Smt. Seema Goel vs ACIT

PER MANISH AGARWAL, A.M.:

The captioned appeals are filed by the Assessee against the separate orders of Ld. Commissioner of Income Tax (Appeals)-27, New Delhi (“Ld. CIT(A)”) passed u/s 250 of the Income Tax Act, 1961 (“the Act”).

Brief facts of the case are that the assessee is an individual and running a chain of hair and skin clinic in her proprietorship firm namely M/s. Berkowits Hair & Skin Clinic and a survey action under section 133A of the Act was carried out on various premises of the assessee on 14.09.2023 by the Investigation Wing, Delhi. During the survey, evidence in the shape of digital data as well as physical evidence were found and impounded. Statements of various persons were also recorded u/s 131(1A) of the Act. Thereafter, proceedings were initiated u/s 148 of the Act for various assessment years and assessments were completed wherein the AO alleged that the assessee has suppressed the gross receipts and thereby, reduce the profits taxable income. Therefore, the AO worked out the difference between the turnover recorded in the regular books of accounts and the gross receipts as recorded in Zenoti Software application and held the same as undisclosed sales and by applying the NP rate of 29.70%, income was estimated for all the years.

Against the said orders, assessee filed separate appeals before ld. CIT(A) who vide separate orders, dismissed the appeals of the assessee.

Aggrieved by the order of ld. CIT(A), assessee is in appeal before the Tribunal by taking various grounds of appeal mentioned in the appeal memo.

Before us, both the parties have fairly admitted that the issues involved in all the Assessment Years are common except one issue raised in ITA No.2812/Del/2026 for AY 2023-24, therefore, all the appeals are taken together and decided by common order. The details of the appeals in various Assessment Years are tabulated as under:-

First, we take appeal of the assessee in ITA No.2807/Del/2026 for Assessment Year 2018-19.

Ground of appeal Nos. 1 to 3 are with respect to the re-opening of the assessment however, no submissions were made in support of these grounds of appeal, therefore, they are treated as not pressed and dismissed.

Ground of appeal Nos. 4 & 5 raised by the assessee are with respect to the confirmation of the addition of INR 2,64,33,000/- made by applying profit rate of 29.07% on the alleged undisclosed turnover of INR 8.90 crores.

Before us, ld. AR for the assessee submits that during the survey, various documents and digital evidence were found which were impounded. The AO observed that three types of data were available:-

[i] tally software which is used to maintain regular books of accounts;

[ii] Zenoti Software which records the mode of payment: and

[iii] treatment tracking and billing of each center owned by the assessee.

As per ld. AR, the AO has taken the receipts recorded in the Zenoti software as the basis for making the addition. Ld.AR firstly submitted that all the evidence were found in digital form and no certificate u/s 65B of the Evidence Act was obtained from any of the persons in whose custody, the respective evidences were found and impounded. Further, no certificate was obtained that the device was regularly used to keep the data and who used the devices. As per ld. AR, survey authorities have not followed the procedure laid down as per Digital Evidence Manual issued by the CBDT and further had not followed the procedure as per section 65B of the Indian Evidence Act, 1872. He thus, submits that such material cannot be relied upon for making the additions. For this, ld. AR placed reliance on the following judgments:-

[i] J.S.Parkar vs V.B.Palekar & Ors. reported in [1974] 94 ITR 616 (Bom.);

[ii] Anwar PV vs B.K.Basheer reported in [2014] 10 SCC 473 (SC);

[iii] Arjun Pandit Rao Khotkar vs Kailash Kushan Rao Gorantyal reported in [2020] 7 SSC 1 (SC);

[iv] M/s. Vetrivel Minerals vs ACIT in W.P.(MD) Nos. 11261 & Ors. of 2021;

[v] A2Z Infraservices Ltd. vs Quippo Infrastructure Ltd. reported in SLP(C) No.8636/2021 (1);

[vi] Ambalal Sarabhai Enterprises vs Ks Infraspace LLP Ltd. in Civil Appeal No.9346 of 2019 dated 06.01.2020 (SC);

[vii] ACIT vs Shri Manchukonda Shyam and Vice-versa in ITA No.87/Viz/2020 and C.O.No.14/Viz/2020 dated 23.09.2020 (Vishakhapatnam Bench); and

[viii] Mr.John Kumar vs DCIT and vice versa in ITA No.3028 and 3029/Chennai/2019 dated 13.05.2022 (Chennai Bench).

Ld.AR submits that AO has relied upon the statements of various persons however, no opportunity of cross-examination was provided. For this, reliance is placed on the following case laws:-

[i] Kishinchand Chellaram v. CIT (1980) 125 ITR 713 (SC);

[ii] Andaman Timber Industries v. CCE (2015) 281 CTR 241/127 DTR 241 (SC);

[iiii] Smt. Anita Singhania v. DCIT, ITAT Kolkata (AY 2012-13);

[iv] Meena Devi Gupta & Others vs ACIT, ITA Nos. 4512 & 4513/Ahd/2007 (Ahmedabad ITAT);

[v] Manish Kumar Baid, ITA 1236/Kol/2017 (Kolkata ITAT); and

[vi] Mahendra Kumar Baid, ITA 1237/Kol/2017 (Kolkata ITAT).

Ld. AR further submits that except the figures reported in Zenoti software, no other basis was taken for alleging that the assessee has made unaccounted sales over and above the receipts recorded in the books of accounts under Tally software and no corroborative material was placed on record. Reliance is placed on the following judicial pronouncements: -

[i] CIT vs Maulik Kumar K. Shah reported in [2008] 307 ITR 137 (Guj.HC);

[ii] CIT vs Girish Chaudhary reported in [2008] 296 ITR 619(Del. HC);

[iii] Ashwini Kumar vs ITO reported in 39 ITD 183 (Delhi);

[iv] Common Cause vs COT reported in [2017] 394 ITR 220 (SC);

[v] CIT, Delhi (Central)-II vs D.K.Gupta reported in [2009] 308 ITR 230 (Del.HC); and

[vi] Haresh R.Vasani, Ahmedabad vs Dept. of Income Tax in ITA Nos. 680, 681, 241 & 242/2010.

On the merits of the additions, ld. AR drew our attention to page 330 of the Paper Book which contained the detailed working of the gross turnover mentioned year-wise as per Tally Software and as per data available in Zenoti software. According to the assessee, there were many errors and omissions in the working of undisclosed sales and submits that if the said errors and omission are excluded, the corresponding unrecorded turnover would be reduced to INR 6,46,00,000/- as against INR 8,90,00,000/- taken by the AO and therefore, requested to allow the deduction on account of such errors and omissions and to consider the turnover at INR 6.46 crores.

With respect to the application of profit rate, ld.AR for the assessee submits that the AO has applied abnormally high rate of profit. As per ld. AR, the AO has taken the average profit rate for FY 2015-16 to 2022-23 as against which the it is requested to apply average profit rate of preceding years. He prayed accordingly.

On the other hand, ld. CIT DR for the Revenue vehemently supported the orders of AO as well as ld. CIT(A) and placed reliance on the same. It is submitted by ld. CIT DR that the AO has discussed in detailed the evidence found during the course of search with respect to the unrecorded sales and unrecorded expenditure. He further referred to various documents reproduced in assessment order in support of the allegation that the turnover declared in Tally software is suppressed and the actual receipts were reduced to save taxes. Ld. Sr. DR submits that this fact has been accepted by the assessee and his staff members in the statements recorded during the survey and therefore, he requested for the confirmation of the additions made.

