2022 (4) TMI 590 - AT - Income Tax

Unexplained investment in land u/s 69 - Survey under Section 133A - Reliance on statement recored in proceedings under Section 131(1A) - statement recorded on oath of Shri Natwarlal Haribhai Patel states that the assessee paid ₹ 45,00,000/- with document value plus ₹ 0.50 lakhs as stamp duty and registration charges - As submitted assessee has denied/retracted the statement made during the proceedings under Section 131(1A) - HELD THAT - The statements given by the parties were never cross-examined by the assessee at any point of time. The assessee in letter addressed to the AO has given a categorical intention of the Banakhat as the same is intended for Shri Bhupendra Trivedi to obtain VISA and cancellation thereafter as per the agreement dated 19.09.2009. The notarised Banakhat was not actual document which was signed by the assessee as per the contentions of the Ld. A.R. The statement made during the proceedings u/s 131(1A) was also retracted by the assessee as the assessee was not in a proper mind to give his statement as per contentions of the Ld. A.R. After taking all these contentions of the Ld. A.R./assessee, and after perusing the documents, it is seen that the consideration per bigha amounting to ₹ 41,00,000/- was never the intention of the assessee and the same was not paid by the assessee as observed by the Assessing Officer. The correct or the original consideration amount was properly placed before the AO. These documents were never taken into consideration by the Assessing Officer as well as by the CIT(A). Merely on the basis of statement of the assessee, which was later on retracted, the Assessing Officer has made an addition which is not a correct method of making any addition. Short term capital gain - addition u/s 50C - Additional statement that no co-owners were examined in the present case by the AO - HELD THAT - There is no evidence for adapting exorbitant price in respect of per bigha/per sq. mtr. In fact, section 50C of the Act did not entitle any value consideration in respect of the said transaction which was never finalised. As regards Short Term Capital Gain of ₹ 46,000/-, the Ld. A.R. submitted that the same is presumptive basis and, therefore, should have not been added. In respect of A.Y. 2011-12 the contentions of the assessee that no co-owners were examined by the Assessing Officer appears to be correct and thus, the Assessing Officer without taking cognisance of the evidences put up before him has made addition under Section 50C of the Act. Thus, ground no.1 is allowed. Regarding Ground no.2 relating to Short Term Capital Gain, the same is on presumptive basis and, therefore, ground no.2 is allowed

Summary

Issues:
- Addition of unexplained investment in land
- Denial of cross-examination opportunity
- Retraction of statement made under Section 131(1A) of the Act
- Alleged tax evasion petition and Banakhat

Analysis:

Issue 1: Addition of unexplained investment in land
- The assessment order for AY 2009-10 was passed, assessing the total income of the assessee at ?50,71,501, with an addition of ?45.50 lakhs as unexplained investment in land under Section 69.
- The CIT(A) dismissed the appeal of the assessee against this addition.
- The assessee contended that the Banakhat was an arrangement for obtaining a VISA and was later canceled, denying any undisclosed investment.
- The Tribunal found that the consideration of ?41,00,000 per bigha was not paid by the assessee, as claimed by the Assessing Officer.
- The original intention of the Banakhat was clarified by the assessee, and the retracted statement made under Section 131(1A) was considered invalid due to the assessee's health condition.
- The Tribunal held that the addition made by the Assessing Officer solely based on the retracted statement was incorrect, and the appeal of the assessee was allowed.

Issue 2: Denial of cross-examination opportunity
- The assessee was not provided with an opportunity for cross-examination of the Notary or complete statement during the assessment proceedings.
- The incomplete statement was given to the assessee, which was retracted immediately, indicating a lack of procedural fairness in the assessment process.

Issue 3: Retraction of statement made under Section 131(1A) of the Act
- The assessee retracted the statement made under Section 131(1A) citing health issues and being in an improper state of mind during the statement recording.
- The Tribunal considered the retraction valid, highlighting the importance of the mental state of the assessee during such proceedings.

Issue 4: Alleged tax evasion petition and Banakhat
- The tax evasion petition and Banakhat formed the basis of the assessment, with discrepancies between the stated consideration and the actual transaction details.
- The Tribunal found that the Banakhat was not signed by the assessee and was intended for a different purpose, leading to the conclusion that the addition of unexplained investment was unjustified.

In conclusion, the Tribunal allowed all the appeals of the assessee, emphasizing the importance of proper evidence, procedural fairness, and the mental state of the assessee in such tax assessment matters.