M/s Kshama Sahkari Avas Samiti, Agra v. ACIT, Agra

ITA 241/AGR/2009 | 2003-2004
Pronouncement Date: 18-03-2011 | Result: Allowed

Appeal Details

RSA Number 24120314 RSA 2009
Assessee PAN AAAAK7082R
Bench Agra
Appeal Number ITA 241/AGR/2009
Duration Of Justice 1 year(s) 9 month(s) 10 day(s)
Appellant M/s Kshama Sahkari Avas Samiti, Agra
Respondent ACIT, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 18-03-2011
Date Of Final Hearing 20-01-2011
Next Hearing Date 20-01-2011
Assessment Year 2003-2004
Appeal Filed On 08-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO. 301 & 302/AGRA/2009 ASSTT. YEAR : 2003-04 & 2004-05 ASSTT. COMMISSIONER OF INCOME-TAX VS. M/S. KSHAMA SAHKARI AVAS SAMITI LTD. CENTRAL CIRCLE AGRA. 17-18 GOPAL KUNJ NEW AG RA. (PAN AAAAK 7082 R) ITA NO. 241 & 242/AGRA/2009 ASSTT. YEAR : 2003-04 & 2004-05 M/S. KSHAMA SAHKARI AVAS SAMITI LTD. VS. ASSTT. CO MMISSIONER OF INCOME-TAX 17-18 GOPAL KUNJ NEW AGRA. CENTRAL CIRCLE AGRA . (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI HOMI RAJVANSH CIT DR. FOR ASSESSEE : SHRI K.C. AGARWAL ADVOCATE. ORDER PER BENCH : BOTH THE ASSESSEE AS WELL AS REVENUE HAVE COME IN APPEAL AGAINST THE ORDER OF CIT(A) DATED 02.04.2009. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THE CASE OF ASSESSEE THE ACIT PASSED AN ORDER FOR THE ASSESSMENT YEAR 2003-04 AND 2004-05 U/S. 153A R EAD WITH SECTION 144 OF THE INCOME-TAX ACT. THE ASSESSEE IS A SAHKARI AVAS SAMTI DULY REG ISTERED WITH THE DEPUTY REGISTRAR SOCIETIES U.P. AVAS VIKAS PARISHAD LUCKNOW. A SEARCH U/S. 13 2(1) WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE AND ALSO AT THE PREMISES OF THE PROMOTER O F THE SOCIETY NAMELY SHRI SATYA NARAIN JAIN AND HIS SON SHRI AMIT JAIN WHO IS THE SECRETARY OF THE SOCIETY. THE ASSESSING OFFICER ISSUED NOTICE U/S. 153A ON 07.11.2007 BUT THE ASSESSEE-SOC IETY DID NOT FILE ANY RETURN AS THE SOCIETY HAS NO INCOME AND THE BOOKS OF THE SOCIETY WERE LOST IN TRANSIT ON 10.08.2005. THE ASSESSING OFFICER 2 ALSO ISSUED NOTICE U/S. 142(1) OF THE ACT WHY THE A SSESSMENT MAY NOT BE MADE EXPARTE. THE ASSESSEE INFORMED THAT ALL THE BOOKS WERE LOST IN T HE MORNING OF 10.08.2005 FOR WHICH FIR WAS DULY LODGED IN THE POLICE AND NEWS IN THE NEWSPAPER DAILY AMAR UJALA WAS DULY PUBLISHED ON 11.08.2005. THE SOCIETY SUBMITTED COPY OF SALE DEED S OF THE LAND SOLD TO THE MEMBERS AND THE DETAILS OF MONEY PROVIDED BY THE MEMBERS OF THE SOC IETY AS MENTIONED IN THE SALE DEEDS. THE ASSESSING OFFICER NOTED THAT THE SOCIETY HAD PURCHA SED FOLLOWING LAND DURING THE PERIOD 11.10.2002 TO 27.12.2003 : SALE DEED REGISTRATION NO. AND DATE. NAME AND ADDRESS OF SELLER DETAILS OF PROPERTY SALE CONSIDERATION/ VALUE TAKEN FOR STAMP DUTY. 3522 11.10.2002 PRAKASH CHAND RAM NIWAS RESIDENTS OF LAKAWALI AARAJI KHATA NO.62 KHASARA NO.602 RAKBA 0.300 HECTARE MAUJA BASAL MUSTAQUIL 500000/- 1650000/- 1907 21.05.03 HARENDER SINGH BUNDU KATRA AGRA. AARAJI BASAL MUSTAQUIL KHASRA NO.550 RAKBA 1.455 HECTARE 1500000/- 4002000/- 3697 10.09.2003 KISHAN CHAND AGARWAL & VISHNU AGRAWAL S/O H.G. AGARWAL 19 BAGH FARZANA AND OTHERS AARAJI VILLAGE TORA KHASRA NO.13/1 RAKBA 0.918 HECTARE 1000000/- 1836000/- 4125 20.10.2003 JOMA S/O NAND LAL LAKAWALI AGRA AARAJI VILLAGE TORA KHASRA NO. 803 OF RAKBA 1.822 HECTARE 3500000/- 5170000/- 5199 27.12.2003 TIKAM SINGH MAHENDER SINGH HARI SINGH SONS OF SALIG RAM R/O KALAL KHERIA AGRA. AARAJI VILLAGE TORA KHASRA NO. 164 OF RAKBA 2.587 HECTARE 4800000/- 5170000/- THE TOTAL PURCHASES BY THE SOCIETY DURING THE ABOVE PERIOD WAS OF RS.1 13 00 000/- AND THE VALUE FOR STAMP DUTY WAS RS.1 76 69 000/-. 3. THE SUMMONS U/S. 131(1A) WERE ISSUED BY THE INVE STIGATION WING TO THE SOCIETY THROUGH ITS SECRETARY ASKING FOR CERTAIN DETAILS. THE ASSES SING OFFICER NOTED FROM THE STATEMENT OF SHRI AMIT JAIN THAT HE WAS STUDENT OF B. COM.-II YEAR. H E COULD NOT GIVE ANY DETAILS OF ANY 3 TRANSACTION ON WHICH HE HAS EARNED COMMISSION INCOM E ALTHOUGH HE ADMITTED THAT HE IS SECRETARY OF THE SOCIETY WHICH WAS INCORPORATED IN THE YEAR 2003 AND THE SOCIETY IS DEALING IN PURCHASE AND SALE OF LAND ON NO PROFIT NO LOSS BASI S. THE WORK OF THE SOCIETY WAS BEING DONE BY ONE SHRI POORAN KHAN AND SOME OTHER PERSONS WHOSE NAMES HE DOES NOT KNOW. IT WAS ALSO STATED THAT HIS FATHER IS DOING BUSINESS OF PURCHAS E AND SALE IN SOCIETY FROM 17-18 GOPAL KUNJ AGRA. THE ASSESSING OFFICER WAS THEREFORE OF THE VIEW THAT SHRI AMIT JAIN WAS MERELY A NAME LENDER AND IS BEING USED AS A RUBBER STAMP BY THE S OCIETY AS SECRETARY. HE SUMMONED AND EXAMINED ON OATH SHRI SATYA NARAIN JAIN WHO ADMITTE D THAT THE SOCIETY IS OPERATING FROM HIS HOME AND THE WORK OF THE SOCIETY IS BEING LOOKED AF TER BY HIS SON SHRI AMIT JAIN. THE ASSESSING OFFICER NOTED THAT FROM THE PREMISES NO. 17-18 GOP AL KUNJ AGRA DURING THE COURSE OF SEARCH CERTAIN PAPERS CONTAINING THE DETAILS OF TRANSACTIO NS RELATING TO SOCIETY WERE FOUND WHICH IS PLACED AT ANNEXURE A-30 PAGE 13. IN THIS ACCOUNT P AYMENTS AND RECEIPTS HAVE BEEN SHOWN FROM BANK OF BARODA ACCOUNT IN THE FOLLOWING MANNER : 23.11.2002 80 000/- PAID 07.12.2002 1 50 000/- PAID 10.12.2002 70 000/- PAID 14.01.2003 3 00 000/- RECEIVED. -------------- TOTAL : 6 00 000/- -------------- 4. THE ASSESSING OFFICER ACCORDINGLY ISSUED A QUEST IONNAIRE TO THE ASSESSEE. HE OBSERVED THAT SHRI SATYA NARAIN JAIN HAS CREATED MANY SOCIET IES BUT ULTIMATELY HE IS THE BENEFICIARY HIMSELF. HE THEREFORE TOOK THE VIEW THAT THE SOCI ETY WAS CREATED BY SRI AMIT JAIN AND HIS FATHER SATYA NARAIN JAIN DELIBERATELY AND CONSCIOUSLY TO C ONCEAL THE PROPERTY TRANSACTIONS AND TAX INCIDENCE THEREON. SINCE SHRI AMIT JAIN IS THE SEC RETARY OF SOCIETY AND HAD DONE ALL THE TRANSACTIONS IN THE NAME OF THE SOCIETY THEREFORE ENTIRE INVESTMENT AND TRANSACTION IN THE NAME OF SOCIETY WERE HELD TO BE THE TRANSACTIONS AND INV ESTMENTS OF SRI AMIT JAIN. HE NOTED THAT 4 DURING THE ASSESSMENT YEAR 2004-05 INVESTMENT OF R S.15 LACS + 10 LACS + 35 LACS + 48 LACS = 1.08 CRORE WAS MADE IN PROPERTY AT SL. NO. 2 TO 5 O F ABOVE CHART AND DURING THE ASSESSMENT YEAR 2003-04 AN INVESTMENT OF RS.5 00 000/- WAS MADE IN THE PROPERTY. THE ADDITIONS OF THESE INVESTMENTS WERE MADE ON SUBSTANTIVE BASIS IN THE C ASE OF SRI AMIT JAIN WHILE ON PROTECTIVE BASIS IN THE HANDS OF SOCIETY. SIMILARLY HE PRESUMED THA T THE SOCIETY WOULD HAVE INCURRED EXPENDITURE AT LEAST 10% OF THE VALUE OF THE PROPERTY IN STAMP DUTY 3% BY WAY OF COMMISSION AND MISCELLANEOUS EXPENSES. HE ESTIMATED THE SALE VALUE OF THESE PROPERTIES FOR THE A.Y. 2003-04 AT RS.16 50 000/- AND FOR A.Y. 2004-05 AT RS.1 61 78 0 00/- AND ACCORDINGLY ESTIMATED THE INVESTMENT IN STAMPS IN ASSESSMENT YEAR 2003-04 AT RS.1 65 000/- AND FOR A.Y. 2004-05 AT RS.16 17 800/-. THE COMMISSION FOR THE ASSESSMENT Y EAR 2003-04 WAS ESTIMATED AT RS.49 500/- AND FOR ASSESSMENT YEAR 2004-05 AT RS.3 24 000/-. T HUS THE ASSESSING OFFICER WORKED OUT UNDISCLOSED INVESTMENT IN STAMP AND COMMISSION FOR THE ASSESSMENT YEAR 2003-04 AT RS.2 14 500/- AND FOR THE ASSESSMENT YEAR 2004-05 A T RS.19 41 000/-. HE ADDED THEREIN THE SUM OF RS.500000/- AND 600000/- FOR THE ASSESSMENT YEAR 2003-04 AND WORKED OUT UNEXPLAINED INVESTMENT FOR THE A.Y. 2003-04 AT RS.13 14 500/- A ND ADDED A SUM OF RS.1.08 CRORE AND 19 41 000/- FOR A.Y.2004-05 AND WORKED OUT UNDISCLO SED INVESTMENT AT RS.1 27 41 000/- AND ADDED THIS ON PROTECTIVE BASIS IN THE INCOME OF THE ASSESSEE. 5. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). T HE CIT(A) NOTED THAT THE ASSESSING OFFICER DID NOT PROVIDE SUFFICIENT OPPORTUNITY TO T HE ASSESSEE FOR SUBMISSION OF REQUISITE DETAILS AND HE ACCORDINGLY U/R 46A(1)(A)(B)(C)(D) OF THE INCOME-TAX RULES ADMITTED THE ADDITIONAL EVIDENCE AND ISSUED THE DIRECTION TO THE ASSESSING OFFICER U/S. 250(4) AND RULE 46A(1)(B) FOR FURTHER ENQUIRY BY OBSERVING AS UNDER : 1.7 I FIND THAT INSPITE OF APPELLANT'S REQUEST F OR TIME FOR FILING THE EVIDENCE IN THE FORM OF PUBLIC DOCUMENTS I.E. SALE DEEDS ASSE SSING OFFICER ON ACCOUNT OF TIME 5 BARRING CASE DID NOT ALLOW PROPER TIME TO APPELLANT TO PRODUCE THE SAME. HENCE UNDER RULE 46A(1)(B) (C) AND (D) OF THE I.T. RULES THESE PAPERS ARE ADMITTED IN EVIDENCE. FOR FURTHER ENQUIRY DIRECTIONS FOR THEIR ENQUIRY WERE ISSUED BY ME TO THE ASSESSING OFFICER U/S. 250(4) AND RULE 46A(B). I FIND IN PARA 2 OF REMAND REP ORT ASSESSING OFFICER HAS ALSO NOT OBJECTED ADMISSION OF SALE DEEDS IN EVIDENCE. HENC E EVIDENCE OF SALE DEED AND OTHER PAPERS ARE ADMITTED IN EVIDENCE FOR BEING CONSIDERE D AT PROPER PLACE. FURTHER VARIOUS DECISIONS CITED BY THE APPELLANT ALSO SUPPORT MY VI EW IN THIS REGARD I FIND THAT IN THE CASE