Piyush Infrastructure India Pvt. Ltd. v. Acit, Central Circle 1

I.C Sudhir, J.M:— The assessee has raised following grounds:

“1. (a) That the Ld. CIT(A) has erred in upholding that the Ld. Assessing Officer (AO) has rightly assumed the jurisdiction to frame the impugned assessment u/s. 153C of the Income tax Act and the assessment framed u/s. 153C by the AO was in order.

(b) That the Ld. CIT(A) has erred in giving his findings that satisfaction was recorded by the AO and all legal requirements to assumed the jurisdiction u/s. 153C were carried out and as such, initiation of proceedings u/s. 153C were quite in order.

3. That the Ld. CIT(A) has erred in upholding addition of Rs. 12.50 crores made by the AO on account of alleged investment in property at village Mewla Maharajpur, Faridabad out of so called undisclosed income of the assessee.

4(a). That the Ld. CIT(A) has not considered the fact that photocopy of agreement to sell dated 151212007 (in which piece of land was agreed to be sold for Rs. 18 crores) received from anonymous sources through fax does not constitute a valid evidence in the absence of original agreement on record.

4(b) That the Ld. CIT(A) has erred on facts and in law, in not appreciating that the aforesaid agreement was not reliable, more so since execution of the same was denied by the appellant and the seller and was contrary to the actual sale deed in respect of the same property executed between the parties and registered with appropriate authority of State Government.

5. That the Ld. CIT(A) has not considered the fact that statements of Sh. Harsh Singla &. Sh. Amit Goel recorded u/s. 132(4) in which he has denied having made any payment over and above Rs. 5.50 crores to the sell of the land is of prime importance and cannot be brushed aside.

6. That the Ld. CIT(A) has not considered the fact that the so-called subsequent statement of Sh. Harsh Singla, the Ex-Director of the company confirming that the piece of land was sold for Rs. 18 crores had never been confronted to the appellant and nor any copy of the same had been provided to the appellant.

7. That the Ld. CIT(A) has erred on facts and in law in not vacating the incorrect findings/observations made by the AO on pure conjectures and surmises that the closing balance of Rs. 80,45,830/- receivable from Smt Parminder Chadha, Mr. Tejpal singh and Ms. Kavita chadha individually against sale of property has been adjusted out of the alleged cash payable to them on account of alleged purchase of property for Rs. 18 Crores.

8. That the Ld. C1T(A) has erred in not considering that no proper opportunity was afforded to adduce the evidence to hear the case and to afford opportunity to cross examine the parties in question.

9. That addition of Rs. 12.50 crores has been confirmed by the Ld. CIT(A) against the facts and circumstances of the case and our detailed submissions have not been considered properly.”

Ground nos. 1(a) and 1(b)

In these grounds the issue raised is as to whether the AO had resumed jurisdiction validly to frame the assessment u/s. 153C of the Act?

2. The relevant facts are that there was searched on certain entities of the Piyush Group and some of directors of the group on 16.1.2008 and various documents were found and seized. A notice u/s. 142(1) dated 28.8.2009 was issued and served upon the assessee, asking the assessee to file its return of income for the A.Y 2008-2009 as search was conducted during the previous year relevant to this assessment year. In response thereto assessee filed its return declaring total income of Rs. 4,77,500/- on 12.10.2009 The assessment however, has been framed determining total income at Rs. 12,45,77,500/- by making addition of Rs. 12.50 crores alleged to have been made in cash over and above the sale price of Rs. 5.50 crore shown in the sale deed against the property at village Mewla Maharajpur, Faridabad. Before the ld. CIT(A) the assessee questioned the very jurisdiction for issuing notice u/s. 153C of the Act on the ground that no satisfaction was recorded by the AO and no material was found during the course of search was forwarded to the AO which are mandatory requirements for assuming jurisdiction u/s. 153C of the Act. The ld. CIT(A) did not agree with these contentions of the assessee and upheld the validity of the assessment.

2.1 Before the Tribunal in support of the ground raised in this regard, the ld. AR submitted that there was no search or survey conducted on the assessee. The search was conducted on Piyush Colonizer Ltd., Piyush Developers, Piyush Buildwell Ltd. and some of the directors of the Piyush Group on 16.1.2008 He submitted that assessment in the present case has been framed by the Assessing Officer u/s. 143(3) read with section 153C of the Act as per column 10 of the first page of the assessment order. He submitted that bare perusal of the assessment order suggests that no satisfaction was recorded by the Assessing Officer before assumption of jurisdiction u/s. 153C of the Act against the assessee. The ld. AR submitted that before proceeding u/s. 153C a satisfaction is required to be recorded by the Assessing Officer (in short AO) in the case of a person other than the person subjected to search and in whose case proceedings u/s. 153 A have been initiated. No such satisfaction has been recorded by the Assessing Officer. He referred page no. 63 of the paper book II, wherein a copy of order dated 28.8.2009 received by the assessee on 22.11.2011 has been made available. The ld. AR submitted that in his order at page no. 6 the ld. CIT(A) has claimed that a satisfaction note was recorded on 28.8.2009 by the AO for issuing of notice under the Act but consequent to which the AO has issued notice u/s. 142(1) on 28.9.2009 to the assessee. He submitted that the ld. CIT(A) has stated that the satisfaction has been recorded for which he has referred to a Fax Copy. These findings of ld. CIT(A) is not correct because the assessee has placed at page no. 63 of the paper book II, the alleged satisfaction note which is only an order sheet entry dated 28.8.2009, which according the ld. CIT(A) is satisfaction for the purpose of assumption of jurisdiction u/s. 153C. It only mentions the fact of search and transfer of case from Ghaziabad to Faridabad. There is no mention of the seized documents or material in the alleged satisfaction note referred to above. Section 153C lays down the conditions for initiation of proceedings. As per these conditions satisfaction and the books of account/valuable should be belonging to such other person. Both the conditions have not been satisfied in the present case, claimed the ld. AR. He contended that note of satisfaction must contain positive finding by the AO for making assessment u/s. 153A indicating therein that seized material and the person to whom seized material or part thereof belongs. He submitted that the order-sheet entry dated 28.8.2009 supplied to the assessee merely refers to issue of notice u/s. 142(1) for the assessment year 2008-2009, after the case has been transferred to the present AO. If no satisfaction has been recorded, then the very foundation of completion of assessment u/s. 153A or 153C is bad in law, since it has been provided in Section 153C that after the issue of notice u/s. 153C, the assessment shall be framed in accordance with the provisions of Section 153A.

