RAJINDER KUMAR HAK vs.INCOME TAX OFFICER

RAJINDER KUMAR HAK vs.INCOME TAX OFFICER

AMRITSAR TRIBUNAL

A.D. JAIN, JM.

ITA No. 507(Asr)/2014

Feb 26, 2016

(2016) 46 cch 0174 AsrTrib

Legislation Referred to

Section 50C

Case pertains to

Asst. Year 2005-06

Decision in favour of:

Assessee

Addition—Addition on account of unexplained investment—Assessment was made u/s 143(3) on basis of information received from ADIT Jammu that assessee had purchased certain flat from ’C’ for Rs 17.50 lacs—As per statement seized during course of search operation of ’C’, Assessee had made payments of Rs 8.50 lakhs by cheque and Rs 9 lakhs in cash—AO asked assessee to explain source of investments of Rs 17.50 lakhs made in cash and by cheque—Assessee however, could not explain source of Rs 50,000 paid to society and Rs 1,00,000 deposited in bank as margin money—AO assessed investment at Rs 18.50 lacs by making addition of Rs 10.50 lakhs as unexplained investment—CIT(A) confirmed addition made by AO—Held,assessment order did not find any mention that said information regarding other allottees was ever put to assessee—Details of said receipts of other allottees were also missing in short assessment order—No nexus between case of assessee and those of alleged other allottees was established by AO—CIT(A) admitted that papers/list of alleged allottees had not been recovered from assessee in search operations—It had been stated by CIT(A) that veracity of paper could not be questioned—Firstly, as noted, impugned paper was not computer generated document, but, undisputedly had merely been typed on computer, rendering it as of no evidentiary value against assessee so far as regards alleged understatement of purchase price—Then, as also earlier observed, said paper was ridden with numerous discrepancies which CIT(A) had not even attempted to meet—That said paper was not in hand-writing of assessee and it did not belong to assessee—Impugned paper did not contain date on which alleged cash payment had been made by assessee—CIT(A) merely observed that date of agreement and due date of payment mentioned in seized document fell in year under consideration and therefore, there was no reason to consider plea of assessee that payment could have been made in subsequent year—Observation of CIT(A) was wholly against facts as discussed, which had not been rebutted by CIT(A)—There was no rebuttal to assessee’s contention that only token amounts of Rs.20,000 and Rs.30,000 were paid which fell in F.Y. 2004-05—Payment of Rs.8,00,000 was made vide demand draft issued by UCO Bank which fell in F.Y. 2005-06—Receipts issued by Society qua three payments were placed on record by assessee—However, payment of Rs. 8,00,000 had still been taken by CIT(A) to have been made in F.Y. 2004-05, quite against record and without any basis—It is required to mention here that this amount of Rs. 8,00,000 was paid at time of registration of sale deed with Registering Authority—Sale deed executed on 18.05.2005 specified in no uncertain terms, the purchase consideration to be at Rs.8,50,000—Sale deed was admittedly registered one—As against this document, there was nothing on record, other than assumptions and presumptions of AO and CIT(A), which was also contradictory inter-se—There was no material on record to suggest any understatement of purchase price of flat by Assessee—Purchase value stood accepted as such by Registering Authority too, besides, provisions of s 50C also did not stand invoked—Impugned Order was passed on merely assumptions and presumptions, without any corroborative evidence to support observations made by CIT(A)—Addition made by AO was thus deleted—Assessee’s Appeal allowed

Held

CIT(A) admitted that the papers/list of alleged allottees had not been recovered from the assessee in the search operations. However, in the same breath, it has been stated by the ld. CIT(A) that the veracity of the paper could not be questioned. Firstly, as noted, this paper was not a computer generated document, but, undisputedly had merely been typed on a computer, rendering it as of no evidentiary value against the assessee so far as regards the alleged understatement of purchase price. Then, as also earlier observed, the said paper is ridden with numerous discrepancies which the ld. CIT(A) has not even attempted to meet. It goes without saying that the said paper was not in the hand-writing of the assessee and it did not belong to the assessee. It did not contain the date on which the alleged cash payment had been made by the assessee.

(Para 13)

CIT(A) merely observed that the date of agreement and due date of payment mentioned in the seized document fell in the year under consideration and therefore, there was no reason to consider the plea of the assessee that the payment could have been made in the subsequent year. This observation of the ld. CIT(A) is wholly against the facts as discussed, which facts have not been rebutted by the ld. CIT(A).

(Para 15)

There is no rebuttal to the assessee’s contention that only token amounts of Rs.20,000/- and Rs.30,000/- were paid on 17.09.2004 & 21.12.2004 respectively, which fell in the F.Y. 2004-05. The payment of Rs.8,00,000/- was made vide demand draft issued by UCO Bank on 19.05.2005, which fell in the F.Y. 2005-06. The receipts issued by the Society qua the three payments were placed on record by the assessee. However, the payment of Rs. 8,00,000/- has still been taken by the ld. CIT(A) to have been made in F.Y. 2004-05, quite against the record and without any basis. It requires mention here that this amount of Rs. 8,00,000/- was paid at the time of registration of the sale deed with the Registering Authority.

(Para 16)

As against the above, the sale deed executed on 18.05.2005 specifies in no uncertain terms, the purchase consideration to be at Rs.8,50,000/-. This sale deed is admittedly a registered one. The contents thereof are duly sworn before the Magistrate. As against this document, there is nothing on record, other than the above discussed assumptions and presumptions of the AO and the ld. CIT(A), which also are contradictory inter-se. There is no material on record to suggest any understatement of the purchase price of the flat by the assessee. The purchase value stands accepted as such by the Registering Authority too. Besides, the provisions of section 50C of the Act also do not stand invoked.

(Para 17)

Thus, looked at from any angle, the order under appeal is unsustainable in law. It has been passed on merely assumptions and presumptions, without any corroborative evidence to support the observations made. The same, is accordingly, reversed. The addition of Rs.10,50,000/- is, accordingly, deleted.

(Para 18)

Conclusion

Where paper on basis of which addition was made, was not computer generated document but merely typed on computer, rendering it as of no evidentiary value against Assessee and addition was made on merely assumptions and presumptions, without any corroborative evidence, same were justified to be set aside.

In favour of

Assessee

Counsel appeared:

M.K. Kaul, CA for the Appellant.: K.V.K. Singh, DR for the Respondent

ORDER

1. This is the assessee’s appeal for the assessment year 2005-06 against the order, dated 27.05.2014, passed by the ld. CIT(A), Jammu. The assessee has raised the following concise grounds of appeal:

“1. That the order passed by the ld. CIT(A) is against facts and circumstances of the case and the law.

2. That the ld. CIT(A) has erred in following the stand of the AO that the purchase of residential flat in question has been made in the F.Y. 2004-05. The purchase actually relates to F.Y. 2005-06 corresponding to the AY 2006-07. Rs. 8 lacs out of total cost of Rs.8.50 lacs has been paid in F.Y. 2005-06 and the sale deed has also been executed in the F.Y. 2005-06. The evidence on record in this regard has been overlooked.

3. That the purchase consideration of the residential flat in question has been erroneously assumed as Rs.17.50 lacs against actual and documented purchase consideration of Rs.8.50 lacs. The assumed difference of Rs. 9 lacs has erroneously been treated as income from unexplained sources. The assumption is based on no information other than that contained in an unrelated and unsubstantiated loose sheet of statement said to have been seized from a third party.

4. That the stated seizure of loose sheet of paper, the contents of which do not draw any direct or indirect support from any documentary evidence or any other corroboratory evidence, has been erroneously made the sole basis of making the additions to the taxable income of the appellant. There is no reference to the books of account of the builder/society or any other evidence in support of the veracity credibility or reliability of the seized statement relied upon.

5. That the ld. CIT(A) has failed to appreciate that though the presumption u/s 132(4A) of the Act is available against the person from whose possession a seizure is made but this presumption cannot be extended to others and without anything else than the sole seized document any additions cannot be made. In the present case the sole so called ‘computerized’ slip seized from a third party cannot be a conclusive evidence to justify the additions, more so in the AY 2005-06. There is nothing else to suggest that the appellant has, in fact, paid the amount of Rs. 9 lacs in cash in addition to the payment of Rs.8.50 lacs as mentioned in the sale deed. The loose ‘computerized’ slip does not give any date of the alleged cash payment(s). There cannot be any presumption with regard to the date(s) of payment also.

6. That whereas explanation for the entire investment of Rs.8.50 lakhs was submitted before the AO as well as the CIT(A) only the loan component of Rs. 7 lakhs has been accepted and the balance of the admitted investment amounting to Rs.1.50 lakhs has also been treated as investment from undisclosed source u/s 69, and added to the assessed income for the AY 2005-06.

7. That the assessment made by the AO is based on contradictions and that the ld. CIT(A) has compounded the contradictions.

8. That it is prayed that the assessment order may be quashed in the alternative the additions amounting to Rs.10.50 lakhs made on account of unexplained investments u/s 69 of the Act, during the year F.Y. 2004-05, may be dropped or any other relief may be granted as may meet the ends of justice.”

3. The facts are that the completed scrutiny assessment of the assessee for the assessment year 2005-06 was reopened on the basis of information from the ADIT, Jammu, that the assessee had purchased flat No.6, Block-A, 2nd Floor from Dreamland Cooperative Housing Building Society, Jammu, for Rs.17,50,000/-, the payment for which made at Rs.8,00,000/- by cheques and Rs.9,50,000/- in cash. The AO asked the assessee to explain the source of the said investment. The assessee stated as follows:

“In its reply the assessee stated that the said property was purchased for Rs.8,50,000/- only for which there is proper sale deed duly registered with the Court of law. The investment has been made after raising a housing loan of Rs.7 lacs from UCO Bank and balance payment of Rs.1,50,000/- from the past savings. The assessee had produced the proof of loan amount of Rs. 7 lac paid to the Dreamland Housing Society and no proof of the source of the balance investment made in cash of Rs.10,50,000/- was produced.”

4. The AO accepted the assessee’s explanation only to the extent of Rs. 7 lacs and treated the amount of Rs.10,50,000/- as the assessee’s investment from unexplained sources. It was observed as under:

“The reply has been considered which is not convincing in view of the fact also that while scrutinizing the case of Sh. Rai Bharat, Smt. Kalpana Tikoo and some other persons who have purchased the flats from the said society in the same vicinity and of the same type, the receipts issued by the Dreamland Society to these allottees have been produced by these persons and were found equal to the amount charged by the society from these allottees for the purchase of the flats as at a lesser price. It is also a common practice among the public/purchasers to get the sale deed executed at much lesser price. All this establishes that out of the total payments of Rs.17,50,000/- the assessee has made cash investment of Rs.10,50,000/- on or before the due date of payment on 17.01.2005. i.e. during the year 2004-05 relevant to assessment year 2005-06 out of the sources not disclosed to the Departments against claim of cash payment of Rs.50,000/-. Therefore, the addition of Rs.10,50,000/- is made to the income returned u/s 69 of the I.T. Act, 1961 and penalty proceedings u/s 271(1)(c) have been initiated separately.”

5. The ld. CIT(A) confirmed the addition by holding as follows:

“Grounds of appeal no 2 to 6 relates to addition of Rs 10.5 lakhs on account of unexplained investment. The assessment was made u/s 143(3) on the basis of information received from ADIT Jammu that assessee has purchased a flat no. 6, Block-A, 2nd Floor, from Dreamland Cooperative Housing Building Society Jammu for Rs 17.50 lacs. As per the statement seized during the course of search operation of Dreamland cooperative Housing society, the appellant was to made payments of Rs 8.50 lakhs by cheque and Rs 9 lakhs in cash. The A.O asked the appellant to explain the source of investments of Rs 17.50 lakhs made in cash and by cheque. The appellant, however, stated that he has made an investment of Rs.8.50 lakhs, Rs 0.50 lakh was paid in cash and Rs 8,00,000/- through demand draft of which 7 lakhs given by bank as loan and balance Rs 1 lakh deposited by appellant as margin money. The appellant however, could not explain the source of Rs 50,000/- paid to society and Rs 1,00,000/- deposited in bank as margin money. The A.O, accordingly, rejected the explanations of the appellant and assessed the investment at Rs 18.50 lacs by making an addition of Rs 10.50 lakhs as unexplained investment. During the course of appellate proceedings, the appellant was provided the copy of paper found in the course of search in which the details of payments made by various person who have purchased flats in the dreamland housing building society at Trikuta Nagar is given. From the said document, it is found that 46 persons have invested in dreamland cooperative housing building society and booked flats of various sizes for which payments at variance were received from the investors. This statement clearly shows the block no, floor, date of acquisition, due date of payments, consideration amount, amount received in cheque and amount received in cash and balance if any. This fact was brought to the counsel of the appellant on 22.04.2014 for his response/comments. Vide letter dated 20.05.2014 the counsel questioned the veracity of the paper and disassociated itself having any correlation with the papers which purportedly was not signed but only a computerized generated sheet. Further he has also questioned that as per the date of investment in the computerized sheet, the investment of the appellant does not fall in the relevant assessment year. Further he added that the AO has never shown this paper to the appellant during the course of assessment proceedings.

I have considered the rival submissions and the contention of the appellant that the paper was never confronted has been addressed at the appellate stage and therefore the cause of grievances is settled. Regarding veracity of paper, I find that the document cannot be brushed aside because it has been drawn very meticulously with minutest details. The appellant is agreeing to have made payments appearing in the cheque payments received column of the said paper and which also tallies with the sale deed. Therefore, I find no reason to disregard the cash received or the receivable payments in the said paper. Even the Flat No mentioned on the said document belongs to the appellant. If half contents of the paper is correct then the another half cannot be questioned to be fabricated. It is to mention that in this search operation one Sh Rakesh Kumar who was handling ooperative housing building ltd has surrendered an amount of Rs.50 lacs in financially year 2006-07 & Rs 75 lacs in his personal hand for i-ssessment year 2007-08. Incidentally, it is also noticed that the appeal of one Mr Sunii bhatt whose name is also appearing in the said document is also pending before me and during the course of appellate proceedings, he has confirmed to have made both cash and cheque payments mentioned in the said document to the society as per the requirement of the society. He has produced receipts issued by the society in respect of both cash & cheque payments bearing receipt nos. 97,98,172,173,175,184,186,188,190,191, 212,216,218 & 219 totalling to Rs 17,25,000/- whereas sale deed is shows a consideration of Rs 11.70 lakhs only. It establishes that the consideration amount in sale deeds executed between the society and persons purchasing the flats were understated. It is a common knowledge that investments in real estate are always understated and the cash portion is not declared to the investment in income tax deptt. It is true that these papers have not been recovered from the appellant in the search operations, but the veracity of the same cannot be questioned. Further, concerning the year of investment of cash payments of Rs 8 lakhs, it is observed that the date of agreement and due date of payment mentioned in seized document falls under the year under consideration and therefore, there is no reason to consider the plea of the appellant that the payment could have been made in the subsequent year. Therefore, the arguments made by the appellant are not sustainable. Further, in respect of Rs 50,000/- paid in cash & Rs 1,00,000/- deposited in bank as margin money, the appellant could not explain the source of such payments even during appellate proceeding. The appellant has agreed that Rs 50,000/- cash was paid in the year under consideration and no evidence regarding the date of deposit of Rs 1,00,000/- was provided by the appellant. Therefore, the addition of Rs 10,50,000/- on account of unexplained source of investment is upheld.”

6. Challenging the impugned order, the ld. counsel for the assessee has made oral arguments and written submissions have been filed as well. It was submitted that the ld. CIT(A) has erred in following the stand of the AO that the purchase of residential flat in question had been made in the F.Y. 2004-05. The purchase actually relates to F.Y. 2005-06 corresponding to the AY 2006-07 and Rs. 8 lacs out of total cost of Rs.8.50 lacs has been paid in F.Y. 2005-06 and the sale deed has also been executed in the F.Y. 2005-06. He submitted that the evidence on record in this regard has been overlooked. It was further submitted that the purchase consideration of the residential flat in question has been erroneously assumed as Rs.17.50 lacs against actual purchase consideration of Rs.8.50 lacs. The assumed difference of Rs. 9 lacs has erroneously been treated as income from unexplained sources. The assumption is based on no information other than that contained in an unrelated and unsubstantiated loose sheet of statement said to have been seized from a third party.

6.1. The ld. counsel further stated that the seizure of loose sheet of paper, the contents of which do not draw any direct or indirect support from any documentary evidence, or any other corroboratory evidence, has been erroneously made the sole basis of making the additions to the taxable income of the assessee. There is no reference to the books of account of the builder/society or any other evidence in support of the veracity credibility or reliability of the seized statement relied upon. It was also submitted that the ld. CIT(A) has failed to appreciate that though the presumption u/s 132(4A) of the Act is available against the person from whose possession a seizure is made, but this presumption cannot be extended to others and without anything other than the sole seized document any additions cannot be made. In the present case the sole so called ‘computerized’ slip seized from a third party cannot be a conclusive evidence to justify the additions, more so in the AY 2005-06. There is nothing else to suggest that the assessee has, in fact, paid the amount of Rs. 9 lacs in cash in addition to the payment of Rs.8.50 lacs, as mentioned in the sale deed. The loose ‘computerized’ slip does not give any date of the alleged cash payments. The ld. counsel submitted that the explanation for the whole investment of Rs.8.50 lakhs was submitted before both the authorities below but only the loan component of Rs. 7 lakhs has been accepted and the balance of the admitted investment amounting to Rs.1.50 lakhs has also been treated as investment from undisclosed source u/s 69, and added to the assessed income for the AY 2005-06. In view of the above submissions, the ld. counsel prayed that the appeal of the assessee may be allowed.

7. On the other hand, the ld. DR has placed strong reliance on the impugned order. It has been submitted that the assessee, as correctly held by the ld. CIT(A) in the detailed order under appeal, has miserably failed to explain the source of amount of Rs.10.50 lacs invested in the purchase of the flat and that therefore, there being no merit therein, the appeal of the assessee is liable to be dismissed.

8. The rival submissions of both the parties have been heard in the light of the material placed on record. The addition of Rs.10.50 lacs was made since according to the Taxing Authorities, the assessee could not explain this alleged cash investment made by the assessee in the purchase of flat. As per the authorities below, the purchase price of the flat was Rs.17.50 lacs, whereas the assessee had shown it to be only of Rs.8.50 lacs and he had only been able to prove the loan of Rs.7 lacs taken from UCO Bank. The AO rejected the assessee’s explanation, observing that while scrutinizing the case of Sh. Rai Bharat, Smt. Kalpana Tikkoo and some other persons, who had purchased similar flats from the Society, the receipts issued by the Society to the said allottees had been produced by them before the AO, and the AO found all the amounts equivalent to the amount charged by the Society for the purchase of the flats as well as the information in the possession of the department with regard to the assessee, even though the sale deed in the case of the assessee had been registered at a lesser price. The assessment order does not find any mention that the said information regarding other allottees was ever put to the assessee. The details of the said receipts of the other allottees are also missing in the short assessment order. No nexus between the case of the assessee and those of the alleged other allottees was established by the AO. The addition was made merely on assumption and presumption and on material collected at the back of the assessee and never confronted to him. It is pertinent that the ld. CIT(A)’s order does not refer to the cases of Sh. Rai Bharat, Smt. Kalpana Tikkoo, the other allottees referred to in the assessment order. Moreover, the contention of the assessee that the transaction spanned two financial years, i.e., F.Ys. 2004-05 and 2005-06 and that so, specification of the point of time when the additional amount was believed to have been passed was necessary, so as to deal with the same in the year under consideration, was not considered. According to the AO, the due date of payment was 17.01.2005. On the other hand, as per the assessee, he had made the last payment amounting to Rs.8 lacs on 19.05.2005, in the F.Y. 2005-06. The assessee’s contention of payment of Rs.50,000/- from his own source and past savings was also not accepted, without any observation to the effect that the assessee was not in a position to have saved this amount of Rs.50,000/-, so as to be able to invest it towards part payment of the purchase price of the flat. Similar is the position with regard to the amount of Rs.1 lac. stated to have been paid by the assessee on 19.05.2005. This amount, according to the assessee, had been deposited with the lending bank, UCO, Bank, from which the assessee had taken a loan of Rs. 7 lacs, as margin money for the said housing loan. The assessee’s assertion that he was a salaried person, having no dependants, was not considered by the AO.

9. So far as regards the ld. CIT(A)’s order, he observed that the paper found in the search contained the details of payment made by various persons to the Society for purchase of flats in the Society. He observed that this document could not be brushed aside, since it had been drawn very meticulously with the minutest details. He observed that the assessee had admittedly made payments appearing in the ‘cheque payments received’ column of the said paper, which payments also tallied with the assessee’s sale deed; and that even the flat number mentioned on the said paper belonged to the assessee.

10. However, the ld. CIT(A) has failed to consider that firstly, the paper in question was not found from the premises of the assessee. It was found in the search conducted on the Housing Society. Moreover, it was not a computer generated document, but it had been typed on computer. It was merely because the name of the assessee also appeared in this alleged list of allottees, that the contents thereof were taken to go against the assessee. This list/paper did not happen to form the basis of the passing of the assessment order and no such list/paper stands referred to in the assessment order. Further, as per the seized paper, the date of allotment was 17.09.2004. On the other hand, as per the documents of the assessee, it was 22.12.2004. Then, according to the paper, date of the agreement was 17.09.2004, but the assessee’s paper showed the date of agreement to be 18.05.2005. Even the location of the flat of the assessee was misquoted in the statement, to be on the second floor, whereas actually, it was on the first floor. The due date of payment, as noticed above, was shown as 17.1.2005 in the paper, whereas according to the assessee, it was 21.4.2005 These glaring discrepancies have not been taken into consideration by the ld. CIT(A).

11. The ld. CIT(A) also placed reliance on the statement of one Sh. Rakesh Kumar who was handling the affairs of the Housing Society. This statement was recorded in the search conducted on the Housing Society. Sh. Rakesh Kumar had surrendered an amount of Rs. 50 lacs in F.Y. 2006-07 and Rs. 75 lacs in his personal hand for AY 2007-08. The ld. CIT(A) failed to consider that this statement of Sh. Rakesh Kumar, given on 9.4.2007, was also not the basis of the passing of the assessment order and the assessment order does not even make mention of such statement. Further, the ld. CIT(A) does not elaborate upon the exact status of the said Sh. Rakesh Kumar, in relation to the Housing Society and it has only been mentioned tha he “was handling this Dreamland Cooperative Housing Building Ltd.” As to what was his knowledge about the affairs of the Society and what was the authenticity of the information provided by him, was also not indicated by the ld. CIT(A). The aforesaid paper/list of alleged allottees with all the afore-considered discrepancies, is given as an annexure to the statement of Sh. Rakesh Kumar. Sh. Rakesh Kumar stated that the possession of the flat had been handed over to the allottee in F.Y. 2007-08. Before the ld. CIT(A), the assessee contended that since the handing over of the possession of the flats is to immediately follow full payment due, some payments towards cost of flats may have also been made/received in F.Y. 2006-07 and as such, all payments could not be held to have been made in the F.Y. 2004-05, i.e., almost two years in advance; that this was merely an assumption of the AO, which was entirely at variance with the statement of Sh. Rakesh Kumar. However, the ld. CIT(A) has not made any comment on this objection of the assessee.

12. Observing that the appeal of one Sh. Sunil Bhatt, whose name was also appearing in the aforesaid papers/list of the alleged allottees was also pending with him, the ld. CIT(A) observed that the said Mr. Sunil Bhatt had confirmed to have made both cash and cheque payments mentioned in the papers/list of the Society, as per the requirement of the Society; and that Mr. Sunil Bhatt had produced receipts issued by the Society in respect of both cash and cheques payments totaling to Rs.17,25,000/-, whereas his sale deed showed the consideration of Rs.11,70,000/- only; that this established that the consideration amount in sale deeds executed between the Society and the purchaser, was understated. This observation of the ld. CIT(A) is also of no consequence. Firstly, what has been made mention of, is the proceedings in the said appeal of Mr. Sunil Bhatt. The fate of his appeal is not known. Then, again, the assessee was never confronted with such proceedings in the case of Mr. Sunil Bhatt, thereby preventing the assessee from rebutting this material collected by the ld. CIT(A) at the back of the assessee and used against the assessee. It requires to be reiterated that as against the registered sale deed, no cogent material has been brought on record to connect the assessee to the paper/list of alleged allottees, in order to establish the alleged understatement of purchase price of the flat by the assessee.

13. The ld. CIT(A) has admitted that the papers/list of alleged allottees had not been recovered from the assessee in the search operations. However, in the same breath, it has been stated by the ld. CIT(A) that the veracity of the paper could not be questioned. Firstly, as noted, this paper was not a computer generated document, but, undisputedly had merely been typed on a computer, rendering it as of no evidentiary value against the assessee so far as regards the alleged understatement of purchase price. Then, as also earlier observed, the said paper is ridden with numerous discrepancies which the ld. CIT(A) has not even attempted to meet. It goes without saying that the said paper was not in the hand-writing of the assessee and it did not belong to the assessee. It did not contain the date on which the alleged cash payment had been made by the assessee.

14. It is also evident from the record, that whereas the surrender of about Rs.50 lacs by Sh. Rakesh Kumar was attributable to the alleged cash collection from the allottees of flats and it related to F.Ys. 2006-07 and 2007-08, the transaction of the assessee did not fall in one year, as it pertained to F.Ys 2004-05 & 2005-06. This being the position, the statement of Sh. Rakesh Kumar and the annexure thereto, i.e., the paper/list of alleged allottees, does not even remotely inculpate the assessee. It goes without saying that the statement of a third party cannot be held against the assessee in the absence of or corroborative evidence. Reliance in this regard has been placed by the assessee on the decision of the Amritsar Bench of the Tribunal in the case of ‘Surinder Singh, Kathua”, rendered on 25.09.2012, in ITA No.229(Asr)/2012 and C.O. No.23(Asr)/2012, for the assessment year 2007-08. A copy of thereof has been placed on record. No decision to the contrary has been cited by the Department before this Bench.

15. The ld. CIT(A) merely observed that the date of agreement and due date of payment mentioned in the seized document fell in the year under consideration and therefore, there was no reason to consider the plea of the assessee that the payment could have been made in the subsequent year. This observation of the ld. CIT(A) is wholly against the facts as discussed, which facts have not been rebutted by the ld. CIT(A).

16. There is no rebuttal to the assessee’s contention that only token amounts of Rs.20,000/- and Rs.30,000/- were paid on 17.09.2004 & 21.12.2004 respectively, which fell in the F.Y. 2004-05. The payment of Rs.8,00,000/- was made vide demand draft issued by UCO Bank on 19.05.2005, which fell in the F.Y. 2005-06. The receipts issued by the Society qua the three payments were placed on record by the assessee. However, the payment of Rs. 8,00,000/- has still been taken by the ld. CIT(A) to have been made in F.Y. 2004-05, quite against the record and without any basis. It requires mention here that this amount of Rs. 8,00,000/- was paid at the time of registration of the sale deed with the Registering Authority.

17. As against the above, the sale deed executed on 18.05.2005 specifies in no uncertain terms, the purchase consideration to be at Rs.8,50,000/-. This sale deed is admittedly a registered one. The contents thereof are duly sworn before the Magistrate. As against this document, there is nothing on record, other than the above discussed assumptions and presumptions of the AO and the ld. CIT(A), which also are contradictory inter-se. There is no material on record to suggest any understatement of the purchase price of the flat by the assessee. The purchase value stands accepted as such by the Registering Authority too. Besides, the provisions of section 50C of the Act also do not stand invoked.

18. Thus, looked at from any angle, the order under appeal is unsustainable in law. It has been passed on merely assumptions and presumptions, without any corroborative evidence to support the observations made. The same, is accordingly, reversed. The addition of Rs.10,50,000/- is, accordingly, deleted.

19. In the result, the appeal is allowed.

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