Vildirect: IncomeTax-caselaws-2016-VIL-989-ITAT-ART

2016-VIL-989-ITAT-ART

Income Tax Appellate Tribunal AMRITSAR

ITA Nos.659 & 660(Asr)/2014, ITA No. 666(Asr)/2014

Date: 01.08.2016

ASSTT. COMMR. OF INCOME TAX, CENTRAL CIRCLE-1, JALANDHAR

SH. KULWINDER SINGH, AND M/s . HARMAN BUILDERS PVT. LTD.

Appellant by: Sh. Bhawani Shanker, DR
Respondent by: Sh. Dinesh Sarna, DR

BENCH

SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER

JUDGMENT

PER A.D. JAIN, JM:

These are the Department’s appeals for the assessment years 2009-10, 2010-11 & 2009-10, against the separate orders dated 14.08.2014, 26.08.2014 & 12.08.2014, passed by the ld. CIT(A)-1, Ludhiana, passed in the respective cases of the two assessees. As the issues involved in all the appeals are common, they are being disposed of by this consolidated order, for the sake of convenience.

2. The Department has raised the following grounds of appeal in ITA No.659(Asr)/2014, for the A.Y. 2009-10, which are identical in the other appeals, except variation in amounts:

“1. Whether the decision of the ld. CIT(A) is right in deleting the addition of Rs. 2,27,00,000/- made by the AO on account of unaccounted and undisclosed investment u/s 69B of the Act by not considering photocopy of agreement to sell as an evidence when subsequently some of the cheques mentioned in the said agreement were found debited in the bank statement of Sh. Mohinder Singh Bajwa (Purchaser).

a. Whether the ld. CIT(A) is right to hold that the fair market value of asset as on date of transaction exceeds full value of consideration declared by the assessee then it is for the AO to prove that the value declared by the assessee is understated. Whereas three cheques dated 10.05.2007 No.148467 Rs. 15 lacs No.148468 Rs. 15 lacs, No.148469 Rs. 10 lacs as mentioned in the page 2 of the said photocopy of agreement have been found debited in bank account of Sh.Mohinder Singh Bajwa, bank statement of which were obtained u/s 133(6) of the I.T. Act, 1961 from the Citizen Urban Cooperative Bank Limited, Mithapur Road, Jalandhar. This copy of agreement is very valid evidence to prove that the value declared by the assessee is understated.

b. Whether the ld. CIT(A) is right to hold that the AO is entirely dependent upon the documents found and seized not in the case of the appellant but from unrelated party. The ld. CIT(A) failed to consider the issue that question of value of property of the appellant is one of the same chunk of land of M/s. PISCO Ltd. only which is very well mentioned in the said seized copy of agreement.

c. Whether the ld. CIT(A) is right to hold that how various payments in cheques as well as in cash have been made by the impugned buyer to M/s. PISCO Ltd; and the said payment in cheques, as observed by the AO stand recorded in the books of accounts of the buyer. Since, the payment made by cheques and cash is recorded in the copy of agreement and the said transaction of payment made by cheques are reflected in the bank statement of buyer is a valid evidence, whether the transactions are recorded in the books or not.

d. Whether the ld. CIT(A) is right to hold that the same test regarding admissibility of evidence could not be extended in the case of every other buyer of the land in the same village or similar located land. But the ld. CIT(A) failed to appreciate that the land of appellant is a chunk of part of the same land of PISCO Ltd. only.

e. Whether the ld. CIT(A) is right to hold that the presumption made by the AO on the basis of seized documents in the case of M/s. PISCO Ltd. in respect of impugned deal recorded in the said document could definitely be made but same presumption cannot be extended to in the case of every other consequential sale of land by M/s. PISCO Ltd. In this regard, it is pertinent to mention here that the ld. CIT(A) failed to consider the issue that the question of sale of land is not on the basis of presumption because the land of appellant is a chunk of part of the same land of PISCO Ltd. only.

2. Whether the decision of the ld. CIT(A) is right in deleting the addition of Rs. 14,02,104/- made by the AO on account of disallowance of interest under section 36(1)(iii) of the Act.”

3. The facts of the case are that the assessee is engaged in the business of sale/purchase of property. Search and seizure was conducted at the business as well as residential premises of the assessee on 03.08.2011 and notices u/s 153A of the Income Tax Act were issued for the six years immediately preceding the assessment year relevant to the previous year in which the search operation was conducted. In response, the assessee filed return of income declaring income of Rs. 10,04,250/- on 28.02.2013. The assessee filed reply to the questionnaire along with the required detail and documents. Assessment u/s 153A r.w.s. 143(3) of the Act was framed on 24.03.2014, at Rs. 2,51,52,675/-, as against the returned income of Rs. 10,04,250/- . Thus, the AO made addition of Rs. 2,41,48,425/- on different accounts.

4. The ld. CIT(A), partly allowed the appeal of the assessee.

5. Aggrieved, now the department is in appeal before this Bench against the order of the ld. CIT(A).

5. The ld. DR relied on the order of the Assessing Officer. However, as regards the first issue relating to deletion of addition of Rs. 2,27,00,000/-, he submitted that the addition was made by the AO on account of unaccounted and undisclosed investment u/s 69B of the I.T. Act, by considering the photocopy of agreement to sell as an evidence, when some of the cheques mentioned in the said agreement were found debited in the bank statement of Sh. Mohinder Singh Bajwa (Purchaser). He further submitted that the ld. CIT(A) is not justified in deleting the addition.

6. The ld. counsel for the assessee, on the other hand, strongly supported the impugned order. He contended that the addition was made on account of an agreement which was neither found from the residence of the assessee, nor was the assessee was a party to this agreement, and as such, the ld. CIT(A) was justified in deleting the addition of Rs. 2,27,000/- . He submitted that during the course of assessment proceedings, statements of Sh. Ramesh Inder Singh, Chairman of PISCO and Sh. Vinay Kumar, Accountant of the assessee were also recorded u/s 131 of the I.T. Act, 1961, in the case of the assessee, wherein they had categorically refused to identify the said agreement as mentioned in para 5.6 of the assessment order.

7. We have heard the rival contentions and have perused the material available on record. We have also gone through the very detailed and order of the ld. CIT(A), who has discussed each and every aspect of the matter and has found that the findings given by the ld. CIT(A) based on the facts and circumstances of the case, which do not require any interference on our part. The relevant findings given by the ld. CIT(A) in his order in paras 9 to 24 of the order are as follows:

‘9. I have considered the facts of the case, the basis of addition made by the Assessing Officer and the arguments of the AR during assessment proceedings as well as appellate proceedings. It is quite apparent that the case of the Assessing Officer is entirely dependent upon the documents found and seized not in the case of the appellant but from unrelated party being an Accountant of the company which happens to be seller of the land in question. It is also fact that impugned unregistered agreement to sell allegedly entered into by M/s PISCO Ltd. and two other persons is a photo copy of the agreement to sell in respect of land in the same village Birring at the rate of Rs. 11.05 Crore per acre. The said documents further record as to how various payrments in cheque as well asTn cash have been made by the impugned buyer to M/s PISCO Ltd. and said payments in cheque, as observed by the Assessing Officer stand recorded in the books of account of buyer. This crucial fact lends credibility to impugned agreement to sell. The action on the basis of such an agreement to sell, even though being a photocopy is warranted in the case of parties to agreement as the evidence in the case of Income Tax proceedings does not have to be in the nature of evidence under section 65 of the Evidence Act, 1872.

10. However the same test regarding admissibility of evidence could not be extended in the case of every other buyer of land in the same village or similarly located land. The presumption u/s 132 (4A) is to be invoked in the case of M/s PISCO Ltd. from whom the document or valuables are found and seized and even in the said case such a presumption is rebuttable. However, it is clear that no evidence whatsoever has been found from the appellant during the course of search operation which could even suggest that there has been unaccounted investment in the purchase of land to the tune of Rs. 2.27 Crore. The presumption made by the Assessing Officer on the basis of the seized documents in the case of M/s PISCO Ltd. in respect of the impugned deal recorded in the said document could definitely be made but same presumption can not be extended to in the case of every other consequentiaI sale of land by "M/s PISCO Ltd. The Assessing Officer has clearly observed in the assessment year that the sale consideration as recorded in the seized copy of agreement of sale has been taken for the purposes of comparative rate at village Birring only and the land purchased by the appellant was different than the one mentioned in the impuqned seized documents. This issue has been clarified by the Assessing Officer at para 4.6 in the assessment order. This further underlines the basis of Assessing Officer's presumption Here it is important to consider the facts of the case in the light of Judicial Pronouncements in similar cases wherein the documents relied upon by the Assessing Officer had been seized in the case of third arties. The documents to be relied upon have to be extremely clearly specific and descriptive enough to establish the factum of passing on if unaccounted sale consideration for transfer of property in question. the documents seized in the case of M/s PISCO Ltd only create a doubt or suspicion which cannot take the place of the evidence as has been held in the catena of judgments, some of which are as under:-

DCIT Vs. D.N. Kamani (HUF) 70 ITD (Patna- Trib) 77

Commissioner of Income Tax Vs. Ram Narain 224 ITR 180 (P&H)

Elite Developers Vs. Dy. Commissioner of Income Tax 73 ITD (Nagpur- Trib) 379

Monga Metals Pvt. Ltd. Vs. ACIT 67 TTJ (All) 247

JCIT Vs. Gramophone Company of India Ltd. 265 ITR (Kol-Trib) 46 (AT)

11. The case of Amarjit Singh Bakshi (HUF) vs ACIT is on similar facts as is clear from the following head note:-

“Search and seizure-Block assessment-Computation of undisclosed income -Addition under section 69B-A loose sheet, purporting to be an agreement, partly written in pencil and partly in pen, found during search of the premises of 'N'- Said document revealed that agricultural 'was sold by 'N' to assessee (ASB) at a consideration much higher than that declared by ASB-AO, in regular assessment of assessee ASB(HUF) on protective basis, made addition of the difference and in block assessment of ASB' (individual), made an addition of Rs. 6.8 crores as undisclosed investment- Addition not justified-Such a document could not be said to be an 'agreement' nor a 'dumb document'-'N' having changed his stand and retracted his statement at various levels, his testimony could not be said to be reliable- Further, the document in question was not recovered from the possession of assessee and assessee was not given any opportunity to cross-examine 'N'-In the absence of any reliable evidence, no addition could be made."

12. Further the decision of Flon’ble Jurisdictional Bench of ITAT in the case of Neena Syal vs Assistant Commissioner of Income Tax 69 (Chd-Trib) 516 is also on similar issue as is clear from following head note: -

"Search and seizure-Block assessment-Computation of undisclosed income-Addition of premium allegedly paid over and above the cost of plot mentioned in the registered deed- Seized documents on the basis of which the impugned addition were made not found at the residence of the assessee but at the residence of a third party- Same have not been specifically confronted to the assessee before making the addition-Explanation given by assessee not controverted by AO-AO has not given any reason for either not accepting the explanation of the assessee or for finding the explanation as unsatisfactory-Thus, AO did not comply with the conditions stipulated in s. 69-Addition deleted-Remand of the case not called for-Power of remand under s. 254 is required to be exercised in a disciplined and responsible manner-Same cannot be invoked in a case where AO has not cared to follow the basic provisions of s. 69/69B."

13. The decision of the jurisdictional ITAT Amritsar in the case of ITO vs. Sh. Surinder Singh is directly on the similar facts as certain documents seized from the third party M/s Dreamland Co-operative which was seller in said case and the documents in question had recorded certain amounts received by M/s Dreamland Co- operative Society from the assessee on account of sale of flat. It is further to be noted that Sh. Rakesh Kumar C/o Dreamland Cooperative Society had given statement to the effect that amount had been received from the assessee. However a mere presumption that sale deed was registered in the impugned assessment year would not mean that cash payment was also in the same year. The presumption available u/s 132(4A) was not available in the case of the assessee as no documents had been seized from his possession. The Hon’ble Court held as under:

"The only piece of paper which is computerized 04.07.2007 seized from a third party i.e. M/s Dreamland co-operative Society on 19.07.2007 is the only document on the basis of which the Assessing Officer had made the addition. We concur with the view of the Ld. CIT(A) that except for the only document i.e. page No. 66 of annexure 50 seized from M/s Dreamland co-operative Society, a third party there is nothing else to suggest that assessee had in fact paid an amount of Rs. 11,50,000/- in cash to the society. It is undisputed that the document is not seized from assessee. It is also undisputed that the document I not seized from the assessee. It is also undisputed that document is not in handwriting of the assessee and did not belong to assessee. It is also not disputed that there is no date on alleged payment mentioned in this loose document. It is a fact that as per sale deed dated 11.01.2007 the flat was sold by the society to the assessee for a full and final consideration of Rs. 7 lanes paid through cheque No. 346637 dated 08.01.2007 and this value has duly been accepted by the registration authority. The Assessing Officer has bsed his entire case on this document and the statement given by Sh. Rakesh Kumar M/s Dreamland Co-operative Society. Moreover, during the assessment of the society a valuation report of the property was filed wherein amount of Rs. 50 lacs had been surrendered by the said Society. In the present case, when document seized is not bearing any date as regard the payment made in cash, the same cannot be linked to the assessee conclusively in the impugned assessment year. A mere 'Presumption that sale deed is registered in the impugned assessment year and therefore, cash payment is also made in the same year is not enough in the absence of any link in the list of payment. We concur with the view of the Ld. CIT(A) and the cases relied upon by him that presumption is available against the person from whose possession a seizure is made but the same cannot be extended to others. Accordingly, the Ld. CIT(A) has rightly deleted the addition made by the Assessing Officer and we find no infirmity in his order. Thus all the grounds of the revenue are dismissed."

14. The issue of alleged understatement of sale consideration in the registration deed has to be proved by the revenue and the same can be done by leading positive evidence either in the form of some documents found during the course of search or otherwise which could prove that consideration over and above the registration deed had been passed on from buyer to seller. The evidence relied upon by the Assessing Officer in the instant case represents a photocopy of an agreement to sell with regard to a deed between two other persons in respect of different piece of land and on a different date. The Assessing Officer on the basis of the said seized documents, which has been denied by all the constituents mentioned therein, could definitely make a presumption on sale price being higher than what was stated in the registration deed by the appellant. However, the said presumption has to be backed up by the some evidence of transfer of such consideration from the buyer to seller. The appellant alongwith seller had been subjected to search operation within the meaning of section 132 of the I.T. Act 1961 but no such evidence could be found to be existing. This means that the presumption of the Assessing Officer eventually remains a presumption and therefore can not substituted in place of evidence i.e. essential requirement to unsettle the sale consideration as recorded in the registered documents. It is also important to appreciate that the said registration between the appellant and seller has been at a price which is at least as per circle - rate approved by the Revenue Authorities and hence can not be said to be below fair market price. The Hon'ble Apex Court in the case of K.P. Varghese Vs. ITO 131 ITR 597 (SC) had given judgment in the context of applicability of Section 52(2) of Income Tax Act 1961 which dealt with the possible under statement of sale consideration. The said section has been omitted by Finance Act 1987 w.e.f. 1.4.88 and the only presumption as of now is in terms of applicability of section 50C in the case of computation of capital gain in the case of the seller. The under statement that could be presumed in such eventuality in the hands of the buyer cannot lead to an addition u/s 69 which clearly shows that it is the evidence of passing on of unaccounted sale consideration that has to be brought on record. The Hon'ble Apex Court clear held as under:-

"It is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the Revenue and the burden lies on the revenue to show that there is an understatement of the consideration. Moreover, to throw the burden of showing that there is no understatement of the consideration on the assessee would be to almost impossible burden upon him to establish a negative, namely, that he did not receive any consideration beyond that declared by him. Once it is establishing by the Revenue that the consideration for the transfer has been understated or, to put it differently the consideration actually received by the assessee is more than what is declared or disclosed by him, section 52(2) is immediately attracted, subject of course to the fulfillment of the condition of 15% or more difference, and the Revenue is then not required to show what is the precise extent of the understatement or in other words, what is the consideration actually received by the assessee. That would in most cases be difficult, if not impossible, to show and hence sub-section (2) relieves the Revenue of all burden of proof regarding the extent of understatement or concealment and provides a statutory measure of the consideration received in respect of the transfer. It does not create any fictional receipt. It does not deem as receipt something which is not in fact received. It merely provides a statutory best judgment assessment of the consideration actually received by the assessee and brings to tax capital gains on the footing that the fair market value of the capital asset represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him.

15. The said judgment of Hon'ble Apex Court has been consistently followed various High Court and Tribunals on the issue of understatement of sale consideration in respect of cases following under the Income Tax Act, 1961. For instant the Hon'ble Delhi High Court in the case of CIT Vs. Smt. Suraj Devi 328 ITR 604 held as under:-

"It is settled law that the primary burden of proof to prove understatement or concealment of income is on the Revenue and it is only when such burden is discharged that it would be permissible to / upon the valuation given by the DVO. In any event, the opinion of a DVO, per se is not an information and cannot be relied upon without the books of account being rejected which has not been done i the present case. Moreover, in the present case, no evidence much ass incriminating evidence was found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the registered purchase deed. A reading of the Assessing Officer's order does not disclose that the assessee had made any admission in her alleged statement under section 132(4). In fact, no such statement has been produced. It is also pertinent to mention that no adjustment on account of sales consideration has been made by the Revenue in the case of the seller. Consequently, no substantial question of law arises in the present appeal which, being bereft of merit, is dismissed.- K.P. Varghese vs. ITO (1981) 24 CTR (SC) 358 :(1981) 131 ITR 597 (SC), CIT vs. Smt. Shakuntala Devi (2009) 224 CTR (Del) 79: (2009) 316 ITR 46 (Del), Sargam Cinema vs. CIT (2011) 241 CTR (SC) 179 and Asstt. CIT Vs. Dhariya Construction Co. (2010) 236 CTR (SC) 226: (2010) 47 DTR (SC) 288 followed."

16. The above judgment of the Hon'ble Delhi High Court, which is in the context of validity of report of DVO with regard to fair market price of the property but it clearly underlines that no evidence much less incriminating evidence had been found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the registered purchase deed.

