AND NOT FROM THE CONTROL OR POSSESSION OF THE ASSES SEE. IT IS NEITHER IN THE APPELLANTS HANDWRITING NOR BE ARS HIS SIGNATURE. IT DOES NOT REFLECT ANY FLOW OF FUND S RATHER IT IS DEMANDING THE MONEY. HENCE NO ADDITIO N IS WARRANTED ON PRESUMPTIVE BASIS. 115. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 35.3 I HAVE GONE THROUGH THE .ASSESSMENT -: 87: - 87 ORDER AND SUBMISSIONS OF THE LD. AR. ADMITTEDLY THERE IS NO SIGNATURE OF THE ASSESSEE ON THE PAPER. IT SHOWS THAT ONLY SOME CLAIM WAS RAISED AGAINST THE SAID PERSON FOR PAYMENT OF DUES. THERE IS NO POSITIVE PROOF OF PAYMENT OF THE MONEY. UNDER SUCH CIRCUMSTANCES NO ADDITION IS POSSIBLE MERELY ON TH E BASIS OF SUCH UNSUBSTANTIATED PAPER. THE AO HAS FAILED TO BRING ANY OTHER MATERIAL ON RECORD TO SUBSTANTIATE THE ADDITION AND ACCORDINGLY THE ADDITION MADE CANNOT BE SUSTAINED. THEREFORE THIS GROUND IS ALLOWED AND THE ADDITION OF RS. 7 50 000/- IS DELETED. 116. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT DURING THE COURSE OF SEARCH LOOSE PAPER LPS-1/6 PAGE 56 INDICATED THAT LETTER WAS ISSUED IN THE NAME OF ASHOK GOYAL DEMANDING RS. 7 50 000/- TOWARD S SOME SERVICES RENDERED TO SHRI AKHILENDRA. THIS AMO UNT WAS ADDED BY THE ASSESSING OFFICER IN ASSESSEES IN COME. 117. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION JUST BY OBSERVING THAT THERE IS NO POSITIV E PROOF OF PAYMENT OF MONEY. WE DO NOT FIND ANY MERIT IN THE A CTION OF -: 88: - 88 CIT(A). ONUS IS ON THE ASSESSEE TO PRODUCE THE CONC ERNED PERSON AND SUBSTANTIATE NON-PAYMENT OF ANY AMOUNT B Y SUCH PERSON. THE ASSESSEE HAS NEITHER PRODUCED SHRI AKHILENDRA NOR FILED ANY OF HIS CONFIRMATION TO SUP PORT THE CLAIM THAT THE AMOUNT WAS NOT ACTUALLY PAID BY THE ASSESSEE. IN THE INTEREST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 118. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 1 33 000/- WAS MADE ON THE BASIS OF LOOSE PAPER NO. LPS 1/6 PAGE 14 WHICH IS AN IDENTICAL LE TTER ADDRESSED TO SHRI AKHILENDRA JI DEMANDING RS. 2 00 000/- & RS. 1 33 000/- TOWARDS SOME SERVICES RENDERED TO THE SAID PERSON. 119. THE NATURE OF THE PAPER THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE ASSESSEE ARE IDENTI CAL TO THE ISSUE DECIDED AT PARA 35 IN GROUND NO.18. IN THIS CASE ALSO ONLY A CLAIM WAS LODGED AND NO OTHE R EVIDENCES WERE FOUND OR BROUGHT FORTH TO HOLD THAT THE SAME WAS ACCEPTED AND THE MONEY WAS ACTUALLY RECEIVED. UNDER SUCH CIRCUMSTANCES NO ADDITION IS -: 89: - 89 POSSIBLE. THEREFORE THIS GROUND IS ALLOWED AND THE ADDITION OF RS. L 33 000/- IS DELETED. 120. IN VIEW OF OUR ABOVE DISCUSSION IN PARA 116 THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DEC IDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 121. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 5 36 85 441/- WAS MADE WITH REFERENCE TO LOOSE PAPER LPS-4 PAGE NO.1. THIS ADDITION WAS MADE ON TH E BASIS OF LOOSE PAPER LPS 4 PG NO 1. THE AO OBSERVED THAT THE ENTRIES CONTAINED IN THE LEFT HAND SIDE REPRESENTS CASH RECEIVED BY THE ASSESSEE AND THE RI GHT HAND SIDE SHOWS THE PAYMENTS. THOUGH THE TOTAL OF A LL THE ENTRIES ON THE LEFT SIDE WAS RS.6 54 10 441/- THE AO MADE THE ADDITION OF RS.4 36 85 441/- BECAUSE ADDITIONS WITH REFERENCE TO SOME OF THE ENTRIES WER E MADE SEPARATELY. 122. BEFORE THE LD. CIT(A) THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT ALL THE PAPERS ON THE BASIS OF WHICH THE ADDITION WAS MADE RELATE TO THE ASSESSEE'S ACTIVITY OF CREATING CO-ORDINATION BETWE EN -: 90: - 90 VARIOUS PERSONS AND THEY DO NOT RELATE TO HIM. THES E PAPERS GIVE A RECORD OF THE INTER SE TRANSACTIONS BETWEEN THE PARTIES AND THE INFERENCES DRAWN BY THE AO ARE NOT CORRECT AND ARE BASED ON CONJECTURES AND SURMISES. IN ORDER TO SUPPORT HIS CONTENTIONS GIVI NG PAPERS WISE REPLY THE ID. AR HAS STATED THAT THE DETAILS MAINTAINED BY THE ASSESSEE REPRESENT MEMORANDUM RECORD AS AN AGENT FOR TEMPORARY PURPOSES AT THE RELEVANT POINT OF TIME AND HE IS NO T IN A POSITION TO REMEMBER THE DETAILS OF TRANSACTIONS AND NAMES AND ADDRESSES OF SUCH PERSONS. THE LD. COUNSE L HAS CONTENDED THAT THE ASSESSEE HAS GOT A LOT OF EXPERIENCE IN LAND DEALINGS FOR WHICH LOT OF PEOPLE APPROACH HIM AND HE OFFERS VARIOUS SERVICES TO THEM . THIS FACT IS APPARENT FROM THE LOOSE PAPER. HE STAT ED THAT IN THE PROCESS THE ASSESSEE RECEIVES NOMINAL COMMISSION FOR RANDOM SERVICES. IT WAS FURTHER SUBMITTED THAT SOME OF THE PAPERS RELATE TO SOME OT HER PERSON LIKE SHRI AVTAR SINGH SHRI RAJESH RAJORA I N WHOSE CASE ACTION U/S 153C WAS SEPARATELY INITIATED. THE NARRATION GIVEN IN SOME OF THE PAPERS PATENTLY -: 91: - 91 SHOWS THAT THE TRANSACTIONS ARE IN FUTURE TENSE AND RELATE TO OTHERS. IT WAS FURTHER CONTENDED THAT ANY ADDITION APART FROM BUSINESS PROFITS CAN BE MADE ONLY UNDER CHAPTER VI OF THE ACT UNDER SECTIONS 68 69 69 A 69B 69C AND 69D AND NONE OF THESE SECTIONS ARE APPLICABLE TO THE PRESENT CASE WITH REFERENCE TO THESE PAPERS. THEREFORE THE ASSESSEE REQUESTED THAT THE ADDITION MADE BY THE AO IS NOT CORRECT AND ACCORDINGLY IT MAY BE DELETED. THE ASSESSEE HAS ALSO RELIED ON VARIOUS CASE-LAWS TO PR ESS HIS POINT. 123. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 37.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE LD.AR AND THE VARIOUS JUDICIAL PRONOUNCEMENTS CITED ON BEHALF OF THE ASSESSEE. I HAVE ALSO GONE THROUGH THE FOLLOWING LOOSE PAPERS REFERRED TO BY THE AO FOR THE PURPOSE OF CORROBORATING THE ENTRIES IN THE SAID -: 92: - 92 SEIZED PAPER: A LPS 1/6 PAGE 1 - 3 B LPS 1/6 PAGE 21 C LPS 1/6 PAGE 60 D LPS 1/6 PAGE 59 E LPS 1/60 PAGE 27-37 F LPS 1/62 PAGE 55 I HAVE FURTHER GONE THROUGH THE SEIZED PAPER LPS 4 PAGE 1 AND VARIOUS ENTRIES ARE FOUND RECORDED THEREIN. THOUGH THE A.O. HAS INFERRED THAT SOME TRANSACTIONS MENTIONED IN THE LOOSE PAPER LPS-4 PAGE 1 WERE ALSO FOUND RECORDED IN OTHER LOOSE PAPERS HE DID NOT COMMENT UPON THE NATURE OF THE IMPUGNED LOOSE PAPER. THE ASSESSEE'S CLAIM IS THAT THE LOOSE PAPER RELATES TO VARIOUS TRANSACTIONS RELATING TO OTHER PERSONS DONE THROUGH HIM. THE A.O. HAS SIMPLY TRIED TO SUBSTANTIATE THE INTERLACING AND INTERLINKING OF THE TRANSACTIONS FOUND RECORDED IN OTHER LOOSE PAPERS WITH THIS PAPER. BUT HE DID -: 93: - 93 NOT COME TO ANY POSITIVE CONCLUSION THAT IT REPRESENTS ANY STATEMENT OF ACCOUNT OF UNRECORDED BUSINESS TRANSACTIONS CARRIED ON BY THE ASSESSEE. THE FUNDAMENTAL REQUIREMENT FOR MAKING ANY ADDITION ON THE BASIS OF ANY LOOSE PAPER IS FORMATION OF OPINION ABOUT THE NATURE OF THE LOOSE PAPER ON THE BASIS OF SUPPORTING MATERIAL. IN THIS CASE THE LOOSE PAPER STATES AT SEVERAL PLACES 'LENA' 'RECEIVABLE FROM' OR 'DENA' 'PAYABLE TO' 'KHARIDNA HAI' YET TO BE PURCHASED' ETC. AGAINST THE NAMES OF THE PERSONS MENTIONED AGAINST THE ENTRY. AT SOME PLACES COMPLETE NAMES AND TELEPHONE NUMBERS ARE GIVEN. HOWEVER NO INQUIRY WAS GOT CONDUCTED BY THE A.O. ADMITTEDLY THE PRESUMPTION LAID UNDER THE PROVISIONS OF THE ACT ARE MEANT FOR THE INTEREST OF REVENUE. BUT IN ORDER TO STAND THE TEST OF APPEAL SUCH -: 94: - 94 PRESUMPTION HAS TO BE INVOKED ALONG WITH THE RESULT OF POSSIBLE INQUIRY TO BRING OUT AN IRRESISTIBLE CONCLUSION THAT THE NATURE OF THE TRANSACTION RECORDED IN THE PAPER IS NOTHING BUT UNDISCLOSED INCOME. NO SUCH EFFORT WAS MADE BY THE A.O. THE ASSESSEE'S CONTENTION THAT PAPER RELATES TO TRANSACTIONS OF DIFFERENT PERSONS WAS NOT EFFECTIVELY NEGATED. THE A.O. HAS HELD THAT THE ADDITIONS WITH RESPECT TO SOME OF THE TRANSACTIONS RECORDED IN THE PAPER WERE SEPARATELY MADE BUT HE DID NOT IDENTIFY THE PARTICULARS OF THE TRANSACTIONS THAT WERE SEPARATELY CONSIDERED. CLOSE STUDY OF THE PAPER REVEALS THAT IF DETAILS OF CASH RECEIVED AND PAID ARE CONSIDERED TOGETHER THERE WOULD BE CASH SURPLUS OF RS.3 09 68 941/- WHEREAS THE TOTAL CASH FOUND WITH THE ASSESSEE AND HIS FAMILY DURING THE COURSE OF SEARCH WAS -: 95: - 95 ONLY RS. 1 04 408/-. THERE IS NO MATERIAL AVAILABLE ON RECORD TO HOLD THAT THIS CASH WAS INVESTED IN ANY UNRECORDED ASSETS. UNDER THESE CIRCUMSTANCES THE ASSESSEE'S CLAIM THAT THE PAPER RELATES TO TEMPORARY TRANSACTIONS USED FOR THE PURPOSE OF MEMORY OF VARIOUS TRANSACTIONS UNDERTAKEN BY HIM FOR OTHERS CARRIES SUBSTANTIAL FORCE. IN ORDER TO SUPPORT HIS CONTENTION THE LD. AR HAS PLACED RELIANCE ON VARIOUS LOOSE PAPERS ( LPS 1/27 PAGE 6 LPS 1/27 PAGE 5 LPS 1/6 PAGE 60 LPS 1/61 PAGE 98 PARA 59.3 OF THE QUESTIONNAIRE ETC.) AND ENTRY IN THE SAID SEIZED PAPER LPS 4 PAGE 1. PERUSAL OF THESE PAPERS SHOWS THAT THESE PAPERS RELATE TO TRANSACTIONS COORDINATED BY THE ASSESSEE. THEREFORE THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE. THIS GROUND OF APPEAL -: 96: - 96 ACCORDINGLY IS ALLOWED AND THE ADDITION OF RS. 4 36 85 441/- IS DELETED. 124. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. DURING THE COURSE OF SEARCH LOOSE PAPERS MARKED LPS-4 PAGE 1 WHICH INDICATED TRANSACTION FOR PURCH ASE OF PROPERTY. CONTENTION OF ASSESSEE WAS THAT THESE LOO SE PAPERS RELATE TO OTHER PERSONS AND THE TRANSACTIONS WERE MERELY DONE THROUGH HIM. AS THE ASSESSEE WAS UNABLE TO SUBSTANTIATE THE TRANSACTION THE ADDITIONS WERE MA DE BY THE ASSESSING OFFICER IN HIS HANDS. THE LD. CIT(A) DELETED THE ADDITION WITHOUT CONTROVERTING DETAILED FINDING REC ORDED BY THE ASSESSING OFFICER WITH RESPECT TO LPS-1/6 PAGE S 1 TO 3 21 60 AND LPS-1/60 PAGE 27 TO 37 AND LPS 1/62 PAGE 55. THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING TH AT THESE PAPERS RELATE TO TRANSACTION OF DIFFERENT PERSONS A ND NOT TO THE ASSESSEE. SINCE THE DOCUMENTS WERE FOUND IN THE POSSESSION OF THE ASSESSEE ONUS WAS ON THE ASSESSE E TO PROVE THE TRANSACTIONS RECORDED IN THE SEIZED DOCUM ENTS DO NOT PERTAIN TO HIM AND IF IT IS CONTENDED THAT TRAN SACTIONS