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TMI Blog2017 (2) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... Once we have held the same to be not supported by any evidence, the relevant terms therein cannot be relied upon. We accordingly reject assessee’s contention. Assessee's next argument that AO ought to have summoned the vendors in question in case he had any doubt about the banakhat in question finds no merit in this plea as well as the said vendors had already paid the amount in question to the assessee. They hardly had any further explanation to make in view of their action making the payment in question to the assessee. We further make it clear that there is no dispute about the fact as to whether or not the assessee has received the payment or not but the issue herein is about genuineness of his claim of having executed the banakhat dated 16.12.1986. We thus reject instant argument as well. We are of the opinion in given facts of the case that it is not the sale deed which is in dispute but the issue herein is about genuineness of assessee’s claim to have entered into the above stated banakhat dated 16.12.1986. Assessee contention that AO had erred in rejecting assessee’s explanation on the ground that the above stated banakhat was not a registered document is rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved therein under the provisions of the Act. 3. The case file indicates that the Assessing Officer s order dated 27.12.2011 rejected the abovestated pleas. He first of all observed that assessee s banakhat dated 16.12.1986 was not a valid document being an unregistered instrument. He then took note of the fact that the assessee had not filed any details of advance payment of ₹ 5lacs so as to prove transfer of title, any right or interest thereupon. He also came across contents of the abovestated sale deed not stating any amount to have been paid to him for his role as a confirming party. All this made the Assessing Officer to treat the abovestated sum of ₹ 1,32,42,418/- as income from other sources instead of assessee s capital gains. 4. The assessee preferred appeal. The CIT(A) summarises Assessing Officer s two reasons of non registration of banakhat dated 16.12.1986 and lac of evidence proving advance payment of ₹ 5lacs as broader contours for rejecting his abovestated explanation. He then accepts assessee s contentions as follows: 3.3.1. I have carefully considered the submissions of the learned Authorized Representative and the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could have summoned the signatories of the documents i.e., the land owners and verified from them. Alternatively, the enquiry could have been made by deputing the inspector and recording the statements of the stamp vendor. In extreme case, matters like this are also referred to the forensic laboratory to determine the exact date of the document. Unfortunately, none of the available options was used by the Assessing Officer and he simply based his observation on surmises and conjectures. The second objection of the A.O. was that there was no proof of payment made by the assessee to the landowners. This is again not true as there is clear cut mention of cash payment of ₹ 5,00,000/- in the banakhat itself. Again, as stated above, the A.O. preferred not to make any enquiry from the signatories of banakhat, i.e., the landowners who had claimed to have received cash payment of ₹ 5,00,000/- from time to time. Under these circumstances, it is held that the banakhat dated 16.12.1986 between the assessee and the land owners i.e., Kalavatiben B. Patel, Shri Mahendra B. Patel, Anirudh B. Patel, Ashokbhai B. Patel, Dinesh B. Patel, Ansuyaben B. Patel Arunaben B. Patel was a genu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We find at page 64 that these vendors agreed that the assessee was cultivating the above agricultural land / capital assets sold. It is thus clear that this MOU stating the assessee to be in cultivating possession is neither supported by the banakhat in question dated 16.12.1986 nor the sale deed dated 10.09.2008. There is further no evidence in the case file in the nature of form 7/12 that the assessee ever remained in cultivating possession of the lands sold. We observe in these peculiar facts that the assessee has failed to prove veracity/genuineness of the banakhat in question dated 16.12.1986. We thus find force in Assessing Officer s observations on the latter aspect of the issue that the assessee had failed in proving any advance payment of ₹ 5lacs in question by way of any supportive material; whatsoever. 7. Shri Soparkar at this stage vehemently contends that the CIT(A) has rightly held the assessee to have proved the above stated banakahat indicating advance payment of ₹ 5lacs. We fail to concur with this plea because of the fact that the very banakhat itself is in dispute between the parties. Once we have held the same to be not supported by any evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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