17. The Hon'ble Jurisdictional High Court of Punjab & Haryana in the case of Paramjit Singh Vs. ITO has clearly upheld the far reaching importance of the amounts shown in the sale deed. The said judgment has been given in the context of admission of oral evidence as against the terms and condition recorded in the registered sale deed. The Hon'ble Court held as under:-

"There is well-known principle that no oral evidence is admissible once the document contains all the terms and conditions. Secs. 91 and 92 of the Indian Evidence Act, 1872 (for brevity 'the 1872 Act') incorporate the aforesaid principle. According to section 91 when terms of a contract, grants or other disposition of property have been reduced to the form of a document then no evidence is permissible to be given in proof of any such terms of such grant or disposition of the property except the document itself or the secondary evidence thereof. According to section 92 of the 1872 Act once the document is tendered in evidence and proved as per the requirements of section 91 then no evidence of any oral agreement or statement would be admissible as between the parties to any such instrument for the purposes of contradicting, varying, adding to or subtracting from its terms. According to illustration 'b' to section 92 if there is an absolute agreement in writing between the parties where once has to pay the other a principal sum by specified date then the oral agreement that the money was not to be paid till the specified date cannot be proved. Therefore, it follows that no oral agreement contradicting/varying the terms of a document could be offered. Once the aforesaid principle is clear then ostensible sale consideration disclosed in the sale deed dated 24th Sept., 2002 has to be accepted and it cannot be contradicted by adducing any oral evidence. Therefore, the order of the Tribunal does not suffer from any legal infirmity in reaching to the conclusion that the amount shown in the registered sale deed was received by the vendors and deserves to be added to the gross income of the assessee."

18. "The Hon’ble High Court of Rajasthan in the case of COMMlSSIONER OF INCOME TAX vs. BHANWARLALMURWATIYA , reported in (2008) 215 CTR (Raj) 489, held:-

“The Question as to what was the price of the land at the relevant time is a pure question of fact. Apart from the fact, that even if it were to be assumed, that the price of the land was different than the one, recited in the sale deed, unless it is established on record by the Department, that as a matter of fact, the consideration, as alleged by the Department, did pass to the seller from the purchaser, it cannot be said, that the Department had any right to make any additions. It is a different story as to, to what extent and how, the statement of 5, as given before different authorities, at different times, can be used against the assessee. More so, when none of the witnesses was examined before the AO, and the assessee did not have any opportunity to cross examine them. In any case, the question as to whether the consideration of Rs. 61 lacs, or any other higher consideration than the one, mentioned in the sale deed, did pass from the assessee to the seller or not, does not the less remain a question of fact, and it is not shown by the Department, that any relevant material has been ignored, or misread by the CIT(A), or the Tribunal. In that view of the matter, the questions, as framed, cannot be even said to be arising, and in any case, are required to be answered against the revenue, and in favour of the assessee."

19. The Hon'ble Income Tax Appellate Tribunal, Chandigarh Bench 'B', Chandigarh in the case of I.T.O. vs. Shri Mohinder Singh reported in (2008)ITR 118 (ITAT, Chd), held:-

"Addition made under capital gain on the ground that income by way of sale received by the assessee was more than what it was shown in the deed of registration on the basis of report of investigation wing of the department based on a photocopy of an agreement disowned by the assessee. No evidence on record to show that assessee had received more than what was disclosed on the registered instrument, the burden for which is on revenue. No addition can be made on the basis of the photocopy of a document when the transaction is separately evidenced by a registered sale deed."

20. The Hon’ble Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh in the case of I.T.O. v. Shri Manjit Singh reported in (2010) 128 TTJ (Chd)(UO) 82, held:-

"In the absence of any evidence to show that the assessee had received any consideration over and above what is stated in the sale deed, addition could not be made by disregarding the 'full value of the consideration' declared by the assessee simply because another portion of land has been sold by the assessee along with his brother at a higher rate,"

21. The Hon'ble Madras High Court in the case of Sivakami Co. Pvt. v. CIT (1973) 88 ITR 311 (Mad) has held that the burden of proving that certain sales were effected with the object of avoidance or reduction of tax on capital gains is on Revenue and it is not enough in 3 explanation offered by the assessee was not acceptable and there e strong suspicion as to the real motive, which prompted the ssessee to sell the assets. There must be something positive to suggest that the sales were effected with the object of avoidance or reduction of tax liability for capital gains and this was affirmed by Hon'ble apex court in (1986) 159 ITR 71 (SC). We are of the view that unless there is evidence that more than what is stated in the documents or was received, no higher price can be taken to be the basis for computation of tax either in business transaction or capital gain transactions. The entire onus is on Revenue and the inferences might be drawn in certain cases but come to a conclusion that a particular higher amount was, in fact received must be based on such material from which such an irresistible conclusion follows. In our considered view, in the present case, the Revenue could not primary facts, from which inference can be drawn that the considerations recorded by assesseefirm in its account and the s deeds is not the full consideration or the actual price received by assessee for the transfer of shops was the under-stated price.

22. The Hon'ble Apex Court in the case of CIT Vs. George Handerson & Company Limited 66 ITR 622 has observed that full value of consideration for which the sale, exchange or transfer of the capital asset is made appearing in section 12B of Indian Income Tax Act,1922 (corresponding to the present section 48 of the Income Tax Act,1961), does not mean the market value of the asset transferred but the price bargained for by the parties to the sale, etc. The consideration for the transfer of capital asset is what the transferor receives in lieu of the asset he parts with, viz., money or money's worth. The expression "full consideration" in the main part of section 12B(2) cannot be construed as having a reference to the market value of the asset transferred. The Hon'ble Madras High Court in the case of CIT Vs. P. Suryanaraina 88 ITR 321 held that the full value of consideration in the said section meant only the actual value received by the assessee. However the market value may also be taken in place of full value of the consideration only in the event of the consideration as per registered document being less than the value fixed by revenue authorities for purpose of collection of stamp duty. It means that the full value of consideration as evidenced by the registered document can be constituted for the value meant for the purposes of stamp duty as per section 50c. This section has been introduced by Finance Act 2002 , w.e.f. 1.4.2003 and has been titled "special provision for full value of consideration in certain cases" which means that the full value of consideration can be substituted only if the conditions as stipulated in the provisions of section 50C are fulfilled. Apart from the provisions of section 50C, the sale consideration as reflected in the registered document can be substituted by a higher figure if there is evidence on record to suggest that amount over and above the one recorded in the registered documents had passed on from the buyer to the seller."

23. The Hon'ble High Court of Delhi in the case of Commissioner of Income Tax Vs. Dinesh Jain HUF reported in 254 CTR (Del) 534, held:- "Section 69B in terms requires that the Assessing Officer has to first "find" that the assessee has "expended" an amount which he has not fully recorded in his books of account. It is only then that the burden shifts to the assessee to furnish a satisfactory explanation. Till the initial burden is discharged by the Assessing Officer, the section remains dormant.

A "finding" obviously should rest on evidence. In the present case, it is common ground that no incriminating material was seized during the search which revealed any understatement of the purchase e. That is precisely the reason why the Assessing Officer had to sort to Rule 3 of Schedule III to the Wealth Tax Act. This Rule does not even claim to estimate the "fair market value" of an asset; it merely lays down a procedure for computing the value of an asset for the purposes of the Wealth Tax Act. The Schedule derives its authority from Section 7(1) of the Wealth Tax Act. The section, as it now stands, has dropped all pretensions to ascertaining the fair market value of an asset for the purposes of the Wealth Tax Act. Prior to the amendment made w.e.f. 1-4-1989 the section provided for the estimation of the fair market value of an asset on the principle of what it would fetch if sold in the open market. This involved an assumption of an open market, be it fictional, a willing seller and a willing buyer, all fictional. This fiction facilitated a realistic estimation of the fair market value of the property, and it moved with the ups and downs of the market. Not anymore. From 1-4-1989, the value was frozen. For all times to come, an immovable property that fetches rent shall be valued at 12.5 times the net maintainable rent.

There is a fundamental fallacy in invoking the provisions of the Wealth Tax Act to the application of Section 69B of the Income Tax Act, notwithstanding that both the Acts are cognate and have even been said to constitute and integrated scheme of taxation. Under the Income Tax Act, we are to find what was the real and actual consideration paid by the assessee and whether the full consideration has been recorded in the books. Under section 7(1) of the Wealth Tax Act as it stood before 1-4-1989, we are to estimate the fair market value of the asset; after this date, it is not even estimation of the fair market value, but computation of the value of the asset on the basis of certain rules prescribed by the statute.

Sec. 69B does not permit an inference to be drawn from the circumstances surrounding the transaction that the purchaser of the property must have paid more than what was actually recorded in his books of account for the simple reason that such an inference could be very subjective and could involve the dangerous consequence of a al or fictional income being brought to tax contrary to the strict visions of Article 265 of the Constitution of India and Entry 82 in List 1 of the seventh schedule thereto which deals with "Taxes on income other than agricultural income."

For the purposes of Section 69B it is the burden of the Assessing Officer to first prove that there was understatement of the consideration (investment) in the books of account. Once that undervaluation is established as a matter of fact, the Assessing Officer, in the absence of any satisfactory explanation from the assessee as to the source of the undisclosed portion of the investment, can proceed to adopt some dependable or reliable yardstick with which to measure the extent of understatement of the investment. One such yardstick can be the fair market value of the property determined in accordance with the Wealth Tax Act.

The error committed by the Income Tax authorities in the present case is to jump the first step in the process of applying section 69B- that of proving understatement of the investment- and reply the measure of understatement. If anything, the language employed in section 69B is in stricter terms than the erstwhile section 52(2). It does not even authorize the adoption of any yardstick to measure the precise extent of understatement. There can therefore be no compromise in the application of the section. It would seem to require the Assessing Officer even to show the exact extent of understatement of the investment; it does not even give the Assessing Officer the option of applying any reasonable yardstick to measure the precise extent of understatement of the investment once the fact of understatement is proved. It appears that the Assessing Officer is not only required to prove understatement of the purchase price, but also to show the precise extent of the understatement. There is no authority given by the section to adopt some reasonable yardstick to measure the extent of understatement. But since it may not be possible in all cases to prove the precise or exact amount undisclosed investment, it is perhaps reasonable to permit the Assessing Officer to rely on some acceptable basis of ascertaining the market value of the property to assess the undisclosed investment. Whether the basis adopted by the Assessing Officer is an acceptable or not may depend on the facts and circumstances of the particular case. That question may however arise only when actual understatement is first proved by the Assessing Officer. It is only to this extent that the rigour of the burden placed on the Assessing Officer may be relaxed in cases where there is evidence to show understatement of the investment, but evidence to show the precise extent thereof is lacking.

Since the entire case has proceeded on the assumption that there was understatement of the investment, without a finding that the assessee invested more than what was recorded in the books of account, the decision of the Income Tax Authorities cannot be approved. Section 69B was wrongly invoked. The order of the Tribunal is approved; the substantial question of law is answered in the negative, in favour of the assessee and against the CIT.

Conclusion:-

Section 69B cannot be invoked on the assumption that there was understatement of the investment, without a finding that the assessee invested more than what was recorded in the books of account." vii) The Hon'ble High Court of Punjab & Haryana in the case of Commissioner of Income Tax Vs. Harpal Singh reported in (2008) 3 DTR 254, held:-

"Tribunal has recorded a pure finding of fact after taking into consideration the evidence/material available on the record to the effect that before the Assessing Officer there was no material or evidence to conclude that the assessee had paid a consideration and above the amount mentioned in the registered sale deed, i.e. @ Rs. 2.30 lacs per acre and the addition made by him was without any basis. The only evidence/material available before the Assessing Officer was the so called statement of 'S', which was recorded by the Asstt. Director of IT (Inv.), on 18th Sept., 2001 in which he had deposed that he had sold the land in question @ Rs. 4 lacs per acre, and apart from the amount mentioned in the registered sale deed, he had received Rs. 72 lacs cash from the assessee in five installments. Undisputedly, said 'S' subsequently retracted from his statement the Asstt. Director of IT (Inv.) itself whereby he had confirmed that he had not received any amount over and above the consideration stated in the sale deed. Further, it is also undisputed position that before the Assessing Officer said 'S' did not appear and made any statement nor an opportunity was granted to the assessee to confront the sale deed and cross-examine 'S' on the statement which he had made before the Asstt. Director of IT (Inv.). In spite of allthis evidence, the Assessing Officer made the addition under section 69B only on the basis of conjectures while observing that it is a well known practice that the sale deeds of immovable properties are being registered at the much lower rates than the prevailing in the markets. It is also disputed fact that after selling of the land, 'S' was assessed under the Act and at that time the sale value of the said land was taken as indicated in the registered sale deed and that assessment had become final. The Tribunal has duly appreciated the evidence/material available on the record and various contentions raised by the parties, and then came to the aforesaid conclusion, which is a pure finding of fact which does not require any interference by the Court. Therefore, in these appeals no substantial question of law is arising from the impugned order for consideration of the court."

24. The Hon'ble Apex Court in the case of Commissioner of Income Tax vs. P.V. Kalyanasundaram reported in (2007) 212 CTR (SC) 97, held:-

"The respondent assessee vide a registered sale deed dt. 26th Oct., 1998 purchased certain land at Brindavan Road, Fairlands, Salem for a sum of Rs. 4.10 lakhs. During a search of the office and residential premises of Polimer Net Work, certain notes on loose sheets allegedly in the hands of the respondent were found and seized by the Department. In his statement recorded on 8th Dec., 1998, the assessee submitted that he could not remember as to why the notings had been made. The statement was further confirmed by another statement on 11th Dec., 1998. The Department also recorded the statement of the vendor Rajarathinam on 8th Dec., 1998 which too was Confirmed on 11th Dec., 1998 in which he admitted that he had in received a total consideration of Rs. 34.35 lakhs and that the sum 4.10 lakhs reflected in the sale deed had been received by him way of a demand draft and the balance in cash. Rajarathinam however retracted from his statement on 8th Jan., 1999 and filed an affidavit deposing that the sale price was Rs. 4.10 lakhs only and that his statements earlier given to the authorities were incorrect. In a subsequent statement recorded on 20th Nov., 2000 Rajarathinam again reverted to his earlier portion and deposed that the sale price was Rs. 34.85 lakhs. The AO concluded that the sale consideration was actually Rs. 34.85 lakhs and not Rs. 4.10 lakhs as had been recited in the sale deed. He accordingly adopted the aforesaid enhanced figure for the purpose of assessment and made an addition of Rs. 3,75,005 as undisclosed income for the broken period Ist April, 1998 to 8th Dec., 1998. The matter was thereafter taken to the CIT(A), who after examining the entire matter, observed that the statements given by Rajarathinam could not be relied upon more particularly as the floor price fixed by the authorities for such property was much lower than the value which would result if the sale deed had been registered at Rs. 34.85 lakhs. The CIT accordingly deleted the addition made. An appeal was thereafter preferred by the Revenue against the order of the CIT before the Tribunal. The Tribunal in its order dt. 6th July, 2005 held that the notings on the loose pieces of paper on the basis of which the initial suspicion with regard to the undervaluation had been raised were vague and could not be relied upon as it appeared that the total area with respect to the sale deeds and that reflected in the loose sheet was discrepant. It was also observed that as per the guidelines for registration the fair value for registration on the relevant date was Rs. 244 to Rs. 400 per sq. ft. and the sale consideration for Rs. 850 per sq.ft. claimed by the Revenue was unrealistic and ignored the ground situation. It was further held that the tax of approximately Rs. 1,84,000 determined on the basis of the addition would not show that the assessee had acquiesced in the addition made by the Department or that it was conclusive evidence of the sale price as the deposit had been made in an obvious effort to save himself from further substantial questions of law were raised:

a. Whether or not when the returns and the statements of the seller admit higher sale consideration actually received, the Revenue is justified in fixing the sale consideration at the higher amount than what has been declared?

b. When the assessee did not give any explanation to the notings found and at the same time the Revenue is able to corroborate the same with the statement of the seller for the purpose of determination of actual sale value, would the lower authority be justified in interfering with the same?

c. When consistent sworn (statements) were taken into consideration along with evidences found at the time of search, would (they) all be liable to be rejected on the basis of one statement in between contradicting the earlier ones which was also explained away as a result of intimidation?

The High Court relying heavily on the order of the CIT and the Tribunal held that no substantial questions of law had been raised and accordingly dismissed the appeal. It is this situation that the present matter is here before us.

Mr. G.N. Vahanvati, the learned Solicitor General has at the very outset raised serious objection to the order of the High Court pointing out that Division Bench had merely plagiarized substantial portions from the order of the CIT and Tribunal in arriving at its conclusion and no independent assessment on the questions of law that arose for consideration, had been made. He also pointed out that several questions of law pertaining to the implications of the statements and the counter statements made by Rajarathinam did arise in the case and the matter had not been dealt with by the High Court in that perspective and it was therefore appropriate that the matter be remitted for fresh decision. The learned counsel representing the assessee respondent has however pointed out that the CIT in particular, had after a very elaborate discussion of the matter, concluded on a finding of fact with regard to the nature of the transaction and this view had been accepted by the Tribunal as well, has accordingly submitted that no substantial questions of law have been raised in this matter and the issues raised were purely questions of fact.

We have heard the learned counsel for the parties and have gone through the record. It is true that the Division Bench of the High Court has borrowed extensively from the orders of the Tribunal and the CIT and passed them off as if they were themselves the authors. We feel that quoting from an order of some authority particularly specialized one cannot per se be faulted as this procedure can often help in making for brevity and precision, but we agree with Mr. Vahanavati to the extent that any 'borrowed words' used in a judgment must be acknowledged as such in any appropriate manner as a courtesy to the true author(s). Be that as it may, we are of the opinion that the three questions reproduced above can, in no way, be called substantial questions of law. The fact as to the actual sale price of the property, the implication of the contradictory statements made by Rajarathinam or whether reliance could be placed on the loose sheets recovered in the course of the raid is all questions of fact. We therefore find no infirmity in the order of the High Court. Accordingly, we dismiss the appeal."

In view of the above detailed analysis of facts and circumstances of the case and analysis of jurisdictional pronouncement on the issue, the addition made by the Assessing Officer by presuming the sale consideration at Rs. 11.05 crore per acre is directed to be deleted.”

8. From the rival contentions and the material on record, the following facts emerge:

(i) The agreement seized was only a photocopy of the original.

(ii) It was seized not from the assessee, but from the third party.

(iii) The seller refused to identity the agreement.

(iv) The buyer refused to identify the agreement.

(v) The witnesses to the agreement refused to identify it.

(vi) The AO did not make total addition on account of total value of the transactions in the cases of the other buyers or sellers, as mentioned in the agreement.

vii) The assessee was not a party to the agreement.

viii) The assessee was not witness to the agreement.

ix) The assessee was not related to either any party or any witness to the agreement.

x) The assessee purchased his land directly from PISCO.

xi) The assessee purchased the land at the prevalent circular rate.

xii) The assessee paid due stamp duty on the transaction

xiii) The purchase deed of the assessee was registered with the Registrar at Jalandhar.

xiv) In the assessee’s purchase deed, the rate mentioned was of Rs. 4 crore per acre = 2.50 lakhs per marla, as against that of Rs. 11.05 crore per acre, as mentioned in the agreement seized.

xv) Action on the basis of the agreement seized was warranted in the cases of the parties thereto, due to the presumption u/s 132(4A) of the Act, which presumption, noticeably, is rebuttable.

xvi) No such action can be taken in the case of a party whose transaction was with regard to land contiguous or similarly situated to the land mentioned in the agreement seized.

xvii) No action is called for in a case of transaction consequential to the transaction mentioned in the agreement seized.

xviii) There is no evidence of unaccounted investment by the assessee.

xix) The AO himself clarified to the assessee that the sale consideration in the agreement seized was taken for the purpose of comparative rate only.

xx) The land purchased by the assessee was different from that mentioned in the agreement seized.

xxi) It is the burden of the department to prove under-statement of sale consideration.

xxii) This burden has not been discharged.

xxiii) There is no positive evidence against the assessee.

xxiv) Thus, the AO’s presumption did not materialize into conclusive evidence against the assessee.

xxv) Such a presumption cannot be accorded the status of foolproof evidence against the assessee.

xxvi) Such a presumption cannot lead to a conclusion of under investment by the assessee, liable for addition.

9. The ld. CIT(A) has duly considered all the above said facts as well as the relevant case laws. There has been no effective rebuttal to the well reasoned elaborate findings recorded by the ld. CIT(A).

10. In view of the above discussion, we are of the considered view that the ld. CIT(A) has passed a detailed, well reasoned and well versed order, which does not require any interference and accordingly, the same is upheld. Ground no.1 is, thus, rejected.

11. As regards Ground no.2, the Department has contended that the ld. CIT(A) has erred in deleting the addition of Rs. 14,02,104/- on account of disallowance of interest under section 36(1)(iii) of the I.T. Act.

12. The ld. DR, relied on the order of the Assessing Officer.

13. The ld. counsel for the assessee, on the other hand, strongly relied on the order of the ld. CIT(A) and reiterated the submissions made before him.

14. We have heard the rival contentions and have carefully gone through the material available on record, including the order of the ld. CIT(A). The relevant findings given by the ld. CIT(A) qua this issue, in his order in paras 25 to 29 of the order are as follows:

“25. The ground of appeal at Sr. No. 3 pertains to the claim of the appellant that the Assessing Officer has wrongly made disallowance of Rs. 14,00,000/- u/s 36(l)(iii). The Assessing Officer has brought on record that the assessee has made interest free advanced and loans to his family members/sister concerns in the following manner:-

S.No.	Name of Entity	Advance amounts (in lacs)
1.	Advances paid Satpal Cold	1
2. \|	Sh. Dalbir Singh	1
3.	Sh. Gurbachan Singh	4.20
4.	M/s Harman Builders Pvt. Ltd.	67.93
5.	Sh. Inderpal Singh S/o Tajinder Singh	2
6.	Sh. Jagjit Singh	3
7.	Sh. Narottam Singh	0.50
8.	Smt. Raminder Kaur	25.96
9.	Sh. Ravinder Singh	1
10.	Sh. Satish Kumar	8
11.	M/s Venus Builders Pvt. Ltd.	2
	Total	116.59

At the same time had debited bank interest to the tune of Rs. 22.19 lacs. The Assessing Officer required the assessee to explain as to how the interest bearing funds could be said to be used for the purposes of business especially in face of interest free loans to friends/sister concerns highlighted above. No explanation on the said issue before the Assessing Officer as recorded in the assessment year at para 5.2. The Assessing Officer therefore proceeded to disallow 12% on the entire amount of advances leading to disallowance of Rs. 14,00,000/-.

26. During the course of appellate proceedings the AR of the appellant submitted his arguments on the issue as under:-

"Sir, it is submitted that during the year under consideration assessee has made certain advances to the relative persons as sundry debtors, sister concerns of the assesee and also to the outsider to the tune of Rs. 1,16,59,000/- listed in para 5 at page no. 12 of the assessment order and on this outstanding amount of Rs. 1,16,59,000/- as on 31.03.2009 interest @ 12% to the tune of Rs. 14,00,000/- has been disallowed.

Sir, it is submitted that while framing assessment the Ld. Assessing Officer stated that "no explanation on the above issue has been received till date, since the assessee has used the interest bearing funds for non-business purpose by the way of loan/advances to the Relative/sister concern of the assessee as discussed in para 2 of show cause dated 13.01.2014. In view of the above, it is proved that the assessee has nothing to say in this regard as the issue raised on account of disallowance of interest amounting to Rs. 14,00,000/- as discussed above is disallowed u/s 36(i)(iii) of the Act, 1961 by relying upon the decision of Abhishek Industries vs. CIT and Rs. 14,00,000/- is being added to the total income of the assessee".Sir, in this regard it is submitted that assessee has duly filed his submission before the Ld. Assessing Officer but we really do not know why the Ld. Assessing Officer while framing assessment, submission of assessee has not considered, submission of assessee is reproduced herein below for your kind perusal:

"As regard interest free loan/ advances it is submitted that during the year under consideration no fresh interest free advance except business transaction has been made by the assessee. However, there is an old outstanding interest free advance of Rs. 4,20,000/- to father in law S. Gurbachan Singh against which assessee has capital balance to the tune of Rs. 2,65,76,305/- and interest free loans received of Rs. 18,58,000/- on which no interest has been paid by the assessee during the year under consideration."

Sir, it is submitted that the Ld. Assessing Officer made disallowance of interest amounting to Rs. 14 lacs u/s 36(l)(iii) of the Act without considering the submission of assessee. During the year under consideration assessee was having sufficient interest free funds available with him out of which he has Triacle certain interest free loan/advances detail of the same is as follows:

Interest free funds available	Amount	Interest free loans/advances to relatives/non relatives	Amount
Capital of S. Kulwinder Singh	2,65,76,30	To outsider	18,00,000
Interest free loan received detail of the same as below:	18,58,000	To relatives	98,59,000
Himson Exports (Non Relative) 2. 3,00000/- Jalaandhar Const. Co. (Non Relative) 5,00000/- 3. Jaswant Singh & sons(Non Relative) 5,00000/- 4. Rajindera Dep & Adv.Ltd.(Non Relative)5,58,000/-
Total	2,84,34,305	Total	1,16,59,000

Sir, it is submitted that it has been held by the various Hon'ble courts that if the assessee have sufficient interest free funds available with him to meet its interest free investment and at the same time it ad raised a loan then it can be presumed that investment were made on the interest free funds. In support of our contention reliance is being placed upon the following decisions:

CIT Vs. Reliance Utilities & Power Ltd. (2009) 221 CTR 435

wherein the hon'ble high Court of Bombay has held that "both in the order of the CIT(A) as also the tribunal, a clear finding is recorded that assessee had interest free funds of its own which has been generated in the course of the year commencing on 1.4.1999. apart from that in the terms of the balance sheet there was a further availability of Rs. 398.19 crores including Rs. 180 crores of share capital. In this context, the finding of facts recorded by CIT(A) and tribunal as to availability of interest free funds really cannot be faulted. If there be interest free funds available with assessee which is sufficient to meet its investment and at the same time the assessee had raised a loan it can be presumed that investment were from the interest free funds available.

Sir, facts of the case cited above are similar to our case as in our case assessee company is having about Rs. 2,84,34,305/- interest free funds whereas if for argument sake it is admitted that assessee advance Rs. 1,16,59,000/- as interest free loans even then following the decision of Hon'ble Bombay high court no addition can be made. But in the present case we have not made advances which are interest free but these are trade advances so, it is requested that addition made by the Ld. Assessing Officer may kindly be deleted."

27. The AR of the appellant further submitted calculation of interest in respect of amounts given free of interest and interest in respect of amounts taken free of interest as follows:-

"In addition to our earlier submissions and as required by your goodself with regard to disallowance on account of interest free advances, we submit as under:-

We are enclosing herewith copies of account of all the family members and sister concerns etc. We have calculated interest on all the debit/credit balance @ 12% p.a. Chart depicting interest chargeable and payable on these amounts on product basis (day-wise) is as under:-

Particulars	Interest chargeable @ 12% on debit balances	Interest payable @ 12% on credit balances
Advance for Satpal cold	12,000.00
Dalbir Singh	12,000.00
Gurbachan Singh	50,400.00
Harman Builders Pvt. Ltd.	896,835.00
Inderpal Singh	24,000.00
Jagjit Singh	36,000.00
Narotam Singh	6,000.00
Raminder Kaur	311,520.00
Ravinder Singh	12,000.00
Satish Kumar	96,000.00
Venus Builders Pvt. Ltd.	24,000.00
Kulwinder Singh- Capital		2,497,899.00
Himsons Exports		36,000.00
Jalandhar Construction Co. Ltd.		60,000.0
Jaswant Singh & sons		60,000.00
Rajindra Deposits & Advances Ltd.		66,960.00
Harpreet Singh		162,000.00
Total	1,480,755.00	2,882,859.00

Sir, calculation, as required by your good self calculating date wise interest on credit outstanding and advances given are enclosed herewith.

This shows that the assessee has used more interest free funds then funds being used by the family members. Hence, disallowance of Rs. 14,0,000/- is totally unjustified. Hence, we pray your goodself to give us relief."

28. The perusal of the calculation chart given by the appellant shows that even the amounts of capital of Sh. Kulwinder Singh in the business has been taken to be part of the calculation, meaning thereby the same had also been treated as funds available free of interest. I don't agree with the view of the appellant on the issues as the fund deployed by the assessee as capital which are meant to earn profits and separate interest on the same to decide the issue of disallowance could not be done. Therefore, no interest is payable to the appellant for deploying its capital in its own business which means the claim interest payable at Rs. 24,97,899/- goes out of calculation.

29. I have considered the facts of the case, the basis of addition made by the Assessing Officer and the arguments of the AR on the issue. It is seen that the entire set of circumstances show that the appellant has avoided to give data from the books of account to show the business use of interest bearing funds. In the circumstances the view of the Assessing Officer that the interest bearing funds have been diverted to advance interest free loans cannot be said to be arbitrary. In the circumstances the disallowance is restricted to Rs. 10,,95,795/-, in view of the comments of the undersigned in para 21 of this appellate order.”

15. It is seen that the ld. CIT(A) has duly taken into consideration and given credit to the assessee, of interest payable @ 12% on credit balances of Himsons Exports Rs. 36,000/-, Jalandhar Construction Co. Ltd. Rs. 60,000/-, Jaswant Singh & Sons Rs. 60,000/-, Rajindra Deposits & Advances Ltd. Rs. 66,960/- and Harpreet Singh Rs. 1,62,000/-. The ld. CIT(A) has also taken cognizance of the interest chargeable @ 12% on the debit balances of advance for Satpal Cold Rs. 12,000/-, Dalbir Singh Rs. 12,000/-, Gurbachan Singh Rs. 50,400/-, Harman Builders Pvt. Ltd., Rs. 8,96,835/-, Inderpal Singh Rs. 24,000/-, Jagjit Singh Rs. 36,000/-, Narotam Singh Rs. 6,000/-, Raminder Kaur Rs. 3,11,520/-, Ravinder Singh Rs. 12,000/-, Satish Kumar Rs. 96,000/- and Venus Builders Pvt. Ltd., Rs. 24,000/-. It is in this manner that the disallowance has been restricted to Rs. 10,95,795/-, taking out the sum of interest payable amounting to Rs. 24,97,899/- representing the capital brought in by Sh. Kulwinder Singh.

16. The ld. CIT(A) has observed that as available from the calculation chart given by the assessee, even the amount of capital of Sh. Kulwinder Singh brought into the business was taken to be a part of the calculation, treating this amount to be funds available free of interest; and that the capital is meant to earn profits and separate interest thereon to decide the issue of disallowance could not have been done. It was on this basis that the ld. CIT(A) held that no interest was payable to the assessee on this amount of Rs. 24,97,899/-.

17. We do not find any error in the order of the ld. CIT(A). The assessee has not challenged the same. Finding no error therewith, the same is hereby upheld. Accordingly no.2 is upheld.

18. The appeal of the Revenue in ITA No.659(Asr)/2014 is, accordingly, dismissed.

19. Now, we take up the appeal of the Revenue in ITA No.660(Asr)/2014 for the assessment year 2010-11. The issues in dispute in this appeal are exactly similar to those we have decided hereinabove in ITA No.659(Asr)/2014, for the assessment year 2009-10. Therefore, the findings given therein will apply equally, mutatis mutandis, to this appeal as well. Hence, this appeal of the Department is also dismissed.

20. As regards the appeal in ITA No.666(Asr)/2014 for the A.Y. 2009- 10, in the case of ‘Harman Builders’, Jalandhar, the issues in involved in this appeal are exactly similar to those we have decided hereinabove in ITA No.659(Asr)/2014, for the assessment year 2009-10. Therefore, the findings given therein will apply equally, mutatis mutandis, to this appeal as well. Hence, this appeal of the Department is also dismissed.

13. In the result, all the three appeals are dismissed.

Order pronounced in the open court on 01/08/ 2016.

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