IN INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.664/Chd/2011 (Assessment Year : 2006-07) Income Tax Officer, Vs. Shri Bimal Suri, Ward-6 (4), SCF 1, Highland Society, Mohali. Baltana, Zirkpur. PAN: ATAPS9677E And ITA No.680/Chd/2011 (Assessment Year : 2006-07) A.C.I.T., Vs. Shri Shekhar Chawla, Circle 4(1), H.No.1492, Sector 40-C, Chandigarh. Chandigarh. PAN: ADPPC5364D (Appellant) (Respondent) Appellant by : Shri S.K. Mittal, DR Respondent by : Shri Ajay Jain Date of hearing : 23.08.2016 Date of Pronouncement : 20.09.2016 ORDER PER BHAVNESH SAINI, J.M. : Both departmental appeals are directed against different orders of learned Commissioner of Income Tax (Appeals), Chandigarh dated 18.3.2011 for 2 assessment year 2006-07 against two different assessees. 2. We have heard learned representatives of both parties, perused findings of authorities below and considered material available on record. learned representatives of both parties submitted that issue is same in both appeals and both of them have mainly argued in case of assessee Shri Bimal Suri and submitted that order in this case may be followed in case of other assessee Shri Shekhar Chawla. appeals are, therefore, decided as under : ITA No.664/Chd/2011(Bimal Suri): 3. Revenue has filed present appeal on following grounds : 1. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in allowing appeal of assessee without appreciating facts of case. 2. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.1,12,04,166/- on account of investment in purchase of land of 25K 10M at Lohagarh made by A.O. in hands of assessee (being l/3 rd share) on basis of said agreement on account of unexplained sources of investment in said property. 3. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.1,44,50,000/- on account of profit on sale of land of 3 25K 10M at Lohagarh to M/s Parsav Colonizers & Consultants (P) Ltd. in hands of assessee on account of profit on sale of land, assessee having I/3rd share in such profit. 4. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.19,65,625/- on account of profit on sale of land to M/s Gee City builders (P) Ltd. measuring 8K 10M i.e. l/3rd to total land of 25K 10M). 4. brief facts of case are that survey under section 133A of Income Tax Act, 1961 (in short Act ) was conducted by Range-4, Chandigarh at business premises of Chandigarh Overseas Private Limited and its sister concerns. During course of survey, certain loose papers, photocopies of agreement and incriminating documents were found and impounded from business premises of Chandigarh Overseas Private Limited and from examination of these documents, it was found that assessee was also party to various agreements found during course of survey. Assessing Officer made above additions on basis of photocopies of agreement found from premises of Chandigarh Overseas Private Limited. details of documents have been mentioned in impugned order as below : i) Agreement to sell dated 29.1.2005. ii) Backside of page 2 of agreement to sell dated 29.1.2005. iii) Registered sale deed for 8 kanal 10 marlas. 4 iv) Agreement to sell dated 19.4.2005. v) Agreement to sell dated 29.6.2005. 5. ground No.1 raised by Revenue is general and needs no adjudication. 6. On ground No.2, Assessing Officer made addition of Rs.1,12,04,166/-. 7. During course of assessment proceedings Assessing Officer observed that one of impounded document is agreement to sell dated 29.1.2005 executed between SELLERS 1. Smt.Pushpinder Kaur, W/o Sh. Didar Singh. 2. Shri Gurtej Singh, S/o Shri Didar Singh. 3. Shri Pritipal Singh, S/o Shri Didar Singh, R/o 44, Ext. Guru Teg Bahadur Nagar, Jalandhar. AND BUYERS 1. Shri Gulshan Rai. 2. Shri Jagpal Singh. 3. Sh. Bimal Suri (the assessee). 8. As per this agreement, seller had agreed to sell land 25 kanals 10 marlas situated at Village Lohgarh at rate of Rs.1,18,00,000/- per acre to buyers. assessee is one of buyer and total consideration comes to Rs.3,76,12,500/-. Assessing Officer also noticed from backside of agreement to sell that sellers have received amount of Rs.2,62,50,000/- upto 5 15.06.2005. Assessing Officer further, noticed from registered sale deed that sellers have sold l/3rd share of 25 kanal 10 marla i.e. 8 kanal 10 marlas to S/Shri Jagpal Singh, Gulshan Rai, Shekhar Chawla and Bimal Suri (Assessee) for Rs.42.50 lacs only. deed was registered in name of buyer in two parts, one half in name of S/Shri Gulshan Rai Satija, Jagpal Singh and Bimal Suri and remaining one half in name of Shri Shekhar Chawla on 17.06.2005. Assessing Officer observed that there is huge difference in value shown in registered sale deed and agreement to sell and made addition of Rs.1,12,04,166/-. Assessing Officer reproduced assessee's explanation in para 4 of assessment order but did not accept explanation of assessee that property was purchased by them at throw away price in view of cash receipts of Rs.2,62,50,000/- mentioned in impounded documents and cash receipts of Rs.2.10 crores mentioned on back side of page 2 of agreement to sell. 9. During course of appellate proceedings, Assessing Officer produced document Nos.18 & 19 of Annexure B2, Page 33 of Annexure Bl, on which reliance was placed by department while making addition of unexplained investment in land at Village Lohgarh. copies of documents were supplied to counsel of assessee and he clearly denied that these documents are forged documents and not related to assessee and he 6 also strongly argued that these documents are photocopies and not found from assessee s premises. Further, he also explained inconsistency in above documents as below: 10. These documents are not in any way related to assessee and these were forged documents and assessee has not executed document Nos.18 & 19. Moreover, from perusal of photocopies of documents, it is clear that agreement is not on stamp paper and signature of all parties to agreement are missing. We also submit that part of contents mentioned in page 33 of Annexure Bl has been copied on document No.19 of Annexure B2 and, therefore, it is clear that someone has forged contents and prepared document Nos.18 & 19. Further, it was not found from premises of assessee. Assessing Officer has not examined any party to agreement and no enquiry has been conducted. Further assessee and other buyers have purchased only 8 Kanal & 3 Marlas out of total land measuring 25 Kanals & 10 Marlas and assessee is not aware about balance land sold by Mrs. Pushpinder & others and consideration received by sellers. Further Assessing Officer has not supplied copies of returns of sellers. Further assessee during course of assessment proceedings has already explained that assessee and other 2 persons, namely S/Shri Jagpal Singh and Bimal Suri had agreed to purchase 25 kanals 11 7 marlas Land for consideration of Rs.1.20 crore and paid biana of Rs.40 lacs and assessee and other 2 persons could not arrange money and agreed to purchase only 1/3 share of land for consideration of Rs.41.25 lakhs in order to save his original biana. Assessing Officer is only relying on photocopies of forged documents, which were found from premises of third party. 11. That assessee had never executed any agreement to sell dated 29.1.2005 for purchase of 25 kanals 18 marlas @ Rs.1.18 crores per acre for total consideration of Rs.3,76,00,000/-. However, assessee has entered into agreement to sell for purchase of 25 kanals 18 marlas for total consideration of Rs.1.20 crores with Mrs. Pushpinder Kaur, S/Shri Gurtej Singh & Pritpal Singh. Under said agreement to sell, i.e. for total consideration of Rs.1.20 crores, assessee along with other persons, namely, S/Shri Jagpal Singh and Gulshan Rai Satija. assessee and other two persons has paid total sum of Rs.40 lacs in equal proportion as on 29.01.2005. Assessing Officer has made addition of Rs.1,12,04,166/- on basis of forged photocopy of agreement of total consideration of Rs.3,76,00,000/-, which assessee and two other persons has never executed. It was further submitted that photocopies of documents were not found at premises of assessee and it was found during course of survey conducted at premises of third party, i.e., not party to 8 agreement. Further, Assessing Officer collected evidence at back of assessee and no opportunity was given to assessee to cross examine persons with whom alleged agreement was entered into. assessee had already denied contents of agreement on basis of which addition was made. Assessing Officer had not made any enquiry from any of parties to verify truth. assesseee alongwith other two persons to agreement has paid in previous financial year 2004-05 Rs.40 lacs in cash against total consideration of Rs.1.20 crores and due to financial constraint, it was beyond control of assessee and other two parties to fulfill balance consideration of Rs.80 lacs and they offered Mr. Shekhar Chawla to take 50% share of deal. assessee and other persons to agreement could not pay balance sum as per terms of agreement and seller agreed to sell l/3rd of land in name of assessee as well as other persons to agreement. So, land consisting of 8 kanals 10 marlas was registered in name of S/Shri Gulshan Rai, Jagpal Singh & Bimal Suri (having 50% share) and Shri Shekhar Chawla (having 50% share) for total sales consideration of Rs.42,50,000/-. registered sale deed for same was executed as on 17.06.2005. copy of registration deed is enclosed herewith for your kind reference. rest of area of land i.e. 2/3rd of total land was not sold to assessee and assessee is not aware of facts to whom and at what rate said rest 9 of land was sold. Assessing Officer mentioned that sellers had filed their returns of Income with DCIT Jalandhar showing sale consideration received by them at Rs.3.76 crore. In this regard, this fact was never confronted to assessee during course of assessment proceedings and moreover assessee had purchased very small share in total land and was not aware about rest of land sold by sellers and nowhere it is mentioned that assessee has paid more amount than shown in registered sale deed. Further, counsel argued that presumption is only with regard to person from whose possession and control books of accounts and documents are found. Moreover, this presumption is rebuttable presumption. presumption with respect of photocopy of documents found from third parties premises could not be made against assessee. 12. assessee along with two other persons had purchased land measuring 4 kanals 5 marlas for consideration of Rs.21.25 lakhs through registered sale deed. counsel also placed reliance on judgment of Kerala High Court in case of CIT Vs. Smt. K.C. Agnes 128 Taxmann 848 (Kerala). amount stated in sale deed cannot be ignored on basis of agreement of sale unless it is proved that agreement of sale was acted upon and amount stated in agreement was actually paid. On basis of agreement to sell, it cannot be 10 concluded that price mentioned in sale deed is not correct. 13. counsel of assessee also placed reliance on judgement given by Madras High Court in case of CIT Vs P.V. Kalyana Sundaram, 282 ITR 259 concluding that in absence of any independent enquiry, Assessing Officer was not justified in making addition towards purchase consideration of land merely on basis of statement of seller, who gave conflicting statements. He also stated that that Hon'ble Supreme Court affirmed decision of Madras High Court quoted supra. 14. counsel also placed reliance on following judgements :- - Ram Saroop Saini, HUF vs. Assistant Commissioner of income Tax reported at 15 SOT 470 (Del). In this case Hon'ble Tribunal concluded as under: - Moosa S Madha & Azam S Madha Vs CIT reported in 89 ITR 65(sc). - PRARTHANA CONSTRUCTION P LTD Vs DCIT 70TTJ 122. - CIT Vs RAM KUMAR 163 TAXMAN 253 (P&H) - 19 TTJ 546, 77 TTJ (MUMBAI)(TM) (1) , 59TTJ 574. 15. learned CIT (Appeals) considering material on record deleted entire addition. His 11 findings in paras 20 to 23 of impugned order are reproduced as under : (a) incriminating documents were not found from assessee s premises as these documents were found from Chandigarh overseas Private Limited & assessing officer has not proved any connection with appellant & therefore onus was on department to prove that these document belong to appellant. (b) documents found are only photocopies & no original documents were found & as Supreme Court decision in case of Moosa S Madha & Azam S Madha Vs CIT 89 ITR 65(Sc) photocopies have little evidentiary value. (c) survey team & assessing officer has not made any enquiry from sellers , buyers Pararsav Colonisers & Consultant Limited & Gee City Builders Pvt Limited with respect to purchase of any land from appellant or from original sellers directly and consideration paid by appellant & other buyers & simply recorded statement of appellant during course of assessment proceedings . (d) assessing officer relied on return of income filed by buyers & there were no details with respect to sale consideration received from original buyers & new buyers & during course of appellate proceedings no such returns were produced. (e) appellant & other buyers had not purchased entire land as shown in agreement to sell dated 29-01-2005 & even in registered sale deed 1/3 share of total land was purchased by original buyers & other party & therefore it is clear that they had not acted upon agreement to sell dated 29-01-2005. 12 (e) agreement relied upon by AO i.e. Document no 18 & 19 of Annexure B 2 is not on stamp paper & signature of all parties to agreement are missing & moreover document no 33 of Annexure B l(agreement)is on stamp paper for sale of same land & no consideration was mentioned on this document. (f) part of contents mentioned in page 33 of Annexure Bl has been copied on document no 19 of Annexure B2 & therefore probability of forging contents to prepare document No. 18 & 19 cannot be entirely ruled out. 21 Further ITAT, I Delhi Bench judgment in case of Ram Saroop Saini, HUF vs. Assistant Commissioner of income Tax reported at 15 SOT 470 (Del) has dealt case relating to agreement to sell, statement & understatement of sale consideration case. In this case Hon'ble Tribunal concluded as under: In absence of any material, understatement of sale consideration could not be implied in respect of certain transactions of sale of land merely on basis of unverified statement of property agent and copies of agreements to sell relating to some other transactions; understatement of sale consideration cannot be said to have been established even in respect of those transactions in relation to which AO was in possession of copies of agreement to sell which disclosed higher sale consideration as purchasers have not signed on first page of documents, requisite Court fee stamp is not affixed, AO did not possess originals and assessee was not given any opportunity to cross-examine property agent 13 who had allegedly made adverse statement and, therefore, no addition can be sustained. " 22 In view of above discussion & Judgement given by Kerala High court reported at 128 Taxman 848. Amount stated in sale deed can not be ignored on basis of agreement of sale unless it is proved that agreement of sale was acted upon and amount stated in agreement was actually paid. On basis of agreement to sell it can not be concluded that price mentioned in sale deed is not correct & also placed reliance on judgement given by Madras High Court in case of CIT Vs P.V. Kalyana Sundaram 282 ITR 259 (affirmed by Supreme Court) concluded that in absence of any independent enquiry, AO was not justified in making addition towards purchase consideration of land. 23. addition so made is therefore deleted, allowing assessee's appeal on this ground. 16. On ground No.3, Assessing Officer made addition of Rs.1,44,50,000/-. Assessing Officer also noticed that document Nos.15 and 16 of Annexure B-2 is agreement to sell dated 19.04.2005 of same land i.e. 25 kanal 10 marlas and as per these documents, land has been further agreed to be sold to M/s Parsav Colonisers and Consultants Pvt. Ltd. at rate of 2,54,00,000/- per acre and also noticed that it is mentioned in agreement that amount of Rs.75.00 lacs had been paid as advance money by Parsav Colonisers, Director Shri Shekher Chawla, which includes Rs.3.00 lacs by cheque No.165251 of Andhra Bank and Rs.72.00 lacs by cash. This is also mentioned that 14 amount of Rs.25 lacs will be paid by 15.4.2005 and date of registry had been fixed on 15.6.2005. 17. During course of assessment proceedings, information was called under section 133(6) of Act from Andhra Bank, Sector 34-A, Chandigarh branch. It was confirmed from information received that Ch. No.165251 had been issued in favour of Smt.Pushpinder Kaur (seller) by debit to account of M/s Parsav Colonisers. It established beyond doubt that agreement to sell in question was correct and entire amount of consideration at Rs.8,09,62,500/- proved. 18. Thus sellers i.e. S/Shri Gulshan Rai Satija, Jagpal Singh and Bimal Suri have earned profit on sale of this land as below:- Sale consideration as per Agreement to sell @ Rs. 8,09,62,500/- 2,54,000 per acre 8k 10 M To M/s Parsav Colonisers through its Managing Director Sh. Shekhar Chawla Less: Cost of acquisition as mentioned in para A(-) 3,76,12,500/- Profit 4,33,50,000/- 1/3rd share of assessee 1,44,50,000/- 19. Assessing Officer mainly relied upon impounded Document Nos.15 & 16 of Annexure B2 found from premises of third party. counsel during course of appellate proceedings submitted that 15 assessee had not entered into any agreement dated 19.4.2005 and that these documents were forged & bogus and were not found from premises of assessee. Further department did not make any enquiry from M/S Parsav Colonisers & Consultant Limited to know truth. 20. During course of appellate proceedings, counsel of assessee submitted that M/s Parshav Colonisers and Consultants Pvt. Ltd. had not purchased any land at Lohgarh from assessee & Other two persons till date and therefore, question of profit on sale of land at Lohgarh to M/s Parshav Colonisers and Consultants Pvt. Ltd. does not arise. department relied upon agreement and from para-C of Assessing Officer s order, it is clear that department has calculated profit only on basis of agreement without ascertaining fact that whether land in question was actually sold to M/s Parshav Colonisers and Consultants Pvt. Ltd or not. assessee hereby undertook that no land at Lohgarh was ever sold to M/s Parshav Colonisers and Consultants Pvt. Ltd. There is no evidence with department that land was actually purchased by M/s Parshav Colonisers and Consultants Pvt. Ltd. from assessee. Further, it was submitted that assessee had not sold any land at Lohgarh to Parshav Colonizers and Consultants Pvt. Ltd. till date and therefore, question of profit on sale of land does not 16 arise. Without prejudice to aforesaid submissions, assessee submitted that profit on sale of land can only be determined after completion of sale transaction and not only on basis of advance. Further Assessing Officer relied upon payment received from Parshav colonizers & Consultants Private Limited and there is no relation between payment received and terms & condition of agreement relied by Assessing Officer. Assessing Officer relied upon photocopy of forged & bogus documents which do not relate to assessee and not executed by assessee and which were collected at back of assesse from premises of third parties not related to assessee. Further Assessing Officer had not made any inquiry from original sellers, buyers & companies to know truth. Further Assessing Officer has not made any enquiry from parshav Coloniser consultants Private Limited to know truth and purchase consideration paid if any to assessee and other alleged owners. assessee has not sold any land to Parshav Colonisers Consultants Private Limited and, therefore, question of profit does not arise. 21. learned CIT (Appeals), however, deleted entire addition. His findings in para 11 of order are reproduced as under: 11 I have gone through assessment order & submission made by appellant & it is clear that AO has calculated profit on basis of photocopies of agreement to 17 sell without ascertaining fact whether deal has matured or not. In assessment order in para 5 it is mentioned advance has been given & date of registry has been fixed on 15-06-2005 & it is shocking that no effort was made to know completion of transaction & simply on fact that cheque of Rs 3 issued in favour of Pushpinder Kaur has been issued by debiting account of Parsav Colonisers addition has been made. assessing officer has not brought any material on record to prove sale of land to Parsav Colonisers & Consultant Private Limited & in view of my observation in respect of photocopies of document , impounded from third party premises, absence of enquiry in preceding paras there is no justification to sustain addition on account of sale of land to Parsav Colonisers & Consultant Private Limited. addition so made is deleted, allowing assessee's plea on this ground. 22. On ground No.4, Assessing Officer made addition of Rs.19,65,625/-. Assessing Officer also observed from impounded documents 23-30 of Annexure B-2 that on back side of document No. 30 amount of Rs.1,30,01,100/- has been received as advance money by S/Shri Gulshan Rai, Jagpal Singh, Bimal Suri (assessee) & Shekhar Chawla. 23. As per details available on back side of Document No.30 of Annexure B:2, amount of Rs.22,00,000/- by chque has been received by Shri Shekhar Chawla, amount of Rs.22,00,000/- by Cheque has been received by seller, i.e. Party No.2 and another amount of Rs.85,00,000/- by cheques has been received by Party No.1 and another amount of 18 Rs.1,01,000/- has been received in cash by Party No.1. It is also mentioned that original owner i.e. Smt. Pushpinder Kaur and other would get land registered in name of party No.3. As per Point No. 28 of this agreement, total sale consideration of land has been fixed @ of Rs.3,65,00,000/- per acre. total value of Land thus comes to Rs.11,58,87,500/-. As per point 27 of this Agreement, Party No.1 and 2 are bound to get additional land measuring 2500 square yards arranged and transferred on same rate i.e. Rs.3.65 lac per acre and get it registered in name of party No.3 within six months irrespective of rate at which land is arranged from original owner. This additional land is adjoining to main land purchased by party No.3. After that additional payment of Rs.1.59 lacs will be made by party No.3 as party payment within seven days from date of execution of sale deed pertaining to land measuring 2500 square yards. agreement dated 29.6.2005 with Gee City Consultant Pvt. Ld. extremely important and can be taken as true and one that was acted upon. Its authenticity is proved by following facts:- This agreement contains reference to original agreement to sell dated 29.01.2005 and its terms and conditions that buyers S/Shri Gulshan Rai, Jagpal Singh & Bimal Suri can have land registered in 19 their own name or in any other name. This indeed was intention of buyers, assessee being one of them, to further sell land at profit without getting it registered in its own name. This was common occurrence around period when prices of real estate were escalating by day in areas around Zirakpur and there was frantic growth of residential Commercial Estates in area by Private Builders. It refers to agreement dated 20.04.2005 with Parsav Colonisers. It has reference to registered sale deed dated 17.06.2005 of l/3rd share of 25 kanals 10 marlas (8 kanal 10 marlas). In this connection, it is pertinent to mention that out of 25K 10 Marlas of land, this sale deed was registered on 17.06.2005 in name of S/Shri Bimal Suri, Jagpal Singh & Gulshan Rai, share and remaining share in name of Shri Shekhar Chawla. In other words, assessee Shri Bimal Suri was having l/6th share in this land measuring 8 kanal 10 marlas, which was as per agreement dated 29.06.2005, was sold to Gee City Consultants P. Ltd. 20 cost price of this land was @ Rs.2,54,00,000/- per acre which comes to Rs.2,69,00,000/- adopted as per agreement dated 19.04.2005. sale price of this land comes to Rs.3,87,81,250/- calculated @ Rs.3.65 crores per acre as per agreement dated 29.06.2005. 24. In view of this, profit on sale of this land measuring 8 kanal 10 marlas is calculated as under:- Sale consideration @ Rs. 3.65 Crores 3,87,81,250/- per acre Cost price @ Rs. 2.54 crores per acre 2,69,87,500/- Short term capital gain 1,17,93,750/- Assessee' s share (l/6th) 19,65,625/- 25. learned counsel for assessee submitted that Assessing Officer has made addition on basis of Tripartite agreement (as mentioned in order) among Gee City Builders Pvt. Ltd., Parshav Colonizers and Consultants Pvt. Ltd. and Shekhar Chawla and Gulshan Rai & Others, which was never executed by assessee. Further, no such documents were procured from premises of assessee. Assessing Officer has not made any enquiry from Gee City Builders Pvt. Ltd, and by relying on photocopy of documents which was not executed by assessee and made addition without any enquiry from Gee City Builders Pvt. Ltd. Further in photocopy, all parties to agreement have not signed and, 21 therefore, it can not be relied upon. counsel also placed reliance upon Jurisdictional High Court Judgement in case of CIT Vs RAM KUMAR 163 TAXMAN 253. In this case, it was held that Assessing Officer did not recover documents from possession of assessee nor assessee confronted with seized material. 26. learned CIT (Appeals), however, deleted entire addition. His findings in paras 28 and 29 of his order are reproduced as under : 28. In vie w of above discussion & J u d g e me n t given by Kerala High court reported at 128 T axman 848. Amount stated in sale deed can n o t b e i g n o r e d o n t h e b s i s o f g r e e me n t o f s l e u n l e s s i t i s p r o v e d t h t t h e g r e e me n t o f s l e was acted upon and amount stated in a g r e e me n t wa s c t u l l y p i d . O n t h e b s i s o f g r e e me n t t o s e l l i t c n n o t b e c o n c l u d e d t h t t h e p r i c e me n t i o n e d i n t h e s l e d e e d i s n o t c o r r e c t & also placed reliance on judgement given by Madras High Court in case of C IT Vs P.V. K l y n S u n d r m, 2 8 2 I T R 2 5 9 ( af f i r me d B y S u p r e me C o u r t ) concluded that in absence of any independent enquiry, AO wa s not jus tif ied in making addition on account of prof it on sale of land to M/S Gee City Builders Private Limited. 29. In vie w of above discussion, plea on this ground is accepted, deleting addition so made. 27. We have heard learned representatives of both parties. learned D.R. referred to Paper Book 22 filed by Department in which copies of agreements to sell in question have been filed. learned D.R. submitted that even if these are copies of original agreement to sell, but copies of sale agreement being secondary evidence are admissible under Evidence Act. learned D.R. referred to sections 63, 64 and 65 of Evidence Act. learned D.R. submitted that on photocopy of agreement to sell, there are signature of assessee in which it was provided that sale deed can be executed in name of any person. learned D.R. submitted that CIT (Appeals) should not have deleted all above additions. 28. On other hand, learned counsel for assessee reiterated submissions made before authorities below and submitted that no agreement to sell or any incriminating document was found from possession of assessee. These were found from third party, i.e. M/s Chandigarh Overseas Private Limited. No original document was found or recovered during course of survey or later on. Therefore, photocopy of original is not admissible as evidence and relied upon unreported decision of Delhi High Court in case of CIT Vs. Moorti Devi in ITA No.979/2010 dated 20.9.2010, in which departmental appeal was dismissed observing that original documents were never confronted to assessee and nothing has been brought on record as to what happened to original documents. There is no 23 material even to indicate that photocopies are copies of original documents. learned counsel for assessee also submitted that no enquiry was conducted from any party, i.e. buyer or seller to agreement to sell. In case of one of buyers, M/s Gee City Builders Private Limited, Assessing Officer passed order under section 153A r.w.s. 143(3)) of Act for assessment year 2006-07 but no addition have been made in this case. copy of assessment order dated 31.12.2010 is placed on record. learned counsel for assessee submitted that all parties have not signed any agreement, therefore, additions have been rightly deleted by learned CIT (Appeals). 29. We have considered rival submissions. It is not in dispute that survey was conducted at premises of Chandigarh Overseas Private Limited and its sister concerns and during course of survey, certain loose papers including copies of agreement to sell in question were impounded. Thus, no agreement to sell or any incriminating documents were found from possession of assessee. There is no recovery of any incriminating document from power and possession of assessee. Assessing Officer has not brought any material on record to prove any connection of assessee with these documents/agreement to sell. Assessing Officer wanted to rely upon photocopies of agreement to sell in question. Therefore, onus would be upon 24 Assessing Officer to prove that documents found during course of survey from third party, belonged to assessee. original of photocopies were never recovered in survey proceedings or in post survey proceedings. documents found are only photocopies and no original documents were found. Therefore, photocopies of documents would have little evidentiary value. It is also admitted fact that survey party as well as Assessing Officer has not made any enquiry from any seller or buyer, M/s Parsav Colonisers and Consultants Private Limited and M/s Gee City Builders Private Limited with respect to sale/purchase of any land from assessee or from any original sellers directly or indirectly. No material have been brought on record if assessee was connected with any deal as alleged in photocopies of agreement to sell. No details of any sale consideration or actual amount received or paid by assessee have been brought on record. No evidence have been brought on record if agreements to sell in question were acted upon by parties. agreement to sell dated 29.1.2005 is not on any stamp paper. Hon'ble Delhi High Court in case of CIT Vs. Murti Devi (supra) while dismissing departmental appeal referred to findings of Tribunal in which it was held that photocopies of documents have very little evidentiary value and in absence of original documents, photocopies of documents are not admissible and cannot be basis for making addition. 25 It is, therefore, fact that no original agreements to sell were found from any person and original documents were never confronted to assessee. Therefore, there is no question of preparing copies from original agreement to sell. Therefore, photocopies of agreement to sell cannot be compared with original documents. Reliance of learned D.R. thus on sections 63, 64 and 65 of Evidence Act is clearly misplaced. There was thus no basis to make any addition against assessee on account of investment or earning any profits out of any sale transaction alleged to have been recorded in agreement to sell. Since documents were impounded from third party and no enquiry have been made from them or from any party related to agreement to sell, therefore, there was no justification to make any addition against assessee on basis of such agreement to sell. Even in case of M/s Gee City Builders Private Limited, Assessing Officer passed regular assessment order under section 153A r.w.s. 143(3)) of Act but no addition have been made in this case. learned CIT (Appeals) on proper appreciation of facts and material on record correctly deleted additions. 30. Considering above discussion and totality of facts and circumstances, we do not find any infirmity in order of learned CIT (Appeals) in deleting all above three additions. 26 31. departmental appeal has no merit, same is accordingly, dismissed on all grounds. 32. departmental appeal is dismissed. ITA No.680/Chd/2011(Shekhar Chawla): 33. This appeal has been filed by Revenue on following identical grounds : 1. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in allowing appeal of assessee without appreciating facts of case. 2. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.41,43,750/- on account of alleged payment made in purchase of land. 3. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.1,31,21,875/- on account of alleged amount earned over and above amount mentioned in registered deed.. 4. On facts and in circumstances of case and in law, Ld. CIT(A) has erred in deleting addition of Rs.3,87,05,500/- on basis of certain documents found during course of survey. As assessee was one of party in transactions and had not disclosed anything except showing ignorance. 27 34. learned representatives of both parties submitted that issue is identical as have been considered in case of Bimal Suri (supra). learned CIT (Appeals) gave identical findings as have been given in case of Bimal Suri (supra). Therefore, following reasons for decision in case of Bimal Suri (supra), we do not find any merit in departmental appeal. same is accordingly dismissed. 35. departmental appeal is dismissed. 36. In result, both departmental appeals are dismissed. Order pronounced in open court. Sd/- Sd/- (ANNAPURNA GUPTA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 20 t h September, 2016 Rati Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar, ITAT, Chandigarh Income Tax Officer, Ward-6 (4), Mohali v. Bimal Suri