WERE PERTAINING TO OTHER PERSONS THE ASSESSEE IS R EQUIRED TO PRODUCE SUCH OTHER PERSONS OR THEIR CONFIRMATIONS T O THE -: 97: - 97 SATISFACTION OF THE ASSESSING OFFICER. THERE IS NO MERIT IN THE ACTION OF THE CIT(A) FOR DELETING THE ADDITION WITH OUT CONTROVERTING THE FINDING OF ASSESSING OFFICER. THE LD. CIT(A) HAS WRONGLY CASTED BURDEN ON THE ASSESSING OFFICER WHEREAS THE PRIMARY ONUS LIES ON THE ASSESSEE TO PR OVE THAT TRANSACTION ENTERED ON THE LOOSE PAPERS WAS NOT HIS TRANSACTIONS NOR HE HAS PAID ANYTHING. IN THE INTER EST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 125. IN THE ASSESSMENT YEAR 2008-09 ADDITIONS OF RS. 1 65 75 000/- RS. 9 25 000/- RS. 38 29 750/- RS. 46 36 938/- AND RS. 1 20 000/- WERE MADE. 126. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 42.1 ALL THE ABOVE GROUNDS MENTIONED AT PARA 38 TO 42 RELATE TO SAME LOOSE PAPER NO. LPS 4 PAGE 1 AND ADDITIONS HAVE BEEN MADE FOR VARIOUS REASONS MENTIONED IN PARA 37.1 OF THIS ORDER. THE SUBMISSIONS OF THE ASSESSEE ARE AVAILABLE IN PARA 37.2 OF THE ORDER. FOR THE REASONS MENTIONED IN PARA 37.3 OF THIS ORDER ALL THESE -: 98: - 98 GROUNDS ARE ALLOWED AND ADDITIONS OF RS. 1 65 75 000/- 9 25 000/- 38 29 750/- 46 36 938/- & 1 20 000/- ARE DELETED. 127. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THE LD. CIT(A) HAS NOT GIVEN ANY JUSTIFICATION OR REASONING FOR DELETION OF ADDITION. THUS THE ORDER OF CIT(A) ON THIS PART IS DEVOID OF ANY MERIT. IN THE INTEREST OF JUSTICE TH E MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRE SH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 128. WE HAVE ALREADY DISCUSSED THE PARA 37.3 OF CIT(A)S ORDER WHILE DISCUSSING ADDITION OF RS. 4 36 85 441 /- MADE IN THE ASSESSMENT YEAR 2008-09. FOLLOWING THE SAME REASONING GIVEN THEREIN WE SET ASIDE THE ORDER OF CIT(A) ON THIS GROUND ALSO AND THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORT UNITY TO THE ASSESSEE. 129. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 3 92 04 069/- WAS MADE ON THE BASIS OF LOOSE PAPER LPS 2 PAGE 24. THOUGH THE REASONS FOR SUCH ADDITION ARE S TATED AS MENTIONED IN ANNEXURE-A OF THE ORDER NO SUCH ANNEX URE IS -: 99: - 99 FOUND ATTACHED TO THE ORDER. THE SAID PAPER CONTAIN S A NARRATION 130680 SQ FT *300=3 92 04 000/- . THE A.O. HAS HELD THIS AS THE UNEXPLAINED INCOME OF THE ASSESSEE. 130. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THIS PAPER WAS NOT RECOVERED FROM THE ASSESSEE HENCE NO ADDITION SHOULD HAVE BEEN MADE IN HIS CASE WITHOUT CORROBORATIVE EVIDENCE. IT WAS FURTHER EXPLAINED THAT THE SAID PAPER WAS A PROPOSAL GIVEN TO MR. KHURANA WHO INTENDED TO SALE SOME LAND AND WANTED TO PURCHASE ANOTHER LAND. IN THIS RESPECT AFFIDAVIT WAS ALSO FILED BY THE ASSESSEE IN THE PROCEEDINGS U/S.153C IN THE CASES OF SHRI RAJESH RAJORA AND SHRI KHURANA STATEMENTS OF THE ASSESSEE WERE ALSO RECORDED~ BY THE DEPARTMENT IN THE SAID CASES. THEREFORE ACCORDING TO THE AO THE ADDITIONS MADE ARE NOT CORRECT. 131. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 43.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND THE -: 100: - 100 SUBMISSIONS OF THE LD. AR. UNDISPUTEDLY THIS PAPER WAS NOT RECOVERED FROM THE POSSESSION OR CONTROL OF THE ASSESSEE. IT DOES NOT REFLECT ANY FINANCIAL TRANSACTIONS THAT COULD BE CORROBORATED TO THE ASSESSEE'S AFFAIRS. IT CONTAINS SOME CALCULATIONS AND EVEN DATES ARE NOT THERE. THUS THE EXPLANATION OF THE ASSESSEE GIVEN DURING ASSESSMENT PROCEEDINGS IS QUITE PROBABLE. THIS ADDITION WAS STATED AS MADE ON THE BASIS OF DETAILED DISCUSSION IN THE CASE OF DR. RAJESH RAJORA BUT EVEN BRIEF REASONS ARE NOT GIVEN HERE. UNDER THESE CIRCUMSTANCES WITHOUT OFFERING ANY COMMENTS ON MERITS OF THE CASE OF DR. RAJESH RAJORA I AM OF THE CONSIDERED OPINION THAT NO ADDITION IS CALLED FOR IN THIS CASE. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION IS DELETED. -: 101: - 101 132. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT ADDITION WAS MADE ON THE BASIS OF ENTRIES ON THE LOOSE PAPER MARKED AS LPS-2 PAGE 24. REASONS FOR SUCH ARE STATED TO BE MENTIONED IN ANNEXURE A OF AS SESSING OFFICERS ORDER. THE LD. CIT(A) FOUND THAT NO SUCH ANNEXURE A WAS ATTACHED TO THE ORDER. A CATEGORICAL FINDING HAS BEEN RECORDED BY THE LD.CIT(A) TO THE EFFECT THAT LPS-2 PAGE 24 WAS NOT RECOVERED FROM THE POSSESSION OR CONTROL OF THE ASSESSEE AND THAT IT DOES NOT REFLECT ANY FINANCIAL TRANSACTION THAT COULD BE CORROBORATED TO THE ASSES SEES AFFAIRS. AS PER OBSERVATION OF CIT(A) IT APPEARS T HAT THIS ADDITION WAS MADE ON THE BASIS OF DETAILED DISCUSSI ON IN THE CASE OF RAJESH RAJORA BUT EVEN BRIEF REASONS ARE N OT GIVEN IN THE ORDER OF THE ASSESSEE. WE ALSO FOUND THAT TH ERE IS NO ANNEXURE A IN THE ORDER OF ASSESSING OFFICER TO S TATE THE REASONS FOR SUCH ADDITION. EVEN THE APPEAL FILED B Y DEPARTMENT DID NOT CONTAIN ANNEXURE A WITH ASSESS ING OFFICERS ORDER. AS NO SUCH ANNEXURE IS ANNEXED WIT H THE ORDER OF ASSESSING OFFICER WE DO NOT FIND ANY INFI RMITY IN THE ORDER OF CIT(A) FOR DELETING THE ADDITION MADE IN THE -: 102: - 102 HANDS OF THE ASSESSEE. ACCORDINGLY NO INTERFERENCE IS REQUIRED IN THIS PART OF CIT(A)S ORDER. 133. IN THE ASSESSMENT YEAR 2008-09 AN ADDITION OF RS. 25 LAKHS WAS MADE. THE ADDITION IS BASED ON LOO SE PAPER NO. LPS 3- PAGE 39 SEIZED FROM THE PREMISES O F MR. VINOD SHARMA WHEREIN IT IS STATED THAT THE ASSESSEE HAS RECEIVED RS.30 00 000/- TOWARDS 3.55 ACRE OF LAND AT MINDORI. THE SAID AMOUNT WAS ADDED AS INCOME OF THE ASSESSEE. 134. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PAPER IS A RECEIPT ISSUED BY SHRI ASH OK GOYAL THE ASSESSEE MENTIONING THAT HE HAS RECEIVE D RS. 25 LAKHS ON ACCOUNT OF MR. MALVIYA. THOUGH COPY OF THE PAPER WAS NOT SUPPLIED TO THE ASSESSEE THE ASSESSEE HAD TAKEN INSPECTION OF THE SAID PAPER AND HAD NOTED THE EXACT WORDINGS MENTIONED IN THE PAPER WHICH READS AS UNDER: 25 00 000/- RUPAI KEWAL PRAPT MNDORI BHUMI KE 3.55 ACRE MALVIYA PETE ON THE BASIS OF THIS STATEMENT THE LD. AR CONTENDE D THAT THE SAID PAPER ITSELF ESTABLISHES THAT THE AMO UNT -: 103: - 103 WAS RECEIVED BY THE ASSESSEE ON BEHALF OF MR. MALVI YA HENCE NO ADDITION WAS WARRANTED IN THE ASSESSEES CASE. IT WAS ALSO CONTENDED THAT THE SOURCE FROM WH ICH SUCH MONEY WAS RECEIVED IS WELL ESTABLISHED AND HENCE IT CANNOT BE TREATED AS UNEXPLAINED INVESTME NT OR EXPENSE IN THIS CASE. 135. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 44.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND THE SUBMISSIONS OF THE ASSESSEE. IT IS FOUND THAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAD EXPLAINED THAT THE SAID MONEY WAS RECEIVED ON ACCOUNT OF MR. MALVIYA. THIS SUBMISSION WAS NOT NEGATED BY THE AO. EVEN OTHERWISE SUCH RECEIPT WILL CONSTITUTE INCOME ONLY WHEN THE SAID LAND IS SOLD. NO MATERIAL WAS BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE -: 104: - 104 THAT ANY SUCH LAND WAS SOLD BY THE ASSESSEE. THUS THE RECEIPT CANNOT BE HELD TO BE OF THE INCOME. THE ADDITION MADE BY THE AO IS THEREFORE DELETED. 136. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT LOOSE PAPERS WERE SEIZED FROM THE PREMISES OF SHRI VINOD SHRAMA WHEREIN IT WAS STATED THAT TH E ASSESSEE HAS RECEIVED RS. 30 LAKHS TOWARDS 3.55 ACR ES OF LAND AT NANDORI. THE LD. CIT(A) DELETED THE ADDITIO N BY STATING THAT THE SAID MONEY WAS RECEIVED BY HIM ON ACCOUNT OF SHRI MALVIYA. NEITHER SHRI MALVIYA WAS PRODUCED BEFORE THE ASSESSING OFFICER NOR ANY CONFIRMATION WAS FILE D TO SUBSTANTIATE TO STATE THAT THE AMOUNT WAS RECEIVED BY THE ASSESSEE ON BEHALF OF/ON ACCOUNT OF SHRI MALVIYA. ACCORDINGLY WE DO NOT FIND ANY JUSTIFICATION IN TH E ACTION OF THE CIT(A) FOR DELETING THE SAME. IN THE INTEREST O F JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . 137. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 33.25 LAKHS WAS MADE. DURING THE COURSE OF SEARCH ONE -: 105: - 105 SMALL SLIP CONTAINING JOTTINGS AS 1.33 * 2500000 = 33 25 000/- WAS SEIZED AND MARKED FOR IDENTIFICATIO N AS LPS 1/61 PAGE 90. THE A.O. HAS HELD THAT THIS SLIP REPR ESENTS SALE VALUE OF SOME LAND AND ADDED THE SAME AS UNDIS CLOSED INCOME. 138. BEFORE THE LD. CIT(A) THE ID.AR HAS SUBMITTED THAT AS PER THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AO IT MIGHT BE A PROPOSAL FOR SALE/PURC HASE OF A LAND FOR RS.33 25 000/- IN WHICH 325000/- WAS TO BE PAID AT THE TIME OF AGREEMENT AND BALANCE WAS TO BE PAID WITHIN 45 DAYS. NO OTHER INFERENCE COULD BE DRAWN FROM THE PAPER. IT IS VERY CUSTOMARY IN THE T RADE THAT WHENEVER A PROPOSAL COMES/ OR IS GIVEN THIS TY PE OF BASIC INFORMATION IS NOTED AND THIS DOES NOT CER TIFY ANY TRANSACTION. THEREFORE THE ADDITION MADE BY TH E AO IS ARBITRARY. 139. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION S :- 46.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE ASSESSEE AND THE -: 106: - 106 RELEVANT SEIZED PAPER. THE LOOSE PAPER CLEARLY SHOWS SOME CALCULATION WITHOUT ANY DATE OR NAME. NO INFERENCE ABOUT THE NATURE OF THE ENTRIES CAN BE LOGICALLY DERIVED FROM THAT PAPER. -THE AO HAS FAILED TO BRING ANY MATERIAL TO SUBSTANTIATE THAT THE SAID PAPER RELATES TO ANY PURCHASE/SALE OF LAND AND IN ABSENCE OF ANY SUCH MATERIAL THE ADDITION CANNOT BE SUSTAINED. THEREFORE THIS GROUND IS ALLOWED AND THE ADDITION OF RS. 33 25 000/- IS DELETED. 140. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT DURING COURSE OF SEARCH ONE SMALL SLIP CONTAINING SOME CALCULATION WAS SEIZED. THE LD. CIT (A) DELETED THE ADDITION BY OBSERVING THAT LOOSE PAPER CLEARLY SHOWS SOME CALCULATION WITHOUT ANY DATE OR NAME. NO INFERENCE ABOUT THE NATURE OF ENTRIES CAN BE LOGICA LLY DERIVED FROM THAT PAPER. THUS IT WAS FOUND TO BE DUMB DOCU MENT. -: 107: - 107 WE FOUND THAT ADDITION WAS MADE ON THE BASIS OF SMA LL SLIP CONTAINING SOME JOTTINGS. NO INFERENCE OF ANY AMOUN T RECEIVED OR PAID BY THE ASSESSEE CAN BE INFERRED FR OM SOME JOTTINGS. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR DELETING THE SAME. 141. IN ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 2 LAKHS WAS MADE. DURING THE COURSE OF SEARCH ONE AGREEMENT WAS SEIZED AND MARKED AS LPS 1/60 PAGE 44 -47. IT STATES THAT THE ASSESSEE HAS AGREED TO PURCHASE ONE PROPERTY AT VILLAGE BAWADIA KALAN FOR RS. 1 34 73 0 00/- FOR WHICH AN ADVANCE OF RS. 2 00 000/- WAS STATED AS PA ID. THE EXPLANATION GIVEN BY THE ASSESSEE WITH REGARDS TO A DVANCE WAS NOT FOUND SATISFACTORY AND RS. 2 00 000/- WAS A DDED THE SAME UNDISCLOSED INVESTMENT OF THE ASSESSEE. 142. BEFORE THE LD. CIT(A) THE ID.AR HAS SUBMITTED THAT THE SAID PAPER WAS A DRAFT PURCHASE AGREEMENT WHIC H IS UNDATED AND UNSIGNED BY ANY OF THE PARTIES INCLUDI NG WITNESSES. THUS NO ADDITION COULD HAVE BEEN MADE. HE FURTHER STATED THAT THERE IS NO PRESUMPTION IN LAW THAT IN CASE OF UNDATED PAPERS ADDITION HAS TO BE MADE IN T HE YEAR IN WHICH THE SEARCH TOOK PLACE AND THIS TYPE OF PRE SUMPTION -: 108: - 108 IS AVAILABLE ONLY WHEN ANY CASH OR JEWELLERY IS FOU ND DURING SEARCH. 143. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 47.3 I HAVE GONE THROUGH THE RELEVANT LOOSE PAPER THE OBSERVATION OF THE AO AND THE SUBMISSIONS OF THE LD. AR. IT IS SEEN THAT THE SAID PAPER IS UNDATED AND IS NOT SIGNED BY ANY PARTY. THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUBSTANTIATE THAT THE SAID AGREEMENT WAS ACTUALLY EXECUTED AND SUCH ADVANCE WAS ACTUALLY PAID BY THE ASSESSEE. THEREFORE THE ASSESSEE'S CLAIM THAT IT WAS AN UNEXECUTED AGREEMENT CANNOT BE BRUSHED ASIDE. ACCORDINGLY NO ADDITION WAS WARRANTED. THEREFORE THIS GROUND IS ALLOWED AND THE ADDITION MADE BY THE AO IS DELETED. 144. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF SOME NOTINGS ON THE PAPERS WHICH WERE UN-DATED AND UNSIGNED BY ANY OF THE PARTY. THERE WAS NOTHING TO INFER THAT THE SAID AGREEMENT WAS ACTUALLY EXECUTED AND S UCH -: 109: - 109 ADVANCE WAS ACTUALLY PAID BY THE ASSESSEE. THE FIND INGS RECORDED BY THE LD.CIT(A) AT PARA 47.3 HAS NOT BEEN CONTROVERTED BY THE REVENUE. THUS WE DO NOT FIND A NY REASON TO INTERFERE IN THE ORDER OF CIT(A) FOR DELE TING THE ADDITION AS PER THE FINDINGS RECORDED AT PARA 47.3 REPRODUCED HEREINABOVE. 145. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 40 LAKHS WAS MADE. DURING THE COURSE OF SEARCH A P APER STATING THAT THE ASSESSEE HAS MADE A PAYMENT OF RS. 40 00 000/- TO SHRI SHOAIB FOR COLLEGE WAS SEIZED. IT WAS EXPLAINED TO THE AO THAT THE SAID PAPER RELATES TO SIR SYEED EDUCATION SOCIETY. THE AO WAS NOT SATISFIED WITH TH E EXPLANATION AND MADE ADDITION OF RS. 40 00 000 AS I NCOME OF THE ASSESSEE. 146. BEFORE THE LD. CIT(A) THE LD. A.R. HAS STATED THA T THE SAID PAPER NOWHERE MENTIONS THE NAME OF THE ASS ESSEE OR THAT THE PAYMENT WAS MADE BY HIM. IT DOES NOT ME NTION THE YEAR OF TRANSACTION. IT DOES NOT STATE WHETHER IT RELATES TO RECEIPT OR PAYMENT. THE PAPER CLEARLY MENTIONS T HAT THE PAYMENTS ARE ON BEHALF OF THE COLLEGE AND OBVIOUSLY THE SAME WOULD HAVE BEEN PAID BY THE COLLAGE. THERE WAS NO -: 110: - 110 REASON TO BELIEVE THAT THE AMOUNT PAYABLE BY THE CO LLAGE WAS PAID BY THE ASSESSEE. IT WAS RECOVERED FROM THE KILOL PARK OFFICE AND IT CANNOT BE SAID THAT THE SAID PAP ER WAS RECOVERED FROM THE POSSESSION OR CONTROL OF THE ASS ESSEE AND AS SUCH PRESUMPTIVE PROVISIONS ARE NOT APPLICABLE. 147. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 48.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE LD. AR. IT IS SEE N THAT THE SAID PAPER MENTION NAME OF SHRI SHOAIB ON ACCOUNT OF COLLEGE. IT DOES NOT MAKE ANY MENTION THAT THE ASSESSEE HAS MADE ANY SUCH PAYMENT. MOREOVER THERE IS NO MATERIAL TO RELATE THIS PAPER TO A.Y 2009-10. THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUBSTANTIATE THAT THE SAID AMOUNT WAS PAID BY THE ASSESSEE AND IN ABSENCE OF ANY MATERIAL THE ADDITION WAS NOT JUSTIFIED. THIS GROUN D IS ACCORDINGLY ALLOWED AND THE ADDITION MADE IS DELETED. 148. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE SAID PAPER RELATES TO SIR SYEE D -: 111: - 111 EDUCATION SOCIETY. PAPER SO FOUND DOES NOT MAKE ANY MENTION THAT THE ASSESSEE HAS MADE ANY SUCH PAYMENT NEITHER THERE WAS ANY MATERIAL TO RELATE THIS PAPER TO THE ASSESSMENT YEAR 2009-10. FINDING RECORDED BY THE LD .CIT(A) AT PARA 48.3 HAS NOT BEEN CONTROVERTED BY DEPARTMEN T BY BRINGING ANY POSITIVE MATERIALS ON RECORD. ACCORDIN GLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FO R DELETING THE SAME AS PER FINDINGS RECORDED AT PARA 48.3 REPR ODUCED HEREINABOVE. 149. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 4 57 500/- WAS MADE. DURING THE COURSE OF SEARCH A PAPER NUMBERED AS LPS 1/53 PAGE-2 DISCLOSING PAYMENT OF RS. 4 58 500/- BY THE ASSESSEE TO MR. AMEN CONTRACTOR WAS SEIZED. THE SAME WAS CONSIDERED AS PAYMENT MADE OUT OF UNEXPLAINED INCOME OF THE ASSESSEE AND THE ADDITION WAS MADE. 150. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED TH AT PERUSAL OF THE NOTINGS ON THE SAID PAPER SHOWS THAT IT CONTAINS THE FOLLOWING ADVICE TO MR. SOHAIB FOR MAK ING THE PAYMENTS AFTER VERIFICATION. 'SOHAIB KE DWARA BILL CHECK KAR KE -: 112: - 112 BHUGTAN KAREN' THUS IT IS A STATEMENT OF EXPENSES INCURRED ON BEH ALF OF THE COLLAGE WHICH NEEDS TO BE PAID AFTER VERIFI CATION. UNDER THE CIRCUMSTANCES NO INFERENCE COULD HAVE BEE N DRAWN THAT THIS AMOUNT WAS PAID BY THE ASSESSEE. THEREFORE THE ID.AR CONTENDED THAT THE ADDITION MA DE IN THE CASE OF THE ASSESSEE IS NOT JUSTIFIED. 151. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 49.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND THE SUBMISSIONS OF THE LD. AR. ADMITTEDLY THE SAID PAPER CONTAINS A SPECIFIC INSTRUCTION AS 'SOHAIB KE DWARA BILL CHECK KAR KE BHUGTAN KAREN'. THIS CLEARLY ESTABLISHES THA T THE EXPENSES WERE INCURRED ON BEHALF OF THE COLLAGE FOR WHICH BILLS WERE RECEIVED AND THAT THE BILLS WE RE TO BE PAID AFTER CHECKING BY MR. SOHAIB. THUS THE SAME COULD NOT HAVE BEEN ADDED IN THE CASE OF THE ASSESSEE. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS. 4 57 500/- IS DELETED. -: 113: - 113 152. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE SAID PAPER CONTAINS SPECIFIC INSTRUCTIONS TO THE EFFECT THAT EXPENSES WERE INCUR RED ON BEHALF OF COLLEGE FOR WHICH BILLS WERE RECEIVED AND THAT THE BILLS WERE TO BE PAID AFTER CHECKING BY SOHAIB. THE LD. CIT(A) DELETED THE SAME AFTER RECORDING DETAILED FINDING A T PARA 49.3 REPRODUCED HEREINABOVE WHICH HAS NOT BEEN CONTROVERTED BY THE DEPARTMENT BY BRINGING ANY POSI TIVE MATERIAL ON RECORD. ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS RECORDED BY THE LD.CIT (A) RESULTING INTO DELETION OF ADDITION OF RS. 4 57 500 /-. 153. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 83 45 000/- WAS MADE. IN THIS REGARD DURING THE CO URSE OF SEARCH ONE LOOSE PAPER CONTAINING SOME CALCULATION S TOTALLING TO RS.83 45 000/- WAS FOUND AND THE A.O. HAS TREATED THE SAME AS PAYMENT OUT OF INCOME FROM UNDISCLOSED SOURCES. 154. BEFORE THE LD. CIT(A) THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE RELEVANT PAPER WAS A PR OPOSAL WHEREIN IT WAS STATED THAT RS.8.25 IAKHS WAS TO BE PAID AT -: 114: - 114 THE TIME OF FINAL AGREEMENT AND THE BALANCE TO BE P AID AT THE TIME OF AGREEMENT. SINCE THE DEAL WAS NOT MATERIALI ZED NO PAYMENT AS REFERRED IN THE PAPER WAS MADE. THE NAME AND ADDRESS OF THE OWNERS OF THE PROPERTY ARE AVAILABLE ON THE PAPER BUT THE AO DID NOT CONDUCT ANY ENQUIRY TO ASC ERTAIN THE FACTUAL POSITION THAT WAS CONVEYED TO HIM DURIN G ASSESSMENT PROCEEDINGS. THE PAPER WAS CROSSED AS IT -WAS NOT FINALIZED. THEREFORE THE ADDITION MADE BY THE AO IS NOT CORRECT. IT WAS FINALLY CONTENDED THAT NO DATE IS A VAILABLE. ACCORDINGLY THERE IS NO REASON TO PRESUME THAT THE SAID TRANSACTION RELATE TO ASSESSMENT YEAR UNDER CONSIDE RATION WITHOUT ANY BASIS. 155. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 51.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND CONSIDERED THE SUBMISSIONS OF THE LD. AR. THE NOTHING MADE ON THIS PAPER DOES NOT CONVEY ANY MEANINGFUL INFORMATION TO STATE WITH ANY AMOUNT OF CERTAINTY THAT THE ASSESSEE HAS PURCHASED ANY -: 115: - 115 PROPERTY. THE PAPER CONTAINS CALCULATIONS WHICH WERE REPRODUCED BY THE AO IN THE ASSESSMENT ORDER THE TOTAL OF WHICH COMES TO RS. 83 45 000/- OUT OF WHICH RS 8 25 0001- APPEARS AS ADVANCE (BAYANA) AND BALANCE AS PER AGREEMENT. I AM OF THE CONSIDERED OPINION THAT LOOKING TO THE NATURE OF ENTRIES RECORDED IN THIS LOOSE PAPER WITHOUT ANY SUPPORTING MATERIAL NO ADDITION WAS WARRANTED MERELY ON THE BASIS OF THIS PAPER. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION MADE OF RS. 83 45 000/- IS DELETED. 156. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF LOOSE PAPERS CONTAINING SOME CALCULATION. THE LD . CIT(A) FOUND THAT NOTING MADE ON THIS PAPER DOES NOT CONVE Y ANY MEANINGFUL INFORMATION TO STATE THAT ANY AMOUNT OF -: 116: - 116 CERTAINTY THAT THE ASSESSEE HAS PURCHASED ANY PROPE RTY. THE PAPER ONLY CONTAINS CALCULATION. THE LD. CIT(A) DEL ETED THE ADDITION BY OBSERVING THAT AMOUNT OF RS. 1 25 000/- WAS PAID AS ADVANCE AND BALANCE AS PER THE AGREEMENT. HOWEVER BY STATING THAT WITHOUT BRINGING ANY SUPPO RTING MATERIAL ON RECORD NO ADDITION IS WARRANTED MERELY ON THE BASIS OF THIS PAPER. FURTHERMORE WHETHER SUCH TRAN SACTION WAS FOUND RECORDED IN REGULAR BOOKS OF ACCOUNTS NO FINDING HAS BEEN RECORDED BY THE LD.CIT(A). WE DO NOT FIND ANY MERIT IN THE ACTION OF THE CIT(A). IN THE INTEREST OF JUS TICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DEC IDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 157. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 5 30 000/- WAS MADE. IN THIS RESPECT THE ASSESSING OFFICER OBSERVED THAT DURING THE COURSE OF SEARCH ONE UNSI GNED COPY OF POA AND UNSIGNED COPY OF SALE LETTER IN RES PECT OF 1.35 ACRE OF LAND AT VILLAGE ITKHEDI WAS FOUND. THE A.O. HAD CONCLUDED THAT THE AGREEMENT WAS IN FACT EXECUTED AND THE ASSESSEE HAS MADE THE PAYMENT OUT OF UNDISCLOSED SO URCES AND ACCORDINGLY MADE AN ADDITION OF RS.5 30 OOO/-. -: 117: - 117 158. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED THAT THE SAID PAPER WAS A DRAFT PURCHASE AGREEMENT IT WAS U NSIGNED AND UNDATED. THUS NO ADDITION COULD HAVE BEEN MADE . IT WAS FURTHER SUBMITTED THAT THERE IS NO PRESUMPTION IN LAW THAT IN CASE OF UNDATED PAPERS ADDITION CAN BE MAD E IN THE YEAR IN WHICH SEARCH TOOK PLACE AND THIS TYPE OF PRESUMPTION IS AVAILABLE ONLY WHEN ANY CASH OR JEWE LLERY THAT WAS FOUND DURING SEARCH. OPPOSING TO THE OBSER VATIONS THAT THE VERY FACT THAT SUCH A DRAFT WAS PREPARED SHOWS THAT SUCH AGREEMENT WAS INDEED EXECUTED AND AT LEAS T PART PAYMENT OF RS. 5 30 000/- WAS MADE IN CASH' THE LD . AR CONTENDED THAT IT IS A BARE PRESUMPTION OF THE AO A ND OBVIOUSLY NO ADDITION IS POSSIBLE ON THIS BASIS. 159. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 51.3 I HAVE GONE THROUGH THE RELEVANT LOOSE PAPERS FILED DURING APPEAL PROCEEDINGS THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE LD. AR. AS THE SAID PAPERS WERE NOT SIGNED BY -: 118: - 118 ANY PARTY THE AO WAS NOT JUSTIFIED IN TREATING THE SAME AS EXECUTED AND ACTED UPON WITHOUT BRINGING ON RECORDS ANY MATERIAL TO SUBSTANTIATE SUCH PRESUMPTION. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS. 5 30 000/- IS DELETED. 160. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF DRAFT PURCHASE AGREEMENT WHICH WAS UN-SIGNED AND UNDATED . NOTHING WAS FOUND TO INDICATE THAT THE ASSESSEE HAS PAID NOTHING. THE FINDINGS RECORDED BY THE LD.CIT(A) AT PARA 51.3 REPRODUCED HEREIN ABOVE HAVE NOT BEEN CONTROVERTED. ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 161. IN THE ASSESSMENT YEAR 2009-10 AN ADDITION OF RS. 6 12 500/- WAS MADE ON THE BASIS OF LOOSE PAPER NO. LPS /16 PAGE 1013 SEIZED DURING THE SEARCH. THESE PAPER S ARE COPY OF SALE AGREEMENT UNSIGNED COPY OF ICCHA PATR A AND -: 119: - 119 ONE UNSIGNED COPY OF POA FOR THE PROPERTY AT VILLAG E PIPALNER IN WHICH THE NAME OF THE PURCHASER WAS AL SO LEFT BLANK BUT CONSIDERATION WAS MENTIONED AT RS. 6 12 5 00/-. THE AO HAS HELD THAT THE SAID PROPERTY WAS PURCHASE D BY THE ASSESSEE AND THE PAYMENT WAS MADE OUT OF UNEXPL AINED SOURCES AND MADE ADDITION OF RS. 6 12 500/-. 162. BEFORE THE LD. CIT(A) THE LD. AR HAS CONTENDED TH AT THE SAID PAPER WAS A DRAFT PURCHASE AGREEMENT. IT I S AN UNSIGNED AND UNDATED PAPER AND DOES NOT EVEN BEAR T HE NAME OF THE PURCHASER. HENCE NO ADDITION COULD HAV E BEEN MADE. REBUTTING THE OTHER OBSERVATIONS OF THE A.O. THE LD. A.R. HAS STATED THAT NONE OF THEM ARE BASED ON ANY TANGIBLE MATERIAL AND CARRY NO SIGNIFICANCE. 163. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 52.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE LD.AR AND THE RELEVANT LOOSE PAPER. ADMITTEDLY THE PAPERS ARE UNDATED UNSIGNED AND DO N T CONTAIN NAME OF ANY PURCHASER. IN ABSENCE OF THESE DETAILS THE AO WAS NOT JUSTIFIED IN MAKING ANY ADDITION WITHOUT -: 120: - 120 BRINGING ANY MATERIAL ON RECORD TO SUBSTANTIATE THA T THE SAID DEAL WAS ACTUALLY EXECUTED BY THE ASSESSEE. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS. 6 12 500/- IS DELETED. 164. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT PAPER WAS UNDATED UN-SIGNED AND D O NOT CONTAIN NAME OF ANY PERSON. IN THE ABSENCE OF THESE DETAILS THE LD. CIT(A) DELETED THE ADDITION AFTER RECORDING HIS FINDING AT PARA 52.3 WHICH HAS NOT BEEN CONTROVERTED. ACCO RDINGLY WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 165. AN ADDITION OF RS. 12 58 500/- WAS MADE IN THE ASSESSMENT YEAR 2009-10. THIS ADDITION IS BASED ON A LOOSE PAPER SEIZED DURING SEARCH AT KILOL PARK OFFICE IN WHICH DETAILS OF AMOUNTS PAYABLE OF RS. 12 58 500/- WAS MENTIONED. THESE AMOUNTS WERE CONSIDERED AS PAID BY THE ASSESSEE AND ADDITION WAS MADE. 166. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED TH AT THE SAID PAPER RELATES TO RECORD MAINTAINED BY THE OFFICE BOY-CUM-TELEPHONE RECEPTIONIST WHO MAINTAINS A REC ORD OF -: 121: - 121 THE PERSONS COMING TO MEET CALLING ON PHONE TO TAL K TO THE ASSESSEE OR HIS FAMILY MEMBERS. IT ALSO MENTIONS TH E INSTRUCTIONS THAT ARE GIVEN TO HIM TO BE PASSED ON TO RESPECTIVE PERSONS. FOR EX. 2 00 000/- IS TO BE WIT HDRAWN FROM BANK AJAY BHAI HAS COME TO ASK FOR RS. 1 48 5 00/- AMEN HAS REQUESTED FOR RELEASE OF 1 00 000/- ELECTR ICITY BILL IS TO BE DEPOSITED. THUS IT WAS SUBMITTED THAT THE SAID PAPER DOES NOT REFLECT ANY FINANCIAL TRANSACTIONS A ND NO ADDITION COULD HAVE BEEN MADE ON THE BASIS OF SUCH PAPER. 167. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 53.3 I HAVE CONSIDERED THE RELEVANT LOOSE PAPER FILED DURING APPEAL PROCEEDINGS THE OBSERVATIONS OF THE A.O. AND THE SUBMISSIONS OF THE LD. AR. THE LOOSE PAPER IS A SHEET ON WHICH THE NAMES OF SOME PERSONS AND OTHER INSTRUCTIONS ARE RECORDED. ALL THE AMOUNTS ADDED AS INCOME BY THE AO ARE ALL SHOWN AS PAYABLE AND THERE IS -: 122: - 122 NO MATERIAL ON RECORD TO ESTABLISH THAT ANY SUCH PAYMENT WAS ACTUALLY MADE. THE A.O. HAS NOT CORROBORATED THE ENTRIES IN THE PAPER TO ANY UNRECORDED TRANSACTIONS. THUS NO ADDITION WAS WARRANTED. THEREFORE THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS.12 58 500/- IS DELETED. 168. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ADDITION WAS MADE ON THE BASIS OF ENTRIES OF LOOSE PAPERS INDICATING NAMES OF SOME PE RSONS AND OTHER INSTRUCTIONS. THE LD. CIT(A) DELETED THE SAME BY OBSERVING THAT AMOUNT SHOWN ON THE PAPER WAS PAYABL E AND THERE WAS NO MATERIAL ON RECORD TO ESTABLISH THAT A NY SUCH PAYMENT WAS ACTUALLY MADE. HOWEVER NO SUPPORTING MATERIAL WAS BROUGHT ON RECORD BY THE LD.CIT(A) TO SUBSTANTIATE THIS FINDING. ACCORDINGLY WE SET-ASI DE THE ORDER OF CIT(A) ON THIS GROUND . IN THE INTEREST OF JUSTICE THE MATTER IS RESTORED BACK TO THE FILE OF A.O. FOR DEC IDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. -: 123: - 123 169. AN ADDITION OF RS. 15 LAKHS WAS MADE IN THE ASSESSMENT YEAR 2009-10. DURING THE COURSE OF SEA RCH ONE PAPER STATING THAT THE ASSESSEE HAS PURCHASED E IGHT RESIDENTIAL UNITS IN A BUILDING FOR RS. 1 25 00 000 /- AND THE AMOUNT WOULD BE PAYABLE IN INSTALLMENTS OF RS. 5 00 000/- EACH ON EVERY SATURDAY STARTING MAY 10 TH WAS SEIZED. AS THREE INSTALLMENTS WERE DUE TILL THE DATE OF SEARCH RS. 15 00 000/- WAS ADDED AS UNEXPLAINED INVESTMENT IN PURCHASE OF THE PROPERTY. 170. BEFORE THE LD. CIT(A) THE LD. AR HAS SUBMITTED TH AT THE SAID PAPER RELATES TO A PROPOSAL GIVEN TO RAJDE EP BUILDERS WHEREIN THE ASSESSEE HAS PROPOSED TO PURC HASE 8 FLATS FOR TOTAL CONSIDERATION OF RS. 125 LAKHS AND FOR WHICH PAYMENT WAS PROPOSED TO BE MADE AT RS.5 LAKH EVERY SATURDAY STARTING FROM 10 TH MAY. THE SAID PROPOSAL WAS NOT ACCEPTED BY THE SAID BUILDER AND NO PAYMENT WAS MAD E. IT WAS FURTHER SUBMITTED THAT THE NAME AND ADDRESS OF THE BUILDER ALONG WITH DETAILS OF THE PROJECT WERE AVAI LABLE WITH THE AO BUT STILL THE ORDER IS COMPLETELY SILENT AB OUT THE ENQUIRY THAT MIGHT HAVE BEEN MADE FROM THE SAID BUI LDER. THUS IT IMPLIES THAT EITHER NO ENQUIRY WAS CONDUCT ED BY THE -: 124: - 124 AO OR ENQUIRY CONDUCTED DID NOT GIVE ANY ADVERSE RE SULT TO BE USED AGAINST THE ASSESSEE. IT WAS FURTHER SUBMIT TED THAT THE ADDITION HAS ONLY BEEN MADE FOR 15 LAKHS PRESUM ING THAT THE PAYMENT WAS MADE FOR ONLY THREE WEEKS AND ACCEPTING THAT NO PAYMENT WAS MADE IN FOLLOWING WEE KS. THEREFORE ACCORDING TO THE LD. AR THE ADDITION MA DE BY THE AO IS NOT CORRECT. 171. BY THE IMPUGNED ORDER THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATIONS :- 54.3 I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND THE SUBMISSIONS OF THE LD. AR. IT IS FOUND THAT THE SEIZED PAPER DOES NOT CONTAIN ANY MENTION FROM WHICH IT CAN BE INFERRED THAT THE SAID PAPER WAS ANYTHING MORE THAN MERE PROPOSAL. THE A0 HAS ALSO NOT BROUGHT ON RECORD THE STATEMENTS OF THE SELLER/BUILDER OR ANY OTHER MATERIAL TO SUBSTANTIATE THAT ANY SUCH TRANSACTION DID ACTUALLY -: 125: - 125 TAKE PLACE. THE ADDITION AVERMENT THAT AT LEAST THREE INSTALLMENTS WOULD 'HAVE BEEN PAID SHOWS THAT THE STAID ADDITION WAS MADE ON ESTIMATE BASIS WHICH IS NOT SUSTAINABLE. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED AND THE ADDITION OF RS.15 00 000/- IS DELETED. 172. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. ADDITION MADE ON THE BASIS OF PAPER FOUND DURING COURSE OF SEARCH INDICATING INSTALMENT OF RESIDENTI AL UNIT PAYABLE BY THE ASSESSEE. WITHOUT CONTROVERTING THE FINDING OF ASSESSING OFFICER THE LD. CIT(A) HAS DELETED TH E ADDITION BY OBSERVING THAT NO STATEMENT OF SELLER/BUILDER WA S RECORDED BY THE ASSESSING OFFICER. WE DO NOT FIND A NY JUSTIFICATION IN THE ORDER OF CIT(A) IN SO FAR AS HE HAS NOT UNDERTAKEN WHAT THE ASSESSING OFFICER HAS FAILED TO DO. IN THE INTEREST OF JUSTICE THE MATTER IS RESTORED BAC K TO THE FILE OF A.O. FOR DECIDING AFRESH AFTER GIVING DUE OPPORT UNITY TO THE ASSESSEE. -: 126: - 126 173. IN THE RESULT THE APPEALS OF THE REVENUE ARE ALLOW ED IN PART IN TERMS INDICATED HEREINABOVE WHEREAS CR OSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 26 TH JULY 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH JULY 2013. CPU* 2225267