OF CIT VS. K. RAVINDRANATHAN NAIR REPORTED IN 184 ITR 46 THE HON'BLE KERALA HIGH COURT HAVE HELD THE SIMILAR VIEW AS UNDER:- 'THE PROVISIONS OF R. 46A(1) PROVIDE THAT THE APPEL LANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE CIT(A) ANY EVIDENCE WHETHER ORAL OR DOCUMENTARY OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE AO EXCEPT. IN THREE CIRCU MSTANCES. IT MAY BE TRUE THAT THE ASSESSEE'S CASE MAY NOT FALL UNDER AN Y OF THE THREE CLAUSES. HOWEVER SUB-R (4) OF R.46A CLEARLY PROVIDES THAT NOTHING CONTAINED IN R.46A SHALL AFFECT THE POWER OF THE CIT (A) TO DIRE CT THE PRODUCTION OF ANY DOCUMENT OR THE EXAMINATION OF ANY WITNESS TO ENABL E HIM TO DISPOSE OF THE APPEAL OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLU DING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY WHETHER ON HIS OWN MO TION OR ON THE REQUEST OF THE AO UNDER CLA. (A) OF SUB-S (1) OR S. 251 ON A CONSIDERATION OF THE PROVISIONS OF R. 46A PARTICULAR SUB-R (4) THEREOF AND THE PROVISIONS OF S. 250(1)(1) THE PROVISIONS OF S. 250 ENABLES THE CIT( A) TO ACCEPT ADDITIONAL EVIDENCE IN APPROPRIATE CASES WHICH POWER HAS BEEN PRESERVED BY SUB-R (4) OF R. 46A ALSO. IF THE PROVISIONS OF R. 46A SUB-R (4) THEREOF IS HELD TO BE MANDATORY THAT WILL GO AGAINST THE PROVISIONS OF S. 250 CONFERRING POWER ON THE FIRST APPELLATE AUTHORITY TO ENQUIRE INTO TH E MATTER AND PASS APPROPRIATE ORDERS. IN OTHER WORDS R. 46A WITHOUT SUB-R (4) WILL BE OPEN TO CHALLENGE AS ULTRA VIRES S. 250 SMT. PRABHAVATI S.SJAH VS. CIT (1998) 148 CTR (BOM) 192 (1998) 231 ITR 1 (BOM) RELIED ON. THE TRIBUNAL HAS CONSIDERED THE MATTER KEEPING IN M IND THE PROVISIONS OF SUB-R (4) OF R. 46A AND THE PROVISIONS OF S. 250 THOUGH THE PROVISIONS ARE NOT SPECIFICALLY MENTIONED AND OBSER VED THAT THE CIT (A) WAS NOT JUSTIFIED IN REJECTING THE CONFIRMATION LET TERS STRAIGHTAWAY AND THAT HE SHOULD HAVE DIRECTED THE AO TO CONSIDER THE SAID CONFIRMATORY LETTERS AND TO FIND OUT THE IDENTITY CREDITWORTHINE SS ETC. OF THE PERSONS WHO HAD MADE THE FIXED DEPOSIT. IT IS ON THE ABOVE CIRC UMSTANCES THE TRIBUNAL DIRECTED THE AO TO CONSIDER THE TWO CONFIRMATORY LE TTERS PRODUCED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY AND T O DECIDE THE QUESTION AFRESH. HERE IT MUST BE NOTED THAT NEITHER THE A.O . NOR THE FIRST APPELLATE AUTHORITY HAD ANY CASE THAT THE APPELLANT WAS GIVEN SEVERAL OPPORTUNITIES TO PRODUCE THE CONFIRMATORY LETTERS AND THE ASSESSE E DID NOT AVAIL THE SAID OPPORTUNITY BY OBTAINING AND PRODUCING THE CONFIRMA TORY LETTERS FROM THE TWO PERSONS. ONLY REASON STATED IS THAT NO EVIDENC E WAS PRODUCED THERE IS NO REASON TO INTERFERE WITH THE ORDER OF THE TRI BUNAL ON THIS ISSUE. ' 1.8 IN VIEW OF THE ABOVE POSITION THE ADDITIONAL EVIDENCE FILED IS ADMITTED AS PER RULE 46A OF I.T. RULES. 6 6. ON MERITS ALSO HE SENT BACK THE SUBMISSIONS MAD E BY THE ASSESSEE TO THE ASSESSING OFFICER FOR SENDING HIS REMAND REPORT AND AFTER CON SIDERING THE REMAND REPORT OF THE ASSESSEE THE CIT(A) TOOK THE VIEW THAT THE SOCIETY IS GENUINE A ND DELETED THE ADDITION OF RS.6 LACS AND RS.5 32 000/- DURING THE ASSESSMENT YEAR 2003-04 BY OBSERVING AS UNDER : 2.5 I HAVE PERUSED THE ASSESSMENT RECORDS ASSESSM ENT ORDER AND THE REMAND REPORT OF THE ASSESSING OFFICER AS WELL AS THE WRIT TEN SUBMISSIONS OF THE APPELLANT AND THE ANNEXURES ATTACHED THEREWITH AND CASE LAW CITED. FR OM THE PERUSAL OF THE EVIDENCES AND DOCUMENTS PLACED ON RECORD I FIND THAT THE SOCIETY IS REGISTERED WITH THE DY. REGISTRAR OF SOCIETY AND IS A SEPARATE LEGAL ENTITY. IT HAS BEEN DEALING IN PURCHASE AND SALE OF THE LAND ON BEHALF OF ITS MEMBERS. THE SOCIETY RAISES ADVANCES FROM ITS MEMBERS FOR PURCHASE OF LAND ON THEIR BEHALF AND AFTER ACQUIRING THE LAND THE SAME IS DEMARCATED INTO PLOTS AND THE SAME ARE ALLOTTED TO THE MEMBERS OF THE SOCIETY ON NO PROFIT AND NO LOSS BASIS. THEREAFTER SALE DEEDS ARE MADE IN THEIR FAVOUR. ON MY DIRECTIONS U/S 250 (4) FOR THE PURPOSE OF VERIFICATION OF THE TRANSACTION OF THE SOCIETY THE ASSESSING OFFICER D EPUTED THE INCOME-TAX INSPECTOR WHO CONTACTED VARIOUS MEMBERS OF THE SOCIETY NAMELY SMT . MEERA SINGHAL RAM SAKHI GUPTA KUSUM GARG NEELAM SHARMA GOVIND SINGH VIST DEEP CHAND BABU RAM ARYA RAM NARAYAN ASHA SAINI KASHMIRI ASHISH JAIN ETC. WHO SE STATEMENTS WERE RECORDED BY HIM WHEREIN THEY ALL HAVE CONFIRMED TO HAVE BEEN ALLOTT ED AND SOLD PLOTS OF LAND TO THEM BY THE SOCIETY. THEIR STATEMENTS ARE ALSO PLACED ON RECORD S. THE EXISTENCE OF THE SOCIETY IS PROVED. I FOUND IN THE REMAND REPORT THAT THE ASSESSING OFFIC ER HAS NOT CONTROVERTED THE FACTS STATED BY THE APPELLANT BUT ON THE OTHER HAND IN THE REMAN D REPORT SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CONFIRMED BY MEMBERS ON ENQUIRY MADE BY ASSESSING OFFICER. THESE MEMBERS OF THE SOCIETY HAVE FURTHER CONFIRMED THE D EPOSIT OF ADVANCE MONEY FOR PURCHASE OF PLOT BY THE SOCIETY AND ALSO MADE FULL PAYMENT OF P LOT TO THE SOCIETY PRIOR TO REGISTRATION OF SALE DEED IN THEIR FAVOUR BY THE SOCIETY. THUS APPE LLANT HAS PROVED BOTH PURCHASE AND SALE TRANSACTION OF LAND AND ALSO THE SOURCE OF FUNDS BE ING AVAILABLE FROM MEMBERS OF THE SOCIETY. 2.6 IT IS OBSERVED THAT SATYA NARAIN JAIN HAS NO C ONCERN IN PERSONAL CAPACITY WITH THE SOCIETY AND AMIT JAIN BEING SECRETARY OF T HE SOCIETY HAS EXECUTED SALE DEED IN FAVOUR OF THE MEMBERS ON BEHALF OF THE SOCIETY AND SOCIETY IS THE ABSOLUTE OWNER OF ALL THESE TRANSACTION. AFTER PERUSAL OF ENTIRE EVIDENCE AND MATERIAL ON RECORD I HOLD THAT THE SOCIETY WAS DEALING IN PURCHASE AND SALE OF LAND ON BEHALF OF MEMBERS. HOWEVER POSSIBILITY OF SUPPRESSION ON ALL TRANSACTIONS AND INVESTMENT OF FUND OUTSIDE THE BOOKS AND SOME EARNING CANNOT BE RULED. I THEREFORE MAI NTAIN AN ADDITION OF 20% OF RS.6 65 000/- = RS.1 33 000/- TO THE INCOME OF THE SOCIETY AS AN UNPROVED INVESTMENT AND BALANCE ADDITION OF RS 5 32 000/- IS HEREBY DELETED . 2.7 I FURTHER HOLD THAT THERE WAS NO JUSTIFICATION FOR ADDITION OF RS. 6 LAKH FOR LOOSE PAPER AS THESE TRANSACTIONS ARE FULLY VERIFIA BLE FROM THE ACCOUNT BOOKS OF BABITA JAIN A SEPARATE ASSESSEE. MOREOVER IT IS A TRANSAC TION OF RS. 3 LAKH AND NOT RS. 6 LAKH. ASSESSING OFFICER HAS MADE DOUBLE ADDITION OF BOTH CREDIT AND DEBIT. HENCE I DELETE THE ADDITION OF RS. 6 LAKH IN RESPECT OF LOOSE PAPERS WHICH WAS ARBITRARY AND WITHOUT VERIFICATION MADE BY THE ASSESSING OFFICER. HENCE ADDITION OF RS. 6 00 000/- IS DELETED. 7 7. SIMILARLY DURING THE ASSESSMENT YEAR 2004-05 T HE ADDITION OF RS.1 01 93 800/- WAS DELETED AND THE ADDITION OF RS.25 48 200/- WAS SUS TAINED BY OBSERVING AS UNDER : 2.5 I HAVE PERUSED THE ASSESSMENT RECORDS ASSESS MENT ORDER AND THE REMAND REPORT OF THE ASSESSING OFFICER AS WELL AS T HE WRITTEN SUBMISSIONS OF THE APPELLANT AND THE ANNEXURES ATTACHED THEREWITH AND CASE LAW CITED. FROM THE PERUSAL OF THE EVIDENCES AND DOCUMENTS PLACED ON RE CORD 'I FIND THAT THE SOCIETY IS REGISTERED WITH THE DY. REGISTRAR OF SOCIETY AND IS A SEPARATE LEGAL ENTITY. IT HAS BEEN DEALING IN PURCHASE AND SALE OF THE LAND ON BE HALF OF ITS MEMBERS. THE SOCIETY RAISES ADVANCES FROM ITS MEMBERS FOR PURCHA SE OF LAND ON THEIR BEHALF AND AFTER ACQUIRING THE LAND THE SAME IS DEMARCATED IN TO PLOTS AND THE SAME ARE ALLOTTED TO THE MEMBERS OF THE SOCIETY ON NO PROFIT AND NO LOSS BASIS. THEREAFTER SALE DEEDS ARE MADE IN THEIR FAVOUR. ON MY DIRECTIO NS U/S 250 (4) FOR THE PURPOSE OF VERIFICATION OF THE TRANSACTION OF THE SOCIETY THE ASSESSING OFFICER DEPUTED THE INCOME-TAX INSPECTOR WHO CONTACTED VARIOUS MEMBERS OF THE SOCIETY NAMELY SMT . MEERA SINGHAL RAM SAKHI GUPTA KUSUM GARG NEELAM SHARMA GOVIND SINGH VIST DEEP CHAND BABU RAM ARYA RAM NARAYAN ASHA SAINI KASHMIRI ASHISH JAIN ETC. WHOSE STATEMENTS WERE RECORDED BY HIM WH EREIN THEY ALL HAVE CONFIRMED TO HAVE BEEN ALLOTTED AND SOLD PLOTS OF LAND TO THE M BY THE SOCIETY. THEIR STATEMENTS ARE ALSO PLACED 'ON RECORDS. THE EXISTEN CE OF THE SOCIETY IS PROVED. I FOUND IN THE REMAND REPORT THAT THE ASSESSING OFFIC ER HAS NOT CONTROVERTED THE FACTS STATED BY THE APPELLANT BUT ON THE OTHER HAND IN THE REMAND REPORT SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CONFIRM ED BY MEMBERS ON ENQUIRY MADE BY ASSESSING OFFICER. THESE MEMBERS OF THE SOC IETY HAVE FURTHER CONFIRMED THE DEPOSIT OF ADVANCE MONEY FOR PURCHASE OF PLOT B Y THE SOCIETY AND ALSO MADE FULL PAYMENT OF PLOT TO THE SOCIETY PRIOR TO REGIST RATION OF SALE DEED IN FAVOUR BY THE SOCIETY. THUS APPELLANT HAS PROVED BOTH PURCHAS E AND SALE TRANSACTION OF LAND AND ALSO THE SOURCE OF FUNDS BEING AVAILABLE FROM M EMBERS OF THE SOCIETY. 2.6 IT IS OBSERVED THAT SATYA NARAIN JAIN HAS NO C ONCERN IN PERSONAL CAPACITY WITH THE SOCIETY AND AMIT JAIN BEING SECRETARY OF T HE SOCIETY HAS EXECUTED SALE DEED IN FAVOUR OF THE MEMBERS ON BEHALF OF THE SOCI ETY AND SOCIETY IS THE ABSOLUTE OWNER OF ALL THESE TRANSACTION. AFTER PERUSAL OF EN TIRE EVIDENCE AND MATERIAL ON RECORD I HOLD THAT THE SOCIETY WAS DEALING IN PURC HASE AND SALE OF LAND ON BEHALF OF MEMBERS. HOWEVER POSSIBILITY OF SUPPRESSION ON ALL TRANSACTIONS AND INVESTMENT OF FUND OUTSIDE THE BOOKS AND SOME EARNI NG CANNOT BE RULED. I THEREFORE MAINTAIN AN ADDITION OF 20% OF RS. 1 27 41 000/-. RS. 25 48 200/- TO THE INCOME OF THE SOCIETY AS AN UNPROVED INVESTMENT AND BALANCE ADDITION OF RS.1 01 93 800/- IS HEREBY DE LETED. BOTH THE ASSESSEE AS WELL AS THE REVENUE HAS COME IN APPEAL BEFORE US. 8 ASSESSMENT YEAR 2003-04 : 8. GROUND NO.1 IN REVENUES APPEAL RELATE TO THE DE LETION OF ADDITION OF RS.5 32 000/- OUT OF ADDITION OF RS.6 65 000/- MADE BY THE ASSESSING OFFICER WHILE THE ASSESSEE HAS COME IN CROSS APPEAL AGAINST THE SUSTENANCE OF ADDITION OF RS.1 3 3 000/- OUT OF RS.6 65 000/- IN GROUND NO. 1. 9. THE LD. DR VEHEMENTLY CONTENDED THAT THE ASSESSE E-SOCIETY MADE AN INVESTMENT OF RS.5 LACS IN THE PURCHASE OF PROPERTY AT KHASRA NO. 602 MAUZA BASAI MUSTAKIL AGRA VIDE SALE DEED DATED 11.10.2002. THE ASSESSEE MIGHT HAVE INCURRED THE EXPENDITURE BY WAY OF STAMP DUTY FOR EXECUTION OF SALE DEED. SINCE THE SALE VALUE OF THE SAID PROPERTY WAS RS.16 50 000/- AS PER STAMP VALUATION THE ASSESSEE WOULD HAVE INCURRED EXPENDI TURE BY WAY OF STAMP AT RS.1 65 000/-. THEREFORE THE ASSESSING OFFICER HAS ADDED THE SUM OF RS.6 65 000/- DURING THE YEAR. THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND THEREFORE THE CIT(A) WAS NOT CORRECT IN LAW IN DELETING THE SAME. HE RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 10. THE LD. AR ON THE OTHER HAND REITERATED THE S UBMISSIONS MADE BEFORE THE CIT(A) AND POINTED OUT THAT THE SOCIETY IS A LEGAL ENTITY CREA TED UNDER THE SOCIETIES ACT ENTITLED TO HOLD THE PROPERTY AND WORK ON BEHALF OF THE MEMBERS FOR THEI R MUTUAL BENEFIT WITHOUT ANY PROFIT MOTIVE. THERE WERE ABOUT 55 MEMBERS OF THE SOCIETY DURING T HE F.Y. 2002-03. THE LIST OF THOSE MEMBERS WAS DULY FILED. EACH MEMBER DEPOSITED RS.110/- TOTA LING TO RS.6050/- AND FURTHER 54 MEMBERS DEPOSITED A MONEY TOTALING TO RS.6 60 000/- FOR THE PURCHASE OF LAND. THE LIST OF SUCH MEMBERS WAS DULY FILED. FROM THIS TOTAL MONEY OF RS.6 66 05 0/- THE ASSESSEE PURCHASED LAND FOR RS.6 65 500/-. THERE WAS NO QUESTION OF ANY UNEXPLA INED SOURCE OF THE INVESTMENT. THE CIT(A) EVEN THOUGH AGREED WITH THE SOURCE OF INVESTMENT B UT SUSTAINED THE ADDITION FOR THE POSSIBILITY 9 OF SUPPRESSION ON ALL TRANSACTIONS AND INVESTMENT O F FUNDS OUTSIDE THE BOOKS @ 20% OF RS.6 65 000/-. NO EVIDENCE WHATSOEVER WAS FOUND D URING THE COURSE OF SEARCH WHICH MAY PROVE THAT THE ASSESSEE HAS EARNED INCOME @ 20% ON RS.6 65 000/-. THE ADDITION U/S. 69 COULD BE MADE ONLY IF IT IS PROVED THAT THE ASSESSEE HAS EITHER MADE ANY INVESTMENT OR EARNED ANY INCOME OUTSIDE THE BOOKS. THE CIT(A) SHOULD HAVE DE LETED THE WHOLE OF THE ADDITION. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS PERUSED THE MATERIAL ON RECORD. WE NOTED THAT THE ASSESSING OFFICER HAS HELD THE SOCIE TY TO BE THE NON-GENUINE AND MADE THE ADDITION IN THE HANDS OF THE SOCIETY ON PROTECTIVE BASIS WHILE IN THE HANDS OF SHRI AMIT JAIN THE SECRETARY OF THE SOCIETY ON SUBSTANTIVE BASIS. WHEN THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) THE CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT THE SOCIETY IS GENUINE SOCIETY. THIS FINDING OF THE CIT(A) HAS NOT BEEN CHALLENGED BY TH E REVENUE. THE ASSESSEE HAS FILED LIST OF MEMBERS FROM WHOM THE MONEY WAS RECEIVED COPY OF W HICH IS AVAILABLE AT PAGE 30 TO 33 OF THE PAPER BOOK. THIS LIST CLEARLY SHOWS THAT THE ASSESS EE HAS RECEIVED RS.6 60 000 + 6050/- FROM VARIOUS MEMBERS AND OUT OF THIS MONEY THE ASSESSEE HAS INCURRED A SUM OF RS.6 65 500/- ON THE PURCHASE OF LAND. THE CIT(A) HAS ALSO GIVEN THE CAT EGORICAL FINDING IN THIS REGARD AND ACCEPTED THE SOURCE OF THE INVESTMENT TO BE THE EXPLAINED ON E. NO COGENT MATERIAL OR EVIDENCE WAS BROUGHT TO OUR NOTICE WHICH MAY MAKE US DISAGREE WI TH THE CIT(A). TO THAT EXTENT IN OUR OPINION NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). 