The ITO, Ward-12(1),, Ahmedabad v. Smt. Pulluguru Sunder Raj Sarvani, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING: 07/04/2010 DRAFTED ON:07/04/20 10 ITA NO.1650/AHD/2006 ASSESSMENT YEAR : 1997-1998 I.T.O. WARD-12(1) R.NO.106 NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD. VS. SMT. PULLUGURA SUNDER RAJ SARWANI C/O. SHRI KRISHNA PROCESSORS SARASPUR AHMEDABAD. PAN/GIR NO. : AKIPS 9250 N (APPELLANT) .. (RESPONDENT) ITA NO.1644/AHD/2006 ASSESSMENT YEAR : 1998-1999 SMT. PULLUGURA SUNDER RAJ SARWANI C/O. SHRI KRISHNA PROCESSORS SARASPUR AHMEDABAD. VS. I.T.O. WARD-12(1) R.NO.106 NARAYAN CHAMBERS ASHRAM ROAD AHMEDABAD. PAN/GIR NO. : AKIPS 9250 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SMT. NEETA SHAH SR. D.R. RESPONDENT BY: SHRI J.P.SHAH O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THE REVENUE AND ASSESSEE ARE IN APPEAL AGAINST THE CONSOLIDATED ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- XVIII AHMEDABAD DATED 13.04.2006 PASSED IN ASSESSMENT YEARS 1997-98 AND 1998-99. 2. IN THE ASSESSMENT YEAR 1997-98 THE REVENUE IS I N APPEAL AGAINST DELETION OF ADDITION OF RS.4 11 000/- PAID IN CASH FOR PURCHASE OF FLAT OUT OF UNACCOUNTED MONEY BY THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS) - 2 - AND IN ASSESSMENT YEAR 1998-99 THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CO NFIRMING ADDITION OF RS.6 11 000/- PAID IN CASH FOR PURCHASE OF FLAT OUT OF UNACCOUNTED MONEY. 3. AS THE FACTS AND ISSUE INVOLVED ARE COMMON IN BO TH THE APPEALS THEY ARE BEING DISPOSED OFF TOGETHER AS UNDER. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS PARTNER IN M/S. NEW TAX CORPORATION SHRI SAGAR AGENCIES AND MADHU SYNTHETICS AND WAS DISCLOSING INCOME FROM INTEREST. A SURVEY WAS CONDU CTED UNDER SECTION 133A OF THE INCOME TAX ACT 1961 IN THE CASE OF SHRI KRI SHNA PROCESSORS ON 30.1.2004. DURING THE SURVEY CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND IMPOUNDED UNDER SECTION 133A(3). ON VERIFICATION OF THE DOCUMENT MARK ANENEXURE-A-1/11 PAGE NO.2 TO 30 AND PAGE NO.33 I T WAS NOTICED BY THE LEARNED ASSESSING OFFICER THAT ASSESSEE MADE UNACCO UNTED INVESTMENT IN CASH FOR PURCHASE OF FLAT NO.202 NAYAN COMPLEX AND THE DOCUMENT FOUND AN IMPOUNDED DURING SURVEY CONTAINED OF THIS TRANSACTI ON. IT WAS FOUND THAT THE DOCUMENT WAS AN AGREEMENT BETWEEN THE ASSESSEE BUYE R AND THE SELLER SHRI KRISHNA PROCESSORS AND THAT PURCHASE PRICE IN THE A GREEMENT TO SALE WAS MENTIONED AT RS.11 90 000/- AS PER PAGE NO.9 TO 13 OF ANNEXURE-A-1/11 WHICH WAS TO BE PAID AS PER WORKING/NOTINGS ON PAGES 2 3 