Income Tax Appellate Tribunal - Chandigarh
Sh. Sandeep Goyal, Panchkula vs Acit, Chandigarh on 24 January, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCH: 'B' CHANDIGARH
BEFORE SMT DIVA SINGH, JUDICIAL MEMBER
AND
SH.B.R.R.KUMAR, ACCOUNTANT MEMBER
I.T.A. No.-981/CHANDI/2014
(ASSESSMENT YEAR- 2006-07)
Sh. Sandeep Goyal, vs ACIT,
# 109, Sector-8, Panchkula. Central Circle-II,
PAN-AHGPG5661E. Chandigarh.
(APPELLANT) (RESPONDENT)
Appellant by Sh. Tejmohan Singh, Adv.
Respondent by Sh. Ashish Abral, CIT DR
Date of Hearing 30.11.2017
Date of Pronouncement 24.01.2018
ORDER
PER DIVA SINGH, JM
The present appeal filed by the assessee assailing the correctness of the order dated 09/09/2014 of CIT(A) (Central), Gurgaon pertaining to 2006-07 assessment year on the following grounds:-
1. "That the Ld. Commissioner of Income Tax(Appeals) has erred in law as well as on facts in upholding the addition of Rs.l,45,00,000/- made on account of alleged unexplained Investment in purchase of land at Banur which is arbitrary and unjustified.
2. That the Ld. Commissioner of Income Tax(Appeals) has failed to appreciate the sequence of events which had unfolded in the correct perspective and has upheld the addition only on suspicion ,surmises and conjectures.
3. That the Ld. Commissioner of Income Tax(Appeals) has brushed aside the evidence in the shape of affidavits and statement of the alleged seller of the property who has categorically stated having not received any cash and was also not the owner of the land under consideration and as such the order is arbitrary and unjustified.
4. That the order of the Ld. Commissioner of Income Tax (Appeals) is erroneous, arbitrary, opposed to law and facts of the case and is, thus, untenable."
2. The relevant facts of the case are that search was conducted on 16.01.2009 at the residences and offices of individual and group of concerns of M/s A.P.Shrestha (Goyal) group of cases. The assessee concern was engaged in the business of manufacturing of paper, trading in paper, building of housing projects and real estate. The assessee declared an income of Rs.2,27,008 for the specific year under consideration by way of filing a return under section 139 (1) of the Income Tax Act, 1961 (in short "Act"). Pursuant to the search, statutory notice under section 153A was issued to the assessee on 06/08/2009 and in response to the same, the assessee returned an income of Rs.7,27,008/-. In the specific year, the assessee was a partner in M/s A.P. Enterprises, 245, I.A.Phase-1, Chandigarh. The issue in the facts of the present case pertains to certain documents found and seized from the residence of Sh. Amit Mittal. Sh. Amit Mittal was confronted with the seized I.T.A. No.-981/CHANDI/2014 Page 2 of 16 documents. The documents were stated to belonging to the assessee. The relationship of Sh. Amit Mittal and the assessee is that Sh. Amit Mittal is the brother-in-law of the assessee. The subject matter for consideration in the present proceedings pertains to the documents identified as A - 9 and A - 10. For ready reference, the relevant extract is reproduced from the assessment order:
6. "Reference Document No. A-9 & A-10 seized from the residence of Sh.
Amit Mittal, relating to Shri Sandeep Goel for purchase of land at Banur. During the course of search operation the document Annexure A-9 and A-10 were found and seized from the residence of Sh. Amit Mittal. During the assessment proceedings, Sh Amit Mittal was confronted with the seized documents and he submitted that these transactions pertain to Mr. Sandeep Goyal and he has nothing to offer. Sh. Amit Mittal is brother in-law of Sh. Sandeep Goyal and both of them have been found to be largely engaged in the business of real estate. The perusal of page 149 of A-9 and page 58 of A-10 relate to the agreement of Banur land page 149 of A-9 is the original documents and page 58 of A-10 is the photocopy of the same. As per these documents, Sh. Sandeep Goyal has paid an advance of Rs 1,45,00,000/- to Sh. Gurcharan Singh and Sh. Jagdish Singh for purchase of 6 Kila (description of land Khasra No. 35824(4-0) 3587 (4-0), 3590(4-0), 3591(4-0) 3582(4-0)7 rakba 28 kila etc at the rate of Rs 65 lakhs per acre.
The sale and purchase of this land interestingly, has a very logical and seemingly large history and therefore needs to be understood clearly to arrive at the conclusion.
First of all A This land belonged to Shri. Nirbhay Singh and others who entered into an agreement dated 2.3.2005 to sale with Shri. Sham Lal and others for 6 kila (acres) at the rate of Rs.27.50 lakhs per kila/acre and Sh. Nirbhay Singh took an advance of Rs 50 lakhs.
B Thereafter, the second owner(through GPA) Shri. Sham Lal and others entered into another agreement-dated 26.10.2005 to sell the same price of land (6 acres) to Sh. Jagdish Singh and others @ 41 lakhs per acre and took an advance of Rs.55 lakhs.
C Thirdly, came into picture Mr. Sandeep Goyal, the assessee, who entered into an agreement to sell with the owner Sh. Jagdish Singh and Sh. Gurcharan Singh and others at the rate of Rs 65 lakhs per acre and paid an advance of Rs1,45,00,000/-.
For clear understanding, the events have been placed below in a chronological order. The chronology of events is given below:-
I) Page (68-70) of A-10: Date of Event: 02.03.2005:
Sh. Nirbhay Singh & others has entered into an agreement to sell on 02.03.2005 with Sh. Sham Lal & others, for sale of 6 acres of land at Banur @ Rs. 27.70 lakh/acre. They took an advance of Rs. 50 lakh in cash. A scanned copy is annexed as "Annexure A"
II) Page (145-147) of A-9: Date of Event: 26.10.2005:
Sham Lal & others again enter into on agreement to sell with Gurucharan Singh & Jagdish Singh for the same land on 26.10.2005 @ Rs. 41 lakh /acre. They took an advance at Rs.55 lakh. A scanned copy is annexed as "Annexure B"
III) Page (149) of A-10 & Page (58) of A-9: Date of Event: 30.11.2005:
Shri Gurucharan Singh & Shri Jagdish Singh enter into an agreement to sale in respect of the same land with the assessee Shri Sandeep Goel. They have taken an advance of Rs.1.45 crores in cash for the same land from Shri Sandeep Goel. A scanned copy is annexed as "Annexure C"
IV) Page (148) of A-9 & Page (57) of A-10: Date of Event 15.02.2006 Shri Sandeep Goel files an affidavit before the Registration that the date of registry of the said land was fixed today, but Shri Gurucharan Singh and Shri Jagdish Singh did not turn up. He had also submitted that he had brought two drafts of Rs.30,00,000/- and Rs.40,00,000/- for further payment towards the cost of the said land. As per affidavit he had also bought stamp paper of Rs.6,51,100/- on 07.02.2006. A scanned copy is annexed as "Annexure "D"."
3. The assessee was required to explain the same. Considering the explanation offered, it was held to be not acceptable and affidavit of Sh.
I.T.A. No.-981/CHANDI/2014 Page 3 of 16 Jagdish Singh relied upon was held to be in complete contradiction to the facts mentioned in the agreement dated 30/11/2005. Reliance was placed upon the fact that the amount mentioned in the said document was Rs.3.90 crores and the fact was supported by the assessee's affidavit before the Registrar (page 148 of document A - 9 and 57 of document A- 10) which stated that the assessee had paid an advance of Rs.1.45 crores. Accordingly, the counsel was required to explain why the sum of Rs.1.45 crores paid by the assessee to Sh. Gurucharan Singh and Sh. Jagdish Singh should not be treated as unexplained investment under section 69. In response thereto, the assessee filed its submissions dated 28/12/2010 however, the said submission was also not accepted on the reasoning that reliance placed upon the affidavit of Sh. Jagdish Singh would not help in the face of the seized document. Similarly, the argument that in the documents neither cheques not cash has been written as such the assumption that actually money has exchanged was held to be not believable in view of the fact that the series of events showed that Sh. Jagdish Singh and others had GPA for the same land and the contention of the assessee that Sh. Jagdish Singh and others could not sell the land was held to be tenable. Accordingly, addition of the said amount was made in the hands of the assessee.
4. The assessee carried the issue in appeal before the CIT(A). The submissions advanced have been extracted in the order. These were remanded to the Assessing Officer. Considering the Remand Report and the rejoinder to the remand report, Ld.CIT(A) upheld the addition made by the Assessing Officer. Aggrieved by this, the assessee is in appeal before the ITAT.
4.1. The Ld. AR carrying us through the facts as recorded in the assessment order, the submissions advanced therein, the reasoning of the Assessing Officer challenged in appeal before the CIT(A) referring to the documents in the paper book read along with the submissions advanced before the CIT(A) submitted that the addition on facts has been wrongly upheld. Inviting attention to the affidavit dated 25/10/2010 of Sh. Jagdish Singh which affirmed the factual position and was not being believed by the Department, it was submitted that the assessee in the Appellate proceedings had insisted that his statement may be recorded by the Assessing Officer. Referring to the impugned order, it was submitted that the statement of Sh. Jagdish Singh was recorded and it forms part of the impugned order. However, despite the fact that Sh. Jagdish Singh confirmed the statement in the affidavit, the Assessing Officer and the CIT(A) insist upon relying upon the seized documents which were prepared in anticipation of events which never occurred or could occur as Sh. Jagdish Singh was never the owner of the said land. Thus, the affidavits filed before the Sub-Registrar were got prepared in I.T.A. No.-981/CHANDI/2014 Page 4 of 16 anticipation to stake claim to the property. Thus in the peculiar facts where the parties filed various affidavits to mark their presence before the Sub- Registrar on a specific date for pressurizing for sale mentioning amounts where infact no money was paid which has been consistently explained and no property was purchased. The fact that Sh. Jagdish Singh who may have passed himself as an owner or been confused as an owner or whatever may have been the confusion. However, consistently all along, the factual position as argued by the assessee for some reason is being disbelieved namely that the occasion for the assessee to pay Sh. Jagdish Singh cannot and did not arise as he was never the owner of the specific piece of land at any point of time. This factual position which has been submitted by the assessee right from the outset has been disbelieved by the Revenue on conjectures and surmises and has not been upset or assailed by any fact. The assessee's version of facts, it was submitted has been affirmed by way of an affidavit of the concerned person before the AO i.e. by Sh. Jagdish Singh himself who has also been examined, his statement recorded by the Assessing Officer in the remand proceedings which forms part of the impugned order. The rejoinder of the assessee to the objections of the Assessing Officer confronted by the CIT(A) have also been recorded. In these circumstances, it was his submission that addition on facts was not warranted.
5. Ld. CIT DR heavily relying upon the impugned order and the assessment order has placed written submissions on record. Inviting attention to the written submissions and carrying us through the same, it was submitted that the seized documents fully support the case of the Revenue. In the peculiar facts, it was submitted the retraction by the assessee by way of an affidavit of Sh. Jagdish Singh and others is not permissible in terms of the decision of the Jurisdictional High Court and Apex court in the case of Navdeep Dhingra vs ACIT [2015] 56 taxmann.com 75 (Punjab & Haryana) and B Kishore vs DCIT [2015] 62 taxmann.com 215 (SC). 5.1. Time was given to the parties to file a chart addressing the documents respectively relied upon by them. The Ld. CIT DR placed his written submissions alongwith the said chart on record and placed heavy reliance thereon. For ready-reference, the written submissions dated 30/11/2017 of the CIT DR are reproduced hereunder:-
F.No.CIT(DR)-l/ITAT/2016-17 Date: 30.11.2017
To,
The Hon'ble Members,
ITAT, Chandigarh
Madam/Sir,
Sub: ITA No. 981/Chd/2014 - Shri Sandeep Goyal - A.Y.2006-07 - Regarding The case is listed for hearing on 30.11.2017
2. At the outset it is submitted that reliance is placed on the findings and decisions made by the Ld AO and Ld CIT(A) in their respective orders.
I.T.A. No.-981/CHANDI/2014 Page 5 of 16
3. The assessee has raised only one ground i.e the Ld CIT(A) has erred in upholding the addition of Rs.1,45,00,000/- made by the Ld AO on account of alleged unexplained investment in purchase of land. In this regard it is submitted that the Ld CIT(A) has upheld the additions made by the Ld AO on the basis of the following grounds/facts (para 5.3 of the order):
a. The relevant seized documents i.e. Annexure A-9 & A-10 belonged to the assessee as stated by Shri Mittal, Brother in Law of the Assessee. This fact has not been disputed by the assessee.(refer para 5.3 page 9 of CIT Appeals Order) b. A-10 page 5 is the original agreement to sell entered between the assessee as purchaser and Shri Gurucharan Singh and Shri Jagdish Singh as sellers.(refer para 5.3 page 9 of CIT Appeals Order) c. As per this agreement Rs. 1.45 crores has been paid by the assessee as advance to the sellers @ Rs.65 lakhs per acre. (refer para 5.3 page 9 of CIT Appeals Order) d. The affidavit of the assessee before the Registrar also admits to having paid Rs. 1.45 crores towards purchase of land to the sellers.
Refer page 148 of A-9 (page 57 of A-10) e. The assessee has accepted to have owned the seized document and also accepted payment of Rs.1.45 crores in his statement recorded on 30.01.2009.
f. The assessee subsequently retracted from his above statement without citing any reasonable grounds. Such retraction is not permissible under the law especially when nothing is brought on record to show that the statement was recorded under coercion, threat, force or undue influence etc. In this regard, reliance is placed on the following case laws:
* Navdeep Dhingra vs CIT [2015] 56 taxmann.com 75 (Punjab & Haryana) "11. The onus to prove, concealment of income lies upon the revenue.
Admissions are an integral part of assessments and as they are the best evidence of a fact, within the personal knowledge of an assessee may if the admission is voluntary and not extracted by coercion or force, be read against an assessee. The relevance of an admission admits to another exception namely if the admission is retracted within reasonable time and by assigning valid reasons. A perusal of the impugned orders reveals that the assessee made an admission, on 18.01.2006 and followed it up by a written admission on 19.01.2006 but while filing his return did not retract the admission. At no stage of the survey or assessment proceedings except at its fag end on 4.12.2008 i.e. almost two years after the admissions and a few weeks before finalisation of the assessment, did the assessee raise a plea that he was coerced and forced into making admissions. The belated retracting of the admissions on 04.12.2008, nearly two years after the admissions and then also without any facts to support the allegation of coercion or pressure, cannot enure to the benefit of the assessee. An admission is substantial evidence of a fact, within the special knowledge of an assessee and if not retracted immediately or within reasonable time is substantive evidence of a fact and may be read against an assessee. We, therefore, answer the above questions against the assessee and as we find no reason to hold that the revenue has erred in relying upon admissions made by the assessee, dismiss the appeal."
* B Kishore vs DCIT [2015] 62 taxmann.com 215 (SC) "Section 69A, read with sections 143, 153 and 153A of the Income-tax Act, 1961 - Unexplained moneys (Admission in sworn statement) - Assessment years 2001-02 to 2007-08 - High Court by impugned order held that since assessee himself had stated in sworn statement during search and seizure about his undisclosed income, tax was to be levied on basis of admission without scrutinizing documents -Whether Special Leave Petition filed against impugned order was to be dismissed - Held, yes [In favour of revenue] CASE REVIEW B. Kishore Kumar v. Dy. CIT[2014] 52 taxmann.com 449/[2015] 229 Taxman 614 (Mad.) [SLP dismissed].
N. V. Balaji, V. Balaji, C. Kannan, Ms. Sripradha K., Ms. Priyanka and Rakesh K. Sharma, Advs. for the Petitioner.
ORDER I.T.A. No.-981/CHANDI/2014 Page 6 of 16
1. Delay condoned.
2. The special leave petitions are dismissed. "
g. The subsequent affidavit filed by the seller Shri Jagdish Singh does not have any credence as these are self serving document. In this regard, Ld CIT(A) has placed reliance on the decision of Hon'ble Delhi High Court in the case of Nova Promoters & Finlease (P) Ltd 342 ITR 169.
5. It is further submitted that normal trade practices also involve sale agreements not being registered to avoid stamp duty and also the payment of Earnest Money or Bayana as has happened in this case. The alternate submission of "barter" or the value of Bayana as referring to the market value of the land is not acceptable and has rightly been refused by the Learned CIT (A) on pages 11 and 12 of the CIT Appeals Order.
In view of the detailed findings made by the Ld CIT(A) and Ld AO, it is submitted that the appeal filed by the assessee may please be considered for dismissal.
6. The above submission may please be taken on record.
Yours faithfully, Sd/-
(Ashish Abrol) Commissioner of Income Tax (DR)-I, ITAT, Chandigarh.
Relevant Index of the Paper-book
Sr. Description of Description of documents Pages in Treatment
No. Sieved paper
document
1. Annexure A-10 Page 5 Copy of Agreement to Sell by Shri Gurcharan book
25 relied upon in
Singh and Assessee wherein he claims to my written
have sold all rights and received submission
Earnest Money of Rs. 1,4 5,00,000 in
Gurumkhi
la translated copy of item 1 above 26-27 -do-
2. AnnexureA-10 68 to a. Copy of Agreement to Sell between 28-40 AO/CIT(A)
70 Nirbhi Singh , Hardeep Singh, and Sohan
Singh in Gurumukhi pages 27 to 30 of paper
book
b. Copy of Agreement to sell between
2b a. Translations 2a above pages 35-38 of
paper book
b. Translation of 2b above pages 39-
3 Annexure A 10 pg 57 Copy 40 of
ofAffidavit
paper book before sub registrar 41 relied upon in
and 148 ofA9 where Sandeep Goyal (assessee) my written
acknowledges having paid Rs. 1,45,000 as submission
biana or earnest money to Gurcharan Singh
3b and JagdishofSingh
Translation in Guruntukh and that
3 above 42-43 -do-
4 Annexure A-10 Pages Lose sheets translated as the following 44-53
145 to 147 i. Agreement to sell between Shyamlal *
a. Page Agrawal and Kamljit Singh
147 of Annexure-10 ii. Affidavit by Jagdish Singh where he
b. Backside of states that he was present on 15-02-2006
page 147-10
c. Page 146
of Annexure-10 d.
Annexure-10
d. Page 145 of Annexure-10
5 Annexure A-10 page 148 Copy of Affidavit of Sandeep Goyal (assessee) that he has 54
got into an agreement with Gurcharan Singh and Jagdish Singh where (scored out ) earnest money is given and that drafts of 70 lakhs have been cancelled by him.
4. Copy of the loose seized documents (Annexure A-9 Pages 55-56 AO/CIT(A) 145 to 147) alongwith translated copy.
4a Translation of 4 above
5. Page 149 ofA-9 and Copy of Agreement to Sell by Shri Gurcharan Singh and
Page No 58 of A-10 Assessee wherein he claims to have sold all rights and
received Earnest Money of (scored out in Gurumkhi
5b Translation of 5 above
6. The Ld. AR in reply also filed a chart addressing the documents relied upon by the tax authorities vis-a-vis the documents relied upon by the assessee in support of his grounds. The submissions advanced before the tax authorities, it was submitted were heavily relied upon. The decisions relied I.T.A. No.-981/CHANDI/2014 Page 7 of 16 upon by the Department, it was submitted were entirely on different set of facts and circumstances as such not applicable to the facts of the present case as there is no retraction. It was submitted that there is no offer made during the search which is retracted. All along the assessee it was submitted is canvassing the same position. The documents found in the search were documents prepared in anticipation believing the facts to be in a certain manner. The occasion for actual payment to Sh. Jagdish Singh never arose as he was never the owner of the land, which position has been confirmed by affidavit of Sh. Jagdish Singh and also in his statement recorded by the AO in the remand proceedings. The land was ultimately sold to Shri. Sanjay Kumar on 17.03.2006 and that too as a compromise due to some dispute etc.
7. We have heard the submissions and perused the material available on record. Before proceeding to address the arguments of the parties before the bench, it is deemed appropriate to first set out how the issue has been considered by the CIT(A). A perusal of the impugned order shows that the submissions of the assessee which were confronted to the Assessing Officer by directing the remand have been extracted in pages 3 to 5 of the order. These written submissions of the assessee heavily relied upon by the Ld.AR are also reproduced hereunder for ready reference:-
Date: 02-03-2005 "One Sh. Nirbhay Singh s/o Jhangir Singh, Sh. Dhanna Singh s/o Jhangir Singh, Sh. Hardeep & Karnail Singh s/o Nirbhay Singh, Lakhbir Singh s/o Harpal Singh entered into an Agreement to Sell 51 Bighas 11 Biswa Land at Banur, Tehsil Rajpura, District Patiala/with fsh. Harish Goyal s/o Sh. Ramnath Aggarwal Residing at # 88, Sector -6, Panchkula (35%),Sh. Mohinder Singh s/o Sh. Prem Singh Residing at Village Buddanpur, District Panchkula (25%), Sh. Shyam Lal Aggarwal s/o Sh. P.C.Aggarwal Residing at # 276, Sector-11, Panchkula (40%) on 02-03-2005 @ Rs. 27.70 Lakh Per Kila (acres). Sh. Nirbhay Singh, was given earnest money of Rs. 50,00,000/- on 01-07-2005. The same was to be registered on 17-02-2006 (as per Page 30 rw Page 37 of Paper Book) as per the Back Side of Page No. 70, 69 & 68. These documents are placed at Pages 28-40 of the Paper Book.
Date: 26-10-2005 Sh. Shyam Lal Aggarwal s/o P.C. Aggarwal (40%) & Sh. Kamaljit Singh s/o Sh. Sewa Singh residing at 671/60, New Sharda Nagar, Ambala. (Haryana) (5%) entered into an Agreement to Sell their part of land equivalent to 6 kilas at Village Banur, Tehsil Rajpura, District Patiala, (Punjab) @ Rs. 41,00,000/- per Kila(acre) to Sh. Gurcharan Singh s/o Sh. Mehar Singh residing at #1483, Sector-45, Chandigarh (50%) & Sh. Jagdish Singh s/o Sh. Inder Singh S/o Sh. Sher Singh residing at Village Ugoke (Badshahpur Mandi), Tehsil Samana, District Patiala, (Punjab)(50%). They took earnest money of Rs. 20,00,000/- on 26-10-2005 & decided to take the balance amount of Earnest money of Rs. 30,00,000/- on 30-10-2005. The date of getting the sale deed registered was fixed as 15-02-2006 as per Back Side of Page No. 147 & 146. These documents are placed at Pages 44-53 of the Paper Book.
Date: 03-11-2005 Sh. Mohinder Singh s/o Sh. Prem Singh (25%), Sh. Harish Goyal s/o Sh. Ramnath Aggarwal (35%) got their share of Land registered i.e. 28 Bigga 5 Biswa on 03-11.2005. Remaining land i.e. 23 Bigga 3 Biswa of Sh. Shyam Lal Aggarwal remained unregistered till 03-11-2005 as per Annexure "B" forming part of the assessment order. The said document is also placed in the Paper book at Page 33 and the translated copy is Page 40 of the Paper Book.
I.T.A. No.-981/CHANDI/2014 Page 8 of 16 Date:07-11-2005 Sh. Shyam Lal Aggarwal received Rs. 35,00,000/- from Sh. Bhupinder Singh s/o Sh. Balwant Singh & Sh. Jagdish Singh s/o Sh. Inder Singh & Sh. Gurcharan Singh s/o Sh Mehar Singh towards balance earnest money vide receipt dated 07.11.2005. Copy of the same is placed at Page 45 read with Page 49 of the Paper Book.
Date: 15-02-2006 Sh. Jagdish Singh s/o Inder Singh s/o Sh. Sher Singh gave an Affidavit in the Tehsil placed at Page 47 rw 52 &53 of the Paper Book deposing therein that as per the sale deed between Sh. Shyam Lai Aggarwal & him, he had already paid Sh. Shyam Aggarwal Rs. 55,00,000/- as earnest money & as per their agreement, the date of registration was 15-02-2006. He further deposed in the Affidavit that he arrived at office of the Tehsil there but neither Sh. Shyam Lai Aggarwal nor anyone on their behalf came for registering the Land in the name of Sh. Jagdish Singh & Sh. Gurcharan Singh. Thus, as per Affidavit (Page no.
145) Sh. Jagdish Singh & Sh. Gurcharan Singh were not the owners of Land even till 15-02-2006.
Date: 17-02-2007 This land was finally registered in the name of one Sh. Sanjay Kumar. A compromise was arrived at between Sh. Shyam Lai Aggarwal and Sh. Sanjay Kumar vide Compromise Letter dated 17.02.2007 placed in the Paper Book at - Page 31 rw Page 39. It is very clear from the contents that ultimately the deal was struck between Sh. Shyam Lai Aggarwal & Sh. Sanjay Kumar for Rs. 92,00,000/-. Registry for Rs. 72,34,375/- was done in the name of Sh. Sanjay Kumar on 17-03-2006. Statement of Mr. Sanjay Kumar was recorded on 14th May, 2010 in which he has admitted that registry of Rs. 72,34,375/- of Land situated at Village Banur, Tehsil Rajpura, District Patiala (Punjab) was got done in his name & the amount has been paid by Mr. Sanjay Kumar which includes not only profit but also the value of land. Copy of the statement is placed at Pages 21-24 of the Paper Book.
On perusal of the sequence of events, it would be seen that Sh. Jagdish Singh was never the owner of the land in question. The agreement dated 30/11/2005 which is the basis of addition entered into between Sh. Jagdish Singh 5/0 Sh. Inder Singh resident of Village Badshahpur Mandi, Tehsil Samana, District Patiala with Sh. Sandeep Goyal was never implemented. There was no exchange of cash of Rs.1,45,00,000/- as mentioned in the said void agreement No doubt, it has been mentioned in the affidavit Rs. 1,45,00,000/- was paid by Mr. Sandeep Goyal but the fact remains that no money actually exchanged hands. It is also mentioned in the affidavit of Sh. Sandeep Goyal placed at Pages 54-56 of the Paper Book that Sh. Jagdish Singh did not appear on 15.02.2006 for execution of the deed. But the fact remains that Sh. Jagdish Singh was very much present on the same date and before the same officer as per his affidavit placed at Pages 47 rw 52-53 of-the Paper Book. Thus, the contents of the affidavit of Sh. Sandeep Goyal cannot be taken in evidence since they have been proved to be incorrect.
Sh. Jagdish Singh has in his sworn Affidavit dated 25-12-2010 placed in the Paper Book at Pages 16-18 deposed in this regard. He has denied having received Rs.1,45,00,000/-from Sh. Sandeep Goyal. It has further been stated by him that he never owned this agriculture land situated at Village Banur, Tehsil Rajpura, District Patiala which is evident as explained supra. In this regard, it is pertinent to state that Sh. Jagdish Singh appeared in person for recording of his statement before the Assessing Officer which was not done. It is again requested that the statement of Sh. Jagdish Singh be recorded to cull out the true facts. Also, it is important to note that the word Cash/Cheques has not been mentioned anywhere in the document The Assessing Officer has taken the affidavit of Sh. Sandeep Goyal to be sacrosanct and has made the impugned addition. The onus which lies heavily on the Assessing Officer has not been discharged by him while making this addition. The statement of Sh. Jagdish Singh was purposely not recorded even when he was present in his office. The assessee has brought out all these facts vide his replies placed in the Paper Book at Pages 7-8, 15, 19 & 20 which may please be considered. In view of the above submission, it is respectfully submitted not to treat the amount of Rs. 1,45,00,000/- as unexplained investment under the provisions of income tax and the addition made may please be deleted."
I.T.A. No.-981/CHANDI/2014 Page 9 of 16 7.1. It is further seen that Ld.CIT(A) considering the prayer of the assessee also directed the Assessing Officer to record the statement of Sh. Jagdish Singh. The AO's Remand Report dated 04/11/2013 pursuant to the said direction wherein the statement of Sh. Jagdish Singh was recorded by the Assessing Officer forms part of his report. It has been reproduced at pages 6 to 9 of the order. This is also extracted hereunder for ready reference:-
"Report of the A.O. on the written submission dated 10.09.2013 in the case of Sh. Sandeep Goyal. House No. 109, Sectors, Panchkula A. Y. 2006-07 A search u/s 132(1) of the I.T. Act 1961 was conducted on 16.01.2009 at the residences and offices of the individuals and group concerns of M/s A.P. Shrestha (Goyal) Group of cases by the Investigation Wing Chandigarh. This group is engaged in the business of manufacturing of paper, trading in paper, building of housing projects and real estate. The case of the assesses was centralized with Central Circ!e-II vide letter no. 1737 dated 16.07.2009. The assessee filed return of income u/s 139(1) of the income declaring income of Rs. 227008/- on 31.10.2006. Statutory notice u/s 153A was issued on 06.08.2009 for filling the return within 30 days of the service of the notice. On 31.03.2010, the assessee filed his return of income declaring income of Rs. 7,27,008/-, which included Rs. 5 Lacs declared as additional income.
2. During the course of search, various incriminating documents were founds which were confronted to the assessee during the assessment proceedings and which are discussed below:
Reference Annexure No. A-9 & A- 10 seized from the residence of Sh. Amit Mittal, relating to Sh. Sandeep Goel.
These documents contain the details of agreements regarding purchase of 6 acre of land at Banur and details of transaction in respect of this land. The chronology of events is given below:-
I) Page(68-70) ofA-10: Date of Event: 02.03.2005:
Sh. Nirbhay Singh & other has entered into an agreement to sell on 02.03.2005 with Sh. Sham Lal & others for sale of 6 acres of land at Banur @ Rs. 27.70 lakh/acre/ They took an advance of Rs. 50 lakh in cash. A scanned copy is annexed as "Annexure A ".
II) Page(145-147) of A-9: Date of Event: 26.10.2005:
Sham Lal & other again enter into an agreement to sell with Gurucharan Singh & Jagdish Singh for the same land on 26.10.2005 @Rs. 41 lakh/acre. They took an advance at Rs. 55 lakh. A scanned copy is annexed as "Annexure B".
III) Page(149) of A-10: & Page (58) ofA-9 Date of Event: 30.11.2005:
Sh. Gurucharan Singh & Shri Jagdish Singh entered into an agreement to sale in respect of the same land with the assessee Shri Sandeep Goel. They have taken an advance of Rs. 1.45 crore in cash for the same land from Shri Sandeep Goel. A scanned copy is annexed as "Annexure C". IV) Page(149) of A-9 & Page (57) ofA-10 Date of Event: 15.02.2006:
Sh. Sandeep Goel files an affidavit before the Registrartion that the date of registry of the said land was fixed today, but Shri Gurucharan Singh & Shri Jagdish Singh did not turn up. He had also submitted that he had brought two drafts of Rs. 30,00,000/- and Rs. 40,00,000/- for further payment towards the cost of the said land. As per affidavit he had also bought stamp paper of Rs. 6,51,100/- on 07.02.2006. a scanned copy is annexed as "Annexure D".
During the course of assessment proceedings, the assessee was asked to file the details of transaction. The counsel of the assessee submitted that the assessee has not paid any sum of Rs. 1.45 crore for the said and to anybody. He was asked to file evidence in support of his submission.
The counsel of the assessee filed a copy of an affidavit dated 25.12.2010 from Sh. Jagdish Singh. In the said affidavit Sh. Jagdish Singh has mentioned.
"That the biana (taken money) of Rs. 1,45,00,000/- (Rupees one crore forty five lakh only) mentioned in the agreement date 30th November, 2005 does not represent cash/cheque. That the said amount represents the market value of the land to be exchanged."
The affidavit filed by Sh. Jagdish Singh was in complete contradiction to the fact as mentioned in the agreement dated 30.11.2005. As per the said agreement, the market value of the land to be exchanged was Rs. 3.90 crores.
I.T.A. No.-981/CHANDI/2014 Page 10 of 16 Further, the assessee has paid an advance of Rs. 1.45 crore in this regard. This fact has been admitted by the assessee himself by filing an affidavit before the Registrar [page-148 of the document A-9 & page 57 of the document A-10]. Thus, the Id. A.O. concluded that in the facts and circumstances of this case, there is no ambiguity that the sum of Rs. 1.45 crores was paid over and above the sum of Rs. 92 lakhs for purchasing the land at Banur.
3. Now, in reference to the written submission filed by the assessee which has been forwarded by your goodself vide letter No. 514 dated 20.09.2013. Sh. Jagdish Singh s/o Sh. Inder Singh was summoned u/s 131 of the Income Tax act, 1961 to make further enquiry into the matter.
"Statement of Shri Jagdish Singh S/o Sh. Inder Singh R/o Ugoke (Badshapur), Tehsil Samana, Distt. Patiala recorded on 15.10.2013 during the course of Appellate Proceeding in the course of Sh. Sandeep Goyal in reference to Remand Report called for by the CIT(A)(C), Gurgaon vide no. 514 dated 20.09.2013.
Sd/- Sd/-
(Laganpreet Sandhu) (Jagdish Singh)
Oath Administrated Oath Taken
Q.1 Please identify yourself.
Ans. I am Jagdish Singh S/o Sh. Inder Singh R/o Ugoke (Bahshapur), Tehsil Samana.
Q.2 Do you know Sh. Sandeep Goyal R/o H. No. 109, Sector 8, Panchkula.
Ans. Yes 1 know him in connection with a land deal in respect of land situated in Banur, measuring approx. 6 kilo. The deal did not materialize finally. Q.3 You are hereby shown one 'Halafnama' (Affidavit) dated 15.02.2006 by Sh. Sandeep Goyal wherein he has stated that he made a payment of Rs.1.45 Crore to you for purchase of land measuring about six acres. He has further that Le had brought DD within Rs.70,00,000/- for remaining payment but the owners of land have not turned up for transfer of the said land in his favour. In this context, please explain the mode of payment of Rs.1.45 Crore and also please explain when these payments were made.
Ans. In this connection it is submitted that I never owned this land. The land belonged to Sh. Sham Lai S/o Sh. Puran Chand Aggarwal R/o 276, Sector 11, Panchkula and others. It is further submitted that the money was never paid as biana. In lieu of payment of Rs.1.45 Crore, actually some other piece of land was to be transferred by Sh. Sandeep Goyal to Sh. Sham Lai. It is further stated that 1 also have given one affidavit on 15.02.2006, which is part of assessment order wherein it has been stated the owners of the land did not turn up for completing the deal. I have also given one affidavit during the course of assessment proceedings on 2S.12.2010, which is placed on your file. It is reiterated that no payment was made in respect of the amount of Rs.1.45 Crore. Only a piece of land was to be transferred by Shri Sandeep Goyal to Shri Sham Lai, which due to some dispute could not be finalized. Q.4 Do you have to say anything other than what you have stated above. Ans. No, I have nothing more to say."
4. In the above statement, though Sh. Jagdish Singh has categorically denied having paid (....should be "received') any cash in the land deal and has stated that some piece of land was to be exchanged as consideration in lieu of sum of Rs. 1.45 Cr, yet the documents seized during the course of search present an entirely different picture. It is evident that the sum of Rs. 1.45 crore paid by the assessee as advance on 30.11.2005 to Sh. Gurcharan Singh and Sh. Jagdish Singh was towards the cost of land at Banur. This sum was over and above the sum of Rs. 92 lacs disclosed by the assessee in A.Y. 2007-08. The Ld. A.O, appears to have correctly made addition of Rs. 1.45 crores to the income of the assessee u/s 69B of the Act."
7.2. The said remand report was made available to the assessee who reiterated as per submissions extracted in para 5.2 that Sh. Jagdish Singh was never the owner of the land as such there was no occasion to pay him for the land which never belonged to him. It was reiterated that the position has been affirmed by the statement of Sh. Jagdish Singh and also his affidavit. Reliance was again placed upon the fact that "it was a common practice of I.T.A. No.-981/CHANDI/2014 Page 11 of 16 furnishing affidavits to mark attendance in the Court and if a wrong affidavit has been given then the procedure as enunciated in Indian Evidence Act was to be followed to cull out the facts and the real intention of the parties". 7.3. However, the said position was not accepted by the CIT(A) in view of the findings recorded in paragraph 5.3 of his order which reads as under:-
5.3. "I have carefully considered the impugned order, assessee's submissions alongwith the paper book and the remand report. The AO in the impugned order has detailed the transfer of land (through GPA) at para 6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.7, 6.8 and 6.9. There is no doubt that documents were seized from the residence of Shri Amit Mittal who is the brother in law of the assessee, carrying identification mark A-9 & A-10. Shri Mittal, who carried out business with the assessee however disowned the said document. It was categorically stated that the said documents belonged to the assessee. Shri Mittal is stated to be an active partner in M/s AP Shrestha Colonisers and Developers Co. and looks after the construction work as per statement of his father -in-law Shri JR Goyal.
Document A-9 page 149 is the original agreement to sell entered into between the assessee as purchaser and Shri. Gurcharan Singh and Shri Jagdish Singh as the sellers. The photocopy of the same agreement was also found (page 150 of A-10) in the course of search. As per this agreement Rs.1,45,00,000/- has been paid as advance by the assessee to Shri Jagdish Singh and Shri Gurcharan Singh for purchase of land measuring 6 Kila at Banur @ Rs.65 lakhs per acre. The sequence of dates and various agreements which have been entered into with various persons at different points of time has been meticulous enumerated. Such details of the documents and payments made have been summarized as follows:
Date of agreement Rate per acre Advance in cash
2.3.2005 Rs.27.50 lakhs Rs.50 lakhs
26.10.2005 Rs.41.00 lakhs Rs.55 lakhs
30.11.2005 Rs.65.00 lakhs Rs.1.45 crores
In other words, the assessee has paid Rs.1.45 crores advance for a piece of land in Banaur, detailed in para 6 of the impugned order. The money was paid to one Shri Jagdish Singh. In fact the affidavit of the assessee before the Registrar also admits to having paid Rs.1.45 crs towards the land to Shri Jagdish Singh.
Furthermore, when the assessee was confronted on 30.1.2009 about the seized document in answer to Q.No.2, he stated as under:-
Q.2. I am showing you page 145 to 149 of Annexure A-9 seized from the residence of Amit Mittal which states that Rs.1,45,00,000/- has been paid by Sandeep Goyal s/o Jagdish Rai. Please state the nature of this document as Shri Amit Mittal has stated in his statement that the said papers pertain to transaction under taken by your family. Ans: I confirm that the said papers pertain to transaction under taken by my family.
As regards, payments of Rs.1,45,00,000/- as mentioned in the agreement dated is concerned, it is stated that the said amount does not actually represent total cash but also includes, market value of certain land which were to be transferred by way of Barter deal. However, the seller of the land refused to register the sale deed in our favour on the due date when I submitted an affidavit at page 148 of Annexure A-9, seized from the residence of Sh. Amit Mittal.
The said affidavit was submitted in the o/o Sub Registrar alongwith 2 Demand draft of Rs. 40 lakhs and 30 lakhs each, issued form ICICI Bank. Since the registry was not done on the due date the same drafts were subsequently cancelled and were credited in the ICICI Bank A/c No. 001305002151. A copy of the said bank A/c for the relevant period is enclosed herewith for you kind perusal. The said agreement in question was subsequently become null and void and the deal did not mature. However since the stake of our family involved initially, in order to settle the dispute, a sum of Rs.92,52,000/- was paid in cash to the party in order to settle the dispute pertaining to the said agreement".
I.T.A. No.-981/CHANDI/2014 Page 12 of 16 However the assessee, vide his written submissions had stated that Shri Jagdish Singh was never the owner of the land and that the agreement dated 30.11.2005, which is the basis of addition was never implemented. It was a void agreement. It was also stated that Shri Jagdish Singh in a sworn affidavit dated 25.12.2010 has denied having received Rs.1,45,00,000/- from the assessee. It was also articulated that he never owned the land. It was also requested that the statement of Shri Jagdish Singh be recorded in full. The assessee further added that the words cash/cheques have not been used.
After having perused all the documents, there is no doubt that the assessee has in fact retracted on the statement given on 30.1.2009. It is trite law that retraction of statement is not permissible unless it is proved that the statement was recorded under duress/pressure. It is noteworthy that the assessee was a part of the senior management of the group concern and the statement was recorded almost a fortnight of the search. He has also not adduced any evidence that the said statement was recorded under pressure.
The assessee on the contrary has submitted that Shri Jagdish Singh was neither the owner of the land nor a GPA holder. The series of events suggests otherwise that the various sellers had GPA for the same land. As for claim of not having the ownership as again iterated in the rejoinder, the same would be true as the land was being transferred by GPA. Needless to say transfer of land by GPA is done so as to save on the registration fees.
With regard to the subsequent affidavit filed by Shri Jagdish Singh on 25.10.2010, not much credence can be given to the same particularly when the documents pertaining to the transaction had been seized in the course of the search operation. The Hon'ble Delhi High Court in the case of CIT vs Nova Promoters Finlease (P) Ltd 342 ITR 169 (Del) has held at para 25 that:-
"25. In the light of the above facts, me evidentiary value of the affidavits is open to serious doubts. The Indore Bench of the Madhya Pradesh High Court in the case of Smt. Gunwati Bai Rati Lal vs. CIT(MP) 146 ITR 140 explained the judgment of the Supreme Court in the case of Mehta- Parikh and Company vs. CIT (Supra) and held that the said decision cannot be considered to have laid down the proposition that unless the deponents of the affidavits are cross-examined, the affidavits cannot be rejected. It was explained that the decision of the Supreme Court lays down "that if there is no material whatsoever on record for doubting the veracity of the statements made in the affidavits and if the deponents have also not been subjected to cross-examination for bringing out the validity of their statements, then the Tribunal would not be justified in doubting the correctness of the statement made by the deponents in the affidavits." Thus the affidavits need not be accepted as reliable when there is enough material on record to doubt the veracity of the transaction. In such a case it cannot be said that the affidavits can be rejected only after cross examination. In the present case, there is enough material on record to negate the claim of genuineness of the transactions and in the light of over-whelming material the plea that the Assessing Officer should not have rejected the affidavits without cross- examination of the deponents has no force. The said exercise has resulted in complete miscarriage of justice."
(emphasis supplied) Another question for consideration that comes up is whether barter (as admitted in the statement of the assessee dated 30.1.2009) would come within the parameters of transfer. In this regard, it would be relevant to refer to the provisions of sec. 2(47) of the Income Tax Act 1961:
2 (47) 'transfer' in relation to a capital asset, includes,-
(i) the sale, exchange or relinquishment of the asset; or
(ii) the extinguishment of any rights therein; or Thus from the definition above, a barter deal would fall into the ambit of transfer.
However, there appears to be some confusion with regard to the said transfer. It was contended that the agreement dated 20.11.2005 was void. However, evidence has been positively adduced that the said agreement to sell void. To the best of my opinion, in the backdrop of assessee's statement on 30.01.2009, the contents of the various seized documents which needless to say are connected, crucial and overwhelming, and lastly in the absence of I.T.A. No.-981/CHANDI/2014 Page 13 of 16 cogently proving that the affidavits before the Registrar were not genuine, the assessee deserves to lose.
Furthermore, the assessee has not controverted the statement of Shri Amit Mittal, his brother-in-law. Nor has he requested that Shri Mittal or even Shri Jagdish Singh be confronted by the assessee. In view of the above discussion, the addition of Rs.1.45 crores made by the AO is sustained. Assessee fails on this ground."
7.4. In the light of the above facts as discussed by the tax authorities and considering the submissions advanced by the assessee before the Assessing Officer and Ld. CIT(A) we hold that the addition on facts has been wrongly made by the AO and sustained by the CIT(A). It appears that the confusion may have occurred on account of the fact that on account of the sudden boom in the real estate sector, there were many players on the field who were vying for and attempting to corner purchase of agricultural lands etc. in order to corner and dictate the price at which they are acquired by developers etc. As a result of this race to garner and corner the lands, a frenzy of documents with claims and counter claims for purchase of the same land namely at page 68 - 70 referred to by the Assessing Officer of A-10 dated 02/03/2005 and page 145 to 147 of A - 9 dated 26/10/2005 were entered into. Apart from documents with Sh. Sham Lal and others; Gurucharan Singh there is also as per page 149 of A-10 and page 58 of A-9 dated 30.11.2005, an agreement with Sh. Gurcharan Singh and Sh. Jagdish Singh with the assessee. The document page 148 of A-9 and page 57 of A-10 dated 15.02.2006 is an affidavit of the assessee before the Registrar stated to be prepared in anticipation of the date on which the registry was fixed. It has been consistently stated which has not been upset namely that Sh.Gurucharan Singh and Sh. Jagdish Singh for whom drafts had been prepared in advance did not turn up for finalizing the Registry on the said date. The said affidavit, it has been ex-consistently explained before the Assessing Officer as well as Ld. CIT(A) that the two drafts mentioned therein i.e. of Rs.30 lakh and of 40 lakh were subsequently cancelled and the affidavit of Sh. Jagdish Singh affirms the fact that no amounts were paid as no sale took place as he was not the owner of the land. Thus, the agreement to sell entered into by the assessee with Shri. Jagdish Singh was a document wherein actually no payments were made. We further find that this affidavit of Sh. Jagdish Singh was affirmed by Shri. Jagdish Singh in the statement recorded by the Assessing Officer in the remand proceedings. The reason for the department disbelieving the affidavit of Sh. Jagdish Singh, we note may be on account of the fact that the assessee's affidavit before the Registrar supported by the agreement to sell entered into by the assessee was found to be contrary to the affidavit of Shri. Jagdish Singh even though affirmed in his statement before the AO. We note that the facts have already been addressed by the assessee before the AO in his letter dated 28/12/2010 extracted in the assessment I.T.A. No.-981/CHANDI/2014 Page 14 of 16 order itself. A perusal of the same shows that reference therein has been made to the fact that agreement dated 30/11/2005 did not mature and thus became void. Further the affidavit of Sh. Jagdish Singh also affirmed this fact. The specific land ultimately apparently was sold to Sh. Sanjay Kumar, some other person on 17/02/2007 as per compromise letter of the said date with Mr Shamlal Aggarwal for the amount of Rs.92 lakhs out of which the payment as mentioned in the Registry was of an amount of Rs.72,34,375/-. The payment over and above the Registry amount of Rs. 20 lakh had been paid to Mr Shamlal Aggarwal and it has been surrendered in the hands of Mr Sandeep Goyal in 2007-08 assessment year. Statement of Mr Sanjay Kumar as per record has been recorded on 14.05.2010 and relied upon before the AO. Shri. Sanjay Kumar is also a relation of the assessee in which he has admitted that registry of Rs.72,34,375/- of this very specific land situated at village-Banur, Tehsil-Rajpura, District Patiala, Punjab was got done in his name and the amount has been paid by Mr Sanjay Kumar. A perusal of the said letter further shows that it has been stated that "it is respectfully submitted that they were number of agreement to sell between various persons and this created dispute and since the stake of Goyal family was involved, ultimately dispute was settled with Sh. Sham Lal Aggrawal by paying him the above-mentioned amount. In this statement, Sh. Shyam Lal Aggarwal has stated that the amount of Rs. 92 lakh represents not only profit but includes also which has been received from Sh. Sanjay Kumar". The said position it is noticed was affirmed before the Ld. CIT(A) also. In these peculiar facts and circumstances, we find that admittedly a lot of people had entered into the fray for attempting to purchase the said piece of land which admittedly could be sold by Shri. Shyam Lal who had entered into an agreement at the first point of time. The other people had entered into agreements in anticipation of purchasing the land from Sh. Sham Lal. However since ultimately the land was sold by Sh. Sham Lal Aggarwal to Mr. Sanjay Kumar shows that apparently no due diligence was done by any of the other parties who may have been of the belief that the owner of the said land was actually someone else. The fact that ultimately the land was sold by Sh. Sham Lal to Sh. Sanjay Kumar recorded the paper book pages 21 to 24 which is a copy of the statement of the said person recorded on 14/05/2010. A perusal of the same shows that Sh. Sanjay Kumar is shown to be as per the statement recorded on 14/05/2010 in the case of M/s A.P. Shrestha (Goyal) group of cases on oath administered by Ritu Sharma. It is seen that in response to Question No. 1, Sh. Sanjay Kumar stated "I am Sanjay Kumar, son of Sh. Om Prakash, Resident of Hari Prasad Colony, Yamuna Nagar. I am engaged in business of garments". In response to question as to how he knows M/s A.P. Shrestha Group of companies. It is seen he has stated that "Sh. Jagdish Rai Goyal is I.T.A. No.-981/CHANDI/2014 Page 15 of 16 my father-in-law". Sh. Sham Lal Aggarwal accepts the fact that land has been purchased in his name at Rs.72,34,375/- and he is the brother-in-law of Sh. Sanjay Kumar. In view of the disputes wherein Sh. Sham Lal had also entered into an agreement with Sh. Nirbhay Singh and others. The dispute was sorted out and the Registry was ultimately done on 17/03/2006. The registry amount was Rs. 72 lakh odd and payment of Rs. 20 lakh over and above that had been paid to Sh. Sham Lal Aggarwal by the assessee in 2007- 08 assessment year. It has been stated that since the name of the family became involved in the dispute, the same had to be settled. The said stand is the consistent stand of the assessee right from the assessment stage. We further note that the general presumption that any and every agreement to sell necessarily must fructify in actual sale as varies situations and eventuality can arise where either the party fails to offer the agreed amounts or the party chooses to retain the property or go to a higher seller. There can be many a slip between the cup and the lip. In the peculiar facts, it is seen that in the facts of the present case, the reliance placed on case law for the proposition that retraction is not maintainable is misplaced. The present case is not a case of retraction. There is no offer to the Revenue which on account of some rethinking is being retracted. It is a case of documents prepared in anticipation of Registry intending to make payments for sale of the specific property. The documents prepared in advance, affirming that certain payments have been made mentioning the amounts to be paid by drafts of 2 specific different amounts which also had been made, however, not handed over and ultimately cancelled supports this fact. The fact of filing an affidavit before the sub-registrar to mark his presence in the absence of the other side is a pressure tactic is the factor which is being referred to by the parties as "it was a common practice of furnishing affidavits in courts to mark attendance in the court and in case wrong affidavit has been given............ Procedure as enunciated....... to cull out the facts and the really intention of the parties". We also note that there were multiple documents which also suggested that at a point of time, some exchange and barter was also being contemplated for acquiring the said land. Thus on considering the peculiar facts and circumstances of the present case and the submissions of the parties before the Bench as well as the case law relied upon, we find that in view of the peculiar facts and circumstances of the present case for the reasons set out herein above, the addition on facts has wrongly been made and confirmed. Being satisfied by the consistent explanation offered by the assessee, we note that the addition in the peculiar facts and circumstances has been made purely on suspicions. While arriving at a conclusion, we have taken into consideration the legal position as set out in the decisions referred to by the Ld. CIT DR in the case of Navdeep Dhingra vs CIT (supra) wherein the I.T.A. No.-981/CHANDI/2014 Page 16 of 16 Jurisdictional High Court while considering the case of retraction on the grounds of threatened coercion wherein as per the record the assessee declared an income of Rs. 50 lakh on behalf of his company and Rs.30 lakh on his behalf which the assessee sought to retract neither at the time of filing of the return nor during the pendency of assessment proceedings and only before the CIT(A) came up with retraction which was consequently made the basis for rejecting the retraction. The said stand has consistently been upheld by the two Appellate forums as the assessee's appeal before the CIT(A) as well as the ITAT had been affirmed by the Hon'ble High Court. We find that the said decision proceeds on entirely different set of facts and circumstances of the said case.
7.5. We have also taken into consideration the decision of the Apex court relied upon by the Ld. CIT DR namely B Kishore vs DCIT (supra). A perusal of the said decision shows that SLP filed by the assessee was dismissed, affirming the decision of the High Court wherein it had been held that since assessee himself had stated in his own statement during search and seizure about his undisclosed income, tax was to be levied on the basis of admission without scrutinizing the documents. We find that the said decision also proceeds on entirely different set of facts and circumstances and is not applicable to the facts of the present case. Accordingly for the reasons given herein above, the appeal of the assessee is allowed.
8. In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court on 24th January 2018.
Sd/- Sd/-
(B.R.R.KUMAR) (DIVA SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
*Amit Kumar*
Copy to:
1. The Appellant
2. The Respondent
3. The CIT
4. The CI T(A)
5. The DR
Asstt. Registrar
ITAT, Chandigarh.