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TMI Blog2016 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... 3012/Ahd/2011 in the case of Shri Sendhabhai Desai and Rajulaben S. Doshi. 3. Brief facts of the case are that a search and seizure operation was carried out under section 132 of the Income Tax Act on the premises of Shri Gandaji Ambaram Thakor @ Makwana and others. Search was carried out on 15.10.2008. During the course of search, statement of Shri Gandaji A. Thakor, his sons and other family members were recorded under section 132(4) of the Income Tax Act. In their statement, they have disclosed that land bearing block no.648 situated in revenue state at Village Adalaj, Dist. Gandhinagar was sold by him vide sale deed executed on 11.8.2008. The sale consideration stated in the sale deed was of Rs. 53,51,520/-. The six appellants here in numbers here in these appeals were vendees. Shri Gandaji A. Thakor has disclosed that the land was actually sold for a consideration of Rs. 2.10 crores. He disclosed how the sale proceeds were utilized by him. The vendees i.e. appellants are the resident of Bhandu, Mehsana and Himatnagar. They have been filing the I.T. return with I.T. authority of their respective town. Since information came to the notice of department by virtue of search, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of appeal and prayed for condonation of delay. The ld.CIT(A) has rejected the contentions of the assessee on the ground that along with the appeal papers, the assessees have not filed application for condonation of delay. The affidavit of the clerk has been filed during the appeal hearing. The ld.CIT(A) was of the opinion that the application in proper format ought to have been filed along with appeal and the affidavit should have also been filed at that point of time. Since affidavit was filed on 6.5.2013, during the course of hearing, the ld.CIT(A) construed as if no reasonable cause has been demonstrated by the assessee. 5. With the assistance of the ld.representatives, I have gone through the record carefully. I find that in the case of Shri Sendhabhai Desai, the ld.CIT(A) has decided the appeals of two persons viz. Popatlal V. Patel and Mafatlal V. Patel. These persons have purchased the alleged agriculture land. The assessment orders were passed ex parte under section 144. In the case of Rajulben, it has been pleaded that she has been filing the return regularly at Himatnagar. She filed copies of I.T. returns and submitted that ACIT, Ahmedabad had no jurisdiction over her, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He passed an order dated 6.9.2010 derecognizing the entry passed by the Talati and Dy.Mamlatdar, Gandhinagar. The dispute with regard to the ownership of the land is still pending and the name of the assessees have not been entered into revenue record. The ld.counsel for the assessee further contended that prior to execution of sale deed in favour of the assessee, vendor Shri Gandaji Thakor has sold its land to three more persons with three separate sale deeds. The details have been submitted as under: Name of the purchaser Date of document Regn. No. Amount of Sale Hemendra Lilabhai shah 27.09.2007 12062 57,28,350/- Jayantibhai Gumaji Thakor 29.05.2008 9904 35,00,000/- Rajeshbhai J. Desai & Others 08.10.2007 12445 61,00,000/- 8. These dates were close to the purchase deed executed in favour of the assessee. The ld.counsel for the assessee further contended that the ld.CIT(A) has made reference to the statement of all the family members of Shri Gandaji A. Thakor recorded under section 132(4) of the Income Tax Act. But none of the vendors had made a mention of name of the assessees. He particularly took us through the statement of Gandaji Thakor and Jyantibh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that crossexamination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them." Accordingly, the ld.counsel for the assessee contended that there is no evidence with the Revenue which can suggest that the assessees have made payments, over and above, one stated in the sale deed. 9. On the other hand, the ld.DR relied upon the orders of the ld.CIT(A). He contended that the vendors are farmers. One son of the vendor was an auto-driver. They have no other source of income except sale of land. Thus, after evaluating their social background, the ld.AO has rightly arrived at a conclusion that whatever money came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How you related to him? A.3 Gandaji amaji is my uncle (mother's sister's husband) (masa) Q.4 Shri Gandabhai Amjibhai Thakor, Sendahaji Gandabhai Thakore and Sajanben Vechatji had sold the land of kalol Gandhinagar Approach Road. What you know about it. A.4 The land of kalol Gandhinagar Approach Road was sold by me. I had received brokerage for that. Q.5 In which amount that and was sold ? A.5 That Land was sold in amount Rs. 2,10,00,000 Q.6 How this payment was done of Rs. 2,10,00,000 and to whom this land you sold ? A.6 Gandabhai Amajibhai Thakore sold the land of Kalol Gandhinagar Approach Road to Bhavansinh Jalamsinh Champat. My name was taken for this transaction and I got commission for that. Particulars Amount Banakhat cash 7,00,000 Cash at the time of Dastavej 35,00,000 Given by 6 (six) cheques 53,00,000 Balance Cash 1,15,00,00 These six cheques were given by Bhavan singh to the person to whom the land has sold. Each cheque amount of Rs. 8,91,120/-. The remaining cash was given to Bhavan singh tome and I have given this cash to Gandabhai Thakore. Q.7. The land of kalol Gandhinagar Approach Road which was purchased by your name by saying of Bhav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... don't know where I spent. Q.6 Do you file Income Tax Return ? Have you paid the I.T. return of Rs. 2,10,00,000/- ? A.6 No, I haven't paid any I.T. Return. I haven't paid return on Rs. 2,10,00,000/- Q.7 If you haven't pay any return on the amount 2,10,00,000/- then amount should not be unaccounted income ? A.7. I haven't pay return on Rs. 2,10,00,000 and I declare it to be unaccounted income and I ready to pay return on it. Q.8. Are you keeping books ? A.8 No, I never keep books. Q.9 Do you know that the land (kalol Gandinagar approach road) which you sold. From that 8 k.m. radius land come under the municipal property ? A.9 Yes, I know tht 8 k.m. radius land comes in municipal property. Q.10 Have you sold this land (kalol Gandhinagar approach rod) even before another person ? If yes, then to whom and in how much amount and how the payment is made ? A.10 Yes, I sold this land even before through Abbasbhai and for this I got cash Rs. 7,00,000 Q.11 Mr.Hemendrabhai shah to whom sold the land through Mr.Abbasbhai. He (Mr.Hemendrabhai shah) told in his statement that he paid in cash Rs. 57,00,000/- in the present of Mr.Abbasbhai and Mr.Prajapati. What you want say a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay I.T. return on that amount. I don't want to say more than it. 11. A perusal of these statements would indicate that nowhere they have made reference to the sale deed made to the assessees. They have nowhere made reference to the names of any assessees. This fact has to be seen in the light that this very land was sold at three occasions. First on 27.9.2007 to one Shri Hemendra Lilabhai Shah vide registration no. 12062 which was sold for a consideration of Rs. 57,28,350/-. The next sale deed dated 29.5.2008 for Rs. 35 lakhs and the next sale deed is dated 8.10.2007 for a consideration of Rs. 61 lakhs. All these sale deeds are within one year of the transaction done with the assessees. The ld.AO has not prepared a flow chart indicating the date of investment made by these persons in the LIC or purchase of new house vis-à-vis the sale deed executed by the assessee. The sale deed of the assessee executed on 11.8.2008 and search was taken place on 15.10.2008 i.e. just within two months. It was not ascertained by the AO, whether the house was constructed within months by incurring expenses of Rs. 11 lakhs. Whether the land for construction of house was purchased in betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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