4 14 15 15A 16 18 20 30 AND PAGE NO.33 OF ANNEXURE-A-1/11. THE ASSESSEE HAD AGREED AND MADE PAYMENT IN CASH OVER AND ABOVE RS.11 90 000/- TO BE PAID BY CHEQUE. THE LEARNED ASSESSING OFFICER NOTED THAT THE FLAT WAS B OOKED ON 1.05.1996 AND OUT OF THE PURCHASE PRICE OF FLAT OF RS. 19 12 500/- 1 1 90 000/- WAS TO BE PAID BY CHEQUE AND RS.7 22 500/- WAS AGREED TO BE PAID IN C ASH AND OUT OF THE ABOVE AMOUNT THE ASSESSEE HAD PAID RS.3 51 000/- BY CHEQ UE AND RS.6 11 600/- BY CASH ON VARIOUS DATES MENTIONED ON PAGE NO.11 AND 1 2 OF THE ASSESSMENT ORDER. A SUM TOTALLING TO RS.6 11 000/- WAS PAID I N CASH OUT OF RS.2 LACS WAS - 3 - PAID ON 6.05.1997 BUT THE DATE OF PAYMENT WAS RS.4 11 000/- WAS NOT MENTIONED IN ANY OF THE DOCUMENTS. THE LEARNED ASSE SSING OFFICER CONCLUDED THAT SUM OF RS.4 11 000/- WAS PAID IN CASH DURING F Y 1996-97 AND THIS PAYMENT WAS MADE OUT OF UNACCOUNTED INCOME FROM SOURCES NOT DISCLOSED TO THE DEPARTMENT DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 1997-98 AND THEREFORE MADE ADDITION OF RS.4 11 000/- IN THE AS SESSMENT YEAR 1997-98. THE SAME AMOUNT WAS ALSO ADDED AS UNACCOUNTED INCOM E ON PROTECTIVE BASIS IN SUBSEQUENT ASSESSMENT YEAR 1998-99 OVER AND ABOV E THE SUM OF RS.2 LACS PAID IN CASH ON 6.5.1997 IN RESPECT OF WHICH ADDITI ON WAS MADE ON SUBSTANTIVE BASIS. 5. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- 10. THE NOTINGS ON PAGES 34 & 30 OF ANNEXURE A-1/1 1 ARE IDENTICAL AND THERE ARE ALSO MATCHING FIGURES MENTIONED ON PAGE 4 OF THE IMPOUNDED DOCUMENTS. THE NOTINGS ON THESE PAGES HAVE TO BE DE CIPHERED. NOW FIRSTLY IT IS TO BE NOTED THAT THE APPELLANT HAS AC CEPTED THAT THE AMOUNT OF RS.3 51 000/- WERE PAID BY CHEQUE FOR THE PROPOS ED PURCHASE OF FLAT AS POINTED OUT AT PARA.5 OF LETTER DTD. 07.03.2004 ADDRESSED TO THE ITO WARD-12(1) AHMEDABAD. THUS THE FIGURE OF RS.3 51 000/- SHOWN ON PAGE 14 & 13 AS PAYMENT BY CHEQUE (RS.1 LAKH ON 21. 9.97 RS.2 LAKH ON 3.2.97 & RS.51 000/- ON 1.5.96) TALLIES WITH THE AM OUNT THAT THE ASSESSEE ACCEPTS TO HAVE PAID BY CHEQUE. THEREFORE THERE IS NO DOUBT THAT THESE PAGES I.E. PAGE NOS. 14 30 AND 4 OF IMP OUNDED DOCUMENT A- 1/11 CONTAIN DETAILS AND CALCULATIONS REGARDING PUR CHASE TRANSACTION OF THE APPELLANT IN RESPECT OF THE FLAT OF 170 SQ.YDS. AT THE RATE OF RS.11 250/- PER SQ. YD. ONCE THE FIGURE OF RS.3 51 000/- DETAILS OF WHICH HAVE BEEN MENTIONED ON PAGE NO.14 & 30 OF THE BUNCH OF IMPOUNDED DOCUMENTS HAVE BEEN PROVED TO BE THE REAL FIGURE AN D HAVE BEEN ACCEPTED BY THE APPELLANT THAT SHE HAD UNDERTAKEN T HE TRANSACTION IN RESPECT OF RS.3 51 