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TMI Blog2014 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment under Section 143(3), had completed the assessment determining the total income at Rs. 1,05,85,935/-. While determining the said amount as the income, the Assessing Officer included an amount of Rs. 54,20,000/- as undisclosed investment. This was based on an information obtained during search and seizure operation at the residence of Mr. P.A. Noushad. He had given information stating that he had sold 19.5 cents of land to the assessee. He also disclosed that though the price mentioned in the sale deed was only Rs. 24,00,000/-, he had actually paid Rs. 78,20,200/-. He had also stated that he purchased the said property from one Mrs. M.S. Mariamma Kurian for Rs. 66,20,000/-, though the price mentioned in the said sale deed was only Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case and considering the distinguishing features, i. the Tribunal is right in law and fact in relying on the decisions of the Hon'ble Supreme Court in Varghese (131 ITR 597) and Kalyanasundaram (204 ITR 49)? ii. should not the Tribunal have relied on the decision of the Hon'ble Kerala High Court reported in 220 CTR 166." 4. Heard learned standing counsel appearing for the Department and the learned counsel appearing for the assessee. 5. It is the main argument of the appellant that the judgment of the Supreme Court in K.P. Varghese's case (supra) has no application to the facts and circumstances involved in the case. 6. In K.P. Varghese's case, the issue involved was whether understatement of consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held that to ascertain the actual sale price of the property, the contradictory statement made by a person or the loose sheets recovered in the course of search could be relied upon. Such issues being questions of fact cannot be gone into as a substantial question of law. 8. In the case on hand, the revenue strongly relies upon the evidence available before the Assessing Officer to prove the actual value of land purchased by the assessee from Sri. Noushad. An affidavit is filed as Annexure B, which is part of the record of the Assessing Officer in which Mr. Noushad has, in categoric terms, stated that he purchased the aforesaid property for Rs. 66,20,000/- and he sold the said property to the assessee for Rs. 78,20,000/-. That apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot be taken on mere assumption or probabilities. Hence, it was found that the assessing officer has failed to establish that additional consideration has been paid by the assessee. 9. The Tribunal confirmed the opinion that the decision of the Supreme Court squarely applies to the facts of the case and therefore confirmed the order passed by the first appellate authority. 10. The learned standing counsel relies upon the judgment of this Court in C.I.T. v. Medical Trust Hospital and Others (supra). That was a case where the question involved was whether a retracted statement can be taken into consideration for the purpose of adducing evidence regarding the value of property. In the said case, in a statement under Section 132(4) befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority had relied upon irrelevant consideration to reject such evidence. Further, the Tribunal did not re-appreciate the evidence, whereas it has just confirmed the order passed by the first appellate authority. 12. On a perusal of the evidence available on record, the following facts are clear: (1) That Mr. Noushad has given a statement under Section 132(4) of the Income-tax Act stating that he sold the property for Rs. 7,82,00,000/- . (2) This is further confirmed by an affidavit dated 6.11.2008 of Mr. Noushad, indicating that he had purchased the property for Rs. 66,20,000/- and sold the property for Rs. 78,20,000/-. (3) When the assessee requested for cross examination and Mr. Noushad was summoned and sworn state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties to avoid stamp duty and huge expenditure on transfer of property. Therefore, the evidence made available by the Revenue is a probable evidence. It is relevant to note that if at all the assessee wanted to disprove the evidence given by Mr. Noushad, the assessee could have proved otherwise by giving some evidence to show the market value of the land in the locality. No such evidence is adduced by the assessee. Therefore, this was a case in which the revenue has to prove the existence of a fact that undervaluation was made by the assessee and that the assessee has paid more amounts for purchase of property amounting to Rs. 54,20,000/-. When that fact is proved, the burden shifts to the assessee to prove otherwise. He had an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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