MR RAJIV GULATI,NEW DELHI vs. ACIT, NEW DELHI

O R D E R PER AMIT SHUKLA, J.M.

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati The aforesaid cross appeals have been filed by the revenue as well as by the assessee against impugned order dated 7.3.2012, passed by Ld. CIT (Appeals)-I for the quantum of assessment passed u/s 143(3) for assessment year 2007-08.

"On the facts and in the circumstances of the case the Ld. CIT(A) has erred in:-

1. 1. The order of the CIT (A) is not correct in law and facts.

2. On the facts and circumstances of the case, the Id. CIT(A) has erred in deleting the addition of Rs. 15,00,00,000/- made by the Assessing Officer on account of the surrender made u/s 132(4) of I.T.A.T in his statement recorded during the course of search and seizure action u/s 132(1) of LT. Act 1961 on 22.11.2006 which the assessee retracted. Reliance is placed on the decision of the Hon'ble Supreme Court of India dated 25.10.1996 in Special Leave Petition (e) No. 14028 of 1996 in the case of Surjeet Singh Chhabra Vs. Union of India and Others wherein the Apex Court has held that the Revenue Officials are not Police Officers and the confession, though retracted, is an admission and binds the petitioner. Reliance is also place on the decision of the Punjab and Haryana High Court in the case of Rakesh Mahajan vs. ClT cited at 6420f 2007 (Taxpert) and 214 CTR 218 wherein it has been held that" It is well settled that admissions constitute best piece of evidence because admission are self-harming statements made by the maker believing it to be based on truth It is well known that no one will tell a lie especially harming one's own interest unless such a statement is true." Further reliance is placed on the decision of The Kerala High Court in the case of Kunhambu(V) and Sons vs. CIT cited at (1996) 219 ITR 235 wherein it has been held that "Assessment on Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati the basis of the voluntary statement during search under the provisions of I.T. Act, 1961 was valid." 3. The order of Ld CIT(A) is perverse in law and on facts. 4. The appellant craves leave to add, amend any /all of the grounds of appeal before or during the course of the hearing of the appeal.”

3. At the outset, the Ld. Counsel for the assessee, Shri Binod Kumar Bindal submitted that, exactly the same issue had come up for consideration before this Tribunal in the case of assessee’s father, i.e., Shri Dharam Pal Gulati, wherein Tribunal vide order dated 20th June, 2013 in ITA 671/Del/2012 has dismissed the revenue’s appeal after detailed discussion. He pointed out that the AO in this case has recorded a similar finding as was there in the case of Shri Dharam Pal Gulati and also the reasoning given by the Ld. CIT(A) for deleting the addition is also same. Therefore, the impugned issue stands squarely covered.

4. The brief facts qua the issue involved are that, a search and seizure action u/s 132 was conducted at the residence of the assessee and his family members on 22.12.2006. The assessee has filed return of income on 2.9.2008 declaring income of Rs. 3,40,90,628/- which includes; i) undisclosed investment in jewellery amounting to Rs. 20,17,737/-; ii) undisclosed investment in agricultural land of Rs. 2,98,640/- ; and iii) undisclosed cash of Rs. 48 lacs found during the Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati course of search. The AO in the impugned assessment order has observed that during the course of search the assessee had surrendered an amount of Rs. 15 crores towards income from speculative trading in the statement recorded u/s 132 (4) during the course of search on 22.11.2006. Later on, the assessee retracted the said statement on the ground that he was under mental pressure at the time of recording the statement and also no evidence whatsoever was found relating to such surrender. However, the Ld. AO held that assessee has categorically admitted to have carried out speculative trading in agricultural commodity in cash which is evident from question nos. 13 to 19 in the statement, the relevant extract of which has been incorporated by him at pages 2 and 3 of the assessment order. In the wake of such retraction, the AO again summoned the assessee, wherein again the assessee submitted that no speculative business resulting into undisclosed income was undertaken prior to 1.4.2006; and therefore, no such income was earned in the earlier years. Moreover, agricultural commodities are seasonal products and only one transaction was undertaken by him in November, 2006 for which he has made a profit of approximately Rs. 48 lacs which has been surrendered by him in the return of income and other than this, no evidence of any other income or investment was found at the time

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati of search to suggest some more income has been earned on this account. Entire speculative profit which has been earned in the earlier years has duly been declared in those years in the regular books of accounts. Apart from that, he also stated that similar disclosure was taken from his father and from the company MDH Ltd. and no corresponding investment/ expenditure were found from any of the premises during the search carried out at various places. However, the Ld. AO rejected the assessee’s contention after observing and holding as under:-

“The claim of the assessee that he was under mental pressure at the time of giving the statement u/s 132(4) on 22.11.2006 is not at all borne out by the facts on record. He has given the statement without any fear, favour or coercion. He has given the disclosure after noticing various discrepancies in the accounts and stock and after consulting his family members. He has confirmed the disclosure given by his father Sh. Dharam Pal Gulati and his brother-in-law Sh. Sushil K Trehan as also his main supplier Sh. Prem K Arora. No one in a state of mental tension would be in a position to take stock of the entire evidence found in a case and come to a conclusion about the disclosures to be given by different related parties and then request for non-initiation of penalties. The statement given u/s 132(4) is an admissible evidence and its an admission of fact. Therefore, the statement given by Sh. Rajeev Gulati is a good piece of evidence in support of the fact that he

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati earned speculation income of Rs 15 Crores during the FY 2006~07.”

“7.1 It is further seen that the Assessing Officer has nowhere quantified the amount of Rs 15,00,00,000/- anywhere in the assessment order. Even in the remand report, there is a mention about the huge cash and investments but nowhere has the Assessing Officer quantified any undisclosed income either. 7.2 In the remand report, the Assessing Officer has stated that there was material evidence showing an unaccounted income from Commodity Trading, activities in share and jewellery etc. To this, it is seen that the appellant has himself offered income on account of unexplained jewellery

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati as well as the cash generated from Commodity Trading. The contention of the appellant that had the assessee generated an income of Rs 15,00,00,000/- during the last eight months than the same would have been reflected somewhere in the assets found from the assessee is acceptable. Apart from the reliance placed by the appellant on the Board Instruction, he has also given a reasonable justification regarding the improbability of earning such a huge amount within a calendar year. xxx xxx xxx xxx xxx xxx 7.5 As regards, the contention of the appellant that he was under pressure at the time of giving the statement and the counter argument of the Assessing Officer that two neutral witness were present to oversee the search proceedings. It is my view that such a issue shall not go to determine whether the assessee can retract the statement or not, for the fact remains that the surrendered income has to be quantified on the basis of the incriminating material found during the search or on the basis of any other evidence collected during the assessment proceedings. Neither in the assessment proceedings nor in the remand report has any such quantification of concealed income has taken place. 7.6 The further argument given by the Assessing Officer that huge cash was found from the premises does not imply that it can form the basis of making an addition without any evidence. The Assessing Officer in the remand report has further stated that the appellant had made earnings from speculative activities in agricultural commodities. However, nowhere has the Assessing Officer quantified such income to show that it is commensurate with the surrendered amount. 7.7 In the statement recorded u/s 132(4) in reply to question no. 19, the assessee had replied that he had invested this money in purchase of gold and property. However, during the search no investment in gold was Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati found to the extent of Rs 15,00,00,000/- which itself goes to show that the statement given by the appellant was without any basis. Nor any addition has been made by referring the valuation of property to the DVO. Thus, additions cannot be made on basis of hypothetical Income and corresponding hypothetical expenditure. Whatever excess gold and investment in property was found during the search was either offered in the return of income or separate addition has been made by the Assessing Officer. 7.8 Considering the above discussions and the legal position as stated in the various judgments cited supra, the addition of Rs 15,00,00,000/- cannot be sustained because no incriminating material justifying such an addition has been found during the search from the assessee. Further, the appellant had retracted the statement within a period of six days on 28/11/2006, therefore, If the Investigation wing had any grievance, it was free to carry out further investigation in this regard for the search was carried on till 18/0112007, the date on which the last locker was operated. Neither the Assessing Officer nor the investigation wing could pin point any concealment of this amount, therefore, the addition of Rs 15,00,00,000/- is hereby deleted. “

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati of admission made by the assessee deserves to be accepted. In support of her contention she relied upon judgment of Hon’ble Delhi High Court in the case of Raj Hans Towers (P.) Ltd. vs. CIT reported in (2015) 373 ITR 9 (Delhi), wherein it was held that where the assessee had not offered any explanation regarding surrendered amount being not bonafide and it was also not borne out from the contention raised by the assessee before the lower authorities, then such a surrendered income needs to be added. Similarly, she relied upon another judgment of Bombay High Court in the case of Paras Shantilal Shah vs. DCIT reported in (2015) 378 ITR 41.

In said statement he has categorically stated that no undisclosed income or expenses of corresponding investment was found and there

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati is no material to show that assessee has earned huge sum of Rs. 15 crores in such a short duration, specifically in agricultural commodity which is a seasonal product. Whatever additional income was earned on such speculation, the same has already been surrendered and offered as income in the return of income. As recorded by the Ld. CIT (A) and also on the perusal of the relevant portion of the remand report, we find that, nowhere AO has mentioned that any material was found to show that assessee had made any kind of investment out of such cash or incurred any expenditure, that is, no iota of evidence has been found during the course of search so as to corroborate that surrender made by the assessee was based on any material or incriminating document found during the course of search. The assessee himself has offered the income and said that he has made investment in jewellery, however it has not been found to be corroborated by the actual jewellery found from the premises of the assessee or his family members or his bank lockers; and whatever jewellery which remained unexplained the same has already been offered by the assessee and added by the department. Nowhere the surrendered income has been quantified on the basis of incriminating material found during the course of search or any evidence has been collected even during the course of assessment proceedings so that Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati such surrender is supported by any quantification by way of any seized material. We find that on similar facts and circumstances addition was made in the case of assessee’s father Shri Dharam Pal Gulati (Supra), wherein the Tribunal has upheld the similar order of the CIT(A) after observing and holding as under :-

“6. We have heard both the sides on the issue. We have also perused the records available. The return was filed by the assessee declaring income of Rs.5,88,06,735/- which included an amount of Rs.12,85,777/- on account of undisclosed investment in jewellery and amount of Rs.24,86,000/- on account of cash found during the search. The assessee has not included the amount of Rs.15 crores which was surrendered u/s 132(4) of the Act. This amount was added back to the income of the assessee by the Assessing Officer. This statement recorded u/s 132(4) on 22.11.2006 was retracted by the assessee on 28.11.2006. As per the statement, this amount was earned from speculative business carried out by the assessee from 01.04.2006 till the date of search. The Assessing Officer made the reliance for the existence of such business on account of income declared by the assessee from such business in the months of June and August, 2003 for which the assessee received profit earned by the cheques. There was no incriminating document or supporting document found or seized during the search operation carried out at the premises of the assessee which could suggest that assessee was doing the business of speculation in commodities during the relevant period stated in statement. No incriminating document was found and Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati seized which could put a light in respect of the speculative business stated by the assessee in its statement. This statement was recorded when the search was continuing for 28 hours from 8.00 AM on 22.11.2006 to 11.57 AM on 23.11.2006. We also find that although there was seizure of some papers/documents as per panchnama, annexure A-1 to A-11, however, no question was asked pertaining to these papers or documents. This fact shows that the disclosure was not based on any calculation of undisclosed income on the basis of seized papers/documents. The disclosure so made was also not based on any unaccounted assets/valuables. The assessee was 83 years old person and the long duration of the search might have tired out and frustrated him and the revenue was able to extract the surrender which has been retracted within 6 days where two holidays were in between. The CBDT has issued instructions with regard to the confession of additional income during the course of search and seizure and survey operations. Instruction No.F.No.286/2/2003-IT (Inv.II) dated 10.03.2003 give some reflections about such confession of additional income without any credible evidence during the course of search and seizure which is quoted as under:- “Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of the search & seizure and survey operations. Such confessions, if, not based upon credible evidence, are later retracted by the concerned assessees while filing returns of income. In these circumstances, such confessions during the course of search & seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and concentration on collection of evidence of income which leads to information on what has not been Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati disclosed or is not likely to be disclosed before the Income-tax Department. Similarly, while recording statement during the course of search & seizure and survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, Assessing officers should rely upon the evidences/materials gathered during the course of search/survey operations or thereafter while framing the relevant assessment orders.”

In the assessee’s case also, this admission of additional income is not based upon any credible evidence and the same has been retracted within 6 days from the search. Non-asking any question regarding seized papers/documents from the premises of the assessee clearly shows that there was no focus and consideration of the search party on the collection of evidence of income which lead to information on what has been disclosed or is not likely to be disclosed before the revenue authorities. There is no evidence found and seized that assessee has carried out speculation trading during the relevant period. No document in this regard was seized from the premises of the assessee. The documents seized from the residence of Shri Prem Arora was related to the financial year 2003-04 and the income earned in those transactions has been received by the assessee through banking channels and not by cash and the same has been duly accounted for. In such a situation, the presumption that assessee might have carried out speculation business during the year on the basis of such document seized is completely untenable and unsustainable and additions based on such presumption cannot be sustained. The inference that Shri Prem Arora was in possession of the cash

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati and being the close person of the assessee, assessee might have been indulging in the speculation business of the commodity trading is also unsustainable presumption. No adverse inference can be drawn about the assessee on such presumption. The Assessing Officer’s reliance that assessee has also narrated about the investment of the undisclosed speculative income in the purchase of gold and jarau jewellery, investment in shares and investment in vaida bazaar and advances given to the parties trading in agricultural field is also not supported by any document. Nothing has been found during the search and no such assets had been recovered. Therefore, such additions made only on the basis of a statement which has been retracted immediately thereafter are not sustainable. The pattern of the questions put to the assessee during the search of the premises shows that whatever recorded in these statements is not true. Only on the basis of presumption that large scale construction was going on at the school building of the trust and hospital of the trust cannot be made a basis for addition. The Assessing Officer should have ascertained the investment by way of referring the case to the DVO if he has any doubt in this regard. No evidence regarding any anonymous donation by the trust was found and seized and nothing has been made out by the Assessing Officer in the assessment. The other assessments u/s 153A of the Act in assessee’s case for Assessment Year 2001-02 to 2006-07 have been made without any addition. Thus, in our considered view, no incriminating evidence was found against the assessee which could suggest or show that unexplained investment has been made to the tune of Rs.15 crores and such income has been Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati utilized or invested as stated by the assessee in the retracted statement. Nothing of such sort borne out of the facts. In our considered view, no addition can be made merely on the basis of surrender without existence of any corroborative evidence found against the assessee. For this propositions, reliance is placed on the following case laws :- “a. Kailashben Mangarlal Chokshi Vs CIT (2008) 174 Taxmann 466 (Guj.) / (2008) 14 DTR 257 (Guj.) Merely on the basis admission, the assessee could not have been subjected to additions, unless and until some corroborative evidence was found in support of such admission. Further statement recorded at such odd hours (at midnight) could not be considered to be voluntary statement, it was subsequently retracted and necessary evidence was led contrary to such admission. Addition was deleted. b. Arun Kumar Bhansali Vs DCIT (2006) 10 SOT 46 (Bang) (URO) Block period 1990-91 to 1999-2000 - Whether while computing undisclosed income of assessee, Assessing Officer should take cognizance of such correct income as depicted in books of account as well as in seized material, and should not adopt a figure merely as per admission of assessee - Held, yes. c. Shree Chand Soni Vs DCIT (2006) 101 TTJ (JD) 1028 Search and seizure – Block assessment – consumption of undisclosed income – Addition based on the assessee’s statement under s. 132 (4) – Admittedly, no incriminating document was found to support the impugned addition regarding bogus capital - Statement recorded under s. 132(4) does not tantamount to unearthing any incriminating evidence during the course of search - Therefore, no addition could be made only on the basis of such statement.

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati d. Rajesh Jain Vs DCIT (2006) 100 TTJ (Del) 929 Search and seizure - Block assessment - Retraction of statement - Addition of Rs.25 Lakhs made solely on the basis of confessional statement of assessee that he earned the said amount in the last Ten years was not justified - Confessional statement should be corroborated with some material to show that assessment made is just and fair - Conduct of affairs by the revenue authorities shows that good amount of psychological pressure was built on the assessee to make the said statement, which was retracted - Further, the addition was illegal as while the assessee spoke of earning the said income over a period of 10 years, total addition was made in two asst. yrs. 1999-2000 and 2000-2001 - All material found during search was duly explained by assessee on which no adverse comment was made by AO - Assessee to be assessed on the income returned by him for the block period.

Further reliance is also placed whether no addition can be made simply on the basis of surrender without any cogent and valid reasons and which the assessee has subsequently retracted. For this proposition, the reliance is placed on the following case laws:- “a. India Seed House V s Asstt. CIT (2000) 69 TT J (Delhi) (TM) 241 In case of block assessment no addition can be made merely on the basis of statement recorded at the time of search which stands fully proved to be incorrect in view of the material itself which was seized at the time of search.

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati b. Pranav Construction Co. Vs Asstt. CIT (1998) 3 DTC 719 (Mum-Trib) (1998) 61 TTJ (Mum.-Trib) 145 It was held that the admission cannot be read as an Act of Parliament and that it has to be read in the context fairly and reasonably. The burden of incurring the expenditure can be discharged either by direct evidence or if such evidence is not available the assessee can always point out to circumstantial evidence supporting the claim. Thus, statement recorded under section 132(4) cannot be made use for purpose of precluding assessee from claiming expenditure for earning income which assessee forgot to claim while making statement disclosing income. c. Ganga Saran & Sons (P) Ltd. Vs ITO (1981) 130 ITR 1 (SC) : ITO Vs Nawab Mir Barkat AU Khan Bahadur (1974) 97 ITR 239 (SC) Belief should not be arbitrary or irrational but based on relevant and material reasons. d. S. Narayanappa Vs CIT (1967) 63 ITR 219 (SC) Belief must be in good faith, and cannot merely be a pretence. e. Madhya Pradesh Industries Ltd. Vs ITO (1970) 77 ITR 268 (SC) Absence of evidence to prove existence of ITO's belief that income has escaped assessment, will invalidate reassessment. f. Mayank Poddar (HUF) Vs WTO (2003) 181 CTR (Cat) 362 If in law an item is not taxable, no amount of admission or misapprehension can make it taxable. The taxability or the authority to impose tax is independent of admission. Neither there can be any waiver of the right by the assessee. The Department cannot rely upon any such admission or misapprehension if it is not otherwise taxable.” 17

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati

We would also like to state that assessee retracted by filing a written submission before the DIT, Inv.-I, New Delhi on 28.11.2006 which is 6 days after the search. There was sufficient time with the Investigation Wing to carry on the investigation and to collect the evidence against the retraction. However, records show that nothing has been done in this regard. In such a situation, the retraction of the assessee cannot be said to be invalid in absence of any incriminating documents. In view of these facts, we uphold the order of the CIT (A).”

“1. The Id. CIT (Appeals) erred in law and on facts in confirming the addition of Rs. 13,33,975/- on account of difference in the value of jewellery estimated by the departmental valuer over & above its actual cost of acquisition declared by the appellant; although there was no difference in the gross

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati weight of the impugned jewellery items. Thus, the addition confirmed on surmises and conjectures must be deleted. 2. The Id. CIT (Appeals) erred in law and on facts in confirming the addition of Rs. 5,00,000/- as unexplained cash credit for allegedly paying advance towards purchase of some property on the basis of a seized document - a. though factually no such deal ever took place; b. while ignoring that the alleged receiver of money was not confronted by the department; and c. while rejecting the plea that otherwise also the said amount becomes part of the cash found that stood offered as income because the same had to be taken as returned to the assessee as the said property was not purchased.

Thus, the addition so made must be deleted.”

11. After hearing both the parties, we find that the assessee has given following reconciliation of jewellery found and the jewellery declared by the assessee:-

Jewellery found from the Residence on 22/11/06 (as per departmental valuation report):. 38,45,840 Jewellery found from the Bank Locker on 511/07 (as per departmental valuation report): 26,40,331 Total Jewellery found during the search: 64,86,171 Less: Declared by Mrs. Jyoti Gulati (wife of the assessee): 17,27,702 Jewellery belonging to Mr. Rajiv Gulati (the assessee): 47,58,469 Less: Already declared as per books by the assessee: 27,40,732 Declared in the return filed for the AY 2007-08 after search: 20,17,737

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati So far as the jewellery already declared by the assessee amounting to Rs. 27,40,732/- the same is not in dispute. The dispute is only with regard to certain items of jewellery which assessee has stated to have been purchased from the Jeweller M/s. R R Gems (P) Ltd. for sum of Rs. 5,09,600/- on 30.8.2006 vide bill No. 1269; and sum of Rs. 4,79,750/- vide bill No. 1270 dated 30.8.2006. However, the Departmental Valuation Officer has valued the same at Rs. 23,23,325/- which as per the bill aggregated to Rs. 9,89,350/-. The difference between the valuation report as well as in the purchase bills submitted by the assessee is as under:-

As per Valuation report dated 22/11/06 Sl. Description Gross Net Weight of Value of Description of Value of Total No. Weight Precious Metal Precious Metal precious & Semi stones (Gms.) (Gms.) content (Rs.) precious stones (Rs.) (Rs.) & weight 1. 2 pc.Diamond 46.300 40.700 30.525 Dia.-28 Ct. 616,000 646.525 Bangles (18K))

1. 1 Pair Diamond 46.355 41.261 26,159 Dia-25.01 Ct. 233,843 260,002 Bangles set in Gold 139.545 131.000 83,054 Dia-42.5 Ct. 161.500 244,554

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati

504,556

Add: 1% VAT 5,044 _______ ______________ Total 185.900 172.261 509,600 ________________ ________ Bill No. 1270 dated 30/8/2006 of RR Gems (P) Ltd. – Rs. 4,79,750/-

If there is no quantitative difference and the difference in on account of valuation, then AO should have made some sort of enquiry from the Jeweller, because as per the purchase bill the same quantity of jewellery, he has shown a particular value and if such value is less, than AO should have ascertain this fact. Once there is evidence in the form of actual purchase bill, then estimate made by the DVO cannot stand unless some material is brought on record to show that value

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati shown in the bill has been suppressed. Thus, we do not find any reason to confirm such an addition merely on the basis of estimate made by the DVO when there is no difference in the quantity of jewellery. Thus, addition of Rs. 13,33,975/- is deleted.

“9.2 The appellant has stated that as per the facts of the issue, a receipt for payment of Rs. 5,00,000/- towards purchase of a property was found from the factory premises of M/s Mahashian Di Hatti Ltd. at 139, Udyog Vihar Phase-I, Gurgaon (Party 0-3) during the course of search proceedings. The same was seized at page no. 18 of Annexure A-I, photocopy of which was furnished in the paper book. During the course of the assessment proceedings, it was explained to the assessing authority that the appellant received a proposal from some Mr. Rajeev Sethi c/o Graph Associates, C-889A, Sushant Lok-I, Gurgaon, who was a property dealer, to purchase Plot No. B-525 at Sushant Lok-I, Gurgaon. In order to prove his genuineness, as is a standard practice of the property brokers in Gurgaon, the said broker brought a copy of the title deed of the said property from the seller and also a pre- signed receipt dated 14/11/06 for Rs. 5,00,000/- in cash by the purchaser. The appellant did not like the location of the said

Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati property and also felt that the rate quoted for the property was quite high. Therefore, he declined to purchase the same. But the property broker kept on persuading him to purchase the said property and even left those documents with the appellant for his consideration later on.” It was further submitted that assessee had never signed on the said paper it is not known as who has signed at the place of the purchaser as the assessee could not recognise the said signature on the receipt.

“9.4 The submission given by the appellant is not acceptable for there is no such standard practice according to which the broker brings pre-signed receipts of which the appellant is talking. In fact, this is an admission by the appellant that he was involved in the said property deal. The further contention of the appellant that the receipts in order to be enforceable has to be signed by the recipient, is also not acceptable because where on money transactions take place the papers are not signed either by the recipient or by the giver. Thus, the explanation given by the assessee is not acceptable and the addition of Rs 5,00,000/- made by the Assessing Officer is upheld. This ground of appeal is decided against the appellant. ”

15. After hearing both the parties and on perusal of the relevant finding given in the impugned order as well as the material placed on record, we find that a document was found from the possession of the assessee which clearly shows a receipt of sum of Rs. 5 lacs in cash towards the purchase of the property. The assessee’s submission is that the property dealer had given a proposal to the assessee for the Rajiv Gulati vs. ACIT & DCIT vs. Rajiv Gulati purchase of said plot and the signed receipt in cash by the purchaser was given as a matter of practice. Since assessee did not like the location, therefore, he declined to purchase the same. Such an explanation is neither corroborated by any evidence nor any confirmation by the said broker. Once a document has been found from the possession of the assessee then there is a presumption u/s 292C r.w.s. 132(4A) of the Act that it belongs to the assessee and onus is very heavy upon the assessee to show that the income/ expenditure mentioned in such document does not pertain to the assessee. Here in this case there is a clear cut receipt of payment of cash of Rs. 5 lacs which assessee has failed to rebut by adducing any proper evidence and therefore, finding given by the Ld. CIT (A) is confirmed. Accordingly ground No. 2 as raised by the assessee is dismissed.

In the result appeal of the revenue is dismissed; whereas, assessee’s appeal is partly allowed.