000/- THE OTHER FIGURES MENTION ED IN THESE DOCUMENTS WHICH ARE INEXTRICABLY LINKED TO THE FIGU RE OF RS.3 51 000 ARE ALSO TO BE TAKEN AS REAL FIGURE AND THERE IS INEVIT ABLE CONCLUSION THAT THE PAYMENTS MENTIONED ON THESE PAGES WHETHER IN CASH O R BY CHEQUE ARE REAL FOR REASON THAT THE FIGURES AND THE TRANSACTIO NS MENTIONED ON THESE PAGES ARE INEXTRICABLY LINKED WITH EACH OTHER. NO O THER CONCLUSION IS POSSIBLE UNDER THE CIRCUMSTANCES BECAUSE OF THE INE XTRICABLE LINKAGES - 4 - WITH THE FIGURES OF 3 51 000. THE FIGURE OF 19 12 5 00/- HAS BEEN DERIVED BY MULTIPLYING 170 SQ.YDS. WITH THE RATE OF 11 250/ - PER SQ.YD. AND THEREAFTER FROM THIS FIGURE OF 19 12 500/- THE FIG URE OF 7 22 500/- HAS BEEN DERIVED BY REDUCING THE FIGURE OF 11 90 000/- AGAINST WHICH 'CHEQUE' HAS BEEN MENTIONED WHICH CLEARLY ESTABLIS HES THAT OUT OF TOTAL PRICE OF RS.19 12 500/- A SUM OF RS. 11 90 000/- HA S TO BE PAID IN CHEQUE AND RS.7 22 500/- IS TO BE PAID IN CASH. AS PER THE SEVERAL DOCUMENTS FOUND DURING THE SURVEY PARTICULARLY PAGE NO.33 WHI CH IS A REGISTERED LETTER DTD. 26.07.1999 FROM NITIN S. RAVAL LO THE APPELLANT THE SALE PRICE OF RS.11 90 000/- HAS BEEN MENTIONED FROM WHICH IT IS CLEARLY ESTABLISHED THAT THE FIGURE OF 11 90 000/- IS NOT F ICTIONAL BUT IS THE REAL FIGURE BEING THE PAYMENT BY CHEQUE TO BE MADE OUT O F THE SALE PRICE OF RS.19 12 500/-. IT IS ALSO BE NOTED THAT SHRI DWARK NATH R. GUPTA IN HIS STATEMENT RECORDED U/S. 131 ON 13.2.2004 HAD IN HI S ANSWER TO Q.NO.8 WHEN HE WAS SHOWN THE PAGES 2 TO 33 OF ANNEXURE A-1 /11 AND IT WAS POINTED OUT TO HIM THAT THESE PAGES CONTAIN CERTAIN TRANSACTIONS CATEGORICALLY STATED THAT THESE PAPERS RELATED TO T HAT PURCHASE BY SMT. PULLAGURA SUNDERRAJ SARVANI HIS MOTHER-IN-LAW IN N AYAN COMPLEX. NR. PANJRAPOLE. HE FURTHER CLARIFIED THAT HE WAS NOT AW ARE WHETHER THESE TRANSACTIONS OF SMT. SARVANI WERE SHOWN IN THE BOOK S OF ACCOUNTS. THERE IS THEREFORE NO DOUBT THAT THE RECORDINGS IN THE PAGE NO. 14 30 4 AND 6 OF IMPOUNDED BUNCH OF ANNEXURE A-1/11 ARE NOTHING BUT RECORD OF REAL TRANSACTIONS IN RESPECT OF PURCHASE OF FLAT BY THE APPELLANT. THE ISSUES WHETHER SUBSEQUENTLY THE FLATS WERE PURCHASE D OR NOT IS IRRELEVANT TO THE ISSUE INVOLVED IN THE APPEAL. WHA T IS RELEVANT IS THAT THE APPELLANT HAD ENTERED INTO AN AGREEMENT TO PURCHASE FLAT NO. 202 ON THE SECOND FLOOR OF NAYAN COMPLEX BEING DEVELOPED B Y RAVI CONSTRUCTION MEASURING 170 SQ. YDS AS MENTIONED ON PAGE 5 OF THE AGREEMENT WHICH WAS AT PAGES 26 TO 29 AND 10 TO 13 OF THE IMPOUNDED BUNCH OF DOCUMENTS OF ANNEXURE A-1/11 WHICH HAS ALS O BEEN ANNEXED TO A.O.'S ORDER ENGLISH TRANSLATION OF WHICH HAS B EEN SUBMITTED BY THE APPELLANT UNDER COVER OF LETTER DTD. 14.11.2005. 11. FROM THE ABOVE VARIOUS FACTS WHICH ARE REVEALED FROM THE IMPOUNDED DOCUMENTS I AM OF THE CONSIDERED OPINION THAT ALTHOUGH THE APPELLANT HAS ASSERTED THAT SOME OF THE DOCUMENTS O F ANNEXURE A-1/11. DO NOT PERTAIN TO HER IT IS ESTABLISHED BEYOND ANY IOTA OF DOUBT THAT THE DOCUMENTS FOUND AND IMPOUNDED FROM THE PREMISES W HICH ARE CLOSELY LINKED TO THE APPELLANT IN THE SENSE THAT FROM TH ESE PREMISES BUSINESS CONCERN IN WHICH THE ASSESSEE'S HUSBAND WAS A PARTN ER AND THE FIRMS IN WHICH THE ASSESSEE WAS ALSO A PARTNER WERE RUNNING CONTAIN DETAILED NOTINGS OF THE AMOUNTS AND OTHER DETAILS OF THE TRA NSACTION UNDERTAKEN BY THE APPELLANT IN RESPECT OF PURCHASE OF FLAT NO. 202 NAYAN COMPLEX. THE FACT THAT NOTINGS AND THE FIGURES IN THESE DOCU MENTS PARTICULARLY - 5 - DOCUMENT NO.14 30 AND 2 & 4 ARE REAL INDICATING TH E AMOUNTS PAID AND TO BE PAID AS ALSO MODE OF PAYMENT AND OTHER DETAIL S SUCH AS CHEQUE NO. IN RESPECT OF PAYMENTS MADE BY CHEQUE AS WELL A S DATES ON WHICH THE PAYMENTS WERE MADE. FURTHER IN VIEW OF THE FAC T THAT DURING THE ASSESSMENT PROCEEDINGS IN RESPONSE TO A.O'S NOTICE U/S. 142(1) DTD. 8.02.2005 WHEREIN THE ASSESSEE WAS REQUIRED TO EXP LAIN THE SOURCE OF INVESTMENT IN THE FLAT NO.202 NAYAN COMPLEX IN RES PECT OF THE AGREED PRICE OF RS.11 90 000/- TO BE PAID IN CHEQUE AND CE RTAIN PAYMENTS AGREED TO BE PAID IN CASH OVER AND ABOVE THE SUM OF RS.11 90 000/- TO BE PAID IN CHEQUE THE APPELLANT DID NOT FURNISH AN Y EXPLANATION AND IN FACT SUBMITTED THAT THE PAPERS DO NOT PERTAIN TO H ER WHICH AMOUNTS TO DENIAL OF PAYMENT OF ANY SUM IN CASH OVER AND ABOVE PAYMENT OF RS.11 90 000/-. IN FACT THE APPELLANT ONLY ACCEPTE D THE PAYMENT OF RS.3 51 000/- WHICH WAS MADE BY CHEQUE. THUS IT IS CLEAR THAT THE APPELLANT HAS EXPLAINED THE SOURCE IN RESPECT OF TH E PAYMENT OF RS.3 51 000/- MADE BY CHEQUE BUT IN RESPECT OF OTHE R PAYMENTS MADE IN CASH WHICH ARE REFLECTED IN NOTINGS IN PAGE NOS. 14 30 4 2 OF IMPOUNDED DOCUMENTS A-1/11 NEITHER THE APPELLANT A CCEPTED TO HAVE BEEN MADE SUCH PAYMENT NOR MADE ANY EXPLANATION IN RESPECT OF SOURCE OF SUCH PAYMENT. 