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TMI Blog2017 (11) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ensation the assessee has contended that the barrowed funds was used and repaid through banking channel subsequently. However, except the details of the borrowed funds the assessee has not produced any other material or documentary evidence to show the transaction of borrowed funds. Accordingly, the assessee is required to produce the documentary evidence as well as the creditors for examination by the AO. Assessee’s appeal is allowed for statistical purposes. - ITA No. 395/JP/2017 - - - Dated:- 31-10-2017 - SHRI VIJY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM For The Assessee : Shri P.C. Parwal (C.A.) For The Revenue : Shri Roshanta Meena (JCIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order of dated 21.03.2017 of CIT (A)-I, Jaipur for A.Y. 2012-13. The assessee has raised the following grounds as under:- 1. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in upholding the action of AO in computing the short term capital gain on sale of plot of land at ₹ 93,44,430/- as against short term capital loss of ₹ 25,92,000/- computed by the assessee by:- ( a) ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued u/s 133(6) was not served as he was not found at the address provided by the assessee. Further, the AO also held that the compensation claimed to have paid in cash is unusual and this difficult to accept that the assessee who is a property dealer would purchase a property which is under unauthorized possession and thereby incurred a loss of ₹ 25,92,000/- in a short period of just two months. Accordingly, the AO completed the assessment whereby short term capital gain of ₹ 93,44,430/- was brought to tax. Aggrieved by the order of the Assessing Officer the assessee filed an appeal before the ld. CIT(A) but could not succeed as ld. CIT(A) has concurred with the view of the AO that when these persons have denied having received any compensation. Further during the appellate proceedings vide order sheet dated 29.09.2016 the assessee was required to file confirmation from these persons from whom money has been received for making payments for getting the property vacated including their PAN, TTR source thereof. However, the assessee did not file confirmation and stated that he wants to go for Dispute Resolution Scheme-2016. 3. Before us, ld. AR of the assessee has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Hon ble jurisdictional High Court in connection with the criminal miscellaneous petition filed by these persons who were in possession of the property in question. The ld. AR of the assessee has submitted that the AO denied the claim of the assessee on the basis of the reply in response to the notice u/s 133(6) without examination of these persons and confronting the documentary evidence filed by the assessee duly signed by these persons and also without giving an opportunity to cross examine. Thus the Assessing Officer has denied the claim of the assessee on the presumption without conducting a proper enquiry and giving opportunity to cross examine these persons. 4. As regards the source of the amount paid to these persons the ld. AR of the assessee has submitted that the assessee has borrowed fund which were repaid through bank transactions. He has referred to the details of payment of the borrowed fund at page 8 of the paper book and submitted that the assessee subsequently refunded the amount to the creditors through banking channel. Hence, the ld. AR of the assessee has submitted that when the assessee has produced all relevant documentary evidence to substantiate it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of any third persons. The sale deed clearly states that the seller has handed over the vacant physical possession of the property to the assessee. Thus, as per the sale deed dated 17.03.2011 the property was free from any their party right or other adverse interest against the title right over the property. The assessee is not a layman but is dealing in the real estate and therefore, if the property was under occupation of these six persons then it was not possible for the assessee to purchase the said property without having the said fact mentioned in the sale deed. Even otherwise if the property was actually in the possession of these six persons then, there is no conclusive evidence to show when the property was got vacated and only after against by the assessee and not prior to the said date of purchase. Since the assessee has accepted the fact stated in the sale deed that the physical vacant possession of the property was handed over by the seller to the assesee then this claim of payment of compensation for getting the property vacated is contradictory to the facts recorded in the sale deed. The assessee further claimed that the entire payment was much in cash even a cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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