The ACIT, Circle-6,, v. Shri Brirendrasingh K. Bhadoria,,

ITSSA 158/AHD/2004 | misc
Pronouncement Date: 01-04-2010 | Result: Dismissed

Appeal Details

RSA Number 15820516 RSA 2004
Assessee PAN ABKPB6913G
Bench Ahmedabad
Appeal Number ITSSA 158/AHD/2004
Duration Of Justice 5 year(s) 10 month(s) 11 day(s)
Appellant The ACIT, Circle-6,,
Respondent Shri Brirendrasingh K. Bhadoria,,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 01-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 01-04-2010
Date Of Final Hearing 30-03-2010
Next Hearing Date 30-03-2010
Assessment Year misc
Appeal Filed On 21-05-2004
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.S. SAINI ACCOUNTANT MEMBER DATE OF HEARING: 30.03.10 DRAFTED ON:30.03.10 IT(SS)A NO.158/AHD/2004 BLOCK PERIOD: 1-4-86 TO 21-1-97 ACIT CIRCLE-6 C.U.SHAH CHAMBERS ASHRAM ROAD AHMEDABAD. VS. SHRI BIRENDRASINGH K. BHADORIA KALYAN DHAM OPP. PRIYA CINEMA NR. B.K. TENAMENT N.H.NO.8 AHMEDABAD. (APPELLANT) .. (RESPONDENT) IT(SS)A NO.131/AHD/2004 BLOCK PERIOD: 1-4-86 TO 21-1-97 SHRI BIRENDRASINGH K. BHADORIA KALYAN DHAM OPP. PRIYA CINEMA NR. B.K. TENAMENT N.H.NO.8 AHMEDABAD. VS. ACIT CIRCLE-6 C.U.SHAH CHAMBERS ASHRAM ROAD AHMEDABAD. (APPELLANT) .. (RESPONDENT) ITA NO.1912/AHD/2005 & 1913/AHD/2005 ASSESSMENT YEAR : 1997-98 AND 1998-99 ITO WARD 9(2) VASUPUJYA CHAMBERS A WING ASHRAM ROAD AHMEDABAD. VS. SHRI BHADORIA BIRENDRASINGH KALYANSINGH. KALYAN BHAVAN OPP. PRIYA CINEMA SAIJPUR BOGHA AHMEDABAD. PAN/GIR NO. : ABKPB 6913G (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI KUMAR HRISHIKESH SR. D.R. RESPONDENT BY: SHRI S.N.DIVETIA ADV. - 2 - O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THE IT(SS)A NO.158/AHD/2004 AND 131/AHD/2004 ARE THE CROSS APPEALS FILED BY THE REVENUE AND ASSESSEE AGAINST T HE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XI AHMEDABAD DATED 19.02.2007 PASSED IN THE BLOCK PERIOD 1-4-86 TO 21- 1-97. THE ITA NOS. 1912/AHD/2005 AND 1913/AHD/2005 ARE THE APPEAL S FILED BY THE REVENUE AGAINST THE CONSOLIDATED ORDER OF THE LEARN ED COMMISSIONER OF INCOME TAX(APPEALS)-XV AHMEDABAD DATED 25.05.2005 PASSED IN THE ASSESSMENT YEARS 1997-98 AND 1998-99. 2. IN THE APPEAL FILED AGAINST THE ORDER OF THE LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) PASSED IN THE BLOCK PERIOD THE ASSESSEE HAS CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDER PAS SED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 158BC READS WITH SE CTION 158BD OF THE ACT AND THEREFORE THE SAME IS BEING DECIDED FIRST. THE GROUND TAKEN BY THE ASSESSEE READS AS UNDER:- 1.1 THE ORDER PASSED BY CIT(A)-XII AHMEDABAD PART LY CONFIRMING THE ORDER OF BLOCK ASSTT. PASSED U/S.158 BD R.W.S. L58BC ON 29.10.2003 BY ACIT CIR-6 AHMEDABAD DETERMINING UNDISCLOSED INCOME AT RS.12 94 875 TOWA RDS HIS SHARES IN THE ALLEGED PURCHASE OF LAND AT NIKOL AH MEDAHAD IS WHOLLY ILLEGAL AND UNLAWFUL. 1.2 THE PROCEEDINGS INITIATED BY AO U/S. L58BD R.W. S. 158BC WERE ILLEGAL UNLAWFUL AND WITHOUT JURISDICTION. 3. THE BRIEF FACTS ARE THAT THE ASSESSEE SUBMITTED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THAT THE BLOCK PROCEEDINGS UNDER SECTION 158BD INITIATED BY THE LEARNED ASSESSING O FFICER ARE ILLEGAL AS THE APPELLANT HAS NOT BEEN INFORMED ABOUT THE MATER IAL ON THE BASIS OF WHICH THE SATISFACTION HAVE BEEN REACHED BY THE LEA RNED ASSESSING - 3 - OFFICER AND THEREFORE ON RECEIPT OF COPY OF THE SA ID MATERIAL THE APPELLANT WOULD BE ABLE TO MAKE BETTER AND FURTHER SUBMISSION S RELATING TO THIS GROUND OF APPEAL. 4. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT THE ORDER OF THE LEARNED ASSESSING OFFICER HAS BEEN CONSIDERED AND THE ARGUMENTS OF THE APPELLANT ARE TAKEN INTO CONSIDERA TION. FROM THE ASSESSMENT ORDER IT IS FOUND THAT THE DOCUMENT WAS SEIZED PERTAINING TO THE PURCHASE MADE BY THE APPELLANT FROM THE PREMISE S OF SHYAM BUILDERS IN WHICH SHRI JASHWANT K. PATEL WAS INTERESTED. ALS O THE STATEMENT OF SHRI JASHWANT K. PATEL AT THE TIME OF SEARCH CLEARLY MEN TIONED THE APPELLANTS NAME AS ONE OF THE BUYERS OF THE LAND AS APPEARING IN THE DOCUMENT SEIZED. HE THEREFORE HELD THAT THE LEARNED ASSESSI NG OFFICER WAS JUSTIFIED IN INITIATING THE PROCEEDINGS UNDER SECTION 158BD O F THE INCOME TAX ACT 1961. 5. THE BENCH ON 13.07.2009 PASSED AN ORDER VIDE ORD ER SHEET ENTRY NO.12 DIRECTING BOTH THE PARTIES TO PRODUCE THE SAT ISFACTION NOTE AND THE CONNECTED RECORDS ON THE NEXT DATE OF HEARING. THE SAID ORDER READS AS UNDER:- THE LD. COUNSEL FOR THE ASSESSEE RAISED THE ISSUE OF SATISFACTION TO BE RECORDED BEFORE 31.01.99 BUT WAS UNABLE TO PROD UCE THE SATISFACTION NOTE. THIS IS CRUCIAL TO THE DECISION IN RESPECT OF THE GROUND NO.1. ACCORDINGLY BOTH THE PARTIES ARE DIRE CTED TO PRODUCE THE SATISFACTION NOTE AND THE CONNECTED RECORDS AT THE NEXT DATE OF HEARING. ADJOURNED TO 31.08.2009. PIC. SD/- SD/- (NSS)(AM) (RVE) (VP) 6. THEREAFTER THE HEARING OF THE APPEAL WAS ADJOUR NED TO 31.08.2009 3.09.2009 26.10.2009 AT THE REQUEST OF THE LEARNED DEPARTMENTAL - 4 - REPRESENTATIVE. NEITHER THE DEPARTMENT HAS PRODUCE D THE RECORDS TO SHOW THAT ANY SATISFACTION NOTE WAS RECORDED BEFORE ISSU E OF NOTICE UNDER SECTION 158BD OF THE ACT NOR THE ASSESSEE HAS PRODU CED THE ORDER PASSED UNDER SECTION 158BC OF THE ACT IN THE CASE OF SHYAM BUILDERS GROUP THE SEARCHED PERSON WHICH COULD BE GONE THROUGH BY THE BENCH TO ASCERTAIN WHETHER SATISFACTION REGARDING THE INCOME IN THE SE IZED PAPER BELONGING TO THE ASSESSEE COULD BE ASCERTAINED BY BENCH. FURTHE R IT IS AN ESTABLISHED POSITION OF LAW THAT THE ONUS IS ON THE PERSON WHO ALLEGES THAT NO SATISFACTION NOTE WAS RECORDED BEFORE THE ISSUE OF NOTICE UNDER SECTION 158BD OF THE ACT. SINCE THE ASSESSEE HAS ALLEGED T HAT NO SATISFACTION NOTE WAS RECORDED BEFORE THE ISSUANCE OF NOTICE UNDER SE CTION 158BD OF THE ACT TO THE ASSESSEE THE ONUS WAS ON THE ASSESSEE T O FILE EVIDENCE IN SUPPORT OF THE SAME. AS NO SUCH EVIDENCE HAS BEEN F ILED THEREFORE THIS GROUND OF APPEAL OF THE ASSESSEE IS REJECTED. 7. THE OTHER GROUNDS OF APPEAL FOR THE BLOCK PERIOD IN THE APPEAL OF THE ASSESSEE AND THE REVENUE ARE AS UNDER:- ASSESSEE 2.1. THE ID.CIT(A) HAS ERRED IN LAW AND/OR ON FACT S IN CONFIRMING THAT (A) THE APPE11ANT WAS PARTY TO THE PURCHASE OF LAN D BEARING NO.776 AND 777 AT NIKOL AHMEDABAD JOINTLY WITH THREE OTHERS. (B) THE APPELLANT HAD EXECUTED SO CALLED BANAKHAT AND OTHER DOCUMENTS IN RESPECT OF THE SAID LAND. (C) THE APPELLANT HAD PAID RS.12 94 875 AT THE RATE OF 25% TOWARDS THE PURCHASE PRICE OF THE SAID LAND. (D) SHRI JASWANT K. PATEL HAD CONFIRMED IN HIS STAT EMENT OF APPELLANT HAVING MADE SUCH PAYMENT. (E) THE APPELLANT HAD SIGNED THE PAPERS CONCERNING THIS TRANSACTION. (F) THE DENIAL OF OPPORTUNITY TO CROSS EXAMINE SHRI J.K.PATEL WAS AN AFTER THOUGHT. - 5 - 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS EVIDENCE ON THE RECORD THE LD.CIT(A) OUGHT NOT TO HAVE COME TO THE ABOVE SAID CONCLUSIONS. ON THE CONTRARY THE AVERMENTS MADE AND CONC1USIONS REACHED BY BOTH THE AUTHORITIES ARE WHOLLY UNJUSTIFIED ON PROPER-APPREC IATION OF THE MATERIAL ON RECORD AND EXPLANATIONS FURNISHED B Y THE APPELLANT. 2.3 THE LD.CIT(A) OUGHT TO HAVE HELD THAT THE APPEL LANT HAD NEITHER EXECUTED ANY SUCH BANAKHAT OR PAPERS RELATI NG TO SAID LAND NOR PAID ANY SUCH AMOUNT FOR THE AFORESAI D PURCHASE. 3.1 THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN RELYING UPON THE STATEMENTS GIVEN BY SHRI JASWANT K. PATEL. THE LD.AO OUGHT TO HAVE ALLOWED THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT SHRI SAMIR M. SHAH C.A. TO CROSS EXAMINE SHRI JASWANT PATEL. 3.2 WITHOUT PREJUDICE TO THE ABOVE ON A PROPER REA DING OF THE STATEMENTS OF SHRI JASWANT PATEL THE LD. CIT(A) OU GHT TO HAVE HELD THAT THE APPELLANT WAS NOT A PARTY TO THE AFORESAID TRANSACTION AND HAD NOT PAID ANY SUCH AMOUNT. 4.1 THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT RS.12 94 875/- WAS THE UNDISCLOSED INCOME OF T HE APPELLANT MUCH LESS FOR ASSESSMENT YEAR 1997-98. 4.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT NOT TO HAVE HELD THAT THE APPELLANT HA D MADE UNDISCLOSED INVESTMENT OF RS.12 94 875 TOWARDS THE PURCHASE OF SAID LAND IN A.Y. 1997-98. 5.1 THE LD. CIT(A) OUGHT TO HAVE ALLOWED A REASONAB LE OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE OTHER PARTIES TO THE ALLEGED TRANSACTION AND THE APPELLANT SHOULD HA VE BEEN FURNISHED CERTIFIED TRUE COPY OF THE SEIZED DOCUMEN TS RELIED UPON BY AO. 6.1 THE ABOVE GROUNDS OF APPEAL ARE IN THE ALTERNAT IVE AND WITHOUT PREJUDICE TO EACH OTHER. REVENUE 1. THE LD. COMMISSIONER OF INCOME TAX (A)-XII AHM EDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSE SSING OFFICER TO CONSIDER ONLY RS.12 94 875/- AS INCOME O F THE ASSESSEE FROM UNDISCLOSED SOURCES INSTEAD OF RS.43 16 250/-. 2. THE LD. COMMISSIONER OF INCOME TAX (A)-XII AHME DABAD HAS FURTHER ERRED IN LAW AND ON FACTS IN NOT APPREC IATING THAT THE TOTAL CONSIDERATION WAS RS.1 72 65 000 AND IT H AS NOT - 6 - BEEN PROVED THAT THE BALANCE CONSIDERATION OF RS.1 29 48 750/- WAS PAID AFTER DATE OF SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME-TAX(A)-XII AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICE R AS HAS BEEN DONE BY CIT(A)-III AHMEDABAD ON 17.02.2003 I N THE CASE OF SHRI JASWANTLAL K. PATEL A CO-PARTNER OF T HE ASSESSEE IN THE DEALING OF THE LAND AT ISSUE. 4. IT IS THEREFORE PRAYED THAT THE ORDER OF THE L D. COMMISSIONER OF INCOME-TAX (A) MAY BE SET ASIDE TO THE ABOVE EXTENT AND THAT OF THE ASSESSING OFFICER BE R ESTORED. 8. IN THE ABOVE GROUNDS OF APPEAL THE ASSESSEE IS CHALLENGING THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APP EALS) CONFIRMING ADDITION OF RS.12 94 875/- TOWARDS THE SHARE IN THE ALLEGED PURCHASE OF LAND AT NIKOL AHMEDABAD AND THE REVENUE IS CHALLEN GING THE REDUCTION OF ADDITION OF RS.43 16 215/- TO RS.12 94 875/- ON ACC OUNT OF UNDISCLOSED INVESTMENT IN THE ALLEGED PURCHASE OF LAND. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DECIDED THIS ISSUE AS UNDER:- 3. WITH REGARD TO THE TWO GROUNDS OF APPEAL THE F ACTS OF THE CASE AS BROUGHT OUT ON RECORD BY THE AO ARE AS UNDE R:- THERE ARE A SEARCH PROCEEDINGS IN THE CASE OF SHYA M BUILDERS GROUP ON 21.01.1997 AND ONE BANAKHAT WAS SEIZED FROM THE SITE OFFICE OF SYAM DHAM SCHEME OF SHYAM B UILDERS GROUP. THIS BANAKHAT IS IN RESPECT OF 15000 SQ. YDS LAND BEARING SURVEY NO. 776 &777 AT NITOL NARODA AHMED ABAD. AS PER THIS BANAKHAT THIS LAND IS SOLD BY SHRI VALL ABHBHAI PATEL & KESHUBHAI PATEL AND THIS LAND IS PURCHASED BY THE FOLLOWING FOUR PERSONS: 1. JASHWANT K PATEL 2. RAJKUMAR M DUGAR 3. BIRENDRASTNGH K SHADORIA 4. MAGANLAL S GUPTA - 7 - DURING THE SEARCH ON 22.01.1997 STATEMENT OF JASHWA NT K PATEL U/S. 132(4) OF THE ACT WAS RECORDED AND AS PER THE ANSWER TO QUESTION NO.8 SHRI JASHWANT K. PATEL STATED THAT T HE LAND HAS PURCHASED @ RS.1151/- PER SQ YDS. AND IN RESPONSE T O QUESTION NO.9 SHRI JASHWANT K. PATEL STATED THAT RS.52 LACS HAS BEEN PAID BY THE FOUR PERSONS FOR THE PURCHASE OF THE LA ND AND HIS SHARE COMES TO RS.13 LACS. BEFORE THE AO THE ASSES SEE DENIED HIS INVOLVEMENT IN THE TRANSACTIONS IN CONNECTION W ITH THE LAND UNDER CONSIDERATION AS DISCUSSED ABOVE AND DURING T HE COURSE OF ASSESSMENT PROCEEDINGS FURTHER STATEMENT OF SHRI JASHWANT K PATEL WAS RECORDED ON 24.10.2003 U/S. 131 OF THE I. T. ACT AND THE ASSESSEE WAS ALLOWED TO CROSS EXAMINE SHRI JASH WANT K PATEL. IN THIS STATEMENT JASHWANT K PATEL THE SAM E FACTS AS STATED EARLIER BEFORE ADIT THAT THE TRANSACTION IN LAND IN QUESTION WAS ENTERED INTO WITH THREE OTHER PERSONS INCLUDING BIRENDRASING K BHADORIA THE ASSESSEE. OPPORTUNITY WAS GIVEN TO SHRI BIRENDRASINGH K. BHADORIA TO CROSS EXAMINE JASHWANT K. PATEL IN THE CROSS EXAMINATION BY THE ASSESSEE JASHWANT K. PATEL CATEGORICAL STATED THAT PAPERS CONCERNING THI S TRANSACTIONS WAS SIGNED BY BIRENDRASINGH K. BHADORI A WHICH WERE RECEIVED BY HIM THROUGH SHRI RAJUBHAI. DURING THIS CROSS EXAMINATION THE ASSESSEE DECIDED NOT TO ASK ANY FU RTHER QUESTIONS TO JASHWANI K. PATEL REGARDING THE LAND T RANSACTION. AFTER HAVING ALLOWED THE ASSESSEE THE CROSS EXAMINA TION OF SHRI JASHWANT K. PATEL THE ASSESSEE WAS ASKED TO EXPLAI N FURTHER AS PER THE ORDER SHEET ENTRY DATED 24.10.2003 AS UNDER : SHRI JASVANTBHAI K. PATEL AND THE ASSESSEE SHRI BIR ERIDRASINGH K. BHADORIA ATTENDED ALONGWITH THEIR CAS. ASSESSESS E'S ATTENTION IS DRAWN TO HIS SUBMISSION DATED 14.10.20 03 WHEREIN HE HAS STATED THAT HE HAS STATED THAT HE HAS HAD NO CONNECTION WHAT SO EVER IN CONNECTION WITH TOE TRANSACTION IN SURVEY NO.776 AND 777 SITUATED AT NIKOL NARODA AHMEDABAD . IN