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2017 (5) TMI 1581

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....s of the case the tribunal was justified and right in law in deleting the additions u/s 69 of the Act on the basis of new evidences not placed on record before the original and first appellate authority makes the orders perverse and contrary to Rule 29 of the Appellate Tribunal Rules, 1963? (ii) Whether, in the facts and circumstances of the case Tribunal was right in setting aside the addition made u/s 69 by shifting the burden on the department inspite of the fact that incriminating documents, statements u/s 131 were enough to justify unexplained investment and further no satisfactory answer were furnished by the respondents? (iii) Whether, the order passed by Tribunal is perverse and violative of principles of natural justice as passed on the basis of new evidences which were after thought and not placed on record before original authority and the first appellate authority? " 4. We have heard counsel for the parties. 5. Rule 29 of the Appellate Tribunal Rules, 1963 provides as under:- "29. Production of additional evidence before the Tribunal.- The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, b....

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....ifferent from the name of plot owner shown in the list submitted by the assessee. For example, on page 138 of APB for plot no.26 is 'G.Y. Meena' but on page 254 of APB the plot owner is Sunita Meena. Similarly for plot no.25 (pg.137 of APB) diary shows Prashant Joshi but the list on pg.254 sows Swapnil Sharma. Such differences can be found for plot nos.21, 22, 25, 26, 32 on pg.254 of APB and many other plots. Thus, the assessee has failed to explain the link between the diaries and the prospective plot owners. Therefore, the entries in these diaries in no way explain to source of the money used for investing in the land. The assessee has submitted the date wise cash statement in item no.17 (page187 to 190) of the APB. This statement was not submitted either before the AO or before the ld. CIT(A). Therefore, this kind of analysis is totally new evidence which was not presented before the lower authorities for verification and hence cannot be admitted in this stage before the Hon'ble ITAT." 7.1 He has also taken us to the para no.2.15 & 3.2 of the tribunal which reads as under:- "2.15 Page nos.187 to 189 of the paper book contains the details of the accounts received in bookin....

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.... the prevailing development expenses in private projects development expenses range to 50 to 60 per Sq. Yard. I am left with no option but to disallow 1/3rd development expenses. Thus the profit is apportioned at Rs. 6,66,023/- in three F.Yrs 2002-03 to 2004-05 relevant to A.Ys 2003-04 to 2005-06. Thus addition of Rs. 6,66,023/- is made on account of profit at Govind Vatika Project." 7.2 He contended that the view taken by the tribunal is contrary to law. Counsel for the appellant has also taken us to the para no.6.4 & 6.6 which reads as under:- "6.4 Before us, the ld. AR drew our attention to modus operandi of the business of the assessee as explained in the case of the assessee for the assessment year 2004-05. It is true that all the details in respect of Govind Vatika Project were available and found during the course of search. In respect of project named as 'Gokul Vihar' all the details are not available. However, the society allotted plots and details of names and addresses of such plots holders have been given at pages 260 to 264 of the paper book. It was submitted that the assessee is not a person of making investment of Rs. 1.24 crores from his own funds and therefore, ....

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....ttee and the recommendations made by the said Committee which led to the amendment of the Act by the Finance Act of 1972 whereby the exemption from tax that was available in respect of winnings from lotteries, crossword puzzles, races, etc. was withdrawn. Similarly the observation by the Chairman that if it is alleged that these tickets were obtained through fraudulent means, it is upon the alleger to prove that it is so, ignores the reality. The transaction about purchase of winning ticket takes place in secret and direct evidence about such purchase would be rarely available. An inference about such a purchase has to be drawn on the basis of the circumstances available on the record. Having regard to the conduct of the appellant as disclosed in her own statement as well as other material on the record an inference could reasonably be drawn that the winning tickets were purchased by the appellant after the event. We are, therefore, unable to agree with the view of the Chairman in his dissenting opinion. In our opinion, the majority opinion after considering surrounding circumstances and applying the test of human probabilities has rightly concluded that the appellant's claim a....