12. EVEN THOUGH THE CIT(A) ACCEPTED THE SOURCE OF I NVESTMENT BUT STILL ADDED 20% OF RS.6 65 000/- I.E. RS.1 33 000/- ON ACCOUNT OF PO SSIBILITY OF SUPPRESSION ON ALL TRANSACTION AND INVESTMENTS OF FUNDS OUTSIDE THE BOOKS. IN OUR OPIN ION FOR MAKING AN ADDITION U/S. 69 THE ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS AC TUALLY MADE THE INVESTMENT OR MADE THE 10 EARNING OUTSIDE THE BOOKS. THERE HAD BEEN SEARCH IN THE CASE OF ASSESSEE BUT NO EVIDENCE OR MATERIAL BEING FOUND DURING THE COURSE OF SEARCH WH ICH MAY PROVE THAT THE ASSESSEE HAD MADE UNDISCLOSED INVESTMENT OR EARNING. EVEN NO MATERIA L OR EVIDENCE WAS BROUGHT ON RECORD BY THE CIT(A) WHILE SUSTAINING THE ADDITION OF RS.1 33 000 /-. WE ARE OF THE VIEW THAT ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS EARNED THE I NCOME OR HAD MADE UNEXPLAINED INVESTMENT AND NOT ON THE ASSESSEE. THE REVENUE IN THIS CASE H AS NOT DISCHARGED ITS ONUS. WE ACCORDINGLY DELETE THE ADDITION OF RS.1 33 000/- SUSTAINED BY T HE CIT(A). THUS GROUND NO. 1 TAKEN BY THE REVENUE STANDS DISMISSED WHILE GROUND NO. 1 TAKEN B Y THE ASSESSEE STANDS ALLOWED. 13. GROUND NO.2 IN REVENUES APPEAL READS AS UNDER : THAT LD. CIT(A) DID NOT AUTHORIZE THE AI U/S. 250( 4) TO MAKE VERIFICATION REGARDING SOURCE OF MONEY ALLEGEDLY RECEIVED FROM S MT. BABITA JAIN AND ACCEPTING THE CASH CREDIT AS PROVED WITHOUT LOOKING INTO THE IDENTITY GENUINENESS AND CREDITWORTHINESS THEREOF. 14. ON THE BASIS OF THIS THE LD. DR VEHEMENTLY CON TENDED THAT THE CIT(A) HAS EVEN THOUGH ASKED FOR REMAND REPORT FROM THE ASSESSING OFFICER BUT RESTRICTED THE SCOPE OF ENQUIRY TO BE CARRIED OUT BY THE ASSESSING OFFICER. THE CIT(A) DI D NOT AUTHORIZE THE ASSESSING OFFICER TO MAKE VERIFICATION ABOUT THE SOURCE OF MONEY ALLEGED LY RECEIVED FROM SMT. BABITA JAIN. THE ORDER OF CIT(A) SHOULD BE SET ASIDE IN THIS REGARD. 15. THE LEARNED AR ON THE OTHER HAND POINTED OUT THAT THIS GROUND RELATES TO THE ADDITION OF RS.6 00 000/- MADE BY THE ASSESSING OFFICER. THE AS SESSEE HAS RECEIVED A SUM OF RS.300000/- FROM SMT. BABITA JAIN THROUGH CHEQUE WHICH WAS REP AID TO HER DURING THE YEAR. THE ASSESSING OFFICER ADDED BOTH THE DEBIT AND CREDIT WHILE THE B ALANCE IN THE CASE OF SMT. BABITA JAIN WAS NIL. FOR THIS OUR ATTENTION WAS DRAWN TO PAGE 37 OF THE PAPER BOOK. IT WAS CONTENDED THAT THE CIT(A) 11 HAS NOT RESTRICTED THE SCOPE OF ENQUIRY TO BE CARRI ED OUT BY THE ASSESSING OFFICER IN CONSEQUENCE OF THE ORDER PASSED U/S. 250(4). FOR THIS OUR ATTE NTION WAS DRAWN TO PAGE 22 OF THE PAPER BOOK AND IT WAS CONTENDED THAT THE CIT(A) HAS CLEARLY AS KED THE ASSESSING OFFICER TO SUBMIT THE REMAND REPORT AND HE MAY EXAMINE THE PAPER BOOK AND WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE GONE THROUGH THE DOC UMENTS AND PAPERS ON WHICH OUR ATTENTION WAS INVITED. WE FIND THAT THE CIT(A) HAS GIVEN CLEA R CUT FINDING THAT THE TRANSACTION OF RS.6 00 000/- IS FULLY VERIFIABLE FROM THE ACCOUNT BOOKS OF SMT. BABITA JAIN WHO IS SEPARATE ASSESSEE AND THE TRANSACTION WAS ACTUALLY OF THE SU M OF RS.300000/- AND NOT RS.600000/- AND THE ASSESSING OFFICER HAS MADE DOUBLE ADDITION. WE HAVE ALSO GONE THROUGH THE LETTER DATED 08.12.2008 WRITTEN BY THE CIT(A) ASKING FOR THE REM AND REPORT OF THE ASSESSING OFFICER. WE NOTED FROM THE SAID LETTER THAT THE CIT(A) HAS NOT RESTRICTED THE SCOPE OF ENQUIRY TO BE CARRIED OUT BY THE ASSESSING OFFICER. THE CIT(A) NO DOUBT HAS SPECIFICALLY ASKED THE REPORT ON CERTAIN ISSUES WHICH IS CLEAR FROM THE FOLLOWING WORDINGS : IN THE MEANTIME WHILE EXAMINING PAPER BOOK AND THE WRITTEN SUBMISSIONS DATED 26.11.2008 SUBMITTED BY THE AR (COPY ALREADY FORWARDED VIDE ORDER U/S. 250(4) DATED 03.12.2008) IT IS OBSERVED THAT YOU MA Y AT THE FOLLOWING ISSUES IN YOUR REMAND REPORT. 17. FROM THE SAID SENTENCE OF THE LETTER IT IS APP ARENT THAT THE CIT(A) HAS NOT RESTRICTED THE SCOPE OF ENQUIRY OF THE ASSESSING OFFICER TO BE CAR RIED OUT IN CONSEQUENCE OF THE ORDER U/S. 250(4). WE THEREFORE DO NOT FIND ANY MERIT IN THE PLEA TAKEN BY THE LD. DR. THE AMOUNT HAS BEEN RECEIVED FROM SMT. BABITA JAIN THROUGH CHEQUE AND PAID TO HER THROUGH CHEQUE. SHE IS A SEPARATE ASSESSEE. NO CONTRARY MATERIAL WAS BROUGHT TO OUR KNOWLEDGE WHICH MAY COMPEL US TO REVERSE THE FINDING OF THE CIT(A). UNDER THESE FACT S AND CIRCUMSTANCES WE DO NOT FIND ANY MERIT 12 IN THE GROUND NO. 2 TAKEN BY THE REVENUE. THUS THE GROUND NO. 2 IN REVENUES APPEAL STANDS DISMISSED. 