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TMI Blog2015 (12) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition of Rs. 3,14,51,000/- out of Rs. 3,25,50,000/- made on account of unexplained investments u/s. 69 of the Act? (2) Whether the Ld. ITAT is right in law and on facts of the case by not appreciating that there was an agreement to sell between the assessee and the seller dated 18.01.2005 which is a valid document giving specific dates of payment to be made by the assessee? (3) Whether the Ld. ITAT is right in law and on facts of the case by not appreciating that the assessee was given an opportunity of cross examination on 14.08.2012, however he failed to avail the opportunity and thus could not prove that the MOU was cancelled? (4) Whether the Ld. ITAT is right in law and on facts of the case by not appreciating that the seller Shri Somabhai Ambalal Prajapati in his statement recorded under section 132(4) of the Act admitted to have received the sale consideration from the assessee and he had disclosed the sale consideration as per the rates mentioned in banachithi and offered capital gains on the same as per the share held by them in the land sold consequent to banachithi? (5) Whether the Ld. ITAT is right in law and on facts of the case by not appreciating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these deals was received by him but civil disputes were going on in respect of certain plots of land. Hence separate sale deeds were executed at the same rates for different plots of land even though the same were not included in the original agreement. He clarified that the sale deeds were executed in the names of persons which were suggested by appellant. He also clarified that cash was received from time to time from appellant through one of his person. The entire amount of cash was received by April, 2006 and the appellant took the confirmation on phone regarding receipt of cash. He also stated that the sale deeds were executed in the name of Shri Ajay Patel. The deeds were prepared by advocates of appellant and his signatures were taken in the presence of sub-registrar. Whenever these documents were executed, the respective amounts were returned back to the appellant in cash and in this manner the adjustments were internally settled. 5.8 The appellant on the other hand, has tried to argue that since he is not the ultimate buyer, he did not pay any cash to Somabhai and statement of Shri Somabhai is false. It is observed that the original agreement to sell or the banakhat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior standing counsel appearing on behalf of the appellant in each of the appeals assailed the impugned order by submitting that it is an admitted position that the agreement to sell had been executed between the sellers and the respondent-assessee namely, Vivek Prahladbhai Patel. It was submitted that Somabhai in his statement recorded under section 131 of the Act has clearly stated that on-money had been received by him to the extent stated in the agreement to sell from the respondent assessee. A power-of-attorney had been executed in relation to one of the plots by the seller in favour of the assessee for taking steps for entering the name of the ultimate purchaser namely, Ajay Patel in the Government records. It was submitted that the assessee had been given opportunity to cross-examine Shri Somabhai Patel so as to dislodge the statements made by him. He, however, did not avail of the opportunity of cross-examination granted to him. Under the circumstances, the statement of the seller Shri Somabhai Patel recorded under section 132(4) of the Act has gone unrebutted. Reliance was placed upon the decision of the Delhi High Court in the case of Malik Brothers (P) Ltd. v. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue has clearly, on the basis of the seized documents and the statement of Somabhai Prajapati, proved the existence of the fact that undervaluation was made at the time when the sale deeds came to be executed. It was submitted that, therefore, the Tribunal has failed to appreciate the evidence on record in proper perspective. 4.1 Reliance was also placed upon the decision of the Delhi High Court in the case of Commissioner of Income Tax v. Jai Pal Aggarwal, (2013) 212 Taxmann 1 (Delhi), for a similar proposition of law. Reliance was also placed upon the decision of the Madras High Court in the case of Commissioner of Income Tax v. K. Dadakhan, (2003) 182 CTR 469 Mad. It was submitted that on the evidence which has been brought on record viz., the agreement to sell dated 18th January, 2005 is a valid document and a precise one giving specific dates of payment to be made by Vivek Patel; the assessee's claim of having cancelled the agreement is not supported by any further cancellation agreement which should normally have been available with the seller and should have been found during the search; the fact of cancellation had not been accepted by the seller Somabhai Prajapati in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As per the agreement to sell, the assessee was to purchase nine plots of land from the three brothers namely, Somabhai Prajapati, Vishnubhai Prajapati and Chandubhai Prajapati, but not a single plot was ever purchased by the assessee. It was submitted that the agreement to sell was never acted upon and that in fact even the cheque for a sum of Rs. 11,00,000/- which had been handed over to the land owners at the time of execution of the agreement of sell was received back by the assessee and was cancelled. It was submitted that the respondent assessee had never acted upon the agreement to sell and that on the mere statement made by SomabhaI Prajapati to the effect that he had received money from the assessee, it could not be said that revenue has established by way of evidence the payment of on-money on the part of the assessee. It was submitted that when no sale deed has been executed in favour of the respondent, there was no reason as to why he would make payment of such a huge amount more so, when there was no relationship between him and the ultimate buyer - Ajay Patel to whom the plots of land which were agreed to be sold to the assessee, were eventually sold. It was pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the finding of fact reached by the Tribunal and to give an answer to the question of law that is before it. It was submitted that the above decision of the Supreme Court would be squarely applicable to the facts of the present case as no question has been raised challenging the impugned order on the ground of perversity. It was, accordingly, urged that the appeals being thoroughly devoid of merits, deserve to be dismissed. 6. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the record and proceedings of the case. The facts as emerging from the record reveal that an agreement to sell came to be found during the course of search at the premises of the Prajapatis. Such agreement to sell was executed between the three Prajapati brothers and the respondentassessee namely, Vivek Patel. As per the statement of Somabhai Ambalal Prajapati recorded under section 132(4) of the Act, the entire consideration in terms of the agreement to sell had been paid by a person/representative of the assessee. However, a perusal of the record of the case shows that no further details have been stated by Somabhai as to who was the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on record to substantiate the factum that the lands were sold to Ajay Patel at the instance of the assessee as claimed by Somabhai Prajapati. The Tribunal has further noted that Shri Somabhai in his statement has stated that the amount received by him from the actual purchasers at the time of execution of sale deed was returned by him to the assessee; however, no material was brought on record to show that the sale consideration received by Somabhai Prajapati was paid to the assessee. The Tribunal found that according to Somabhai Prajapati while the agreement to sell was for nine specific plots, subsequently three plots bearing No.540, 487 and 497 were exchanged in place of plots bearing No.512, 510 and 513; but no material had been brought on record to show that there was an agreement with the assessee for such exchange of plots. The Tribunal was of the view that in the absence of any such material, it cannot be assumed that the statement of Somabhai Prajapati was sacrosanct and not a self serving statement more so, when the alleged amount which he claimed to have received was claimed by him as non-taxable receipt being exempt under section 54B of the Act. Upon appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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