12. THUS UNDER THE CIRCUMSTANCES IT HAS TO BE CON CLUDED THAT THE DOCUMENTS AS PER ANNEXURE A-1/11 BELONG TO THE APPE LLANT ASSESSEE AND CONTAIN DETAILS OF PRICE AND PAYMENTS IN CHEQUE AS WELL AS CASH BOTH ALREADY MADE AS ALSO TO BE MADE FOR PURCHASE O F FLAT AND THAT THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE O F THE AMOUNT OF RS.2 LAKH AND RS.4 11 000/- THAT HAS BEEN PAID IN CASH O VER AND ABOVE THE PAYMENT OF RS.3 51 000/-. ACCORDINGLY AS DETAILED IN 14 & 30 AS ALSO PAGE NOS. 2 & 4 OF BUNCH OF DOCUMENTS MARKED AS ANN EXURE A-1/11 THERE IS NO DOUBT THAT RS.6 11 000/- WAS PAID IN CA SH REGARDING WHICH THE APPELLANT ASSESSEE HAS NOT BEEN ABLE TO FURNISH ANY EXPLANATION OF ITS SOURCE. ACCORDINGLY THE ACTION OF THE ASSESSIN G OFFICER IN HOLDING THE PAYMENT IN CASH OF RS.2 LAKH AND RS.4 11 000/- AS U NACCOUNTED PAYMENT AND ACCORDINGLY TREATING THE SAME AS UNACCOUNTED INCOME OF THE ASSESSEE IS HELD TO BE CORRECT AND CONFIRMED. 13. THE NEXT QUESTION THAT IS TO BE DECIDED AS TO T HE PERIOD DURING WHICH THE PAYMENTS OF RS.2 LAKH AND RS.4 11 000/- WERE MA DE IN CASH. THE A.O. HAS NOTED THAT PAYMENT OF RS.4 11 000/- WAS MA DE IN CASH BUT THE DATE HAS NOT BEEN MENTIONED ANYWHERE IN THE IMPOUND ED DOCUMENTS. ONLY BECAUSE THE DATE OF PAYMENT OF RS.2 LAKH WAS M ENTIONED AS 06.05.1997 AND THEN THE TOTAL OF RS.6 11 000/- WAS DRAWN IN IMPOUNDED DOCUMENTS THE A.O. CONCLUDED THAT THE PAYMENT OF R S.4 11 000/- WAS MADE BY THE APPELLANT ON OR BEFORE 06.05.1997. ACCO RDINGLY THE A.O. - 6 - PRESUMED THAT THE PAYMENT OF CASH OF RS.4 11 000/- WAS MADE DURING THE F.Y. 1996-97 RELEVANT TO A.Y. 1997-98 AND HENCE MADE ADDITION IN A.Y. 1997-93. HERE IT IS TO BE NOTED THAT WHILE THE RE MAY BE SUBSTANCE IN A.O.'S PRESUMPTION AND SUBSEQUENT CONCLUSION THAT T HE PAYMENT OF RS.4 11 000/- WAS MADE BEFORE 06.05.1997 AND AFTER 01.05.1996 THERE CANNOT BE A BASIS FOR PRESUMPTION THAT THE PAYMENT WAS MADE DURING F.Y. 1996-97 I.E. BEFORE 31.03.1997. AS PER LETTER DTD. 26.07.1999 FROM SHRI NITIN S. RAVAL AT PAGE NO.33 OF THE IMPOUNDED DOCUMENTS WHICH ALSO FORM PART OF ANNEXURE TO ASSESSMENT ORDER IT HAS BEEN MENTIONED THAT THE PURPORTED AGREEMENT WAS ENTERED INTO ON 07 .04 1997 FOR SALE OF FLAT AND ACCORDINGLY IT WILL BE REASONABLE AND N EARER TO THE REALITY TO ASSUME THAT THE PAYMENT OF RS.4 11 000/- WAS MADE AFTER 07.04.1997 BUT BEFORE 06.05.1997. ACCORDINGLY IT HAS TO BE HE LD THAT THE SUM OF RS.4 11 000/-AND RS.2 00 000/- TOTALLING TO RS.6 11 000/- IN CASH WAS PAID BY THE APPELLANT ASSESSEE BETWEEN THE PERIOD 7 .4.1997 TO 06.05.1997 IN F.YR. 1997-98 FOR THE PURPOSE OF PURC HASE OF FLAT 202 NAYAN COMPLEX. IT IS HELD ACCORDINGLY. IN VIEW OF T HIS THE A.O. IS DIRECTED TO MAKE SUBSTANTIVE ADDITION OF RS.6 11 000/- BEING THE AMOUNT PAID IN CASH OUT OF UNACCOUNTED SOURCES FOR THE PURPOSE OF INTENDED PURCHASE OF FLAT NO.202 NAYAN COMPLEX DURING THE A.Y.1998- 99 RELEVANT TO FINANCIAL YEAR 1997-98. CONSEQUENTLY ADDITION OF R S.4 11 000/- MADE BY THE ASSESSING OFFICER IN A.Y. 1997-98 IS DELETED . 