18. GROUND NO. 2 IN ASSESSEES APPEAL RELATES TO TH E SUSTENANCE OF ADDITION OF RS.49 500/- BEING ESTIMATED EXPENDITURE INCURRED @ 3% BY WAY OF COMMISSION. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME. WE NOTED THAT THIS ADDITION HAS BEEN MADE BY THE ASSESSING OFFICE R MERELY ON ESTIMATE BASIS. THERE IS NO EVIDENCE BEING BROUGHT ON RECORD WHICH MAY PROVE TH AT THE ASSESSEE HAS ACTUALLY PAID COMMISSION FOR THE PURCHASE OF PROPERTY @ 3%. IN OU R OPINION THE ONUS IS ON THE REVENUE TO PROVE BEFORE MAKING ANY ADDITION U/S. 69 THAT THE A SSESSEE HAS ACTUALLY INCURRED THE EXPENDITURE. IN THE ABSENCE OF ONUS BEING DISCHARGED BY THE REVE NUE WE DELETE THE ADDITION. THUS GROUND NO. 2 IN ASSESSEES APPEAL STANDS ALLOWED. ASSESSMENT YEAR 2004-05 : 20. GROUND NO. 1 IN REVENUES APPEAL AND GROUND NOS. 1 & 2 IN ASSESSEES APPEAL RELATE TO THE SAME ISSUE RELATING TO THE ADDITION OF RS.1 27 41 000/-. RS. 1 08 00 000/- WERE ADDED AS POINTED OUT IN BRIEF FACTS GIVEN IN PARA 4 HEREINAB OVE ON ACCOUNT OF INVESTMENT MADE IN THE PROPERTY GIVEN AT SL. NOS. 2 TO 5 OF THE CHART DEPI CTED AT PAGE 2 HEREINABOVE AND RS.19 41 000/- WERE ADDED TOWARDS ESTIMATED EXPENDITURE INCURRED F OR THE PURCHASE OF THE PROPERTIES BY WAY OF STAMP DUTY AND COMMISSION. THE CIT(A) AS POINTED O UT IN THE PRECEDING PARAGRAPH NO. 7 DELETED THE ADDITION FOR RS.1 01 93 800/- AND SUSTA INED RS.25 48 200/-. THE REVENUE HAS COME IN APPEAL AGAINST THE DELETION OF ADDITION OF RS.1 01 93 800/- WHILE THE ASSESSEE HAS COME IN APPEAL AGAINST SUSTENANCE OF ADDITION OF RS.25 48 200/-. 13 21. THE LEARNED DR RELIED ON THE ORDER OF THE ASSES SING OFFICER AND CONTENDED THAT THE SOCIETY WAS NOT GENUINE WHILE THE LD. AR RELIED ON THE ORDER OF THE CIT(A) AND REITERATED THE SUBMISSIONS MADE IN RESPECT OF THE ADDITION MADE ON THIS ACCOUNT DURING THE ASSESSMENT YEAR 2003-04. IT WAS REITERATED THAT THE SOCIETY IS A LE GAL CREATION CREATED UNDER THE SOCIETIES ACT ENTITLED TO HOLD THE PROPERTIES AND WORK ON BEHALF OF THE MEMBERS FOR THEIR MUTUAL BENEFIT WITHOUT ANY PROFIT MOTIVE. THERE WERE 55 MEMBERS DU RING THE ASSESSMENT YEAR 2003-04. THEREAFTER 52 NEW MEMBERS WERE INDUCTED AND MEMBER SHIP @ 110/- PER MEMBER AGGREGATING TO RS.5720/- WERE REALIZED. TOTAL MEMBERS THEREFOR E WERE 107. THE LIST OF MEMBERS WAS FILED. IT WAS POINTED OUT THAT A SUM OF RS.1 29 62 002/- W ERE REALIZED TOWARDS THE COST OF LAND AND DEVELOPMENT OF ROADS ETC. THE OPENING BALANCE WAS R S.550/- AND RS.5720/- WAS RECEIVED TOWARDS MEMBERSHIP FEES. THE LAND COST RECEIVED FRO M THESE MEMBERS WAS RS.1 29 62 002/-. THUS THE TOTAL AMOUNT RECEIVED BY THE SOCIETY WERE RS.1 29 68 272/- FROM THE MEMBERS. THE LIST OF SUCH DEPOSITS BY THE MEMBERS ALONGWITH MEMBERSHI P FEE WAS FILED. THE LAND WAS DEVELOPED IN THE NEXT YEAR. ONLY CUTTING OF THE PLOTS WAS MA DE AND ROADS WERE CONSTRUCTED FOR WHICH MONEY WAS FURTHER RECEIVED FROM EIGHT MEMBERS TO WH OM THIS LAND WAS ALLOTTED. THE SALE DEEDS WERE EXECUTED FROM TIME TO TIME AS AND WHEN REQUIRE D BY THE PURCHASER. ALL THE DETAILS REGARDING THE DATE OF ALLOTMENT AND DATE OF REGISTRATION OF PLOTS IN THEIR FAVOUR WERE DULY FILED. A SUM OF RS.5 11 272/- WAS INCURRED FOR THE DEVELOPMENT OF L AND AND LEVELING OF ROADS INCLUDING PREPARATION OF MAP. THE LAND WAS GIVEN ON NO PROFIT NO LOSS BASIS. AFTER THE ALLOTMENT THE MEMBERS HAVE CONSTRUCTED THEIR OWN HOUSES. ALL THE EVIDENCES WERE ALSO FILED BEFORE THE CIT(A). REMAND REPORT WAS DULY CALLED FOR FROM THE ASSESSING OFFICER FOR WHICH OUR ATTENTION WAS DRAWN TOWARDS THE REMAND REPORT AS WELL AS THE LIST AND DETAILS OF MEMBERS AVAILABLE AT PAGE 1 TO 21 OF THE PAPER BOOK. IT WAS VEHEMENTLY CONTE NDED THAT THE ADDITION OF RS.25 48 200/- WAS 14 SUSTAINED MERELY ON ESTIMATE BASIS WITHOUT BRINGING ANY EVIDENCE ON RECORD THAT THE ASSESSEE SOCIETY HAS INCURRED ANY EXPENDITURE OUT OF BOOKS I N THIS REGARD. THE ASSESSEE HAS GIVEN COMPETE DETAILS IN RESPECT OF REGISTRY AMOUNT TOTALING TO RS.1 36 12 002/- WHICH INCLUDES ALLOTMENT MADE DURING THE YEAR RELEVANT TO THE ASSESSMENT YEAR. IN THIS REGARD ATTENTION WAS DRAWN TO PAGE 17 TO 21 OF THE PAPER BOOK. 22. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE ORDERS OF THE TAXING AUTHORITIES BELOW. WE NOTED THAT WE HAVE ALREADY HELD WHILE DISPOSING OF THE APPEAL FOR THE ASSESSMENT YEAR 2003-04 UNDER PARA 11 THAT THE ASSESSING OFFICER HELD THE SOCIETY TO BE NON-GENUIN E AND MADE ADDITION IN THE HANDS OF SOCIETY ON PROTECTIVE BASIS AND IN THE HANDS OF SHRI AMIT J AIN THE SECRETARY OF THE SOCIETY ON SUBSTANTIVE BASIS. WHEN THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) THE CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT THE SOCIETY IS A GENUINE SOCIETY. THIS FINDING OF THE CIT(A) HAS NOT BEEN CHALLENGED BY THE REVENUE IN THE ASSESSMENT YEAR 2003-04. DURI NG THE YEAR ALSO WE DO NOT FIND ANY GROUND TAKEN BY THE REVENUE AGAINST THIS FINDING OF THE CI T(A) EVEN THOUGH THE LEARNED DR HAS VEHEMENTLY TAKEN THIS PLEA BEFORE US. WE MAY POINT OUT THAT OUR JURISDICTION IS LIMITED TO THE GROUNDS TAKEN BEFORE US. WE THEREFORE CANNOT ADJU DICATE THIS ISSUE. SINCE THE SOCIETY HAS BEEN HELD TO BE GENUINE AND THIS FINDING OF THE LEARNED CIT(A) HAS NOT BEEN CHALLENGED BEFORE THIS TRIBUNAL THIS FINDING IN OUR OPINION HAS BECOME FINAL. THE SOCIETY IS DULY REGISTERED WITH THE REGISTRAR OF CO-OPERATIVE SOCIETIES HAVING A SEPARA TE ENTITY. THE SOCIETY HAS ITS OWN MEMBERS. THE TOTAL NUMBER OF MEMBERS WAS 107 UP TO THE ASSES SMENT YEAR UNDER CONSIDERATION. THE ASSESSEE-SOCIETY HAS DULY RECEIVED AMOUNT TOTALING TO RS.1 29 58 272/- FEOM THE MEMBERS. IN ADDITION TO IT IT HAS RECEIVED MEMBERSHIP FEE AMOU NTING TO RS.5720/-. THE SAID AMOUNT HAS BEEN SPENT BY THE ASSESSEE-SOCIETY FOR THE PURCHASE OF T HE LAND WHICH WAS ULTIMATELY ALLOTTED TO ITS 15 MEMBERS ON NO PROFIT AND NO LOSS BASIS. THE NAMES A ND ADDRESSES OF EACH AND EVERY MEMBER WERE DULY SUBMITTED BY THE ASSESSEE. THERE IS NO EV IDENCE OR MATERIAL BROUGHT ON RECORD TO SHOW THAT THE DEPARTMENT HAS TAKEN ANY ACTION AGAINST TH E PERSONS WHO HAVE BECOME THE MEMBERS OF SOCIETY AND HAVE PAID THE MONEY TO THE SOCIETY FOR ALLOTMENT OF LAND. THE CIT(A) HAS ALSO CALLED FOR THE REMAND REPORT OF THE ASSESSING OFFICER COP Y OF WHICH IS PLACED ON RECORD. IN THE SAID REMAND REPORT THE ASSESSING OFFICER HAD DULY ADMIT TED THAT THE ASSESSEE HAS FILED THE EVIDENCE BY WAY OF PURCHASE AND SALE DEED IN RESPECT OF LAND PURCHASED AND SOLD BY THE SOCIETY TO ITS MEMBERS AND THIS CONTAINED THE FACTS OF SALE AND PU RCHASE OF LAND. HE HAS NOT MADE ANY ADVERSE COMMENT ON THE PURCHASE AND SALE OF LAND. EVEN NO A DVERSE COMMENT HAS BEEN MADE THAT THE MONEY HAS NOT BEEN RECEIVED BY THE ASSESSEE-SOCIETY FROM ITS MEMBERS. UNDER THESE FACTS AND CIRCUMSTANCES IN OUR OPINION NO INTERFERENCE IS C ALLED FOR IN THE ORDER OF THE CIT(A) SO FAR AS IT RELATES TO THE DELETION OF ADDITION ON ACCOUNT OF I NVESTMENT IN LAND. 23. COMING TO THE SUSTENANCE OF ADDITION BY THE CIT (A) AS WE HAVE HELD WHILE DISPOSING OF THE APPEAL FOR THE ASSESSMENT YEAR 2003-04 IN THE P RECEDING PARAGRAPHS WE NOTED THAT DURING THIS YEAR ALSO THE CIT(A) SUSTAINED THE ADDITION IN RES PECT OF SUM OF RS.25 48 200/- MERELY ON THE ESTIMATE BASIS BEING 20% OF THE PURCHASE CONSIDERAT ION PRESUMING AS IF THE ASSESSEE WOULD HAVE INCURRED THE EXPENSES WHILE PURCHASING THE LAND. IN OUR OPINION FOR MAKING ADDITION U/S. 69 OF THE ACT THE ONUS IS ON THE REVENUE TO PROVE THAT T HE ASSESSEE HAS ACTUALLY MADE THE INVESTMENT OUTSIDE THE BOOKS OF ACCOUNT. UNTIL AND UNLESS THIS ONUS IS DISCHARGED IN OUR OPINION NO ADDITION COULD BE MADE. WE HAVE GONE THROUGH THE ORDERS OF T HE AUTHORITIES BELOW BUT WE DO NOT FIND ANY IOTA OF EVIDENCE WHICH MAY PROVE THAT THE ASSESSEE HAS INCURRED ANY SUCH EXPENDITURE ON THE PURCHASE OF LAND OUTSIDE THE BOOKS OF ACCOUNT. RESP ECTFULLY FOLLOWING OUR FINDING IN PARA 12 OF THIS ORDER FOR THE ASSESSMENT YEAR 2003-04 AS STAT ED HEREINABOVE WE DELETE THE ADDITION SO 16 SUSTAINED BY THE CIT(A). WE ACCORDINGLY DISMISS T HE GROUND NO. 1 OF THE REVENUES APPEAL AND ALLOW GROUND NOS. 1 & 2 OF THE ASSESSEES APPEAL. 24. GROUND NOS. 2 & 3 IN REVENUES APPEAL ARE GENER AL IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. 25. IN THE RESULT BOTH THE APPEALS FILED BY THE RE VENUE STAND DISMISSED AND THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.3.11. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 TH MARCH 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY