IN 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) 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 Patel Room No.305, 3 r d Floor, L/h Shri Chaturbhai B Patel Aayakar Bhavan, Ashram Road Patelbaug, Makarba Gam Ahm edabad Sarkhej, Ahmedabad PAN No. Not found. Smt. Indiraben H Patel -vs- DCIT, Central Circle-1(4), F/4, Samartheshwar Flat, Ahm edabad Opp. Dr. House, Ahmedabad DCIT, Central Circle-1(4), -vs- Indiraben Hiranbhai Patel Room No.305, 3 r d Floor, F-4, Sam rutheshwar Flats, Aayakar Bhavan, Ashram Road, Opp. Doctor House, Ahmedabad (Appellant) (Respondent) IT(SS) No.152/ Ah d/2002 [Block period from 1/4/88 to 25/9/98] DCIT, Central Circle-1(4), -vs- Shri Hirenbhai Shantilal Patel Room No.310, 3 r d Floor, F-4, Sam arthaeshwar Flat Aayakar Bhavan, Ashram Road Opp. Doctor House, Ahm edabad Ahm edabad PAN No. Not found (Appellant) (Respondent) IT(SS) No.204-205/ Ahd/2002 [Block period from 1/4/88 to 25/9/98] DCIT, Central Circle-1(4), -vs- Sat yaavati J Agrawal Room No.310, 3 r d Floor, Fst Floor, Blue Star Com plex Aayaka Bhavan, Ashram Road Nr.Old High Court Rly.Crossing Ahm edabad Ahm edabad PAN No. Not found DCIT, Central Circle-1(4), -vs- Kailash Darshan S Sahkari Kheti Room No.310, 3 r d Floor, Mandli Ltd., Vibhag-I, 2 n d 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 2 Ahm edabad Theatre, Satellite, Ahmedabad PAN No. Not found (Appellant) (Respondent) Revenue by : Shri Alok Johri, CIT-DR Assessee by: Shri Dhiren Shah, AR ORDER PER Mahavir Singh, Judicial Member:- Out of these six appeals 5 by Revenue and one by assessee are arising out of orders of Commissioner of Income-tax (Appeals)-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. block assessments were framed by DCIT, Central Circle-1(4), Ahmedabad u/s.158BC of Income-tax Act, 1961 (hereinafter referred to as Act ) vide his order dated 29-09-2000 for block period from 01-04-1988 to 25-09-1998. 2. first issue in Revenue s appeal in IT(SS)A No.203/Ahd/2002 is as regards to order of CIT(A) deleting addition made by Assessing Officer being profit on sale of land at village Makarba. For this, Revenue has raised following ground No.1:- Learned CIT(A) has erred in law and on facts in deleting addition of Rs.3,43,81,674/- being profit on sale of land at Makarba village. Ignoring documents in possession of Department. 3. brief facts leading to above issue are that search was carried out at residence of assessee on 25-09-1998 u/s.132 of Act and during search documents as Annexure-A/1 to A/6 of panchnama dated 25-09-1998 was found and seized. notice u/s.158BC of Act was issued on 09-04-1999 for filing Block Return for block period 01-04-1988 to 25-09-1998 and assessee filed block return declaring loss at Rs.10,59,099/- on 06-12-1999. assessee subsequently revised return on 31-08-2000 declaring loss at Rs.10,36,988/-. Assessing Officer during block assessment proceedings noticed from loose paper inventorized as Annexure-A/1 page 115 and reproduced notings in 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), bd 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. Assessing Officer required assessee to explain amount noted in this seized paper at Rs.5,96,23,000/- and also survey No. ad measuring 1,32,496 sq.yd. AO further noted from page No.117 of inventorized document Annexure-A/1 that assessee has made following investments:- Sr. Prescription of assets in which investment Amount No have been made or expenditures have been incurred 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), bd 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 name of his Rs. 40,00,000 wife. 13. To be received from Chimanlal Agarwal Rs 1,00,00,000 Rs.3,67,45,569 Assessing Officer considering page No.115 of Annexure-A/1 and investments as noted above arriving on conclusion on basis of following points:- 1. Page No.115 of Annexure A-1 seized from residence of assessee at Patelvas, Makarba Gam, Ahmedabad. 2. Statement given by assessee at beginning as well as conclusion of search. 3. Investment in various immovable properties. 4. Expenditure on purchase of various movable assets and gifts. According to Assessing Officer, assessee has sold land to Chimanlal Aggarwal Group at Rs.450/- per sq.yd. as against disclosed rate at Rs.150/- per sq. yds. in sale deeds. AO tabulated sale consideration as per sale deeds vis- -vis Survey No., sq. yd. and amount received and finally held that assessee has actually received sum of Rs.5,21,72,004/- as against amount as shown in sale deed at Rs.1,77,90,330/-. Accordingly, he assessed undisclosed sale consideration as undisclosed income for block period at Rs.3,43,81,674/- of assessee. Aggrieved, assessee preferred appeal before CIT(A). CIT(A) after considering submissions and evidences deleted addition by giving following findings in para-9, 9.1 and 9.2:- 9. After considering entire issue carefully, I find that assessment appears to be solely based on retracted statement of appellant. Even document has not been relied upon by assessing officer, because if he had relied on document seized, sale consideration should have been taken at about 5.96 crores as against which assessing officer has adopted figure of Rs.5.21 crores. Thus assessing officer has himself discarded alleged seized documents and adopted different figure as sale consideration of property. Here it would be relevant to point out that statement recorded at time of search on 25/9/1998 was retracted on 26/9/1998 by way of affidavit. In fact search 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 5 over on 26/9/1998 as locker of appellant s son in law was still under prohibitory order. In fact witnesses to search also confirmed contentions of appellant that statement recorded at time of search under compelled circumstances and under deteriorated health conditions. witnesses also stated that at that time appellant did not appear to be in normal state of mind. All this throws serious doubt veracity of statement recorded at time of search which also suffers from many infirmities and contradictions as evident from facts stated in para 4(g) to 4(i) of this order. Even in such circumstances, no statement was recorded by A.D.I.T. or assessing officer, when statement under section 132(4) was retracted. It has been held by Honourable Supreme Court in case of Palani Swami Vs. State of Tamil Nadu AIR 1956 (S.C) 593, that where circumstances cast suspicion on genuineness of confession, corroboration is necessary, apex court in case of Pangmbam Kalanjoy Singh Vs. State of Manipur AIR 1956 (S.C) it has held that confession, even if inculpatery, should be corroborated, if retracted and corroboration has obviously to be done on basis of independent evidence. Nothing to this effect was done even though statement was retracted by appellant and even when independent witness to search had confirmed that statement was recorded under compelled circumstances. Thus veracity of statement recorded under section 132(4) of Act, gets diluted considerably and unless it is backed by independent corroborating evidence, no addition could be made. It is seen that except for alleged seized document and retracted statement, no other independent evidence was available with assessing officer. In his remand report also assessing officer has stated that sale consideration has been worked out by applying rate of Rs.450/- per sq.mt. to area of land based on appellant s statement. Thus except for appellant s retracted statement no corroborating evidence was brought on record by assessing officer. so-called application of funds is also based on retracted statement and there is no evidence to prove alleged application of funds. assessing officer in his remand report has pointed out to various documents seized from premises of Agrawal Estate Organisers Ltd. to show that there was understatement of consideration in various deals. However, it is seen that except for one or two instances, which were directly related to appellant s retracted statement, no addition was made in any case in their respective block assessments and rates as shown have been accepted even though land sold was in immediate vicinity of appellant s land. In case of M/s.Kailash Darshan Kheti Sahakari Mandli Ltd., Vibhag-I, following lands were purchased at Makarba : Sr. Survey Area in Name of Seller Date of sale Amount in Rate per No. No. Sq.Mt. deed Rs. 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 above case assessment was completed under section 158BD of Act and vide notice under section 142(1) DATED 11/4/2001, 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 6 society was asked to explain why rate of Rs.450/- per sq.mts should not be taken for all land as it was situated in vicinity of land of Chaturbhai Patel. However, after reply of that assessee except for survey No.244, sold by appellant, rates as shown by society were accepted and no addition was made. If land in immediate vicinity was sold for rates varying between Rs.59.80 per sq.met. to Rs.179.40 sq.mt. in year 1996, then how land of Shri Chaturbhai Patel which was sold in year 1995 was at rate of Rs.450/- per sq.mtr. is beyond imagination, and if this was correct rate when why all other land allegedly sold at rate much lower rate was accepted by same assessing officer again shows that statement of appellant was not free from doubt. It is also seen that in all other cases relied upon by assessing officer like in case of Kailash Darshan Kheti Sahakari Mandli Ltd., Vibhag-II, Akash Varsha Farms Ltd., Himalaya Darshan Samudayik Kheti Sahakari Mandli Ltd., Changanbhai Becharbhai Prajapati, no addition was made in block assessment. In fact instances relied upon by assessing officer is his remand report are of cases where no addition was made in block assessments and as such reliance is entirely misplaced. To sum up, it is seen that addition was unjustified for following reasons- i) assessing officer has himself disregarded figures of alleged sale consideration mentioned on document seized at time of search and in all fairness it can be said that he has not at all relied on seized document. ii) seized document is on letter head of Taj Hotel, Agra and not on letter head of appellant. It does not bear any date or name of any party. It does not bear signature of any party and it does not denote any money transaction. document is not in handwriting of appellant or any of his family members and before assessing officer it was also stated that said document was in fact not even found from possession of appellant. None of parties to so called transaction ever stated that any money over and above consideration mentioned in sale deed was paid or received. iii) alleged application of excess funds is not substantiated by any evidence. iv) Entire addition is based on retracted statement of appellant and no corroborative evidence was brought on record. Even instances pointed out by assessing officer in his remand report go to support case of appellant because in no other case any addition was made while framing block assessment under section 158BD of Act. 