THIS REGARD HIS ATTENTION WAS DRAWN TO THE STATEMENT OF SHRI JASVANTBHAI K. PATEL WHEREIN HE HAS STATED THAT TH E ASSESSEE I.E. SHRI BIRENDRASINGH IS A PARTNER AND THAT HE HA S SIGNED ALL THE DOCUMENTS. THIS FACT HAS ALSO BEEN CONFIRMED BY SHRI JASWANTBHAI K. PATEL IN YOUR CROSS EXAMINATION. FR OM THIS FACT IT IS CLEAR THAT YOU HAVE ENTERED INTO THIS T RANSACTION IN ALL RESPECT PLEASE EXPLAIN WHAT YOU HAVE TO SAY ABOUT T HIS?' THE AO FURTHER STATED IN HIS ORDER THAT IN RESPONSE TO THIS QUERY THE ASSESSEE REPLIED THAT HE HAS NOT SIGNED THE SAI D BANAKHAT IN - 8 - WHICH THE DETAILS OF PURCHASE OF LAND HAVING 15 000 SQ YD AREA AND BEARING SURVEY NO.776 AND 777 WHICH WAS SEIZED FROM SHRI JASHWANT K PATEL'S PLACE AT THE TIME OF SEARCH COND UCTED ON 21.1.1997. FURTHER HE HAD NOT PAID ANY AMOUNT TO A NYBODY AS MENTIONED IN THE SAID BANAKHAT AND ALSO STATED BY S HRI JASHWANT K PATEL. AFTER CONSIDERING THE ASSESSEE'S EXPLANATION THE A O IN HIS ORDER FURTHER OBSERVED AS UNDER: HOWEVER HE COULD NOT BRING OUT ANY EVIDENCE TO SUB STANTIATE HIS CLAIM THAT HE HAS NO CONCERN WHAT SO EVER IN TH E TRANSACTION OF LAND IN QUESTION. ON THE CONTRARY SHRI JASHWANT K PATEL IN HIS STATEMENT RECORDED DURING THE SEARCH U/S. 132 A S ALSO IN HIS STATEMENT RECORDED U/S. 131 ON 24.10.2003 HAS CLEAR LY STATED THAT THE ASSESSEE IS A PARTNER IN THE LAND TRANSITI ON. EVEN IN CROSS EXAMINATION SHRI JASHWANT K. PATEL RECONFIRM ED HIS EARLIER SUBMISSION STAND. IN VIEW OF THE ABOVE FACTS IT IS VERY MUCH DEAR ON THE BASIS OF EVIDENCE AND STATEMENT OF SHRI JASHWANT K. PATEL TH AT THE ASSESSEE HAS PURCHASED THE ABOVE (AND WITH THREE PE RSONS AND FURTHER PAYMENT HAS ALREADY BEEN MADE IN RESPECT OF COST OF LAND AT RS.1 72 65 000. THEREFORE INVESTMENT IN TH E ABOVE LAND MADE BY THE ASSESSEE IS UNACCOUNTED ONE AND NOT IN THE REGULAR BOOKS OF ACCOUNTS. WITHOUT PREJUDICE THE FINDINGS THAT MAY BE OR MAY HAVE BEEN GIVEN IN THIS CASE OR IN ANY OTHER CASE UNDER INCOME-TAX ACT OR ANY OTHER ACT HELD THAT THE INCOM E AND INVESTMENT WORKED OUT HEREIN BELOW IS TAXABLE IN TH E HANDS OF THE ASSESSES. THE AO THEREAFTER CALCULATED THE INVESTMENT IN TH E ABOVE LAND BY THE APPELLANT BY RELYING ON THE ENTRIES ON PAGE 72 OF ANNEXURE-A-20 SEIZED FROM THE SITE OFFICE OF SHYAM DHAM SCHEME WHERE WORKING OF RS.1 72 65 000 WAS GIVEN A ND BASED ON THIS WORKING THE AO CONSIDERED THE PURCHASE OF THIS LAND OF 15000 SQ. YDS AT RS.1 72 65 000 AGAINST THE AMOUNT PAID OF RS.52 LACS AS STATED BY JASHWANT K. PATEL AND CONCL UDED THAT THE SHARE OF THE APPELLANT BEING 1/4TH COMES TO RS. 43 16 250. THE AO ACCORDINGLY COMPUTED THE UNDISCLOSED INCOME IN THIS LAND TRANSACTIONS BY WAY OF UNEXPLAINED INVESTMENT AT RS.43 16 250 AND ADDED THE SAME TO THE INCOME OF TH E APPELLANT AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 4. WITH REGARD TO THE FIRST GROUND OF APPEAL THE A PPELLANT SUBMITTED THAT THE BLOCK PROCEEDINGS U/S.158BD INIT IATED BY THE AO ARE ILLEGAL AS THE APPELLANT HAS NOT BEEN INFORM ED ABOUT THE - 9 - MATERIAL ON THE BASIS OF WHICH THE SATISFACTION HAV E BEEN REACHED BY THE AO AND THEREFORE ON RECEIPT OF COPY OF THE SAID MATERIAL THE APPELLANT WOULD BE ABLE TO MAKE BETTER AND FURTHER SUBMISSIONS RELATING TO THIS GROUND OF APPEAL. THE ORDER OF THE AO HAS BEEN CONSIDERED AND THE ARGUMENTS OF THE APP ELLANT ARE ALSO TAKEN INTO CONSIDERATION. I FIND FROM THE ASSE SSMENT ORDER THAT THE DOCUMENT WAS SEIZED PERTAINING TO THE PURC HASE MADE BY THE APPELLANT FROM THE PREMISES OF SHYAM BUILDER S IN WHICH SHRI JASHWANT K. PATEL WAS INTERESTED. ALSO THE STA TEMENT OF SHRI JASHWANT K PATEL AT THE TIME OF SEARCH CLEARLY MENTIONED THE APPELLANT'S NAME AS ONE OF THE BUYERS OF THE LA ND AS APPEARING IN THE DOCUMENT SEIZED. I THEREFORE HOL D THAT THE AO WAS JUSTIFIED IN INITIATIN0 THE PROCEEDINGS U/S 15 8BD OF THE I.T. ACT. 5. BEFORE THE UNDERSIGNED WITH REGARD TO THE SECOND GROUND AGAINST ADDITION OF RS.43 16 250 THE APPELLANT MAD E THE FOLLOWING SUBMISSIONS BY THEIR LETTER DATED 19.12.2 003:- THE AO HAS WRONGLY CONCLUDED THAT THE APPELLANT HA D PAID HIS SHARE OF ALLEGED PURCHASE PRICE OF RS.1 72 65 000 WHICH COMES TO RS.43 16 250. THE APPELLANT HAD TIME AND AGAIN POINTED OUT THAT HE HA D NOT EXECUTED THE SO CALLED BANAKATH NOR HE HAD PAID ANY SUCH SUM AND HE WAS UNAWARE ABOUT SUCH TRANSACTION. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL EXCEPT ALLEGED STATEMENT OF SHRI JASHWANT K PATEL TO SHOW THAT THE IMPUGNED PAYMENT MUST HAVE BEEN MADE BY THE APPELLANT. THEREFORE IN ABSENCE OF ANY COGENT AN D DIRECT EVIDENCE TO SHOW THAT THE IMPUGNED PAYMENT W AS MADE BY THE APPELLANT NO ADDITION COULD BE MADE IN CASE OF THE APPELLANT FOR SUCH AMOUNT. THE APPELLANT STATES THAT THE FOLLOWING OBSERVATION S MADE AND CONCLUSION REACHED BY AO ARE GROSSLY INCORRECT. A. THE APPELLANT WAS PARTY TO THE PURCHASE OF LAND BEARING NO. 776 AND 777 AT NIKOL AHMEDABAD JOINTLY WITH TH REE OTHERS. B. THE APPELLANT HAD EXECUTED SO CALLED BANAKHAT AN D OTHER DOCUMENTS IN RESPECT OF THE SAID LAND. C. THE APPELLANT HAD PAID RS.43 16 250 AT THE RATE OF 25% TOWARDS THE PURCHASE PRICE OF THE SAID LAND. - 10 - D. SHRI JASWANF K PATEL HAD RECONFIRMED IN HIS STAT EMENT OF APPELLANT HAVING MADE SUCH PAYMENT E. THE APPELLANT HAD SIGNED THE PAPERS CONCERNING T HIS TRANSACTIONS. ON THE CONTRARY IT IS FOUND FROM THE XEROX COPY OF SO CALLED BANAKATH PAGES 35 TO 39 FURNISHED TO THE APPELLANT THAT (A) PAGES 37 TO 39 (INTERNAL PAGE 1 TO 6) ARE HANDWRITT EN AND REST OF THE PAGES 35 TO 36 (INTERNAL PAGES 7 TO 9) ARE T YPED PAGES (B) THERE IS NO EXECUTION OF THE SAID AGREEMENT SIN CE THERE IS NO SUCH PAGE IT IS THEREFORE SURPRISING AS TO HOW SUC H AN INCOMPLETE AN INADMISSIBLE DOCUMENT IN EVIDENCE COU LD BE RELIED UPON MUCH LESS HELD THAT THE PAYMENT HAS BEE N MADE BY THE APPELLANT. THE APPELLANT IS NOT ABLE TO MAKE OU T HOW IT IS ALLEGED BY AO THAT ANY SUCH DOCUMENT HAS BEEN EXECU TED BY THE APPELLANT. THE AO HAS HEAVILY RELIED UPON THE STATEMENT OF SH RI JASHWANT K. PATEL FOR THE PURPOSE OF MAKING IMPUGNED ADDITIO N. HOWEVER HE HAS FAILED TO APPRECIATE THAT THE SAID STATEMENT COULD NOT BE RELIED UPON BY AO OR TREATED AS A CONC LUSIVE EVIDENCE AGAINST THE APPELLANT WITHOUT ALLOWING OPP ORTUNITY OF CROSS EXAMINATION BY THE APPELLANT OR HIS AUTHORISE REPRESENTATIVE. THE APPELLANT WOULD LIKE TO POINT OUT THAT THE AUTHORISE REPRESENTATIVE OF THE APPELLANT SHRI SAMI R M SHAH C.A HAD ASKED THE AO TO ALLOW SUCH OPPORTUNITY WHEN HIS STATEMENT WAS RECORDED ON 24.10.2003 BUT THE SAME W AS ORALLY REFUSED ON THE GROUND THAT THE CROSS EXAMINATION CO ULD BE CARRIED OUT BY THE APPELLANT HIMSELF. IT WILL BE A PPRECIATED THAT THE APPELLANT IS NOT CAPABLE ENOUGH OR LEGALLY WELL EQUIPPED TO CARRY OUT ANY SUCH CROSS EXAMINATION YET HE HAD ASK ED FEW QUESTIONS TO SHRI JASHWANT K PATEL. IT IS NOW A WEL L ESTABLISHED POSITION IN LAW THAT UNLESS THE OPPOSITE PARTY IS A LLOWED TO BE CROSS EXAMINED OR THE MATERIAL RELIED UPON IS CONFR ONTED TO THE ASSESSES NO ADVERSE INFERENCE COULD BE DRAWN BY AO AND THE IMPUGNED ADDITION IS LIABLE TO BE QUASHED. WITHOUT PREJUDICE TO ABOVE AND IN ALTERNATIVE THE APPELLANT SUBMITS THAT EVEN ON A PROPER READING OF THE STATEM ENTS OF SHRI JASHWANT K PATEL THE CONCLUSION REACHED BY AO IS N OT JUSTIFIED BECAUSE: (A) SHRI JASWANT PATEL IN HIS REPLY TO QUESTION NO. 2 IN CROSS EXAMINATION ON 24.10.2003 BY THE APPELLANT HAD DEAR LY - 11 - STATED THAT NO ANY SUCH AMOUNT WAS RECEIVED FROM TH E APPELLANT TOWARDS THE PURCHASE OF THE LAND IN QUEST ION. (B) SHRI JASWANT K PATEL IN REPLY TO QUESTION NO.3 OF THE SAID CROSS EXAMINATION HAD CATEGORICALLY STATED THAT RAJ UBHAI M DAGHA HAD SUGGESTED NAME OF THE APPELLANT AS A PARTNER. THIS IS REITERATED ALSO IN REPLY TO QUESTI ON NO.1. IN VIEW OF THESE FACTS THE EXPLANATION GIVEN BY TH E APPELLANT THAT HE WAS UNAWARE ABOUT ANY SUCH TRANSACTION AND HAS NOT MADE ANY SUCH PAYMENT IS CORRECT. (C) SHRI J.K. PATEL IN HIS STATEMENT ON 24.10.2003 HAS ADMITTED TO HAVE PAID RS.13 LAKHS OF HIS 25% SHARE BUT HE HAS NOT STATED THAT SIMILAR AMOUNTS HAVE BEEN PA ID BY THE OTHER PARTNERS AND THEREFORE IT CANNOT BE CONC LUDED THAT THE APPELLANT HAD PAID ANY SUCH SUM. EVEN ON GOING THROUGH THE STATEMENT OF SHRI J.K. PA TEL RECORDED AT THE TIME OF SEARCH 22.1 1997 AND MORE PARTICULAR LY HIS REPLY TO Q. 6 9 & 10 IT IS VERY CLEAR THAT HE HAS N OT STATED THAT THE APPELLANT HAD MADE THE IMPUGNED PAYMENT. ON THE CON TRARY SHRI J.K. PATEL ADMITTED THE PAYMENT OF RS.52 LAKHS TOWARDS THE SAID LAND AND HIS SHARE AT 25% AT RS.13 LAKHS. THER EFORE HOW COULD IT BE CONCLUDED THAT THE APPELLANT HAS PAID R S.43 16 250 OF HIS 25% SHARE. IN VIEW OF ABOVE THE APPELLANT SUBMITS THAT THE AO HAS WRONGLY CONSTRUED THE STATEMENT OF SHRI J.K. PATEL RECORDED ON 24.10.2003 AND 22.1.1997 AND THUS DRAWN IN CORRECT CONCLUSIONS THEREFROM AND THE SAME ARE COMPLETELY DEVOID OF FACTS. WITHOUT PREJUDICE TO ABOVE THE APPELLANT SU BMITS THAT THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO PROVE THAT THE AGGREGATE PAYMENT OF RS.1 72 65 000 WAS MADE TOWARD S PURCHASE OF THIS LAND BY THE JOINT OWNERS. EVEN SH RI J. K. PATEL HAS NOT STATED IN ANY OF HIS STATEMENTS THAT PAYMEN T TO THE TUNE OF RS.1 75 65 000 HAS BEEN MADE IT APPEARS THAT T HE AO HAS DRAWN INFERENCE FROM THE NOTINGS MADE ON PAGE 72 OF ANNEXURE A-26 BUT EVEN THE SAID NOTINGS CANNOT BE CONSTRUED AS HAVING MADE PAYMENTS BECAUSE THE SEARCH HAS TAKEN PLACE ON 22.1.97 WHEREAS THE DATES MENTIONED AGAINST EACH PAYMENT OF RS.20 LAKHS AND ODD RELATES TO THE POST SEARCH PERIOD. T HUS THE CONCLUSION REACHED BY AO IS A PRESUMPTION AND SURMI SE. IN ANY VIEW OF THE MATTER HOW COULD IT BE CONCLUDED T HAT ANY SUCH - 12 - PAYMENTS HAVE BEEN MADE ON THOSE DATES. THE POST S EARCH PERIOD CANNOT BE INCLUDED IN THE BLOCK ASSESSMENT B ECAUSE IT IS NOT COVERED BY THE BLOCK PERIOD IS DEFINED UNDER TH E ACT. FURTHER IT IS SUBMITTED THAT THE SO CALLED BANAKA TH AND LOOSE PAPERS WERE FOUND FROM THE OFFICE OF SHYAM DHAM SCH EME WHICH HAS GOT NO RELEVANCE WITH THE APPELLANT AND H E WAS NOT CONNECTED WITH THE SAID SCHEME. THEREFORE NO ADVER SE INFERENCE COULD BE DRAWN AGAINST THE APPELLANT. IN ANY VIEW OF THE MATTER WHEN LOOSE PAPERS FOUND FROM THE POSSES SION OF A THIRD PARTY AND THEY ARE NOT IN THE HANDWRITING OF THE APPELLANT THE SAME CANNOT BE CONSIDERED AS CONCLUSIVE PROOF A GAINST THE APPELLANT. RELIANCE IS PLACED ON THE DECISION OF C BI VS. V.C. SHUKLA (1996) 5 SC AND PRARTHANA CONSTRUCTION LTD. VS. DCIT (70 TTJ 120) (AHD.) LASTLY THE APPELLANT WOULD LIKE TO MAKE ALTERNATE SUBMISSION WITHOUT PREJUDICE TO THE AFORESAID CONTENTIONS OR A MOUNTING TO ADMISSION THAT WHEN J.K. PATEL HAS ADMITTED TO HAVE MADE PAYMENT OF RS.12 LAKHS THE AC COULD NOT HAVE HELD THAT PAYMENT OF RS.43 16 250 WAS MADE. AND EVEN SAID PA YMENT SHOULD BE HELD TO BE MADE BY RAJUBHAI M DAGA AS PER REPLY TO Q. 3 OF SHRI J.K. PATEL ON 24.10.2003. THEREFORE T HE IMPUGNED ADDITION IS ALSO LIABLE TO BE DELETED.' WITH THE ABOVE SUBMISSIONS THE AR OF THE APPELLANT SUBMITTED THAT THE ADDITION MADE BY THE AO IS TO BE DELETED. I HAVE CONSIDERED THE ORDER OF THE AO THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT I HAVE A LSO GONE THROUGH THE COPY OF BANAKAT SEIZED FROM THE PREMISE S OF SHYAM DHAM SCHEME OF SHYAM BUILDERS TWO STATEMENT OF SHR I JASWANT K. PATEL AS WELL AS THE CROSS EXAMINATION B Y THE APPELLANT OF JASWANT K. PATEL ON 24 10.2003 AND SEI ZED DOCUMENT ON PAGE 72 OF THE ANNEXURE-A-26. WHICH WAS ALSO SEIZED FROM THE SITE OFFICE OF SHYAM DHAYM SCHEME WHERE THE WORKING OF RS.1 72 65 000 WAS GIVEN. THE APPELLANT' S ARGUMENT THAT NO OPPORTUNITY TO CROSS EXAMINE SHRI JASWANT K . PATEL WAS GIVEN IS TOTALLY UNWARRANTED. A CLEAR OPPORTUNITY WAS GIVEN TO THE APPELLANT TO CROSS EXAMINE SHRI JASWANT K. PATE L ON 24.10.2003 AND ON THIS OCCASION APPELLANT ALSO QUES TIONED SHRI JASWANT K. PATEL HOWEVER THE APPELLANT DID NOT QU ESTION SHRI JASWANT K. PATEL ON THE VALIDITY OF THE DOCUMENT FO R THE PURCHASE OF LAND FOUND DURING THE SEARCH IN THE CAS E OF SHYAM - 13 - BUILDERS. THE APPELLANT ALSO DID NOT QUESTION SHRI JASWANT K. PATEL WITH REGARD TO THE PAYMENT MADE BY HIM OF HIS 1/4 TH SHARE FOR THE PURCHASE OF LAND. THE APPELLANT DID NOT QUE STION THE ANSWERS GIVEN BY SHRI JASWANT K. PATEL IN HIS STATE MENTS RECORDED DURING THE COURSE OF SEARCH PROCEEDINGS AS WELL AS IN RESPECT OF SECOND STATEMENT OF JASWANT K. PATEL WH O HAD REFERRED TO THE NAME OF THE APPELLANT. THIS ARGUMEN T OF THE APPELLANT IS THEREFORE REJECTED THAT NO OPPORTUNI TY TO CROSS EXAMINE SHRI JASWANT K. PATEL WAS GIVEN. IN THE S UBMISSIONS THE APPELLANT STATED THAT THE APPELLANT WAS ORALLY REFUSED TO CROSS EXAMINE SHRI JASWANT K. PATEL CANNOT BE SUSTA INED ON THE GROUND THAT AT NO POINT OF TIME THE APPELLANT PUT I T IN WRITING BEFORE THE AO THAT HE WAS DENIED HIS FULL RIGHT OF CROSS EXAMINATION OF SHRI JASWANT K. PATEL RIGHT FROM THE DATE HE WAS ALLOWED TO CROSS EXAMINE JASWANT K. PATEL. IT IS ON LY FOR THE FIRST TIME IN THE SUBMISSIONS MADE BEFORE THE UNDER SIGNED THAT HE IS LEVELING THIS ALLEGATION WHICH IS NOTHING B UT AN ALTER THOUGHT AND THEREFORE DESERVES TO BE REJECTED. IT IS AMPLE CLEAR FROM THE STATEMENT OF JASWANT K PATEL THAT THE LAND BEARING NOS. 776 AND 777 AT NIKOL WAS PURCHASED BY HIM ALON GWITH THREE OTHER PERSONS INCLUDING THE APPELLANT AND EAC H ONE PAID EQUAL AMOUNT FOR THE SAME. I HAVE ALSO PONE THROUGH THE ORDER OF LD.CIT(A)-III AHMEDABAD IN THE CASE OF SHRI JAS WANT K. PATEL FOR THE BLOCK PERIOD WHERE THE LD.CIT(A)-III UPHELD THE ADDITION ON ACCOUNT OF ONE FORTH PAYMENT FOR PURCHA SE OF LAND BY SHRI JASWANT K. PATEL. I THEREFORE CONCLUDE TH AT THE APPELLANT ALONGWITH JASWANT K. PATEL AND TWO OTHER PERSONS PURCHASED THE SAID LAND BY PAYING THE PURCHASE CONS IDERATION @ RS.1151 PER SQ. YDS. THE SHARE OF THE APPELLANT THEREFORE COMES TO 1/4TH OF THE PAYMENT MADE FOR THE PURCHASE OF THE SAID LAND OF 15000 SQ.YDS. THIS GROUND OF THE APPELLANT IS THEREFORE REJECTED. HOWEVER THE ALTERNATIVE SUBMISSIONS OF THE APPELLA NT THAT TOTAL PAYMENT MADE FOR THE PURCHASE OF THE SAID LAND BY T HE FOUR PERSONS WAS ONLY RS.52 00 000 AND NOT RS.1 72 65 00 0 IS ACCEPTABLE. FROM THE SEIZED DOCUMENTS (PAGE 72 OF T HE ANNEXURE A-26) IT IS SEEN THAT AS PER THE NOTINGS MADE ON THIS PAPER THE PAYMENTS WERE MADE IN THE FOLLOWING MANNE R. 1151 X 15000 = 1 72 65 000 51 79 500 01.12.97 20 00 000 01.03.97 20 00 000 - 14 - 01.06.97 20 00 000 01.09.97 20 00 000 01.12.97 20 00 000 01.03.97 20 00 000 1 72 65 000 FROM THE NOTINGS ON THIS PAPER IT IS CLEAR THAT PA YMENT MADE UPTO THE DATE OF SEARCH COULD BE ONLY RS.51 79 500. THE REMAINING PAYMENTS DATES ARE THE DATES SUBSEQUENT T O THE DATE OF SEARCH I.E. 21.01 1997. SINCE THE ASSESSMENT IS FOR THE BLOCK PERIOD UPTO 21.01.1997 ANY PAYMENT MADE SUBSEQUENT TO THIS DATE CANNOT BE CONSIDERED FOR THE PURPOSE OF ASSESS MENT OF THE BLOCK PERIOD. THE AO IS TREE TO TAKE ACTION IN RESP ECT OF PAYMENTS MADE AFTER THIS DATE. THUS THE PAYMENT MAD E FOR THE PURCHASE OF LAND UPTO DATE OF SEARCH WAS RS 51 79 5 00 AND HENCE THE SHARE OF THE APPELLANT WHICH IS 1/4TH CO MES TO RS.12 94 875. I THEREFORE AGREE WITH THE ARGUMENT S OF THE APPELLANT THAT ONLY AN AMOUNT OF RS.12 94 875 CAN A T ALL BE CONSIDERED AS PAYMENT MADE BY THE APPELLANT. SINCE THE APPELLANT HAS NOT DECLARED THE SOURCE OF THIS AMOUN T EITHER BEFORE THE AO OR BEFORE THE UNDERSIGNED I HOLD THA T THIS AMOUNT OF RS.12 94 875 HAS TO BE CONSIDERED AS INCO ME OF THE APPELLANT FROM UNDISCLOSED SOURCES FOR THE BLOCK PE RIOD IN ADDITION TO ANY UNDISCLOSED INCOME DECLARED BY THE APPELLANT IN THE RETURN OF INCOME. THE AO IS THEREFORE DIRECTE D TO AMEND HIS ORDER FOR THE BLOCK PERIOD ACCORDINGLY. TO THIS EXTENT THIS GROUND OF APPEAL IS TREATED AS PARTLY ALLOWED. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE O N RECORD. IN THE INSTANT CASE SEARCH UNDER SECTION 132 OF THE ACT W AS CARRIED OUT ON 21.01.1997 IN THE CASE OF SHYAM BUILDERS GROUP AND ONE BANAKHAT WAS SEIZED FROM THE SITE OFFICE OF SYAM DHAM SCHEM OF SHYAM BUILDERS GROUP. THIS BANAKHAT WAS IN RESPECT OF 150 00 SQ. YRD. LAND BEARING SURVEY NO.776 AND 777 AT NIKOL NARODA AHM EDABAD. AS PER THIS BANAKHAT THIS LAND WAS SOLD BY SHRI VALLABHBHA I PATEL AND KESHUBHAI PATEL TO FOUR PERSONS NAMELY JASHWANT K. PATEL RAJKUMAR M. DUGAR BIRENDRASTNGH K. SHADORIA AND MAGANLAL S . GUPTA. - 15 - DURING THE SEARCH ON 22.01.1997 STATEMENT OF JASHWA NT K PATEL U/S. 132(4) OF THE ACT WAS RECORDED AND AS PER THE ANSWE R TO QUESTION NO.8 SHRI JASHWANT K. PATEL STATED THAT THE LAND W AS PURCHASED @ RS.1151/- PER SQ. YDS. AND IN RESPONSE TO QUESTION NO.9 SHRI JASHWANT K. PATEL STATED THAT RS.52 LACS HAS BEEN PAID BY TH E FOUR PERSONS FOR THE PURCHASE OF THE LAND AND HIS SHARE COMES TO RS. 13 LACS. BEFORE THE AO THE ASSESSEE DENIED HIS INVOLVEMENT IN THE TRAN SACTIONS IN CONNECTION WITH THE LAND UNDER CONSIDERATION AS DIS CUSSED ABOVE AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS FURTHER STATEMENT OF SHRI JASHWANT K PATEL WAS RECORDED ON 24.10.2003 U/S. 13 1 OF THE I.T. ACT AND THE ASSESSEE WAS ALLOWED TO CROSS EXAMINE SHRI JASHWANT K PATEL. IN THIS STATEMENT JASHWANT K PATEL STATED THE SAME FACTS AS STATED EARLIER BEFORE ADIT THAT THE TRANSACTION IN LAND IN QUESTION WAS ENTERED INTO WITH THREE OTHER PERSONS INCLUDING BIR ENDRASING K BHADORIA THE ASSESSEE. OPPORTUNITY WAS GIVEN TO SH RI BIRENDRASINGH K. BHADORIA TO CROSS EXAMINE JASHWANT K. PATEL. IN THE CROSS EXAMINATION BY THE ASSESSEE JASHWANT K.PATEL CATEG ORICAL STATED THAT PAPERS CONCERNING THIS TRANSACTIONS WAS SIGNED BY B IRENDRASINGH K. BHADORIA WHICH WERE RECEIVED BY HIM THROUGH SHRI R AJUBHAI. DURING THIS CROSS EXAMINATION THE ASSESSEE DECIDED NOT TO ASK ANY FURTHER QUESTIONS TO JASHWANT K.PATEL REGARDING THE LAND TR ANSACTION. THEREAFTER THE ASSESSEE WAS SHOW CAUSED BY THE LEA RNED ASSESSING OFFICER. THE ASSESSEE SUBMITTED THAT HE HAD NOT SIG NED THE SAID BANAKHAT IN WHICH DETAILS OF PURCHASE OF LAND HAVIN G 15 000 SQ. YRD. AREA AND HAVING SURVEY NO.776 AND 777 WHICH WAS SEI ZED FROM SHRI JASWANT K. PATELS PLACE AT THE TIME OF SEARCH ON 2 1.01.1997. THE ASSESSEE ALSO DENIED TO HAVE PAID ANY AMOUNT TO ANY BODY AS MENTIONED IN BANAKHAT AND ALSO STATED BY SHRI JASWA NT K. PATEL. THE LEARNED ASSESSING OFFICER OBSERVED THAT THE ASSESSE E COULD NOT BRING - 16 - ANY EVIDENCE TO SUBSTANTIATE HIS CLAIM THAT HE HAD NO CONCERN IN THE TRANSACTION OF LAND IN QUESTION. IN VIEW OF THE AB OVE FACTS THE LEARNED ASSESSING OFFICER HELD THAT THE ASSESSEE HA D PURCHASED THE LAND WITH 3 PERSONS AND PAYMENT FOR THE SAME WAS MA DE AT RS.1 72 65 000/-. THEREFORE INVESTMENT IN THE ABOV E LAND BY THE ASSESSEE WAS UNACCOUNTED AND NOT ENTERED IN REGULAR BOOKS OF ACCOUNT. THE LEARNED ASSESSING OFFICER FURTHER OBSERVED THAT WITHOUT PREJUDICE TO THE FINDING THAT MAY BE OR MAY HAVE BEEN GIVEN I N THIS CASE OR ANY OTHER CASE UNDER THE INCOME TAX ACT OR ANY OTHER AC T AND HELD THAT INCOME AND INVESTMENT BY THE ASSESSEE WAS TAXABLE. HE OBSERVED THAT ENTRIES ON PAGE 72 OF ANNEXURE-A-20 SHOWS WORKING O F RS.1 72 65 000/- AGAINST WHICH AMOUNT PAID WAS RS. 52 LACS AS STATED BY SHRI JASWANT K. PATEL AND CONCLUDED THAT THE SHA RE OF THE ASSESSEE BEING 1/4 TH COMES TO RS.43 16 215/- AND ACCORDINGLY MADE ADD ITION OF THE SAME AS UNDISCLOSED INVESTMENT IN THIS LAND TRANSACTION. 11. IN APPEAL THE LEARNED COMMISSIONER OF INCOME T AX(APPEALS) HELD THAT THE ARGUMENT OF THE ASSESSEE THAT NO OPPO RTUNITY TO CROSS EXAMINE SHRI JASHWANT K. PATEL WAS UNWARRANTED. TH E ASSESSEE WAS GIVEN OPPORTUNITY TO CROSS EXAMINE SHRI JASHWANT K. PATEL ON 24.10.2003 ON WHICH OCCASION THE ASSESSEE ALSO QUE STIONED SHRI J. K. PATEL AND DID NOT QUESTION HIM ON THE VALIDITY OF T HE DOCUMENT FOR PURCHASE OF LAND FOUND DURING THE SEARCH IN THE CAS E OF SHYAM BUILDERS. THE ASSESSEE ALSO DID NOT QUESTION SHRI J ASWANT K PATEL REGARDING PAYMENT MADE BY HIM OF HIS 1/4 TH SHARE IN THE PURCHASE OF LAND. THE ASSESSEE DID NOT QUESTION THE ANSWER GIVE N BY SHRI JASWANT K. PATEL IN HIS STATEMENT RECORDED DURING THE COURS E OF SEARCH PROCEEDINGS AS WELL AS IN RESPECT OF SECOND STATEME NT OF J. K. PATEL WHO HAD REFERRED TO THE NAME OF THE ASSESSEE. THERE FORE THE ARGUMENT - 17 - THAT NO OPPORTUNITY TO CROSS EXAMINE SHRI JASWANT K . PATEL WAS GIVEN WAS REJECTED. THE LEARNED COMMISSIONER OF INCOME TA X(APPEALS) FURTHER OBSERVED THAT THE SUBMISSION OF THE ASSESSE E THAT ASSESSEE WAS ORALLY REFUSED TO CROSS EXAMINE SHRI JASHWANT K. PA TEL CANNOT BE SUSTAINED AS AT NO POINT OUT TIME THE ASSESSEE PUT IN WRITING BEFORE THE LEARNED ASSESSING OFFICER THAT HE WAS DENIED HIS FU LL RIGHT OF EXAMINATION OF SHRI JASHWANT K. PATEL FROM THE DATE HE WAS ALLOWED TO CROSS EXAMINE SHRI JASHWANT K. PATEL. IT IS ONLY FO R THE FIRST TIME IN THE SUBMISSION BEFORE THE LEARNED COMMISSIONER OF INCOM E TAX(APPEALS) THE ASSESSEE WAS LEVELING THIS ALLEGA TION WHICH WAS AN AFTER THOUGHT AND DESERVES TO BE REJECTED. FURTHER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT F ROM THE NOTINGS ON THE SEIZED PAPER IT WAS CLEAR THAT PAYM ENTS MADE UPTO THE DATE OF SEARCH WAS ONLY RS.51 79 500/-. THE REMAINI NG PAYMENTS DATES ARE DATE SUBSEQUENT TO THE DATE OF SEARCH I.E. 21.0 1.1997 AND ANY PAYMENT MADE SUBSEQUENT TO THIS DATE CANNOT BE CONS IDERED FOR THE PURPOSE OF ASSESSMENT FOR THE BLOCK PERIOD. ACCORD INGLY HE HELD THAT ONLY AMOUNT OF RS.12 94 875/- CAN BE CONSIDERED AS PAYMENTS MADE BY THE ASSESSEE. SINCE THE ASSESSEE HAD NOT DECLAR ED THE SOURCE OF THIS AMOUNT EITHER BEFORE THE LEARNED ASSESSING OFFICER OR BEFORE HIM HE HELD THAT RS.12 94 875/- HAS TO BE CONSIDERED AS IN COME FROM UNDISCLOSED SOURCES OF THE ASSESSEE FOR THE BLOCK P ERIOD AND MODIFIED THE ORDER OF THE LEARNED ASSESSING OFFICER ACCORDIN GLY. 12. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CAS E WE ARE OF THE CONSIDERED OPINION THAT THE STATEMENT OF SHRI JASH WANT K. PATEL WAS CONNECTED WITH THE SEARCH MATTER AND WAS THEREFORE EVIDENCE FOUND RELATING TO THE COURSE OF SEARCH. IN HIS STATEMENT HE HAS EXPLAINED THE SEIZED DOCUMENT AND THE MODE OF PAYMENT MADE BY THE CO-OWNER OF - 18 - THE PROPERTY IN QUESTION. THE ASSESSEE WAS ALLOWED CROSS EXAMINATION TO HIS STATEMENT. THE ASSESSEE DID NOT PUT THE LEAD ING QUESTION TO HIM TO DENY HIS COMPLICIT IN THE TRANSACTION. EVEN NO S UGGESTION WAS GIVEN DURING THE COURSE OF CROSS EXAMINATION THAT ASSESSE E WAS NOT INVOLVED IN THE TRANSACTION IN QUESTION. THE ASSESSEE ALSO NOT DISPUTED THAT THE ASSESSEE DID NOT PAY ANY AMOUNT BEING 1/4 TH SHARE IN THE TRANSACTION. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT QU ESTION NO.3 TO THE STATEMENT OF SHRI JASHWANT K. PATEL TO SHOW THA T THE NAME OF ASSESSEE WAS PUT ON THE AGREEMENT ALONGWITH HIS SIG NATURE AT THE INSTANCE OF RAJUBHAI NANGALCHAND DAGA. THE ABOVE SU BMISSION OF LEARNED COUNSEL FOR THE ASSESSEE CLEARLY PROVED THA T THE NAME OF ASSESSEE WAS VALIDLY USED FOR THE PURPOSE OF ENTERI NG IN THE TRANSACTION OF THE PURCHASE OF THE PROPERTY AND THAT THE ASSESS EE WAS AWARE OF THE UNACCOUNTED TRANSACTION IN THE MATTER. SINCE THE A BOVE FACTS WERE LEADING CONCLUSIVELY TO THE FACT THAT THE ASSESSEE WAS INVOLVED IN THE TRANSACTION OF PURCHASE OF THE PROPERTY WHICH ARE B ASED UPON THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH T HEREFORE IT IS NOT A SIMPLE CASE OF SOLITARY STATEMENT OF SHRI JASHWANT K. PATEL INVOLVING THE ASSESSEE IN THE TRANSACTION. SINCE PRIMA FACIE EVIDENCE RECOVERED DURING THE COURSE OF SEARCH WAS POINTING OUT TOWARD S THE ASSESSEE THAT THE ASSESSEE PAID UNACCOUNTED MONEY IN THE TRANSACT ION THEREFORE BURDEN WOULD SHIFT UPON THE ASSESSEE TO PROVE THAT THE ASSESSEE WAS NOT INVOLVED IN ANY OF THE TRANSACTION. THE AUTHORI TIES BELOW THEREFORE ON THE BASIS OF THE SEIZED MATERIAL AND OTHER MATER IAL COLLECTED DURING THE COURSE OF INQUIRY CLEARLY PROVED THAT THE ASSE SSEE PARTICIPATED IN THE TRANSACTION OF THE PURCHASE OF THE PROPERTY. IN THE ABSENCE OF ANY SPECIFIC CROSS EXAMINATION TO THE STATEMENT OF SHRI JASHWANT K. PATEL WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) IN SUSTAINING PART ADDITION AGA INST THE ASSESSEE. - 19 - 13. FURTHER THE ASSESSEE HAS NOT FILED ANY EVIDENC E TO SHOW THAT IT HAS STATED BEFORE THE LEARNED ASSESSING OFFICER THA T HE WAS DENIED CROSS EXAMINATION OF JASHWANT K. PATEL. NO MATERIAL WAS ALSO BROUGHT ON RECORD BY THE ASSESSEE TO REBUT THE OBSERVATION BY THE LEARNED ASSESSING OFFICER IN HIS ORDER THAT CROSS OBJECTION OF SHRI JASHWANT K. PATEL WAS ALLOWED ON 24.10.2003 AND THE ASSESSEE DI D NOT QUESTION SHRI JASHWANT K. PATEL ABOUT THE VALIDITY OF DOCUME NT FOR PURCHASE OF LAND FOUND DURING THE SEARCH IN THE CASE OF SHYAM B UILDERS AND ALSO DID NOT QUESTION SHRI JASHWANT K. PATEL WITH REGARD TO THE PAYMENT MADE BY HIM OF HIS 1/4 TH SHARE OF THE PURCHASE OF LAND. THUS THE LEARNED ASSESSING OFFICER AFTER ALLOWING THE ASSESS EE TO CROSS EXAMINATION OF SHRI JASHWANT K.PATEL HAS CONCLUSIVE LY PROVED THAT THE ASSESSEE WAS ONE OF THE PARTNERS IN THE PURCHASE OF LAND AT NIKOL AHMEDABAD HAVING 1/4 TH SHARE IN THE SAME AND THAT HE PAID 1/4 TH AMOUNT OF RS.51 79 500/- WHICH COMES TO RS.12 94 87 5/-. THEREFORE THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 14. WITH REGARD TO THE REVENUES APPEAL THAT THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFI ED IN RESTRICTING THE ADDITION FOR UNDISCLOSED INVESTMENT IN PURCHASE OF LAND TO RS.12 94 875/- IN PLACE OF RS.43 16 250/- WE FIND THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS OBSERVED TH AT FROM THE SEIZED DOCUMENT PAGE 72 OF ANNEXURE-A-26 IT IS SEE N THAT THE PAYMENT MADE BEFORE THE DATE OF SEARCH I.E.21.01.19 97 WAS ONLY RS.51 79 500/- AND THE OTHER AMOUNTS IN THE SEIZED PAPER ARE AFTER THE DATE OF SEARCH. NO ERROR IN THIS FINDING OF THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS) COULD BE POINTED BY THE LEAR NED DEPARTMENTAL REPRESENTATIVE WHO MERELY SUPPORTED TH E ORDER OF THE - 20 - LEARNED ASSESSING OFFICER. IT IS A WELL SETTLED PO SITION OF LAW THAT ADDITION IN A BLOCK ASSESSMENT CAN BE MADE ONLY OF THE AMOUNT OF INCOME FOUND IN THE SEIZED DOCUMENT DURING THE BLOC K PERIOD WHICH HAS NOT BEEN DISCLOSED BY THE ASSESSEE TO THE DEPAR TMENT. IN ABSENCE OF ANY SUCH EVIDENCE BEING BROUGHT ON RECORD TO SHOW THAT THE ENTIRE AMOUNT OF RS.1 72 65 000/- WAS PAID BEFORE THE DATE OF SEARCH AND THE SOURCE OF WHICH WAS NOT DISCLOSED TO THE DEPARTMENT WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN RESTRICTING THE ADDITION TO RS.12 9 4 875/- IN PLACE OF RS.43 16 250/-. THEREFORE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. ITA NO.1912/AHD/2005 AND ITA NO.1912/AHD/2005 15. IN THESE APPEALS THE REVENUE AS TAKEN THE FOLL OWING COMMON GROUND:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE A.O. IN RESPECT O F UNDISCLOSED INVESTMENT IN LAND AMOUNTING TO RS.10 0 0 000/- FOR ASSESSMENT YEAR 1997-98 AND RS.20 00 000/- FOR ASSESSMENT YEAR 1998-99. 16. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS HELD AS UNDER:- 4. I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHOR ISED REPRESENTATIVE CAREFULLY AND HAVE ALSO GONE THROUGH THE DETAILS FILED BY THE AUTHORISED REPRESENTATIVE. I H AVE GONE THROUGH THE CASE RECORDS OF THE APPELLANT AND I FIN D THAT BANAKHAT HAS NOT BEEN SIGNED BY THE APPELLANT. EXCE PT THE BANAKHAT INCORPORATING THE NAME OF THE APPELLANT T HERE IS NO MATERIAL WITH THE ASSESSING OFFICER TO CONCLUDE THAT THE APPELLANT HAS MADE INVESTMENT IN LAND IN F.Y.1996-9 7 AND 1997-98 FURTHER SRI JASWANT PATEL IN THE STATEMENT OF CROSS EXAMINATION ON 24.10.93 HAS STATED THAT HE HAD NOT RECEIVED ANY MONEY FROM THE APPELLANT FOR PURCHASE OF SUCH L AND AND THAT THE NAME OF THE APPELLANT WAS WRITTEN IN BANAK HAT AS ONE SHRI RAJUBHAI HAD GIVEN HIS NAME. SUBSEQUENT - 21 - TRANSACTION IN THE SAID LAND SHOWS THAT THE LAND OF 10065 SQ. YDS. HAS BEEN PURCHASED ON 24.11.2002 @ RS.115/- PE R SQ. YD AND THE SAID SALE PRICE IS ALSO IN AGREEMENT WIT H THE VALUATION AS PER REPORT OF REGISTERED VALUER SHRI J .D. GAJJAR. THE APPELLANT HAD CLEARLY DENIED HIS INVOLVEMENT IN THE LAND TRANSACTION BEFORE THE ASSESSING OFFICER AT THE TIM E OF ASSESSMENT PROCEEDINGS. 4.1 ADDITION HAS BEEN MADE IN THE HANDS OF THE APPE LLANT ON THE BASIS OF THE BANAKHAT AND THE SEIZED LOOSE PAPE R SEIZED FROM JASWANT PATEL AND THE STATEMENT OF JASWANT PAT EL. THE SAID BANAKHAT AND THE LOOSE PAPER HAVE BEEN FOUND F ROM THE POSSESSION OF A THIRD PARTY I.E. JASWANT K. PATEL O F SHYAM BUILDERS GROUP. AS PER THE DECISION OF HON'BLE SUPR EME COURT IN THE CASE OF C.B.I. VS. V.C.SHUKLA & OTHERS REPORTED IN 3 SUPREME COURT CASES 410 TO TREAT THE MATERIAL OF THE THIRD PARTY'S CASE AS A MATERIAL IN THE CASE OF THE ASSESSEE THE BURDEN IS ON THE DEPARTMENT TO BRING IT ON RECO RD THE INDEPENDENT CLINCHING EVIDENCES AND COGENT MATERIAL AND/OR EVIDENCES OF THE RELEVANCY OF THE FACTS OF THE ALLE GED AMOUNT TRANSACTIONS. UNLESS AND UNTIL THIS BURDEN IS DISCH ARGED UNDER THE ACT THE MATERIAL OF THE CASE OF THIRD PA RTY CANNOT BE TREATED AS A MATERIAL IN THE CASE OF THE ASSESSE E. IN THIS CASE IT WAS ALSO HELD THAT THE EXISTENCE OF ENTRIES IN THE BOOKS OF ACCOUNTS WOULD NOT ALONE BE ADEQUATE TO FASTEN L IABILITY OF ANY PERSON AND IT WAS INCUMBENT ON THE AUTHORITY CO NCERNED TO SUBSTANTIATE THE CORRECTNESS OR OTHERWISE OF THO SE ENTRIES IN THE BOOKS OF ACCOUNTS OR OTHER RECORDS BY INDEPE NDENT AND RELIABLE EVIDENCES TO CORROBORATE THE ENTRIES IN TH E ACCOUNTS/RECORDS TAILING WHICH NO ADVERSE INFERENCE CAN BE DRAWN AGAINST ANY PERSON MERELY ON THE BASIS OF THE BOOK ENTRIES IN ACCOUNTS ETC. THE HON'BLE SUPREME COURT ALSO HELD THAT THE ORAL STATEMENT OF ANY PERSON MADE IN REGAR D TO ENTRIES JOTTED IN THE BOOKS OF ACCOUNTS AND/OR RECO RDS SHALL NOT ALONE BE THE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. 4.2 IN THE DECISION OF ITAT AHMEDABAD BENCH IN THE CASE OF PRARTHANA CONSTRUCTION (P) LTD. VS. DC1T REPORTED I N 70 TTJ 122 (AHMEDABAD) IT HAS BEEN HELD THAT LOOSE PA PERS AND DOCUMENTS CANNOT POSSIBLY BE CONSTRUED AS BOOKS OF ACCOUNTS REGULARLY KEPT IN THE COURSE OF BUSINESS. SUCH EVIDENCE WOULD THEREFORE BE OUTSIDE THE PURVIEW O F SECTION - 22 - 34 OF THE EVIDENCE ACT 1872. THE REVENUE WOULD NOT BE JUSTIFIED IN RESTING ITS CASE ON THE LOOSE PAPERS A ND DOCUMENTS FOUND FROM THE RESIDENCE OF A THIRD PARTY EVEN IF SUCH DOCUMENTS CONTAIN NARRATIONS OF TRANSACTIONS W ITH THE ASSESSEE. THE PRESUMPTION UNDER THE PROVISIONS OF S ECTION 132(4A) WOULD NOT BE APPLICABLE TO A THIRD PARTY FR OM WHOSE POSSESSION SUCH PAPERS AND DOCUMENTS HAVE BEEN FOUN D BY THE REVENUE. THE ITAT AHMEDABAD BENCH HAS ALSO HEL D IN THE CASE OF CIT VS. PRAKASH OIL INDUSTRIES & GINNIN G FACTORY REPORTED IN 52 TTJ (AHMEDABAD TRIBUNAL) 514 THAT MERE ENTRIES IN THE ACCOUNTS OF THIRD PARTY ARE NOT SUFFICIENT TO PROVE THAT THEY HAD INDULGED IN SUCH TRANSACTION AS THERE WAS NO GUARANTEE THAT THE ENTRIES WERE GENUINE. THE ITAT MUMBAI BENCH IN THE CASE OF ITO VS. M/S. N.V. VALE & CO. REPORTED IN APPEAL NO.3172 TO 3176 ORDER DATED 12/8 /1998 HAS HELD THAT MERELY ON THE BASIS OF SOME WRITING I N THE DIARIES THAT TOO IN THE HANDWRITING OF AN OUTSIDER NO ADDITION CAN BE MADE TILL SOME CORROBORATIVE INDEPENDENT EVI DENCE TO SUPPORT THE ENTRIES IS BROUGHT OUT ON RECORD. IN TH E CASE OF THE APPELLANT BOOKS OF ACCOUNTS HAVE NOT BEEN FOUND FROM JASWANT PATEL SHOWING ENTRIES OF ANY PAYMENT BY THE APPELLANT BUT A LOOSE PAPER AND BANAKHAT WERE ONLY FOUND WHICH CAN NOT BE HELD AS BOOKS OF ACCOUNTS AND THE EVIDENCE WOULD BE OUTSIDE THE PURVIEW OF EVIDENCE ACT AS HEL D IN THE CASE OF PRARTHANA CONSTRUCTION (P) LTD. VS. DCIT RE PORTED IN 70 TTJ 122 (AHMEDABAD). THE RATIO OF THE CASE OF ITO VS. M/S. N.V. VALE & CO. ALSO SUPPORTS THE SAID FINDING . THUS ON THE BASIS OF LOOSE PAPERS NO ADDITION CAN BE MADE I N THE HANDS OF THE APPELLANT. 4.3 HERE THE SELLERS HAVE NOT BEEN QUESTIONE D ABOUT THE RECEIPT OF ON MONEY IF ANY FROM THE APPELLANT OR TO CONFIRM IF THE APPELLANT HAD MADE ANY TRANSACTION OF LAND IN T HE IMPUGNED YEARS . EVEN IN THE SEIZED LOOSE PAPER PAG E 72 OF ANNEXURE A-26 NAME OF THE APPELLANT DOES NOT APPEAR . ONLY IN THE PREAMBLE OF BANAKHAT THE NAME OF THE APPELLA NT APPEARS BUT THE BANAKHAT HAS NOT BEEN SIGNED BY TH E APPELLANT AND THE APPELLANT HAS DENIED TO HAVE CARR IED OUT ANY TRANSACTION IN LAND IN THE IMPUGNED TWO YEARS. 4.4 . IN THE CASE OF SHANKERLAL NEBUMAL (HUF) VS. D CIT REPORTED IN 135 TAXMAN MAGAZINE P-33 THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PURCHAS E OF SHOPS WAS DELETED BY 1TAT AHMEDABAD BENCH 'C BY - 23 - OBSERVING THAT THE ASSESSING OFFICER HAD MADE THE A DDITIONS PRESUMABLY BY INVOKING THE PROVISIONS OF SECTION 69 B AND AS SUCH THE ONUS WAS ON HIM TO PROVE BY EVIDENCE THAT THE ASSESSEE HAD IN FACT PAID ANY ON MONEY OVER AND A BOVE THE MONEY WHICH HAD BEEN RECORDED IN THE BOOKS OF ACCOU NT FOR MAKING INVESTMENTS IN THE PURCHASE OF SHOPS. HERE T HE ASSESSING OFFICER HAS NOT ESTABLISHED ANY SUCH PAYM ENT OF ON MONEY IF ANY BY THE APPELLANT IN PURCHASE OF NIKOL LAND. IN FACT THE SAID LAND TO THE EXTENT OF 10065 SQ.YDS. H AS BEEN PURCHASED BY THE APPELLANT ALONGWITH OTHER CO-OWNER S ON 24.11.2002. 4.5 . IN THE CASE OF BHARAT A. MEHTA VS. ITO REPORT ED IN 116 TAXMAN 301 (AHD.) (MAG.) THE ADDITION RELATING TO O N MONEY WAS DELETED BY OBSERVING THAT IN SPITE OF SEARCH T HE REVENUE COULD NOT LAY HAND ON ANY DOCUMENT TO SHOW THAT THE ASSESSEE HAD PAID ON MONEY. MOREOVER THE REVENUE COULD NOT GIVE ANY MATERIAL TO JUSTIFY THE CALCULATION OF THE AMOUNT ADDED TO ASSESSEE'S INCOME. IN THIS CASE IT WAS HEL D THAT 'WHERE BASED ON STATEMENT /ADMISSION OF BUILDERS OF BUNGALOWS UNDER A PARTICULAR SCHEME REGARDING RECEI PT OF ON MONEY ON SALE OF BUNGALOWS ADDITION UNDER SEC TION 69 WAS MADE IN CASE OF ASSESSEE WHO HAD PURCHASED A BUNGALOW UNDER SAID SCHEME BUT WHEN EXAMINED IN PRESENCE OF ASSESSEE BUILDERS DENIED RECEIPT OF AN Y * ON MONEY' FROM ASSESSEE ADDITION WAS TO BE DELETED.' 4.6 FURTHER EVEN IF THERE IS SOME SUSPICION THAT PR ICE MENTIONED IN SALE DEED IS NOT CORRECT OR THAT SOME ON MONEY HAS BEEN PAID THE REGISTERED SALE DEED HAS TO BE ACCEPTED AS AUTHENTIC IN ABSENCE OF EVIDENCE TO THE CONTRARY. SIMILAR FINDING HAS BEEN GIVEN IN THE CASE OF CIT V S. SMT. K.C. AGNES AND OTHERS REPORTED IN 262 ITR 354 (KER) . IN THAT CASE SALE DEED WAS SHOWING LESSER AMOUNT OF SALE PR ICE THAN THAT SPECIFIED IN AN EARLIER AGREEMENT. THE HON'BLE KERALA HIGH COURT OBSERVED THAT THERE WAS NO EVIDENCE THAT GREATER AMOUNT THAN THAT SHOWN IN THE SALE DEED HAS BEEN RE CEIVED AND IT HELD THAT WHEN A DOCUMENT SHOWS A FIXED PRI CE THERE WILL BE A PRESUMPTION THAT THAT IS THE CORRECT PRIC E AGREED UPON BY THE PARTIES. U IS NOT NECESSARY THAT THE PR ICE STALED IN THE AGREEMENT WILL BE THE PRICE SHOWN IN THE SAL E DEED. SOMETIMES IT MAY BE HIGHER AND SOMETIMES IT MAY B E LOWER. SOMETIMES INTENTIONALLY A LESSER VALUE MAY BE SHOWN IN THE - 24 - SALE DEED. EVEN IT' IT IS ASSUMED TO BE SO UNLESS IT IS PROVED THAT THE AGREEMENT WAS ACTED UPON AND UNLESS THE AM OUNT STATED IN THE AGREEMENT WAS PAID FOR THE SALE THE COURT CANNOT COME TO THE CONCLUSION THAT THE PRICE MENTIO NED IN THE SALE DEED IS NOT CORRECT ' 4.7. CONSIDERING THE FACTS OF THE CASE AND THE RATI O LAID DOWN IN THE ABOVE CASES I AM OF THE OPINION THAT T HERE IS NO CLINCHING EVIDENCE TO SHOW THAT THE APPELLANT HAS P AID RS.10 00 000/- AND RS.20 00 000/- IN THE TWO YEARS FOR PURCHASE OF NIKOL LAND WHEN THE APPELLANT HAS DENI ED TO HAVE CARRIED OUT ANY TRANSACTION IN THE SAID LAND I N THE TWO YEARS INVOLVED IN APPEAL. FURTHER THE PAYMENTS MADE IF ANY AFTER THE DATE OF SEARCH I.E.22.1.1997 AS RECORDED IN THE LOOSE PAPER P.72 OF ANNEX A-26 SEIZED AT THE TIME OF SEAR CH HAVE NOT BEEN EXAMINED TO BE CORRECT OR TO HAVE BEEN CAR RIED OUT NOR JASWANT PATEL HAS BEEN QUESTIONED ON THE ENTRIE S BEYOND 22.1 1997 I.E. THE DATE OF SEARCH FOUND IN THE LOOS E PAPER IF AT ALL THE SAID ENTRIES MIGHT INDICATE PROPOSED PAY MENT SCHEDULE AND THERE IS NO EVIDENCE WITH THE ASSESSIN G OFFICER TO SHOW THAT THE SAID TRANSACTIONS HAVE BEEN CAR RIED OUT NOR JASWANT PATEL FROM WHOM THE SAID LOOSE PAPER WA S FOUND HAS BEEN QUESTIONED NOR THE RECIPIENTS I.E. THE SELLERS OF LAND HAVE BEEN QUESTIONED ON THE SAID ENTRIES. I N VIEW OF THE ABOVE FACTS I DO NOT FIND ANY JUSTIFICATION FOR ADDITION OF UNDISCLOSED INVESTMENT IN LAND IN THE HANDS OF THE APPELLANT HENCE THE ADDITION OF UNDISCLOSED INVESTMENT IN LAN D FOR THE TWO YEARS INVOLVED IN APPEAL MADE BY THE ASSESSING OFFICER ARE DELETED TOR BOTH THE YEARS . 5. IN THE RESULT THE APPEALS ARE ALLOWED FOR BOTH THE YEARS. 17. FROM THE ABOVE WE FIND THAT THE LEARNED COMMIS SIONER OF INCOME TAX(APPEALS) IN BOTH THE APPEALS SPECIFICALLY NOTE D THAT THE PAYMENT SCHEDULE GIVEN AS PER SEIZED MATERIAL PERTAINED TO SCHEDULE OF PAYMENT AFTER THE SEARCH. IT WAS THEREFORE A MERE SCHEDULE OF PAYMENT BUT NO EVIDENCE IS BROUGHT ON RECORD IF THE ASSESSEE OR A NYBODY ELSE MADE ANY PAYMENT OF THE AFORESAID AMOUNT AFTER CONCLUSION OF THE SEARCH. IN THE ABSENCE OF ANY ADEQUATE MATERIAL ON RECORD TO PROVE CONCLUSIVELY THAT - 25 - ASSESSEE HAS MADE ANY PAYMENT AFTER THE SEARCH ON S EVERAL DATES FROM 1.12.1997 TO 1.03.1997 THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS JUSTIFIED IN DELETING BOTH THE ADD ITIONS. WE THEREFORE CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS) AND DISMISS THE GROUND OF APPEAL OF THE REVENUE IN BOTH THE YEARS UNDER CONSIDERATION. 18 IN THE RESULT THE APPEAL OF THE ASSESSEE AND TH E APPEALS OF THE REVENUE ALL ARE DISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 01/04/2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUN TANT MEMBER AHMEDABAD; DATED 01/04/2010 PARAS # COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD