TMI Blog2019 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cash of ₹ 2 crores found from his possession during the course of search by the CBI. The entire case set-up by the assessee is clearly an afterthought. The MOU and receipt are sham documents and fabricated by the assessee and others later on which fact is further strengthened by the fact that no original of MOU and receipt have been produced before the authorities below. Otherwise, the same could have been subjected to verification by CFSL. Copy of the MOU was produced, but, it was not having the back side which could have throw light on the fact as to when the said stamp paper were purchased and whether stamp papers were genuine or not. Hon ble Supreme Court in the case of Durga Prasad More [ 1971 (8) TMI 17 - SUPREME COURT] and in the case of Sumati Dayal [ 1995 (3) TMI 3 - SUPREME COURT] has held that the Courts and Tribunals have to judge the evidence before them by applying the test of human probability . If the said test is applied in this matter, it is clearly established that the assessee has failed to prove source of ₹ 2 crores found during the course of search by the CBI at his residence.- Decided against assessee - ITA.No.621/Del./2015 - - - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, assessee is not possessing the receipt. The assessee further stated in his statement that agreed price of sale of land is ₹ 6 Crores measuring 50 Acres which has possession dispute, for which, he has no evidence. During the course of assessment proceedings, the assessee filed a reply stating that ₹ 2,01,00,000/- was received as advance against the property. No further details giving the name/ address of the person from whom this money was received were provided. The mode of payment was also not mentioned. The A.O. asked the assessee to furnish name, complete address, mode of receipt, PAN and copy the bank statements of the person concern and confirmation in support of the same. The assessee filed reply giving the details of the cash advance received from Shri Rahul Ahuja of East of Kailash, New Delhi along with PAN through broker Mr Sharma i.e., Mr Sanjeev Kumar Sharma resident of Ranjeet Nagar, Near South Patel Nagar Metro Station, New Delhi. The A.O. issued notice under section 133(6) of the I.T. Act to Shri Rahul Ahuja asking for the following details/documents. 1. Please inform the nature of transaction that took place with the above named person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Shri Rahul Ahuja has filed a court case for recovery of the advance amount given. He was required to file the copy of the court case documents. The reply from Shri Rahul Ahuja was filed at the Dak counter. The A.O. noted that verification portion of the suit for recovery was signed on 22.01.2013 i.e., the date when Counsel appeared before the Assessing Officer. The copy of the suit filed does not contain any receiving/stamping of the Court where it is claimed to have been filed. The A.O, therefore, noted that it is an afterthought and assessee was not able to prove genuineness of the transaction. Subsequently Counsel for Assessee appeared before A.O. and he was asked to produce Shri Rahul Ahuja and Shri Sharma for examination. Counsel for Assessee filed a reply stating that assessee is out of India and shall be back after 1st week of March 2013 and that relations with Shri Rahul Ahuja and Shri Sharma are beyond repairs and even gone to the extent of litigation. It was requested that summons may be issued as they have no inputs/connect to contact these parties. The A.O. issued summons under section 131 of the I.T. Act to Shri Rahul Ahuja and Shri Sanjeev Kumar Sharma for their pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres for agreed price of ₹ 6 crores. He has also explained that he met the assessee at Vasant Vihar, Vasant Contenental Hotel and Oberoi Hotel at Lodhi Road. Payment was given at the residence of the assessee. He could not explain the reason as to why payment was made in cash. After CBI raid on assessee, the intention of assessee were not true. Therefore, he had suffered and filed a case against the assessee. The A.O. on careful examination of the material on record and considering three different statements given by assessee, Shri Sanjeev Kumar Sharma, Shri Rahul Ahuja, made the following observations : 1. The assessee had stated that the area of the land agreed to be sold was 50 acres and agreed price was ₹ 6 Crores Whereas Shri Sanjeev Sharma and Shri Rahul Ahuja have not confirmed this, and have stated to the contrary that area of the land was 30 acres and agreed price was ₹ 4 Crores. Hence the statements differ. 2. The assessee had stated in Q.No.11 in statement recorded on 22.4.2010, that no agreement was signed whereas Shri Rahul Ahuja submitted a copy of the MOU dated 12.04.2010 which also contained receipt of ₹ 21 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee stated that an amount of ₹ 2 Crores was received as advance money whereas Shri Sanjeev Sharma and Shri Rahul Ahuja have stated that advance money paid was ₹ 2.01 Crores. The figures do not match. Hence, the version of the assessee is not correct. 7. Vide Q. No 12 Shri Rahul Ahuja had stated that the source of cash in hand as on 12 4.2010 ₹ 21 Lakhs and on 21.4.2010 ₹ 1.80 Crores, was cash withdrawal of ₹ 1.75 Crores on 29.1.2010 from bank account, and another withdrawal of ₹ 20 Lakhs on 2.2.2010 from the same account It is surprising to note here that how Shri Rahul Ahuja could keep such heavy cash in hand from 29.1.2010 to 21.4.2010 whereas he is maintaining a regular bank account. This also seems to be a afterthought to prove the genuineness of the transaction. The above facts and discussion proves beyond doubt that the transactions claimed to have been made by the assessee with Sh. Ahuja is only a sham transaction It was purportedly done to cover up the cash found and seized by the CBI at his residence which was illegal gratification mean to obtain favour from Sh. Ketan Desai, the then president of MC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.30 hrs. the telephonic conversation reveals that Dr Kamaljeet Singh, Chief Executive Officer Gain Sagar Medical College Hospital Patiala collected the amount, the ₹ 2 Crores from Shri K.A Paul near Hanuman Mandir at Karol Bagh and delivers it to Shri Jatinder Pal Singh at his residence which was recovered by team of CBI from the residence of Shri Jatinder Pal Singh after the delivery. 9. The investigation of CBI also reveals that the above amount ₹ 2 crores was brought in a vehicle, bearing registration no CH-03X8514 to the residence of Shri Jatinder Pal Singh at D-II-6/13 Vasant Vihar, New Delhi for onward delivery to Dr. Ketan Desai. The investigation has also revealed that Shri Jatinder Pal Singh and Dr. Sukhvinder Singh were in contact since Nov.2009 and subsequently in the month of Feb 2010, both discussed the issue of recognition for preparation of favorable inspection report by Medical Council of India during the inspection to be conducted and Shri Jatinder Pal Singh obtained ₹ 2 Crores for showing this favour with the help of Dr. Ketan Desai to Gian Sagar Medial College Hospital, Patiala. In view of the discussions/observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 lakhs per annum. The A.O. accordingly made addition of ₹ 16,80,000/-. The assessee also stated to have earned ₹ 4 lakhs as agricultural income, for which, no evidence was filed. The A.O, therefore, noted that whole cash of ₹ 15,74,000/- does not belong to the assessee. In the statement during the course of search, assessee had stated that cash of ₹ 5 lakhs belongs to him. Since assessee has not been able to prove the source of the cash, the cash of ₹ 5 lakhs was also added to the income of the assessee. Since assessee claimed during the course of assessment proceedings that cash of ₹ 15,72,000/- belong to him, therefore, it was also added to the income of assessee on protective basis to protect the interests of the Revenue. These additions were challenged before the Ld. CIT(A). 4. The Ld. CIT(A) reproduced the submissions of the assessee in the impugned order in which the assessee reiterated the submissions made before the A.O. He has submitted that assessee had received ₹ 2 crores from Shri Rahul Ahuja as advance against the proposed sale of agricultural land situated in District-Faridabad. The statement of assessee was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer made an addition of ₹ 2,00,00,000/- mainly on the ground that the appellant conspired with Dr. Ketan Desai to receive an illegal gratification by extending favors to Gian Sagar Medical College Hospital and that the receipt of such amount was explained to have been received against a sham agreement disguised as an advance received by the appellant against the sale of an agricultural land situated at Magrauli Village, Faridabad district Haryana. As the source of the cash was not explained by the appellant corroborating the same with concrete evidence, the Assessing Officer found the cash seized from the possession of the appellant as unexplained and undisclosed to the tax authorities. From the details filed and available on record, I find it abnormal to note that the alleged purchaser filed a suit for recovery of the advance amount of ₹ 2,00,00,000/- on the same date i.e. 21.1.2013, when he was summoned by the Assessing Officer to explain the alleged purchase of agricultural land with the supporting evidence. Therefore, a necessity arose to further enquire into the alleged transaction entered between the appellant and Sh. Rahul Ahuja, the purchaser/buyer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same were duly considered. From the perusal of documents filed during the remand proceedings as well as assessment proceedings, following facts appear as under : (a) Sh. Jatinder Pal Singh is the owner of socalled land in Faridabad Haryana. Other than this fact, all things are after thought and try to camouflage the unexplained/ unaccounted money found during the search. His statements was recorded u/s 131 during the assessment. (b) Statements of buyer of the land Sh. Rahul Ahuja and broker/witness Sh. Sanjeev Sharma was recorded in detailed u/s 131 during the assessment (copy enclosed). (c) After careful examination and comparison of above three statements given by the assessee, Sh. Sanjeev Sharma and Sh. Rahul Ahuja certain observation were made and discussed in detail on page no. 9, 10 and 11 of the assessment order. Relevant portion of the above three statements was also reproduced in assessment order. (d) In compliance to directions of Ld. CIT(A) statement u/s 131 of Sh. Anil Kumar Trehan, broker/witness of the said deal regarding property at Faridabad, was recorded (copy enclosed). After a comparis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q. No. 9 that he met Mr. Sanjeev Sharma four times in Oberai Hotel. Whereas, Mr. Anil Trehan has stated that he met mostly at the residence of the assessee D-Block, Vasant Vihar, and only once he met the assessee along with his partner Sh. Sanjeev Kumar Sharma. Whereas, the assessee in his statement never stated that he met Sh. Anil Kumar Trehan of Sh. Sanjeev Sharma was meeting him with someone. vi. Sh. Anil Trehan stated that every time he met the assessee along with his partner Sh. Sanjeev Kumar Sharma. Whereas, the assessee in his statement never stated that he met Sh. Anil Kumar Trehan or Sh. Sanjeev Sharma was meeting him with someone. vii. The assessee stated that an amount of ₹ 2 crores was received as advance money whereas Sh. Anil Trehan has stated that advance money paid was ₹ 2.01 crores. The figures do not match. Further, ITI of this office was deputed to verify the suit filed by Rahul Ahuja vs. Jatinder Pal Singh in the court of Civil Judge Sr. Division, Faridabad. The case has been filed on 23.1.2013 and next date of hearing in on 10.11.2014 a certified copy of the suit is enclosed. From above discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The conditions [a) [d] mentioned above are not applicable in this case. Sufficient opportunity was given to the assessee by the Assessing Officer and hence provisions of Rule 46A are not applicable in this case. The condition [b) [c] as mentioned above are also no applicable as the assessee did not submit any evidences to substantiate the he was prevented by sufficient cause. Therefore, it is a fit case for not admitting additional evidences under Rule 46A of Income Tax Rules and you are kindly requested not to admit the additional evidence filed by the assessee. 7.1. The said said report was provided to the AR of the appellant. Vide letter dated 14.10.2014 the AR of the appellant submitted his comments as a rebuttal which is extracted below : AO s Report : AO report can be summarized as follows : The documents which the Ld. CIT(A) was referring, while remanding the matter to the AO, were available with the AO and that the assessee has not filed anything new to the AO. Mr. Rahul Ahuja, Mr. Sanjeev Sharma and the assessee was already enquired during the assessment and the discrepancies were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of the same. It must be noted that the AO never raised this issue when the MOU was originally fled during the assessment. In any case, we are now furnishing the copy of MoU which has the details of Stamp Vendors along with this Rebutals for your perusal. The third allegation of the AO, in this report, shows the lack of application of mind by the AO while making the Remand Report. The AO was completely oblivious to the fact that the search was conducted at the premises of the assessee and the MoU was available with the purchaser, i.e., Mr. Rahul Ahuja, who was issued summons under Section 131 of the Act by the AO. It is further brought to your notice that the AO has put the purchaser under oath and recorded his statement. In view of the above submissions, it is submitted before your goodself that the MoU is a genuine document and it is only the AO who is trying to camouflage the truth by making baseless allegations. It is brought to your kind notice that the case of the assessee was proved beyond doubt by the assessee as well as by the purchasers and brokers, who were summoned by the AO u/s 131, and it is up to the AO now to disprove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny case, not remembering the name of the purchaser cannot be the ground for making disallowance. We would like to highlight here that the purchaser proved his credit worthiness by appearing in person and showing a withdrawal of ₹ 1.75 Crores and ₹ 20 Lakhs from his Bank accounts. Hence, it is now for the AO to prove substantially with evidence that the Purchaser had NOT used the said amount for the purchase of impugned land. In the absence of any evidence to suggest that the assessee has obtained from any other source, it cannot be held as unaccounted cash. Discrepancy # 5 : The assessee has stated that he met Mr. Sanjeev Sharma four times in M/s. Oberai Hotel whereas the Mr. Anil Trehan has stated that he has met the assessee only once in M/s. Oberai Hotels. We would like to reiterate that the AO has to conclusively prove that the assessee had obtained the money from the source other than Mr. Rahul Ahuja or that Mr. Rahul Ahuja has NOT given the money as advance towards the purchase of the property. A disallowance cannot be made on surmises and conjectures. If the AO is not satisfied with the explanation provided by the assessee, it can ask the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the CBI has conducted enquiry at the assessee's premises and seized money from the assessee. It is submitted by the assessee that the AO has erroneously arrived at a conclusion, without appreciating the facts of the case in merits. The primary point that should be noted here is that the assessee has explained its source of income beyond doubt. Moreover, the purchaser as well as the brokers had come forward on the issue of summons under Section 131 and proved their genuinity before the AO. Thirdly, the purchaser had further established his source of income for ₹ 2 crores and hence the primary preconditions of 'Unexplained investment/ unaccounted cash' has been satisfied and moreover, the AO also did not bring on anything positive to prove it otherwise. In this regard, the assessee would like to rely on the following decisions: Shri. Birbal Ram Meera Vs ITO (ITA No.410/JP/2011, A.Y. : 2003-04) wherein it was held that the certain discrepancies in the statement of the parties with respect to the location of the property could be a mistake. But when the fact that the property was sold by the sellers and purchased by the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if unutilized, the same will be re-deposited. The period of withdrawal and deposit is not inordinate to raise any other assumption. In view thereof, we are unable to uphold the orders of lower authorities on this view. The addition made is deleted. Our case is similar to that of the above case. The AO had made additions merely based on assumptions and surmises and the jurisdictional Delhi ITAT rightly deleted it. We further rely on the decision of jurisdictional Delhi High Court in the case of a. CIT vs., Gangeshwari Metal Pvt. Ltd. [ (2014) 361 ITR 10 (Delhi) ] - wherein it was held that when the complete particulars are furnished to AO and the AO has not conducted enquiry in to the same or has no material in his possession to show that those particulars are false and cannot be acted upon, then no addition can be made under Section 68. We would also like to draw a parlance to the assessment completed based on information received by Investigation vis-a-vis assessment completed based on the CBI enquiry. In this regard, we would like to rely on the decision of jurisdictional Delhi ITAT in the case of DCIT Vs He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961 in the course of the search operation, the appellant claimed that he had sold the agricultural land comprising of 50 acres for an amount of ₹ 6,00,00,000/- whereas the alleged buyer/purchaser Mr. Rahul Ahuja as well as the alleged broker Mr. Sanjeev Kumar Sharma claimed that the alleged deal was for 30 acres of land and fixed for an amount of ₹ 4,00,00,000/-. The alleged Memorandum of Understanding was executed on 12.4.2010 and the amount of ₹ 2,00,00,000/- was received on 21.4.2010 i.e. one day prior to the search, whereas the appellant in his statement categorically stated that no provisional agreement was signed. The alleged broker Mr. Sanjeev Kumar Sharma denied to have met the appellant in Hotel Oberoi, whereas the appellant claimed that he received an amount of ₹ 2,00,00,000/- from Mr. Sharma at Hotel Oberoi. It is also an important fact to bring on record that admittedly, the alleged deal for the sale of land was initiated in February, 2010 and the land was not transferred till the date the alleged buyer/purchaser claimed to have filed a suit for recovery of the advance amount. It was only when the Assessing Officer asked for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l made the payment by cheque due to the fact that the nature of land transacted was an agricultural land which was not taxable. Reference is drawn here to the question nos. 10, 11 and 12 and replies given by Sh. Rahul Ahuja the buyer/purchaser recorded by the Assessing Officer on 12.3.2013 which is extracted below : Q.No.10 Why did you make payment by way of cash. Ans. I was informed that the agriculture land is bought from farmers, who prefer to take cash, and not by cheque, because they want payment in hard cash, because they want full payment before transfer of the deal. Q.No.11 But Sh. Jatinder Pal Singh was a non-farmer maintaining bank accounts then why did you pay him cash. Ans. He was ready to accept cash, I gave him choice of cash/cheque. Q.No.12 Please explain your sources of cash in hand as on 12.4.2010 ₹ 21 lakhs and on 21.4.2010 ₹ 1.80 crores. Ans. On 29.1.2010 I made cash withdrawal of ₹ 1.75 crores from my bank a/c no. 049010200029078 in Axis Bank, GK-1, Delhi. There was another withdrawal of ₹ 20 lakhs on 2.2.2010 from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt, after the seizure of ₹ 2,00,00,000/- from the appellant. In the course of the appeal proceedings, it was only when the appellant was asked to produce the ownership document, these facts saw the light that the grandfather of the appellant Sh. Sawan Singh was not the absolute and sole owner of the survey numbers mentioned in the sale document but was a co-purchaser to the extent of 30/130 share in revised survey numbers, and the extent of the land holding was approximately 4 acres of land. Therefore, the contents of the will/testament is also doubtful as one of the witness to the will was the father of the appellant Dr. S. S. Giani Singh. 7.1.4. In the course of the appeal proceedings, the AR of the appellant was asked to file the ownership document of the agricultural land. In response to the same, the AR of the appellant filed the following documents a) Will/testament executed by Sh. Sawan Singh S/o Late Sh. Arjan Singh in favour of Sh. Jatinder Pal Singh S/o Dr. S.S. Giani, IFS dated 5.2.1997. b) Bai namah document for an amount of ₹ 35,000/- and stamp duty of ₹ 4,375/- and two other sale deeds. c) Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith stamp duty of ₹ 4,375/- , the survey numbers of the extent of the land which was a subject matter of sale was owned by four different groups of persons is as under :- 36(18-18-0), 37(20-1-38], 38(28-2-0], 39(24-4-0], 40(33-1-0], 44(22-0-0], 45(20-0-0], 46(3-15-0] 108 MIN (17-0-0), 109(9-14-0), 110(44-17-0), 111(15-2- 0), 119(83-3-0), 120 (15-0-0), 41(7-15-0), 42(24-0- 0), 43(17-17-0). 7.1.7. The above said land admeasuring 252 bigha and 7 biswa was owned by the following persons with the respective share holding given as under : 1. Harish Chand S/o Hari Singh Shamsheer Singh, Iqbal Singh, Bimal Singh, Yudhvir Singh S/o Hari Chand. 2/28 share 2. Dheer Singh S/o Hari Singh Bhanu Pratap Singh, Shashi Pratap Singh, Arun Pratap Singh S/o Dheer Singh 2/28 share 3. Nekiram s/o. Gheesa Ram 2/28 share 4. Bhanu Pratap Singh, Gajadhar Singh 2/28 shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/130 share 7.1.9. The said land admeasuring 59 bighas 12 biswa was sold on 15.6.1983. From the above details culled out from the document, it is evident that Sh. Sawan Singh S/o Late Sh. Arjan Singh grandfather of the appellant was a co-purchaser to the extent of 30/130 share out of 59 bighas 12 biswa that was sold by the above mentioned parties. In Haryana land is measured in the units of bighas and biswas. Accordingly, applying the karam which is 57.157 standard, 4 bighas and 16 biswas approximately measures 4033.24 sq. yards, and 806.72 sq. yards, which is 4839.885 sq. yards (that is a hair s breadth from 4840). Therefore, applying the same calculation 59 bighas and 12 biswas admeasured 12.416 acres of land. The calculation of 12.416 acres converted from 59 bighas and 12 biswas is worked out as under : Bigha Biswas 20 Biswani 20 400 2.52 sq. yds 50.42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to explain with documentary evidence wherein the facts are entirely different and not in agreement with the submissions put forth by the appellant. Therefore, the veracity of the contents of the will/testament is also in doubt. 7.1.12. On perusal of the contents of the Memorandum of Understanding dated 12.4.2010, I thought it is necessary and appropriate to threw some on the alleged document called Memorandum of Understanding entered between the appellant and the alleged purchaser Sh. Rahul Ahuja to whom the appellant sold the agricultural lands inherited from his grandfather mentioned in the above paragraphs. 7.1.13. A Memorandum of Understanding (MOU) is a legal document describing a bilateral agreement between the parties. It expresses a convergence of will between the parties indicating an intended common line of action, rather than a legal commitment. It is a more formal alternative to a gentleman s agreement, but generally lack the binding power of a contract. It is used to gauge the intention of the transacting parties before a deal is officially signed between them and does not grant either of them any rights. An MOU is non-binding and has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant s premises. Therefore, the appellant was unable to explain the source of cash giving the identity of the person from whom it was received, nor was able to establish the genuineness of the so called sale transaction. Therefore, the MOU is a sham document to camouflage the cash receipt as a genuine one. 7.1.15. In the rebuttal to the report of the Assessing Officer, the AR of the appellant also relied on various judicial pronouncements in support of his contentions. At this juncture, I find it appropriate to rely on few judgments of Supreme Court and High Court applicable to the facts of the appellant s case. 7.1.16. The Hon ble High Court of Delhi in the case of CIT Vs. NR Portfolio (P) Ltd. reported in (2013) 96 DTR (Del) held as under: The Assessing Officer is both an investigator and an adjudicator. When a fact is alleged and stated before the Assessing Officer by an assessee, he must and should examine and verify, when in doubt or when the assertion is debatable. Normally a factual assertion made should be accepted by the Assessing Officer unless for justification and reasons the Assessing Officer feels that he needs/requires a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: The contention that the Revenue must have evidence to show circulation of money from the assessee to the third party is fallacious and has been repeatedly rejected, even when Section 68 of the Act was not in the statute. In A. Govindarajulu Mudaliar v. CIT [1958] 34 ITR 807, Supreme Court observed that it was not the duty of the Revenue to adduce evidence to show for what source, income was derived and why it should be treated as concealed income. The assessee must prove satisfactorily the source and nature of cash received during the accounting year. Similarly observations were made in CIT vs., KSM. Ganapathi Mudaliar [1964] 53 ITR 623 [SC), inter alia holding that it was not necessary for the Revenue to locate the exact source. This principle was reiterated in CIT VS. Devi Prasad Vishwanath Prasad [1969] 72 ITR 194 [SC), wherein the contention that the Assessing Officer should indicate the source of income before it was taxable, was described as an incorrect legal position. Thus when there is an unexplained cash credit, it is open to the Assessing Officer to hold that it was income of the assessee and no further burden leis on him to show the source. In Yadu H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Dowell Co. Ltd. vs. Commercial Tax Officer (1985) 154 ITR 148 (SC) held as under: Tax planning may be legitimate provided it is within the framework of law. Colorable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. 7.1.20. The Hon ble Supreme Court of India in the case of CIT VS Raman Co. (1968)67 ITR 11 (SC) held as under : Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A taxpayer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon consideration of morality, but on the operation of the I T Act. Legislative in taxing statutes may not, except on peril of penalty, be violated, but it may lawfully be circumvented. 7.1.21. The Hon ble High Court of Gujarat in the case of CIT VS Sakarlal Balabhai (1968) 69 ITR 186 (Guj.) held as under: Tax avo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and writ. In view of the aforesaid discussion the addition of ₹ 2,00,00,000/- made by the Assessing Officer is upheld and confirmed. 5. Learned Counsel for the Assessee reiterated the submissions made before the authorities below and submitted that assessee received ₹ 2 crores from Shri Rahul Ahuja as advance against the sale of agricultural land which was also stated before DDIT (Inv.). Shri Rahul Ahuja has confirmed giving the amount to the assessee in his statement recorded on oath. The statement of Shri Sanjeev Kumar Sharma was also recorded under section 131 in which he has admitted that he got Shri Rahul Ahuja connected with the assessee in connection with sale of agricultural land for ₹ 4 crores, out of which, ₹ 2 crores was given in cash. Thus, the transaction is confirmed by the assessee. The assessee also confirmed the ownership of the land in question by filing the Girdwari details etc., Copy of the MOU was produced before A.O. The assessee filed details of agricultural income. The parties have also confirmed the transaction under section 133 (6) of the I.T. Act and source of giving cash to the assessee was also explained. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents for inspection of the Court. Since no original MOU or cash receipts were produced before the authorities below, therefore, photo copies are not admissible in evidence. There are contradictions in the statement of assessee, Shri Sanjeev Kumar Sharma and Shri Rahul Ahuja in respect of month of first meeting, place of meeting, area of land to be purchased/sold and purchase/sale consideration. Therefore, none of the statements are reliable. In this matter, the CBI received a source information, on the basis of which, inquiry was conducted during which, mobile phones were intercepted. The team was deployed at the residence of the assessee who was coming to deliver the bribe amount of ₹ 2 crores. The CBI apprehended Dr. Kamaljeet Singh while coming out of the residence of the assessee on 22.04.2010 at about 12:50 hours. On his disclosure, ₹ 2 crore was recovered from the office located at the ground floor of the residential premises of the assessee at Vasant Vihar, New Delhi. All these facts are mentioned in the bail order of the assessee. The assessee has not explained as to how Dr. Kamaljeet Singh was apprehended coming out of his residence and an amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties below. The assessee has stated in his statement that no agreement was signed. However, Shri Rahul Ahuja submitted copy of MOU Dated 12.04.2010. Therefore, the statement of Shri Rahul Ahuja was not reliable. It would not prove any genuine transaction entered into between the assessee and Shri Rahul Ahuja. The assessee never produced original of the MOU or receipt before the authorities below. The photo copies of the MOU produced was not having back side to show stamping done by the Stamp Vendor as to when the said papers were purchased for preparing the MOU. It is also a fact that no copy of MOU or receipt of amount were found from the possession of the assessee during the course of search by the CBI or Income Tax Department. Though the assessee claimed to have agreed to sale 50 Acres of land for a consideration of ₹ 6 crores, but, the MOU allegedly signed by Shri Rahul Ahuja and assessee clearly mentioned the land under sale to be 30 Acres and was sold for a consideration of ₹ 4 crores only. The Ld. CIT(A) on examination of the documents on record has given a specific finding that share of the assessee comes to 30/130 share i.e., approximately 4 Acres of land. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see denied the ownership of the same, the burden would be upon the assessee to prove as to who was the owner of the cash found from his residence and possession. However, the assessee failed to discharge onus upon him to prove as to who is the lawful owner of the cash found during the course of search. Therefore, it is the liability of the assessee to explain the possession of the cash found during the course of search by CBI. It may also be noted here that during the course of arguments, Learned Counsel for the Assessee did not made any allegation against CBI who have recovered ₹ 2 crores from the residence of the assessee during the course of search. The CBI is a premier investigating agency and had been intercepting calls of assessee, Shri Kamaljeet Singh and others and only after getting sufficient evidence against the assessee and others, searched the premises of the assessee and found unaccounted cash of ₹ 2 crores from the possession of the assessee. Therefore, there is no reason to disbelieve the case set-up by the CBI and the Income Tax Department against the assessee. The Assessing Officer has reproduced certain material based on charge sheet filed by the CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. CIT(A) on this issue while giving his findings recorded that assessee either in the course of assessment proceedings or in the course of appellate proceedings did not specify the source of the balance amount of ₹ 5 lakhs with satisfactory corroborative evidence. He has also recorded in the absence of such evidence, the source of cash found in possession of assessee at the time of search remain unexplained. In view of this, the cash of ₹ 5 lakhs shown as cash in hand were taxed in the hands of assessee. The Ld. CIT(A) further noted that addition of ₹ 15,74,000/- made by the A.O. has been segregated and adjudicated upon by confirming the addition in the hands of two companies mentioned in the impugned order. Therefore, addition of ₹ 5 lakhs was confirmed. The Ld. CIT(A), therefore, did not interfere with the Order of the A.O. 10. During the course of arguments, the Learned Counsel for the Assessee did not argue these grounds. In the absence of any statement or documents on record in relation to these issues, no interference is called for in the matter. Ground Nos. 3 and 4 of the appeal of assessee are also dismissed. 11. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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