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 has been made because it was found that said over valuation was made simply for purposes of obtaining bank advances. In fact no addition was made in block assessment after making specific queries in this regard. v) There is no evidence to suggest any monthly cash payment as alleged by assessing officer in remand report. assessing 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 7 out that document was seized showing cash payment of Rs.5 lakhs from residence of Shri Chimanlal Agarwal. However, this payment is part of consideration recorded in sale deed in which there is mention of this payment. Thus alleged document does not prove anything against appellant as it represents recorded payment relating to sale of land. vi) It is seen that after appellant retracted his statement given at time of search and witness also stated that statement was recorded under compulsion, none of them were examined to rebut retraction affidavit or statement furnished by witness. vii) Once statement was retracted, assessing officer referred matter to Departmental Valuation Cell to find out fair market value of land. relevant portion of letter written by District Valuation Officer by assessing officer is as under : During course of search at residence of Shri Chaturbhai Bababhai Patel some incriminating documents were found and seized. On basis of document, statement of Shri Chaturbhai B.Patel was recorded. In view of this statement Shri Chaturbhai B.Patel affirmed that lands were sold at rate of Rs.450/- per sq.mt. While in sale deed it was mentioned @ 150/- per Sq.Mt. After this search, Shri Chaturbhai B.Patel retracted this affirmation by filing affidavit. In this affidavit Shri Chaturbhai B.Patel contended that statement recorded during course of search was by compulsion and by threat. Therefore, this statement was involuntary and could not be relied upon. assessee further argued that while fixing premium collector has passed order adopting market price at Rs.200/- and Rs.185 per sq.mtr. In view of this order statement given by Shri Chaturbhai B.Patel is contrary to collector s order. assessee further argued when there are two contrary evidences, it should be referred to third party who can decide issue afresh. I, therefore, refer this issue to valuation officer to value fair market price as on 3/4/1997 of following lands. above shows that issue was referred to valuation cell to determine correct value of land. District Valuation Officer worked out fair market value of land inclusive of premium payable to Collector which is almost in conformity with value shown in sale deed. fact regarding valuation made has been totally ignored by assessing officer through it forms part of record. It is also seen that part of same property which was purchased by Agrawal group from appellant was sold at rate of Rs.185/- per sq.mt. and Clearance was issued by Appropriate Authority vide their order dated 15/3/2000, while seeking remand report assessing officer was asked to clarify justification for adopting higher rate when rate of sale was as per Collector s order and was also in conformity with valuation made by District Valuation officer and certificate issued by appropriate authority. assessing officer has only reiterated that value has been worked out on basis of statement of appellant at time of search 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 8 viii) While seeking remand report assessing officer was also informed that income in this case was from capital gains and once matter was referred to valuation cell value so determined was binding in view of Section 55 of Act. However, no comments have offered in this regard. ix) In his remand report assessing officer has pointed that similar additions were made in case of Shri Chimanlal Agarwal and others where respective persons had gone to Settlement Commission and petitions were admitted. In this regard, it is seen that additions in their cases was solely based on retracted statement of appellant and chose persons have not offered any additional income in respect of this transaction as issue had to be decided in case of appellant. It was also pointed out by learned authorized representative that said orders were passed after date of filing of Settlement Petition and as such were without jurisdiction in view of order of Special Bench of Settlement Commission in case of Damani Bros. 104 Taxman 203 (ITSC) (SB) and thus it could not form any basis for taking any view in appellant s case. All above shows that addition was not based on any evidence but only on retracted statement of appellant. rate adopted by assessing officer is also arbitrary as in respect of land in immediate vicinity assessing officer himself accepted similar rates in respect of block assessment. rate of sale of land is in conformity with rates accepted by assessing officer and rate adopted by Collector, District Valuation Officer and Appropriate Authority. There is nothing to show that anything over and above apparent consideration was paid or received. Thus I find no merit in adopting rate of Rs.450/- per sq.mt. which neither tallies with seized documents nor with valuation report of District Valuation Officer which was binding in nature. In case of Gaurang B.Solnaki Vs. ACIT reported in 120 Taxman 162, in this case Ahmedabad bench of Income-tax Appellate Tribunal, facts and findings of case are as under : As regards merits of case, addition was merely on basis of surmises, conjectures and presumptions. It was undisputed that no tangible assets in form of unexplained investments, cash etc., were found at time of survey which was subsequently converted in to search and seizure operation in case of assessee as well as his father, except cash of Rs.3,25,000/- which was admitted by father as belonging to him and not assessee. It was no doubt, true that assessee had sold 8 plots belonging to him which were received by him from his grand-mother in terms of will and out of six plots mentioned in seized paper, cheque payments in relation to five plots were same as shown in sale details. However, in respect of six plot, there was variation inasmuch as that in seized paper cheque payment of Rs.1,97,451/- was mentioned whereas actual sale deed was to extent of Rs.2,80,876/-. Assessing Officer had accepted sale rate shown by assessee in respect of remaining two plots which were sold by assessee for sale consideration of Rs.6,13,334/-, whose price was adopted by IT(SS)A No.203, 151,191,204- 206/Ahd/02 B.P. 1/4/88 to 25/9/98 DCIT, CC-1(4), bd v. Smt. Nidiraben H Patel& Otrs. Page 9 assessee in respect of remaining two plots which ere sold by assessee for sale consideration of Rs.6,13,334/-, whose price was adopted by assessing officer at Rs.3673200/- on basis of figures given in seized paper in assessment order and that assessment order was subsequently rectified by Assessing Officer himself by order under section 154. Before Tribunal assessee had filed comparable sale instances relating to plots in vicinity of plots belonging to assessee to indicate that sale price prevalent during relevant period varied from Rs.250/- to Rs.300/- per sq.mt. and it was nowhere near Rs.1200/- per sq.yd. and mentioned in seized paper. None of parties who had purchased plots has admitted having paid any `on money to assessee relating to transactions of sale of these plots by assessee. builder had admitted before Assessing Officer that his role in transactions was that mediator who got conversion of agricultural land into non-agricultural land before its sale. Assessing Officer did not enquire from builder as to what monetary benefit he got from their transactions because said builder could not have acted as mediator for charity sake between assessee and purchasers of plots. Anyhow fact remained that none of parties was involved in transactions of sale of plots by assessee to purchasers, viz , all purchasers, builder, assessee s father and assessee himself had admitted that amount of Rs.45 lacs cash had been received by assessee or given by any of parties to assessee. Further, there was no evidence on record to show that assessee, in fact had received alleged on money payment of Rs.45 lacs in respect of plots sold by him. There was no prevalence `on money in real estate/sale of plots in real estate business, but addition on account of `on money payments would not be justified, even of general note was taken of what was described by revenue authorities as notorious practice, in absence of tangible evidence. only evidence available in instant case was some notings on seized paper which were not in hand-writing of assessee or any of his family members nor name of assessee or any member of his family was written on paper, which was also not found from possession of assessee or from his premises but from premises of third party viz.., builder. No tangible assets in form of unexplained investments were found at time of search of assessee consequent to search and seizure operations in case of builder which could justify addition of Rs.45 lacs. Thus, keeping in view of totality of fats and circumstances of case, Assessing Officer was not justified in making disputed addition of Rs.45 lacs on account of alleged under-statement of sale consideration in relation to six plots sold by assessee. Accordingly, Assessing Officer was directed to take 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 10 per sale deeds in relation to six plots of land for purpose of calculating capital gains. x) Even observation regarding investment in Telav land is solely based on retracted statement of appellant and no enquiry of any sort has been made by assessing officer. land in question was not even referred to valuation and there was nothing to show that anything over and above amount mentioned in sale deed was paid or received. So far as alleged seized document is concerned, it is seen that document does not even bear location or survey number of property, there is no mention of any party s name, it is undated and it is not even handwriting of appellant or his family members. It is also seen that even are of land mentioned on this document does not tally with area of Telav land which was allegedly purchased out of unaccounted funds. various areas 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 survey number or location of land. area of land purchased at Telav was 57872 sq.yds. which does not tally with any of these figures. Therefore, said 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 land sold by appellant was in month of April, 1997 and hence it could not be said that it was application of unaccounted funds received because funds must have been received either at time of sale or at nearby date. It is also seen that land at Telav was in name of appellant s daughter and was purchased by her. In absence of any material to show that this land was purchased at higher rate observation made by assessing officer cannot be sustained. actual owner has claimed that this land was purchased form various persons for sum of Rs.8.65 lacs and was out of her own funds. As there is nothing to prove that land was purchased form funds of appellant and that too at such high rate, it has to be held that land was purchased by real owner only for sum of Rs.8.65 lakhs as nothing has been brought on record to show that anything over and above this amount was paid. observation of assessing officer is, therefore, irrelevant and not supported by any evidence and cannot have any bearing on determination of income. xi) So far as application of funds towards gift to sister is concerned, same is again based on retracted statement and assessing officer has not even cared to make any enquiry in this regard. Even name of so called sisters to whom amount of Rs.40 lakhs was gifted has not be brought on record either at time of assessment or in remand report. Hence, this finding is also irrelevant. xii) So far as deposits in bank to tune of Rs.40 lakhs is concerned, same was explained in details at time of assessment that it was out of sale proceeds of land which was received in instalment. same were also kept in FDs and money received on various dates till date of sale was deposited in this account. This sum is apparently out 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 11 xiii) assessing officer has pointed out that 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. only property identified in remand report is at Bhavnagar village in respect of property value mentioned on banakhat is only Rs.95,786/- out of which payment shown is only Rs.50,000/-. Thus, there is nothing to show that 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 on retracted statement of appellant. xv) Investment in Escort, Car, Tata Sierra and tractor and trolly were also duly explained and there is nothing to show that these purchases out of undisclosed funds. xvi) In case of appellant s daughter, where part of Survey No.268 was sold, no addition on account of understatement of consideration was made in block assessment, even though it was part of survey no.268 sold by appellant. 9.2. In view of facts as stated above and decisions of Income-tax Appellate Tribunal, I find no justification for this addition and same is deleted. Aggrieved, now Revenue came in appeal before us. 4. Before us Ld CIT-DR, Shri Alok Jhori first of all, stated that this undisclosed income was added on basis of loose papers found during course of search inventorized as Annexure-A/1 page 115, where facts regarding sale of agricultural land to Chimanlal Agarwal Group is clearly noted. According to Ld. CIT- DR, there is clear-cut notings in this paper that total consideration of sale was at Rs.5,96,23,200/- for agricultural land of 1,32,496 sq.yd, which gives sale rate at 450/- per sq.yd. Ld CIT-DR further stated that Assessing Officer has categorically recorded fact that assessee has made investment of this undisclosed sale consideration received on account of sale of agricultural land for amount of Rs.3,67,45,569/-, which is given at page-4 of assessment order, which detailed out each entry regarding investments like purchase of agricultural land, gifts to sister etc. and purchase of other assets. Ld CIT-DR also relied on statements of assessee recorded during course of search on 25-09-1998. Ld CIT-DR further stated that search was off shoot of search already taken place in case of Chimanlal Agarwal Group on 06-08-1998. 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 12 CIT(Appeals) has not gone into statement of assessee, which were recorded at time of search on 25-09-1998, wherein assessee clearly admitted to have sold land @ 450/- per sq.yd. which is supported by seized paper inventorized as Annexure-A/1 page 115, wherein assessee has recorded total sale consideration at Rs.5,96,23,200/-. He further stated that CIT(A) has wrongly placed reliance on alleged retraction filed through affidavit dated 26-09-1998. According to him, assessee in statement before search party clearly admitted to have sold land @ 450/- per sq.yd. to Chiman lal Aggarwal Group. He referred to paper book No.6 of 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 Q.17 at page-8 of assessee s paper book regarding sale of agricultural land at Survey No.13 of 1,32,496 sq.yd. and relevant question and answer 7, which reads as under:- Q. 7 Give details of purchase/sale of land by you. A. 7 Before about four to five years, I had sold aforesaid Makarba land ad measuring 25 to 30 bighas to Shri Chimanbhai Agarwal having his office in Blue Star Building by way of agreement for sale at rate of Rs.150.00 per square yard wherein I had received cheques of Rs.20,000.00 and cash of Rs.1.5 crore on piecemeal basis. I have executed final document of said land in his favour and some amount has yet to be recovered by me from him. How much I have to recover from him towards said land, that I do not remember. Against that, at rate of Rs.5 lacs per vigha, I have purchased total 24 vighas of land in name of my daughter at village Telav, Taluka Sanand, District Sanand inconsideration of Rsa.1.2 crore (one crore twenty lacs) from Shri Shahbhai having his office opposite VS Hospital, Ellis Bride Garnala by making payment of whole amount in cash. Ld CIT-DR, in view of above, argued that assessee clearly admitted having sold land @ Rs.450/- per sq.yd. and this is also evidenced by seized paper Annexure-A/1 page 115, wherein total consideration to be received is recorded at Rs.5,96,23,200/- for land of Rs.1,32,496/- sq.yd, rate for which almost comes to Rs.450/- sq.yd. Ld CIT-DR stated that CIT(A) has wrongly deleted addition by wrongly relying on retraction vide affidavit filed on 26-09-1998. 5. Ld. counsel for assessee, Shri Dhiren Shah narrated facts that seized loose paper Annexure-A/1 page 115 is letter head of Taj Mahal Hotel Agra and not in letter head of assessee or purchaser of land. This loose paper is undated and not regarding money transactions, whether 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 13 seized document does not mention name of party or does not bear signature of any person and moreover it is not in handwriting of assessee, its family members or purchaser. He stated that now even Hon ble Settlement Commission has considered this seized paper in settlement proceedings in case of Chimanlal Aggarwal Group of cases and this seized paper has been totally discarded by Settlement Commission. As regards to statement of assessee recorded on date of search on 25-09-1998, he stated that health condition of assessee was very bad as he was cardiac patient having high blood pressure and prior to date of search he was advised complete bed-rest. During search, health of assessee deteriorated further and doctor was called by authorized officer himself and was given medications and injectable. According to him, this statement recorded during course of search was without proper sense and not in healthy state-of-mind. assessee retracted his statement on 26-09-1998 by filing declaratory affidavit, when search proceedings were in progress and no further statement of assessee was recorded in regard to retraction affidavit filed by him. He stated that subsequently assessee s daughter Smt. Inderaben H Patel also filed affidavit dated 08-10-1998, which was submitted to ADIT on 14-10-1998, wherein she has narrated compelling circumstances under which her father s statement was recorded during search. affidavit of witness, Shri Kuvarbhai B Gad dated 12-10-1998, was also filed before ADIT on 14-10-1998. He stated that witness also confirmed contention of assessee retracting statement recorded on 25-09-1998 during course of search under compelling circumstances and deteriorated health conditions. In view of these facts, Ld. counsel for assessee argued that contents of retraction affidavit was not controverted either by ADIT or by Assessing Officer while examining seized loose papers and documents to bring on record any cogent material and independent clinching evidences to support their case. Ld counsel narrated that first statement dated 25-09-1998 was recorded at 6.45 a.m., where in answer to question No.7 it has been stated that land in Makarba has been sold to Chimanlal Aggarwal before 4-5 years, which means in 1993-94, which is factually incorrect. According to answer No.9 land at Telav had been purchased by assessee s daughter out of sale proceeds of ancestral land at Makarba village, and balance surplus of Rs.30 lakh was utilized for purpose of tractor, TATA Siera car and other agricultural implements. He stated 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 14 and ancestral land at Makarba was sold to Chimanlal Aggaral Group after Collector s order dated 13-02-1997, and conveyance deed was executed on 03- 04-1997, whereas Telav land was purchased by assessee s daughter in 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 presumption of Assessing Officer that out of alleged sale consideration of Rs.5,96,23,200/- amount of Rs.2.53 crores was already received, whereas Rs.3,43,23,200/- was yet to be received. He stated that seized loose paper page No.115 of Annexure-A/1 was recorded one year before on date of search i.e. search on 25-09-1998 that means as per authorized officers, said seized loose paper was written on or around 25-09-1998, whereas conveyance deed for sale of land at Makarba village has been executed by assessee and his daughter Smt. Indraben H Patel with Chimanlal Agrawal Group on 03-04-1997 and therefore, in respect of transaction of land which had already taken place and conveyance deed has already been executed on 03-04-1997, subsequently question of writing said page No.115 does not arise at all and there cannot be any logic for making jottings/notings on any loose paper after conveyance deed has already been executed on 03-04- 1997 and therefore in respect of transaction of land which had already taken place and conveyance deed has already been executed on 03-04-1997, subsequently question of writing said page No.115 does not arise at all and there cannot be any logic for making jottings/notings on any loose paper after conveyance deed has already been executed. Now, presuming that if said seized loose page No.115 was written on 25-09-1997 and Rs.2.53 crores has already been received then from analysis of answer No.19, it works out 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 aforesaid workings, there remains unidentified amount of Rs.85.50 crores out of Rs.2.53 crores for which authorized officer of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 15 any question to assessee as well as assessee has not stated anything about same. Ld. counsel explained that no substantial worth of unexplained assets have been found during course of search in form of cash, gold ornaments, jewellery as well as other securities and investment and therefore one cannot state that contents of statement dated 25-09-1998 is correct. Further as regards to amount of Rs.3,43,23,200/- nothing has been mentioned in statement dated 25-09-1998 and from answer No.16 of statement, if Rs.1 crores has been considered as yet to be received from Chimanlal Agrawal Group as on date of search, then working for 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) Rs.3,43,23,200 Less: i) Amount yet to be received from Chimallal Agrawal Group on date of search 25/9/98 Rs.1,00,00,000 Amount already received in last one year which is Rs.2,43,23,200 Unidentified for its utilization as well as no unexplained Assets in form of cash/jewellery or other Investments are found in search 6. We have heard rival contentions and gone through facts and circumstances of case We have also perused case records including block assessment order, order of ld.CIT(A), documents filed by revenue as well as by assessee and paper books filed by assessee. search conducted u/s 132 on premises of assessee on 25-09-1998 was off-shoot of search conducted in case of Chimanlal Agarwal group of cases on 06-08- 1998. During course of search on assessee document page No.115 of Annexure A-1 was found and seized which revealed that assessee, according to revenue, had entered into transaction of sale and purchase of land at village Makarba i.e. his ancestral agricultural land. As per this seized paper noted above, assessee has received consideration of Rs.5,96,23,200 on account of sale of land admeasuring 1,32,492 sq.yds. According to seized paper, assessee has already received sum of Rs.2.53 crores and balance Rs.3,43,23,200 was receivable. revenue s allegation was that assessee has sold this land to Chimanlal Agarwal group of cases for sum of Rs.5,96,23,200 but same was recorded in sale deed at Rs.1,77,90,330. revenue has also brought out that this document found and seized during 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 16 document for reason that assessee vide preliminary statement dated 25-09- 1998, before start of search admitted to have sold land @ Rs.450 per sq.yd instead documented value at Rs.150 per sq.yd. assessee s contention was, that in preliminary statement, assessee never admitted of having sold land @ Rs.450 per sq.yd; instead, it was clearly stated that land was sold @ Rs.150 sq.yd. Now we will refer to relevant statement and question & answer. We have seen preliminary statement recorded on 25-09-1998 whereby assessee, Shri Chaturbhai B Patel admitted to have sold land @ Rs.150 per sq.yd and received sum of Rs.2 crores from Shri Chimanlal Agarwal. relevant question No.2 and answer, translation of relevant statement enclosed at page 1 of assessee s paper book No.6 read as below: Q.2 Give complete details of your land by way of succession and except that, land purchased by you and thereafter, details of transaction of sale purchase of land of your and your family and remaining land with you. A.2 By way of succession, from my father, I had acquired about 30 to 40 vighas of land and from side of my mother, I had acquired about 15 vighas of land in my name and out of aforesaid land, about 19 vighas of land was given to my first wife Smrathben for purpose of maintenance which after her death, were transferred in name of my two daughters jointly one in name of Hansaben and other Indiraben and after death of my one daughter Hansaben, illegible and thus, out of lands situated in village, except lands as described below, remaining other lands have been sold : 266 4.5 vighas 55/2 4 vighas 55/3 66 63 62 66/2 2.5 vighas 22 Thus total 11 vighas of land are with me. In aforesaid lands which are with me, of survey no.266 was earlier sold by me to Chimanlal Agarwal but after opposition of my sisters, final document could not be executed. Remaining lands were sold by me in year 93 to 94 and those lands were sold by way of agreement for sale which were registered in Collector Office at that time. Said lands were sold at rate of Rs.150.00 per square yard and I had received 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 amount of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 17 I am visiting office of Chimanlal Agarwal in Blue Star Building, Near High Court Crossing, time and again. But assessee vide final statement recorded at 6.45 pm, after seeing 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 page no.115), total area of survey number 13 comes to 1, 32, 496 square yard at bottom of which, 5, 96, 23, 20 is written. Explain about same. A.17 Aforesaid transaction between us and Agarwal Builders was determined at Rs.450/- per square yard. Accordingly, initially, Rs.5,96,23,200.00 was fixed initially but thereafter, in view of dispute in survey number 266, leaving that, all remaining lands were sold and there has been deduction of some lands because of reason of pipe lines of ONGC. 7. We find from records that assessee before us contended that in original statement, i.e. preliminary statement without any provocation or without any pressure assessee stated that he has sold land @ Rs.150 per sq.yd but in evening when revenue put pressure on assessee and after showing seized document, assessee admitted having sold land @ Rs.450 per sq.yd. For this, learned counsel for assessee stated that it is admitted position that assessee was not in good health conditions, when search progressed and authorised officer himself has called for doctor due to assessee s deteriorated health and he was given medication and injections. According to learned counsel, assessee was not in proper sense and comfortable state of mind, who could respond to interrogation for recording statement, by virtue of which he admitted to have sold land @ 450/- per sq.yd. We find that it is contention of assessee that assessee immediately on second day, i.e. on 26-09-1998 assessee retracted statement recorded u/s.132(4) of Act that he has sold land @ 150/- per sq.yd. and not @ 450/- per sq.yd, by filing affidavit before ADIT(Inv) concerned, when search proceedings were continued till 20-11-1998 and revenue authorities have never recorded fresh statement to confirm contents of affidavit or to contradict contents of affidavit. In view of these facts, now we have to examine whether assessee s statement recorded on 25-09-1998 i.e. subsequent statement is correct or preliminary statement is correct, with respect to 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 18 by him. It is fact that assessee in preliminary statement has clearly admitted to have sold land to Chimanlal Agarrwal @ Rs.150 per sq.yd but when search proceedings started, assessee was not feeling good and was not in good health condition as his blood pressure risen and even before search assessee was advised bed rest. It is also fact that authorised officer of department required doctor to examine assessee as his health condition deteriorated during course of search and he was given medication and injections. Now we have to examine whether seized paper page 115 of Annexure A-1 seized during course of search from residence of assessee is piece of evidence which can be relied upon for framing block assessment. assessee by filing affidavit dated 26-09-1998, i.e. immediately after date of search retracted when search was continuing till 20-11-1998. Even assessee s daughter, Smt. Indraben H Patel and one of witnesses, Shri Kuvarbhai Dad, vide their affidavits dated 08-10-1998 and 12-10-1998 respectively confirmed retraction of assessee, stating compelling circumstances under which statement of assessee was recorded and affidavits were submitted before ADIT(Inv) on 14-10-1998 before conclusion of search. We find that ADIT(Inv), has not recorded statement either of assessee or of witnesses i.e. assessee s daughter, Smt. Indraben H Patel or witness Shri Kuvarbhai Dada. We find that revenue has not controverted retraction affidavit filed before ADIT (Inv) from date of filing of affidavit till proceedings before us. 8. First of all it is to be mentioned that Settlement Commission in case of purchaser of this Makarba land i.e. Chimanlal Agarwal group of cases in Settlement Application Nos 10/C/002/00-01/IT & ors dated 25-05-2000 in case of Shri Nandlal J Agarwal and others, Settlement Commission vide order dated 10-12- 2008 has dealt with issue as under: (ii) Issue No.2- Unaccounted Investment in purchase of land at village Makarba. During course of search in CAG, it was noticed from loose papers that 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 Act subsequently on 25.9.98. During course of search at premises of Shri Patel, certain loose papers / incriminating 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 19 he admitted having sold land to CAG @450 per sq.yd. and also explained utilization of funds. Shri Patel, however, retracted from his statement subsequently and stated that he had not received any on money on sale of land to CAG. Based on statement of Shri Chaturbhai Patel, Department contends that addition of Rs.12 crores should be made in respect of entire land purchased by CAG in village Makarba, as against addition of Rs.79.58 lacs each made in cases of 3 purchasers of land who are applicants before us. 11.2 learned Authorised Representative strongly objected to contention of Department and argued that there being no case for addition of Rs.79.58 lacs made by Assessing Officer in case of each applicant, same is required to be deleted. According to him, there is no justification for any addition for following reasons: i) That no incriminating material or any evidence was found during course of search in CAG which would indicate any unaccounted investment by applicants and, as such, no addition can be made in block assessment proceedings. undisclosed income which can be assessed under Chapter XIV-B should be that amount which is computed on basis of evidence found as result of search. ii) That Assessing Officer had issued notice u/s 142(1) of Act and had duly considered applicants reply before finalizing block assessment orders. He had made addition only in respect of land purchased from Shri Chaturbhai B Patel and was satisfied with applicants explanation in regard to remaining parcels of land. That being so, there is no justification for Department to rake up issue in regard to other parcels of land now in proceedings before Settlement Commission. iii) That Shri Chaturbhai B Patel has already denied having received any on money from applicant and has stated that he had sold land to CAG @Rs.150/- per sq.yd. only. iv) That this issue was considered in detail in case of Shri Chaturbhai B Patel where Assessing Officer had mad4e reference to DVO u/s 55A of Act. report of DVO also confirms that consideration shown in sale deed was in accordance with prevailing market value. v) That, in his cross examination, Shri Chaturbhai B Patel has denied receipt of any on money on 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 20 vi) That in case of Smt. Satyavatiben Agrawal, who is one of co-purchasers of land, addition was made by Assessing Officer in block assessment order but same was deleted in appeal by CIT(Appeals) following valuation report of DVO. 11.2.1 learned Authorised Representative also referred to NOC issued by Appropriate Authority u/s 269UL of Act in respect of Makarba land and relied upon various case laws in support of his argument that no addition can be made in cases of applicants in regard to land at Makarba. 11.2.2 learned CIT(learned Departmental Representative), however, contended that 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 had not only admitted in his statement having sold land @Rs.450/- per sq.yd. but had also disclosed as to where amounts so received were invested. 11.2.3 Decision We have carefully considered facts of case, stand taken by Department on issue as also arguments advanced by Authorised Representative of applicants. land in question was purchased from Shri Chaturbhai Patel by four persons three of whom are applicants before us. In block assessment proceeding, addition of Rs.79.58 lacs has been made in case of each applicant. addition made by Assessing Officer in block assessment order of 4th purchaser i.e. Smt. Satyawatiben Agarwal has since been deleted by CIT (Appeals). Shri Chaturbhai Patel though initially admitted having sold land at Rs.450/- sq.yd. but he retracted from his statement later on and addition made in his case has been deleted by CIT(Appeals), because on reference to DVO u/s 55A of Act, sale consideration was found to be reasonable. This apart, no incriminating material or evidence was found during course of search in CAG which could provide basis for making any addition towards undisclosed income. We are therefore of opinion that no undisclosed income can be attributed to any of applicants in regard to purchase of land at village Makarba from Shri Chaturbhai B Patel. As for remaining parcels of land, same were purchased by various NTCs who were separately assessed u/s 158BD and therefore no addition can be made in cases of applicants for these parcels of land as well. In our opinion, therefore, addition of Rs.79.58 lacs made by Assessing Officer in block assessment order of each applicant is unjustified and needs to be deleted. We order accordingly. 9. learned counsel for assessee stated that once Settlement Commission has accepted rate at Rs.150 sq.yd instead of rate adopted by IT(SS)A No.203, 151,191,204- 206/Ahd/02 B.P. 1/4/88 to 25/9/98 DCIT, CC-1(4), bd v. Smt. Nidiraben H Patel& Otrs. Page 21 revenue at Rs.450 sq.yd, there is no scope left for reaching different and other conclusion for Tribunal. On this, ld.CIT-DR made argument that Settlement Commission decides any issue in another case that will not have any bearing in case of this assessee. He stated that findings of Settlement Commission in case of Shri Chimanlal Agarwal group will not apply to case of any other assessee s, leave apart present assessee. According to ld.CIT- DR, findings of Settlement Commission is not precedent for another assessee, rather, it is precedent for limited purposes and will apply to that case only i.e. Shri Chimanlal Agarwal group of cases. According to ld.CIT- DR, findings of Settlement Commission should not be applied, rather it should be decided on merits as to whether assessee has sold land @ Rs.450 per sq.yd or @ Rs.150 per sq.yd on basis of seized material. He stated that assessee Shri Chaturbhai B Patel clearly admitted in his statement recorded during course of search that he has sold land @ Rs.450 and subsequent retraction will not be of any help to assessee. For this, he relied upon case law of Hon'ble Kerala High Court in case of K Kunhambu & Sons vs CIT 219 ITR 235 (Ker), wherein Hon'ble Kerala High Court has considered Explanation to section 132 of Act inserted with effect from 01-04-1989 clarifying necessary import of main provision contained in sub section (4) of section 132 of Act. Hon'ble High Court held that it does not change substantive provisions of Act nor had it laid down different method for using statement recorded under sub section (4) of section 132 of Act and it permits interrogation of persons not only in relation to books of account found as result of search but also any other relevant material for any proceedings under this Act. Hon'ble Court further held that assessment on basis of voluntary statement was valid assessment. ld.CIT,DR also relied upon 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, Ahmedabad Bench B (2005) 96 ITD 344 (Ahd) Hiralal Maganlal & Co vs Dy.CIT ITAT, Mumbai Bench 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 22 10. learned counsel for assessee, however, relied on case law of Hon ble apex court in case of CIT v. B.N.Bhattachargee And Another (1979) 118 ITR 461 (SC) for proposition that Settlement Commission is Tribunal within meaning of Article 136 of Constitution of India, wherein apex court held as under:- preliminary objection raised by ShriA.K. Sen need not detain us because we are satisfied that amplitude of art. 136 is wide enough to bring within its jurisdiction orders passed by Settlement Commission. Any judgment, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal, comes within correctional cognizance and review power of art. 136. short-question, them, is whether Settlement Commission cannot come within category of Tribunal . Top clinch issue, s. 245L declares all proceedings before Settlement Commission to be judicial proceedings. We have hardly any doubt that it is tribunal. Its powers are considerable; its determination affects rights of parties; its obligations are quasi-judicial; orders it makes at every stage have tremendous impact on rights and liabilities of parties. When body is created by statute and clothed with authority to determine rights and duties of parties and to impose pains and penalties on them it satisfies test laid down in Associated Cement Co. s case [1965] 2 SCT 366; 27 FJR 204; AIR 1965 SC 1595. constitutional Bench of this court in that case has indicated quintessential test in this regard and we need only extract portion of head-note relevant to this aspect: In considering question about status of any body or authority as tribunal under article, consideration about presence of all or some of trappings of court is really not decisive. presence of some of trappings may assist determination of question as to whether power exercised by authority which possessed said trappings, is judicial power of Sate or not. main and basic test, however, is whether adjudicating power which particular authority is empowered to exercise, has been conferred on it by statute and can be described as part of State s inherent power exercised in discharging its judicial function. expanding jurisprudence of administrative tribunals to which some eminent judges, cradled in Dicean concepts, in early days of English law, has come to stay whether we call it new despotism or pragmatic instrumentality of dispensing justice untrammeled by complexities and mystiques which are part of processual heredity of courts. Franks Committee rightly said: Reflection on general social and economic changes of recent decades convinces us that tribunals as 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 23 advantage which tribunals had over courts states Seervai in his classic work on Constitution of India lay in cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject . casual perusal of Chap. XIXA convinces discerning eye that Settlement Commission exercises many powers which affect, for good or otherwise, rights of parties before it and vests in sit powers to grant immunity from prosecution and penalty, to investigate into many matters and to enjoy conclusiveness regarding its orders or settlement. In short, Settlement Commissions are Tribunals. preliminary point fails and we proceed to consider triple substantial questions set out earlier. And once Settlement Commission is Tribunal, its order has binding force qua assessee as well as assessing officer but when search is emanating out of same group and issue is same on facts of case, it will cover present assessee s case also. learned counsel for assessee stated that search in case of Shri Chimanlal Agarwal group, where Settlement Commission has decided this issue is arising out of search materials found from assessee, Shri Chaturbhai B Patel. learned counsel further stated that as per section 245- I, every order of Settlement Commission passed u/s 245D(4) of Act shall be conclusive as to matters stated therein unless such order becomes void on ground of fraud or misrepresentation of facts as provided in section 245D(6) of Act. Apart from that order cannot be disputed or impugned in any proceedings. In view of this, learned counsel for assessee stated that finding with respect to transaction of land stand concluded at Rs.150 per sq.yd qua Shri Chimanlal Agarwal group of cases but how revenue without any cogent evidence in case of assessee, viz. Shri Chaturbhai B Patel can take different view other than view taken in case of Shri Chimanlal Agarwal group. He stated that there is no material with revenue to show that over and above sum of Rs.150 per sq.yd was paid by Shri Chimanlal group of cases to assessee except seized paper found during course of search from residence of assessee, which is undated and no noting as to money transaction, whether money has been paid or received. learned counsel further stated that seized document does not mention name of any party and does not bear signature of any person and moreover it is not in handwriting of assessee or his family member and also not in handwriting of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 24 11. We find from above arguments of both sides that document found during course of search clearly reveals that it does not bear name neither of parties or it does not bear signature of neither party. According to us, after going through seized document, it does not reveal nature of transaction and it is undated. This document was having support of statement of Shri Chaturbhai B Patel but that statement was retracted and revenue has not got retraction statement verified or denied. Even otherwise in preliminary statement assessee admitted of having sold land @ Rs.150 per sq.yd as noted above in answer to question No.2 of preliminary statement dated 25-09-1998. We find that Hon'ble Settlement Commission has interpreted this document and after going through facts in entirety with respect to this document, Settlement Commission has finally concluded that land transaction was entered into between Shri Chimanlal Agarwal group of cases and assessee received price @ Rs.150 per sq.yd and not Rs.450 per sq.yd. Settlement Commission being Tribunal as held by Hon'ble Apex Court, we feel that Settlement Commission has, on same set of facts, has taken view, we cannot reverse same in given facts and circumstances of 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 sale deeds registered by Sub Registrar is supported by Valuation report of DVO of I.T. Department, Ahmedabad, wherein he has concluded fair market value of land at Rs.1,98,69,215 and not as noted in seized paper at Rs.5,96,23,200. That means valuation report of I.T. Department clearly reveals that fair market value of land at Makarba sold by assessee to Shri Chimanlal Agarwal group of cases was at Rs.150 per sq.yd as noted in sale deeds and not at Rs.450 per sq.yd. relevant report annexured at pages 666 to 670 clearly reveals value. relevant paragraph of covering letter and part of report where valuation is done reads as under: CONFIDENTIAL No.2(2)/DVO/2000-01/22 Office of District Valuation 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 25 Dy.Commissioner of Income-tax, Central Circle 1(4), I.T. Department, AHMEDABAD. Sub : Fair market value as on 3-4-97 in 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 valuation report of above mentioned property in duplicate. fair cost of investment in above property as 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) stamp duty, registration charges, etc. but include premium payable to 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/- 1,98,69,215/ ------------------ Fair cost of land as on 3-4-97 1,98,69,215/ ------------------------------------------------------------------------------------------ Note :- 1) above cost does not include stamp duty, Registration fees, etc. but include premium payable to dist.Collector during 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 26 (Er.A.K. SILEKAR) Dist. Valuation Officer, I.T. Deptt., Ahmedabad We find that valuation made by DVO estimating fair market value as on 03-04-1997 i.e. date of sale of land by assessee to Shri Chimanlal Agarwal group of cases and this valuation report was given by DVO of department in block assessment proceedings in group cases of Chimanlal Agarwal. But, in any case, fair market value cannot be different in present case, which was valued by DVO of department. Further, another facet of argument made by learned counsel for assessee before us was that even appropriate authority has given permission to assessee for transferring land u/s 269UL(3) of Act vide order dated 15-03-2000 for another piece of land situated at village Makarba bearing survey No.280, Hissa No.3 survey No.289, Hissa No.2 admeasuring 17900 sq.yds for apparent consideration of Rs.33,12,980. learned counsel before us stated that rate per square yard as on 15-03-2000 was estimated to be fair by appropriate authority of department at little less than Rs.200 per sq.yd. He stated that, in any case, fair market value cannot be more than Rs.150 per sq.yd and over and above registered value as in sale deed cannot be taken, in view of evidences. relevant copy of order of appropriate authority dated 15- 03-2000 is enclosed at assessee s paper book at page 679. We find that fair market value determined by appropriate authority in year 2000, in similarly situated land, is at Rs.200 per sq.yd and not at Rs.450 per sq.yd as claimed by revenue. 13. learned counsel for assessee further stated that these lands are tenure lands acquired by assessee from Government of Gujarat. These lands are not in exclusive ownership of assessee and assessee cannot sell land on his own. He narrated that assessee has to take permission from committee appointed by Government of Gujarat for sale of land and that committee is headed by District Collector, who fixes price of this land. According to assessee, Collector fixed premium by passing order dated 13-02-1997 and adopted market price at Rs.185 per sq.mtr to Rs.200 per sq.mtr. copies of orders were field during course of hearing before us. 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 27 and has assessed sale rate at Rs.185 to Rs.200 per sq.mtr and relevant portion of order are as under: Considering present market value of land in question survey no.268 Part 45324 sq.mtrs.,; 269/1 3642 sq.mtrs.; 269/2 admeasuring 3642 square meters, total 52608 square meters at rate of Rs.200.00 (Rupees two hundred only) and survey No.280/1 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.mtrs, 289/2 11635 sq.mtrs. Total ad measuring 44315 sq.mtrs. At rate of Rs,.185.00 for considering amount of premium recoverable for purpose of NA for NA Purpose, applicant was intimated for making payment of premium amount of Rs.1,31,03,912.50 (Rupees one crore thirty one lacs, three thousand nine hundred fifty only) by letter dated 22.10.96. Accordingly, applicant had requested vide letter dated 1.11.96 for giving three months period for paying amount of premium which was granted for three months in this matter vide letter dated 22.10.96 and thereafter, applicant had by draft dated 15.01.97 deposited amount in 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 amount of Rs.1,31,03,914.00 (Rupees one crore thirty one lacs Three Thousand Nine Hundred Fourteen) and, therefore, on dated 25.1.97, receipt was issued for payment of which, Mamlatdar City has vide his letter dated 31.1.97 given support. Therefore, subject to conditions incorporated hereinbelow, permission is hereby given for use as Paultry farm under section 63 of Tenancy Act and exemption is given from regulations under section 43 of Tenancy Act to Applicant Chaturbhai Bababhai for making sale of land of village Makarba Taluka City Survey No.280/1, 280/2, 280/3, 269/1, 269/2, 291, 289, 292 (1+2+3+4) and 268 Part running in head of Restricted Nature of Authority ad measuring total 96923 square meters of land for sale thereof to Shri Nandlal Jaygopal, Chiman Jaygopal, Sanjay Chimanlal, Satyavati Jaygopal, residing at Ahmedabad. learned counsel clarified that rate fixed by 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 rate is Rs.200 per square metre and in case rate is Rs.185 per square metre then it comes to Rs.150 per sq.yd. 14. Another facet of argument lead by learned counsel was that during course of search proceedings nothing incriminating was found like cash, bullion, jewelery, investments or any other valuables. We find from 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 28 circumstances of case that revenue has based entire addition on seized paper page No.115 of Annexure A-1, which is undated, does not bear name of any party, does not bear signature of any person and not in handwriting of assessee or his family members or in handwriting of purchaser. assessee in preliminary statement has categorically admitted to have sold land to Shri Chimanlal Agarwal group of cases for Rs.150 per sq.yd vide sale deeds dated 03-04-1997 in pursuance to Collector s order dated 13-02- 1997. Admittedly, these lands were tenure lands owned by Gujarat Government, who has given these lands to assessee for cultivation and by virtue of tenancy rights, assessee was owner. It is also admitted fact that Collector in view of resolution of Government of Gujarat, Revenue Department 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 has fixed rate of these lands in view of above reproduced order dated 13-02-1997, fixing rates at Rs.185 to Rs.200 per sq.mtr and converting same into square yards rate will come to Rs.150 to Rs.165 per sq.yd. assessee has no permission to sell land on his own, rather, it is after permission of Government of Gujarat through District Collector. Even price is fixed by Government of Gujarat vide Collector s order dated 13-02-1997 assessee has sold land at that rate only by registering sale deeds in name of purchasers, viz. Shri Chimanlal Agarwal group for Rs.150 per sq.yd. Even this valuation is supported by DVOs report, who has worked out fair market value as on 03-04-1997 in case of Shri Chimanlal Agarwal group of cases where simultaneous search was conducted and in assessment proceedings of their cases value was adopted at Rs.150 per sq.yd and subsequently same was accepted by Settlement Commission vide its order dated 10-12-2008. We find that reference made by assessing officer to DVO for valuation of land for determining fair market value / price of land sold by assessee to Shri Chimanlal Agarwal group of cases and reasons recorded are as under: Search and seizure operations were carried out at residence of above persons as well as at residence of Shri Chaturbhai Babubhai Patel of Makarba Gam. During course of search, it was ascertained that Shri Chaturbhai Babubhai Patel sold various land to above four parties. Consequently, assessment proceedings u/s 158BC were started in case of purchaser and sellers both. During course of search at residence of Shri Chaturbhai 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 29 Patel some incriminating documents were found and seized. On basis of documents statements of Shri Chaturbhai Babubhai Patel was recorded. In view of this statement, Shri Chaturbhai Babubhai Patel affirmed that lands were sold at rate of 450/- per sq. while in sale deeds it was mentioned at rate of Rs.150. After this search, Shri Chaturbhai Babubhai Patel retracted this affirmation by filing affidavit. In this affidavit Shri Chaturbhai Babubhai Patel contended that statement recorded during course of search was by compulsion and by threat. Therefore, this statement was involuntary and should not be relied. assessee further argued that while fixing premium Collector has passed order adopting market price at Rs.200/- and 185/- per sq.mtr. In view of this Collector s order, statement given by Shri Chaturbhai Babubhai Patel is contrary to Collector s order. assessee further argued that when there are two contradictory evidences, it should be referred to third party who can decide issue as fresh. I, therefore, refer this issue to value fair market price as on 3/4/97 of following lands. details of land are as under. It means that assessing officer was fully aware about market rate adopted by Collector and rate of Rs.185 to Rs.200 per sq.mtr and also that as per seized paper found from premises of assessee during course of search, rate noted in seized paper page No.115 of Annexure A-1 was Rs.450 per sq.yd. Despite this fact, DVO has valued land at Rs.150 per sq.yd after considering various other properties in locality. Similarly, similar land in same vicinity Chimanlal Agarwal group of cases has entered into agreement to sell with person called Chunilal Sakharbhai Patel for land admeasuring 17,908 sq.yd survey No.280, Hissa No.3 and survey No.289 and Hissa Nos.2 at Makarba village which land was purchased from assessee and made application in form No.37-I before appropriate authority established under I.T. Act and appropriate authority vide certificate dated 18-03-2000 issued certificate where they have approved apparent consideration agreed upon between transferor and transferee at Rs.180 per sq.yd on date of agreement i.e. 27-12-1999 and certificate issued on 18-03-2000. learned departmental representative clarified that value of that land was adopted by appropriate authority in 2000 whereas assessee has sold land on 03-04-1997. As regards statement of assessee, i.e. statement where he has admitted to have sold land at Rs.450, statement was taken in abnormal state of health condition of assessee as is evident from records that authorised officer had called for doctor and 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 30 15. assessee has retracted his statement dated 25-09-1998 by filing retraction affidavit dated 26-09-1998 i.e. immediately next day when search proceedings were in progress and neither ADIT(Inv) during course of search nor assessing officer during course of block assessment proceedings has tried to confirm or deny same. only basis for addition i.e. page 115 Annexure A-1 was rebutted by assessee by filing many evidences. value of sale consideration of land was referred to valuation cell of department, wherein DVO vide its report dated 31-08-2000 in case of Chimanlal Agarwal estimated fair market value as on 03-04-1997 at Rs.1,98,69,215 and that comes to Rs.150 per sq.yd. Even assessee during course of block assessment proceedings filed Collector s order who permitted assessee to sell this land @ Rs.185 to Rs.200 per sq.mtr reason being lands were tenure lands with right to assessee to cultivate same. Even assessee has supported sale deed registered @ Rs.150 per sq.yd by citing another incidence that Shri Chimanlal Agarwal group of cases entered into agreement to sell with another person, Shri Chunilal S Patel and adjacent land at survey No.280, Hissa No.3 and survey No.289, Hissa No.2 at Makarba village which is adjacent to land purchased from assessee, and appropriate authority of income-tax department issued certificate as on 18-03-2000 and finding apparent sale consideration at Rs.180 per sq.yd and date of agreement to sell was 27-12-1999. Even seized paper page No.115 Annexure A-1 was subject matter of litigation before Settlement Commission has finally considered same price of land at Rs.150 per sq.yd in hands of Chimanlal Agarwal group of cases when these matters were taken before Settlement Commission by purchaser party. 16. As regards to investment purported to have made by assessee in view of page 117 of Annexure-A/1 seized during course of search, Ld. CIT-DR referred to this page and stated that investment found during course of search and recorded on page-117 clearly proves that assessee has sold this land @ 450/- per sq.yd. and accordingly received consideration at Rs.5,96,23,200/-. On this Ld. counsel for assessee explained in respect to each of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 31 i) That assessee s daughter has purchased land having three different survey No. at Telav from five different landlords, details of land purchased by Smt. Indireben H Patel at village Telav are as under:- Survey Date of Name of Seller Amount No conveyance & No. 217 12/7/96 No. Valibhai Nabihai 3,00,000 1528 Momin 218 12/7/96 No.1529 Gulambhai Jamalbhai Momin 3,70,000 Pirulbhai Alibhai Momin 213/2 12/7/96 No.1530 Sheth Nutankumar 1,95,000 Kumarpal Sheth Dipakkumar Kumarpal land at Telav has been purchased by assessee s daughter Smt. Indiraben H Patel in year 1996 and Tata Siera car had been purchased on 16-08-1995. tractor was also purchased on 28-07-1998. Therefore, sources of funds and application of funds are totally out of context as there are no nexus/linkage possible/feasible between sources of cash funds and application of funds which lead to conclusion that contents of statement dated 25-09-1998 are not correct. Assessing Officer in para-6 at page-4 of his assessment order has identified description of assets in which investments have been made or expenditure have been made as under:- Sr. Description of assets sin Amount No. which investment have been (Rs) made or expenditure have been incurred 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 40,00,000 name of his wife IT(SS)A No.203, 151,191,204- 206/Ahd/02 B.P. 1/4/88 to 25/9/98 DCIT, CC-1(4), bd v. Smt. Nidiraben H Patel& Otrs. Page 32 13. To be received from Chimanlal 1,00,00,000 Agrawal 3,67,45,569 It was contention of assessee that Assessing Officer has also not carried out any inquiry/investigation with five different landlords from whom assessee s daughter Smt. Indiraben H Patel has purchased land in order to bring it on record corroborative material and independent clinching evidences in support of allegation made by Investment Wing of Department in respect of Telav land. Revenue has not brought on record any comparative sales instances from land revenue records or from Government record in support of its case. Therefore, identification of investment in land in village Telav for amount of Rs.1,28,46,170/- is merely on surmise and conjecture and unjustified. ii) Gifts to sister Rs.40 lakh That Assessing Officer has mainly relied upon statements dated 25- 09-1998 and assessee has to submit that once statements dated 25-09- 1998 were retracted by assessee, AO should have carried out necessary inquiry with sisters of assessee to establish case of 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 sisters have been identified. Accordingly, statements of assessee dated 25-09-1998 suffers from various infirmities and fallacies as well as contradictions, same is required to be discarded. iii) Gift to school, Grave yard and temple That assessee has already submitted reply to Assessing Officer in his letter dated 09-12-1999, wherein it is stated that amount of Rs.50,000/- was paid to Community Marriage Centre out of agricultural income and this is personal expenditure of assessee. As regards to gift to school, grave yard and temple, it was explained that it is same amount of Rs.50,000/- paid to Community Marriage Centre out of agricultural income. iv) Acquisition of jewellery That assessee stated that said jewellery has been acquired from agricultural income as main source of income of assessee for three decades is agricultural income as he is farmer. Assessing Officer has rejected good explanation of assessee for treating acquisition of jewellery as unexplained without any basis. v) Deposits in Bank at Rs.40,000/- That assessee has already offered detailed explanation as regards to bank account operation while narrating each and every entries in bank account vide letter dated 09-12-1999 which has been compiled in assessee s 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 33 at page -180 and statement showing narration of bank account entries are compiled at page No.305 to 311 of assessee s paper book-II, and informed to Assessing Officer vide his letter dated 09-12-1999 Assessing Officer, wherein it was contended by assessee before AO that it is not ascertain from where observation has come from AO that assessee has invested Rs.40 lakh in property in name of assessee and his wife. assessee requested to provide material from which relied upon for rebuttal. It is also noted that assessee s residence situated at Makarba Gam which is ancestral property, therefore investment stated by AO for amount of Rs.40 lakh being investment in properties in assessee s name and his wife is merely hypothetical and notional in nature. AO has identified said receivables merely on basis of assessee s statements dated 25-09-1998 which cannot be relied upon as discussed hereinbefore due to infirmities as well as contradictions. 16. In view of entirety of facts, we are of view that presumption drawn by revenue with respect to page 115 of Annexure seized during course of search from residential premises of assessee on 25-09-1998 has been rebutted by assessee and this presumption is always rebuttable in view of Hon'ble Apex Court decision in case of PR Metrani vs CIT (2006) 287 ITR 209 wherein Hon'ble Apex Court has interpreted word as mentioned in section 132(4A) may be presumed . presumption under sub-section (4A), therefore, is rebuttable presumption. Whereas Legislature under section 132(4) has provided that books of account, money, bullion, jewelery and other valuable articles or things and any statement made by such person during examination may thereafter be used as evidence in any other proceedings under Act. presumption is inference of fact drawn from other known or proved facts. It is rule of law under which courts are authorised to draw particular inference from particular fact. It is of three types, (i) may presume , (ii) shall presume and (iii) conclusive proof . May presume leaves it to discretion of court to make presumption according to circumstances of case. Shall presume leaves no option with court not to make presumption. court is bound to take fact as proved until evidence is given to disprove it. In this sense such presumption is also rebuttable. Conclusive proof gives artificial probative effect by law to certain facts. No evidence is allowed to be produced with 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 34 effect. In this sense, this ir-rebuttable presumption. But in Section 132(4) of act for presumption words are used are may be presumed . 17. Now we find from above facts and circumstance that assessee has successfully rebutted presumption of revenue regarding page 115 of Annexure A-1 and revenue could not substantiate that assessee has received on-money over and above sale consideration as recorded in sale deeds. Accordingly we confirm order of Commissioner of Income Tax (Appeals) deleting addition and this issue of revenue s appeal is dismissed. 18. next issue in this appeal of revenue is against order of CIT(A) deleting addition made by assessing officer on account of assessment of capital gains on sale of land at survey No.244. For this revenue has raised following ground: learned Learned Commissioner of Income Tax (Appeals) has erred in law and on facts in deleting addition on account of capital gain of Rs.24,12,180/- on sale of land at survey No.244. On facts and in circumstances of case, learned Learned Commissioner of Income Tax (Appeals) ought to have upheld order of Assessing Officer. 19. brief facts are that assessing officer has made addition of capital gains on account of sale of land at survey No.244 at Rs.24,12,180, while completing block assessment on basis of loose paper seized at page No.107 of Annexure A-1, which contains details of land at survey No.244 in village Makarba sold @324 per sq.yd and amount of Rs.27,44,280 was received. According to assessing officer this land was sold to Kailash Darshan Kheti Sahkari Mandali and disclosed consideration as registered in document was Rs.3,32,100 and balance undisclosed consideration received by assessee was assessed as undisclosed income for block period at Rs.24,12,180. Aggrieved, assessee preferred appeal before Commissioner of Income Tax (Appeals). Commissioner of Income Tax (Appeals), after considering submissions of assessee deleted addition by giving following findings at paragraph 18:- 18. I have carefully considered submissions made in respect of this ground of appeal and I have also gone through assessment order and copy of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 35 shows that neither survey number of land nor location is mentioned nor does area of land tally. Names o two other persons is noted on this paper. While alleged land on survey No.244 belongs to appellant as sole owner. Hence certainly document does not relate to this land and no adverse inference could be drawn on basis of this paper. It is also seen that this land was purchased by Kailash Darshan Kheti Sahakari Mandli. issue has been discussed at length while dealing with main ground of appeal and it is seen that rate of sale in respect of all lands in immediate vicinity was accepted even in block assessment of purchaser. As document apparently does not relate to this property and as there was nothing to show that any amount over and above consideration shown in sale deed was received or paid, assessing officer was not at all justified in making any such addition and same is deleted. 20. We have heard rival contentions and gone through facts and circumstances of case. We find that land at survey No.244 in Makarba village belongs to three co-owners, viz. Shri Sorabji Khursidji, Shri Chaturbhai Patel and Shri Jayantibhai Mathurbhai. We find from seized paper page 117 Annexure A-1 that assessing officer has presumed land at survey No.244 and in this paper there is no mention of any survey number or identification of land and even area mentioned in loose paper wherein jottings are noted, area differs from land at survey No.244, which is evident from conveyance deeds filed in assessee s paper book. ld.DR before us also has not made any serious arguments with respect to this addition, hence Commissioner of Income Tax (Appeals) has correctly deleted addition by holding that there is nothing to show that this property is same property as noted in documents and this does not suggest that amount over and above consideration shown in sale deed was received or paid. Accordingly, we confirmed order of CIT(A) and this issue of revenue s appeal is also dismissed. 21. next issue in this appeal of Revenue in IT(SS)A No.152/Ahd/2002 in case of Shri Hirenbhai S Patel is against order of CIT(A) in deleting addition made by Assessing Officer on account of unexplained investment on account of deposits in bank account. For this, Revenue has raised following two grounds:- i) Learned CIT(A) has erred in law and on facts in deleting addition of Rs.1,55,000/- made by A.O on account of unexplained 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 36 ii) Learned CIT(A) has erred in law and in facts in admitting new evidence which is not allowable under Rule 46A(1) of I.T. Rule. Ld. CIT(A) has admitted new arguments that investment is out of saving from Agricultural Income. 22. We have heard rival contentions and gone through facts and circumstances of case. brief facts are that Assessing Officer made addition of unexplained investment u/s.69 of Act amounting to Rs.1.55 lakh on account of two deposits found in assessee s bank account No.1417 of Kalupur Commercial Co.Op Bank Ltd. on 24-08-1995 Rs 95,000/- and on 19-09-1994 Rs.60,000/-. assessee was serving with construction company and drawing salary. AO during course of block assessment proceedings noted that assessee was found having 25 gm. of gold jewellery and accordingly living standard of assessee was very ordinary and according to him, deposit of Rs.1.55 lakh is out of unexplained investment and accordingly added this deposit as unexplained investment made out of undisclosed income for block period i.e. 1-4-1995 to 25-9-1998 u/s 69 of Act. Aggrieved, assessee preferred appeal before CIT(A). Before CIT(A) it was explained that these deposits are out of salary income, agricultural income of assessee s wife and pin-money and gifts received by wife and children on various festival and occasions, which were deposited in assessee s bank account. assessee also explained that assessee s wife was having agricultural land and she was having agricultural income and these savings are mainly out of agricultural income and she deposited in assessee s bank account. CIT(A) after considering explanation deleted addition by giving following finding in page-4 of his appellate order:- After considering observations of Assessing Officer and submissions made by appellant, I find that there is substance in submissions of appellant that savings available with appellant out of his salary income, savings out of agricultural income of wife of appellant and savings out of pin-money gifts received on various social and festival occasions can have accumulated saving funds for making deposit into bank account for amount of Rs.1,55,000/-. It is seen from records that appellant s wife was having substantial agricultural holding and agricultural income and as such if credit for that is given, amount of deposit gets explained. Addition of Rs.1,55,000/- made on account of unexplained investment u/s.69 is therefore, deleted. Aggrieved, now Revenue preferred appeal before Tribunal. IT(SS)A No.203, 151,191,204- 206/Ahd/02 B.P. 1/4/88 to 25/9/98 DCIT, CC-1(4), bd v. Smt. Nidiraben H Patel& Otrs. Page 37 23. We find that assessee was employed with construction company. As noted from records, assessee s family consists of two minor sons, self and his wife. assessee claimed to have received gifts on various occasions in form of cash from relatives and assessee s father-in-law. assessee s wife was having substantial agricultural land as noted in case of Smt. Indiraben H Patel in IT(SS)A No.191/Ahd/2002, wherein assessee s wife was owner of agricultural land at Makarba Gam and also purchased agricultural land at village Telav. We find from leading case in IT(SS)A No.203/Ahd/2002 in case of Shri Chaturbhai B Patel, that assessee s wife was having substantial agricultural land and she earned agricultural income. Accordingly, sources of deposits in bank account is explained and hence we find no infirmity in order of CIT(A). Accordingly, we confirm order of CIT(A) and this issue of Revenue s appeal is dismissed. Now coming to cross appeals in IT(SS)A No.206/Ahd/2002 of Revenue s appeal and in IT(SS)A No.191/Ahd/2002 of assessee s appeal. 24. only common issue in these cross-appeals is as regards to order of CIT(A) in restricting addition at Rs.8 lakh as against addition made by Assessing Officer at Rs.1,21,96,170/-. For this, Revenue has raised following ground No.1:- 1(a) learned CIT(A) has erred in law and on facts deleting addition of Rs.1,21,96,701/- being unexplained investment in purchase of land at Telav. 1(b). Ignoring document in possession of department as discussed in assessment order. And assessee has raised following grounds 1-2:- 1. Learned CIT(A) has erred in law and on facts in confirming of addition of Rs.8,00,000/- on substantative basis out of addition of Rs.1,21,96,170/- as made by A.O. 2. learned CIT(A) has erred in law and on facts in holding that agricultural income cannot have been kept for huge amount in cash and accordingly investment made by he appellant out of her agricultural income for amount of Rs.8 lakhs for acquisition of agricultural land represents unexplained investment in property. 25. brief facts leading to above common issue are that during course of search at residential premises of assessee s father, Shri Chaturbhai B Patel, IT(SS)A No.203, 151,191,204- 206/Ahd/02 B.P. 1/4/88 to 25/9/98 DCIT, CC-1(4), bd v. Smt. Nidiraben H Patel& Otrs. Page 38 document was seized which allegedly indicated purchase of land at village Talav for sum of Rs.1,21,96,170/-. According to Assessing Officer during course of search, assessee s father had stated that said land was purchased by him out of unaccounted sale consideration received. Based on findings given in Chaturbhai Patel, Assessing Officer added unexplained investment in hands of assessee on protective basis. Ld. counsel for assessee filed detailed paper books in case of Chaturbhai Patel and assessee. Ld counsel pointed out that findings given in case of Chaturbhai Patel would also be relevant while deciding this issue and same may be followed here also. CIT(A) restricted addition at Rs.8 lakh and deleted balance addition out of total addition made by Assessing Officer at Rs.1,21,96,170/- by giving following findings:- I have carefully considered submissions made and I have also gone through assessment order. I find that except for retracted statement of appellant s father and alleged seized document there was no other evidence to substantiate claim of unexplained investment. While deciding appeal of Chaurbhai Patel it was found that said seized documents was undated, it did not bear name of any party, no survey number or location of property was mentioned and even measurement of lands did not tally with measurement of land of property at village Talav which was allegedly purchased out of undisclosed sale consideration received by appellant s father. Thus it cannot be held that this document related to purchase of property at village Talav. It is also seen that property at village Talav was purchased from various person for consideration of Rs.8.65 lakhs and not for Rs.1.21,96,170/- as indicated in seized document, which incidentally does not appear to be related to this property and at best can be treated as dumb document. said document is not in handwriting of appellant or his father. It has been held in case of appellant s father that no adverse inference could be drawn on basis of retracted statement and so called seized documents. It is seen that no corroborative evidence was brought on record to indicate that any amount over and above amount mentioned in sale deed was paid by appellant. appellant has also claimed that property in question was purchased out of her own agricultural income and property stands in her name. In circumstances addition if any could be made only in hands of appellant and not in hands anybody else keeping in view provisions of Benami transaction (Prohibition) Act. Thus addition is being considered on substantive basis in hands of appellant. As discussed earlier on enquiry was made by Assessing Officer nor matter was referred to Valuation Cell which could indicate that value of property was different to that recorded in sale deed. sellers were also not examined and in circumstances, value shown in sale deed has to be adopted as actual amount invested for purchase of this property. During course of hearing of appeal ld. authorized representative was asked to explain from where appellant invested various amounts for purchase of these properties. reply of 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 39 appellant has purchased land at village Talav. Taluka Sanand on 12/7/96. details of which are as under:- Survey Date of conveyance Name of 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 Pirmbhai Alibvhai Momin 213/2 12/7/96 No1530 Shth Nutankumar Kumarpal Sheih Dipakkumar Kumarpal 1,95,000 source of acquisition of said land was my agricultural income and agricultural income was earned by me out of agricultural land at survey No.268 situated at Village Makarba. proof of earning agricultural income viz. 7/12 extracts since 1972 were provided to learned A.O during course of assessment proceedings. detailed reply for ownership of survey No.268 in agricultural land was given to learned A.O vide letter dated 14/9/2000 and same is complied in paper book at page no.41 to 97 and explanation for source of acquisition of land at village. Talav was given vide letter dated 19/9/2000 with supporting evidence. same is complied in paper book page No. 98 to 187 wherein supporting evidence complied at page No.174 to 177. After going through above reply I find that apart from sum of Rs.8.65 lakh, paid as sale consideration, expenses on account of stamp duty etc. must have been born by appellant and total amount invested would be to tune of Rs.10 lakh approximately. claim that same was out of agricultural income is also snot fully substantiated because alleged agricultural land became sole property of appellant somewhere in year 1994 or 1995 prior to that upto year 1982. said land was owned by appellant s mother and after her mother s death, upto year 1989 property was under ownership of appellant and her sister Hansaben. There is nothing to show that such huge amount was eared and kept in cash with appellant during this period. It is also seen that appellant was having joint bank account with her husband and hence normally such huge amount of cash should have been kept in bank account. It is also seen that earnings of appellant and her husband were also nominal hence part of agricultural income must have been spent for house hold expenses as well. Besides this, while deciding assessment of appellant s husband credit of agricultural income was also gone as deposits of Rs.1.50 lakh were made in form joint bank account and it was claimed that part of it was out of agricultural income. Thus claim that such huge amount was kept in cash does not appear reasonable. However, some credit for agricultural income specially after date of deposit in bank account could be given. It same is deducted balance amount of Rs.8 lakh would represent unexplained investment in this property. addition is therefore restricted to Rs. 8 lakh on substantive basis and balance amount 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 40 26. We find that this issue has already been dealt with in case of Chaturbhai B Patel in IT(SS)A No.203/Ahd/2002 and both parties made same submissions. Accordingly, we have already answered that unaccounted investment made in purchase of Telav land by Smt. Indiraben H Patel is without any basis and we have already deleted undisclosed income assessed in hand of Chaturbhai B Patel. Taking consistent view, we are of considered opinion that CIT(A) has rightly sustained addition at Rs.8 lakh and deleted balance addition. CIT(A) has confirmed addition by giving reasons, for sum of Rs.8 lakhs, that there is nothing to show that such huge amount was earned by assessee out of agricultural income and kept in cash during this period. We further find that assessee was having joint bank account with her husband and hence normally such huge amount of cash should have been kept in bank account as noted in this order in IT(SS)A No.152/Ahd/2002 in case of Hirenbhai S Patel. We find from records that while deciding assessment of assessee s husband, credit of agricultural income was also gone as deposits of Rs.1.50 lakh in form joint bank account and it was claimed that part of it was out of agricultural income. Thus claim that such huge amount was kept in cash does not appear reasonable. But we find that CIT(A) has already allowed some credit for agricultural income specially after date of deposit in bank account, which has rightly been given. Accordingly, we uphold order of CIT(A) and this issue of both i.e. Revenue and that of assessee is dismissed. 27. only common issue in Revenue s appeals in IT(SS)A No.204/Ahd/2002 and IT(SS)A No.205/Ahd/2002 against order of CIT(A) in deleting addition of understatement of purchase of land at village Makarba. For this, Revenue has raised following ground No1:- IT(SS)A No.204/Ahd/2002 Learned CIT(A) has erred in law and on facts in deleting addition of Rs.79,58,335/-made u.s,69 of I.T. Act as alleged understatement in purchase of land at village Makarba. On facts and circumstances of case learned CIT(A) ought to have deleted 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), bd v. Smt. Nidiraben H Patel& Otrs. Page 41 1. Learned CIT(A) has erred in law and on facts in deleting addition of Rs.74,12,180/- as unexplained investment being difference between price paid and amount noted in document seized at residence of Shri Chaturbhai Patel, seller in respect of land at Makarba bearing survey No.244. 2. On facts and in circumstances of case learned CIT(A) ought to have upheld order of assessing officer. 28. We have heard both sides and noticed that this issue we have already dealt with in case of Chaturbhai B Patel in IT(SS)A No.203/Ahd/2002, wherein considering Settlement Commissioner order has considered loose paper No.115 and 117 of Annexure-A/1, similar being issue in present appeals and facts being identical, taking consistent view, we dismiss issues raised by Revenue and upheld order of CIT(A). Both appeals of Revenue are dismissed. 29. In result, all appeals of Revenue and that of assessee are dismissed. Order pronounced on this day of 29th Oct, 2010 Sd/- Sd/- (G.D.Agarwal) (Mahavir Singh) (Vice President) (Judicial Member) Ahmedabad, Dated : 29/10/2010 *Dkp Copy of Order forwarded to:- 1. Assessee. 2. Revenue. 3. CIT(Appeals)-I, Ahmedabad 4. CIT concerns. 5. DR, ITAT, Ahmedabad 6. Guard File. BY ORDER, /True copy/ Deputy/Asstt.Registrar ITAT, Ahmedabad Acit Panchmahal Cir v. M/S Arayama Polytex Ltd