2.2 The ld. AR submitted further that Sections 158BD and 153C, are para material. It has been laid down that incriminating material relating to the assessee, other than searched have been found within satisfaction has to be recorded that undisclosed income belongs to any other person, other than the searched. He submitted that in the case of present assessee neither any documents relating to the assessee has been found nor any satisfaction has been recorded and thus the question of handing over of the documents do not arise and in the order there is a reference to certain documents but none of the documents is linked to the assessee nor the AO has said anything about the same. He placed reliance on the decision of Hon'ble Supreme Court in the case of Manish Maheshwari 289 ITR 341 (SC).

2.3 The ld. AR submitted further that at page no. 7 of the first appellate order the ld. CIT(A) has stated that the assessment had been completed u/s. 143(3) on the basis of the notice issued u/s. 142(1) and mentioning of Section 153C does not vitiate the assessment. The ld. AR pointed out that though the ld. CIT(A) has held as above, but still it is submitted that the ld. CIT(A) cannot change the nature of assessment to Section 153C and therefore, the fact that proceedings have been initiated u/s. 153C, since notices u/s. 153C for earlier assessment years have been issued and assessment have been framed therein after having assuming the jurisdiction u/s. 153C and reopening the assessments for earlier years and thus findings of ld. CIT(A) is not correct. He submitted that ld. CIT)(A) cannot change the assessment framed under specific provisions related to search case to the procedure adopted in normal case. Thus the assessment framed u/s. 143(3) read with section 153C is void ab initio and deserves to be cancelled. He pointed out with the assistance of chart made at page no. 1 of the sequence of events filed on behalf of the assessee that in the assessment years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 assessments have been framed u/s. 143(3) read with section 153C of the Act. On the basis of the notice issued u/s. 153C on 28.8.2009, whereas in the assessment year 2008-2009, the notice has been shown issued u/s. 142(1) on 18.9.2009 instead of the provisions u/s. 153C of the Act. The assessee had filed return of income for the assessment year 2008-2009 on 29.9.2008 and the date of search remained 16.1.2008 only. He submitted that no notice u/s. 143(2) was issued before 30.9.2009 i.e within one year from the mandatory time of filing the return on 29.9.2008 and thus the assessment proceedings became barred by time. He pointed out that fresh return was filed in response to notice issued u/s. 142(1) as a consequence of order-sheet entry dated 28.7.2009 under the provisions to Section 153C, which is very much clear from the order-sheet entry dated 28.8.2009 Thus assessment was completed u/s. 153 A/153C which is complete code for assessment in search cases on the basis of notice u/s. 142(1) issued vide order-sheet entry on 28.8.2009 The ld. AR contended that since assessment has been framed u/s. 143(3) read with section 153C only and on that basis earlier years notices u/s. 153C were also issued, finding of ld. CIT(A) on one hand that satisfaction was recorded is absolutely incorrect and also a contradictory findings and on the other hand that current assessment u/s. 153C was not liable to be made is again wrong because the AO had issued notice u/s. 153C for the preceding 6 years and as such the assessment has been framed u/s. 143(3) read with section 153C as mentioned in the assessment order itself and, thus, finding of ld. CIT(A) deserves to be quashed since there is a binding judgment of Hon'ble Supreme Court in the case of Manish Maheshwari (Supra). Ld. AR also placed reliance on the following decisions:

1. CIT v. Ramesh Kumar 338 ITR 126 (P & H)

2. ITO v. Ginter Forgings Pvt. Ltd. ITA No. 508 to 514.Chd/2008.

3. Manoj Agrawal v. DCIT 113 ITD 377 (SB) (Del)

2.4 The ld. AR submitted further that the fax message which was received by the department from anonymous sources is not the document, since it is not an inforcible document, either legally or contractually and it can at best be stated as a piece of unreliable information, since original document has never been confronted to the assessee. He contended further that the fax message cannot be said to be a document within provisions of Section 132 because it has no authenticity in the eyes of law. Thus on this ground alone the assessment is bad in law.

2.5 The ld. DR on the other hand tried to justify the first appellate order on the issue. He referred the contents of the provisions laid down under Sections 153A and 153C of the Act. He also pointed out that the Assessment Year 2008-2009 in question is related to the previous year in which search was conducted and thus as per the provisions of these Sections assessment for the A.Y 2008-2009 was to be made under the regular provisions of Section 143(3) and not under Section 153C read with Section 153A of the Act. The ld. DR pointed out that such issue of non-recording of satisfaction was not raised before the AO and the assessee participated in the proceeding of the assessment.

2.6 After considering the above submissions and having gone through the material available on record as well as the decisions relied upon we do not find substance in the objection raised by the ld. AR against the validity of assessment framed u/s. 153C of the Act. Admittedly same A.O was holding jurisdiction over all the cases of Piyush Group including the assessee company and therefore, we are of the view that there was no requirement for sending the material to any other AO. Besides, as per provisions u/Sections 153A/153C of the Act assessment in the search cases is required to be made for six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. In the present case before us search was conducted on 16.1.2008 in the premises of Piyush Group and residential premises of the directors of Piyush Group were also searched wherein various documents as noted in the assessment order were found and seized. The date 16.1.2008 falls in the previous year relevant to the assessment year 2008-2009, the year under consideration and therefore, the ld. CIT(A) has rightly held that the Assessing Officer was justified in framing the assessment u/s. 143(3) though read with Section 153C of the Act for A.Y 2008-2009. We concur with his view that mere mentioning of Section 153C in the column no. 10 of the memo of the assessment order does not vitiate the assessment. So far as contention of the ld. AR that satisfaction was not recorded before issuing notice for the assessment year 2008-2009 to the assessee is concerned we find that the AO has recorded his satisfaction for proceedings u/s. 153C read with Section 153A of the Act, on 28.8.2009 before issuing notices u/s. 142(1) for the assessment year 2008-2009 and notices issued u/s. 153A read with Section 153C of the Act in the remaining earlier assessment years. Thus there is no substance in the contention of the ld. AR that satisfaction of the AO was not recorded before initiating proceedings u/s. 153C read with Section 153A of the Act against the assessee. The first appellate order in this regard is thus upheld. In result ground nos. 1(a) and 1(b) are rejected.

Ground nos. 3 to 9

3. The relevant facts are that during the course of search action on 16.1.2008 in the premises of Piyush Group of cases certain documents were found on the basis of which and some documents received through fax by the department, proceedings u/s. 153C of the Act initiated against the assessee. The assessment year 2008-2009 under consideration is irrelevant to the previous year in which search was taken place. The AO issued notice u/s. 142(1) to the assessee. In response thereto assessee filed return declaring an income of Rs. 4,97,500/-. The assessment has been framed determining total income at Rs. 12,54,77,500/- by making addition of Rs. 12.5 crores on account of cash paid over and above sale consideration of Rs. 5.50 crores for purchase of land at village Mewla, Mahrajpur, Faridabad. The ld. CIT(A) has upheld the same against which assessee is in appeal before us.

3.1 The ld. AR submitted that no document or any agreement or receipt was found during the course of search from the possession of the assessee and the addition have been made on the basis of certain information sent to the department through fax message by some anonymous sources. It was contended that reliance cannot be placed on such unconfirmed and unreliable fax message which has not been even confronted to the assessee, such copies shall not constitute a valid evidence and they can the admitted as a piece of evidence only when its original copy is made available on record. He submitted that the assessee company had purchased land at village Mewla Mahrajpur, Faridabad from Smt. Parminder Chadha, Ms. Kavita Chadha and Sh. Tejpal Singh, residents of 10, Jangpura - B New Delhi whose premises were also searched on 16.1.2008 A sale deed was found from the premises of aforesaid persons which pertain to the said property located at Village Mewla, Mahrajpur, as per which the assessee company had purchased aforesaid property from these 3 persons for a sum of Rs. 5.50 crores on 5.6.2007 During the course of search on agreement to sale dated 15.2.2007 of the property was received by the Department from anonymous sources through fax, according to which the land in question was agreed to be sold at Rs. 18 crores. A copy of receipt dated 15.2.2007 was also received on Fax by the Department as per which Smt. Parminder Chadha and others had acknowledged the receipt of Rs. 2 crores (1 crore in cash and 1 crore in cheque, dated 15.2.2007) against total agreed amount of Rs. 18 crores. The AO accordingly held that the aforesaid property was actually sold for Rs. 18 crores as against Rs. 5.50 crores shown in the sale deed. In this regard the Assessing Officer also placed reliance on the satements of Sh. Harish Singla recorded again during the course of assessment proceedings. The Assessing Officer also observed that the sellers of the property i.e Smt. Parminder Chadha, Sh. Tejpal Singh and Ms. Kavita Chadha had booked commercial space in assessee's business park-II for Rs. 1,42,50,000/- each. However, they had paid only Rs. 62,04170/- individually through cheque. The balance amount of Rs. 80,45,830/- per individual was shown as closing balance. The Assessing Officer observed that though substantial amount is due to be paid by the aforesaid 3 sellers to the assessee company for booking of the aforesaid commercial space, they are receiving assured interest on above payment which clearly shows that closing balance shown has been adjusted out of the cash payable to the sellers. The Assessing Officer has noted further that advance of Rs. 1 crore given by cheque as mentioned in the agreement dated 15.2.2007 has been adjusted against total purchased amount of Rs. 5.50 crores mentioned in the sale deed.

3.2 The ld. AR contended that the authorities below have relied upon anonymous fax message in shape of one agreement to sell dated 15.2.2007 in respect of the above property without identifying the person who had faxed it. He submitted that on every fax message there is telephone no./name but it has not been investigated despite specific request made in this regard by the assessee during the course of the assessment proceedings. The assessee had also raised this issue in its reply dated 19.11.2009 which has been reproduced by the AO at page nos. 7 to 9 of the assessment order. He submitted that the original copy of the faxed document was never made available for confrontation of the assessee, hence in absence of corroboration by the person who had sent the fax it cannot be relied upon. In support he placed reliance on the following decisions:

* Daulat Ram Rawatmal 87 ITR 349 Supreme Court

* K.P Varghese v. ITO 131 ITR 597 (SC)

* Motor and General Store (P) Ltd. (1967) 66 ITR 692 (SC)

* CIT v. Rajpal Singh Ram Avtar (2005) 149 Taxman 32 (Alld)

* CIT v. Chandan Bucher (2010) 323 ITR 510 (P & H)

* CIT v. P.R Metrani (2002) 120 Taxman 612 (Kar)

* 1995 Supp (1) SCC 462 : 1994 AIR SC 591 govt. of A.P v. Karm C.V Reddy

* P.V Jewellery v. ITO (1993) 45 TTJ (JP) 514

* Ram Swaroop Saini (HUF) v. ACIT (2007) 15 SOT 470 (Del)

* 1993 AIR 2633 District Magistrates v. R. Kumaravel dated 04/08/1993 (SC).

3.3 The ld. AR submitted further that statements of Sh. Harish Singla recorded u/s. 132(4) during the course of search on 16.1.2008 has got evidentiary value hence it cannot be ignored. He referred page nos. 14 to 25 of the paper book wherein relevant pages of his statements have been made available. The ld. AR submitted that in his statements recorded on oath u/s. 132)(4) of the Act, Sh. Harish Singla has stated about the purchase consideration of the property at Rs. 5.5 crore only and he has confirmed in his statement that no cash payment was made. The Assessing Officer has ignored this statement recorded u/s. 132(4) of the Act and has completely relied upon the later statements of Sh. Harish Singla, recorded subsequently wherein he has contradicted his earlier statements (recorded u/s. 132(4) of the Act) by saying that the property was actually sold for Rs. 18 crore but in the sale deed the consideration was mentioned at Rs. 5.5 crore only and the remaining amount was paid in cash. The later statement of Sh. Harish Singla was recorded at the back of the assessee during the course of assessment proceedings without affording opportunity of Cross-examination of Sh. Singla to the assessee. He submitted that even copy of his said statement was not supplied to the assessee during the course of assessment proceedings and there is only a reference to that statement by the AO in the assessment order. The ld. AR pointed out that Sh. Harish Singla had retracted from his earlier statements recorded u/s. 132(4) of the Act that too after many months as he was removed from the directorship of the company and an FIR was also lodged against him on 12.1.2009 Sh. Harish Singla was removed from the directorship of the company on 9.1.2009 Thus there is complete nexus of the subsequent event and the later statement of Sh. Harish Singla, which was designed to harm the assessee and the statements have been given by him with malice and thus it has no evidentiary value. He contended that for any retraction to be successful in the eyes of law, the maker has to show as to how earlier recorded statements do not state the true facts or that there was coercion, inducement or threat while recording his earlier statements u/s. 132(4). In this regard he placed reliance on the following decisions:

- T.S Kumara Swamy v. ACIT (1998) 65 ITD 188) (Mad)

- Surjit Singh Chhabra v. UOI (1997) 1 SCC 508

- Bachittar Singh v. CIT (2010) 328 ITR 400 (P & H)

- ACIT v. Hukum Chand Jain (2010) 191 Taxman 319 (Chhattishgarh)

- Kanti Lal v. ACIT (2011) 14 Taxman 108 Ahmedabad

3.4 The ld. AR submitted further that the statements of the sellers of the property recorded during the course of search u/s. 132(4) of the Act under the oath affirming the consideration of Rs. 5.50 crores for the property cannot be brushed aside. Regarding certain receipts found from the premises of Smt. Parminder Chadha, copies whereof have been made available at page nos. 76 and 77 of the paper book volume-II, the ld. AR submitted that these receipts are incomplete as there are no signature of all the Co-owners and witnesses. He submitted that these are not even copies of the original receipts. The receipt at page no. 75 is a fax copy and cannot be relied upon. Smt. Parminder Chadha in her statements recorded again on 24.11.2009, a copy whereof has been made available at page nos. 60 to 63 of the paper book Volume 1 had denied to have received any sum over and above Rs. 5.50 crores and has also narrated the circumstances under which the receipts were found from her premises. Even during the course of search in her statement recorded u/s. 132(4) of the Act. Smt. Chadha had stated that the sale consideration of the property was Rs. 5.50 crores only. The ld. AR also referred page no. 26 to 30 of the PB Volume 1 i.e copy of the agreement received by the department on fax.

3.5 The ld. DR on the other hand placed reliance on the orders of the authorities below. He submitted that there was sufficient evidence with the AO to draw an inference that unaccounted money was involved in the transaction of the purchase of the property at Faridabad. He submitted that totality of the facts in the present case is required to be taken in account to draw a proper inference. The ld. DR referred page no. 26 to 30 of the paper book filed by the assessee i.e copy of the alleged agreement dated 15.2.2007 relied upon by the department. He submitted that this agreement has been signed by all the parties and witnesses. He also referred page No. 75 of the PB Volume 2 filed by the assessee which is the copy of the receipt dated 15.2.2007 showing that the sellers had received an amount of Rs. 2 crore out of which Rs. 1 crore was paid in cash and Rs. 1 crore vide cheque by the assessee towards the sale consideration for the property in question. He submitted that these are the first set of evidence which itself are sufficient to establish that the sale consideration was actually Rs. 18 crore and not Rs. 5.5 crore only shown in the registered sale deed. He submitted that the sale consideration shown in the registered sale deed was the amount paid through cheque and the remaining amount of Rs. 12.50 crore has been paid in cash as per the agreement to sell dated 15.2.2007

3.6 The ld. DR submitted that the second set of evidence are receipt dated 11.4.2007 made available at page no. 91 of the paper book filed on behalf of the department and receipt dated 14.5.2007 has been made available at page no. 92 of the same PB. He submitted that in the receipt dated 11.4.2007 the seller Smt. Parminder Chadha has acknowledged the receipt of sum of Rs. 1 crore in lieu of a part payment towards agreement of sale of the property and receipt dated 14.5.2007 is again acknowledgment of payment of Rs. 2,70,000,00/- from the seller Smt. Parminder Chadha towards the part payment of the sale consideration for the property. He submitted that this receipt has also been acknowledged by the Co-owner Ms. Kavita. Thus by these receipts total payment of Rs. 3,70,000,00/- toward the sale consideration has been made by the assessee. The ld. DR submitted that the third set of evidence is the acknowledgement of payment of Rs. 2 crores to Smt. Parminder Chadha acknowledged by the assessee vide its letter dated 4.12.2009 made available at page no. 41 of the PB filed by the department (in short PB (d)). The ld. DR also referred page no. 42 of PB (d) supporting the payment of Rs. 2 crores in the ledger account of Smt. Parminder Chadha with the assessee during the F.Y 2007-2008. He submitted that period of this transaction shown on page no. 41 and 42 of the PB(d) is the same and there is no evidence of other deal.

3.7 The ld. DR submitted further that page no. 43 to 64 are of PB(d) are the 4 set of evidence against the assessee. These are copies of 3 agreements dated 14.5.2007 between the assessee on one hand and Smt. Parminder Chadha, Ms. Kavita Chadha and Sh. Tej pal Singh on the other hand. These documents were seized from the residence of Smt. Parminder Chadha and have been marked as Annexure A-2. He submitted that assessee is a well established reputed builder. He pointed out that in these agreements all the 3 Co-owners of the property at Faridabad have entered into an agreement on 14.5.2007 to purchase office premises in Piyush Business Park situated at main Mathura Road NH-2 (Sector 27), Faridabad owned by the assessee company. The ld. DR pointed out that in this agreement total consideration has not been shown but the office premises was sold at the rate less than Rs. 3,000/- per sq. ft. These documents suggest that the transaction was intended to adjust squarely against the sale consideration of the property in question which was purchased by the assessee from the said 3 persons/sellers. The ld. DR submitted further that the 5 sets of evidence are the statements of Sh. Harish Singla who was director of the assessee company during the period when transaction in question took place. He remained signatory to the sale deed. He referred those statements of Sh. Harish Singla recorded on 20.10.2009 supplied by the assessee. He submitted that under the provisions of Section 278 B of the Companies Act, the director of the company is liable for an offence and despite having known this fact the director Sh. Harish Singla has dared to state in his statements that the property in question was agreed to be sold at Rs. 18 crores and out of the said amount Rs. 5.50 crore was paid vide cheque, which was shown in the registered sale deed and the remaining amount was paid in cash. The ld. DR while concluding his argument submitted that provisions of evidence Act, are not strictly applicable in the matters of Income Tax Act and the above 5 sets of evidence were sufficient to draw an inference beyond doubt that the property in question was actually sold for Rs. 18 crores. He submitted that preponderance of probability is to be seen in the present case and it is in general practice that in real estate transaction only cheque amount is shown in the sale deed and cash payment is always involved in such dealings. He placed reliance on the following decisions:

- Homi Jehangir Gheesta v. Commissioner Of Income Tax, Bombay . (1961) 41 ITR 135 (SC)

- Dhakeswari Cotton Mills Ltd. v. CIT (1954) 26 ITR 775 (SC)

- C Vasant Lal & Co. v. CIT (1962) 45 ITR 206 (SC)

- Sumati Dayal v. Commissioner Of Income Tax, Bangalore . (1995) 80 Taxman 89 (SC)

- Cit v. Durga Prasad More (1971) 82 ITR 540 (SC)

- ACIT v. Jay Engineering Works Ltd. (1978) 113 ITR 389 (Del)

- CIT v. Krishna Veni Ammal (1986) 158 ITR 826 (Mad)

3.8 The ld. DR submitted further that the decisions relied upon by the ld. AR having distinguishable facts are not helpful to the assessee.

3.9 The ld. AR rejoined with the submission that first set of evidence are the copies of fax message received by the department from unknown sourceduring the course of search. It is neither the photo copy of the original document nor the source from where it was received is identified. He submitted that original of these documents were never furnished by the department for verification to the assessee hence, these fax messages in the shape of agreement to sell and receipt cannot be relied upon nor these can be used adversely against the assessee. He submitted further that no document/evidence was found during the course of search from the possession of the assessee. He submitted further that the second set of evidence i.e receipts made available at page no. 76 and 77 of the PB - II (A) have not been signed by all the Co-owners of the property. The receipt placed at page no. 76 of the PB has been signed by only Smt. Parminder Chadha. The copies of these receipts have also been made applicable at page nos. 91 and 92 of the PB (d). The ld. AR submitted that these receipts were found at the premises of Smt. Parminder Chadha were never acted upon. That was the reason that these receipts were lying with the seller of the property Smt. Parminder Chadha though these should have been found lying with the purchaser of the property in question in case these would have been acted upon. Regarding third set of evidence i.e letter dated 4.12.2009 and account of Smt. Parminder Chadha in the books of the assessee showing payment of Rs. 2 crore, the ld. AR submitted that it was relating to the some other transaction. He submitted that an amount of Rs. 2 crores was paid separately to Smt. Parminder Chadha for purchase of other property from her and this payment was altogether a separate transaction which was being shown as advanced paid in the financial statement of the assessee. Out of the said amount an amount of Rs. 1 crore was received back since the transaction was not materialized due to non-clearance of the title of the property. No question was asked during search about this payment of Rs. 2 crore. Besides these payment were admittedly made through cheques. Regarding 4 set of evidence the ld. AR submitted that it was regarding sale of office premises to Smt. Parminder Chadha, Ms. Kavita and Mr. Tej Pal Singh. He submitted that they had booked office premises in a commercial complex under development of the assessee but the commercial complex could not be developed by the assessee due to non-clearance of adverse possession by a third party on the plot on which the project was to be developed. The amounts taken in advance from the said 3 persons were ultimately returned to them. Regarding the 5 set of evidence the ld. AR submitted that these are the statements of Sh. Harish Singla recorded subsequent to his statements recorded u/s. 132(4) of the Act during the course of search. During the course of search Sh. Singla as submitted earlier, had stated under oath that the property was sold for Rs. 5.50 crore only, whereas in his statements recorded on 20.10.2009 he has contradicted his own earlier statements recorded u/s. 132(4) of the Act by saying that the property was actually agreed to be sold for Rs. 18 crores. He has not been confronted with his earlier statements recorded u/s. 132(4) which has got evidentiary value nor any reason has been shown for making a different statements on 20.10.2009 It is also not the case of Sh. Singla that he had made earlier statements u/s. 132(4) of the Act under duress, influence coercion, threat etc. The assessee was also not afforded with opportunity to cross-examination Sh. Singla, hence his statement recorded on 20.10.2009 cannot be relied upon. Besides Sh. Singla of director of the company during the transaction of the property was later on removed from the directorship of the company and an FIR was also lodged by the assessee against him hence, he was adamant to ruin the assessee. In furtherance to achieve this motive Sh. Singla had made contrary statements. It is also an established proposition of law that a statement cannot be used adversely to a person without affording him an opportunity to cross-examine that person.

He submitted further that though it is not admitted but even if the amount alleged to have been paid towards the undisclosed sale consideration as per the receipts found and adjusted balance amount to be paid by Smt. Chadha and others to the assessee against the sale price is aggregated, it does not match with Rs. 12.50 crores alleged to have been paid in cash over and above Rs. 5.50 crore shown in the sale deed.

3.10 We have considered the arguments advance by the parties and have gone through the orders of the authorities below, material available on record and the decisions relied upon. Undisputedly onus lies upon the claimant to establish the genuineness of its claim. We have to decide in the present case as to whether the evidence furnished by the AO was sufficient to establish his allegation that the amount in consideration for the purchase of property in question was Rs. 18 crore. As discussed above the ld. DR has referred 5 sets of evidences to establish the allegation of the AO. First set of evidence is copies of the alleged agreement to sell along with other papers received by the department from anonymous sources. Copies of these documents have been made available at page nos. 26 to 30 of the PB filed by the assessee. It is agreement to sell dated 5 Feb. 2007. The copy of other document has been placed at page no. 75 of the pb-II. It is copy of a receipt received on fax by the department. In the said agreement dated 15.2.2007 between the Smt. Parminder Chadha, Sh. Tej Pal Singh and Ms. Kavita as first party and the assessee as second party, the consideration amount for the sale of the property at Mewla, Maharajpur, Faridabad has been shown at Rs. 18. crore. The submission of the ld. DR remained that the agreement dated 15.2.2007 has been signed by both the parties concern. Similarly the said receipt dated 15.2.2007 showing the receipt of Rs. 1 crore in cash and a cheque of Rs. 1 crore dated 15.2.2007 drawn on Punjab National Bank has been signed by both the parties. The ld. DR submitted further that the other evidence discussed in the remaining sets of evidence corroborate the payment of Rs. 18 crore agreed upon between the parties as the total consideration for the purchase of the property by the assessee however, in the sale deed registered, the amount paid through cheque for Rs. 5.50 crore only has been shown as the sale consideration. As per him the remaining amount out of Rs. 18 crore has been paid in cash. So far other sets of evidence are concern we will discuss its reliability in the succeeding paragraphs. The contention of the ld. AR against the reliability of the first set of evidence remained that both the alleged agreement dated 15.2.2007 and receipt dated 15.2.2007 have been sent to the department on fax from the unknown person and hence in absence of identity of the source and original copies of these documents, the same cannot be relied upon. He contended further that even the telephone no./name appearing on fax message was not investigated despite specific request of the assessee during the course of assessment proceedings. In support he referred page nos. 31 to 33 of the paper book and also the reply dated 19.11.2009 in this regard reproduced at page no. 7 of the assessment order. The ld. AR contended further that since the fax message has not been found from the premises of the assessee, the onus to establish its genuineness does not lie upon the assessee. He has placed reliance on several decisions in support. Having gone through these decisions we find that in the case of District Magistrate v. R. Kumaravel (Supra) the Hon'ble Supreme Court has been pleased to hold that a telegramme by itself is not an authentic document, it is like and unsigned and anonymous communication, unless a telephone is confirmed by a subsequent signed application, representation or an affidavit; the contents of the telephone have no authenticity at all and the same cannot be taken into consideration for assessing the value of the other authentic documents on the record. In that case before Hon'ble Supreme Court the detention order was passed by the District Magistrate on the basis of the material placed before him by the Police Authorities. The Hon'ble High Court was pleased to hold that any material received by the District Magistrate in the shape of telegram could not be taken into consideration by him in the absence of any subsequent communication confirming the same. The Delhi Bench of the Tribunal in the case of Ram swaroop Saini (HUF) v. ACIT (Supra) has held that a mere photo copy of a document cannot be considered to be reliable unless the original document is brought on record. In that case the AO was in possession of copies of the alleged agreement to sell which showed higher price than that recorded in the sale deed and the AO did not possess the original nor he informed as to how the copies of the said agreement to sell came into his possession. Similar are the fact in the present case the AO was not having the original copies of the agreement to sell and receipt both dated 15.2.2007 nor had he disclosed the identity of the person who had sent these documents to the department through fax. Respectfully following the above decisions relied upon by the ld. AR we hold that these documents were not having any evidentiary value in the eyes of law hence, these are not reliable. In other words on the basis of these documents alone it cannot be said beyond doubt that the sale consideration involved in the transaction of the property in question was Rs. 18 crore instead of Rs. 5.50 crore shown in the registered sale deed.

3.11 So far as second set of evidence relied upon by the ld. DR is concerned, these are the copies of two receipts made available at page nos. 91 to 92 of the pb (d). The copy of cash receipt of Rs. 1 crore dated 11.4.2007 has been placed at page no. 91 of the pb (d) and receipt of Rs. 2.70 crore dated 14.5.2007 has been placed at page no. 92 of the pb (d). In the copy of receipt dated 11.4.2007 amount of Rs. 1 crore in cash shown to have been received in lieu of a part payment towards agreement of sale dated nil from the assessee. In the receipt dated 14.5.2007 an amount of Rs. 2.70 crore shown to have been received by the assessee as in lieu of a part payment towards agreement of sale dated nil. Thus Rs. 3.70 crore has been shown paid in cash as a part payment towards agreement to sell by the assessee to the owners of the property. The ld. DR submitted that the amount shown in these receipts paid in a cash corroborates this fact that these payments were made above the amount shown in the sale deed at Rs. 5.50 crore through cheque. The contention of the ld. AR remained that these receipts have not been shown signed by the remaining Co-owners of the property i.e Sh. Tej Pal Singh and Ms. Kavita nor these receipts have been signed by the assessee. His further contention remained that these receipts should have been found from the possession of the assessee since assessee was the purchaser of the property from Smt. Parminder Chadha, Sh. Tej Pal Singh and Ms. Kavita however, these have been recovered from the possession of Smt. Parminder Chadha. He submitted further that Smt. Parminder Chadha in her statement recorded on 24.11.2009 has stated that the copies of the said receipts found from her possession during the course of search are draft copies of the receipts which were to be issued when the amount was to be received. She submitted that there was an agreement to sell the property in question for Rs. 8 crore which could not be materialized hence consideration mentioned therein never passed hands. Thus these receipts were never issued to the assessee. On perusal of these receipts we observe that these are not signed by all the owners of the property but signature of Smt. Parminder Chadha only has been shown. There is also substance in the submission of the ld AR that if these receipts would have been acted upon, these should have been found from the possession of the purchaser i.e assessee who has been shown made this payment to the owners of the property. Under these circumstances we are of the view that on the basis of these documents alone an inference beyond doubt cannot be drawn that these amount of Rs. 3.70 crores were paid by the assessee to the owners of the property.

3.12 The third set of evidence relied upon by the department are copy of a letter dated 4.12.2009 along with copy of account of Smt. Parminder Chadha in the books of the assessee, made available at page nos. 41 and 42 of the Pb (d). The ld. DR submitted that these documents have been procured from the assessment record of Smt. Parminder Chadha and copies of these documents have been made available at page no. 41 and 42 of the Pb (d). In the letter dated 4.12.2009 of the assessee addressed to the AO it has been submitted that Rs. 2 crore was paid separately to Smt. Parminder Chadha for purchase of other property from her and this payment is altogether a separate transaction which is being shown as advance paid in the Financial statement of the assessee. It has been submitted further that out of the above amount, amount of Rs. 1 crore was received back. The transaction was not yet materialized since the title of the property was not cleared. In support ledger account of Smt. Parminder Chadha with the assessee was attached, a copy whereof has been made available at page no. 42 of the Pb(d). The ld. DR submitted that the transaction period of the claimed separate deal is the same and there is no evidence of other deal on record claimed as by the assessee in his letter dated 4.12.2009 The ld. AR on the other hand contended that even if the explanation of the assessee regarding payment of this amount shown in the documents is denied, no inference can be drawn that payment was made towards the sale consideration of the present property in question.

3.13 The ld. AR submitted that there was no question of taking extra payment through cheque and during the search proceedings no specific question was asked to the assessee regarding the payment of Rs. 2 crore shown in the ledger account of Smt. Parminder Chadha with the assessee, made available at page no. 42 of the Pb (d). We are not fully convinced with the contention of the ld. AR in this regard, but at the same time on the basis of the stated payment of Rs. 2 crores through cheque an inference beyond doubt cannot be drawn that the amount was paid towards the sale consideration of the property in question.

3.14 The 4 set of evidence relied upon by the ld. DR are copies of the documents made available at page nos. 43 to 90 of the Pb(d). These are copies of the 3 agreements dated 14.5.2007 between the assessee at one hand and Smt. Parminder Chadha, Ms. Kavita Chadha and Sh. Tej Pal Singh on the other hand. These documents were seized from the residence of Smt. Parminder Chadha. Referring these documents, the ld. DR submitted that total consideration has not been shown in the agreement. These agreements were entered into between the assessee and the above named 3 persons for purchase of an office space measuring 2000/- sq. ft. super area in the first floor of the business park named as Piyush Business Park, situated at main Mathura Road, NH-2 (Sector 27), Faridabad under the development of the assessee. Each of the said 3 persons i.e second party shown to have agreed on the sale consideration and they have paid to the first party prior to the execution of the agreement an amount of Rs. 62,04,170/- each as the booking amount through cheque and balance amount of Rs. 7.50 lac each was agreed upon to be paid at the time of handing over of the possession. The ld. DR submitted that they have paid only Rs. 62,04,170/- individually through cheque and the balance amount of Rs. 80,45,830/- individually has been shown as closing balance. Though substantial amount is due to be paid by the aforesaid 3 sellers to the assessee company for booking of the aforesaid commercial space, but they are receiving assured interest on the above payment which clearly indicate that the balance shown has been adjusted out of the cash payment to the sellers the property in question. The ld. DR pointed out further that an advance of Rs. 1 crore given by cheque as mentioned in the agreement dated 15.2.2007 has been adjusted against total purchase amount of Rs. 5.50 crores mentioned in the sale deed. He submitted that these facts clearly lead to a conclusion that the property in question has been purchased by the assessee for Rs. 18 crores as against Rs. 5.50 crores shown in the sale deed and balance amount of Rs. 12.50 crores has been paid in cash.

3.15 The ld. AR contended that the office premises booked in the name of the above 3 persons in the business complex to be developed by the assessee concern does not in any way support the allegation of the A.O that the total sale consideration in the case of property in question purchased by the assessee was Rs. 18 crores. He pointed out that the said business complex could not be developed by the assessee and the land on which the said business complex, was to be developed is still in dispute and no custodian has been raised so far. It is only an imagination of the Assessing Officer that any adjustment of sale consideration of the property in question has been made against booking of the space by the above 3 persons. He submitted that the sale consideration of the property at Rs. 5.50 crores as per registered deed of the property has already been paid by the assessee. Considering these submissions we are of the view that there is no evidence beyond doubt to establish the allegation of the department that the amount payable by the above 3 persons towards their booking of the space in the business premises to be developed by the assessee, was actually paid to the assessee by way of adjustment of the sale consideration towards the property in question above the amount shown in the sale deed or towards Rs. 18 crores shown in the alleged agreement to sell dated 15.2.2007 received by the department on fax.

3.16 The 5 set of evidence relied upon by the AO and ld. DR are the set of statements of Sh. Harish Singla recorded by the AO on 20.10.2010, wherein he has specifically stated that the property in question was purchased for Rs. 18 crores however, in the sale deed amount of Rs. 5.50 crores paid through cheque only was shown. The ld. DR submitted that Sh. Singla during the period when the transaction was entered into was director of the assessee company and he also remained signatory of the agreement as well as sale deed on behalf of the assessee company. His statement has thus got evidentiary value and has been rightly relied upon by the AO.

3.17 The contention of the ld. AR in this regard remained that the said statements of Sh. Harish Singla subsequently recorded by the AO without affording opportunity to the assessee to cross-examine him cannot be used adversely against the assessee. His further contention remained that Sh. Singla has not been confronted by the AO with his contrary statements made by him during the course of search proceedings u/s. 132(4) of the Act on 16.1.2008, wherein he had stated on oath that sale consideration of the property was Rs. 5.50 crore as declared in the sale deed. His contention also remained that statements recorded u/s. 132(4) of the Act on oath carries more weight and reliability and unless there is strong reason for, one cannot deviate from his such statements subsequently. No such reason has been assigned by Sh. Singla in the present case for deviating from his earlier statement recorded u/s. 132(4) of the Act. Reliance has been placed on several decisions. It was also submitted that later on some enemity was developed between Sh. Harish Singla and the assessee which also led in filing of an FIR against him on 21.11.2009 and he was also terminated from the directorship of the company. Under this background Sh. Harish Singla had deviated from his statements made during the course of search proceedings. We find substance in the above contention of the ld. AR so far as credibility and reliability of the statements subsequently made by Sh. Harish Singla in concern. It is an establish proposition of law that statements made u/s. 132(4) on oath during the course of search has got evidentiary value and for retracting from such statements there must be sufficient reason like undue influence, freight, duress to be established by such person and that such retraction should be within reasonable time. No such fact has been brought on record in the present case by Sh. Harish Singla to deviate from his earlier statements recorded u/s. 132(4) of the Act. The Hon'ble Punjab and Haryana High Court in the case of Bachittar Singh v. CIT (Supra) relied upon by the ld. AR, has been pleased to hold that the Tribunal was justified in holding that retraction made after 2 months was not permissible and voluntary statements recorded in the presence of family members was an important material which could be acted upon. In that case the AO made addition on the basis of statements recorded during the course of survey. The addition was in respect of investment not recorded in the books of accounts. The assessee later on retracted from his earlier statements by taking stand that he had agriculture income to that effect investment was from that source. In the case of ACIT v. Hukum Chand Jain (Supra) before the Hon'ble High Court of Chhattisgarh relied upon by the ld. AR, the assessee could not explain recovery of cash and jewellery during the course of search proceedings and in his statement recorded u/s. 132(4) he had surrendered certain amount as his undisclosed income for block period and had also expressed his willingness to pay taxes worked out on the surrendered income. However, in his return of income filed in response to the notice issued u/s. 158 BC, he declared lower return contending that statement u/s. 132(4) was obtained under duress. The AO made assessment on the basis of surrendered income. The matter traveled before the High Court and the Hon'ble High Court was pleased to hold that when assessee did not retract his statements immediately after search and seizure was over and in return also no explanation was offered for surrender of undisclosed income at the time of search and seizure operations u/s. 132(4), it could be said that the assessee had failed to the discharge onus of proving that confession made by him u/s. 132(4) was as a result of intimidation, duress and coercion or that same was made as a result of mistaken belief of law or facts. It was held that the Assessing Officer was justified in assessing income of the assessee on the basis of surrender of undisclosed income made by the assessee u/s. 132(4) of the Act. Likewise in the case of Kanti Lal C. Shah v. ACIT (Supra) before the Ahmedabad Bench of the Tribunal it was held that statements recorded u/s. 132(4) is an evidence by itself and any retraction contrary to that should be supported by strong evidence for demonstrating that earlier evidence recorded was under coercion. In view of these decisions we are of the view that there was no reason with Sh. Harish Singla to establish that his statements u/s. 132(4) of the Act was made under coercion, compulsion, duress or threat. In absence of such evidence the statement made u/s. 132(4) of the Act cannot be ignored merely because a different statement was made subsequently. We thus conclude that on the basis of subsequent statements of Sh. Harish Singla it cannot be held established that the property in question was actually purchased for Rs. 18 crore and not for Rs. 5.50 crore as declared in the sale deed and confirmed by Sh. Singla in his statements recorded u/s. 132(4) of the Act on oath on earlier occasion. The 5 set of evidence is thus of no help to the revenue.

3.18 When we look to all the facts relating to the addition of Rs. 12.50 crores in question in totality, we come to the conclusion that the agreement of sale dated 15.2.2007 sent by an unknown source to the department as well as receipt dated 15.2.2007 also sent to the department on fax by unknown source or the contrary statements of Sh. Harish Singla recorded subsequently on 20.10.2010 during the course of assessment proceedings as discussed above are not sufficient in any way to establish beyond doubt that the property in question was actually sold for Rs. 18 crores out of which the amount of Rs. 5.50 crores paid through cheque only was shown in the sale deed and the remaining amount paid in cash was on money. So far other claimed evidences are concerned these are also not sufficient to establish the above allegation of involvement of on money. It is only an inference which has been presumed by the department that the advance of Rs. 2 crore (Rs. 1 crore in cash and Rs. 1 crore by cheque) was given out of which the amount of Rs. 1 crore paid by cheque dated 15.2.2007 has been adjusted against the payments shown as per sale deed; Rs. 1 crore vide cheque dated 23.4.2007 and another Rs. 1 crore vide cheque dated 8.5.2007 were received by the assessee apart from payment shown in the sale deed of Rs. 5.50 crores; Rs. 1 crore shown in the receipt dated 11.4.2007 and Rs. 2.70 crore shown in the receipt dated 14.5.2007 were apart from the payment shown in the sale deed and that Smt. Parminder Chadha, Sh. Tej Pal Singh and Ms. Kavita Chadha had booked the office premises in the commercial complex of the assessee and the due amount shown as closing balance in their accounts with the assessee had already been adjusted out of the cash payable to Smt. Parminder Chadha Sh. Tej Pal Singh and Ms. Kavita against sale consideration of the property in question at Mewla Maharajpur, Mathura Road, Faridabad. On the contrary in the sale deed of the property duly registered the parties have shown the consideration of Rs. 5.50 crore. In their statements recorded u/s. 132)(4) during the course of search proceeding all the parties to the sale deed have stated that the sale consideration of the property remained Rs. 5.50 crores only. The amount of Rs. 6.70 crores which the revenue claims as per the receipts recovered was paid over and above Rs. 5.50 crore consists of an undisputed amount of Rs. 3 crore shown to have been paid through cheques. And even if the claim of the Department is accepted for a moment that an amount of Rs. 2,41,37490/- (Rs. 80,45,830/- × 3) which remained balance to be paid by Smt. Parminder Chadha, Sh. Tej Pal Singh and Ms. Kavita to the assessee against the sale price of the office premises to be developed by the assessee was adjusted against Rs. 12.50 crore the amount over and above the sale price of the property shown in the sale deed at Rs. 5.50 crore, the aggregate amount comes to Rs. 9,11,37,490/- (Rs. 6,70,00000/- + Rs. 2,41,37,490/-) only which is still not near to the alleged cash payment of Rs. 12.50 crores.

The decisions relied upon by the ld. DR having distinguishable facts are not helpful to the assessee.

There is no question of any debate on the ratio laid down in these decisions but we will have to see its application under the facts and circumstances of the present case. In the case of Homi Jehangir Gheesta v. Commissioner Of Income Tax, Bombay . (Supra) the issue was as to whether where circumstances of rejection of explanation of assessee are such that only proper inference is that receipt must be treated as income in the hands of the assessee, there is no reason why assessing authority should not draw such an inference, it being an inference of fact and not of law. The question has been answered in affirmative. In the present case before us we have also concentrated on the facts and circumstances of the case to see as to whether it leads to justifying the addition made at Rs. 12.50 crores. Like wise in the case of Dhakeshwari Cotton Mills Ltd. v. CIT (Supra) it has been held that though ITO is not fettered by technical Rules of evidence and pleadings and he is entitled to act on material which may not be accepted as evidence on account of law but in making assessment u/s. 23)(3) of 1922 Act he is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. In the present case before us the issue raised was as to whether there were on sufficient material with the Assessing Officer to justify the addition made at Rs. 12.50 crores with this finding that the property was sold for Rs. 18 crores but in the sale deed it was shown at Rs. 5.50 crores and remaining amount was paid in cash. In the case of C. Vasanti Lal & Co. v. CIT (Supra) it was held that ITO is not bound by any technical law of evidence and it is open to him to collect materials to facilitate assessment even by providing inquiry. In the case of ACIT v. Jay Engineering Works Ltd. (Supra) the Hon'ble Delhi High Court has been pleased to hold that ITO not being a Court can rely upon material which may not be strictly evidence admissible under Indian Evidence Act for purpose of making an order of assessment. In that case before the Hon'ble Delhi High Court the relevant books of accounts of assessee were destroyed in fire and the Tribunal while allowing deductions claimed by assessee had taken into account as proof of material auditor's report from which it could be inferred that deductions were properly supported by relevant entries in account books, the Hon'ble High Court held that it could not be said that decision of Tribunal was not based on any evidence. Different are the facts in the present case before us. In the present case before us the AO tried to establish that there was corroboration of fact that an amount over and above the amount shown in the sale deed was paid in cash with the assistance of claimed different evidences, discussed hereinabove, either of which does not have its credibility and reliability. Similarity of certain figure alleged to have been paid in cash towards undisclosed sale consideration in the statements of a person who is adversely interested against the assessee and so alleged by deviating without reason from his earlier statements recorded under Section 132(4) of the Act, with the figure appearing in some documents received on fax by the Department unanimously from the unknown source, in our view cannot be given the status of “corroboration of fact” in absence of some reliable evidence and circumstances in support. Reason being the onus lies heavily on the person who wishes to turn an admissible evidence as false and unreliable. In this regard we also find strength from the decision in the case of CIT v. Krishna Veni Ammal (Supra) relied upon by the ld. DR holding that when even according to assessee there is other documentary evidence of corroborative value and same is within reach of assessee, Judicial Body cannot act on such interested testimony of assessee alone. The Hon'ble High Court has held further that if based evidence is not placed before the Court, an adverse inference can be drawn as against person who ought to have produced it.

Under these circumstances we come to the conclusion that the Assessing Officer in the present case has failed to establish beyond doubt that the property in question was actually purchased for Rs. 18 crore out of which the amount of Rs. 5.50 crore paid through cheque only has been shown as consideration in the sale deed and the remaining amount has been paid in cash from unknown sources to justify the addition of Rs. 12.50 crore made by him and sustained by the ld. CIT(A). We thus while setting aside the orders of the authorities below on the issue, direct the AO to delete the addition of Rs. 12.50 crore questioned by the assessee. The ground nos. 3 to 9 are thus allowed.

4. In result appeal is partly allowed.