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. THE LEARNED ASSESSING OFFICER MADE ADDITION OF RS.4 11 000/- ON THE BASIS OF THE DOCUMENT IMPOUNDED DURING THE COURSE OF SURVEY UNDER SECTION 133A ON 30.01.2004 IN THE PREMISES OF SHRI KRISHNA PROCESSORS. 7. THE FACTS ARE THAT THE ASSESSEE ENTERED INTO AN AGREEMENT TO PURCHASE A FLAT NO.202 SECOND FLOOR NAYAN COMPLEX NR. PAN JRAPOLE AHMEDABAD FROM M/S.RAVI CONSTRUCTION ON 7.04.1997 AND AS PER THE S AID AGREEMENT TOTAL CONSIDERATION AGREED FOR THE FLAT WAS RS.11 90 000/ -. THE LEARNED ASSESSING OFFICER OBSERVED THAT ALONG WITH THE AGREEMENT DOCU MENTS MARKED AS PAPER NO.2 TO 4 9 TO 15 15A 16 18 TO 30 AND 33 OF ANN EXURE-A-1/11 WERE ALSO IMPOUNDED AND AS PER THOSE DOCUMENTS VALUE OF 170 SQ. YDS. WAS RS.19 12 000/- OUT OF WHICH AGAINST THE AMOUNT OF R S.11 90 000/- CHEQUE WAS - 7 - WRITTEN AND AGAINST THE AMOUNT OF RS.7 22 500/- CAS H WAS WRITTEN. FURTHER THE IMPOUNDED DOCUMENT ALSO SHOWS THAT CHEQUE OF RS .3 51 000/- WAS RECEIVED AND CASH OF RS.6 11 000/- WAS RECEIVED OUT OF WHICH RS.2 LACS WAS ON 6.05.1997 AND IN RESPECT OF BALANCE RS.4 11 000/- N O DATE WAS MENTIONED. ON THE BASIS OF ABOVE DOCUMENTS THE LEARNED ASSESSING OFFICER PRESUMED THAT RS.4 11 000/- WAS PAID BY THE ASSESSEE IN CASH DURI NG THE FINANCIAL YEAR 1996- 97 RELEVANT TO THE ASSESSMENT YEAR 1997-98 AND THER EFORE HE MADE SUBSTANTIVE ADDITION OF RS.4 11 000/- IN THE ASSESS MENT YEAR 1997-98 AND ALSO MADE ADDITION OF THE SAME AMOUNT IN THE ASSESSMENT OF ASSESSMENT YEAR 1998-99 ON PROTECTIVE BASIS. HE ALSO MADE ADDITION OF RS.2 LACS IN THE ASSESSMENT YEAR 1998-99 ON SUBSTANTIVE BASIS. 8. ON APPEAL LEARNED COMMISSIONER OF INCOME TAX(AP PEALS) OBSERVED THAT AGREEMENT FOR SALE OF FLAT WAS ENTERED INTO ON 7.04.1997 AND PAYMENT OF RS.2 LACS WAS MADE ON 6.05.1997 AND ACCORDINGLY IT WILL BE REASONABLE AND NEARER TO THE REALITY TO ASSUME THAT THE PAYMENT OF RS.4 11 000/- WAS MADE AFTER 7.04.1997 BUT BEFORE 6.05.1997 AND THEREFORE CONCLUDED THAT PAYMENT OF RS.4 11 000/- WAS ALSO MADE IN THE FY 1997-98. O N THE BASIS OF THIS HE DELETED THE ADDITION MADE IN THE ASSESSMENT YEAR 19 97-98 AND THE CONFIRMED THE ADDITION MADE IN THE ASSESSMENT YEAR 1998-99. 9. AGAINST THE ABOVE ORDER OF THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) THE REVENUE IS IN APPEAL FOR ASSESSME NT YEAR 1997-98 AND THE ASSESSEE IS IN APPEAL IN THE SUBSEQUENT ASSESSMENT YEAR 1998-99. 