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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 ..... he learned counsel for the appellant, despite strenuous efforts, is not in a position to point out any perversity in the findings recorded by the Tribunal. Under the circumstances, in the absence of any material to the contrary being brought to the notice of the court so as to dislodge the findings of fact recorded by the Tribunal, the impugned order of the Tribunal being based upon concurrent findings of fact recorded after appreciating the evidence on record, does not give rise to any question of law - Decided in favour of assessee. - TAX APPEAL NO.679 of 2015, TAX APPEAL NO.680 of 2015, TAX APPEAL NO.681 of 2015 - - - Dated:- 6-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE APPELLANT : MRS MAUNA M BHATT, SR. STANDING COUNSEL FOR THE RESPONDENT : MR SN SOPARKAR, SR. ADVOCATE COMMON ORAL ORDER (PER : HONOURABLE MS. JUSTICE HARSHA DEVANI) 1. These appeals under section 260 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) arise out of the common order dated 9th January, 2015 passed by the Income Tax Appellate Tribunal, C Bench, Ahmedabad (hereinafter referred to as the Tribunal ) in ITA Nos.128/Ahd/2013, 129/Ahd/2013 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land (old tenure land) was fixed at ₹ 29,51,000/- while the rate of navi sharat land (new tenure land) was fixed at ₹ 21,85,000/-. The Assessing Officer noticed that the plots referred to in the agreement to sell were not transferred by the sellers as agreed therein. Thus, the statement of Shri Somabhai Ambalal Prajapati was recorded under section 131 of the Act wherein he clarified that plots bearing No.502, 505, 540, 497 and 487 were disputed and could not be transferred due to pending civil suits and that in place of those plots, plots bearing No.512A, 512B, 510 and 513, which are in the same vicinity, at Bhadaj were transferred to the persons specified by the respondent assessee. It was further the case of Somabhai that they had already received the consideration in terms of the banachithi and, therefore, were under an obligation to transfer the lands to the respondent assessee. The Assessing Officer made an addition of ₹ 3,25,50,000/- under section 69 of the Act for assessment year 2005-06. Similar additions were made in relation to assessment years 2006-07 and 2007-08. The respondent assessee carried the matter in appeals before the Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.02 crores in cash from appellant as per the terms of banakhat the burden on appellant was very heavy to prove that statement of Shri Somabhai is not correct. Appellant was also allowed opportunity for cross examination of Somabhai but even from this cross examination appellant has not been able to prove that statement of Shri Somabhai is false. Under these circumstances and in view of reasons given by AO in detail in the assessment order, I hold that AO has rightly concluded that sum of ₹ 3,25,50,000/- was paid by appellant on 18/1/2005 and 20/1/2005 to Shri Somabhai Prajapati, which period falls during A.Y. 2005-06. Addition of 3,25,50,000 u/s. 69 is justified in such a situation and the same is confirmed. Ground No.3 of the appeal is dismissed for A.Y. 2005-06. 5.10 Similarly, ground no.2 of the appeal for AY 2006- 07 and 2007-08 are also dismissed. Additions of ₹ 6,51,00,000/- for AY 2006-07 and ₹ 3,25,50,000/- for AY 2007-08 are confirmed. The assessee went in appeal before the Tribunal. By the impugned order, the Tribunal held that insofar as assessment year 2005-06 is concerned, the agreement proves that ₹ 11,00,000/- had been paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence or coercion had been used by the income-tax authorities. Ms. Bhatt submitted that Somabhai Prajapati having clearly stated in his statement under section 132(4) of the Act that the on-money to the extent stated in the agreement to sell had been received through the person of the assessee, the Tribunal was not justified in holding that sufficient evidence had not been produced on record by the revenue. Reliance was also placed upon the decision of the Kerala High Court in the case of Commissioner of Income Tax v. P.M. Aboobacker, (2014) 107 DTR 383 (Ker), wherein one Mr. Noushad had declared the income from sale of property and had paid the tax and the question before the court was whether when these materials were available, could it be said that the revenue had not proved their case? The court found that if the assessee wanted to disprove the evidence given by Mr. Noushad, it could have proved otherwise by giving some evidence to show the market value of the land in the locality. No such evidence was adduced by the assessee. The court held that, therefore, this was a case in which the revenue has to prove the existence of a fact that undervaluation was made by the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement and not on the petty amount shown in the documents with the buyers. It was submitted that thus the revenue has clearly made out a case that the assessee had paid consideration to the sellers in terms of the agreement to sell, whereas the assessee had failed to discharge the onus of rebutting this evidence. 4.2 Next, it was submitted that over and above the material referred to hereinabove, a notarised power-ofattorney dated 18th June, 2009 was impounded during the course of search, which shows that Shri Vishnubhai Ambalal Prajapati (one of the sellers) had empowered the assessee to carry out necessary legal matters in connection with the sale of Block No.513 which was sold to Ajay Patel. It was submitted that this clearly shows the prior relationship between the assessee and Ajay Patel even before the date of search. It was, accordingly, contended that the revenue through overwhelming evidence has duly established the payment of on-money to the sellers by the assessee, under the circumstances, the Assessing Officer was wholly justified in making protective assessment in his hands and that the Tribunal was not justified in setting aside the order passed by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory statements made by the vendor or whether reliance may be placed on the loose sheets recovered in the course of the raid are all questions of fact and accordingly dismissed the appeal. Reliance was also placed upon unreported decisions of this court in the case of I.T.O. v. Bharat A. Mehta, rendered on 3rd February, 2015 in Tax Appeal No.429/2000 and allied matters and in the case of Dy. C.I.T. (Asstt.) v. Prarthana Construction Pvt. Ltd. rendered on 25th March, 2011 in Tax Appeal No.79/2000, wherein the court had recorded that in the absence of anything being pointed out to show that the findings recorded by the Tribunal are in any manner perverse, the order of the Tribunal being based upon findings of fact recorded by it upon appreciation of the evidence on record, did not give rise to a question of law. Reliance was also placed 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 referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected in the agreement to sell. A power-of-attorney executed by Vishnubhai Prajapati in favour of the assessee in relation to one of the plots sold to Ajay Patel permitting him to take necessary steps for entering the name of Ajay Patel in the revenue record is stated to be the link between Ajay Patel and the assessee Vivek Patel. In fact, it has been strenuously argued that the power-of-attorney duly establishes the fact that the assessee knew Ajay Patel even prior to the date of the search and, therefore, the submission that the assessee did not know Ajay Patel prior to the date of search is incorrect. A perusal of the power-of-attorney executed by Vishnubhai Prajapati in favour of the assessee indicates that the same only empowers him to carry out necessary procedures with the Government office for transferring the property in the name of Ajay Patel. However, such power-of-attorney has been found in the possession of Vishnubhai Prajapati and not in the possession of the assessee Vivek Patel. Moreover, no material has been brought on record to demonstrate that such powerof- attorney was ever acted upon by the respondent assessee. Evidently, therefore, no material has been brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2005-06. 8. For the reasons stated hereinabove, this court is in complete agreement with the findings recorded by the Tribunal upon appreciation of the evidence on record and finds no reason to take a different view. In the opinion of this court, having regard to the evidence which has come on record, which reveals that there is an agreement to sell executed between the assessee and the sellers, which shows the price of the plots of land in question to be a much higher figure than the documented price and the fact that the sellers have stated that they have received higher amounts by way of on-money and have also shown receipt of such amount in their incometax returns, the circumstances do raise a suspicion. However, as held by the Supreme Court in Commissioner of Incometax v. Daulatram Rawatmull, (1964) 53 ITR 574 (SC), even if circumstances raise a suspicion, suspicion cannot take the place of evidence. 9. In the light of the above discussion, it is evident that the conclusion arrived at by the Tribunal is based upon findings of fact recorded by it upon appreciation of the evidence on record. The learned counsel for the appellant, despite strenuous efforts, is not in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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