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11. Undisputedly, in a search and seizure operation carried out at the premises of Mahesh Mehta Group of cases on 30.06.2009, a draft unsigned Agreement dated 22.02.2008 on a stamp paper of Rs.100/- qua the property bearing Plot No.115, Phase I, Udyog Vihar, Gurgaon, available at pages 4 to 6 of the paper book, was found and seized. It is also not in dispute that in the draft Agreement to Sell, Kusum Mehta and Mahesh Mehta was referred to as vendor and Kunjan Arora was referred to as buyer. It is also not in dispute that a recital has been made in the Agreement to Sell itself that Kusum Mehta and Mahesh Mehta were not registered owner of the property 3347 /Del./2014 in question at the time of execution of the agreement. It is also not in dispute that Rakesh Kumar Garg and Santosh Kumar Garg of RRFSL was the original owner of the property in question. It is also not in dispute that out of the total sale consideration of Rs.25,00,01,100/- settled in the draft agreement, an amount of Rs.18,50,01,100/- was paid but the sum of Rs.6,50,00,000/- was withheld by the owner till no objection certificate is issued by the HSIIDC for transfer of the plot from original owner, Rakesh Kumar Garg and Santosh Kumar Garg. It is also not in dispute that one Kunjan Arora vide his statement recorded by DDIT u/s131(1A) on 25.08.2009 admitted that he has paid a sum of Rs.9,66,00,000/- up till December 2007 and given post dated cheques of Rs.8,84,00,000/- to Kusum Mehta and Mahesh Mehta which have not been encashed till date, thus explained the total payment of Rs.18,50,01,100/- made to Kusum Mehta and Mahesh Mehta.

12. Ld. AR for the assessee challenging the impugned order contended inter alia that the draft agreement dated 22.08.2008 on stamp paper worth Rs.100/- found/seized during the search and seizure operation qua the sale of Plot No.115, Udyog Vihar, Gurgaon was never acted upon nor intended to be acted upon by the parties as Kusum Mehta and Mahesh Mehta were not registered owner of the property in question; that the plot in question could not be transferred in favour of Kusum Mehta and Mahesh Mehta due to some queries raised by the HSIIDC; that AO/CIT (A) have erred in 3347 /Del./2014 rejecting the actual agreement dated 21.04.2009 on the basis of which the property in question was transferred and they have also erred in making the addition on the basis of draft agreement dated 22.08.2008 which is a bald document; that the statement of Kunjan Arora recorded on 25.08.2009 u/s 131 (1A) of the Act has been wrongly relied upon by the AO which was recorded subsequently; that Mahesh Mehta in his statement dated 01.07.2009 recorded u/s 132 (4) co-signed by Kusum Mehta duly explained that agreement found was just a draft agreement and as such, is a dumb document; that Mahesh Mehta has retracted his statement under Rules and as such, the same cannot be relied upon; that the deal has never been matured on the basis of draft unsigned agreement as HSIIDC has raised certain objections; that assessee has duly clarified that he has already entered into same agreement and the post-dated cheques have never been encashed; that the property in question has already been transferred in someone others name and the assessee has been cheated and relied upon the cases of Shri Santosh Kumar Garg in ITA No.2864/Del/2013 order dated 29.09.2017, CIT vs. Harjeev Aggarwal (2016) 290 CTR 263 (Del.), Bansal High Carbons (P) Ltd. (2009) 223 CTR 179 (Del.), M. Narayanan & Bros. vs. ACIT (2011) 13 taxmann.com 49 (Mad.), Chetnaben J Shah vs. ITO in ITA No.1437 of 2007 order dated 14.07.2016, CIT vs. Ramanbhai B. Patel in ITA No.207 & 208 of 2008 order dated 20.07.2016 and CIT vs. K. Bhuvanendra & Ors. (2008) 303 ITR 235 (Mad.).

15. The Revenue to fasten the tax liability of both the assessees relied upon the draft unsigned agreement dated 22.02.2008 on a stamp paper with Ramesh Arora and Mrs. Deepti Arora through Kunjan Arora to sell 3500 shares of RRFSL for a consideration of Rs.25,00,00,000/- along with token amount of Rs.1,100/-. It is mentioned in the agreement to sell in question that the seller has received an amount of Rs.18,50,01,100/-. It is also one of the recital in the agreement that an amount of Rs.6,50,00,000/- has been withheld by the seller with the purchaser to facilitate the transfer process at HSIIDC and the balance amount is agreed to be paid in two installments, one at the time of provisional transfer letter by HSIIDC and second installment at the time of issuance of final transfer letter and in case of dispute, the issue was agreed to refer to Sole Arbitrator, Shri H.S. Choudhary , R/o J-56, Ashok Vihar, Phase - I, New Delhi-110052.