TMI Blog2016 (11) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdulali [1973 (4) TMI 49 - SUPREME Court]. Thus, with the aforesaid directions, this issue is sent back to the file of the AO. - ITA No.957/Mum/2012, ITA No.5682/Mum/2014 - - - Dated:- 27-7-2016 - Shri Amit Shukla, Judicial Member, and Shri Ashwani Taneja, Accountant Member For The Revenue : Shri A. Ramachandran (DR) For The Respondent : Shri Chetan A. Karia (AR) ORDER Per Ashwani Taneja (Accountant Member): These appeals has been filed by the revenue against separate orders of Ld. order of Ld. Commissioner of Income Tax (Appeals), Mumbai-37, {(in short CIT(A) }, passed against assessment order u/s 143(3) of the Act, for the A.Ys 2008-09 2010-11. 2. During the course of hearing, arguments were made by Shri Chetan A. Karia, Authorised Representative (AR) on behalf of the Assessee and by Shri A. Ramachandran, Departmental Representative (DR) on behalf of the Revenue. First we shall take up appeal of the Revenue in ITA No.957/Mum/2012 for A.Y. 2008-09 The Revenue has filed following grounds of appeal: 1.On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) was not justif ied in deleting the additions amounting to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) wherein the Ld. CIT(A) upheld the addition of ₹ 1.50 crores made by the AO towards cash receipt on sale of flats as was declared by the assessee in the return for A.Y. 2007-08. With respect to addition made on account of cash component (i.e. on money ) in respect of sale of shop, Ld. CIT(A) upheld the addition made for A.Y. 2007-08 but for A.Y. 2006-07 addition was deleted by him on the ground that no evidence was found by the AO. 3.2. Aggrieved by the order of Ld. CIT(A) for both these year both the assessee and Revenue filed an appeal before the Tribunal. Thereafter the Tribunal vide its order dated 24.02.2016 in ITA No.5113-5114/Mum/2009 quashed the assessment orders on legal grounds, without adjudicating the same on merits. Thus, the issues on merits have not yet been addressed before the tribunal in any year including the impugned year. 3.3. In the year before us i.e. A.Y. 2008-09, it was noted by the AO that out of the same cluster, assessee had sold 5 shops during the year and on the basis of document impounded during the course of survey showing the sale consideration of the shop involving cash component of ₹ 21,12,500/- it was held by the AO that duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have paid any cash component. It was further submitted that evidences were found with regard to sale of shops in A.Y. 2007-08 and no evidence was found for sale of shops in impugned year and therefore no addition could have been made only on the basis of documents found in A.Y.2007-08. In absence of any evidence, the addition was wrongly made and has been rightly deleted by the Ld. CIT(A). In support of his arguments, he placed reliance on the judgment of Hon ble Delhi High Court in the case of CIT v. Anand Kumar Deepak Kumar 284 ITR 497 and upon the judgment of Orissa High Court in the case of Banshidhar Onkarmall v. CIT 3 ITR 353. 2.8. We have gone through the orders of the lower authorities and submissions made by both the sides before us. The impugned documents on the basis of which addition has been made was admittedly found at the premises of the assessee wherein certain facts were clearly mentioned which have not been denied or controverted so far. These facts are that shop no.03 was sold by the assessee for an aggregate consideration of ₹ 27,62,500/- out of which a sum of ₹ 6,50,000/- was received by cheque and balance amount of ₹ 21,12,500/- was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave a cash component at all or the sales consideration of the remaining shops having identical location and other contribution was equivalent to their agreement value only. The least, an assessee is expected to do in this regard is to establish with the help of documentary evidences that market value of the other shops are equivalent to their agreement value at the time of their sale. No such exercise has been done. On the contrary it is noted that sales price of these shops has been shown at even less than one-fourth of the total sales consideration of shop no.03. It is true that revenue authorities are obliged under the law to make fair assessment of income and determine tax payable thereon strictly within the parameters of law, but simultaneously, at various places, the legislature has also drafted appropriate safeguard provisions to ensure that the law of evidence under the income tax proceedings is applied in such a manner so as to ensure that tax evasion is checked. The game of burden is not static under the income tax law. The legal obligations between the assessee and AO swing like a pendulum. It keeps shifting depending upon facts and circumstances of the case and also u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgment it was held that merely on the basis of past history income could not be ascertained of the current period. Similarly, in the case of Anand Kumar Deepak Kumar (supra), Hon ble Delhi High Court held that if unaccounted sale was found in a year, there cannot be general presumption that unaccounted sale will continue in the post search period also. We find that the facts of the case before us are totally different from the facts involved in these two cases. This case is not being decided merely on the basis of general past history. It is not a case of unaccounted sales transactions, in general. In the case before us, specific documents have been found during the course of survey which established factum of cash component involved in the sale of a shop. If the other shops which are identical in all respects are sold, then these are expected to fetch a similar price. There cannot be a variation of more than four times. The Revenue is not expected to put linkers on its eyes in such cases and if it is so done then it will give rise to un-restricted tax evasion in our country. Under these circumstances, in the peculiar facts of this case, where specific documentary evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X
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