THE DY,CITCircle-1(4), Ahmedabad v. INDIRABEN HIRANBHAI PATEL, Ahmedabad

ITSSA 206/AHD/2002 | misc
Pronouncement Date: 29-10-2010 | Result: Dismissed

Appeal Details

RSA Number 20620516 RSA 2002
Assessee PAN EYEAR1995W
Bench Ahmedabad
Appeal Number ITSSA 206/AHD/2002
Duration Of Justice 8 year(s) 2 month(s) 27 day(s)
Appellant THE DY,CITCircle-1(4), Ahmedabad
Respondent INDIRABEN HIRANBHAI PATEL, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-10-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-10-2010
Date Of Final Hearing 01-09-2010
Next Hearing Date 01-09-2010
Assessment Year misc
Appeal Filed On 02-08-2002
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH BEFORE SHRI G.D. AGARWAL VICE-PRESIDENT (AZ) AND SHRI MAHAVIR SINGH JUDICIAL MEMBER IT(SS)A NO.203 191 & 206/AHD/2002 [BLOCK PERIOD FROM 1/4/1988 TO 25/9/1998] DCIT CENTRAL CIRCLE-1(4) -VS- SMT. INDIRABEN H P ATEL ROOM NO.305 3 RD FLOOR L/H SHRI CHATURBHAI B PATEL AAYAKAR BHAVAN ASHRAM ROAD PATELBAUG MAKARBA GAM AHMEDABAD SARKHEJ AHMEDABAD PAN NO. NOT FOUND. SMT. INDIRABEN H PATEL -VS- DCIT CENTRAL CIRCLE- 1(4) F/4 SAMARTHESHWAR FLAT AHMEDABAD OPP. DR. HOUSE AHMEDABAD DCIT CENTRAL CIRCLE-1(4) -VS- INDIRABEN HIRANBHA I PATEL ROOM NO.305 3 RD FLOOR F-4 SAMRUTHESHWAR FLATS AAYAKAR BHAVAN ASHRAM ROAD OPP. DOCTOR HOUSE AHMEDABAD (APPELLANT) (RESPONDENT) IT(SS)A NO.152/AHD/2002 [BLOCK PERIOD FROM 1/4/88 TO 25/9/98] DCIT CENTRAL CIRCLE-1(4) -VS- SHRI HIRENBHAI S HANTILAL PATEL ROOM NO.310 3 RD FLOOR F-4 SAMARTHAESHWAR FLAT AAYAKAR BHAVAN ASHRAM ROAD OPP. DOCTOR HOUSE AHMEDABAD AHMEDABAD PAN NO. NOT FOUND (APPELLANT) (RESPONDENT) IT(SS)A NO.204-205/AHD/2002 [BLOCK PERIOD FROM 1/4/88 TO 25/9/98] DCIT CENTRAL CIRCLE-1(4) -VS- SATYAAVATI J AGR AWAL ROOM NO.310 3 RD FLOOR FST FLOOR BLUE STAR COMPLEX AAYAKA BHAVAN ASHRAM ROAD NR.OLD HIGH COURT RLY.C ROSSING AHMEDABAD AHMEDABAD PAN NO. NOT FOUND DCIT CENTRAL CIRCLE-1(4) -VS- KAILASH DARSHAN S SAHKARI KHETI ROOM NO.310 3 RD FLOOR MANDLI LTD. VIBHAG-I 2 ND FLOOR AAYAKA BHAVAN ASHRAM ROAD SASTHIK AVENUE NR. FUN REPUBLIC IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 2 AHMEDABAD THEATRE SATELLITE AHMEDABAD PAN NO. NOT FOUND (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ALOK JOHRI CIT-DR ASSESSEE BY: SHRI DHIREN S HAH AR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- OUT OF THESE SIX APPEALS 5 BY REVENUE AND ONE BY ASSESSEE ARE ARISING OUT OF THE ORDERS OF COMMISSIONER OF INCOME-TAX (APPEAL S)-I AHMEDABAD IN APPEAL NOS. CIT(A)-I/CC.1(4)/63 67 71 70 & 80/00-01/01-02 BY DIFFERENT DATE I.E. 27-03-2002 06-05-2002 AND 07-05-2002. THE BLOCK ASSESSMENTS WE RE FRAMED BY DCIT CENTRAL CIRCLE-1(4) AHMEDABAD U/S.158BC OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 29-09-2000 FO R BLOCK PERIOD FROM 01-04-1988 TO 25-09-1998. 2. THE FIRST ISSUE IN REVENUES APPEAL IN IT(SS)A NO.203/AHD/2002 IS AS REGARDS TO THE ORDER OF CIT(A) DELETING THE ADDITIO N MADE BY ASSESSING OFFICER BEING PROFIT ON SALE OF LAND AT VILLAGE MAKARBA. FOR THIS REVENUE HAS RAISED THE FOLLOWING GROUND NO.1 :- THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.3 43 81 674/- BEING PROFIT ON SALE OF LAND AT MA KARBA VILLAGE. IGNORING THE DOCUMENTS IN POSSESSION OF THE DEPART MENT. 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT A SEARCH WAS CARRIED OUT AT RESIDENCE OF THE ASSESSEE ON 25-09-1998 U/S.132 OF THE ACT AND DURING THE SEARCH DOCUMENTS AS ANNEXURE-A/1 TO A/6 OF THE PANCHNAMA D ATED 25-09-1998 WAS FOUND AND SEIZED. A NOTICE U/S.158BC OF THE ACT WAS ISSU ED ON 09-04-1999 FOR FILING BLOCK RETURN FOR THE BLOCK PERIOD 01-04-1988 TO 25-09-199 8 AND ASSESSEE FILED BLOCK RETURN DECLARING LOSS AT RS.10 59 099/- ON 06-12-19 99. THE ASSESSEE SUBSEQUENTLY REVISED THE RETURN ON 31-08-2000 DECLARING LOSS AT RS.10 36 988/-. THE ASSESSING OFFICER DURING THE BLOCK ASSESSMENT PROCEEDINGS NOT ICED FROM THE LOOSE PAPER INVENTORIZED AS ANNEXURE-A/1 PAGE 115 AND REPRODUCE D THE NOTINGS IN THE BLOCK ASSESSMENT ORDER WHICH ARE AS UNDER:- IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 3 SURVEY NO. SQ. METERS SQ. YDS 268 45324 54208 266 13850 16576 280/1 3541 4235 280/2 6880 8228 280/3 3339 3993 294 4457 5324 292/1 3845 4599 292/2 3451 4235 292/3 3743 4476 292/4 5339 3993 269/1 3642 4355 269/2 3642 4355 110783 132492 132496.968 132496 SQ.YDS. 5 96 23 200 2 53 00 000 --------------- 3 43 23 200 50% STAMP DUTY 50% PIPE LINE + WELL COST + INTEREST. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPL AIN THE AMOUNT NOTED IN THIS SEIZED PAPER AT RS.5 96 23 000/- AND ALSO SURVEY NO . AD MEASURING 1 32 496 SQ.YD. THE AO FURTHER NOTED FROM PAGE NO.117 OF INVENTORIZ ED DOCUMENT ANNEXURE-A/1 THAT THE ASSESSEE HAS MADE FOLLOWING INVESTMENTS:- SR. NO PRESCRIPTION OF THE ASSETS IN WHICH INVESTMENT HAVE BEEN MADE OR EXPENDITURES HAVE BEEN INCURRED AMOUNT 1. LAND IN VILLAGE TALAV RS.1 28 46 170 2. GIFTED TO SISTER RS. 40 00 000 3. GIFTED TO SCHOOL RS. 80 000 4. GIFTED TO GRAVE YARD RS. 1 00 000 5. GIFTED TO COMMUNITY RS. 50 000 6. GIFTED TO TEMPLE RS. 50 000 IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 4 7. ESCORT FORT CAR RS. 8 18 399 8. TATA SIERA RS. 4 00 000 9. TRACTOR WITH TROLLEY RS. 3 01 000 10. ACQUISITION OF JEWELLERY RS. 1 00 000 11. DEPOSITS IN BANK RS. 40 00 000 12. PROPERTIES IN HIS NAME AND IN THE NAME OF HIS WIFE. RS. 40 00 000 13. TO BE RECEIVED FROM CHIMANLAL AGARWAL RS 1 00 00 000 RS.3 67 45 569 THE ASSESSING OFFICER CONSIDERING THE PAGE NO.115 O F ANNEXURE-A/1 AND INVESTMENTS AS NOTED ABOVE ARRIVING ON CONCLUSION O N THE BASIS OF FOLLOWING POINTS:- 1. PAGE NO.115 OF ANNEXURE A-1 SEIZED FROM THE RESIDEN CE OF ASSESSEE AT PATELVAS MAKARBA GAM AHMEDABAD. 2. STATEMENT GIVEN BY THE ASSESSEE AT THE BEGINNING AS WELL AS THE CONCLUSION OF THE SEARCH. 3. INVESTMENT IN VARIOUS IMMOVABLE PROPERTIES. 4. EXPENDITURE ON PURCHASE OF VARIOUS MOVABLE ASSETS A ND GIFTS. ACCORDING TO ASSESSING OFFICER THE ASSESSEE HAS SO LD THE LAND TO CHIMANLAL AGGARWAL GROUP AT RS.450/- PER SQ.YD. AS AGAINST TH E DISCLOSED RATE AT RS.150/- PER SQ. YDS. IN SALE DEEDS. THE AO TABULATED THE SALE C ONSIDERATION AS PER SALE DEEDS VIS--VIS SURVEY NO. SQ. YD. AND AMOUNT RECEIVED A ND FINALLY HELD THAT THE ASSESSEE HAS ACTUALLY RECEIVED A SUM OF RS.5 21 72 004/- AS AGAINST THE AMOUNT AS SHOWN IN SALE DEED AT RS.1 77 90 330/-. ACCORDINGLY HE ASSE SSED THE UNDISCLOSED SALE CONSIDERATION AS UNDISCLOSED INCOME FOR THE BLOCK P ERIOD AT RS.3 43 81 674/- OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFO RE CIT(A). THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS AND EVIDENCES DELETED T HE ADDITION BY GIVING FOLLOWING FINDINGS IN PARA-9 9.1 AND 9.2 :- 9. AFTER CONSIDERING THE ENTIRE ISSUE CAREFULLY I FIND THAT THE ASSESSMENT APPEARS TO BE SOLELY BASED ON THE RETRACTED STATEME NT OF THE APPELLANT. EVEN THE DOCUMENT HAS NOT BEEN RELIED UPON BY THE ASSESS ING OFFICER BECAUSE IF HE HAD RELIED ON THE DOCUMENT SEIZED THE SALE CONSIDE RATION SHOULD HAVE BEEN TAKEN AT ABOUT 5.96 CRORES AS AGAINST WHICH THE ASS ESSING OFFICER HAS ADOPTED A FIGURE OF RS.5.21 CRORES. THUS THE ASSESSING OFFI CER HAS HIMSELF DISCARDED THE ALLEGED SEIZED DOCUMENTS AND ADOPTED A DIFFEREN T FIGURE AS SALE CONSIDERATION OF THE PROPERTY. HERE IT WOULD BE RE LEVANT TO POINT OUT THAT THE STATEMENT RECORDED AT THE TIME OF SEARCH ON 25/9/19 98 WAS RETRACTED ON 26/9/1998 BY WAY OF AN AFFIDAVIT. IN FACT THE SEAR CH IN THIS GROUP WAS STILL NOT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 5 OVER ON 26/9/1998 AS LOCKER OF THE APPELLANTS SON IN LAW WAS STILL UNDER PROHIBITORY ORDER. IN FACT WITNESSES TO THE SEARCH ALSO CONFIRMED THE CONTENTIONS OF THE APPELLANT THAT STATEMENT RECORDE D AT TIME OF SEARCH UNDER COMPELLED CIRCUMSTANCES AND UNDER DETERIORATED HEAL TH CONDITIONS. THE WITNESSES ALSO STATED THAT AT THAT TIME THE APPELLA NT DID NOT APPEAR TO BE IN NORMAL STATE OF MIND. ALL THIS THROWS A SERIOUS DO UBT THE VERACITY OF THE STATEMENT RECORDED AT THE TIME OF SEARCH WHICH ALSO SUFFERS FROM MANY INFIRMITIES AND CONTRADICTIONS AS EVIDENT FROM FACT S STATED IN PARA 4(G) TO 4(I) OF THIS ORDER. EVEN IN SUCH CIRCUMSTANCES NO STATEMEN T WAS RECORDED BY THE A.D.I.T. OR THE ASSESSING OFFICER WHEN STATEMENT U NDER SECTION 132(4) WAS RETRACTED. IT HAS BEEN HELD BY THE HONOURABLE SUPR EME COURT IN THE CASE OF PALANI SWAMI VS. STATE OF TAMIL NADU AIR 1956 (S.C) 593 THAT WHERE CIRCUMSTANCES CAST A SUSPICION ON THE GENUINENESS O F CONFESSION CORROBORATION IS NECESSARY THE APEX COURT IN THE C ASE OF PANGMBAM KALANJOY SINGH VS. STATE OF MANIPUR AIR 1956 (S.C) IT HAS HE LD THAT CONFESSION EVEN IF INCULPATERY SHOULD BE CORROBORATED IF RETRACTED A ND THE CORROBORATION HAS OBVIOUSLY TO BE DONE ON THE BASIS OF INDEPENDENT EV IDENCE. NOTHING TO THIS EFFECT WAS DONE EVEN THOUGH THE STATEMENT WAS RETRA CTED BY THE APPELLANT AND EVEN WHEN INDEPENDENT WITNESS TO SEARCH HAD CON FIRMED THAT THE STATEMENT WAS RECORDED UNDER COMPELLED CIRCUMSTANCE S. THUS THE VERACITY OF STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT GETS DILUTED CONSIDERABLY AND UNLESS IT IS BACKED BY INDEPENDENT CORROBORATIN G EVIDENCE NO ADDITION COULD BE MADE. IT IS SEEN THAT EXCEPT FOR THE ALLE GED SEIZED DOCUMENT AND THE RETRACTED STATEMENT NO OTHER INDEPENDENT EVIDE NCE WAS AVAILABLE WITH THE ASSESSING OFFICER. IN HIS REMAND REPORT ALSO THE A SSESSING OFFICER HAS STATED THAT THE SALE CONSIDERATION HAS BEEN WORKED OUT BY APPLYING A RATE OF RS.450/- PER SQ.MT. TO THE AREA OF LAND BASED ON APPELLANTS STATEMENT. THUS EXCEPT FOR APPELLANTS RETRACTED STATEMENT NO CORROBORATIN G EVIDENCE WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER. THE SO-CALLED APPL ICATION OF FUNDS IS ALSO BASED ON THE RETRACTED STATEMENT AND THERE IS NO EV IDENCE TO PROVE THE ALLEGED APPLICATION OF FUNDS. THE ASSESSING OFFICER IN HIS REMAND REPORT HAS POINTED OUT TO VARIOUS DOCUMENTS SEIZED FROM THE PR EMISES OF AGRAWAL ESTATE ORGANISERS LTD. TO SHOW THAT THERE WAS UNDERSTATEME NT OF CONSIDERATION IN VARIOUS DEALS. HOWEVER IT IS SEEN THAT EXCEPT FO R ONE OR TWO INSTANCES WHICH WERE DIRECTLY RELATED TO APPELLANTS RETRACTE D STATEMENT NO ADDITION WAS MADE IN ANY CASE IN THEIR RESPECTIVE BLOCK ASSESSME NTS AND RATES AS SHOWN HAVE BEEN ACCEPTED EVEN THOUGH THE LAND SOLD WAS IN IMMEDIATE VICINITY OF APPELLANTS LAND. IN THE CASE OF M/S.KAILASH DARSHA N KHETI SAHAKARI MANDLI LTD. VIBHAG-I FOLLOWING LANDS WERE PURCHASED AT M AKARBA : SR. NO. SURVEY NO. AREA IN SQ.MT. NAME OF SELLER DATE OF SALE DEED AMOUNT IN RS. RATE PER SQ.MT. 1 261/1 3541 DAHYABHAI BHULAJI 13/9/96 635248 179.40 2 261/2 3440 MANSUKHJI THALAJI 16/9/96 617250 179.43 3 265 10016 NATVARBHAI K. SOLANKI 2/9/96 1797000 179.41 4 267 9105 BHAILAL B.PATEL 31/3/96 544500 59.80 5 244 6171 CHATURBHAI B.PATEL 23/5/95 332100 53.82 9.1. IN THE ABOVE CASE ASSESSMENT WAS COMPLETED UND ER SECTION 158BD OF THE ACT AND VIDE NOTICE UNDER SECTION 142(1) DATED 11/4/2001 THE SAID IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 6 SOCIETY WAS ASKED TO EXPLAIN WHY A RATE OF RS.450/- PER SQ.MTS SHOULD NOT BE TAKEN FOR ALL THE LAND AS IT WAS SITUATED IN THE VI CINITY OF LAND OF CHATURBHAI PATEL. HOWEVER AFTER REPLY OF THAT ASSESSEE EXCEP T FOR SURVEY NO.244 SOLD BY THE APPELLANT RATES AS SHOWN BY THE SOCIETY WER E ACCEPTED AND NO ADDITION WAS MADE. IF THE LAND IN THE IMMEDIATE VIC INITY WAS SOLD FOR RATES VARYING BETWEEN RS.59.80 PER SQ.MET. TO RS.179.40 SQ.MT. IN THE YEAR 1996 THEN HOW THE LAND OF SHRI CHATURBHAI PATEL WHICH WA S SOLD IN THE YEAR 1995 WAS AT THE RATE OF RS.450/- PER SQ.MTR. IS BEYOND IMAGINATION AND IF THIS WAS THE CORRECT RATE WHEN WHY ALL OTHER LAND ALLEGEDLY SOLD AT A RATE MUCH LOWER RATE WAS ACCEPTED BY THE SAME ASSESSING OFFICER AGA IN SHOWS THAT THE STATEMENT OF THE APPELLANT WAS NOT FREE FROM DOUBT. IT IS ALSO SEEN THAT IN ALL OTHER CASES RELIED UPON BY THE ASSESSING OFFICER LI KE IN THE CASE OF KAILASH DARSHAN KHETI SAHAKARI MANDLI LTD. VIBHAG-II AKAS H VARSHA FARMS LTD. HIMALAYA DARSHAN SAMUDAYIK KHETI SAHAKARI MANDLI LT D. CHANGANBHAI BECHARBHAI PRAJAPATI NO ADDITION WAS MADE IN BLOCK ASSESSMENT. IN FACT THE INSTANCES RELIED UPON BY THE ASSESSING OFFICER IS H IS REMAND REPORT ARE OF CASES WHERE NO ADDITION WAS MADE IN BLOCK ASSESSMEN TS AND AS SUCH THE RELIANCE IS ENTIRELY MISPLACED. TO SUM UP IT IS S EEN THAT THE ADDITION WAS UNJUSTIFIED FOR THE FOLLOWING REASONS- I) THE ASSESSING OFFICER HAS HIMSELF DISREGARDED TH E FIGURES OF ALLEGED SALE CONSIDERATION MENTIONED ON THE DOCUMENT SEIZED AT T HE TIME OF SEARCH AND IN ALL FAIRNESS IT CAN BE SAID THAT HE HAS NOT AT ALL RELIED ON THE SEIZED DOCUMENT. II) THE SEIZED DOCUMENT IS ON THE LETTER HEAD OF TA J HOTEL AGRA AND NOT ON THE LETTER HEAD OF THE APPELLANT. IT DOES NOT BEAR ANY DATE OR NAME OF ANY PARTY. IT DOES NOT BEAR SIGNATURE OF ANY PARTY AND IT DOES NO T DENOTE ANY MONEY TRANSACTION. THE DOCUMENT IS NOT IN THE HANDWRITIN G OF THE APPELLANT OR ANY OF HIS FAMILY MEMBERS AND BEFORE THE ASSESSING OFFICER IT WAS ALSO STATED THAT THE SAID DOCUMENT WAS IN FACT NOT EVEN FOUND FROM T HE POSSESSION OF THE APPELLANT. NONE OF THE PARTIES TO THE SO CALLED TR ANSACTION EVER STATED THAT ANY MONEY OVER AND ABOVE THE CONSIDERATION MENTIONED IN SALE DEED WAS PAID OR RECEIVED. III) THE ALLEGED APPLICATION OF EXCESS FUNDS IS NOT SUBSTANTIATED BY ANY EVIDENCE. IV) ENTIRE ADDITION IS BASED ON THE RETRACTED STATE MENT OF THE APPELLANT AND NO CORROBORATIVE EVIDENCE WAS BROUGHT ON RECORD. EVEN THE INSTANCES POINTED OUT BY THE ASSESSING OFFICER IN HIS REMAND REPORT G O TO SUPPORT THE CASE OF THE APPELLANT BECAUSE IN NO OTHER CASE ANY ADDITION WAS MADE WHILE FRAMING BLOCK ASSESSMENT UNDER SECTION 158BD OF THE ACT. T HE ASSESSING OFFICER HAS POINTED OUT IN HIS REMAND REPORT THAT LAND AT SOLA ROAD WAS SOLD AT RS.1 000/- PER SQ.YD. HOWEVER EVEN IN THAT CASE NO ADDITION H AS BEEN MADE BECAUSE IT WAS FOUND THAT THE SAID OVER VALUATION WAS MADE SIM PLY FOR THE PURPOSES OF OBTAINING BANK ADVANCES. IN FACT NO ADDITION WAS M ADE IN BLOCK ASSESSMENT AFTER MAKING SPECIFIC QUERIES IN THIS REGARD. V) THERE IS NO EVIDENCE TO SUGGEST ANY MONTHLY CASH PAYMENT AS ALLEGED BY THE ASSESSING OFFICER IN THE REMAND REPORT. THE AS SESSING OFFICER HAS POINTED IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 7 OUT THAT A DOCUMENT WAS SEIZED SHOWING CASH PAYMENT OF RS.5 LAKHS FROM THE RESIDENCE OF SHRI CHIMANLAL AGARWAL. HOWEVER THIS PAYMENT IS PART OF THE CONSIDERATION RECORDED IN THE SALE DEED IN WHICH TH ERE IS MENTION OF THIS PAYMENT. THUS THE ALLEGED DOCUMENT DOES NOT PROVE ANYTHING AGAINST THE APPELLANT AS IT REPRESENTS RECORDED PAYMENT RELATIN G TO SALE OF LAND. VI) IT IS SEEN THAT AFTER THE APPELLANT RETRACTED H IS STATEMENT GIVEN AT THE TIME OF SEARCH AND THE WITNESS ALSO STATED THAT THE STA TEMENT WAS RECORDED UNDER COMPULSION NONE OF THEM WERE EXAMINED TO REBUT THE RETRACTION AFFIDAVIT OR THE STATEMENT FURNISHED BY THE WITNESS. VII) ONCE THE STATEMENT WAS RETRACTED THE ASSESSIN G OFFICER REFERRED THE MATTER TO THE DEPARTMENTAL VALUATION CELL TO FIND O UT THE FAIR MARKET VALUE OF LAND. THE RELEVANT PORTION OF THE LETTER WRITTEN B Y THE DISTRICT VALUATION OFFICER BY THE ASSESSING OFFICER IS AS UNDER : DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHR I CHATURBHAI BABABHAI PATEL SOME INCRIMINATING DOCUMENTS WERE FO UND AND SEIZED. ON THE BASIS OF THE DOCUMENT STATEMENT OF SHRI CHA TURBHAI B.PATEL WAS RECORDED. IN VIEW OF THIS STATEMENT SHRI CHATU RBHAI B.PATEL AFFIRMED THAT THE LANDS WERE SOLD AT THE RATE OF RS .450/- PER SQ.MT. WHILE IN THE SALE DEED IT WAS MENTIONED @ 150/- PER SQ.MT. AFTER THIS SEARCH SHRI CHATURBHAI B.PATEL RETRACTED THIS AFFI RMATION BY FILING AN AFFIDAVIT. IN THIS AFFIDAVIT SHRI CHATURBHAI B.PAT EL CONTENDED THAT THE STATEMENT RECORDED DURING THE COURSE OF SEARCH WAS BY COMPULSION AND BY THREAT. THEREFORE THIS STATEMENT WAS INVOL UNTARY AND COULD NOT BE RELIED UPON. THE ASSESSEE FURTHER ARGUED THAT W HILE FIXING THE PREMIUM THE COLLECTOR HAS PASSED THE ORDER ADOPTING THE MARKET PRICE AT RS.200/- AND RS.185 PER SQ.MTR. IN VIEW OF THIS ORDER THE STATEMENT GIVEN BY SHRI CHATURBHAI B.PATEL IS CONTRARY TO THE COLLECTORS ORDER. THE ASSESSEE FURTHER ARGUED WHEN THERE ARE TWO CONT RARY EVIDENCES IT SHOULD BE REFERRED TO THE THIRD PARTY WHO CAN DECID E THE ISSUE AFRESH. I THEREFORE REFER THIS ISSUE TO VALUATION OFFICER TO VALUE THE FAIR MARKET PRICE AS ON 3/4/1997 OF THE FOLLOWING LANDS. THE ABOVE SHOWS THAT THE ISSUE WAS REFERRED TO THE VALUATION CELL TO DETERMINE THE CORRECT VALUE OF THE LAND. THE DISTRICT VALUAT ION OFFICER WORKED OUT THE FAIR MARKET VALUE OF LAND INCLUSIVE OF PREMIUM PAYABLE T O THE COLLECTOR WHICH IS ALMOST IN CONFORMITY WITH THE VALUE SHOWN IN THE SA LE DEED. THE FACT REGARDING THE VALUATION MADE HAS BEEN TOTALLY IGNOR ED BY THE ASSESSING OFFICER THROUGH IT FORMS PART OF THE RECORD. IT IS ALSO SE EN THAT PART OF THE SAME PROPERTY WHICH WAS PURCHASED BY AGRAWAL GROUP FROM THE APPELLANT WAS SOLD AT THE RATE OF RS.185/- PER SQ.MT. AND CLEARANCE WA S ISSUED BY THE APPROPRIATE AUTHORITY VIDE THEIR ORDER DATED 15/3/ 2000 WHILE SEEKING THE REMAND REPORT THE ASSESSING OFFICER WAS ASKED TO CL ARIFY THE JUSTIFICATION FOR ADOPTING A HIGHER RATE WHEN THE RATE OF SALE WAS A S PER COLLECTORS ORDER AND WAS ALSO IN CONFORMITY WITH THE VALUATION MADE BY THE DISTRICT VALUATION OFFICER AND THE CERTIFICATE ISSUED BY THE APPROPRIA TE AUTHORITY. THE ASSESSING OFFICER HAS ONLY REITERATED THAT THE VALUE HAS BEEN WORKED OUT ON THE BASIS OF THE STATEMENT OF THE APPELLANT AT THE TIME OF SEARC H AND NO FURTHER COMMENTS COULD BE MADE. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 8 VIII) WHILE SEEKING REMAND REPORT THE ASSESSING OFF ICER WAS ALSO INFORMED THAT INCOME IN THIS CASE WAS FROM CAPITAL GAINS AND ONCE THE MATTER WAS REFERRED TO VALUATION CELL VALUE SO DETERMINED WAS BINDING I N VIEW OF THE SECTION 55 A OF THE ACT. HOWEVER NO COMMENTS HAVE OFFERED IN T HIS REGARD. IX) IN HIS REMAND REPORT THE ASSESSING OFFICER HAS POINTED THAT SIMILAR ADDITIONS WERE MADE IN THE CASE OF SHRI CHIMANLAL AGARWAL AND OTHERS WHERE THE RESPECTIVE PERSONS HAD GONE TO SETTLEMENT COMMISSIO N AND THE PETITIONS WERE ADMITTED. IN THIS REGARD IT IS SEEN THAT ADD ITIONS IN THEIR CASES WAS SOLELY BASED ON THE RETRACTED STATEMENT OF THE APPE LLANT AND CHOSE PERSONS HAVE NOT OFFERED ANY ADDITIONAL INCOME IN RESPECT O F THIS TRANSACTION AS THE ISSUE HAD TO BE DECIDED IN THE CASE OF THE APPELLAN T. IT WAS ALSO POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE SAID ORDERS WERE PASSED AFTER THE DATE OF FILING OF SETTLEMENT PETITION AND AS SUCH WERE WITHOUT JURISDICTION IN VIEW OF ORDER OF SPECIAL BENCH OF S ETTLEMENT COMMISSION IN THE CASE OF DAMANI BROS. 104 TAXMAN 203 (ITSC) (SB) AND THUS IT COULD NOT FORM ANY BASIS FOR TAKING ANY VIEW IN THE APPELLANTS CA SE. ALL THE ABOVE SHOWS THAT THE ADDITION WAS NOT BASED ON ANY EVIDENCE BUT ONLY ON THE RETRACTED STATEMENT OF THE APPELLANT. THE RA TE ADOPTED BY THE ASSESSING OFFICER IS ALSO ARBITRARY AS IN RESPECT O F LAND IN THE IMMEDIATE VICINITY THE ASSESSING OFFICER HIMSELF ACCEPTED SIM ILAR RATES IN RESPECT OF BLOCK ASSESSMENT. THE RATE OF SALE OF LAND IS IN CONFORM ITY WITH THE RATES ACCEPTED BY THE ASSESSING OFFICER AND THE RATE ADOPTED BY TH E COLLECTOR DISTRICT VALUATION OFFICER AND THE APPROPRIATE AUTHORITY. T HERE IS NOTHING TO SHOW THAT ANYTHING OVER AND ABOVE THE APPARENT CONSIDERATION WAS PAID OR RECEIVED. THUS I FIND NO MERIT IN ADOPTING A RATE OF RS.450/- PER SQ.MT. WHICH NEITHER TALLIES WITH THE SEIZED DOCUMENTS NOR WITH THE VALU ATION REPORT OF THE DISTRICT VALUATION OFFICER WHICH WAS BINDING IN NATURE. IN THE CASE OF GAURANG B.SOLNAKI VS. ACIT REPORTED IN 120 TAXMAN 162 IN T HIS CASE THE AHMEDABAD BENCH OF INCOME-TAX APPELLATE TRIBUNAL THE FACTS A ND FINDINGS OF THE CASE ARE AS UNDER : AS REGARDS MERITS OF THE CASE THE ADDITION WAS ME RELY ON THE BASIS OF SURMISES CONJECTURES AND PRESUMPTIONS. IT WAS UNDI SPUTED THAT NO TANGIBLE ASSETS IN THE FORM OF UNEXPLAINED INVESTME NTS CASH ETC. WERE FOUND AT THE TIME OF SURVEY WHICH WAS SUBSEQUENTLY CONVERTED IN TO A SEARCH AND SEIZURE OPERATION IN THE CASE OF THE ASS ESSEE AS WELL AS HIS FATHER EXCEPT CASH OF RS.3 25 000/- WHICH WAS ADMI TTED BY FATHER AS BELONGING TO HIM AND NOT THE ASSESSEE. IT WAS NO DO UBT TRUE THAT THE ASSESSEE HAD SOLD 8 PLOTS BELONGING TO HIM WHICH WE RE RECEIVED BY HIM FROM HIS GRAND-MOTHER IN TERMS OF A WILL AND OU T OF SIX PLOTS MENTIONED IN THE SEIZED PAPER CHEQUE PAYMENTS IN R ELATION TO FIVE PLOTS WERE THE SAME AS SHOWN IN THE SALE DETAILS. H OWEVER IN RESPECT OF SIX PLOT THERE WAS A VARIATION INASMUCH AS THA T IN THE SEIZED PAPER THE CHEQUE PAYMENT OF RS.1 97 451/- WAS MENTIONED WHEREAS ACTUAL SALE DEED WAS TO THE EXTENT OF RS.2 80 876/-. THE A SSESSING OFFICER HAD ACCEPTED THE SALE RATE SHOWN BY THE ASSESSEE IN RESPECT OF REMAINING TWO PLOTS WHICH WERE SOLD BY THE ASSESSEE FOR A SALE CONSIDERATION OF RS.6 13 334/- WHOSE PRICE WAS ADO PTED BY THE IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 9 ASSESSEE IN RESPECT OF REMAINING TWO PLOTS WHICH ER E SOLD BY THE ASSESSEE FOR A SALE CONSIDERATION OF RS.6 13 334/- WHOSE PRICE WAS ADOPTED BY THE ASSESSING OFFICER AT RS.3673200/- ON THE BASIS OF FIGURES GIVEN IN THE SEIZED PAPER IN THE ASSESSMENT ORDER AND THAT ASSESSMENT ORDER WAS SUBSEQUENTLY RECTIFIED BY THE ASSESSING OFFICER HIMSELF BY AN ORDER UNDER SECTION 154. BEFORE THE T RIBUNAL THE ASSESSEE HAD FILED COMPARABLE SALE INSTANCES RELATI NG TO THE PLOTS IN THE VICINITY OF PLOTS BELONGING TO THE ASSESSEE TO INDICATE THAT THE SALE PRICE PREVALENT DURING THE RELEVANT PERIOD VARIED F ROM RS.250/- TO RS.300/- PER SQ.MT. AND IT WAS NOWHERE NEAR RS.1200 /- PER SQ.YD. AND MENTIONED IN THE SEIZED PAPER. NONE OF THE PARTIES WHO HAD PURCHASED THE PLOTS HAS ADMITTED HAVING PAID ANY `ON MONEY T O THE ASSESSEE RELATING TO THE TRANSACTIONS OF SALE OF THESE PLOTS BY THE ASSESSEE. THE BUILDER HAD ADMITTED BEFORE THE ASSESSING OFFICER T HAT HIS ROLE IN THE TRANSACTIONS WAS THAT A MEDIATOR WHO GOT CONVERSION OF AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND BEFORE ITS SALE. TH E ASSESSING OFFICER DID NOT ENQUIRE FROM THE BUILDER AS TO WHAT MONETARY BE NEFIT HE GOT FROM THEIR TRANSACTIONS BECAUSE THE SAID BUILDER COULD N OT HAVE ACTED AS A MEDIATOR FOR CHARITY SAKE BETWEEN THE ASSESSEE AND THE PURCHASERS OF THE PLOTS. ANYHOW THE FACT REMAINED THAT NONE OF THE PARTIES W AS INVOLVED IN THE TRANSACTIONS OF SALE OF PLOTS BY THE ASSESSEE TO TH E PURCHASERS VIZ ALL THE PURCHASERS THE BUILDER THE ASSESSEES FA THER AND THE ASSESSEE HIMSELF HAD ADMITTED THAT THE AMOUNT OF RS.45 LACS CASH HAD BEEN RECEIVED BY THE ASSESSEE OR GIVEN BY ANY OF THE PAR TIES TO THE ASSESSEE. FURTHER THERE WAS NO EVIDENCE ON RECORD TO SHOW TH AT THE ASSESSEE IN FACT HAD RECEIVED THE ALLEGED ON MONEY PAYMENT OF R S.45 LACS IN RESPECT OF THE PLOTS SOLD BY HIM. THERE WAS NO PRE VALENCE `ON MONEY IN REAL ESTATE/SALE OF PLOTS IN THE REAL ESTATE BUS INESS BUT ADDITION ON ACCOUNT OF `ON MONEY PAYMENTS WOULD NOT BE JUSTIFI ED EVEN OF GENERAL NOTE WAS TAKEN OF WHAT WAS DESCRIBED BY THE REVENUE AUTHORITIES AS NOTORIOUS PRACTICE IN THE ABSENCE OF TANGIBLE EVID ENCE. THE ONLY EVIDENCE AVAILABLE IN THE INSTANT CASE WAS SOME NOT INGS ON THE SEIZED PAPER WHICH WERE NOT IN THE HAND-WRITING OF THE ASS ESSEE OR ANY OF HIS FAMILY MEMBERS NOR THE NAME OF THE ASSESSEE OR ANY MEMBER OF HIS FAMILY WAS WRITTEN ON THE PAPER WHICH WAS ALSO NOT FOUND FROM THE POSSESSION OF THE ASSESSEE OR FROM HIS PREMISES BUT FROM THE PREMISES OF A THIRD PARTY VIZ.. A BUILDER. NO TANGIBLE ASSE TS IN THE FORM OF UNEXPLAINED INVESTMENTS WERE FOUND AT THE TIME OF S EARCH OF THE ASSESSEE CONSEQUENT TO SEARCH AND SEIZURE OPERATION S IN THE CASE OF BUILDER WHICH COULD JUSTIFY THE ADDITION OF RS.45 L ACS. THUS KEEPING IN VIEW OF THE TOTALITY OF THE FATS A ND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER WAS NOT JUSTIFIED I N MAKING THE DISPUTED ADDITION OF RS.45 LACS ON ACCOUNT OF ALLEGED UNDER- STATEMENT OF SALE CONSIDERATION IN RELATION TO SIX PLOTS SOLD BY THE ASSESSEE. ACCORDINGLY THE ASSESSING OFFICER WAS DIRECTED TO TAKE THE SALE CONSIDERATION AS IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 10 PER THE SALE DEEDS IN RELATION TO SIX PLOTS OF LAND FOR THE PURPOSE OF CALCULATING THE CAPITAL GAINS. X) EVEN THE OBSERVATION REGARDING INVESTMENT IN TEL AV LAND IS SOLELY BASED ON THE RETRACTED STATEMENT OF THE APPELLANT AND NO ENQ UIRY OF ANY SORT HAS BEEN MADE BY THE ASSESSING OFFICER. THE LAND IN QUESTION WAS NOT EVEN REFERRED TO VALUATION AND THERE WAS NOTHING TO SHOW THAT ANYTHI NG OVER AND ABOVE THE AMOUNT MENTIONED IN SALE DEED WAS PAID OR RECEIVED. SO FAR AS THE ALLEGED SEIZED DOCUMENT IS CONCERNED IT IS SEEN THAT THE DOCUMENT DOES NOT EVEN BEAR THE LOCATION OR SURVEY NUMBER OF THE PROPERTY THERE IS NO MENTION OF ANY PARTYS NAME IT IS UNDATED AND IT IS NOT EVEN THE HANDWRITING OF THE APPELLANT OR HIS FAMILY MEMBERS. IT IS ALSO SEEN THAT EVEN TH E ARE OF LAND MENTIONED ON THIS DOCUMENT DOES NOT TALLY WITH THE AREA OF TELAV LAND WHICH WAS ALLEGEDLY PURCHASED OUT OF UNACCOUNTED FUNDS. THE VARIOUS ARE AS OF LAND MENTIONED ON SEIZED DOCUMENT PAGE 119 IS 67947.62 SQ.YDS. 69215 .59 SQ.YDS. AND 56812.39 SQ.YDS. AND THERE IS NO MENTION OF ANY SUR VEY NUMBER OR LOCATION OF LAND. THE AREA OF LAND PURCHASED AT TELAV WAS 5787 2 SQ.YDS. WHICH DOES NOT TALLY WITH ANY OF THESE FIGURES. THEREFORE THE SAI D DOCUMENT CANNOT BE SAID TO BE RELATED TO TELAV LAND AND COULD NOT BE RELIED. IT IS ALSO SEEN THAT THESE LAND WAS PURCHASED IN 1996 WHEREAS THE LAND SOLD B Y THE APPELLANT WAS IN THE MONTH OF APRIL 1997 AND HENCE IT COULD NOT BE SAID THAT IT WAS APPLICATION OF UNACCOUNTED FUNDS RECEIVED BECAUSE FUNDS MUST HA VE BEEN RECEIVED EITHER AT THE TIME OF SALE OR AT A NEARBY DATE. I T IS ALSO SEEN THAT LAND AT TELAV WAS IN THE NAME OF APPELLANTS DAUGHTER AND WAS PUR CHASED BY HER. IN ABSENCE OF ANY MATERIAL TO SHOW THAT THIS LAND WAS PURCHASED AT A HIGHER RATE THE OBSERVATION MADE BY THE ASSESSING OFFICER CANNO T BE SUSTAINED. THE ACTUAL OWNER HAS CLAIMED THAT THIS LAND WAS PURCHAS ED FORM VARIOUS PERSONS FOR A SUM OF RS.8.65 LACS AND WAS OUT OF HER OWN FU NDS. AS THERE IS NOTHING TO PROVE THAT THE LAND WAS PURCHASED FORM THE FUND S OF THE APPELLANT AND THAT TOO AT SUCH A HIGH RATE IT HAS TO BE HELD THAT THE LAND WAS PURCHASED BY THE REAL OWNER ONLY FOR A SUM OF RS.8.65 LAKHS AS NOTHI NG HAS BEEN BROUGHT ON RECORD TO SHOW THAT ANYTHING OVER AND ABOVE THIS AM OUNT WAS PAID. THE OBSERVATION OF THE ASSESSING OFFICER IS THEREFORE IRRELEVANT AND NOT SUPPORTED BY ANY EVIDENCE AND CANNOT HAVE ANY BEARING ON DETE RMINATION OF INCOME. XI) SO FAR AS THE APPLICATION OF FUNDS TOWARDS GIFT TO SISTER IS CONCERNED THE SAME IS AGAIN BASED ON THE RETRACTED STATEMENT AND THE ASSESSING OFFICER HAS NOT EVEN CARED TO MAKE ANY ENQUIRY IN THIS REGARD. EVEN THE NAME OF THE SO CALLED SISTERS TO WHOM AN AMOUNT OF RS.40 LAKHS WAS GIFTED HAS NOT BE BROUGHT ON RECORD EITHER AT THE TIME OF ASSESSMENT OR IN THE REMAND REPORT. HENCE THIS FINDING IS ALSO IRRELEVANT. XII) SO FAR AS DEPOSITS IN BANK TO THE TUNE OF RS.4 0 LAKHS IS CONCERNED THE SAME WAS EXPLAINED IN DETAILS AT THE TIME OF ASSESS MENT THAT IT WAS OUT OF SALE PROCEEDS OF LAND WHICH WAS RECEIVED IN INSTALM ENT. THE SAME WERE ALSO KEPT IN FDS AND THE MONEY RECEIVED ON VARIOUS DATES TILL THE DATE OF SALE WAS DEPOSITED IN THIS ACCOUNT. THIS SUM IS APPARENTLY O UT OF DECLARED SALE CONSIDERATION AND NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 11 XIII) THE ASSESSING OFFICER HAS POINTED OUT THAT A SUM OF RS.40 LAKHS WAS INVESTED IN PROPERTIES IN HIS NAME AND IN HIS WIFE S NAME. HOWEVER NO SUCH PROPERTY HAS BEEN IDENTIFIED. THE ONLY PROPERTY ID ENTIFIED IN THE REMAND REPORT IS AT BHAVNAGAR VILLAGE IN RESPECT OF THE PROPERTY THE VALUE MENTIONED ON THE BANAKHAT IS ONLY RS.95 786/- OUT OF WHICH THE PAYME NT SHOWN IS ONLY RS.50 000/-. THUS THERE IS NOTHING TO SHOW THAT A SUM OF RS.40 LAKHS WAS INVESTED IN ANY PROPERTY. XIV) BESIDES THIS OTHER INVESTMENTS LIKE GIFTS TO SCHOOL GRAVEYARD TEMPLE ETC. ARE ALSO NOT SUPPORTED BY ANY EVIDENCE BUT SOLELY O N THE RETRACTED STATEMENT OF THE APPELLANT. XV) INVESTMENT IN ESCORT CAR TATA SIERRA AND TRAC TOR AND TROLLY WERE ALSO DULY EXPLAINED AND THERE IS NOTHING TO SHOW THAT THESE P URCHASES OUT OF UNDISCLOSED FUNDS. XVI) IN THE CASE OF APPELLANTS DAUGHTER WHERE PAR T OF SURVEY NO.268 WAS SOLD NO ADDITION ON ACCOUNT OF UNDERSTATEMENT OF C ONSIDERATION WAS MADE IN BLOCK ASSESSMENT EVEN THOUGH IT WAS PART OF SURVEY NO.268 SOLD BY THE APPELLANT. 9.2. IN VIEW OF THE FACTS AS STATED ABOVE AND THE D ECISIONS OF THE INCOME-TAX APPELLATE TRIBUNAL I FIND NO JUSTIFICATION FOR THI S ADDITION AND THE SAME IS DELETED. AGGRIEVED NOW REVENUE CAME IN APPEAL BEFORE US. 4. BEFORE US LD CIT-DR SHRI ALOK JHORI FIRST OF AL L STATED THAT THIS UNDISCLOSED INCOME WAS ADDED ON THE BASIS OF LOOSE PAPERS FOUND DURING THE COURSE OF SEARCH INVENTORIZED AS ANNEXURE-A/1 PAGE 115 WHERE THE FA CTS REGARDING THE SALE OF AGRICULTURAL LAND TO CHIMANLAL AGARWAL GROUP IS CLE ARLY NOTED. ACCORDING TO LD. CIT- DR THERE IS CLEAR-CUT NOTINGS IN THIS PAPER THAT T HE TOTAL CONSIDERATION OF SALE WAS AT RS.5 96 23 200/- FOR AGRICULTURAL LAND OF 1 32 496 SQ.YD WHICH GIVES THE SALE RATE AT 450/- PER SQ.YD. THE LD CIT-DR FURTHER STATED THAT ASSESSING OFFICER HAS CATEGORICALLY RECORDED THE FACT THAT THE ASSESSEE H AS MADE INVESTMENT OF THIS UNDISCLOSED SALE CONSIDERATION RECEIVED ON ACCOUNT OF SALE OF AGRICULTURAL LAND FOR AN AMOUNT OF RS.3 67 45 569/- WHICH IS GIVEN AT PAGE-4 OF THE ASSESSMENT ORDER WHICH DETAILED OUT EACH ENTRY REGARDING INVESTMENTS LIKE PURCHASE OF AGRICULTURAL LAND GIFTS TO SISTER ETC. AND PURCHASE OF OTHER AS SETS. LD CIT-DR ALSO RELIED ON THE STATEMENTS OF THE ASSESSEE RECORDED DURING THE COUR SE OF SEARCH ON 25-09-1998. LD CIT-DR FURTHER STATED THAT THE SEARCH WAS OFF SHOOT OF SEARCH ALREADY TAKEN PLACE IN THE CASE OF CHIMANLAL AGARWAL GROUP ON 06-08-1998. THE LD CIT-DR STATED THAT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 12 CIT(APPEALS) HAS NOT GONE INTO THE STATEMENT OF ASS ESSEE WHICH WERE RECORDED AT THE TIME OF SEARCH ON 25-09-1998 WHEREIN THE ASSES SEE CLEARLY ADMITTED TO HAVE SOLD THE LAND @ 450/- PER SQ.YD. WHICH IS SUPPORTED BY THE SEIZED PAPER INVENTORIZED AS ANNEXURE-A/1 PAGE 115 WHEREIN THE ASSESSEE HAS RECORDED THE TOTAL SALE CONSIDERATION AT RS.5 96 23 200/-. HE FURTHER STATE D THAT CIT(A) HAS WRONGLY PLACED RELIANCE ON THE ALLEGED RETRACTION FILED THROUGH AF FIDAVIT DATED 26-09-1998. ACCORDING TO HIM THE ASSESSEE IN STATEMENT BEFORE THE SEARCH PARTY CLEARLY ADMITTED TO HAVE SOLD THE LAND @ 450/- PER SQ.YD. TO CHIMAN LAL AGGA RWAL GROUP. HE REFERRED TO PAPER BOOK NO.6 OF THE ASSESSEE WHEREIN TRUE TRANSLATION IN ENGLISH IS MADE FROM VERNACULAR LANGUAGE. THIS STATEMENT WAS RECORDED ON 25-09-1998 AT 3 P.M. HE REFERRED THE Q.17 AT PAGE-8 OF ASSESSEES PAPER BOO K REGARDING SALE OF AGRICULTURAL LAND AT SURVEY NO.13 OF 1 32 496 SQ.YD. AND RELEVAN T QUESTION AND ANSWER 7 WHICH READS AS UNDER:- Q. 7 GIVE THE DETAILS OF PURCHASE/SALE OF LAND BY YOU. A. 7 BEFORE ABOUT FOUR TO FIVE YEARS I HAD SOLD AF ORESAID MAKARBA LAND AD MEASURING 25 TO 30 BIGHAS TO SHRI CHIMANBHAI AGARWA L HAVING HIS OFFICE IN BLUE STAR BUILDING BY WAY OF AN AGREEMENT FOR SALE AT THE RATE OF RS.150.00 PER SQUARE YARD WHEREIN I HAD RECEIVED CHEQUES OF R S.20 000.00 AND CASH OF RS.1.5 CRORE ON PIECEMEAL BASIS. I HAVE EXECUTED FI NAL DOCUMENT OF SAID LAND IN HIS FAVOUR AND SOME AMOUNT HAS YET TO BE RECOVER ED BY ME FROM HIM. HOW MUCH I HAVE TO RECOVER FROM HIM TOWARDS SAID LAND THAT I DO NOT REMEMBER. AGAINST THAT AT THE RATE OF RS.5 LACS PER VIGHA I HAVE PURCHASED TOTAL 24 VIGHAS OF LAND IN THE NAME OF MY DAUGHTER AT VILLAG E TELAV TALUKA SANAND DISTRICT SANAND INCONSIDERATION OF RSA.1.2 CRORE (O NE CRORE TWENTY LACS) FROM SHRI SHAHBHAI HAVING HIS OFFICE OPPOSITE VS HOSPITA L ELLIS BRIDE GARNALA BY MAKING PAYMENT OF THE WHOLE AMOUNT IN CASH. LD CIT-DR IN VIEW OF THE ABOVE ARGUED THAT THE AS SESSEE CLEARLY ADMITTED HAVING SOLD THE LAND @ RS.450/- PER SQ.YD. AND THIS IS ALS O EVIDENCED BY SEIZED PAPER ANNEXURE-A/1 PAGE 115 WHEREIN THE TOTAL CONSIDERAT ION TO BE RECEIVED IS RECORDED AT RS.5 96 23 200/- FOR THE LAND OF RS.1 32 496/- SQ.Y D RATE FOR WHICH ALMOST COMES TO RS.450/- SQ.YD. LD CIT-DR STATED THAT CIT(A) HAS WR ONGLY DELETED THE ADDITION BY WRONGLY RELYING ON RETRACTION VIDE AFFIDAVIT FILED ON 26-09-1998. 5. THE LD. COUNSEL FOR THE ASSESSEE SHRI DHIREN SH AH NARRATED THE FACTS THAT THE SEIZED LOOSE PAPER ANNEXURE-A/1 PAGE 115 IS A LETTE R HEAD OF TAJ MAHAL HOTEL AGRA AND NOT IN THE LETTER HEAD OF ASSESSEE OR THE PURCH ASER OF THE LAND. THIS LOOSE PAPER IS UNDATED AND NOT REGARDING MONEY TRANSACTIONS WH ETHER PAID OR RECEIVED. THIS IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 13 SEIZED DOCUMENT DOES NOT MENTION THE NAME OF THE PA RTY OR DOES NOT BEAR THE SIGNATURE OF ANY PERSON AND MOREOVER IT IS NOT IN T HE HANDWRITING OF THE ASSESSEE ITS FAMILY MEMBERS OR THE PURCHASER. HE STATED THAT NOW EVEN THE HONBLE SETTLEMENT COMMISSION HAS CONSIDERED THIS SEIZED PAPER IN THE SETTLEMENT PROCEEDINGS IN THE CASE OF CHIMANLAL AGGARWAL GROUP OF CASES AND THIS SEIZED PAPER HAS BEEN TOTALLY DISCARDED BY SETTLEMENT COMMISSION. AS REGARDS TO T HE STATEMENT OF ASSESSEE RECORDED ON THE DATE OF SEARCH ON 25-09-1998 HE ST ATED THAT THE HEALTH CONDITION OF ASSESSEE WAS VERY BAD AS HE WAS A CARDIAC PATIENT H AVING HIGH BLOOD PRESSURE AND PRIOR TO THE DATE OF SEARCH HE WAS ADVISED COMPLETE BED-REST. DURING SEARCH THE HEALTH OF THE ASSESSEE DETERIORATED FURTHER AND DOC TOR WAS CALLED BY THE AUTHORIZED OFFICER HIMSELF AND WAS GIVEN MEDICATIONS AND INJEC TABLE. ACCORDING TO HIM THIS STATEMENT RECORDED DURING THE COURSE OF SEARCH WAS WITHOUT PROPER SENSE AND NOT IN HEALTHY STATE-OF-MIND. THE ASSESSEE RETRACTED HIS S TATEMENT ON 26-09-1998 BY FILING A DECLARATORY AFFIDAVIT WHEN THE SEARCH PROCEEDING S WERE IN PROGRESS AND NO FURTHER STATEMENT OF THE ASSESSEE WAS RECORDED IN REGARD TO RETRACTION AFFIDAVIT FILED BY HIM. HE STATED THAT SUBSEQUENTLY THE ASSESSEES DAUGHTER SMT. INDERABEN H PATEL ALSO FILED AFFIDAVIT DATED 08-10-1998 WHICH WAS SUBMITT ED TO ADIT ON 14-10-1998 WHEREIN SHE HAS NARRATED THE COMPELLING CIRCUMSTANC ES UNDER WHICH HER FATHERS STATEMENT WAS RECORDED DURING SEARCH. THE AFFIDAVIT OF WITNESS SHRI KUVARBHAI B GAD DATED 12-10-1998 WAS ALSO FILED BEFORE ADIT ON 14-10-1998. HE STATED THAT THE WITNESS ALSO CONFIRMED THE CONTENTION OF THE ASSESS EE RETRACTING THE STATEMENT RECORDED ON 25-09-1998 DURING THE COURSE OF SEARCH UNDER COMPELLING CIRCUMSTANCES AND DETERIORATED HEALTH CONDITIONS. I N VIEW OF THESE FACTS THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE CONTENTS O F RETRACTION AFFIDAVIT WAS NOT CONTROVERTED EITHER BY THE ADIT OR BY THE ASSESSING OFFICER WHILE EXAMINING THE SEIZED LOOSE PAPERS AND DOCUMENTS TO BRING ON RECOR D ANY COGENT MATERIAL AND INDEPENDENT CLINCHING EVIDENCES TO SUPPORT THEIR CA SE. THE LD COUNSEL NARRATED THAT THE FIRST STATEMENT DATED 25-09-1998 WAS RECORDED A T 6.45 A.M. WHERE IN ANSWER TO QUESTION NO.7 IT HAS BEEN STATED THAT THE LAND IN M AKARBA HAS BEEN SOLD TO CHIMANLAL AGGARWAL BEFORE 4-5 YEARS WHICH MEANS IN 1993-94 WHICH IS FACTUALLY INCORRECT. ACCORDING TO ANSWER NO.9 THE LAND AT TEL AV HAD BEEN PURCHASED BY ASSESSEES DAUGHTER OUT OF THE SALE PROCEEDS OF ANC ESTRAL LAND AT MAKARBA VILLAGE AND THE BALANCE SURPLUS OF RS.30 LAKH WAS UTILIZED FOR THE PURPOSE OF TRACTOR TATA SIERA CAR AND OTHER AGRICULTURAL IMPLEMENTS. HE STA TED THAT FACTUALLY THIS IS INCORRECT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 14 AND THE ANCESTRAL LAND AT MAKARBA WAS SOLD TO CHIMA NLAL AGGARAL GROUP AFTER COLLECTORS ORDER DATED 13-02-1997 AND THE CONVEYA NCE DEED WAS EXECUTED ON 03- 04-1997 WHEREAS TELAV LAND WAS PURCHASED BY ASSESS EES DAUGHTER IN THE YEAR 1996 I.E. ON 12-07-1996. SIMILARLY TATA SIERA CAR WAS PURCHASED ON 16-08-1995 AND TRACTOR WAS PURCHASED ON 28-07-1998. HE STATED THAT THE PRESUMPTION OF THE ASSESSING OFFICER THAT OUT OF THE ALLEGED SALE CONS IDERATION OF RS.5 96 23 200/- AN AMOUNT OF RS.2.53 CRORES WAS ALREADY RECEIVED WHER EAS RS.3 43 23 200/- WAS YET TO BE RECEIVED. HE STATED THAT THE SEIZED LOOSE PAP ER PAGE NO.115 OF ANNEXURE-A/1 WAS RECORDED ONE YEAR BEFORE ON THE DATE OF SEARCH I.E. SEARCH ON 25-09-1998 THAT MEANS AS PER THE AUTHORIZED OFFICERS THE SAID SEIZ ED LOOSE PAPER WAS WRITTEN ON OR AROUND 25-09-1998 WHEREAS THE CONVEYANCE DEED FOR THE SALE OF LAND AT MAKARBA VILLAGE HAS BEEN EXECUTED BY THE ASSESSEE AND HIS D AUGHTER SMT. INDRABEN H PATEL WITH CHIMANLAL AGRAWAL GROUP ON 03-04-1997 AND THER EFORE IN RESPECT OF TRANSACTION OF LAND WHICH HAD ALREADY TAKEN PLACE A ND CONVEYANCE DEED HAS ALREADY BEEN EXECUTED ON 03-04-1997 SUBSEQUENTLY THE QUEST ION OF WRITING THE SAID PAGE NO.115 DOES NOT ARISE AT ALL AND THERE CANNOT BE AN Y LOGIC FOR MAKING JOTTINGS/NOTINGS ON ANY LOOSE PAPER AFTER THE CONVEYANCE DEED HAS AL READY BEEN EXECUTED ON 03-04- 1997 AND THEREFORE IN RESPECT OF TRANSACTION OF LAN D WHICH HAD ALREADY TAKEN PLACE AND CONVEYANCE DEED HAS ALREADY BEEN EXECUTED ON 03 -04-1997 SUBSEQUENTLY THE QUESTION OF WRITING THE SAID PAGE NO.115 DOES NOT A RISE AT ALL AND THERE CANNOT BE ANY LOGIC FOR MAKING JOTTINGS/NOTINGS ON ANY LOOSE PAPER AFTER THE CONVEYANCE DEED HAS ALREADY BEEN EXECUTED. NOW PRESUMING THAT IF THE SAID SEIZED LOOSE PAGE NO.115 WAS WRITTEN ON 25-09-1997 AND RS.2.53 CRORES HAS ALREADY BEEN RECEIVED THEN FROM THE ANALYSIS OF THE ANSWER NO.19 IT WORK S OUT THE UTILIZATION OF AMOUNT OF RS 2.53 CRORES AS UNDER:- AMOUNT RECEIVED RS.2 53 00 000 LESS:- I) TELEV LAND RS.1 21 00 000 II) COMPOUND WALL RS. 5 00 000 III) BORE EXP. RS. 1 50 000 IV) EXP/SIFT TO SISTER RS. 40 00 000 (APPROX. 30 TO 40 LAC) ------------------ RS. 1 67 50 000 UNIDENTIFIED AMOUNT FOR ITS UTILIZATION RS.85 50 000 FROM THE AFORESAID WORKINGS THERE REMAINS UNIDENTI FIED AMOUNT OF RS.85.50 CRORES OUT OF RS.2.53 CRORES FOR WHICH THE AUTHORIZED OFFI CER OF THE SEARCH HAS ALSO NOT PUT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 15 ANY QUESTION TO THE ASSESSEE AS WELL AS THE ASSESSE E HAS NOT STATED ANYTHING ABOUT THE SAME. THE LD. COUNSEL EXPLAINED THAT NO SUBSTAN TIAL WORTH OF UNEXPLAINED ASSETS HAVE BEEN FOUND DURING THE COURSE OF SEARCH IN THE FORM OF CASH GOLD ORNAMENTS JEWELLERY AS WELL AS OTHER SECURITIES AND INVESTMEN T AND THEREFORE ONE CANNOT STATE THAT THE CONTENTS OF THE STATEMENT DATED 25-09-1998 IS CORRECT. FURTHER AS REGARDS TO THE AMOUNT OF RS.3 43 23 200/- NOTHING HAS BEEN MEN TIONED IN THE STATEMENT DATED 25-09-1998 AND FROM ANSWER NO.16 OF THE STATEMENT IF RS.1 CRORES HAS BEEN CONSIDERED AS YET TO BE RECEIVED FROM CHIMANLAL AGR AWAL GROUP AS ON THE DATE OF SEARCH THEN THE WORKING FOR THE AFORESAID BALANCE AMOUNT WORKS OUT AS UNDER:- BALANCE AMOUNT IN SEIZED LOOSE PAPER PAGE 115 OF ANNEXIRFE-A/1 (BEFORE 1 YEAR OF SEARCH DATE) R S.3 43 23 200 LESS: I) AMOUNT YET TO BE RECEIVED FROM CHIMALLAL AGRAWAL GROUP ON THE DATE OF SEARCH 25/9/98 RS.1 00 00 00 0 AMOUNT ALREADY RECEIVED IN LAST ONE YEAR WHICH IS RS.2 43 23 200 UNIDENTIFIED FOR ITS UTILIZATION AS WELL AS NO UNEX PLAINED ASSETS IN THE FORM OF CASH/JEWELLERY OR OTHER INVESTMENTS ARE FOUND IN THE SEARCH 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE WE HAVE ALSO PERUSED TH E CASE RECORDS INCLUDING THE BLOCK ASSESSMENT ORDER THE ORDER OF LD.CIT(A) THE DOCUMENTS FILED BY THE REVENUE AS WELL AS BY THE ASSESSEE AND THE PAPER BOOKS FILE D BY THE ASSESSEE. THE SEARCH CONDUCTED U/S 132 ON THE PREMISES OF THE ASSESSEE O N 25-09-1998 WAS AN OFF-SHOOT OF SEARCH CONDUCTED IN THE CASE OF CHIMANLAL AGARWA L GROUP OF CASES ON 06-08- 1998. DURING THE COURSE OF SEARCH ON ASSESSEE DOCU MENT PAGE NO.115 OF ANNEXURE A-1 WAS FOUND AND SEIZED WHICH REVEALED THAT THE AS SESSEE ACCORDING TO THE REVENUE HAD ENTERED INTO TRANSACTION OF SALE AND P URCHASE OF LAND AT VILLAGE MAKARBA I.E. HIS ANCESTRAL AGRICULTURAL LAND. AS P ER THIS SEIZED PAPER NOTED ABOVE THE ASSESSEE HAS RECEIVED A CONSIDERATION OF RS.5 9 6 23 200 ON ACCOUNT OF SALE OF LAND ADMEASURING 1 32 492 SQ.YDS. ACCORDING TO THE SEIZED PAPER THE ASSESSEE HAS ALREADY RECEIVED A SUM OF RS.2.53 CRORES AND TH E BALANCE RS.3 43 23 200 WAS RECEIVABLE. THE REVENUES ALLEGATION WAS THAT THE ASSESSEE HAS SOLD THIS LAND TO CHIMANLAL AGARWAL GROUP OF CASES FOR A SUM OF RS.5 96 23 200 BUT THE SAME WAS RECORDED IN THE SALE DEED AT RS.1 77 90 330. THE R EVENUE HAS ALSO BROUGHT OUT THAT THIS DOCUMENT FOUND AND SEIZED DURING THE COURSE OF SEARCH IS AUTHENTICATED IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 16 DOCUMENT FOR THE REASON THAT THE ASSESSEE VIDE PREL IMINARY STATEMENT DATED 25-09- 1998 BEFORE THE START OF THE SEARCH ADMITTED TO HA VE SOLD THE LAND @ RS.450 PER SQ.YD INSTEAD DOCUMENTED VALUE AT RS.150 PER SQ.YD. THE ASSESSEES CONTENTION WAS THAT IN THE PRELIMINARY STATEMENT THE ASSESSE E NEVER ADMITTED OF HAVING SOLD THE LAND @ RS.450 PER SQ.YD; INSTEAD IT WAS CLEARLY STATED T HAT THE LAND WAS SOLD @ RS.150 SQ.YD. NOW WE WILL REFER TO THE RELEVANT ST ATEMENT AND QUESTION & ANSWER. WE HAVE SEEN THE PRELIMINARY STATEMENT RECORDED ON 25-09-1998 WHEREBY THE ASSESSEE SHRI CHATURBHAI B PATEL ADMITTED TO HAVE SOLD THE LAND @ RS.150 PER SQ.YD AND RECEIVED A SUM OF RS.2 CRORES FROM SHRI C HIMANLAL AGARWAL. THE RELEVANT QUESTION NO.2 AND ANSWER THE TRANSLATION OF RELEVA NT STATEMENT ENCLOSED AT PAGE 1 OF ASSESSEES PAPER BOOK NO.6 READ AS BELOW: Q.2 GIVE COMPLETE DETAILS OF YOUR LAND BY WAY OF S UCCESSION AND EXCEPT THAT LAND PURCHASED BY YOU AND THEREAFTER DETAILS OF TRANSACTION OF SALE PURCHASE OF THE LAND OF YOUR AN D YOUR FAMILY AND THE REMAINING LAND WITH YOU. A.2 BY WAY OF SUCCESSION FROM MY FATHER I HAD ACQ UIRED ABOUT 30 TO 40 VIGHAS OF THE LAND AND FROM THE SIDE OF MY MO THER I HAD ACQUIRED ABOUT 15 VIGHAS OF LAND IN MY NAME AND OUT OF THE A FORESAID LAND ABOUT 19 VIGHAS OF LAND WAS GIVEN TO MY FIRST WIFE SMRATHBEN FOR THE PURPOSE OF MAINTENANCE WHICH AFTER HER DEATH WERE TRANSFERRED IN THE NAME OF MY TWO DAUGHTERS JOINTLY ONE IN THE NAME OF HANSABEN AND OTHER INDIRABEN AND AFTER DEATH OF MY ONE DAUGHTER HANSABEN ILLEGIBLE AND THUS OUT OF THE LANDS SITUATED IN VILLAGE EXCEPT THE LANDS AS DESCRIBED BELOW REMAINING OTHER LANDS HAV E BEEN SOLD : 266 4.5 VIGHAS 55/2 55/3 66 63 62 66/2 22 4 VIGHAS 2.5 VIGHAS THUS TOTAL 11 VIGHAS OF LAND ARE WITH ME. IN THE A FORESAID LANDS WHICH ARE WITH ME OF SURVEY NO.266 WAS EARLIER SOLD BY M E TO CHIMANLAL AGARWAL BUT AFTER THE OPPOSITION OF MY SISTERS FIN AL DOCUMENT COULD NOT BE EXECUTED. REMAINING LANDS WERE SOLD BY ME IN TH E YEAR 93 TO 94 AND THOSE LANDS WERE SOLD BY WAY OF AN AGREEMENT FO R SALE WHICH WERE REGISTERED IN THE COLLECTOR OFFICE AT THAT TIME. S AID LANDS WERE SOLD AT THE RATE OF RS.150.00 PER SQUARE YARD AND I HAD REC EIVED ABOUT RS.2 CRORES WHICH I HAD RECEIVED FROM CHIMAN AGARWAL AND YET I HAVE NOT RECEIVED FULL AMOUNT FROM HIM AND REMAINING AMOUNT HAS BEEN PAID TO SOME EXTENT ON PIECEMEAL BASIS AND FOR TAKING AMOUN T OF THE SAID LAND IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 17 I AM VISITING THE OFFICE OF CHIMANLAL AGARWAL IN BL UE STAR BUILDING NEAR HIGH COURT CROSSING TIME AND AGAIN. BUT THE ASSESSEE VIDE FINAL STATEMENT RECORDED AT 6 .45 PM AFTER SEEING THE DOCUMENT VIDE ANSWER TO QUESTION NO.17 STATED THAT RATE DETERMINED WAS @ RS.450 PER SQ.YD WHICH READS AS BELOW: Q.17 AS PER ABOVE MENTIONED PAPER (ANNEXURE A-1 PA GE NO.115) TOTAL AREA OF SURVEY NUMBER 13 COMES TO 1 32 496 SQUARE YARD AT THE BOTTOM OF WHICH 5 96 23 20 IS WRITTEN. EXPLAIN ABOUT THE SAME. A.17 AFORESAID TRANSACTION BETWEEN US AND AGARWAL B UILDERS WAS DETERMINED AT RS.450/- PER SQUARE YARD. ACCORDINGL Y INITIALLY RS.5 96 23 200.00 WAS FIXED INITIALLY BUT THEREAFTE R IN VIEW OF THE DISPUTE IN SURVEY NUMBER 266 LEAVING THAT ALL THE REMAINING LANDS WERE SOLD AND THERE HAS BEEN DEDUCTION OF SOME LAND S BECAUSE OF THE REASON OF PIPE LINES OF ONGC. 7. WE FIND FROM THE RECORDS THAT THE ASSESSEE BEFOR E US CONTENDED THAT IN THE ORIGINAL STATEMENT I.E. THE PRELIMINARY STATEMENT WITHOUT ANY PROVOCATION OR WITHOUT ANY PRESSURE THE ASSESSEE STATED THAT HE HAS SOLD T HE LAND @ RS.150 PER SQ.YD BUT IN THE EVENING WHEN THE REVENUE PUT PRESSURE ON THE ASSESSEE AND AFTER SHOWING THE SEIZED DOCUMENT THE ASSESSEE ADMITTED HAVING S OLD THE LAND @ RS.450 PER SQ.YD. FOR THIS THE LEARNED COUNSEL FOR THE ASSES SEE STATED THAT IT IS AN ADMITTED POSITION THAT THE ASSESSEE WAS NOT IN GOOD HEALTH C ONDITIONS WHEN SEARCH PROGRESSED AND AUTHORISED OFFICER HIMSELF HAS CALLE D FOR THE DOCTOR DUE TO ASSESSEES DETERIORATED HEALTH AND HE WAS GIVEN MEDICATION AND INJECTIONS. ACCORDING TO THE LEARNED COUNSEL THE ASSESSEE WAS NOT IN A PROPER S ENSE AND COMFORTABLE STATE OF MIND WHO COULD RESPOND TO THE INTERROGATION FOR RE CORDING THE STATEMENT BY VIRTUE OF WHICH HE ADMITTED TO HAVE SOLD THE LAND @ 450/- PER SQ.YD. WE FIND THAT IT IS THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE IMMEDI ATELY ON THE SECOND DAY I.E. ON 26-09-1998 THE ASSESSEE RETRACTED THE STATEMENT REC ORDED U/S.132(4) OF THE ACT THAT HE HAS SOLD THE LAND @ 150/- PER SQ.YD. AND NOT @ 4 50/- PER SQ.YD BY FILING AN AFFIDAVIT BEFORE THE ADIT(INV) CONCERNED WHEN THE SEARCH PROCEEDINGS WERE CONTINUED TILL 20-11-1998 AND THE REVENUE AUTHORITI ES HAVE NEVER RECORDED A FRESH STATEMENT TO CONFIRM THE CONTENTS OF THE AFFIDAVIT OR TO CONTRADICT THE CONTENTS OF THE AFFIDAVIT. IN VIEW OF THESE FACTS NOW WE HAVE TO EXAMINE WHETHER THE ASSESSEES STATEMENT RECORDED ON 25-09-1998 I.E. THE SUBSEQUEN T STATEMENT IS CORRECT OR THE PRELIMINARY STATEMENT IS CORRECT WITH RESPECT TO T HE RATE OF TRANSACTION OF LAND STATED IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 18 BY HIM. IT IS A FACT THAT THE ASSESSEE IN THE PREL IMINARY STATEMENT HAS CLEARLY ADMITTED TO HAVE SOLD THE LAND TO CHIMANLAL AGARRWA L @ RS.150 PER SQ.YD BUT WHEN THE SEARCH PROCEEDINGS STARTED THE ASSESSEE WAS NO T FEELING GOOD AND WAS NOT IN GOOD HEALTH CONDITION AS HIS BLOOD PRESSURE RISEN A ND EVEN BEFORE THE SEARCH THE ASSESSEE WAS ADVISED BED REST. IT IS ALSO A FACT T HAT THE AUTHORISED OFFICER OF THE DEPARTMENT REQUIRED THE DOCTOR TO EXAMINE THE ASSES SEE AS HIS HEALTH CONDITION DETERIORATED DURING THE COURSE OF SEARCH AND HE WAS GIVEN MEDICATION AND INJECTIONS. NOW WE HAVE TO EXAMINE WHETHER THE SEIZED PAPER PAG E 115 OF ANNEXURE A-1 SEIZED DURING THE COURSE OF SEARCH FROM THE RESIDEN CE OF THE ASSESSEE IS A PIECE OF EVIDENCE WHICH CAN BE RELIED UPON FOR FRAMING BLOCK ASSESSMENT. THE ASSESSEE BY FILING AFFIDAVIT DATED 26-09-1998 I.E. IMMEDIATELY AFTER THE DATE OF SEARCH RETRACTED WHEN THE SEARCH WAS CONTINUING TILL 20-11-1998. EVE N THE ASSESSEES DAUGHTER SMT. INDRABEN H PATEL AND ONE OF THE WITNESSES SHRI KU VARBHAI DAD VIDE THEIR AFFIDAVITS DATED 08-10-1998 AND 12-10-1998 RESPECTIVELY CONFIR MED THE RETRACTION OF THE ASSESSEE STATING THE COMPELLING CIRCUMSTANCES UNDE R WHICH THE STATEMENT OF THE ASSESSEE WAS RECORDED AND THE AFFIDAVITS WERE SUBMI TTED BEFORE THE ADIT(INV) ON 14-10-1998 BEFORE THE CONCLUSION OF THE SEARCH. WE FIND THAT THE ADIT(INV) HAS NOT RECORDED THE STATEMENT EITHER OF THE ASSESSEE OR OF THE WITNESSES I.E. THE ASSESSEES DAUGHTER SMT. INDRABEN H PATEL OR THE WITNESS SHRI KUVARBHAI DADA. WE FIND THAT THE REVENUE HAS NOT CONTROVERTED THE RETRACTION AFF IDAVIT FILED BEFORE THE ADIT (INV) FROM THE DATE OF FILING OF AFFIDAVIT TILL THE PROCE EDINGS BEFORE US. 8. FIRST OF ALL IT IS TO BE MENTIONED THAT THE SETT LEMENT COMMISSION IN THE CASE OF PURCHASER OF THIS MAKARBA LAND I.E. CHIMANLAL AGARW AL GROUP OF CASES IN SETTLEMENT APPLICATION NOS 10/C/002/00-01/IT & ORS DATED 25-05 -2000 IN THE CASE OF SHRI NANDLAL J AGARWAL AND OTHERS THE SETTLEMENT COMMIS SION VIDE ORDER DATED 10-12- 2008 HAS DEALT WITH THE ISSUE AS UNDER: (II) ISSUE NO.2- UNACCOUNTED INVESTMENT IN PURCHASE OF L AND AT VILLAGE MAKARBA. DURING THE COURSE OF SEARCH IN CAG IT WAS NOTICED FROM THE LOOSE PAPERS THAT THE GROUP HAD PURCHASED 145776 SQ .YDS OF LAND IN VILLAGE MAKARBA OUT OF WHICH 96 923 SQ.YDS. BELONGED TO CHATURBHAI B PATEL WHO WAS ALSO SEARCHED U/S 132 OF THE ACT SUBSEQUENTLY ON 25.9.98. DURING THE COURSE OF SEAR CH AT THE PREMISES OF SHRI PATEL CERTAIN LOOSE PAPERS / INCR IMINATING DOCUMENTS WERE FOUND AND HIS STATEMENT WAS RECORDED IN WHICH IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 19 HE ADMITTED HAVING SOLD THE LAND TO CAG @450 PER SQ .YD. AND ALSO EXPLAINED THE UTILIZATION OF FUNDS. SHRI PATE L HOWEVER RETRACTED FROM HIS STATEMENT SUBSEQUENTLY AND STATE D THAT HE HAD NOT RECEIVED ANY ON MONEY ON THE SALE OF LAND TO CAG. BASED ON THE STATEMENT OF SHRI CHATURBHAI PATEL TH E DEPARTMENT CONTENDS THAT AN ADDITION OF RS.12 CRORE S SHOULD BE MADE IN RESPECT OF ENTIRE LAND PURCHASED BY CAG IN VILLAGE MAKARBA AS AGAINST THE ADDITION OF RS.79.58 LACS E ACH MADE IN THE CASES OF 3 PURCHASERS OF LAND WHO ARE APPLICANT S BEFORE US. 11.2 THE LEARNED AUTHORISED REPRESENTATIVE STRONGLY OBJECTED TO THE CONTENTION OF THE DEPARTMENT AND ARGUED THAT THERE BEING NO CASE FOR ADDITION OF RS.79.58 LACS MADE BY THE ASSESSING OFF ICER IN THE CASE OF EACH APPLICANT THE SAME IS REQUIRED TO BE DELETED. ACCORDING TO HIM THERE IS NO JUSTIFICATION FOR ANY ADDITION FOR THE FOLLOWING REASONS: I) THAT NO INCRIMINATING MATERIAL OR ANY EVIDENCE W AS FOUND DURING THE COURSE OF SEARCH IN CAG WHICH WOULD INDI CATE ANY UNACCOUNTED INVESTMENT BY THE APPLICANTS AND A S SUCH NO ADDITION CAN BE MADE IN BLOCK ASSESSMENT PROCEEDINGS. THE UNDISCLOSED INCOME WHICH CAN BE ASSESSED UNDER CHAPTER XIV-B SHOULD BE THAT AMOUNT WHICH IS COMPUTED ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH. II) THAT THE ASSESSING OFFICER HAD ISSUED A NOTICE U/S 142(1) OF THE ACT AND HAD DULY CONSIDERED APPLICANTS REPL Y BEFORE FINALIZING BLOCK ASSESSMENT ORDERS. HE HAD MADE THE ADDITION ONLY IN RESPECT OF LAND PURCHASED FROM SHRI CHATURBHAI B PATEL AND WAS SATISFIED WITH THE APPLI CANTS EXPLANATION IN REGARD TO THE REMAINING PARCELS OF L AND. THAT BEING SO THERE IS NO JUSTIFICATION FOR THE DE PARTMENT TO RAKE UP THE ISSUE IN REGARD TO OTHER PARCELS OF LAND NOW IN THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION . III) THAT SHRI CHATURBHAI B PATEL HAS ALREADY DENIE D HAVING RECEIVED ANY ON MONEY FROM THE APPLICANT AND HAS STATED THAT HE HAD SOLD THE LAND TO CAG @RS.150/- P ER SQ.YD. ONLY. IV) THAT THIS ISSUE WAS CONSIDERED IN DETAIL IN THE CASE OF SHRI CHATURBHAI B PATEL WHERE THE ASSESSING OFFICER HAD MAD4E A REFERENCE TO THE DVO U/S 55A OF THE ACT. T HE REPORT OF THE DVO ALSO CONFIRMS THAT THE CONSIDERAT ION SHOWN IN THE SALE DEED WAS IN ACCORDANCE WITH THE PREVAILING MARKET VALUE. V) THAT IN HIS CROSS EXAMINATION SHRI CHATURBHAI B PATEL HAS DENIED RECEIPT OF ANY ON MONEY ON THE SALE OF LAND TO CAG. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 20 VI) THAT IN THE CASE OF SMT. SATYAVATIBEN AGRAWAL WHO IS ONE OF THE CO-PURCHASERS OF LAND AN ADDITION WAS M ADE BY THE ASSESSING OFFICER IN THE BLOCK ASSESSMENT OR DER BUT THE SAME WAS DELETED IN APPEAL BY THE CIT(APPEA LS) FOLLOWING VALUATION REPORT OF THE DVO. 11.2.1 THE LEARNED AUTHORISED REPRESENTATIVE ALSO R EFERRED TO THE NOC ISSUED BY THE APPROPRIATE AUTHORITY U/S 269UL OF THE ACT IN RESPECT OF MAKARBA LAND AND RELIED UPON VARIOUS CAS E LAWS IN SUPPORT OF HIS ARGUMENT THAT NO ADDITION CAN BE MADE IN THE CASES OF THE APPLICANTS IN REGARD TO LAND AT MAKARBA. 11.2.2 THE LEARNED CIT(LEARNED DEPARTMENTAL REPRESE NTATIVE) HOWEVER CONTENDED THAT THE RETRACTION OF STATEMENT BY SHRI CHATURBHAI PATEL HAS TO BE IGNORED BECAUSE THERE WAS NO BASIS / JUSTIFICATION FOR SUCH RETRACTION. HE POINTED OUT THAT SHRI PATEL HA D NOT ONLY ADMITTED IN HIS STATEMENT HAVING SOLD THE LAND @RS.450/- PER SQ .YD. BUT HAD ALSO DISCLOSED AS TO WHERE THE AMOUNTS SO RECEIVED WERE INVESTED. 11.2.3 DECISION WE HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE THE STAND TAKEN BY THE DEPARTMENT ON THE ISSUE AS ALSO THE ARGUMENTS A DVANCED BY THE AUTHORISED REPRESENTATIVE OF THE APPLICANTS. THE L AND IN QUESTION WAS PURCHASED FROM SHRI CHATURBHAI PATEL BY FOUR PERSON S THREE OF WHOM ARE APPLICANTS BEFORE US. IN THE BLOCK ASSESSMENT PROCEEDING AN ADDITION OF RS.79.58 LACS HAS BEEN MADE IN THE CASE OF EACH APPLICANT. THE ADDITION MADE BY THE ASSESSING OFFICER IN THE B LOCK ASSESSMENT ORDER OF THE 4 TH PURCHASER I.E. SMT. SATYAWATIBEN AGARWAL HAS SINCE BEEN DELETED BY THE CIT (APPEALS). SHRI CHATURBHAI PATEL THOUGH INITIALLY ADMITTED HAVING SOLD THE LAND AT RS.450/- SQ.YD. BUT HE RETRACTED FROM HIS STATEMENT LATER ON AND ADDITION MADE IN HIS CASE HAS BEEN DELETED BY THE CIT(APPEALS) BECAUSE ON A REFE RENCE TO THE DVO U/S 55A OF THE ACT THE SALE CONSIDERATION WAS FOUN D TO BE REASONABLE. THIS APART NO INCRIMINATING MATERIAL OR EVIDENCE W AS FOUND DURING THE COURSE OF SEARCH IN CAG WHICH COULD PROVIDE THE BAS IS FOR MAKING ANY ADDITION TOWARDS UNDISCLOSED INCOME. WE ARE THEREF ORE OF THE OPINION THAT NO UNDISCLOSED INCOME CAN BE ATTRIBUTED TO ANY OF THE APPLICANTS IN REGARD TO THE PURCHASE OF LAND AT VILLAGE MAKARBA F ROM SHRI CHATURBHAI B PATEL. AS FOR THE REMAINING PARCELS OF LAND THE SAME WERE PURCHASED BY VARIOUS NTCS WHO WERE SEPARATELY ASSES SED U/S 158BD AND THEREFORE NO ADDITION CAN BE MADE IN THE CASES OF THE APPLICANTS FOR THESE PARCELS OF LAND AS WELL. IN OUR OPINION THEREFORE THE ADDITION OF RS.79.58 LACS MADE BY THE ASSESSING OFFICER IN T HE BLOCK ASSESSMENT ORDER OF EACH APPLICANT IS UNJUSTIFIED A ND NEEDS TO BE DELETED. WE ORDER ACCORDINGLY. 9. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT ONCE THE SETTLEMENT COMMISSION HAS ACCEPTED THE RATE AT RS.150 SQ.YD IN STEAD OF RATE ADOPTED BY THE IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 21 REVENUE AT RS.450 SQ.YD THERE IS NO SCOPE LEFT FOR REACHING A DIFFERENT AND OTHER CONCLUSION FOR THE TRIBUNAL. ON THIS THE LD.CIT-DR MADE ARGUMENT THAT THE SETTLEMENT COMMISSION DECIDES ANY ISSUE IN ANOTHER CASE THAT WILL NOT HAVE ANY BEARING IN THE CASE OF THIS ASSESSEE. HE STATED TH AT THE FINDINGS OF THE SETTLEMENT COMMISSION IN THE CASE OF SHRI CHIMANLAL AGARWAL GR OUP WILL NOT APPLY TO THE CASE OF ANY OTHER ASSESSEES LEAVE APART THE PRESENT ASSES SEE. ACCORDING TO THE LD.CIT- DR THE FINDINGS OF SETTLEMENT COMMISSION IS NOT A PRECEDENT FOR ANOTHER ASSESSEE RATHER IT IS A PRECEDENT FOR LIMITED PURPOSES AND WILL APPLY TO THAT CASE ONLY I.E. SHRI CHIMANLAL AGARWAL GROUP OF CASES. ACCORDING TO THE LD.CIT- DR THE FINDINGS OF THE SETTLEMENT COMMISSION SHOULD NOT BE APPLIED RATHER IT SHOULD BE DECIDED ON MERITS AS TO WHETHER THE ASSESSEE HAS SOLD THE LAND @ RS.450 PER SQ.YD OR @ RS.150 PER SQ.YD ON THE BASIS OF SEIZED MATERIAL. HE STATED T HAT THE ASSESSEE SHRI CHATURBHAI B PATEL CLEARLY ADMITTED IN HIS STATEMENT RECORDED DU RING THE COURSE OF SEARCH THAT HE HAS SOLD THE LAND @ RS.450 AND SUBSEQUENT RETRACTION WILL NOT BE OF AN Y HELP TO THE ASSESSEE. FOR THIS HE RELIED UPON THE CASE LAW OF HON'BLE KERALA HIGH COURT IN THE CASE OF K KUNHAMBU & SONS VS CIT 219 ITR 235 (KER) WHEREIN THE HON'BLE KERALA HIGH COURT HAS CONSIDERED THE EXPLANATION TO SECTIO N 132 OF THE ACT INSERTED WITH EFFECT FROM 01-04-1989 CLARIFYING THE NECESSARY IMP ORT OF THE MAIN PROVISION CONTAINED IN SUB SECTION (4) OF SECTION 132 OF THE ACT. THE HON'BLE HIGH COURT HELD THAT IT DOES NOT CHANGE THE SUBSTANTIVE PROVISIONS OF THE ACT NOR HAD IT LAID DOWN A DIFFERENT METHOD FOR USING THE STATEMENT RECORDED U NDER SUB SECTION (4) OF SECTION 132 OF THE ACT AND IT PERMITS INTERROGATION OF PERS ONS NOT ONLY IN RELATION TO THE BOOKS OF ACCOUNT FOUND AS A RESULT OF SEARCH BUT ALSO ANY OTHER RELEVANT MATERIAL FOR ANY PROCEEDINGS UNDER THIS ACT. THE HON'BLE COURT FURT HER HELD THAT ASSESSMENT ON THE BASIS OF VOLUNTARY STATEMENT WAS A VALID ASSESSMENT . THE LD.CIT DR ALSO RELIED UPON THE FOLLOWING DECISIONS: KAILASHNATH MALHOTRA VS JCIT ITAT MUMBAI BENCH E THIRD MEMBER 34 SOT 541 (MUM)(TM) HOTEL KIRAN VS ACIT ITAT PUNE BENCH (2002) 82 ITD 453 (PUNE) DY.CIT VS BHOGILAL MULCHAND KANDOI ITAT AHMEDAB AD BENCH B (2005) 96 ITD 344 (AHD) HIRALAL MAGANLAL & CO VS DY.CIT ITAT MUMBAI BENC H D (2005) 96 ITD 113 IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 22 10. THE LEARNED COUNSEL FOR THE ASSESSEE HOWEVER RELIED ON THE CASE LAW OF HONBLE APEX COURT IN THE CASE OF CIT V. B.N.BHATTACHARGEE AND ANOTHER (1979) 118 ITR 461 (SC) FOR THE PROPOSITION THAT THE SETTLEMEN T COMMISSION IS A TRIBUNAL WITHIN THE MEANING OF ARTICLE 136 OF THE CONSTITUTION OF I NDIA WHEREIN THE APEX COURT HELD AS UNDER:- THE PRELIMINARY OBJECTION RAISED BY SHRIA.K. SEN N EED NOT DETAIN US BECAUSE WE ARE SATISFIED THAT THE AMPLITUDE OF ART. 136 IS WIDE ENOUGH TO BRING WITHIN ITS JURISDICTION ORDERS PASSED BY THE SETTLEMENT CO MMISSION. ANY JUDGMENT DECREE DETERMINATION SENTENCE OR ORDER IN ANY CAS E OR MATTER PASSED OR MADE BY ANY COURT OR TRIBUNAL COMES WITHIN THE COR RECTIONAL COGNIZANCE AND REVIEW POWER OF ART. 136. THE SHORT-QUESTION THEM IS WHETHER THE SETTLEMENT COMMISSION CANNOT COME WITHIN THE CATEGORY OF TRIB UNAL. TOP CLINCH THE ISSUE S. 245L DECLARES ALL PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION TO BE JUDICIAL PROCEEDINGS. WE HAVE HARDLY ANY DOUBT T HAT IT IS A TRIBUNAL. ITS POWERS ARE CONSIDERABLE; ITS DETERMINATION AFFECTS THE RIGHTS OF PARTIES; ITS OBLIGATIONS ARE QUASI-JUDICIAL; THE ORDERS IT MAKES AT EVERY STAGE HAVE TREMENDOUS IMPACT ON THE RIGHTS AND LIABILITIES OF PARTIES. WHEN A BODY IS CREATED BY STATUTE AND CLOTHED WITH AUTHORITY TO DE TERMINE RIGHTS AND DUTIES OF PARTIES AND TO IMPOSE PAINS AND PENALTIES ON THEM I T SATISFIES THE TEST LAID DOWN IN ASSOCIATED CEMENT CO.S CASE [1965] 2 SCT 3 66; 27 FJR 204; AIR 1965 SC 1595. A CONSTITUTIONAL BENCH OF THIS COURT IN THAT CASE HAS INDICATED THE QUINTESSENTIAL TEST IN THIS REGARD AND WE NEED ONLY EXTRACT A PORTION OF THE HEAD-NOTE RELEVANT TO THIS ASPECT: IN CONSIDERING THE QUESTION ABOUT THE STATUS OF AN Y BODY OR AUTHORITY AS A TRIBUNAL UNDER THE ARTICLE THE CONSIDERATION ABOUT THE PRESENCE OF ALL OR SOME OF THE TRAPPINGS OF A COURT IS REALLY N OT DECISIVE. THE PRESENCE OF SOME OF THE TRAPPINGS MAY ASSIST THE DE TERMINATION OF THE QUESTION AS TO WHETHER THE POWER EXERCISED BY THE A UTHORITY WHICH POSSESSED THE SAID TRAPPINGS IS THE JUDICIAL POWER OF THE SATE OR NOT. THE MAIN AND BASIC TEST HOWEVER IS WHETHER THE AD JUDICATING POWER WHICH A PARTICULAR AUTHORITY IS EMPOWERED TO EXERCI SE HAS BEEN CONFERRED ON IT BY A STATUTE AND CAN BE DESCRIBED A S A PART OF THE STATES INHERENT POWER EXERCISED IN DISCHARGING IT S JUDICIAL FUNCTION. THE EXPANDING JURISPRUDENCE OF ADMINISTRATIVE TRIBU NALS TO WHICH SOME EMINENT JUDGES CRADLED IN DICEAN CONCEPTS IN THE EARLY DAYS OF ENGLISH LAW HAS COME TO STAY WHETHER WE CALL IT TH E NEW DESPOTISM OR THE PRAGMATIC INSTRUMENTALITY OF DISPENSING JUSTICE UNTRAMMELED BY THE COMPLEXITIES AND MYSTIQUES WHICH ARE PART OF THE PR OCESSUAL HEREDITY OF COURTS. THE FRANKS COMMITTEE RIGHTLY SAID: REFLECTION ON THE GENERAL SOCIAL AND ECONOMIC CHAN GES OF RECENT DECADES CONVINCES US THAT TRIBUNALS AS A SYSTEM FOR ADJUDICATION HAVE COME TO STAY. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 23 THE ADVANTAGE WHICH TRIBUNALS HAD OVER COURTS STA TES SEERVAI IN HIS CLASSIC WORK ON THE CONSTITUTION OF INDIA LAY IN CHEAPNESS ACCESSIBILITY FREEDOM FROM TECHNICALITY EXPEDITION AND EXPERT KNOWLEDGE OF THEIR PARTICULAR SUBJECT. A CASUAL PERUSAL OF CHAP. XIXA CONVINCES THE DISCER NING EYE THAT THE SETTLEMENT COMMISSION EXERCISES MANY POWERS WHICH A FFECT FOR GOOD OR OTHERWISE THE RIGHTS OF THE PARTIES BEFORE IT AND VESTS IN SIT POWERS TO GRANT IMMUNITY FROM PROSECUTION AND PENALTY TO INVESTIGA TE INTO MANY MATTERS AND TO ENJOY CONCLUSIVENESS REGARDING ITS ORDERS OR SET TLEMENT. IN SHORT SETTLEMENT COMMISSIONS ARE TRIBUNALS. THE PRELIMINA RY POINT FAILS AND WE PROCEED TO CONSIDER THE TRIPLE SUBSTANTIAL QUESTION S SET OUT EARLIER. AND ONCE SETTLEMENT COMMISSION IS A TRIBUNAL ITS O RDER HAS BINDING FORCE QUA THE ASSESSEE AS WELL AS THE ASSESSING OFFICER BUT WHEN THE SEARCH IS EMANATING OUT OF THE SAME GROUP AND THE ISSUE IS SAME ON FACTS OF TH E CASE IT WILL COVER THE PRESENT ASSESSEES CASE ALSO. THE LEARNED COUNSEL FOR THE A SSESSEE STATED THAT THE SEARCH IN THE CASE OF SHRI CHIMANLAL AGARWAL GROUP WHERE THE SETTLEMENT COMMISSION HAS DECIDED THIS ISSUE IS ARISING OUT OF THE SEARCH MAT ERIALS FOUND FROM THE ASSESSEE SHRI CHATURBHAI B PATEL. THE LEARNED COUNSEL FURTH ER STATED THAT AS PER SECTION 245- I EVERY ORDER OF SETTLEMENT COMMISSION PASSED U/S 245D(4) OF THE ACT SHALL BE CONCLUSIVE AS TO THE MATTERS STATED THEREIN UNLESS SUCH ORDER BECOMES VOID ON THE GROUND OF FRAUD OR MISREPRESENTATION OF FACTS AS PR OVIDED IN SECTION 245D(6) OF THE ACT. APART FROM THAT THE ORDER CANNOT BE DISPUTED OR IMPUGNED IN ANY PROCEEDINGS. IN VIEW OF THIS THE LEARNED COUNSEL FOR THE ASSESS EE STATED THAT THE FINDING WITH RESPECT TO THE TRANSACTION OF LAND STAND CONCLUDED AT RS.150 PER SQ.YD QUA SHRI CHIMANLAL AGARWAL GROUP OF CASES BUT HOW THE REVENU E WITHOUT ANY COGENT EVIDENCE IN THE CASE OF THE ASSESSEE VIZ. SHRI CHATURBHAI B PATEL CAN TAKE A DIFFERENT VIEW OTHER THAN THE VIEW TAKEN IN THE CASE OF SHRI CHIMA NLAL AGARWAL GROUP. HE STATED THAT THERE IS NO MATERIAL WITH THE REVENUE TO SHOW THAT OVER AND ABOVE A SUM OF RS.150 PER SQ.YD WAS PAID BY SHRI CHIMANLAL GROUP O F CASES TO THE ASSESSEE EXCEPT THE SEIZED PAPER FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENCE OF THE ASSESSEE WHICH IS UNDATED AND NO NOTING AS TO THE MONEY TRANSACTION WHETHER THE MONEY HAS BEEN PAID OR RECEIVED. THE LEARNED COUNS EL FURTHER STATED THAT THE SEIZED DOCUMENT DOES NOT MENTION THE NAME OF ANY PA RTY AND DOES NOT BEAR THE SIGNATURE OF ANY PERSON AND MOREOVER IT IS NOT IN T HE HANDWRITING OF THE ASSESSEE OR HIS FAMILY MEMBER AND ALSO NOT IN THE HANDWRITING O F THE PURCHASERS. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 24 11. WE FIND FROM THE ABOVE ARGUMENTS OF BOTH THE SI DES THAT THE DOCUMENT FOUND DURING THE COURSE OF SEARCH CLEARLY REVEALS THAT IT DOES NOT BEAR THE NAME NEITHER OF THE PARTIES OR IT DOES NOT BEAR SIGNATURE OF NEITHE R PARTY. ACCORDING TO US AFTER GOING THROUGH THE SEIZED DOCUMENT IT DOES NOT REVEAL THE NATURE OF TRANSACTION AND IT IS UNDATED. THIS DOCUMENT WAS HAVING SUPPORT OF THE S TATEMENT OF SHRI CHATURBHAI B PATEL BUT THAT STATEMENT WAS RETRACTED AND THE REVE NUE HAS NOT GOT THE RETRACTION STATEMENT VERIFIED OR DENIED. EVEN OTHERWISE IN TH E PRELIMINARY STATEMENT THE ASSESSEE ADMITTED OF HAVING SOLD THE LAND @ RS.150 PER SQ.YD AS NOTED ABOVE IN ANSWER TO QUESTION NO.2 OF THE PRELIMINARY STATEMEN T DATED 25-09-1998. WE FIND THAT THE HON'BLE SETTLEMENT COMMISSION HAS INTERPRE TED THIS DOCUMENT AND AFTER GOING THROUGH THE FACTS IN ENTIRETY WITH RESPECT TO THIS DOCUMENT THE SETTLEMENT COMMISSION HAS FINALLY CONCLUDED THAT THE LAND TRAN SACTION WAS ENTERED INTO BETWEEN SHRI CHIMANLAL AGARWAL GROUP OF CASES AND T HE ASSESSEE RECEIVED PRICE @ RS.150 PER SQ.YD AND NOT RS.450 PER SQ.YD. THE SET TLEMENT COMMISSION BEING A TRIBUNAL AS HELD BY THE HON'BLE APEX COURT WE FEEL THAT THE SETTLEMENT COMMISSION HAS ON THE SAME SET OF FACTS HAS TAKEN A VIEW WE CANNOT REVERSE THE SAME IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 12. ANOTHER FACET OF ARGUMENTS NOTED BY US IS THAT THIS VALUE OF LAND TRANSACTIONS AT RS.150 PER SQ.YD AS RECORDED IN THE SALE DEEDS R EGISTERED BY SUB REGISTRAR IS SUPPORTED BY THE VALUATION REPORT OF DVO OF I.T. DE PARTMENT AHMEDABAD WHEREIN HE HAS CONCLUDED THE FAIR MARKET VALUE OF THE LAND AT RS.1 98 69 215 AND NOT AS NOTED IN SEIZED PAPER AT RS.5 96 23 200. THAT MEAN S THE VALUATION REPORT OF THE I.T. DEPARTMENT CLEARLY REVEALS THAT THE FAIR MARKET VAL UE OF THE LAND AT MAKARBA SOLD BY THE ASSESSEE TO SHRI CHIMANLAL AGARWAL GROUP OF CAS ES WAS AT RS.150 PER SQ.YD AS NOTED IN SALE DEEDS AND NOT AT RS.450 PER SQ.YD. T HE RELEVANT REPORT ANNEXURED AT PAGES 666 TO 670 CLEARLY REVEALS THE VALUE. THE RE LEVANT PARAGRAPH OF THE COVERING LETTER AND THE PART OF THE REPORT WHERE VALUATION I S DONE READS AS UNDER: CONFIDENTIAL NO.2(2)/DVO/2000-01/22 OFFICE OF THE DISTRICT VALUAT ION OFFICER INCOME-TAX DEPARTMENT AJANTA B WING ASHRAM ROAD AHMEDABAD. DATE : 31/08/2000 TO IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 25 THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 1(4) I.T. DEPARTMENT AHMEDABAD. SUB : FAIR MARKET VALUE AS ON 3-4-97 IN THE CASE OF CHIMANLAL J. AGRAWAL NANDLAL J. AGRAWAL SANJAY C. AGRAWAL AND SATYAWATI J. AGRAWAL. REF : YOUR LETTER NO. DC/CC 1(4)/VAL.2000-01 DATED 9-8-2000. *** ENCLOSED PLEASE FIND HEREWITH THE VALUATION REPORT OF THE ABOVE MENTIONED PROPERTY IN DUPLICATE. THE FAIR COST OF INVESTMENT IN THE ABOVE PROPERTY A S ON 3-4-97 AS WORKED OUT BY THIS OFFICE COMES TO RS.1 998 69 215/-. HOWEVER ABOVE COST DOES NOT INCLUDE FOLLOWING :- (1) THE STAMP DUTY REGISTRATION CHARGES ETC. BUT INCLU DE THE PREMIUM PAYABLE TO THE DIST. COLLECTOR DURING TRANSFER OF SUCH LAND. SD/- (ER.A.K. SILEKAR) DISTRICT VALUATION OFFICER I.T. DEPTT. AHMEDABAD. ENCL : 1) VALUATION REPORT IN DUPLICATE 2) COMPARABLE SALE INSTANCES. ABSTRACT OF COST PROPERTY : PLOTS OF LAND AT MOUJE GAM MAKARBA TAL ITY DIST. AHMEDABAD. ASSESSEE : SHRI C.J. AGRAWAL N.J. AGRAWAL SANJAY C. AGARWAL SATYAWATI J. AGRAWAL. REVENUE SURVEY NO.: 268 269/1 269/2 280/1 280/2 280/3 289/2 291 292/1 292/2 292/3 294/4. SR. DESCRIPTION AREA IN UNIT RATE AMOUNT NO. SQ.MT. 1. PLOT OF LAND AT MOUJE MAKARBA TAL.CITY DIST.AHMEDABAD 96923 PER SQ.MT. RS.205/- 1 98 69 21 5/ ------------------ FAIR COST OF LAND AS ON 3-4-97 1 98 69 215/ --------------------------------------------------- --------------------------------------- NOTE :- 1) THE ABOVE COST DOES NOT INCLUDE THE STAMP DUTY R EGISTRATION FEES ETC. BUT INCLUDE THE PREMIUM PAYABLE TO THE DIST.COLLECTOR DURI NG TRANSFER OF SUCH LAND. SD/- IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 26 (ER.A.K. SILEKAR) DIST. VALUATION OFFICER I.T. DEPTT. AHMEDABAD WE FIND THAT THE VALUATION MADE BY THE DVO ESTIMATI NG THE FAIR MARKET VALUE AS ON 03-04-1997 I.E. THE DATE OF SALE OF LAND BY ASSESSE E TO SHRI CHIMANLAL AGARWAL GROUP OF CASES AND THIS VALUATION REPORT WAS GIVEN BY THE DVO OF THE DEPARTMENT IN THE BLOCK ASSESSMENT PROCEEDINGS IN GROUP CASES OF CHIM ANLAL AGARWAL. BUT IN ANY CASE THE FAIR MARKET VALUE CANNOT BE DIFFERENT IN THE PRESENT CASE WHICH WAS VALUED BY THE DVO OF THE DEPARTMENT. FURTHER ANOTHER FAC ET OF ARGUMENT MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US WAS THAT EVEN THE APPROPRIATE AUTHORITY HAS GIVEN PERMISSION TO THE ASSESSEE FOR TRANSFERRI NG THE LAND U/S 269UL(3) OF THE ACT VIDE ORDER DATED 15-03-2000 FOR ANOTHER PIECE O F LAND SITUATED AT VILLAGE MAKARBA BEARING SURVEY NO.280 HISSA NO.3 AN SURVEY NO.289 HISSA NO.2 ADMEASURING 17900 SQ.YDS FOR APPARENT CONSIDERATION OF RS.33 12 980. THE LEARNED COUNSEL BEFORE US STATED THAT THE RATE PER SQUARE YARD AS O N 15-03-2000 WAS ESTIMATED TO BE FAIR BY THE APPROPRIATE AUTHORITY OF THE DEPARTMENT AT LITTLE LESS THAN RS.200 PER SQ.YD. HE STATED THAT IN ANY CASE THE FAIR MARKET VALUE CANNOT BE MORE THAN RS.150 PER SQ.YD AND OVER AND ABOVE THE REGISTERED VALUE AS IN THE SALE DEED CANNOT BE TAKEN IN VIEW OF EVIDENCES. THE RELEVANT COPY OF ORDER O F APPROPRIATE AUTHORITY DATED 15- 03-2000 IS ENCLOSED AT ASSESSEES PAPER BOOK AT PAG E 679. WE FIND THAT THE FAIR MARKET VALUE DETERMINED BY APPROPRIATE AUTHORITY IN THE YEAR 2000 IN SIMILARLY SITUATED LAND IS AT RS.200 PER SQ.YD AND NOT AT RS .450 PER SQ.YD AS CLAIMED BY THE REVENUE. 13. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER ST ATED THAT THESE LANDS ARE TENURE LANDS ACQUIRED BY THE ASSESSEE FROM GOVERNME NT OF GUJARAT. THESE LANDS ARE NOT IN THE EXCLUSIVE OWNERSHIP OF THE ASSESSEE AND ASSESSEE CANNOT SELL THE LAND ON HIS OWN. HE NARRATED THAT THE ASSESSEE HAS TO TAKE PERMISSION FROM A COMMITTEE APPOINTED BY GOVERNMENT OF GUJARAT FOR SA LE OF LAND AND THAT COMMITTEE IS HEADED BY DISTRICT COLLECTOR WHO FIXES THE PRIC E OF THIS LAND. ACCORDING TO THE ASSESSEE THE COLLECTOR FIXED THE PREMIUM BY PASSIN G AN ORDER DATED 13-02-1997 AND ADOPTED THE MARKET PRICE AT RS.185 PER SQ.MTR T O RS.200 PER SQ.MTR. THE COPIES OF ORDERS WERE FIELD DURING THE COURSE OF HEARING B EFORE US. THE STATE GOVERNMENT CONSTITUTED COMMITTEE HEADED BY DISTRICT COLLECTOR VIDE ITS ORDER DATED 13-02-1997 IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 27 AND HAS ASSESSED THE SALE RATE AT RS.185 TO RS.200 PER SQ.MTR AND THE RELEVANT PORTION OF THE ORDER ARE AS UNDER: CONSIDERING THE PRESENT MARKET VALUE OF THE LAND I N QUESTION SURVEY NO.268 PART 45324 SQ.MTRS. ; 269/1 3642 SQ.MTRS.; 2 69/2 ADMEASURING 3642 SQUARE METERS TOTAL 52608 SQUARE METERS AT TH E RATE OF RS.200.00 (RUPEES TWO HUNDRED ONLY) AND SURVEY NO.2 80/1 3541 SQUARE METERS 280/2 6880 METERS 280/3 3339 SQUARE METERS 291 4452 SQUARE METERS 292/1 3845 SQUARE METERS 292/2 3541 SQUARE METERS 292/3 3743 SQUARE METERES 292/4 3339 SQ.MT RS 289/2 11635 SQ.MTRS. TOTAL AD MEASURING 44315 SQ.MTRS. AT THE RATE OF RS .185.00 FOR CONSIDERING THE AMOUNT OF PREMIUM RECOVERABLE F OR THE PURPOSE OF NA FOR NA PURPOSE APPLICANT WAS INTIMATED FOR MAKI NG PAYMENT OF THE PREMIUM AMOUNT OF RS.1 31 03 912.50 (RUPEES ONE CRO RE THIRTY ONE LACS THREE THOUSAND NINE HUNDRED FIFTY ONLY) BY LE TTER DATED 22.10.96. ACCORDINGLY APPLICANT HAD REQUESTED VIDE LETTER DA TED 1.11.96 FOR GIVING THREE MONTHS PERIOD FOR PAYING THE AMOUNT OF PREMIUM WHICH WAS GRANTED FOR THREE MONTHS IN THIS MATTER VIDE LE TTER DATED 22.10.96 AND THEREAFTER THE APPLICANT HAD BY DRAFT DATED 15 .01.97 DEPOSITED THE AMOUNT IN THE VILLAGE RECORD VIDE RECEIPT NO.106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 1 2 3 4 5 6 7 8 9 AN AMOUNT OF RS.1 31 03 914.00 (RUPEES ONE CRORE THIRT Y ONE LACS THREE THOUSAND NINE HUNDRED FOURTEEN) AND THEREFORE ON DATED 25.1.97 RECEIPT WAS ISSUED FOR THE PAYMENT OF WHICH MAMLAT DAR CITY HAS VIDE HIS LETTER DATED 31.1.97 GIVEN SUPPORT. THEREFORE SUBJECT TO THE CONDITIONS INCORPORATED HEREINBELOW PERMISSION IS HEREBY GIVEN FOR THE USE AS PAULTRY F ARM UNDER SECTION 63 OF THE TENANCY ACT AND EXEMPTION IS GIVEN FROM THE REGULATIONS UNDER SECTION 43 OF THE TENANCY ACT TO THE APPLICANT CHAT URBHAI BABABHAI FOR MAKING SALE OF THE LAND OF VILLAGE MAKARBA TALUKA C ITY SURVEY NO.280/1 280/2 280/3 269/1 269/2 291 289 292 (1+2+3+4) AND 268 PART RUNNING IN THE HEAD OF RESTRICTED NATURE O F AUTHORITY AD MEASURING TOTAL 96923 SQUARE METERS OF LAND FOR SAL E THEREOF TO SHRI NANDLAL JAYGOPAL CHIMAN JAYGOPAL SANJAY CHIMANLAL SATYAVATI JAYGOPAL RESIDING AT AHMEDABAD. THE LEARNED COUNSEL CLARIFIED THAT THE RATE FIXED B Y THE COLLECTOR WAS FOR SQUARE METRE INSTEAD OF SQUARE YARD AND IF SQUARE METRE IS CONVERTED INTO YARDS THEN IT COMES TO RS.160 TO RS.165 PER SQUARE YARD IN CASE T HE RATE IS RS.200 PER SQUARE METRE AND IN CASE THE RATE IS RS.185 PER SQUARE MET RE THEN IT COMES TO RS.150 PER SQ.YD. 14. ANOTHER FACET OF ARGUMENT LEAD BY THE LEARNED C OUNSEL WAS THAT DURING THE COURSE OF SEARCH PROCEEDINGS NOTHING INCRIMINATING WAS FOUND LIKE CASH BULLION JEWELERY INVESTMENTS OR ANY OTHER VALUABLES. WE F IND FROM THE ABOVE FACTS AND IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 28 CIRCUMSTANCES OF THE CASE THAT THE REVENUE HAS BASE D THE ENTIRE ADDITION ON THE SEIZED PAPER PAGE NO.115 OF ANNEXURE A-1 WHICH IS UNDATED DOES NOT BEAR THE NAME OF ANY PARTY DOES NOT BEAR THE SIGNATURE OF A NY PERSON AND NOT IN THE HANDWRITING OF THE ASSESSEE OR HIS FAMILY MEMBERS O R IN THE HANDWRITING OF THE PURCHASER. THE ASSESSEE IN THE PRELIMINARY STATEME NT HAS CATEGORICALLY ADMITTED TO HAVE SOLD THE LAND TO SHRI CHIMANLAL AGARWAL GROUP OF CASES FOR RS.150 PER SQ.YD VIDE SALE DEEDS DATED 03-04-1997 IN PURSUANCE TO CO LLECTORS ORDER DATED 13-02- 1997. ADMITTEDLY THESE LANDS WERE TENURE LANDS OW NED BY GUJARAT GOVERNMENT WHO HAS GIVEN THESE LANDS TO THE ASSESSEE FOR CULTI VATION AND BY VIRTUE OF TENANCY RIGHTS THE ASSESSEE WAS OWNER. IT IS ALSO AN ADMI TTED FACT THAT THE COLLECTOR IN VIEW OF RESOLUTION OF GOVERNMENT OF GUJARAT REVENUE DEP ARTMENT BEARING NO. TENANCY/1080/COORDINATION/4/J DATED 20-05-1980 AND RESOLUTION NO.NSJ/1081/2023/J DATED 1-07-1983 AND 17-09-1984 H AS FIXED THE RATE OF THESE LANDS IN VIEW OF THE ABOVE REPRODUCED ORDER DATED 1 3-02-1997 FIXING THE RATES AT RS.185 TO RS.200 PER SQ.MTR AND CONVERTING THE SAME INTO SQUARE YARDS THE RATE WILL COME TO RS.150 TO RS.165 PER SQ.YD. THE ASSESSEE H AS NO PERMISSION TO SELL THE LAND ON HIS OWN RATHER IT IS AFTER THE PERMISSION OF THE GOVERNMENT OF GUJARAT THROUGH DISTRICT COLLECTOR. EVEN THE PRICE IS FIXE D BY GOVERNMENT OF GUJARAT VIDE COLLECTORS ORDER DATED 13-02-1997 THE ASSESSEE HAS SOLD THE LAND AT THAT RATE ONLY BY REGISTERING THE SALE DEEDS IN THE NAME OF PURCHA SERS VIZ. SHRI CHIMANLAL AGARWAL GROUP FOR RS.150 PER SQ.YD. EVEN THIS VALUATION IS SUPPORTED BY THE DVOS REPORT WHO HAS WORKED OUT THE FAIR MARKET VALUE AS ON 03-0 4-1997 IN THE CASE OF SHRI CHIMANLAL AGARWAL GROUP OF CASES WHERE A SIMULTANEO US SEARCH WAS CONDUCTED AND IN THE ASSESSMENT PROCEEDINGS OF THEIR CASES THE VA LUE WAS ADOPTED AT RS.150 PER SQ.YD AND SUBSEQUENTLY THE SAME WAS ACCEPTED BY THE SETTLEMENT COMMISSION VIDE ITS ORDER DATED 10-12-2008. WE FIND THAT THE REFER ENCE MADE BY THE ASSESSING OFFICER TO THE DVO FOR VALUATION OF LAND FOR DETERM INING THE FAIR MARKET VALUE / PRICE OF THE LAND SOLD BY THE ASSESSEE TO SHRI CHIMANLAL AGA RWAL GROUP OF CASES AND THE REASONS RECORDED ARE AS UNDER: SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT AT THE RESIDENCE OF THE ABOVE PERSONS AS WELL AS AT THE RESIDENCE OF SHRI C HATURBHAI BABUBHAI PATEL OF MAKARBA GAM. DURING THE COURSE OF SEARCH IT WAS ASCERTAINED THAT SHRI CHATURBHAI BABUBHAI PATEL SOL D VARIOUS LAND TO THE ABOVE FOUR PARTIES. CONSEQUENTLY ASSESSMENT P ROCEEDINGS U/S 158BC WERE STARTED IN THE CASE OF PURCHASER AND SEL LERS BOTH. DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHRI CHATU RBHAI BABUBHAI IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 29 PATEL SOME INCRIMINATING DOCUMENTS WERE FOUND AND S EIZED. ON THE BASIS OF THE DOCUMENTS STATEMENTS OF SHRI CHATURBHA I BABUBHAI PATEL WAS RECORDED. IN VIEW OF THIS STATEMENT SHRI CHAT URBHAI BABUBHAI PATEL AFFIRMED THAT THE LANDS WERE SOLD AT THE RATE OF 450/- PER SQ. WHILE IN THE SALE DEEDS IT WAS MENTIONED AT THE RATE OF R S.150. AFTER THIS SEARCH SHRI CHATURBHAI BABUBHAI PATEL RETRACTED TH IS AFFIRMATION BY FILING AFFIDAVIT. IN THIS AFFIDAVIT SHRI CHATURBHA I BABUBHAI PATEL CONTENDED THAT THE STATEMENT RECORDED DURING THE CO URSE OF SEARCH WAS BY COMPULSION AND BY THREAT. THEREFORE THIS S TATEMENT WAS INVOLUNTARY AND SHOULD NOT BE RELIED. THE ASSESSEE FURTHER ARGUED THAT WHILE FIXING THE PREMIUM THE COLLECTOR HAS PASSED T HE ORDER ADOPTING THE MARKET PRICE AT RS.200/- AND 185/- PER SQ.MTR. IN VIEW OF THIS COLLECTORS ORDER THE STATEMENT GIVEN BY SHRI CHAT URBHAI BABUBHAI PATEL IS CONTRARY TO THE COLLECTORS ORDER. THE AS SESSEE FURTHER ARGUED THAT WHEN THERE ARE TWO CONTRADICTORY EVIDENCES IT SHOULD BE REFERRED TO THE THIRD PARTY WHO CAN DECIDE THE ISSUE AS A FR ESH. I THEREFORE REFER THIS ISSUE TO VALUE THE FAIR MARKET PRICE AS ON 3/4/97 OF THE FOLLOWING LANDS. THE DETAILS OF THE LAND ARE AS UN DER. IT MEANS THAT THE ASSESSING OFFICER WAS FULLY AWARE ABOUT THE MARKET RATE ADOPTED BY COLLECTOR AND THE RATE OF RS.185 TO RS.200 PER SQ.M TR AND ALSO THAT AS PER SEIZED PAPER FOUND FROM THE PREMISES OF THE ASSESSEE DURIN G THE COURSE OF SEARCH THE RATE NOTED IN THE SEIZED PAPER PAGE NO.115 OF ANNEXURE A -1 WAS RS.450 PER SQ.YD. DESPITE THIS FACT THE DVO HAS VALUED THE LAND AT R S.150 PER SQ.YD AFTER CONSIDERING THE VARIOUS OTHER PROPERTIES IN THE LOCALITY. SIMI LARLY THE SIMILAR LAND IN THE SAME VICINITY CHIMANLAL AGARWAL GROUP OF CASES HAS ENTER ED INTO AN AGREEMENT TO SELL WITH THE PERSON CALLED CHUNILAL SAKHARBHAI PATEL FOR THE LAND ADMEASURING 17 908 SQ.YD SURVEY NO.280 HISSA NO.3 AND SURVEY NO.289 AND HIS SA NOS.2 AT MAKARBA VILLAGE WHICH LAND WAS PURCHASED FROM THE ASSESSEE AND MADE APPLICATION IN FORM NO.37-I BEFORE THE APPROPRIATE AUTHORITY ESTABLISHED UNDER THE I.T. ACT AND THE APPROPRIATE AUTHORITY VIDE CERTIFICATE DATED 18-03-2000 ISSUED A CERTIFICATE WHERE THEY HAVE APPROVED THE APPARENT CONSIDERATION AGREED UPON BET WEEN THE TRANSFEROR AND TRANSFEREE AT RS.180 PER SQ.YD ON THE DATE OF AGREE MENT I.E. 27-12-1999 AND THE CERTIFICATE ISSUED ON 18-03-2000. THE LEARNED DEPA RTMENTAL REPRESENTATIVE CLARIFIED THAT THE VALUE OF THAT LAND WAS ADOPTED BY THE APPR OPRIATE AUTHORITY IN 2000 WHEREAS THE ASSESSEE HAS SOLD THE LAND ON 03-04-1997. AS R EGARDS THE STATEMENT OF THE ASSESSEE I.E. THE STATEMENT WHERE HE HAS ADMITTED TO HAVE SOLD THE LAND AT RS.450 THE STATEMENT WAS TAKEN IN ABNORMAL STATE OF HEALTH CONDITION OF THE ASSESSEE AS IS EVIDENT FROM THE RECORDS THAT THE AUTHORISED OFFICE R HAD CALLED FOR THE DOCTOR AND THE ASSESSEE HAD TO BE ADMINISTERED INJECTION AND OTHER MEDICINES. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 30 15. THE ASSESSEE HAS RETRACTED HIS STATEMENT DATED 25-09-1998 BY FILING A RETRACTION AFFIDAVIT DATED 26-09-1998 I.E. IMMEDIAT ELY THE NEXT DAY WHEN THE SEARCH PROCEEDINGS WERE IN PROGRESS AND NEITHER THE ADIT(I NV) DURING THE COURSE OF SEARCH NOR THE ASSESSING OFFICER DURING THE COURSE OF BLOC K ASSESSMENT PROCEEDINGS HAS TRIED TO CONFIRM OR DENY THE SAME. THE ONLY BASIS FOR ADDITION I.E. PAGE 115 ANNEXURE A-1 WAS REBUTTED BY THE ASSESSEE BY FILING MANY EVIDENCES. THE VALUE OF SALE CONSIDERATION OF LAND WAS REFERRED TO THE VALU ATION CELL OF THE DEPARTMENT WHEREIN THE DVO VIDE ITS REPORT DATED 31-08-2000 IN THE CASE OF CHIMANLAL AGARWAL ESTIMATED THE FAIR MARKET VALUE AS ON 03-04-1997 AT RS.1 98 69 215 AND THAT COMES TO RS.150 PER SQ.YD. EVEN THE ASSESSEE DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS FILED THE COLLECTORS ORDER WHO PERMITT ED THE ASSESSEE TO SELL THIS LAND @ RS.185 TO RS.200 PER SQ.MTR REASON BEING THE LAND S WERE TENURE LANDS WITH THE RIGHT TO THE ASSESSEE TO CULTIVATE THE SAME. EVEN THE ASSESSEE HAS SUPPORTED THE SALE DEED REGISTERED @ RS.150 PER SQ.YD BY CITING ANOTHER INCIDENCE THAT SHRI CHIMANLAL AGARWAL GROUP OF CASES ENTERED INTO AN AG REEMENT TO SELL WITH ANOTHER PERSON SHRI CHUNILAL S PATEL AND THE ADJACENT LAND AT SURVEY NO.280 HISSA NO.3 AND SURVEY NO.289 HISSA NO.2 AT MAKARBA VILLAGE WH ICH IS ADJACENT TO LAND PURCHASED FROM THE ASSESSEE AND THE APPROPRIATE AU THORITY OF THE INCOME-TAX DEPARTMENT ISSUED CERTIFICATE AS ON 18-03-2000 AND FINDING THE APPARENT SALE CONSIDERATION AT RS.180 PER SQ.YD AND THE DATE OF A GREEMENT TO SELL WAS 27-12-1999. EVEN THE SEIZED PAPER PAGE NO.115 ANNEXURE A-1 WAS SUBJECT MATTER OF LITIGATION BEFORE THE SETTLEMENT COMMISSION HAS FINALLY CONSID ERED THE SAME PRICE OF LAND AT RS.150 PER SQ.YD IN THE HANDS OF CHIMANLAL AGARWAL GROUP OF CASES WHEN THESE MATTERS WERE TAKEN BEFORE THE SETTLEMENT COMMISSION BY THE PURCHASER PARTY. 16. AS REGARDS TO INVESTMENT PURPORTED TO HAVE MADE BY THE ASSESSEE IN VIEW OF PAGE 117 OF ANNEXURE-A/1 SEIZED DURING THE COURSE O F SEARCH THE LD. CIT-DR REFERRED TO THIS PAGE AND STATED THAT THE INVESTMEN T FOUND DURING THE COURSE OF SEARCH AND RECORDED ON PAGE-117 CLEARLY PROVES THAT THE ASSESSEE HAS SOLD THIS LAND @ 450/- PER SQ.YD. AND ACCORDINGLY RECEIVED TH E CONSIDERATION AT RS.5 96 23 200/-. ON THIS THE LD. COUNSEL FOR THE A SSESSEE EXPLAINED IN RESPECT TO EACH OF THE INVESTMENT AS UNDER:- IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 31 I) THAT THE ASSESSEES DAUGHTER HAS PURCHASED THE L AND HAVING THREE DIFFERENT SURVEY NO. AT TELAV FROM FIVE DIFFERENT L ANDLORDS THE DETAILS OF LAND PURCHASED BY SMT. INDIREBEN H PATEL AT VILLAGE TELA V ARE AS UNDER:- SURVEY NO DATE OF CONVEYANCE & NO. NAME OF THE SELLER AMOUNT 217 12/7/96 NO. 1528 VALIBHAI NABIHAI MOMIN 3 00 000 218 12/7/96 NO.1529 GULAMBHAI JAMALBHAI MOMIN PIRULBHAI ALIBHAI MOMIN 3 70 000 213/2 12/7/96 NO.1530 SHETH NUTANKUMAR KUMARPAL SHETH DIPAKKUMAR KUMARPAL 1 95 000 THE LAND AT TELAV HAS BEEN PURCHASED BY ASSESSEES DAUGHTER SMT. INDIRABEN H PATEL IN THE YEAR 1996 AND A TATA SIERA CAR HAD BEEN PURCHASED ON 16-08-1995. THE TRACTOR WAS ALSO PURCHASED ON 28 -07-1998. THEREFORE THE SOURCES OF FUNDS AND APPLICATION OF FUNDS ARE T OTALLY OUT OF CONTEXT AS THERE ARE NO NEXUS/LINKAGE POSSIBLE/FEASIBLE BETWEE N THE SOURCES OF CASH FUNDS AND APPLICATION OF FUNDS WHICH LEAD TO THE CO NCLUSION THAT THE CONTENTS OF THE STATEMENT DATED 25-09-1998 ARE NOT CORRECT. THE ASSESSING OFFICER IN PARA-6 AT PAGE-4 OF HIS ASSESSMENT ORDER HAS IDENTI FIED THE DESCRIPTION OF ASSETS IN WHICH THE INVESTMENTS HAVE BEEN MADE OR E XPENDITURE HAVE BEEN MADE AS UNDER:- SR. NO. DESCRIPTION OF THE ASSETS SIN WHICH INVESTMENT HAVE BEEN MADE OR EXPENDITURE HAVE BEEN INCURRED AMOUNT (RS) 1. LAND IN VILLAGE TELAV 1 28 46 170 2. GIFTED TDO SISTERS 40 00 000 3. GIFTED TO SCHOOL 80 000 4. GIFTED TO GRAVE YARD 1 00 000 5. GIFTED TO COMMUNITY 50 000 6. GIFTED TO TEMPLE 50 000 7. ESCORT FORD CAR 8 18 399 8. TATA SIERA 4 00 000 9. TRACTOR WITH TROLLY 3 01 000 10. ACQUISITION OF JEWELLERY 1 00 000 11. DEPOSITS IN BANK 40 00 000 12. PROPERTIES IN HIS NAME AND IN THE NAME OF HIS WIFE 40 00 000 IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 32 13. TO BE RECEIVED FROM CHIMANLAL AGRAWAL 1 00 00 000 3 67 45 569 IT WAS THE CONTENTION OF THE ASSESSEE THAT THE ASSE SSING OFFICER HAS ALSO NOT CARRIED OUT ANY INQUIRY/INVESTIGATION WITH FIVE DIFFERENT LANDLORDS FROM WHOM THE ASSESSEES DAUGHTER SMT. INDIRABEN H PATEL HAS PURCHASED THE LAND IN ORDER TO BRING IT ON RECORD T HE CORROBORATIVE MATERIAL AND INDEPENDENT CLINCHING EVIDENCES IN SUP PORT OF THE ALLEGATION MADE BY THE INVESTMENT WING OF THE DEPAR TMENT IN RESPECT OF TELAV LAND. THE REVENUE HAS NOT BROUGHT ON RECOR D ANY COMPARATIVE SALES INSTANCES FROM THE LAND REVENUE R ECORDS OR FROM THE GOVERNMENT RECORD IN SUPPORT OF ITS CASE. THEREFORE THE IDENTIFICATION OF INVESTMENT IN LAND IN VILLAGE TELAV FOR AN AMOUN T OF RS.1 28 46 170/- IS MERELY ON SURMISE AND CONJECTURE AND UNJUSTIFIED . II) GIFTS TO SISTER RS.40 LAKH THAT THE ASSESSING OFFICER HAS MAINLY RELIED UPON T HE STATEMENTS DATED 25- 09-1998 AND ASSESSEE HAS TO SUBMIT THAT ONCE THE ST ATEMENTS DATED 25-09- 1998 WERE RETRACTED BY THE ASSESSEE THE AO SHOULD HAVE CARRIED OUT NECESSARY INQUIRY WITH THE SISTERS OF THE ASSESSEE TO ESTABLISH THE CASE OF THE DEPARTMENT WHICH HAS NOT BEEN DONE. FURTHER IT IS TO BE TAKEN NOTE OF FACT THAT IN STATEMENT DATED 25-09-1998 NO NAMES OF THE SISTERS HAVE BEEN IDENTIFIED. ACCORDINGLY THE STATEMENTS OF THE ASSE SSEE DATED 25-09-1998 SUFFERS FROM VARIOUS INFIRMITIES AND FALLACIES AS W ELL AS CONTRADICTIONS THE SAME IS REQUIRED TO BE DISCARDED. III) GIFT TO SCHOOL GRAVE YARD AND TEMPLE THAT THE ASSESSEE HAS ALREADY SUBMITTED THE REPLY T O THE ASSESSING OFFICER IN HIS LETTER DATED 09-12-1999 WHEREIN IT IS STATED T HAT AMOUNT OF RS.50 000/- WAS PAID TO COMMUNITY MARRIAGE CENTRE OUT OF AGRICU LTURAL INCOME AND THIS IS PERSONAL EXPENDITURE OF THE ASSESSEE. AS REGARDS TO GIFT TO SCHOOL GRAVE YARD AND TEMPLE IT WAS EXPLAINED THAT IT IS THE SAME AM OUNT OF RS.50 000/- PAID TO COMMUNITY MARRIAGE CENTRE OUT OF AGRICULTURAL INCOM E. IV) ACQUISITION OF JEWELLERY THAT THE ASSESSEE STATED THAT THE SAID JEWELLERY HA S BEEN ACQUIRED FROM THE AGRICULTURAL INCOME AS THE MAIN SOURCE OF INCOME OF THE ASSESSEE FOR THREE DECADES IS AGRICULTURAL INCOME AS HE IS A FARMER. T HE ASSESSING OFFICER HAS REJECTED THE GOOD EXPLANATION OF THE ASSESSEE FOR T REATING THE ACQUISITION OF THE JEWELLERY AS UNEXPLAINED WITHOUT ANY BASIS. V) DEPOSITS IN BANK AT RS.40 000/- THAT THE ASSESSEE HAS ALREADY OFFERED THE DETAILED EXPLANATION AS REGARDS TO THE BANK ACCOUNT OPERATION WHILE NARRATING EACH AND EVE RY ENTRIES IN THE BANK ACCOUNT VIDE LETTER DATED 09-12-1999 WHICH HAS BEEN COMPILE D IN THE ASSESSEES PAPER BOOK IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 33 AT PAGE -180 AND THE STATEMENT SHOWING NARRATION OF THE BANK ACCOUNT ENTRIES ARE COMPILED AT PAGE NO.305 TO 311 OF THE ASSESSEES PA PER BOOK-II AND INFORMED TO THE ASSESSING OFFICER VIDE HIS LETTER DATED 09-12-1999 THE ASSESSING OFFICER WHEREIN IT WAS CONTENDED BY THE ASSESSEE BEFORE AO THAT IT IS NOT ASCERTAIN FROM WHERE THE OBSERVATION HAS COME FROM THE AO THAT THE ASSESSEE HAS INVESTED RS.40 LAKH IN THE PROPERTY IN THE NAME OF ASSESSEE AND HIS WIFE. THE ASSESSEE REQUESTED TO PROVIDE THE MATERIAL FROM WHICH RELIED UPON FOR REBUTTAL. I T IS ALSO NOTED THAT THE ASSESSEES RESIDENCE SITUATED AT MAKARBA GAM WHICH IS ANCESTRA L PROPERTY THEREFORE THE INVESTMENT STATED BY THE AO FOR AN AMOUNT OF RS.40 LAKH BEING INVESTMENT IN PROPERTIES IN THE ASSESSEES NAME AND HIS WIFE IS M ERELY HYPOTHETICAL AND NOTIONAL IN NATURE. THE AO HAS IDENTIFIED THE SAID RECEIVABLES MERELY ON THE BASIS OF THE ASSESSEES STATEMENTS DATED 25-09-1998 WHICH CANNOT BE RELIED UPON AS DISCUSSED HEREINBEFORE DUE TO INFIRMITIES AS WELL AS CONTRADI CTIONS. 16. IN VIEW OF THE ENTIRETY OF FACTS WE ARE OF THE VIEW THAT THE PRESUMPTION DRAWN BY THE REVENUE WITH RESPECT TO PAGE 115 OF ANNEXURE A SEIZED DURING THE COURSE OF SEARCH FROM THE RESIDENTIAL PREMISES OF THE ASSESSE E ON 25-09-1998 HAS BEEN REBUTTED BY THE ASSESSEE AND THIS PRESUMPTION IS AL WAYS REBUTTABLE IN VIEW OF THE HON'BLE APEX COURT DECISION IN THE CASE OF PR METRA NI VS CIT (2006) 287 ITR 209 WHEREIN THE HON'BLE APEX COURT HAS INTERPRETED THE WORD AS MENTIONED IN SECTION 132(4A) MAY BE PRESUMED. THE PRESUMPTION UNDER S UB-SECTION (4A) THEREFORE IS A REBUTTABLE PRESUMPTION. WHEREAS THE LEGISLATURE U NDER SECTION 132(4) HAS PROVIDED THAT THE BOOKS OF ACCOUNT MONEY BULLION JEWELERY AND OTHER VALUABLE ARTICLES OR THINGS AND ANY STATEMENT MADE BY SUCH P ERSON DURING EXAMINATION MAY THEREAFTER BE USED AS EVIDENCE IN ANY OTHER PROCEED INGS UNDER THE ACT. A PRESUMPTION IS AN INFERENCE OF FACT DRAWN FROM OTHE R KNOWN OR PROVED FACTS. IT IS A RULE OF LAW UNDER WHICH COURTS ARE AUTHORISED TO DR AW A PARTICULAR INFERENCE FROM A PARTICULAR FACT. IT IS OF THREE TYPES (I) MAY PR ESUME (II) SHALL PRESUME AND (III) CONCLUSIVE PROOF. MAY PRESUME LEAVES IT TO THE DISCRETION OF THE COURT TO MAKE THE PRESUMPTION ACCORDING TO THE CIRCUMSTANCES OF THE C ASE. SHALL PRESUME LEAVES NO OPTION WITH THE COURT NOT TO MAKE THE PRESUMPTION. THE COURT IS BOUND TO TAKE THE FACT AS PROVED UNTIL EVIDENCE IS GIVEN TO DISPROVE IT. IN THIS SENSE SUCH PRESUMPTION IS ALSO REBUTTABLE. CONCLUSIVE PROOF GIVES AN AR TIFICIAL PROBATIVE EFFECT BY THE LAW TO CERTAIN FACTS. NO EVIDENCE IS ALLOWED TO BE PRODUC ED WITH A VIEW TO COMBATING THAT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 34 EFFECT. IN THIS SENSE THIS AN IR-REBUTTABLE PRESU MPTION. BUT IN SECTION 132(4) OF THE ACT FOR THE PRESUMPTION THE WORDS ARE USED ARE MAY BE PRESUMED. 17. NOW WE FIND FROM THE ABOVE FACTS AND CIRCUMSTAN CE THAT THE ASSESSEE HAS SUCCESSFULLY REBUTTED THE PRESUMPTION OF THE REVENU E REGARDING PAGE 115 OF ANNEXURE A-1 AND REVENUE COULD NOT SUBSTANTIATE THA T THE ASSESSEE HAS RECEIVED ON-MONEY OVER AND ABOVE THE SALE CONSIDERATION AS R ECORDED IN THE SALE DEEDS. ACCORDINGLY WE CONFIRM THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DELETING THE ADDITION AND THIS ISSUE OF THE REVENUES APPEAL IS DISMISSED. 18. THE NEXT ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ASSESSMENT OF CAPITAL GAINS ON SALE OF LAND AT SURVEY NO.244. FO R THIS THE REVENUE HAS RAISED THE FOLLOWING GROUND: THE LEARNED LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON ACCOUNT OF CAPITAL GAIN OF RS.24 12 180/- ON SALE OF LAND AT SURVEY NO .244. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 19. THE BRIEF FACTS ARE THAT THE ASSESSING OFFICER HAS MADE ADDITION OF CAPITAL GAINS ON ACCOUNT OF SALE OF LAND AT SURVEY NO.244 A T RS.24 12 180 WHILE COMPLETING THE BLOCK ASSESSMENT ON THE BASIS OF LOOSE PAPER SE IZED AT PAGE NO.107 OF ANNEXURE A-1 WHICH CONTAINS THE DETAILS OF LAND AT SURVEY NO.244 IN VILLAGE MAKARBA SOLD @324 PER SQ.YD AND AN AMOUNT OF RS.27 44 280 W AS RECEIVED. ACCORDING TO THE ASSESSING OFFICER THIS LAND WAS SOLD TO KAILASH DARSHAN KHETI SAHKARI MANDALI AND DISCLOSED CONSIDERATION AS REGISTERED IN THE DO CUMENT WAS RS.3 32 100 AND THE BALANCE UNDISCLOSED CONSIDERATION RECEIVED BY THE A SSESSEE WAS ASSESSED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT RS.24 12 180. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE DELETED THE ADDITION BY GIVING FOLLOWING FINDINGS AT PARAGRAPH 18 :- 18. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MAD E IN RESPECT OF THIS GROUND OF APPEAL AND I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AND COPY OF THE SEIZED DOCUMENT. PERUSAL OF SEIZED DOCUMENT IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 35 SHOWS THAT NEITHER THE SURVEY NUMBER OF LAND NOR TH E LOCATION IS MENTIONED NOR DOES THE AREA OF THE LAND TALLY. NAM ES O TWO OTHER PERSONS IS NOTED ON THIS PAPER. WHILE THE ALLEGED LAND ON SURVEY NO.244 BELONGS TO THE APPELLANT AS THE SOLE OWNER. HENCE CERTAINLY THE DOCUMENT DOES NOT RELATE TO THIS LAND AND NO AD VERSE INFERENCE COULD BE DRAWN ON THE BASIS OF THIS PAPER. IT IS A LSO SEEN THAT THIS LAND WAS PURCHASED BY KAILASH DARSHAN KHETI SAHAKARI MAN DLI. THE ISSUE HAS BEEN DISCUSSED AT LENGTH WHILE DEALING WITH THE MAIN GROUND OF APPEAL AND IT IS SEEN THAT THE RATE OF SALE IN RESP ECT OF ALL THE LANDS IN THE IMMEDIATE VICINITY WAS ACCEPTED EVEN IN BLOCK A SSESSMENT OF THE PURCHASER. AS THE DOCUMENT APPARENTLY DOES NOT REL ATE TO THIS PROPERTY AND AS THERE WAS NOTHING TO SHOW THAT ANY AMOUNT OV ER AND ABOVE THE CONSIDERATION SHOWN IN THE SALE DEED WAS RECEIVED O R PAID THE ASSESSING OFFICER WAS NOT AT ALL JUSTIFIED IN MAKIN G ANY SUCH ADDITION AND THE SAME IS DELETED. 20. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT LAND AT SU RVEY NO.244 IN MAKARBA VILLAGE BELONGS TO THREE CO-OWNERS VIZ. SHRI SORABJI KHURS IDJI SHRI CHATURBHAI PATEL AND SHRI JAYANTIBHAI MATHURBHAI. WE FIND FROM THE SEIZ ED PAPER PAGE 117 ANNEXURE A-1 THAT THE ASSESSING OFFICER HAS PRESUMED THE LAND AT SURVEY NO.244 AND IN THIS PAPER THERE IS NO MENTION OF ANY SURVEY NUMBER OR THE IDE NTIFICATION OF LAND AND EVEN THE AREA MENTIONED IN THE LOOSE PAPER WHEREIN JOTTINGS ARE NOTED THE AREA DIFFERS FROM THE LAND AT SURVEY NO.244 WHICH IS EVIDENT FROM TH E CONVEYANCE DEEDS FILED IN THE ASSESSEES PAPER BOOK. THE LD.DR BEFORE US ALSO HA S NOT MADE ANY SERIOUS ARGUMENTS WITH RESPECT TO THIS ADDITION HENCE THE COMMISSIONER OF INCOME TAX (APPEALS) HAS CORRECTLY DELETED THE ADDITION BY HOL DING THAT THERE IS NOTHING TO SHOW THAT THIS PROPERTY IS THE SAME PROPERTY AS NOTED IN THE DOCUMENTS AND THIS DOES NOT SUGGEST THAT AN AMOUNT OVER AND ABOVE THE CONSIDERA TION SHOWN IN THE SALE DEED WAS RECEIVED OR PAID. ACCORDINGLY WE CONFIRMED TH E ORDER OF CIT(A) AND THIS ISSUE OF THE REVENUES APPEAL IS ALSO DISMISSED. 21. THE NEXT ISSUE IN THIS APPEAL OF REVENUE IN IT(SS)A NO.152/AHD/2002 IN THE CASE OF SHRI HIRENBHAI S PATEL IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDI TION MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINE D INVESTMENT ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT. FOR THIS REVENUE HAS RAISED THE FOLLOWING TWO GROUNDS :- I) THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE ADDITION OF RS.1 55 000/- MADE BY THE A.O ON ACCOUNT OF UNEXPL AINED INVESTMENTS. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 36 II) THE LEARNED CIT(A) HAS ERRED IN LAW AND IN FACT S IN ADMITTING THE NEW EVIDENCE WHICH IS NOT ALLOWABLE UNDER RULE 46A(1) O F THE I.T. RULE. LD. CIT(A) HAS ADMITTED THE NEW ARGUMENTS THAT INVESTMENT IS O UT OF SAVING FROM AGRICULTURAL INCOME. 22. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. THE BRIEF FACTS ARE THAT THE ASSESSING OF FICER MADE ADDITION OF UNEXPLAINED INVESTMENT U/S.69 OF THE ACT AMOUNTING TO RS.1.55 L AKH ON ACCOUNT OF TWO DEPOSITS FOUND IN ASSESSEES BANK ACCOUNT NO.1417 OF KALUPUR COMMERCIAL CO.OP BANK LTD. ON 24-08-1995 RS 95 000/- AND ON 19-09-1994 RS.60 0 00/-. THE ASSESSEE WAS SERVING WITH A CONSTRUCTION COMPANY AND DRAWING SAL ARY. THE AO DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS NOTED THAT THE ASSE SSEE WAS FOUND HAVING 25 GM. OF GOLD JEWELLERY AND ACCORDINGLY THE LIVING STANDA RD OF ASSESSEE WAS VERY ORDINARY AND ACCORDING TO HIM THE DEPOSIT OF RS.1.55 LAKH I S OUT OF UNEXPLAINED INVESTMENT AND ACCORDINGLY ADDED THIS DEPOSIT AS UNEXPLAINED I NVESTMENT MADE OUT OF UNDISCLOSED INCOME FOR THE BLOCK PERIOD I.E. 1-4-19 95 TO 25-9-1998 U/S 69 OF THE ACT. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A). BEFORE CIT(A) IT WAS EXPLAINED THAT THESE DEPOSITS ARE OUT OF SALARY INCOME AGRIC ULTURAL INCOME OF ASSESSEES WIFE AND PIN-MONEY AND GIFTS RECEIVED BY WIFE AND CHILDR EN ON VARIOUS FESTIVAL AND OCCASIONS WHICH WERE DEPOSITED IN ASSESSEES BANK ACCOUNT. THE ASSESSEE ALSO EXPLAINED THAT ASSESSEES WIFE WAS HAVING AGRICULTU RAL LAND AND SHE WAS HAVING AGRICULTURAL INCOME AND THESE SAVINGS ARE MAINLY OU T OF AGRICULTURAL INCOME AND SHE DEPOSITED IN ASSESSEES BANK ACCOUNT. THE CIT(A) AF TER CONSIDERING THE EXPLANATION DELETED THE ADDITION BY GIVING FOLLOWING FINDING IN PAGE-4 OF HIS APPELLATE ORDER:- AFTER CONSIDERING THE OBSERVATIONS OF THE ASSESSIN G OFFICER AND THE SUBMISSIONS MADE BY THE APPELLANT I FIND THAT THER E IS SUBSTANCE IN THE SUBMISSIONS OF THE APPELLANT THAT SAVINGS AVAILABLE WITH THE APPELLANT OUT OF HIS SALARY INCOME THE SAVINGS OUT OF AGRICULTURAL INCOME OF THE WIFE OF THE APPELLANT AND THE SAVINGS OUT OF THE PIN-MONEY GIFT S RECEIVED ON VARIOUS SOCIAL AND FESTIVAL OCCASIONS CAN HAVE ACCUMULATED SAVING FUNDS FOR MAKING DEPOSIT INTO THE BANK ACCOUNT FOR AN AMOUNT OF RS.1 55 000/-. IT IS SEEN FROM THE RECORDS THAT APPELLANTS WIFE WAS HAVING SUBSTA NTIAL AGRICULTURAL HOLDING AND AGRICULTURAL INCOME AND AS SUCH IF CREDIT FOR T HAT IS GIVEN THE AMOUNT OF DEPOSIT GETS EXPLAINED. ADDITION OF RS.1 55 000/- M ADE ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69 IS THEREFORE DELETED . AGGRIEVED NOW REVENUE PREFERRED APPEAL BEFORE TRIB UNAL. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 37 23. WE FIND THAT ASSESSEE WAS EMPLOYED WITH A CONST RUCTION COMPANY. AS NOTED FROM THE RECORDS THE ASSESSEES FAMILY CONSISTS OF TWO MINOR SONS SELF AND HIS WIFE. THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFTS ON VARI OUS OCCASIONS IN THE FORM OF CASH FROM RELATIVES AND ASSESSEES FATHER-IN-LAW. T HE ASSESSEES WIFE WAS HAVING SUBSTANTIAL AGRICULTURAL LAND AS NOTED IN THE CASE OF SMT. INDIRABEN H PATEL IN IT(SS)A NO.191/AHD/2002 WHEREIN ASSESSEES WIFE WAS OWNER OF AGRICULTURAL LAND AT MAKARBA GAM AND ALSO PURCHASED AGRICULTURAL LAND AT VILLAGE TELAV. WE FIND FROM THE LEADING CASE IN IT(SS)A NO.203/AHD/2002 IN THE CASE OF SHRI CHATURBHAI B PATEL THAT THE ASSESSEES WIFE WAS HAVING SUBSTANTIAL A GRICULTURAL LAND AND SHE EARNED AGRICULTURAL INCOME. ACCORDINGLY THE SOURCE S OF THE DEPOSITS IN BANK ACCOUNT IS EXPLAINED AND HENCE WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). ACCORDINGLY WE CONFIRM THE ORDER OF CIT(A) AND THIS ISSUE OF REVEN UES APPEAL IS DISMISSED. NOW COMING TO CROSS APPEALS IN IT(SS)A NO.206/AHD/2 002 OF REVENUES APPEAL AND IN IT(SS)A NO.191/AHD/2002 OF ASSESSEES APPEAL . 24. THE ONLY COMMON ISSUE IN THESE CROSS-APPEALS IS AS REGARDS TO ORDER OF CIT(A) IN RESTRICTING THE ADDITION AT RS.8 LAKH AS AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER AT RS.1 21 96 170/-. FOR THIS TH E REVENUE HAS RAISED THE FOLLOWING GROUND NO.1 :- 1(A) THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FA CTS DELETING THE ADDITION OF RS.1 21 96 701/- BEING UNEXPLAINED INVESTMENT IN PU RCHASE OF LAND AT TELAV. 1(B). IGNORING THE DOCUMENT IN POSSESSION OF THE DE PARTMENT AS DISCUSSED IN THE ASSESSMENT ORDER. AND THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS 1-2 :- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING OF THE ADDITION OF RS.8 00 000/- ON SUBSTANTATIVE BASIS OU T OF ADDITION OF RS.1 21 96 170/- AS MADE BY THE A.O. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE AGRICULTURAL INCOME CANNOT HAVE BEEN KEPT FOR A HUG E AMOUNT IN CASH AND ACCORDINGLY THE INVESTMENT MADE BY HE APPELLANT OUT OF HER AGRICULTURAL INCOME FOR AN AMOUNT OF RS.8 LAKHS FOR ACQUISITION OF AGRICULTURAL LAND REPRESENTS UNEXPLAINED INVESTMENT IN THE PROPERTY. 25. THE BRIEF FACTS LEADING TO THE ABOVE COMMON ISS UE ARE THAT DURING THE COURSE OF SEARCH AT RESIDENTIAL PREMISES OF ASSESSEES FAT HER SHRI CHATURBHAI B PATEL A IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 38 DOCUMENT WAS SEIZED WHICH ALLEGEDLY INDICATED PURCH ASE OF LAND AT VILLAGE TALAV FOR A SUM OF RS.1 21 96 170/-. ACCORDING TO THE ASSESSI NG OFFICER DURING THE COURSE OF SEARCH ASSESSEES FATHER HAD STATED THAT THE SAID LAND WAS PURCHASED BY HIM OUT OF UNACCOUNTED SALE CONSIDERATION RECEIVED. BASED ON F INDINGS GIVEN IN CHATURBHAI PATEL THE ASSESSING OFFICER ADDED UNEXPLAINED INVE STMENT IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. LD. COUNSEL FOR THE A SSESSEE FILED DETAILED PAPER BOOKS IN THE CASE OF CHATURBHAI PATEL AND THE ASSES SEE. LD COUNSEL POINTED OUT THAT THE FINDINGS GIVEN IN THE CASE OF CHATURBHAI PATEL WOULD ALSO BE RELEVANT WHILE DECIDING THIS ISSUE AND THE SAME MAY BE FOLLOWED HE RE ALSO. THE CIT(A) RESTRICTED THE ADDITION AT RS.8 LAKH AND DELETED THE BALANCE A DDITION OUT OF THE TOTAL ADDITION MADE BY ASSESSING OFFICER AT RS.1 21 96 170/- BY GI VING FOLLOWING FINDINGS:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE AN D I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. I FIND THAT EXCEPT FO R THE RETRACTED STATEMENT OF APPELLANTS FATHER AND THE ALLEGED SEIZED DOCUMENT THERE WAS NO OTHER EVIDENCE TO SUBSTANTIATE THE CLAIM OF UNEXPLAINED I NVESTMENT. WHILE DECIDING THE APPEAL OF CHAURBHAI PATEL IT WAS FOUND THAT THE SAID SEIZED DOCUMENTS WAS UNDATED IT DID NOT BEAR NAME OF ANY PARTY NO SURVEY NUMBER OR LOCATION OF THE PROPERTY WAS MENTIONED AND EVEN THE MEASUREM ENT OF LANDS DID NOT TALLY WITH THE MEASUREMENT OF LAND OF PROPERTY AT V ILLAGE TALAV WHICH WAS ALLEGEDLY PURCHASED OUT OF UNDISCLOSED SALE CONSIDE RATION RECEIVED BY APPELLANTS FATHER. THUS IT CANNOT BE HELD THAT THI S DOCUMENT RELATED TO PURCHASE OF PROPERTY AT VILLAGE TALAV. IT IS ALSO S EEN THAT PROPERTY AT VILLAGE TALAV WAS PURCHASED FROM VARIOUS PERSON FOR A CONSI DERATION OF RS.8.65 LAKHS AND NOT FOR RS.1.21 96 170/- AS INDICATED IN THE SE IZED DOCUMENT WHICH INCIDENTALLY DOES NOT APPEAR TO BE RELATED TO THIS PROPERTY AND AT BEST CAN BE TREATED AS A DUMB DOCUMENT. THE SAID DOCUMENT IS NO T IN THE HANDWRITING OF THE APPELLANT OR HIS FATHER. IT HAS BEEN HELD IN TH E CASE OF THE APPELLANTS FATHER THAT NO ADVERSE INFERENCE COULD BE DRAWN ON THE BASIS OF RETRACTED STATEMENT AND THE SO CALLED SEIZED DOCUMENTS. IT IS SEEN THAT NO CORROBORATIVE EVIDENCE WAS BROUGHT ON RECORD TO INDICATE THAT ANY AMOUNT OVER AND ABOVE THE AMOUNT MENTIONED IN SALE DEED WAS PAID BY THE A PPELLANT. THE APPELLANT HAS ALSO CLAIMED THAT THE PROPERTY IN QUESTION WAS PURCHASED OUT OF HER OWN AGRICULTURAL INCOME AND THE PROPERTY STANDS IN HER NAME. IN THE CIRCUMSTANCES ADDITION IF ANY COULD BE MADE ONLY IN THE HANDS OF THE APPELLANT AND NOT IN THE HANDS ANYBODY ELSE KEEPING IN VIEW THE PROVISIONS O F BENAMI TRANSACTION (PROHIBITION) ACT. THUS THE ADDITION IS BEING CONSI DERED ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT. AS DISCUSSED EARLIER ON ENQUIRY WAS MADE BY THE ASSESSING OFFICER NOR THE MATTER WAS REFERRED T O THE VALUATION CELL WHICH COULD INDICATE THAT THE VALUE OF THE PROPERTY WAS D IFFERENT TO THAT RECORDED IN THE SALE DEED. THE SELLERS WERE ALSO NOT EXAMINED A ND IN THE CIRCUMSTANCES THE VALUE SHOWN IN THE SALE DEED HAS TO BE ADOPTED AS THE ACTUAL AMOUNT INVESTED FOR PURCHASE OF THIS PROPERTY. DURING THE COURSE OF HEARING OF APPEAL THE LD. AUTHORIZED REPRESENTATIVE WAS ASKED TO EXPL AIN FROM WHERE THE APPELLANT INVESTED VARIOUS AMOUNTS FOR PURCHASE OF THESE PROPERTIES. THE REPLY OF THE APPELLANT IS AS UNDER:- IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 39 THE APPELLANT HAS PURCHASED THE LAND AT VILLAGE TA LAV. TALUKA SANAND ON 12/7/96. THE DETAILS OF WHICH ARE AS UNDER:- SURVEY DATE OF CONVEYANCE NAME OF THE AMOUNT NO. & NO. SELLER (RS) 217 12/7/96 NO.1528 VALIBHAI NABIBHAI MOMIN 3 00 000 218 12/7/96 NO.1529 GULAMBHAI JEMALBHAI MOMIN 3 70 000 P IRMBHAI ALIBVHAI MOMIN 213/2 12/7/96 NO1530 SHTH NUTANKUMAR KUMARPAL S HEIH DIPAKKUMAR KUMARPAL 1 95 000 THE SOURCE OF ACQUISITION OF SAID LAND WAS MY AGRIC ULTURAL INCOME AND THE AGRICULTURAL INCOME WAS EARNED BY ME OUT OF THE AGR ICULTURAL LAND AT SURVEY NO.268 SITUATED AT VILLAGE MAKARBA. THE PROOF OF EA RNING THE AGRICULTURAL INCOME VIZ. 7/12 EXTRACTS SINCE 1972 WERE PROVIDED TO THE LEARNED A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE DETAILED REPLY FOR THE OWNERSHIP OF SURVEY NO.268 IN AGRICULTURAL LAND WAS GIVEN TO THE LEARNED A.O VIDE LETTER DATED 14/9/2000 AND THE SAME IS COMPLIED IN THE PAP ER BOOK AT PAGE NO.41 TO 97 AND THE EXPLANATION FOR THE SOURCE OF ACQUISITIO N OF LAND AT VILLAGE. TALAV WAS GIVEN VIDE LETTER DATED 19/9/2000 WITH SUPPORTI NG EVIDENCE. THE SAME IS COMPLIED IN THE PAPER BOOK PAGE NO. 98 TO 187 WHERE IN SUPPORTING EVIDENCE COMPLIED AT PAGE NO.174 TO 177. AFTER GOING THROUGH THE ABOVE REPLY I FIND THAT APA RT FROM THE SUM OF RS.8.65 LAKH PAID AS SALE CONSIDERATION EXPENSES ON ACCOU NT OF STAMP DUTY ETC. MUST HAVE BEEN BORN BY THE APPELLANT AND THE TOTAL AMOUN T INVESTED WOULD BE TO THE TUNE OF RS.10 LAKH APPROXIMATELY. THE CLAIM THA T THE SAME WAS OUT OF AGRICULTURAL INCOME IS ALSO SNOT FULLY SUBSTANTIATE D BECAUSE THE ALLEGED AGRICULTURAL LAND BECAME THE SOLE PROPERTY OF THE A PPELLANT SOMEWHERE IN THE YEAR 1994 OR 1995 PRIOR TO THAT UPTO THE YEAR 1982. THE SAID LAND WAS OWNED BY APPELLANTS MOTHER AND AFTER HER MOTHERS DEATH UPTO THE YEAR 1989 THE PROPERTY WAS UNDER OWNERSHIP OF THE APPELLANT AND H ER SISTER HANSABEN. THERE IS NOTHING TO SHOW THAT SUCH A HUGE AMOUNT WA S EARED AND KEPT IN CASH WITH THE APPELLANT DURING THIS PERIOD. IT IS A LSO SEEN THAT THE APPELLANT WAS HAVING A JOINT BANK ACCOUNT WITH HER HUSBAND AN D HENCE NORMALLY SUCH HUGE AMOUNT OF CASH SHOULD HAVE BEEN KEPT IN THE BA NK ACCOUNT. IT IS ALSO SEEN THAT EARNINGS OF APPELLANT AND HER HUSBAND WER E ALSO NOMINAL HENCE PART OF AGRICULTURAL INCOME MUST HAVE BEEN SPENT FO R HOUSE HOLD EXPENSES AS WELL. BESIDES THIS WHILE DECIDING THE ASSESSMENT O F APPELLANTS HUSBAND CREDIT OF AGRICULTURAL INCOME WAS ALSO GONE AS DEPO SITS OF RS.1.50 LAKH WERE MADE IN FORM THE JOINT BANK ACCOUNT AND IT WAS CLAI MED THAT PART OF IT WAS OUT OF AGRICULTURAL INCOME. THUS THE CLAIM THAT SUCH A HUGE AMOUNT WAS KEPT IN CASH DOES NOT APPEAR REASONABLE. HOWEVER SOME CRED IT FOR AGRICULTURAL INCOME SPECIALLY AFTER THE DATE OF DEPOSIT IN BANK ACCOUNT COULD BE GIVEN. IT THE SAME IS DEDUCTED THE BALANCE AMOUNT OF RS.8 LAK H WOULD REPRESENT UNEXPLAINED INVESTMENT IN THIS PROPERTY. THE ADDITI ON IS THEREFORE RESTRICTED TO RS. 8 LAKH ON SUBSTANTIVE BASIS AND THE BALANCE AMO UNT IS DELETED. IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 40 26. WE FIND THAT THIS ISSUE HAS ALREADY BEEN DEALT WITH IN THE CASE OF CHATURBHAI B PATEL IN IT(SS)A NO.203/AHD/2002 AND BOTH THE PARTIES MADE SAME SUBMISSIONS. ACCORDINGLY WE HAVE ALREADY ANSWERED THAT THE UNAC COUNTED INVESTMENT MADE IN THE PURCHASE OF TELAV LAND BY SMT. INDIRABEN H PATE L IS WITHOUT ANY BASIS AND WE HAVE ALREADY DELETED THE UNDISCLOSED INCOME ASSESSE D IN THE HAND OF CHATURBHAI B PATEL. TAKING A CONSISTENT VIEW WE ARE OF THE CONS IDERED OPINION THAT THE CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION AT RS.8 LAKH AND DEL ETED THE BALANCE ADDITION. THE CIT(A) HAS CONFIRMED THE ADDITION BY GIVING THE REA SONS FOR A SUM OF RS.8 LAKHS THAT THERE IS NOTHING TO SHOW THAT SUCH A HUGE AMOU NT WAS EARNED BY THE ASSESSEE OUT OF AGRICULTURAL INCOME AND KEPT IN CASH DURING THIS PERIOD. WE FURTHER FIND THAT THE ASSESSEE WAS HAVING A JOINT BANK ACCOUNT WITH HER H USBAND AND HENCE NORMALLY SUCH HUGE AMOUNT OF CASH SHOULD HAVE BEEN KEPT IN T HE BANK ACCOUNT AS NOTED IN THIS ORDER IN IT(SS)A NO.152/AHD/2002 IN THE CASE OF HIRENBHAI S PATEL. WE FIND FROM THE RECORDS THAT WHILE DECIDING THE ASSESSMENT OF ASSESSEES HUSBAND CREDIT OF AGRICULTURAL INCOME WAS ALSO GONE AS DEPOSITS OF RS.1.50 LAKH IN FORM THE JOINT BANK ACCOUNT AND IT WAS CLAIMED THAT PART OF IT WAS OUT OF AGRICULTURAL INCOME. THUS THE CLAIM THAT SUCH A HUGE AMOUNT WAS KEPT IN CASH DOES NOT APPEAR REASONABLE. BUT WE FIND THAT THE CIT(A) HAS ALREADY ALLOWED SOM E CREDIT FOR AGRICULTURAL INCOME SPECIALLY AFTER THE DATE OF DEPOSIT IN BANK ACCOUNT WHICH HAS RIGHTLY BEEN GIVEN. ACCORDINGLY WE UPHOLD THE ORDER OF CIT(A) AND THIS ISSUE OF BOTH I.E. THE REVENUE AND THAT OF THE ASSESSEE IS DISMISSED. 27. THE ONLY COMMON ISSUE IN REVENUES APPEALS IN IT(SS)A NO.204/AHD/2002 AND IT(SS)A NO.205/AHD/2002 AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITIO N OF UNDERSTATEMENT OF PURCHASE OF LAND AT VILLAGE MAKAR BA. FOR THIS REVENUE HAS RAISED THE FOLLOWING GROUND NO1 :- IT(SS)A NO.204/AHD/2002 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING AN ADDITION OF RS.79 58 335/-MADE U.S 69 OF THE I.T. ACT AS ALLEGE D UNDERSTATEMENT IN PURCHASE OF LAND AT VILLAGE MAKARBA. ON FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE ORDER OF ASSESSING OFFICER. IT(SS)A NO.205/AHD/2002 IT(SS)A NO.203 151 191 204- 206/AHD/02 B.P. 1 /4/88 TO 25/9/98 DCIT CC-1(4) ABD V. SMT. NIDIRABEN H PATEL& OTRS. PAGE 41 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING AN ADDITION OF RS.74 12 180/- AS UNEXPLAINED INVESTMENT BEING THE DIFFERENCE BETWEEN PRICE PAID AND AMOUNT NOTED IN DOCUMENT SEIZED AT THE RES IDENCE OF SHRI CHATURBHAI PATEL SELLER IN RESPECT OF LAND AT MAKA RBA BEARING SURVEY NO.244. 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 28. WE HAVE HEARD BOTH THE SIDES AND NOTICED THAT T HIS ISSUE WE HAVE ALREADY DEALT WITH IN THE CASE OF CHATURBHAI B PATEL IN IT(SS)A NO.203/AHD/2002 WHEREIN CONSIDERING THE SETTLEMENT COMMISSIONER ORDER HAS C ONSIDERED THE LOOSE PAPER NO.115 AND 117 OF ANNEXURE-A/1 THE SIMILAR BEING T HE ISSUE IN THE PRESENT APPEALS AND THE FACTS BEING IDENTICAL TAKING A CONSISTENT VIEW WE DISMISS THE ISSUES RAISED BY THE REVENUE AND UPHELD THE ORDER OF CIT(A). BOTH THE APPEALS OF REVENUE ARE DISMISSED. 29. IN THE RESULT ALL APPEALS OF REVENUE AND THAT OF A SSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THIS DAY OF 29 TH OCT 2010 SD/- SD/- ( G.D.AGARWAL ) ( MAHAVIR SINGH ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD DATED : 29/10/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-I AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD