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TMI Blog2015 (12) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Vivek Patel, shows that the same has been executed by one of the sellers in favour of Vivek Patel in relation to one of the plots purchased by the assessee, but, significantly, such power-ofattorney has been found to be from the possession of the seller and not from Vivek Patel. Therefore, there is no material on record that prior to the search, Vivek Patel acted upon such power of attorney so as to establish a link, howsoever tenuous, between the assessee and Vivek Patel. As noticed earlier, the assessee has denied having paid any more consideration than that reflected in the sale deed executed in his favour. Vivek Patel has denied having paid any consideration to the sellers pursuant to the agreement to sell. The revenue has failed to bring any reliable material to establish payment of consideration by Vivek Patel to the sellers or to establish any link between the assessee and Vivek Patel, who have both asserted that they did not know each other prior to the search. Under the circumstances, on the evidence which has come on record, the revenue has failed to establish that any higher consideration has been paid by the respondent assessee in connection with the sale deeds execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the place mentioned therein was to be sold to Vivek Prahladbhai Patel by Shri Somabhai Ambalal Prajapati at the rates mentioned in the banachitthi. The said document was duly signed by Shri Vivek Prahladbhai Patel which had been acknowledged by him in his statement recorded on 24th December, 2009. Details of the plots of land recorded in the Banachitthi are reproduced as under:- Block No. Survey No. Sharat Sq.mt 540 515 Old Sharat 11432 487 471 New Sharat 11938 497 476, 477, 482 New Sharat 31566 504 488 New Sharat 27822 494 473/2 Old Sharat 4097.5 509 487, 497 New Sharat 32729 500 480 Old Sharat 8296 502 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed amount of more than ₹ 13,00,00,000/- (Rupees thirteen crores) towards sale of plots of land at Bhadaj as per the banachitthi from the purchasers, that is, Ajay S. Patel and Dhirubhai Amin and that the respondent assessee had made undisclosed investments in assessment years 2007-08, 2008-09 and 2010-11. According to the Assessing Officer, the assessee had paid an aggregate amount of ₹ 7,10,22,110/- during the assessment year 2006- 07 and had failed to explain the source of the same. Since the documented price of Block No.509, 500, 494, 504 and 510 was ₹ 58,11,901/-, the Assessing Officer treated the difference of amount of ₹ 6,52,10,209/- as the deemed income of the assessee under section 69 of the Act. For similar reasons, he made an addition of ₹ 1,91,00,780/- for assessment year 2008-09 and ₹ 73,30,069/- for assessment year 2010-11. The assessee carried the matter in appeal before the Commissioner (Appeals), who allowed the appeal by recording the following reasons:- 19.When the present case is examined in view of this legal and factual position, it is found that (i) Appellant is not a party to banakhat dtd. 18/1/2005. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had not passed any separate order on the objections raised by the assessee. 5. By the impugned order, the Tribunal dismissed the appeals filed by the revenue and allowed the cross-objections filed by the assessee. 6. Mrs. Mauna Bhatt, learned senior standing counsel for the appellant, invited the attention of the court to the facts of the case to submit that a banachithhi (an agreement to sell) executed by the sellers in favour of Vivekbhai Prahladbhai Patel had been found during the course of the search proceedings. In their statements recorded under section 131 of the Act, the sellers had categorically stated that they had received the entire amount of consideration in terms of the seized documents and that the sale deeds have been executed in favour of the assessee at the instance of Vivekbhai Prahladbhai Patel. It was submitted that the sellers have clearly stated that the amounts in question have been paid by a person of Vivek Patel. That the evidence on record clearly shows that Shri Vivek Patel agreed as per agreement dated 18th January, 2005 and paid further amount due and therefore, acquired the right to deal with the land. It was submitted that the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions of Vivek Patel. Vivek Patel was given a power-of-attorney by Vishnubhai Prajapati on 18th June, 2009 whereby Vivek Patel was deputed to do necessary paper work required for transfer of land. It was submitted that having regard to the fact that the power-of-attorney was executed prior to the search, the version given by the respondent assessee that he did not know Vivek Patel prior to the search is belied. It was submitted that the evidence on record clearly shows the particulars of the land in question in terms of the seized documents, and accordingly, there is a huge difference between the amount stated in the sale deeds and the seized documents which makes it evident that the differential amount has been paid by way of on-money by the respondent assessee. Therefore, the Assessing Officer was wholly justified in making substantive addition in the hands of the respondent assessee as he was the main beneficiary under the agreement to sell. It was, accordingly, urged that the appeals deserve to be admitted on the questions as proposed or as may be deemed fit by this court. 7. Opposing the appeals, Mr. S.N. Soparkar, Senior Advocate, learned counsel for the respondent assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent findings of fact recorded by it after appreciation of the evidence on record. It was submitted that neither has any perversity been pointed out in the findings of fact recorded by the Tribunal, nor has any question been proposed to the effect that the findings recorded by the Tribunal are perverse. Under the circumstances, the impugned order being based upon findings of fact recorded by the Tribunal does not give rise to any question of law. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of K. Ravindranathan Nair v. Commissioner of Income-tax, (2001) 247 ITR 178, for the proposition that it is a cardinal principle that it is the Tribunal which is the final fact-finding authority. A decision on facts of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts is perverse in the sense that it is such as could not reasonably have been arrived at on the material placed before the Tribunal. In the facts of the said case, no such question had been raised before the High Court. The Supreme Court held that unless and until a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h higher than that reflected in the sale deeds executed in favour of the assessee. The Commissioner (Appeals), after appreciating the evidence on record, held in favour of the assessee. The Tribunal concurred with the findings of fact recorded by the Commissioner (Appeals) and held as follows:- 15. We find that it is not in dispute that the assessee was not a party to the seized agreement of sale [Banachitthi] which was the basis of making the entire addition. We find that it is not in dispute that the said agreement of sale does not bear the signature of the assessee. Further, we find that nowhere in the statement recorded of sellers, sellers have stated that they have received any money from the assessee which was more than the amount they acknowledged to have received from the assessee in respect of sale of land in question from the assessee. The sellers in their statements have claimed that they received the money from Shri Vivek Patel only and not from the assessee. The revenue could not bring any material on record, after making inquiry with said Shri Vivek Patel to show that the assessee paid actually any amount more than the amount stated in the registered Deed of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, but, significantly, such power-ofattorney has been found to be from the possession of the seller and not from Vivek Patel. Therefore, there is no material on record that prior to the search, Vivek Patel acted upon such power of attorney so as to establish a link, howsoever tenuous, between the assessee and Vivek Patel. As noticed earlier, the assessee has denied having paid any more consideration than that reflected in the sale deed executed in his favour. Vivek Patel has denied having paid any consideration to the sellers pursuant to the agreement to sell. The revenue has failed to bring any reliable material to establish payment of consideration by Vivek Patel to the sellers or to establish any link between the assessee and Vivek Patel, who have both asserted that they did not know each other prior to the search. Under the circumstances, on the evidence which has come on record, the revenue has failed to establish that any higher consideration has been paid by the respondent assessee in connection with the sale deeds executed in his favour by the sellers in respect of the plots of land in question. 13. In the opinion of this court, having regard to the evidence which has c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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