JUDGMENT K.S. Jhaveri, J. - In all these appeals identical questions of law and facts are involved and as they relate to the same assessee, they are heard together and decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal after considering the additional evidence which was produced by the assessee under Rule 29 has allowed the appeal of the assessee and dismissed the appeal of the department. 3. This court while admitting the appeals on 3.12.2012 (145/2012, 146/2012, 147/2012, 148/2012 & 149/2012) framed following common substantial questions of law:- "(i) Whether on the facts and circumstances of the case the tribunal was justified and right in law in deleting the additions under section 69 of the Act on the basis of new evidences not placed on record before the original and first appellate authority makes the orders perverse and contrary to Rule 29 of the Appellate Tribunal Rules, 1963? (ii) Whether, in the facts and circumstances of the case Tribunal was right in setting aside the addition made under section 69 by shifting the burden on the department inspite of the fact that incriminating documents, statements under section 131 were enough to justify unexplained investment and further no satisfactory answer were furnished by the respondents? (iii) Whether, the order passed by Tribunal is perverse and violative of principles of natural justice as passed on the basis of new evidences which were after thought and not placed on record before original authority and the first appellate authority? 4. We have heard counsel for the parties. 5. Rule 29 of the Appellate Tribunal Rules, 1963 provides as under:- "29. 4. We have heard counsel for the parties. 5. Rule 29 of the Appellate Tribunal Rules, 1963 provides as under:- "29. Production of additional evidence before the Tribunal.- The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them, or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. " 6. It is true that party cannot be claimed as a matter of right. However, tribunal has followed the procedure under Rule 29 in entertaining additional evidence though nothing is produced on record. The additional evidence produced by the assessee has been objected by the representative of the department. In that view of the matter, we find no error committed by the tribunal in entertaining additional evidence under Rule 29 of the Rules. 6.1 In that view of the matter, the first issue is answered in favour of the assessee and against the department. 7. Regarding second issue, counsel for the appellant has taken us to the order of the Tribunal which reads as under: "In this case also the initial burden to explain the nature and source of the investment in land not recorded in the books of assessee, lies on the assessee. But as explained above he has failed to discharge this initial burden and therefore the unexplained investment has been rightly added by the CIT(A) under section 69. In his submissions, the assessee has also claimed that the advances received from prospective plot owners are reflected in the diaries seized during the search operations. It may be noted that during the assessment and first appeal proceedings the assessee made this general statement only but never explained which entries in the diaries were related to which payments for land. The assessee has furnished the copies of such diaries in the paper book at pg. 38 to 185. It may be noted that during the assessment and first appeal proceedings the assessee made this general statement only but never explained which entries in the diaries were related to which payments for land. The assessee has furnished the copies of such diaries in the paper book at pg. 38 to 185. From these diaries, it can bee seen that many of the pages are blank. On some of the pages names of the persons and amounts are mentioned but no dates are given. The assessee has not linked the entires on these pages with the cash flow summary submitted by him to the AO and CIT(A) to explain the source of money invested in the land. In many cases the names appearing in the diary are different from the name of plot owner shown in the list submitted by the assessee. For example, on page 138 of APB for plot no.26 is ''G.Y. Meena'' but on page 254 of APB the plot owner is Sunita Meena. Similarly for plot no.25 (pg.137 of APB) diary shows Prashant Joshi but the list on pg.254 sows Swapnil Sharma. Such differences can be found for plot nos.21, 22, 25, 26, 32 on pg. 254 of APB and many other plots. Thus, the assessee has failed to explain the link between the diaries and the prospective plot owners. Therefore, the entries in these diaries in no way explain to source of the money used for investing in the land. The assessee has submitted the date wise cash statement in item no.17 (page 187 to 190) of the APB. This statement was not submitted either before the AO or before the ld. CIT(A). Therefore, this kind of analysis is totally new evidence which was not presented before the lower authorities for verification and hence cannot be admitted in this stage before the Hon''ble ITAT." 7.1 He has also taken us to the para no.2.15 & 3.2 of the tribunal which reads as under:- "2.15 Page nos.187 to 189 of the paper book contains the details of the accounts received in booking of plots. There are bulk bookings. We have noticed few of the bulk bookings and detail given in these pages are in chronological order and hence we have extracted specific bulk bookings. There are bulk bookings. We have noticed few of the bulk bookings and detail given in these pages are in chronological order and hence we have extracted specific bulk bookings. Plot no.1-2, 54-62, 64, 73-75, 77 by Ramji Date Seized Exhibit Amount(Rs.) 20-11-2003 A-20/2 1,00,000 22-11-2003 A-20/2 25,000 18-12-2003 A-20/2 1,00,000 07-01-2004 A-20/2 3,90,000 11-03-2004 A-20/2 2,00,000 03-04-2004 A-20/2 50,000 18-04-2004 A-20/2 2,65,000 01-05-2004 A-20/2 1,50,000 21-05-2004 A-20/2 2,00,000 13-06-2004 A-20/2 1,00,000 Annexure A/20/2 is available at page 29 of the paper book and name of Ramji is mentioned. However, when society issued pattas in respect of above plots, the names are different. The details of names of the person in whose name, the pattas were issued were given to the AO. The name of the society was given and if the AO wanted to make further enquiry then such details could have been collected." 3.2 The AO in his assessment order has estimated the profit in the project at Rs. 19,98,070/- and since such project yielded profit in three assessment years from 2003-04 to 2005-06 and accordingly profit to be taxed for the year under reference was taken at Rs. 6,66,023/- which represented /rd of Rs. 19,98,070/-. The findings of the AO are as under:- The assessee is not maintaining regular books of account. The assessee has not produced any evidence for verification of profit as computed as above and has not declared in the return of income. Assessee has taken minimum development expenses Rs. 169 Sq. Yard and has given bifurcation is as under:- S.No. Particulars Rate per Sq. Yard 1. Roads-Internal 30 2. Road-Appraoch 10 3. Tree Guards/Tree 10 4. Arrows, Glow Signs 5 5. Demarcation, Site Plans, Maps etc. 15 6. Boundary wall, Fencing of scheme 30 7. Boundary wall Plots/Blockwise 30 8. Pit Filling 24 9. Site office Expenses 15 Total 169 As per the equiries conducted by the Inspector at the project site and confronted to the assessee. It revealed that only basis development has been undertaken in this project as only approach road and further ploting of plots has been done. In the name of development expenses, superficial minute development expenses like just plotting and Kaccha road undertaken. Thus in absence of any reliable evidence produced by the assessee and the prevailing development expenses in private projects development expenses range to 50 to 60 per Sq. Yard. In the name of development expenses, superficial minute development expenses like just plotting and Kaccha road undertaken. Thus in absence of any reliable evidence produced by the assessee and the prevailing development expenses in private projects development expenses range to 50 to 60 per Sq. Yard. I am left with no option but to disallow /rd development expenses. Thus the profit is apportioned at Rs. 6,66,023/- in three F.Yrs 2002-03 to 2004-05 relevant to A.Ys 2003-04 to 2005-06. Thus addition of Rs. 6,66,023/- is made on account of profit at Govind Vatika Project." 7.2 He contended that the view taken by the tribunal is contrary to law. Counsel for the appellant has also taken us to the para no.6.4 & 6.6 which reads as under:- "6.4 Before us, the ld. AR drew our attention to modus operandi of the business of the assessee as explained in the case of the assessee for the assessment year 2004-05. It is true that all the details in respect of Govind Vatika Project were available and found during the course of search. In respect of project named as ''Gokul Vihar'' all the details are not available. However, the society allotted plots and details of names and addresses of such plots holders have been given at pages 260 to 264 of the paper book. It was submitted that the assessee is not a person of making investment of Rs. 1.24 crores from his own funds and therefore, it was stated that asset theory should have been applied. 6.6 We have heard both the parties. In respect of ''Govind Vatika Project'', the assessee was able to explain the sources of investment. The assessee is doing the real estate business on the basis of the funds provided by bulk purchaser and retail purchaser. One will have to apply the theory of human probability. One is required to be taxed on the real income and best judgment assessment is to be made on the basis of overall circumstances of the case. Our attention was drawn towards the account prepared for ''Govind Vatika Project''. The amounts were received from bulk purchasers before the amount was paid as per agreement. A sum of Rs. 21,000/-was paid on 9.2.2003 and Rs. 5,00,000/- was paid on 4.3.2003 and a sum of Rs. 5,11,000/- was mentioned in the agreement. In the case of ''Govind Vatika Project'', a sum of Rs. The amounts were received from bulk purchasers before the amount was paid as per agreement. A sum of Rs. 21,000/-was paid on 9.2.2003 and Rs. 5,00,000/- was paid on 4.3.2003 and a sum of Rs. 5,11,000/- was mentioned in the agreement. In the case of ''Govind Vatika Project'', a sum of Rs. 21,000/- was paid before the date of agreement and a sum of Rs. 10,00,000/- was paid on 15.10.2004. The assessee has also filed the cash flow statement also. Looking to the modus operandi of the business which is verifiable from the execution of the project of ''Govind Vatika Project'', we hold that the investment for purchasing the land is out of the founds received from bulk and retail purchasers and hence no addition is required to be made on this account. Hence, the addition of Rs. 1,24,00,000/- confirmed by the ld. CIT(A) is deleted." 7.3 Counsel for the appellant has relied upon the following decisions:- (7.3) In Sumati Dayal vs. Commissioner of Income Tax (1995) 214 ITR 801 , wherein it has been held as under:- "This, in our opinion, is a superficial approach to the problem. The matter has to be considered in the light of human probabilities. The Chairman of the Settlement Commission has emphasised that the appellant did possess the winning ticket which was surrendered to the Race Club and in return a crossed cheque was obtained. It is, in our view, a neutral circumstance, because if the appellant had purchased the winning ticket after the event she would be having the winning ticket with her which she could surrender to the Race Club. The observation by the Chairman of the Settlement Commission that "fraudulent sale of winning ticket is not an usual practice but is very much of an unusual practice" ignores the prevalent malpractice that was noticed by the Direct Taxes Enquiry Committee and the recommendations made by the said Committee which led to the amendment of the Act by the Finance Act of 1972 whereby the exemption from tax that was available in respect of winnings from lotteries, crossword puzzles, races, etc. was withdrawn. Similarly the observation by the Chairman that if it is alleged that these tickets were obtained through fraudulent means, it is upon the alleger to prove that it is so, ignores the reality. was withdrawn. Similarly the observation by the Chairman that if it is alleged that these tickets were obtained through fraudulent means, it is upon the alleger to prove that it is so, ignores the reality. The transaction about purchase of winning ticket takes place in secret and direct evidence about such purchase would be rarely available. An inference about such a purchase has to be drawn on the basis of the circumstances available on the record. Having regard to the conduct of the appellant as disclosed in her own statement as well as other material on the record an inference could reasonably be drawn that the winning tickets were purchased by the appellant after the event. We are, therefore, unable to agree with the view of the Chairman in his dissenting opinion. In our opinion, the majority opinion after considering surrounding circumstances and applying the test of human probabilities has rightly concluded that the appellant''s claim about the amount being her winning from races is not genuine. It cannot be said that the explanation offered by the appellant in respect of the said amounts has been rejected unreasonably and that the finding that the said amounts are income of the appellant from other sources is not based on evidence. In the circumstances, no case is made out for interference with the order passed by the Settlement Commission. The appeals, therefore, fail and are accordingly dismissed with costs." 7.4 In Commissioner of Income Tax vs. Narendra Mohan Paliwal (2004) 271 ITR 347 wherein it has been held as under:- (i) that there was no material on record that the marble blocks, which were sold were of different quality, but the fact on record which had been found by the Assessing Officer was not in dispute that the weight which had been shown in the bills was not correct. The Tribunal had wrongly deleted the addition of Rs. 7,48,800/-. (ii) When the bills and vouchers for the expenses claimed are not produced, the only course left to the assessing officer is to estimate the disallowance. He has estimated the disallowance on 25 per cent of the total expenses claimed. That has been affirmed by Commissioner (Appeals). Tribunal has not given any justification why this should be reduced. 7,48,800/-. (ii) When the bills and vouchers for the expenses claimed are not produced, the only course left to the assessing officer is to estimate the disallowance. He has estimated the disallowance on 25 per cent of the total expenses claimed. That has been affirmed by Commissioner (Appeals). Tribunal has not given any justification why this should be reduced. It is true that it is estimate against estimate, but even then there should be some justification when two authorities have taken the same view for disallowance of the expenses. Tribunal has committed error in reducing this amount of disallowance without any justification. (iii) In the absence of any justification and when the loan had been advanced to S at the negligible rate of interest without the purpose of the business, the Tribunal had committed an error in deleting the addition of Rs. 52,246/- on account of interest free loan. 8. Counsel for the respondent has taken us to the observations made by the tribunal observing as under: "The assessee stated that no regular books of accounts were kept and only diaries were maintained. It means that there were relevant documents to ascertain the transactions. It is true that in transaction of real estate, the money passed on is not always the accounted money. The assessee is only a conduit and the Revenue has perhaps taken no action against the persons who received the consideration over and above the consideration shown in the sale deeds. So far as the assessee is concerned, it is clear that seized documents show the source of funds. Hence, there is no question of making addition of Rs. 40,54,325/- plus Rs. 60,75,000/-. While recording such findings, we have considered the total asset position filed before the lower authorities. Hence, these additions are deleted and grounds of appeal nos.2 & 3 are allowed." 8.1 He contended that it is on appreciation of additional evidence on the fact that the tribunal has come to the conclusion that though the appellant has own the business but for the mischief of others, actions are not taken against the persons who have committed mischief of investing money. 8.2 In that view of the matter, on factual matrix, the tribunal has decided that burden is not shifted from assessee to department and though finding on third issue, no perversity is found, we find no ground to interfere. 8.2 In that view of the matter, on factual matrix, the tribunal has decided that burden is not shifted from assessee to department and though finding on third issue, no perversity is found, we find no ground to interfere. 8.3 Therefore, the issues are required to be answered in favour of the assessee and against the department. 9. The appeals stands dismissed. 10. A copy of this order be placed in each file.