10. THE REVENUE CONTENDED BEFORE US THAT THE LEARNE D ASSESSING OFFICER WAS JUSTIFIED IN MAKING ADDITION IN THE ASSESSMENT YEAR 1997-98 AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT T O HAVE CONFIRMED THE ADDITION OF RS.4 11 000/- IN THE ASSESSMENT YEAR 19 97-98. - 8 - 11. ON THE OTHER HAND THE ASSESSEE HAS DENIED MAKI NG OF PAYMENT OF RS.4 11 000/- EITHER IN THE ASSESSMENT YEAR 1997-98 OR IN THE ASSESSMENT YEAR 1998-99. 12. WE FIND THAT NO MATERIAL COULD BE BROUGHT BEFOR E US BY THE REVENUE TO SHOW THAT THE ASSESSEE ACTUALLY PAID RS.4 11 000/- IN CASH TO M/S.RAVI CONSTRUCTION IN THE PREVIOUS YEAR 1996-97 RELEVANT TO THE ASSESSMENT YEAR 1997-98. THUS WE DO NOT FIND ANY FORCE IN THE APPE AL OF THE REVENUE AND ACCORDINGLY THE SAME IS DISMISSED. 13. COMING TO THE APPEAL OF THE ASSESSEE FOR ASSESS MENT YEAR 1998-99 THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE S UBMITTED THAT TILL 6.05.1997 THE ASSESSEE ACTUALLY PAID RS.3 51 000/- AGAINST BOOKING OF FLAT TO M/S.RAVI CONSTRUCTION AND HAS NOT PAID ANY FURTHER AMOUNT IN CASH TO THE SAID PARTY. AS NO PAYMENT OF RS.6 11 000/- WAS MADE IN C ASH BY THE ASSESSEE TO THE SAID PARTY THE ADDITION MADE MERELY ON THE BASIS O F ASSUMPTION AND PRESUMPTION SHOULD HAVE BEEN DELETED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). HE CONTENDED THAT NO EVIDENCE COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE ASSESSEE ACT UALLY PAID ANY AMOUNT IN CASH TO M/S.RAVI CONSTRUCTION IN RESPECT OF BOOKING OF FLAT NO.202 NAYAN COMPLEX. 14. IN RESPECT OF DOCUMENTS IMPOUNDED IN THE COURSE OF SURVEY IN THE PREMISES OF M/S.KRISHNA PROCESSORS HE STATED THAT THE SAID DOCUMENTS WAS NOT WRITTEN BY THE ASSESSEE NOR THE SAME BEARS THE SIGNATURE OF THE ASSESSEE NOR THE WRITING OF THE DOCUMENT WAS EXAMINED BY THE REVENUE SO AS TO BRING ANY MATERIAL ON RECORD WHICH COULD COGENTLY ESTABLI SHED THAT THE SAID TRANSACTION RELATED TO THE ASSESSEE ONLY AND ASSESS EE IN FACT PAID ANY AMOUNT IN CASH TO THE PARTY. - 9 - 15. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESE NTATIVE SUBMITTED THAT THE ASSESSEE HAD ACCEPTED BOOKING OF FLAT IN Q UESTION AND HAS ALSO ACCEPTED THAT THE FLAT WAS BOOKED FOR RS.11 90 000/ - AND HAS ALSO ACCEPTED THE FACT OF MAKING OF PAYMENT OF RS.3 51 000/- BY C HEQUE. AS THESE FIGURES TALLY WITH THE FIGURES FOUND WRITTEN ON THE IMPOUND ED DOCUMENT IT CLEARLY SHOWS THAT THE IMPOUNDED DOCUMENT RECORDED THE TRAN SACTION RELATING TO THE ASSESSEE ONLY. HE ALSO CONTENDED THAT ASSESSEE APAR T FROM DENYING THE TRANSACTION HAS NO MATERIAL ON RECORD TO SHOW THAT THE TRANSACTIONS RECORDED IN THE IMPOUNDED DOCUMENTS WERE NOT REAL. HE THEREF ORE SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS JUS TIFIED IN CONFIRMING THE ADDITION OF RS.6 11 000/- IN THE ASSESSMENT YEAR 19 98-99 AS UNDISCLOSED OR UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE. 16. WE FIND THAT THE IMPOUNDED PAGE MARKED AS PAGE NO.30 OF ANNEXURE- A-1/11 IS PLACED AT PAGE NO.3 OF THE PAPER BOOK FIL ED BY THE REVENUE IN WHICH FIGURES OF RS.7 22 500/- RS.2 LACS AND RS.4 11 000 /- ARE WRITTEN. A PERUSAL OF THE SAME SHOWS THAT THE SAME DOES NOT CONTAIN ANY S IGNATURE. FURTHER THE REVENUE HAS NOT DISPUTED THE CONTENTION OF THE ASSE SSEE TO THE EFFECT THAT THE SAID DOCUMENT WAS NOT WRITTEN BY THE ASSESSEE THE ASSESSEE HAS DENIED THE TRUTHFULNESS OF THE RECORDING MADE IN THE SAID IMPO UNDED PAGE. IN THE CIRCUMSTANCES THE ONUS WAS ON THE DEPARTMENT TO BR ING SOME CORROBORATIVE DOCUMENT TO SHOW THAT THE RECORDING MADE IN THE IMP OUNDED PAGE WAS THE RECORDING OF REAL TRANSACTION AND TRANSACTION MADE BY THE ASSESSEE. THE REVENUE OUGHT TO HAVE EXAMINED THE WRITER OF THE PA GE TO ASCERTAIN THE CIRCUMSTANCES IN WHICH WRITING WAS MADE BY HIM AND ANY EVIDENCE OR MATERIAL AVAILABLE TO SHOW GENUINENESS OF THE TRANSACTION WR ITTEN ON THE SEIZED PAPER. WE FIND THAT NO SUCH MATERIAL WAS BROUGHT ON RECORD BY THE REVENUE. IN ABSENCE OF SUCH MATERIAL IN OUR CONSIDERED OPINION THE EXPLANATION OF THE - 10 - ASSESSEE CANNOT BE REJECTED MERELY ON ASSUMPTION AN D PRESUMPTION. WE FIND THAT NO COGENT MATERIAL WAS BROUGHT ON RECORD BY TH E REVENUE TO CONCLUSIVELY PROVE THAT THE ASSESSEE HAS ACTUALLY MADE PAYMENT O F RS.6 11 000/-. IN OUR CONSIDERED OPINION THE PRECONDITION FOR APPLICABIL ITY OF SECTION 69 OF THE ACT IS THAT THERE MUST BE MATERIAL ON RECORD TO CONCLUSIVE LY SHOW THAT THE ASSESSEE HAD IN FACT MADE ANY INVESTMENT OUTSIDE THE BOOKS O F ACCOUNT. THE ONUS OF BRINING SUCH CONCLUSIVE MATERIAL ON RECORD IS ON TH E REVENUE. WE FIND THAT REVENUE HAS NOT BEEN ABLE TO DISCHARGE THIS ONUS IN THE INSTANT CASE. THEREFORE IN OUR CONSIDERED OPINION THE ADDITION OF RS.6 11 000/- MADE BY THE LOWER AUTHORITIES IS NOT SUSTAINABLE. ACCORDINGLY WE DEL ETE THE ADDITION OF RS.6 11 000/-. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 17 IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT OF THE ASSESSEE IS ALLOWED ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 09/04/2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUN TANT MEMBER AHMEDABAD; DATED 09/04/2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XVIII AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD