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2019 (11) TMI 274

..... uced certain material based on charge sheet filed by the CBI against the assessee and others, in which the CBI has clearly mentioned that there was a criminal conspiracy between assessee, Dr. Sukhvinder Singh and others to get a favour from Shri Ketan Desai for approval of MBBS Course. There was specific information received by CBI and conversation of all the persons have been recorded by the CBI. Nothing have been explained in this regard with regard to allegations made against the assessee and others in the charge-sheet submitted by the CBI and reproduced by the Assessing Officer in the assessment order. Considering the totality of the facts and circumstances of the case and that there was substantial gap between withdrawal of cash by Shri Rahul Ahuja and alleged payment to the assessee. Therefore, assessee has failed to explain source of 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 pr .....

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..... Lakhs is his personal account. The assessee has received ₹ 2 Crores as advance with regard to his agricultural land at Faridabad which he intend to sell the land is small plots. He has further stated that One Mr. Sharma has given him ₹ 2 Crores as advance for the said property. He came with two people whose names he will provide later on. The assessee also stated that he has met Mr. Sharma four times in Oberai Hotel and assessee do not know his exact address who is well known in Faridabad. Mr. Sharma approached the assessee for purchase of the land. The assessee has been promised final settlement within next 2-3 days. No provisional agreement was signed. However, assessee had issued a receipt for the same, for which, 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 recei .....

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..... of Sri Rahul Ahuja from 01.01.2010 to 30.4.2010 was filed. The original MOU and receipts were not produced for verification The full name of Mr. Sharma i.e. Mr Sanjeev Kumar Sharma and his address was filed and it was explained that he signed as witness on the MOU. The balance sheet and Audit report of Shri Rahul Ahuja for the F.Y. 2009-2010 were also furnished. It was also stated that cash in hand of ₹ 2,17,36,182/- was available on 31.03.2010 and the same was used for making the payments to assessee. It was also stated by Counsel for Rahul Ahuja verbally that 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 f .....

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..... cash on 12.04.2010 and ₹ 1.80 crores was paid in cash on 21.04.2010. He has also submitted copy of the Agreement Dated 12.04.2010. He has stated that assessee has asked for payment in cash. As regards the source of the cash payment, he has stated that on 29.01.2010 he made cash withdrawal of ₹ 1.75 crores from his Bank Account maintained with Axis Bank, Greater Kailash-1, Delhi and another withdrawal of ₹ 20 lakhs was made on 02.02.2010 from the same account. He has also disputed the statement of assessee that land deal was for 50 Acres 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 state .....

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..... the land Shn Rahul Ahuja. at the time of his statement recorded on 22.4.2010, which was only a day earlier on which advance of ₹ 1.80 crores was alleged to have been received. 5. The assessee stated in Q.No.9 that he met Mr. Sharma four times in Oberai Hotel Whereas Mr. Sanjeev Sharma has denied to have met the assessee at any hotel or restaurant etc., he even denied to have met him at Oberai Hotel. Therefore, this version of the assessee is also not correct. 6. 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 .....

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..... 4.2010 at 19.11 hrs Dr Ketan Desai inquires from Shri Jatinder Pal Singh whether he got or not, to which Shri Jatinder Pal Singh replied that it would reach by tomorrow and he (Dr Ketan Desai) would get it in the morning. 7. On 21.4.2010 at 13.34 hrs. Dr Sukhvinder Singh confirmed the transaction to take place on 22.4.2010. 8. On 22.4.2010 at 12.30 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 o .....

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..... he assessee. The assessee owns Mercedes Car, Range Rower Car and possesses Vertu mobiles and owns several costly watches above ₹ 1 lakh and possesses Solitaire diamonds. Looking to his social status his monthly expenses cannot be estimated below ₹ 2 lakhs per month i.e.,₹ 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 orde .....

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..... sessment order, finding given by the Assessing Officer, written submissions of the appellant, details filed in the paper book and also the case laws relied upon by the appellant in support of his contentions and considered them judiciously on merits. The Assessing 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 sum .....

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..... 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 comparison of all the four statements following discrepancies appear: i. The assessee had stated that area of the land agreed to been sold was 50 acres and agreed price was ₹ 6 crores. Whereas, Sh. Anil Kumar Trehanhas stated that S .....

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..... 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 discussion it is clear that the story of receiving advance in cash is an afterthought and just to camouflage the unexplained/unaccounted cash found at the residence of the assessee. Filing of suit is also a colorful device to make the afterthought realistic. Further, the above facts and discussion proves beyond doubt that the transactions claimed to have been .....

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..... vidences 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 already pointed out in the Assessment Order. Additionally, Mr. Anil Kumar Trehan was summoned to enquire about the sale of land. The AO further listed out a number of discrepancies when comparing the statements of all the four persons [ including Mr. Anil Kumar Trehan ] and came to a preconceived conclusion that the assessee is trying to camouflage the unexplained/unaccounted cash found at the assessee's residence. Our Rebuttals: Now, the assessee would like to rebut each and every discrepancies pointed out by the AO in .....

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..... th 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 the submissions of the assessee bv bringing some positive evidences on record. However, in this instant case, the AO is only making baseless allegations based on surmises and conjectures. Discrepancy # 3 : Assessee stated that he did not possess the receipt whereas Mr. Anil Trehan is stating that the receipt was signed by Mr.RahuI Ahuja and assessee and was witnessed by him and Mr. Sanjeev Kumar It is humbly submitted that there is no discrepancy here between the statement made by the assessee and Mr. Anil Trehan. The assessee never stated that the there is no receipt was signed by him or the purchaser but only stated that he did not possess the receipt. In fact, it goes on to prove that there is a receipt between the parties but the asses .....

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..... ssessee 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 assessee to substantially prove the source of the assessee and when the assessee completed his duty to prove the genuineness of the transaction and the source of the transaction; it is for the AO to prove it otherwise conclusively and NOT by surmises. Here, we would like state that the small discrepancies in the statement of the parties, like the meeting place and the number of meetings, cannot and should not have any bearing in the case, since the possibilities of the parties remembering the place of meeting and number of meetings are very less and in any case, they are irrelevant to the issue at hand. Discrepancy # 6 : Mr. Anil Trehan has stated that he had met the assessee along with the partner, Mr. Sanjeev Sharma, whereas the assessee has never stated that he had met Mr. Anil Trehan. We would like to state that there is no discrepancy here. It must be noted here t .....

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..... 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 purchasers is proved, an addition cannot be made. The relevant extracts is s follows: "Statement of both the persons i.e. Shri Laxminarain and Shri Chittarmal were recorded and they have categorically admitted that they have purchased the property from Shri Rattan Lai. There are certain discrepancies i.e. one person says that the property situated at village Surajnagar and other says that property situated at village Suryanagar. It may be mistake in pronouncement but the fact is that property was sold by Shri Ratan Lai Meena and same was purchased by the purchasers. Therefore, source of fund of ₹ 12,91,000/- has been duly explained and which should have been accepted" In our case, the discrepancy pointed out by the AO are not even as substantial as the one pointed in the above case. Hence, addition made by the AO deserved to be deleted. ii. Shri. Saidan Kapoor Vs JCIT (ITA No. 1115/DeI/2011) wherein it was held that addition on account of unexplained cash deposits cannot be made on assumptions and surmises. In this case, the addition was .....

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..... DCIT Vs Heminder Kumari (ITA.No.4210 to 4213/Del/ 2013, AY 2002-03 to 2005-06) wherein it was held that the information received by the Investigation wing, at best, be regarded as a prima facie material, but could not be construed as conclusive for use against the assessee to fasten tax liability, because the same has to be corroborated with credible and independent evidence. Similarly, the AO cannot conclude assessment based on the CBI enquiry but has to substantiate itself with credible and independent evidence which the AO had failed to do so in this instant case. For the foregoing reasons, we request your goodself to kindly delete the disallowance made by the AO as unaccounted cash/investment." 7.1.1. From the above discussion, what is evident is that, admittedly, two government agencies i.e. the Central Bureau of Investigation and the Income Tax Department conducted the search operation u/s 132 on the appellant on 22.4.2010 and the copy of the alleged Memorandum of Understanding dated 12.4.2010 was not found at the appellant s premises during the search operation. On a plain reading, Memorandum of Understanding depicts the intentions of the parties involved, and there sh .....

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..... very of alleged advance, Mr. Rahul Ahuja furnished the copy of the suit on 5.2.2013. It was pertinently mentioned by the Assessing Officer in his order, that the suit for recovery of the advance was filed only on 22.1.2013, which was almost after 3 years whereas as per clause 7.5 of the Memorandum of Understanding dated 22.4.2010, the deal was to be completed on or before 15.7.2010. In these circumstances, where there is an inconsistency in the versions given, variation of facts and difference in the statements of all the related parties, there are serious doubts on the alleged transaction of the sale of land. In the normal circumstances for a normal person it is beyond comprehension to believe that the appellant would enter into a deal of huge transaction like the sale of land, just one day before the search operation and also received a substantial amount of ₹ 2,00,00,000/- without a formal agreement but did not know the name of the alleged buyer/purchaser and the place of receipt of the money. The facts like the size of the land, the price fixed by the appellant, his alleged buyer/purchaser and broker are not in agreement with each other. It is also unbelievable that the a .....

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..... and reason, I find that the conduct of the appellant is against the normal probability and human behavior. It is a settled law that the conduct of the appellant is a strong evidence to determine the status of a person. For this proposition I make a reference to the judgment passed by the Hon ble Supreme Court in the case of ITO VS Mangat Ram Narota Ram Narwana and another 2011 336 ITR 624 (SC). 7.1.3. Subsequently during the remand proceedings, when the ITI was deputed to enquire about the status of the suit, it was informed by him that Sh. Rahul Ahuja filed a suit for recovery of ₹ 2,00,00,000/- from the appellant in the Court of Civil Judge, Faridabad on 23.1.2013 and the date of hearing was 10.11.2014. The appellant did not inform the status of the pending suit whether it was admitted or not. No details pertaining to the said suit was given by the appellant from the date of filing the suit till the date of hearing on 10.11.2014, which is almost a time period of one year nine months. It is also a point to bring on record, that the appellant claimed to have sold the land in April 2010, when the real estate market was on slump, and it has not picked up even today. It is a rar .....

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..... h, the appellant the following property mentioned at A has been bequeathed. An extract of the same is reproduced below: Agricultural land : Total share area 60/130 Bhag of Khasra Nos. 36(18-18-0), 37(20-23-0), 38(28-2- 0), 39(24-4-0), 40(33-1-0), 44(23-0-0), 45(20-0-0), 46(3-15-0), .. 08 MIN (17-0-0+,109(9-14-0), 110(44- 17-0), 111(16-2-0), 119(83-3-0), 120(15-0-0), 41(7- 15-0), 42(24-0-0 + and 43(17-17-0) in village Magrauli Khadar, Pargana, Dadri, Tehsil Sikanderabad, Distt. Bulandshahr, U.P. The said land was purchased by me on 15.6.83, 17.6.83 and 20.6.83 vide Sale Deed Registration Nos. 3938, 4058 and 4/06 in the Revenue record of Sub-Registrar, Ballabhgarh [Haryana]. 7.1.6. In India, there is a well defined and developed system of succession laws that governs a person s property after his death. The 'India Succession Act, 1925 applies to wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but did not to mohammedans as they are largely covered by Muslim Personal Law. A will or a testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for transfer of his/her property at t .....

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..... bhagdar is 59 bigha 12 biswa in the ownership and possession of the above mentioned persons. Therefore initially the lands which were situated in District Bulandshahr Uttar Pradesh, were shifted to District Faridabad, Haryana due to the change of the course of the river Yamuna. In the said sale deed it was mentioned that there are many share holders and that the owners were not in a position to cultivate the land and in the interest of everybody mentioned above the land admeasuring 59 bighas 12 biswa pakka with all the rights in the land were sold in lieu of an amount of ₹ 35,000/- and ½ of this is ₹ 17,500/- to the following persons : 1. Jaswant Singh Bhullar S/o Sardar Pratap Singh, H. No. 5-1, Vasant Vihar, New Delhi. 60/130 share 2. Sardar Sawan Singh S/o Arjan Singh, R/o 3105, Ranjeet Nagar, New Delhi. 30/130 share 3. Prem S/o Sardar Attar Singh R/o. External Affairs Ministry, New Delhi. 10/130 share 4. Dr. Inderjeet Singh S/o Sardar Sant Singh R/o 59, Market Spare, New Delhi. 5/130 share 5. Smt. Gurmag Kaur W/o Muktar Singh R/o 7/22/2 Safdarjung Enclave, New Delhi. 10/130 share 6. Smt. Krishna/Sh. Pratap Singh, R/o. Vijay Kharad. 10/130 share 7. Smt. Agar .....

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..... found to be incorrect. 7.1.11. The above calculations were only worked out to establish that the grandfather of the appellant bequeathed only his share to the extent of the land owned by him mentioned in the sale document which is less than 30 acres and approximately 4 acres (3.723). It is also pertinently mentioned that the total share of Sh. Sawan Singh in the will was mentioned as 60/130 whereas the actual share is only 30/130. From this it is evident that the appellant attempted to build-up a story around these agricultural lands to show that these lands were inherited by him and that he received an amount of ₹ 2,00,00,000/- against the sale of this land which he tried 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 t .....

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..... he MOU dated 12.4.2010, it is not understood as to how this MOU which is nonbinding, unregistered was enforceable in the Court of Faridabad where the purchaser/buyer of the alleged land filed a suit for recovery of alleged advance of ₹ 2,00,00,000/- on distorted facts, as found in the documents submitted by appellant, defects, gaps, deficiencies in these so called evidentiary pieces. It is evident that the event of alleged sale transaction is only an afterthought, and not a genuine transaction binding the appellant and the purchaser for any legal recourse subsequently created to cover up the cash found and seized from the appellant 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 .....

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..... dverse findings against the assessee when recorded are adequately and duly supported by material and evidence and can withstand the challenge in appellate proceedings. Principle of preponderance of probabilities applies. What is stated and the said standard, equally apply to the Tribunal and indeed this Court. The reasoning and the grounds given in any decision or pronouncement while dealing with the contentions and issues should reflect application of mind on the relevant aspects." Further, in paragraph 23, the Lordship in the case of N R Portfolio (P) Ltd., supra had held as under: "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 .....

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..... ented from doing so. The Supreme Court further held that all that section 110 of the Evidence Act, 1972 did say was to embody a salutary principle of common law jurisprudence, viz., where a person was found possession of anything, the onus of proving that he was not its owner was on that person. This principle could be attracted to a set of circumstances that satisfy the conditions and was applicable to taxation proceedings." 7.1.19. The Hon ble Supreme Court of India in the case of Me 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 ma .....

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..... d transactions and established that the alleged transaction is an afterthought and a make to believe story. The decisions referred and relied upon by the AR of the appellant are not applicable to the facts of this case. The facts of the present case as noticed above speak for themselves and are obvious. What is unmistakably visible and apparent, cannot be spurred by formal but unreliable pale evidences ignoring the patent and what is plain 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 c .....

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..... one calls and all the conversation was intercepted by the CBI. The recovery of the amount was made from the assessee. the original of the MOU was never produced before the authorities below. The original of cash receipt was also not produced. As per provisions of Sections 63 and 64 of Indian Evidence Act, photo copy being secondary evidence could be proved by primary evidence i.e., by production of the original 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 resid .....

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..... Shri Sanjeev Kumar Sharma and Shri Rahul Ahuja has made certain observations against the assessee in the assessment order which have been reproduced above. There is a discrepancy with regard to land agreed to be sold was whether for 50 Acres or 30 Acres. The consideration also differ whether it was for 6 Acre or 4 Acre. Nothing have been explained by the assessee to the satisfaction of the authorities 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 .....

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..... search by CBI did not explain the details of persons who has given the amount in question to the assessee. No mode of payment was also explained. It, therefore, appears that entire story have been cooked-up by the assessee later on and is clearly an afterthought. According to Section 110 of Evidence Act when assessee was found in possession of ₹ 2 crores at the time of search by CBI and assessee 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 afte .....

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..... ound during the course of search by the CBI at his residence. Thus, appeal of assessee has no merit and the same is accordingly on this ground. Ground Nos. 1 and 2 of appeal of Assessee are accordingly dismissed. 8. On Ground Nos.3 and 4, assessee challenged the Order of Ld. CIT(A) in confirming the addition of ₹ 15,74,000/- and ₹ 5 lakhs. 9. The 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 wi .....

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