JUDGMENT K.S. Jhaveri, J. - In all these appeals since identical questions of law and facts are involved, they are decided by this common judgment. For the convenience of the court, we have taken facts from Income Tax Appeal No. 140/2014. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee. 3. This court while admitting the appeals framed the following question of law:- 1. D.B. Income Tax Appeal No. 140/2014 Whether ITAT is perverse in deleting the addition of Rs. 67,49,680/- on account of Capital gains, ignoring the incriminating documents seized from the residence of the assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee. 2. D.B. Income Tax Appeal No. 141/2014 "Whether the order of Tribunal is perverse in deleting the addition of Rs. 69,12,400/- on account of capital gains on sale of land, ignoring the incriminating documents seized, admission of the key persons of the Group under section 132 (4), and the valuation report of the DVO, which proved that on-money was received on sale of land by the assessee? 3. D.B. Income Tax Appeal No. 143/2014 "Whether ITAT is perverse in deleting the addition of Rs. 76,81,215/- on account of Capital gains, ignoring the incriminating documents seized from the residence of the assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee." 4. D.B. Income Tax Appeal No. 144/2014 "Whether ITAT is perverse in deleting the addition of Rs. 35,91,863/- on account of Capital gains, ignoring the incriminating documents seized from the residence of the assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee." 5. D.B. Income Tax Appeal No. 148/2014 "Whether on the facts and circumstances of the case and in law the Hon''ble Tribunal has not acted perversely in deleting the addition of Rs. D.B. Income Tax Appeal No. 148/2014 "Whether on the facts and circumstances of the case and in law the Hon''ble Tribunal has not acted perversely in deleting the addition of Rs. 4,19,82,789/- on account of long term capital gain, ignoring the incriminating documents seized from the residence of assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee?" 6. D.B. Income Tax Appeal No. 150/2014 "(i) Whether on the facts and circumstances of the case and in law the Hon''ble Tribunal has not acted perversely in deleting the addition of Rs. 77,20,722/- on account of long term capital gain, ignoring the incriminating documents seized from the residence of assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee? (ii) Whether on the facts and circumstances of the case and in law the Hon''ble Tribunal has not acted perversely in not deciding the ground relating to deletion of addition of Rs. 30,00,000/- made by the A.O. under section 68 of the Act on account of unexplained cash credits?" 7. D.B. Income Tax Appeal No. 151/2014 "Whether ITAT is perverse in deleting the addition of Rs. 67,26,150/- on account of Capital gains, ignoring the incriminating documents seized from the residence of the assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee." 8. D.B. Income Tax Appeal No. 157/2014 &"Whether on the facts and circumstances of the case and in law the Hon''ble Tribunal has not acted perversely in deleting the addition of Rs. 1,28,26,725/- on account of long term capital gain, ignoring the incriminating documents seized from the residence of assessee and other persons, admission of key persons of the Group under section 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee?" 9. D.B. Income Tax Appeal No. 230/2016 "Whether the Tribunal is justified in law in deleting the disallowance of Rs. D.B. Income Tax Appeal No. 230/2016 "Whether the Tribunal is justified in law in deleting the disallowance of Rs. 16,38,750/- made by the AO under section 54B despite the fact that the assessee did not purchase new agricultural land in his name." 4. Briefly stated, the facts of the case are that a search and seizure operation was conducted under section 132 of the Income-tax Act, 1961, [''the Act'', for short] on 23.07.2004 at the residential premises of the assessee at Dhani, Naharwali Pithawas, Village Hatoj, Kalwar Road, Jaipur. Consequent upon this search, a Return of Income (ROI) was filed by him on 11.09.2006 declaring total income of Rs. 4,09,788/-. From agricultural activities, an income of Rs. 45,000/- for rate purposes was also shown. The assessee has shown income from capital gain on the sale of land. The assessee sold a piece of land measuring 105.56 bighas by 14 persons jointly to Smt. Tara Gupta w/o Shri N.K. Gupta and Smt. Chandrakanta Agrawal w/o Shri Ram Gopal Saraf. The details of land sold along with the name(s) of the purchaser and seller(s), are as under: Sr. No. Name of the Purchaser Name(s) of the Seller Kharsra No. Area of land 1 Smt. Tara Gupta S/Shri Luna Saini, Prabhat Saini and Shri Sedu Saini 438 to 445 and 447 24.45 bigha 2 Smt Tara Gupta S/Shri Mangal Ram Saini 438 to 445 and 447 6.98 bigha 3 Smt. Tara Gupta S/Shri Gopi Saini and Nathu Ram Saini 438 to 445 and 447 24.45 bigha 4 Smt. Chandrakanta Agarwal S/Shri Hanuman Saini, Chotu Saini, Gyarsi Saini, Panchu Saini, Shankar Saini, Nanchu Saini 438 to 445 and 447 41.91 bigha 5 Smt Tara Gupta Shri Nanag Ram Saini 451 4.55 bigha 6 Smt. Tara Gupta Shri Bodu 448 3.11 bigha Total 105.56 bigha 5. Taking into consideration the evidence on record, the Tribunal held as under:- 8. We have gone through the order 31.10.2011 [P.B 33 to dated 47] passed by the settlement commission. From this order it is apparent that while considering the case of settlement of the ''Mangalam Group'' who had purchased this land from the Saini Group, that the rate or Rs. 10.68 lakhs per bigha is the maximum rate and cannot be made a basis for valuing the entire land of this group. The farmers of that area have stated that the orders ranging between Rs. 10.68 lakhs per bigha is the maximum rate and cannot be made a basis for valuing the entire land of this group. The farmers of that area have stated that the orders ranging between Rs. 2 lakhs to Rs. 10.68 lakhs per bigha are prevalent in the area. The Settlement Commission has clearly observed that the rates adopted by the department cannot be accepted. We value the submission of the ld. CIT (DR) that other than Shri Narang Ram and Shri Bodu Ram Saini, all other persons had their undivided share in 97.90 bighas of land comprised in Khasra Nos. 438 to 445 and 447; then the rates given cannot be different. He has supported the above contention with the submission that in the cases of this group evidence supporting rates adopted by the department have been found apart from the statement of one of them recorded under section 132(4) of the Act. However, we cannot accept the above contention of the ld. CIT [DR] in its entirety. Firstly, the settlement has been done qua the same land which has been purchased by the Mangalam Group and sold by the same Saini Group. So, two yardsticks cannot be applied to the same transactions. Secondly, the statement recorded under section 132 (4) is not of the assessee and is of the third person. Now let us examine the nature of incriminating evidence found during the search. During the search, certain incriminating documents were found from the residential premises of the assessee suggesting that on-money in cash was received by the assessee. The assessee in his statement, has not accepted this fact but statement was given by Shri Rajesh Mali s/o Shri Sedu Ram. An unsigned agreement executed with Shree Karni Impex by Sunda Ram HUF was found wherein land was agreed to be sold @Rs. 11,21,000/- per bigha. The DVO has assessed the rate of the land at Rs 9,31,625/- per bigina. The assessee has also purchased land by making cash payment and without making any cash withdrawals from the bank. In our considered opinion the above pieces of evidence may be relevant but not decisive for the purpose of making huge additions. 11,21,000/- per bigha. The DVO has assessed the rate of the land at Rs 9,31,625/- per bigina. The assessee has also purchased land by making cash payment and without making any cash withdrawals from the bank. In our considered opinion the above pieces of evidence may be relevant but not decisive for the purpose of making huge additions. When all the above evidence are pitted against the order and finding of the settlement commission in the case of purchaser, the Mangalam Group, differential view cannot be taken in the cases of sellers, as has suggested by the ld. CIT (DR). The assessee is undisputedly an illiterate person. Thus, much importance cannot be given to the statements recorded under section 132(4) of the Act when it is stated by the reasoning''s of the Settlement Commission. Admittedly, no cash was found during the course of search and even the buyer was not interrogated in this regard. Therefore, the statement recorded under section 132(4) cannot be relied on to make the addition. Further, Shri Rajesh Mali is not a party to these transactions. No opportunity to cross examine his was given to the assessee. In the case of shri Sedu Ram, admittedly similar additions made have been deleted by the ld. CIT (A). Therefore, the cumulative effect of all the above facts and the circumstances is that the impugned addition is not justified. The report of the DVO has no relevance in this case. It is also a fact that no direct evidence regarding on money payment has been found during the search. Therefore, in view of the judgment of the Hon''ble Rajasthan High Court rendered in the case of Commissioner of Income Tax vs. Raja Narendra reported as 210 ITR 250 [Raj] and that of the Hon''ble Supreme Court in the case of Commissioner of Income Tax vs. Sivakami P. Ltd. 159 ITR 71 [SC] is not justified, de hors and proof [direct evidence] found during search. Regarding cash payment allegedly made by the assessee to Smt. Badami Devi and Shri Gangaram for purchasing their land is found to be not supported. In fact, the assessee purchased land from one Shri Birdichand on 31.7.2004 for a consideration of Rs. 3 lakhs for which there is a withdrawal from the bank on the same date. We cannot ignore the contention that in the purchase deed from Shri Ganga Ram and smt. In fact, the assessee purchased land from one Shri Birdichand on 31.7.2004 for a consideration of Rs. 3 lakhs for which there is a withdrawal from the bank on the same date. We cannot ignore the contention that in the purchase deed from Shri Ganga Ram and smt. Badami Devi dated 2.8.2004 for Rs. 11 lakhs where it is mentioned that cash was given on the date of registration but the cash could not be withdrawn and the document was registered as the parties were know and had faith in each other. In agricultural community, this is not an unusual thing. This version stands fortified by the affidavits of Smt. Badami Devi and Shri Ganga Ram which remained uncontroverted. In the case of Shri Sunda Ram Saini-HUF [one of the assessee''s group] the ld.CIT(A) has deleted the similar addition by making the following observations: "(i) From the facts of the case it appears that the only basis for not accepting the sale consideration shown by the appellant is a document found from the residence of appellant coparcener during the course of search. It has been admitted by the AO that the document is unsigned. As admitted the facts written in the agreement were not found correct. Neither the party appearing as a purchaser in agreement was found actual purchaser nor that party was examined by the A O. The cash receipt as shown in the agreement were also not found deposited anywhere. The cheque mentioned in the agreement were also not found deposited anywhere. (ii) The very fact that the land was not sold to M/s Kai Impex as appearing in the agreement bat sold to M/s. Manglam Group and there is no relationship between M/s. Karni Impex and Manglam Group also indicate that the agreement has nothing to do with the sale under consideration. (iii) None of the parties, mentioned in agreement, have accepted that they have entered into any agreement with M/s. Karni Impex. (iv) Regarding the statement of some of coparcener''s most of the persons whose statements were recorded are not coparcener of the appellant HUF. No evidence was established by AO which confirmed the statement of Shri Mangla Ram. (v) Circumstantial evidences would have played vital role had there been no search. (iv) Regarding the statement of some of coparcener''s most of the persons whose statements were recorded are not coparcener of the appellant HUF. No evidence was established by AO which confirmed the statement of Shri Mangla Ram. (v) Circumstantial evidences would have played vital role had there been no search. Once a search action has taken place at the premises of the appellant and no evidence was found regarding the receipt of cash or deposits of any cheque or any investments made by the appellant HUF or its coparcener only on the basis of third party''s statement which is also not supported by any other independent evidence addition will not be justified. Addition cannot be made only on the basis of statement of some person unless it is substantiated with material on record. The AO had no such independent material on record. A search action under section 132 is supposed to be the last resort to collect material against the assessee and in the present case search action has not resulted into any recovery of incriminating evidence or undisclosed investment in any form including deposits in Bank accounts. vi) An unsigned agreement disowned both by the parties, not supported by any evidence and most of the fact proved to be wrong, cannot be relied upon. Addition not supported by material on record, deserve to be deleted. 9. In the case of Shri Luna Ram Saini, the following observations have been made by the ld. CIT (A). "Here the main issue is determination of actual receipts of sale value of agricultural land on sale other than registered value by the registering authority shown by the assessee. The AO determined the sale value on the basis of rates following the unsigned agreement paper, calculation notings and various statements of various persons. On the other hand no material could be brought on the record by the A o the amount of actual receipts by the assessee overhand above the value shown in the registration by the registering authority. The material discussed by the A.O in his order is undoubtedly good for presumption of rate of price of sale of land but it is not the material for the evidence of actual receipts other than the value shown in the registered deed which is vital necessity for validly presumption of sale value receipts is other than the registered value in sale deed. No material could be brought to substantiate the actual receipts of sale value more than registered value in search and seizure operation. It is also fact that no opportunity for cross examination was given to the assessee to cross examine the statements of various persons used against the assessee. The persons mentioned in the loose papers with the Some calculation sheet are also not examined. It is also act that the unsigned agreement with Karni Impex is found to be not related with this transaction and in the remand report the relationship between the Karni Impex and Mangalam Group, the actual purchaser could not be established. The transactions through cheque mentioned in the unsigned agreement is also not established in the bank statements of Karni Impex as per remand report. None of the parties mentioned in agreements have accepted that they entered into any agreement with M/s Karni Impex there is mathematical equation tallying in the notings the amount received by cheque and amount received in cash in the loose paper, it cannot be sole basis for addition unless and until the amount is substantiated in material. No material was established by the AO which confirm the receipt of considerations more than the amount shown in the registered value. The circumstantial evidences could have played a vital role had there been no search. Once search action is taken place at the premises of the appellant and no evidence, was found regarding the receipt of cash or deposits or any cheques or any investments made by the appellant or its family members, only on the basis of third party statements, own retracted statements which is also not supported by any other independent evidence, the addition cannot be justified. Addition cannot be made on the basis of statements of some persons unless it is substantiated with material on record. The A.O had no such independent material on record. A search action under section 132 is supposed to be the last resort to collect material against the assessee and in present case search action has not resulted into any recovery of any incriminating evidence or undisclosed investments in any form including deposits in bank accounts or cash in hand. An unsigned agreement disowned by both the parties not supported by any evidence cannot be relied upon. An unsigned agreement disowned by both the parties not supported by any evidence cannot be relied upon. The only ground of valid presumption of the cash so received night be invested in new agricultural land purchased by way of cash payment. In that case also there is no tax t as such it is protected by provisions of section 54B of the income-tax Act, 196 so there is no point to have such presumption also." 9.1 The above observations of the ld. CIT(A), in fact, help the case of this assessee. In this case also no concrete evidence that the assessee has received any on-money has been found. The following observations made by the ITAT in the case of Shri Rajendra Prasad Saini vs. Income Tax Officer in ITA No. 821/JP/2005 order dated 27.7.2007 is also relevant: "Considering the arguments advanced by the parties, we fully agree with the submission of the Id. DIR that it is common practice in the case of transaction of the property that undisclosed amount is paid in advance and remaining amount shown as consideration of the property is paid at the time of registration of sale deed of the property. But addition cannot be made solely on the presumption of this practice in absence of corroborative evidence in support. There is no doubt that there was some narration about receipt of Rs. 13.25 lacs against the sale of house property in question on the paper seized during the course of survey operation but while relying upon the same, to justify an addition in income of the assessee the other factors cannot be totally ignored. These material facts are that the seized paper was neither dated nor signed by the assessee or the seller of the property, the paper was vague in as much as balance amount was stated at Rs. 10,000 lacs and not Rs. 1 lacs and an agreement was also entered which was duly attested by the Notary on 17.9.2001, a copy whereof has been placed at pages 48 to 50 of the paper book regarding the sale of the property in question. In this agreement it has been specifically mentioned that the seller of the property has received Rs. 10,000/- in cash at the time of signing the agreement and Rs. 9.90 lacs would be received in seven days at the time of registration. In this agreement it has been specifically mentioned that the seller of the property has received Rs. 10,000/- in cash at the time of signing the agreement and Rs. 9.90 lacs would be received in seven days at the time of registration. Thus in view of the agreement and sale deed, the contents of paper seized, loose its reliability besides, the sellers in their affidavit (pages 30 to 31 o the paper book) have affirmed that the agreed consideration for the sale of the property was Rs. 10 lacs only. It is also established position of law that an addition cannot be made solely on the basis of surrender made during the course of search or survey in absence of corroborative evidence in support. Therefore, we order to delete the impugned addition and allow the appeal of the assessee. ITA No. 1506 and Co 162 Shri Nanag Ram Saini 10. The Revenue has raised the following grounds: "1. In the facts and in the circumstances of the case, the ld. CIT (A) has red in reducing the sale consideration from Rs. 48,59,400/- to Rs. 45,70,000/- ignoring the statement of the assessee under section 132(4) supported by other corroborative evidence. 2. On the facts and in the circumstances of the case, the ld. CIT (A) has erred in increasing the investment eligible for deduction under section 54B from Rs. 8,14,000/- to Rs. 31,50,000/- relying on the statement of the assessee under section 132(4) without any supporting evidences." "10.1 The assessee has raised the following cross objection: "On the facts and in the circumstances of the case, the ld. CIT(A) has erred in confirming the action of the A.O of adopting the indexed cost of acquisition at Rs. 53,597/- as against Rs. 17,28,000/- claimed by the assessee arbitrarily without appreciating the submissions made and evidence produced thus the action of the id. CIT (A) being illegal and unlawful deserves to be struck down and the indexed cost of acquisition declared by the assessee be allowed as deduction for the purpose of computing capital gains." "With similar reasoning as we have given in the case of Prabhati Lal Saini, we allow the cross objection and dismiss Revenue''s appeal." 6. In our considered opinion, the observations which are made by the Tribunal are based on appreciation of facts and Tribunal being the last fact finding authority, no interference is called for. 7. In our considered opinion, the observations which are made by the Tribunal are based on appreciation of facts and Tribunal being the last fact finding authority, no interference is called for. 7. In view of above, the issue in answered in favour of assessee against the department. 8. All the appeals are dismissed.