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5. [2014] 45 taxmann.com 276 (Allahadbad)- Swami Sharan Garg vs. CIT, Meerut.

6. [2005] 148 Taxman 569 (Madhya Pradesh)- Kantilal Prabhudas Patel vs. DCIT- Investigation, Circle-2.

7. R. Malika vs CIT [2017] 79 taxmann.com 117(SC).

8. Ashokbhai H Jariwala vs ACIT [2017] 84 taxmann.com 196 (SC)/[2017] 250 taxman 14 (SC)

5. Replying to the above, the learned authorised representative of assessee (AR) submitted that the provision of section 69A of the Act cannot be invoked in a vacuum only on the standalone basis of a unsigned document found from the computer of document writer which was never acted upon either by the assessee or by the other party. Drawing our attention towards relevant part of the assessment as well as first appellate order the ld. AR submitted that the ld. CIT(A) has noted facts pertaining to the unsigned agreement to sale (ATS) seized in the soft copy from the computer of a deed writer who was a third party and existence of the same was denying by the both parties to it including the assessee. The ld. CIT(A)also noted that the cheque amount and details are verifiable from the parties to the agreement and there was no evidence on record of any cash exchange between the parties and mention in the ATS. The ld. counsel submitted that the said ATS never culminated into a complete transaction by execution of the registered sale deed and the appellant never sold property to M/s. J P Holding & Leasing Pvt. Ltd. but in fact the same was sold to M/s. Luv Luxmi Land Developers ltd. under the registered sale deed executed on 26.06.2014 and capital gain have been shown by the assessee in the written of income for FY 2014-15 pertaining to AY 2015-16.

(v) The deed writer had not given any adverse statement to the contents of this ATS, as nothing had been reproduced in the assessment order.

(vi) This ATS never culminated into the sale deed. Infact, the appellant had sold this property later on at value of Rs3,61,00,000/- to another party M/s Luv Laxmi Land Developers (P) Ltd. as per the sale deed dated 26.6.2014 submitted by the appellant and capital gains have been shown in the return of income filed by the appellant for AY 2014-15.

7. In the result, appeal of the assessee is allowed partly. 5.8 It is observed that the facts in the above case, the nature of ATS seized (without any signatures & from the third party) and the deed writer from whom it had been seized, are same as in the case of the appellant. In fact in the case of the appellant, the ATS did not culminate into any sale deed, whereas in the above case, it culminated into sale deed at a lower value than mentioned in the ATS, with same parties as in ATS. After the detailed discussion and various case laws, the ITAT Delhi had concluded that no addition can be sustained only on the basis of the unsigned draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. This decision of the ITAT Delhi is squarely applicable to the facts of the present case. Therefore, respectfully following the decision of ITAT Delhi in the case of Shri Bharat Singh Vs ACIT, New Delhi, it is held that no addition can be sustained only on the basis of the unsigned unexecuted draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. Accordingly, the addition made by the AO of Rs 1,50,00,000/- is hereby deleted and this ground of appeal is allowed.

9. Now, we proceed to adjudicate the grounds of revenue. So far as presumption u/s. 292C of the Act, is concerned this issue has been dealt by the ld. CIT(A) in para 5.7 of the first appellate order wherein he has referred to the order of co-ordinate bench of ITAT Delhi in the case of Bhagat Singh vs. ACIT (supra) and thereafter observed that the nature of agreement to sale seized clearly reveals from the documents its which has not been signed by the parties and hence the same was found without signature in the soft copy of deed writer that is third party Shri Naresh Gupta. It is not a case of the Assessing Officer or CIT(A) that the said ATS was acted upon by the assessee and second party to the ATS by execution of sale deed and thus we have to agree with the contention of the ld. AR that the ATS was never acted upon and never culminated into transfer of property by way of execution of registered sale deed in favour of second party i.e. M/s. J P Holding & Leasing Pvt. Ltd. and in fact the assessee sold the property to a third party later against the consideration of Rs. 3.61 crores to M/s. Luv Luxmi Land Developers Pvt. Ltd. on 20.06.2014 during FY 2014-15 and also shown capital gain in its return of income for AY 2015-16 as these facts have not been controverted by the ld. Senior DR by way of any other adverse positive material or evidence which may lead us to take a different view in favour of the revenue.