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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 ..... ach hands of the assessees in the Asstt.Year 2008-09 (except from the hand of Manibhai V. Patel, because status of his appeal is not available at this stage) and in the Asstt.Year 2009-10. - Decided in favour of assessee - ITA No.482/Ahd/2012, ITA No.593, 594, 595, 596/Ahd/2013, ITA No.2722/Ahd/2011, ITA No.3012/Ahd/2011, ITA No.1974/Ahd/2013, ITA No.2723/Ahd/2015, ITA No.1973/Ahd/2013, ITA No.3011/Ahd/2011, ITA No.483/Ahd/2012, ITA No.484/Ahd/2012 - - - Dated:- 14-6-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER For The Assessee : Shri Sunil H. Talati, AR For The Revenue : Shri Rakesh Jha, Sr.DR ORDER This bunch of 13 appeals of different assessees contain common issues of law and facts, therefore, heard them together, and I deem it appropriate to dispose of them by this common order. 2. ITA No.2723/Ahd/2015 and 2722/Ahd/2011 have arisen out of the penalty proceedings initiated against assessees under section 271(1)(c) of the Income Tax Act, 1961. Rest of eleven appeals arose from the assessment orders passed under sections 143(3)/144/153C of the Income Tax Act. Though the facts on all vital points are common, therefore, for the facility of reference, I am tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the addition came to each hand has been worked out at ₹ 3,44,417/-. Appeal to the ld.CIT(A) did not bring any relief to the assessee. The appeal of Manibhai V. Patel for Asstt.Year 2008-09 is not listed before me. The ld.counsel does not know the status of the that. 4. It was brought to my notice that ITA No.1974/Ahd/2013 and ITA No.1973/Ahd/2013 filed by Rajulaben Doshi and Ashokbhai C. Modi were time barred before the ld.CIT(A) by five and half months. These appeals have been dismissed by the ld.CIT(A) on account of barred by limitation. In order to explain the delay, it was contended by the assessee that they have handed over their income-tax proceedings to one A.B. Shah Co., Chartered Accountants on receipt of assessment orders in the month of December, 2011. They have handed over the orders to Shri Rajen Maheshchandra Dalvadi, who was working as clerk in the firm of A.B. Shah Company. Shri Rajen M. Dalvadi has placed these assessment orders with other records. When other proceedings were going on it came to the notice of the assessees that their appeals were not filed. The assessees immediately got the appeal filed, but by the time, they were delayed by five-and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the procedural norms, appeals deserve to be set aside to the file of the ld.CIT(A) for adjudication on merit, but since a common issue, which is similar on merit, is involved in all other appeals, where arguments have been advanced by the ld.representatives, I proceed to decide these appeals also on merit here in the Tribunal itself. 7. On merit while impugning the orders of the ld.CIT(A), the ld.counsel for the assessee raised two fold submissions. In his first fold of submissions, he pointed out that vendees were residing at Mehsana and Himatnagar. They have purchased land at Village Adalaj through broker Shri Hargovanbhai Ishwarbhai Desai who was residing at Petrol Pump, Adalaj and second broker is Dudhaji Ajaji Thakor residing at Adalaj. These brokers have identified the land, and they have apprised the vendors to accept sale consideration through account payee cheque. The assessee have purchased the land vide sale deed dated 11.8.2008. They have submitted the documents for change of mutation in their names in the revenue record. The Talati , Adalaj Gram Panchayat has recorded their names as purchaser and owner of the land. However, this order dated 27.7.2009 was ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to crossexamine the person who has given misleading information to the Income Tax Department against me. I am trying to extend my full cooperation for completion of the time barring assessment and I will remain present within a day or two. Inconvenience caused is very much regretted. Thanking you, Yours faithfully, Sd/- Sendhabhai Madanbhai Desai He contended that opportunity to cross-examine was not given. On the strength of Hon ble Supreme Court decision in the case of Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata in Civil Appeal No.4228 of 2006, he contended that these evidences ought to be excluded from consideration. Copy of the Hon ble Supreme Court decision dated 2.9.2015 has been placed on record. Relevant part of the judgment reads as under: According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statement of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing such clinching inference, the ld.AO failed to appreciate the overall circumstances. The ld.CIT(A) has made reference to the statement of five persons made under section 132(4) of the Income Tax Act. These persons are Shri Gandaji Ambaram Thakor, Ranjitbhai Vechatji Thjakor, Dineshji V. Thakor, Sajjanben V. Thakor and Jayantibhai G. Thakor. Their statements have been recorded on 15.10.2008. It is also pertinent to mention that in the sale deed executed on 11.8.2008, Shri Gandaji A. Thakor was the main vendor. Thereafter, other persons have put their signatures as confirming parties. The confirming parties are Vinaben, Harkhaben and Geetaben daughters of Gadaji Ambaram. If we look on the names of the persons, whose statements have been referred by the ld.CIT(A), then it would reveal that out of five persons, three are not vendors of the assessee viz. Ranjibhai V. Thakor, Dineshji V. Thakor and Smt.Sajjanben V.Thakor. They were not signatories of the sale deed even as a confirming parties. Then, out of five persons, whose statements have been referred, one is vendor viz. Shri Gandaji A. Thakor and other one Shri Jayantibhai G. Thakor who had acted on behalf of Gandaji Thakor. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y gandabhai from Khushaldasbhai 13,00,000 Post Office a/c byname of 4 person (sendhaji, minaben, rajitbhai) 10,95,000 Build New house and two temple 11,00,000 Given to two Daughter 2,00,000 One cheque return from 6 check 8,97,920/- Statement of Gandabhai A. Thakore Q.1 Give your full introduction A.2 My name is Gandaram Ambaram Thakor. Age : 62 years, Education: 5th Standard, Address: Mahadev Vas Adalaj. Q.2 What is your source of income ? A.2 I mostly earn by farming and income of bufalo s milk. Q.3 Give me introduction about your family. A.3 My family member includes following members: My son sendhaji, sister-in-law Minaben, their two children and Gitaben is living with her daught. Q.4 Whether you sold any land in the year 2008 ? If you sold, to whom and in which amount you sold that land ? How the payment was made ? A.4 Yes. In the year 2008, I sold land of Kalol- Gandhiangar Approach Road to Mr. Bhavansingh Jalamsinh Champavat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (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 ₹ 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 ₹ 57,00,000/- in the present of Mr.Abbasbhai and Mr.Prajapati. What you want say about this statement ? A.11 I have given Power of Attorney to Mr.Abbasbhai. He (Mr.Abbasbhai) given me only 7,00,000 cash and the remaining amount 50,00,000 I didn t get from him so the land was not title cleared. I filed the objection petition for that. Q.12 You have given the power of attorney to Abbasbhai, that s mean whether the amount of ₹ 57,00,000 given to you or Mr.Abbasbhai is same. What you want to say about this ? A.12 Yes, I agree that if this amount ₹ 57,00,000 got me or Mr.Abbasbhai is same. Q.13 This amount of ₹ 57,00,000 is accounted income. You want declare that or not ? Mr. Hemdnrabhai shah told in his statement that he paid in cash ₹ 57,00,000 and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 8.10.2007 for a consideration of ₹ 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- -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 ₹ 11 lakhs. Whether the land for construction of house was purchased in between this period ? It is also not discernible when agreement to sell was executed, because, receipt of cash was also alleged at that stage. All these facts have not been considered by the AO. He simply took the statement of Gadaji A. Thakor as a gospel truth. That can be starting point of an inquiry, but all other corroborative evidences ought to have been collected by the AO. Apart from this, the assessee in the case of Sendhabhai Desai filed written submissions before the ld.CIT(A) and highlighted that he has asked for an opportunity to cross-examine. That was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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