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TMI Blog2016 (7) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... dy held this assessee to have paid the entire purchase consideration of ₹ 83,13,850/- in question forming subject matter of the impugned unexplained investment addition made u/s.69 of the Act. The same stands confirmed. - Decided against assessee. - ITA. No.2272/Ahd/12 - - - Dated:- 11-7-2016 - SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Shri P. F. Jain, A.R. For The Revenue : Shri Shiv Sewak, Sr. D.R. ORDER PER S. S. GODARA, JUDICIAL MEMBER This assessee s appeal for assessment year 2009-10, arises from order of the CIT(A) - XXI, Ahmedabad, dated 17.09.2012 passed in proceedings u/s.143(3) of the Income Tax Act, 1961, hereinafter the Act . 2. The assessee s sole substantive ground challenges the CIT(A) s order affirming Assessing Officer s action making Section 69 addition of unexplained investments in purchase of agricultural land amounting to ₹ 83,13,850/-. 3. We come to relevant facts first. This assessee along with one Shri Girish Ramanlal Vyas purchased agricultural land admeasuring 2 hectares 23 acres and 56 sq.mtrs. in Khata no.745, Survey No.1036, Village Kathwada, Taluka Dasc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 83,13,850/-. c) That the AO has observed that the assessee is the first party of the stated purchase deed. d) That during the course of assessment proceedings, the AO had summoned the assessee as well as other co-owner Shri Girish Ramanlal Vyas u/s. 131 of the Act and recorded the statement of both the co-owners. Under oath, the assessee has submitted before the AO that the entire purchase price of ₹ 78.5 lacs with stamp and registration charges was paid by Shri Girish Ramanlal Vyas alone. e) That the AO, while recording the statement of Shri Girish Ramanlal Vyas, also observed question No.5 that Shri Girish Ramanlal Vyas submitted under oath that he paid only ₹ 11 lacs as a token money. Shri Girish Ramanlal Vyas also submitted under oath that stamp duty and registration expenses were incurred equally by both the purchasers and the document for registration were purchased in cash (refer question No.6 of the statement). Shri Girish Ramanlal Vyas also submitted under oath that out of a total token payment of Rs.ll lacs, 50% was paid by the appellant in the same way, 50% amount of stamp duty and registration charges were paid by the appellant. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and registration charges. It is pertinent to point out that this affidavit has been executed before the return of income filed by the assessee was selected for scrutiny because the date of notice issued u/s 143(2) is 20-08-2010 whereas the date of affidavit is 22-06- 2010.When the affidavit was executed the assessee did not have any information in advance that in the month of August, 2010 his return will be picked up for scrutiny. The learned I.T.O in Para 9(H) page 18 of the assessment order has given various dates to prove the allegation of escapement of taxation liability by the assessee but these facts that affidavit was executed much prior to the date of scrutiny proceedings has been totally ignored because these facts dispel the theory of afterthought and negates the allegation of tax avoidance against the assessee. By this documentary evidence the burden of proof on the assessee that no investment has been made by him is fully discharged. 4. The assessee has came to know that the assessment of Shri Girish Ramanlal Vyas having PAN:ABIPV 5929R for A. Y.2009-10 has also been passed under scrutiny and from the said assessment order it is noticed that same addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is document it has been specifically mentioned that the document No. 11870 dated 29-09-2008 was not implemented since beginning and no possession of the land was given to the purchasers and the earlier deeds executed are hereby cancelled. It may kindly be noted that this deed dated 30-06- 2010 has also taken place prior to the initiation of scrutiny proceedings which has taken place in the month of August.2010. 7. It is also relevant to point out that Special Suit No 474/2008 was filed on 23-10-2008 as mentioned above. Pursuant This Suit filed by the original land lord Shri Ranchodbhai Bhalabhai Patel and others against (1) Shri Bijalabhai Khengarbhai Rabari and(2) Desai Melabhai Gokabhai the Court has issued notice of hearing dated 23-10-2008 fixing hearting on 06-11-2008. Further Court has also appointed Court Commissioner which has visited the site and the court commissioner has given report on 26-10-2008 that the land under Suit is in possession of Ranchodbhai Bhalabhai and others and have pointed out that the opposite parties has not attended or remained present on the site and accordingly this panchnama was recorded. 8. All these legal proceedings has taken place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order, paper-book along with other evidences filed by the appellant and material on record, lam not inclined to agree with the contentions of the appellant because of the following reasons: (a) The fact of cash payment of ₹ 78.5 lacs as mentioned in the sale deed in column No. 4 on page No.l 2 13 is clear and overwhelming. Such cash consideration has been received and the possession of the property has been handed over which is also accepted by the purchaser as per this registration document. (b) The submission of the appellant in the entire sale deed has been cancelled subsequently and a police complaint lodged, the affidavit is made just to favour the appellant and therefore statement recorded u/s. 131 of the Act is true and correct and final and is devoid of merits as it is contrary to facts mentioned in purchase deed and as well as affidavit filed by Shri Girish Ramanlal Vyas. It may be noticed that the facts in the affidavit by Shri Girish Ramanlal Vyas are completely in variance to the facts submitted under oath before the AO. (c) The plea of the appellant that substantive additions have already been made in the case of Shri Girish Ramanlal Vyas a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land purchased or in the consideration money. The assessee and his co-vendee adopted mutually contradictory stands so as to evade the burden of explaining source of the gross investment amount. There can be hardly any dispute that this explanation was source of the investment in question has no bearing with the fact that the above stated sale deed stood cancelled later on for any reason; whatsoever. We reiterate that it s a registered sale deed carrying presumption of truth. We are of the opinion that the assessee s first argument that the sale deed cancellation renders the entire issue infructuous is devoid of merits. The same stands rejected. 7. We come to assessee s subsequent argument now that it is his copurchase as per his affidavit dated 22.06.2010 followed by substantive assessment in his case which makes impugned addition in his hands as not sustainable. We disagree with these contentions. We have already narrated in preceding paragraph that assessee s co-purchaser has taken many selfcontradictory stands so far as payment of the actual sale consideration is concerned (supra). Both the lower authorities have elaborately appreciated the relevant facts as extracted herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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