Case Law Details

Case Name : Sharad U. Mishra Vs DCIT (ITAT Jaipur)
Appeal Number : ITA No. 467/JP/2011
Date of Judgement/Order : 25/11/2016
Related Assessment Year : 2007-08.
Courts : All ITAT (2746) ITAT Jaipur (57)

The ld. D/R could not point out any binding precedent wherein it has been held that the oral statement would over ride the documentary evidence. Therefore, respectfully following the decision of the Coordinate Bench in the case of Shri Ghanshyam Das Agarwal (supra), we are of the view that the AO was not justified to make addition solely on the basis of the statement of Shri Hanuman Yadav when there was a registered sale deed and more particularly when the maker of statement has not challenged the sale deed before any court of law.

It is also not placed on record whether the sale deed was executed under coercion. Therefore, considering the totality of facts of the present case, we hereby direct the AO to delete the addition.

Relevant Extract of the Judgment

3. Briefly stated the facts of the case are that a search operation was carried out on the assessee on 03.05.2007. The assessee was searched under section 153 of the Income Tax Act, 1961 (hereinafter referred to as the Act) on 19/11/2007 requiring him to furnish return of income within 35 days. The requisite return was filed. The assessment under section 143(3) read with section 153 of the Act was framed thereby the AO made addition of Rs. 42,27,000/- as undisclosed investment. The addition was made on the basis that one of the sellers Shri Hanuman Yadav who appeared before the AO and submitted that the sale consideration of the land was Rs. 35,00,000/- as against Rs. 4,48,670/- declared by the assessee. Further the AO also observed that the assessee had purchased 10 bighas land from Shri Madan Singh in Phagi for Rs. 4,15,000/- as per the sale deed. However, in the statement recorded on 23.05.2007, Shri Madan Singh stated that he had sold the said property @ Rs. 1,55,000/- per bigha which would take the total figure at Rs. 15,50,000/-. However, the AO observed in the assessment order that Shri Nathawat stated that the statements were not read back to him nor was a copy given to him and that he had not said anything more than the price indicated in the sale deed. Thus two additions were made i.e. Rs. 30,92,000/- and Rs. 11,35,000/- totaling Rs. 42,27,000/- on account of difference between the sale consideration declared in the sale deed and in the statement given by Shri Hanuman Yadav. The assessee by this, preferred an appeal before ld. CIT (A), who after considering the submissions of the assessee and the material placed on record, sustained the addition of Rs. 30,92,000/- in respect of the transaction entered with Shri Hanuman Yadav and deleted the addition in respect of the transaction with Shri Madan Singh.

4. Aggrieved by this, the assessee and the revenue are in appeal before the

5. The only effective ground in assessee’s appeal is against sustaining the addition made on account of the statement of Shri Hanuman Yadav. The ld. Counsel for the assessee submitted that ld. CIT (A) failed to appreciate the fact oral evidence cannot over ride the documentary evidence. In support of this contention, ld. Counsel placed reliance on the decision of the Coordinate Bench of the Tribunal rendered in the case of Shri Ghanshyam Das Agarwal vs. ITO in ITA No. 1161/JP/2010. The ld. Counsel submitted that the Tribunal while deciding the issue has followed the ratio laid down by Hon’ble Supreme Court in the case of Union of India vs. T.R. Verma 1957 SC 882 and also in the case of Kishan Chand Chellaram CIT, 125 ITR 713 (SC). Further, he submitted that the Tribunal has also followed the judgment of Hon’ble Punjab & Haryana High Court rendered in the case of Paramjit Singh vs. ITO (2010) 323 ITR 588. It is also submitted by the ld. Counsel that the authorities below failed to appreciate the fact that the seller of land was having dispute with the assessee and was black mailing the assessee. In support of this contention, the ld. Counsel submitted that a recorded voice was placed before the AO.

5.1. On the contrary, the ld. D/R supported the order of the AO.

5.2. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. The AO made the addition on the basis of the statement of the seller of the land, who in his statement before the DDIT (Inv.) has stated that the sale consideration was at Rs. 2,10,000/- per bigha and he had received total sale consideration of Rs. 35,00,000/-. The ld. Counsel has not refuted the statement. However, he submitted that the statement was not bonafide but Shri Hanuman Yadav was black mailing the assessee. He submitted that interestingly the Revenue has accepted the sale consideration of the nearby vicinity. The ld. CIT (A) affirmed the view of the AO in this respect. Now the issue which requires our consideration is whether the addition can be sustained solely on the basis of the statement of Shri Hanuman Yadav, when there is no material placed on record that Shri Hanuman Yadav has made any claim against the assessee in any court of law seeking cancellation of sale deed or filing a recovery suit. The Coordinate Bench of the Tribunal after following the ratio laid down by Hon’ble Supreme Court under the similar circumstances has held in the case of Shri Ghanshyam Das Agarwal (supra) that in the absence of any conclusive evidence the document could not have been disbelieved. The ld. D/R could not point out any binding precedent wherein it has been held that the oral statement would over ride the documentary evidence. Therefore, respectfully following the decision of the Coordinate Bench in the case of Shri Ghanshyam Das Agarwal (supra), we are of the view that the AO was not justified to make addition solely on the basis of the statement of Shri Hanuman Yadav when there was a registered sale deed and more particularly when the maker of statement has not challenged the sale deed before any court of law. It is also not placed on record whether the sale deed was executed under coercion. Therefore, considering the totality of facts of the present case, we hereby direct the AO to delete the addition. This ground of the assessee’s appeal is allowed.

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