Heard the contentions of both parties at length and perused the material available on record. Before us, the issues for consideration are what would be the amount of undisclosed receipts and what profit rate is to be applied on such undisclosed receipts. As per the assessee, there were certain errors and omissions in the working of the revenue for which our attention was drawn to page 330 of the Paper Book. As per the same there were patent errors in the sales declared and figure for closing stock shown in the sheets. Further the bank charges were shown in negative. Besides this following are few errors pointed out by ld. AR which were examined by us.

Considering the entirety of the facts and circumstances of the case, we are of the view that the assessee has successfully demonstrated that the working of the undisclosed receipts is full of errors and omissions and therefore, we direct the AO to take the correct figure of undisclosed receipts at INR 6.46 crores.

Now coming to the issue of profit rate application. It is observed that the AO has applied profit rate of 29.70% which is worked out after adding the fixed cost such as rent, finance cost and depreciation to the net profit rate which is not correct method of computation of net profit. The AO further applied the highest profit rate so worked out for the assessment years from AY 2016-17 to AY 2024-25 i.e. 29.70%. As per the accepted accounting method, net profit is to be worked out after reducing the fixed as well as variable cost and under no method is prescribed to work out the net profit by reducing only variable cost. Accordingly, we are not in agreement with the working of net profit adopted by the AO which was based on whims and fancies. In this way the AO has applied the profit rate of succeeding year to estimate the profit of preceding assessment year. Therefore, it would be in the interest of justice to estimate the income on the basis of net profit ratio for three financial years i.e. the year under appeal and of preceding two preceding assessment years. It is settled law that past history of the assessee is the best guide for the purpose of estimating income by applying the profit rate. The N.P. rate of the immediately two preceding years and of the year under appeal i.e. of AY 2015-16 was 1.98% and for AY 2016-17 was 11.03% and for AY 2017-18 was 14.68% therefore, the average of the 03 years i.e. 9.23% is directed to be applied on the revised figure of undisclosed receipts of INR 6.46 crores and also in all the subsequent Assessment Years where the facts and the circumstances are identical except the change in the figure of the suppressed sale. The AO is directed to recompute the amount of undisclosed profit accordingly. The Grounds of appeal Nos. 4 & 5 raised by the assessee are partly allowed.

In the result, appeal of the assessee is partly allowed.

Now we take the appeal of the assessee in ITA No.2808/Del/2026 for Assessment Year 2019-20.

In this year also, facts are identical and by making similar allegations income was estimated as was made in ITA No.2807/Del/2026 for Assessment Year 2018-19 which fact is fairly admitted by both the parties. Therefore, by respectfully following the observations made in AY 2018-19 in above-mentioned appeal which are Mutatis Mutandis applicable to the facts of this case also. In view of the above, we direct the AO to take the correct amount of undisclosed turnover at INR 4.40 crores as against INR 7.20 crores taken by the AO and further direct to apply profit rate of 9.23% and recompute the amount of addition.

In the result, appeal of the assessee is partly allowed.

Now we take appeal of the assessee in ITA No.2809/Del/2026 for Assessment Year 2020-21.

In this year also, facts are identical and by making similar allegations income was estimated as was made in ITA No.2807/Del/2026 for Assessment Year 2018-19 which fact is fairly admitted by both the parties. Therefore, by respectfully following the observations made in AY 2018-19 in above-mentioned appeal which are Mutatis Mutandis applicable to the facts of this case also. In view of the above, we direct the AO to take the correct amount of undisclosed receipts at INR 2.48 crores as against INR 6.01 crores and further direct to apply profit rate of 9.23 % and recompute the amount of addition.

In the result, appeal of the assessee is partly allowed.

Now we take appeal of the assessee in ITA No.2810/Del/2026 for Assessment Year 2021-22.

In this year also, facts are identical and by making similar allegations income was estimated as was made in ITA No.2807/Del/2026 for Assessment Year 2018-19 which fact is fairly admitted by both the parties. Therefore, by respectfully following the observations made in AY 2018-19 in above-mentioned appeal which are Mutatis Mutandis applicable to the facts of this case also. In view of the above, we direct the AO to take the correct amount of undisclosed receipts at INR 4.21 crores as against INR 7.44 crores and further direct to apply profit rate of 9.23% being the average of profit rate of preceding three assessment years and recompute the amount of addition.

In the result, appeal of the assessee is partly allowed.

Now we take appeal of the assessee in ITA No.2811/Del/2026 for Assessment Year 2022-23.

Admittedly the facts are identical and by making similar allegations income was estimated as was made in ITA No.2807/Del/2026 for Assessment Year 2018-19. Therefore, by respectfully following the observations made in AY 2018-19 in above-mentioned appeal which are followed Mutatis Mutandis. However, from the perusal of the pages 364, 366, 489 of PB, it is observed that as per the Zenoti software, undisclosed receipts was of INR 2,62,03,487/- and the excess purchases was of INR 2,62,51,925/- was recorded and if the same is reduced from the undisclosed sales, there was no excess sales remained as per the Zenoti software thus, no addition is required to be made on account of any excess/undisclosed receipts. Accordingly, the addition made is hereby, deleted.

In the result, appeal of the assessee is partly allowed.

Now we take appeal of the assessee in ITA No.2812/Del/2026 for Assessment Year 2023-24.

In this year, facts relating to the issue of undisclosed receipts and estimation of income by applying the profit rate are identical and as were existed in ITA No.2807/Del/2026 for Assessment Year 2018-19 Therefore, by respectfully following the observations made in AY 2018-19 in above-mentioned appeal which are Mutatis Mutandis applicable to the facts of this case also, we direct the AO to take the undisclosed receipts at INR 1,43,42,863/- as against INR 3.47 crores and applied the profit rate of 9.23% and recompute the amount of addition.

Ground of appeal Nos. 4 & 5 raised by the assessee are with respect to the addition of INR 2,92,50,000/- made u/s 69 r.w.s. 115BBE of the Act.

The AO observed that during the course of survey and post-survey proceedings, it is noted that the assessee alongwith her husband, Shri Anil Goel had purchased a property bearing No.5, Road No.G-3, DLF City, Phase-1, Village-Sikanderpur Ghosi, Tehsil and District-Gurgaon (Haryana) for a total sale consideration of INR 7.50 crores whereas in the mobile phone of Shri Anil Goel, one Agreement to Sale (ATS) was found according to which the said property was to be purchased by them for a sum of INR 13.35 crores. The AO further referred to certain WhatsApp Chat exchanged between the broker, Shri Umesh Shah and Shri Anil Goel which further supports that property was purchased for a sum of INR 13.35 crores. Further reference was made to the WhatsApp chats between Shri Anil Goel and Shri Ankit Goel, son of the assessee and accordingly, the AO has held the differential amount of INR 5.85 crores as unexplained investment and made the addition of 50% of the same i.e. 2,92,50,000/- in the hands of the assessee u/s 69 r.w.s. 115BBE of the Act.

Before us, in support of the Grounds of appeal, first and foremost argument of the assessee was that the addition is solely based on the digital evidences found in the mobile phone of Shri Anil Goel and he referred the arguments put forth herein above about the authenticity and admissibility of the digital evidences since that said digital evidences were collected without following the procedure laid down u/s 65B of Indian Evidence Act as well as in the CBDT guidelines and therefore submits that without bringing on record any corroborative material no addition should be made solely on the basis of such digital evidences.

Ld. AR further submits that the ATS was never acted upon and the property was finally purchased by the assessee at a sum of INR 7.50 crores as per the registered sale deed. Ld. AR for the assessee submits that WhatsApp chats relied upon by the AO did not contain any cogent evidence that the said property was purchased at INR 13.35 crores rather they are related to the negotiation and meetings held between the buyers and the seller and this fact is further proved from the chat between Shri Anil Goel and Shri Umesh Shah, the broker. He thus submits that the ATS cannot be taken as basis for holding that the assessee has made unexplained investment over and above the declared sale consideration.

Alternatively, it was submitted that the documents relied upon, do not contain the complete details of the property nor was having any date nor signed by any party nor by the witness and has no legal sanctity. He further submits that as per the said ATS, INR 1.35 crores were received by the buyer as advance however, no such sum was ever paid nor found place in the final Sale Deed. Ld.AR further submits that the broker, Shri Umesh Shah was never examined, nor any enquiry was made from the seller. The ld. AR has made detailed written submission on this issue which is placed on record. Ld.AR further placed reliance on the following judgements:-

[i] CIT, Salem vs P V Kalyanasundaram [2007] 294 ITR 49 (SC);

[ii] CIT vs Smt. KYC Agnes [2003] 262 ITR 354 (Kerala HC);

[iii] Balwant Singh vs DCIT/ACIT [2025] 178 taxmann.com 438 (Chandigarh-Trib.);

[iv] PCIT vs Smt. Rashmi Rajiv Mehta [2024] 160 taxmann.com 723 (Delhi);

[v] CIT vs Ved Prakash Choudhary [2008] 305 ITR 245 (Del HC);

[vi] Balraj Gupta vs ACIT in ITA No.1948/Del/2019 dated 29.04.2019;

[vii] Brij Mahajan vs ACIT in ITA No.608/Del/2012 dated 27.12.2017;

[viii] ITO vs Sandeep Singh Khinda in ITA Nos. 4857 & 4858/Del/2014;

[ix] ACIT vs Mayfair Resorts India Ltd. in ITA No.2008/Del/2021;

[x] Paramjit Singh vs ITO [2010] 323 ITR 588 (P&H HC);

[xi] CBI vs V.C.Shukla dated 02.03.1998 (SC);

[xii] Common Cause vs Union of India [2017] 77 taxmann.com 245 (SC);

[xiii] CIT vs Praveen Juneja in ITA no.56/2017 (Del.HC);

[xiv] CIT vs D.K.Gupta [2008] 174 taxman 476 (Del.HC);

[xv] Mukesh Garg vs DIT in ITA Nos. 3546, 3547 & 3549/Del/2012 dated 26.08.2016;

[xvi] PCIT vs Imesh Ishrani [2019] 108 taxmann.com 437 (Bom.HC);

[xvii] Ashwini Kumar vs ITO [1991] 39 ITR 183 (Del.Trib.);

[xviii] D.A. Patel vs DCIT [2000] 72 ITO 340 (Mumbai Trib.);

[xix] ITO vs Kranti Impex P.Ltd. in ITA No.1229/Mum/2013 dated 28.02.2018 (Mum.Trib.); and

[xx] Gyankumar Agarwal (Ind.) [2013] 30 taxmann.com 114 (Hyderabad-Trib.).

On the other hand, ld. CIT DR for the Revenue vehemently supported the orders of the lower authorities and submits that incriminating evidence was found in the shape of Agreement to Sale from which it is very much clear that the assessee has purchased the property for INR 13.35 crores alongwith her husband however, the Sale Deed was got registered for INR 7.50 crores only and therefore, the AO has rightly made the addition. He thus, requested for the confirmation of the addition made by the lower authorities.

Heard the contentions of both the parties at length and perused the material available on record. It is observed that assessee had purchased the property alongwith her husband, Shri Anil Goel for a total sum of INR 7.50 crores as per the Sale Deed registered on 13.06.2022. The AO has referred one ATS stated to have been found in the mobile phone of Shri Anil Goel as per which the sale price was of INR 13.35 crores and not INR 7.50 crores. It is further observed that there were certain WhatsApp Chat between Shri Anil Goel and Shri Umesh Shah regarding the said property and further between Shri Anil Goel and Shri Ankit Goel, son of the assessee. As per the assessee, all these chats indicate that the property was purchased for a sum of INR 13.35 crores.

Admittedly, all these WhatsApp chats were found from the mobile phone of Shri Anil Goel however, it is not evident from the record whether the same were impounded as per the procedure laid down by the CBDT manual or in accordance with the procedure provided u/s 65B of the Act. In the absence of the certificates issued u/s 65B of the Indian Evidence Act, 1872 in relation impounding of mobile data, the authenticity, reliability and the very credibility of such data is very doubtful Further the violation of Digital Evidence Investigation Manual, 2014 issued by the CBDT is also an important issue which needs to be addressed. Further there was no corroborative material available or brought on record to support the alleged mobile data which have been heavily relied upon by the AO for making the impugned additions.

Before going further, the provisions of section 65B of the Indian Evidence Act, 1872, is reproduced hereunder for ready reference:

It is evident that section 65B clearly mandates that for any electronic record to be admissible as evidence, the same must be supported by a certificate certifying that the computer output satisfies the conditions stated in sub-section (2) thereto. Sub-section (2) of Section 65B of the Evidence Act specifically requires four conditions to be fulfilled. The digital evidence before being relied upon must be supported by a certificate which satisfies all the requirements of section 65B of the Evidence Act and in case the certificate does not certify or meet the mandatory prescription of the said section, the digital evidence loses its evidentiary value. The Courts have rather repeatedly emphasized upon the importance of the 65B certificate for digital evidence to be relied upon to draw any adverse inference against the person intended. However, in absence of the certificate u/s 65B of the Indian Evidence Act we are unable to comment whether all such conditions were fulfilled or not.

The Hon'ble Supreme Court in Anwar PV v. B.K. Basheer reported in [2014] 10 SCC 473 has dealt with the case of relevancy and admissibility of electronic evidence and mandatory compliance of section 65B(4) of Indian Evidence Act. The relevance of 65B certificate is also elaborated by the Apex Court in Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal reported in [2020] 7 SCC 1.

Further the CBDT has given detailed guidelines by way of Digital Evidence Investigation Manual, 2014, which are binding on the tax authorities. Some relevant and important contents of the aforesaid manual issued by the CBDT are reproduced as under:

On perusal of the above-mentioned extracts of the manual, the first and foremost requirement is the importance of the seizure memo which should clearly and categorically and in no ambiguous terms record the exact details of digital evidence found during the course of survey. The CBDT manual clearly states that the seizure memo must clearly reflect one person from the technical side, one from the assessee’s side and two independent witnesses who were part of the search and seizure proceedings, the unique device number should be mentioned, chain of custody and digital evidence collection forms must be prepared and preserved, the digital evidence must be photographed, the panchas in whose presence the seizure memo is recorded should be the person having some knowledge about the digital devices and it is advisable to include in writing from the panchas that they have been explained the various digital devices that have been identified and also various procedures used in forensic collections and the digital evidence collection form should be properly and duly filled-up before seeing the digital data. In the instant case no such documents have been placed before us therefore we are unable to comment upon the same with reference to the aforesaid CBDT manual.

The coordinate bench of Delhi Tribunal in the case of DCIT v. Balar Marketing (P.) Ltd. (supra) has dealt with the law relating to 65B certificates and CBDT Manual in detail. The bench has expressly examined certain provisions of the Indian Evidence Act and Income Tax Act 1961, which indicate as to how, though not strictly applicable, the jurisprudential concepts of law of evidence, as enshrined under the Evidence Act, find their place, in proceedings under the Income Tax Act 1961 thereby establishing that in assessment proceedings also these jurisprudential concepts of law of evidence are relevant and needed to be followed. Regarding the examination of 65B Certificates and CBDT Manual, it is held that additions based on software recovered from devices seized during search, constituted only secondary evidence without proper extraction reports, chain of custody, or 65B certificate establishing authenticity. It was held that in absence of reliable and admissible evidence, additions were not unsustainable.

It is also an admitted fact that in the instant case the AO has not made any independent inquiry or investigation whatsoever from the broker, Shri Umesh Shah with whom WhatsApp chats were found in the mobile phone of the husband of the assessee. Further no inquiry was made from the seller to support the allegation that the property was purchased for a sum of INR 13.35 crores and not at INR 7.50 crores. Merely based on unsigned and undated agreement to sale found in the mobile phone, the authenticity of such mobile data is also very doubtful, the additions have been made in the hands of the assessee by treating the sale price mentioned therein as the real sale price. It is further observed that in ATS, payment of INR 1.35 crores as advance has been mentioned as received by the buyer however, no such payment was ever made by the assessee or his husband. The ATS would take the legal character if it was signed by both the parties in presence of some witnesses who also put their signature as confirmatory party. AS observed above, the ATS was not signed by any person. Merely for the reason that some chats were found in the mobile phone of the husband of the assessee, it cannot be held that the assessee has made cash payment over and above the sale consideration as per the registered Sale Deed. The price mentioned in the ATS was probably the price asked for by the seller and after the negotiations between the parties which evident from WhatsApp chat between the assessee and broker, Shri Umesh Shah where the broker has intimated about the meetings, the sale price was decided.

One more fact needs to be considered that no loose paper or document was found and /or impounded in support of alleged cash payment nor brought on record by making any independent inquiries. It is also a matter of fact that Stamp Duty Authorities have not charged the duty over and above the sale consideration of INR 7.50 crores.

In absence of the examination of the broker or the seller, action of the AO in holding the sale price mentioned in the Agreement to sale as correct sale price cannot be accepted. The Hon’ble Kerala High Court in the case of K. C. Agent reported in [2003] 263 ITR 364 (Kerala HC) has held as under:-

The Hon’ble Delhi High Court in the case of CIT vs Rashmi Rajiv Mehta reported in [2024] 160 taxmann.com 723 has observed that when original copy of the document is not brought on record, no addition could be made on the basis of photocopy. In the instant case, the documents relied upon by the lower authorities was the Agreement to Sale which was not even signed nor having any date of execution therefore, the same cannot take the character of legal document thus, the case of the assessee is on better footing.

Under identical circumstances, the Co-ordinate Bench in the case of Balraj Gupta in ITA No.1948/Del/2019 dated 29.04.2019 has held as under:-

Similarly in the case of Brij Mahajan in ITA No.608/Del/2012 dated 27.12.2017 under identical circumstances and by following the judgement of Hon’ble Delhi High Court in the case of CIT vs Ved Prakash Choudhary reported in [2008] 305 ITR 245 has held that no addition could be made on the basis of unsigned Agreement to sale, more particularly, when sale document was never confronted to the parties.

In view of the above facts and by respectfully following the judgements of Hon’ble Jurisdictional High Court and Hon’ble Kerala High Court and judgment of Co-ordinate Benches of the Tribunal (supra) and further considering the fact that neither any corroborative evidence was found and impounded as a result of survey indicating any cash payment made by the assessee to the seller nor any inquiry was conducted by the AO from the seller or the broker and further considering the fact that the Agreement to Sale relied upon is neither signed by any of the parties nor by any witness therefore, has no legal sanctity. Further in the absence of certificate u/s 65B of Indian Evidence Act, the authenticity of the digital evidence impounded from the mobile phone of Shri Anil Goel cannot be accepted. Accordingly, the addition made solely based on such digital evidence is hereby deleted. The Grounds of appeal Nos. 4 & 5 raised by the assessee are allowed.

In the result, appeal of the assessee is partly allowed.

In the final result, all captioned appeals of the assessee in ITA Nos. 2807 to 2812/Del/2026 for Assessment Years 2018-19 to 2023-24 respectively, are partly allowed.