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TMI Blog2012 (1) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... of transactions. No evidence is there on record showing the balance payment of sum by the assessee or his family members. The amount remaining to be paid in terms of the draft agreement also remained payable in terms of the signed agreement but the terms were subsequently revised and payment was made as per the revised terms. In view of these facts and circumstances of the case, we find that the ld. CIT(A) has given a well reasoned and well founded order after dealing with each and every aspect of the issue and we are in full agreement with the findings of the CIT(A) that the addition of balance amount made by applying the provisions of section 69 is not justified. We therefore, confirm the order of ld. CIT (A) - Decision in favour of Assessee. - ITA No. 834/JP/2011 and C.O. No. 81/JP/2011 (Arising out of ITA No. 834/JP/2011) (Asstt. Year : 2007-08) - - - Dated:- 9-1-2012 - R.K. Gupta and N.L. Kalra, JJ. ORDER R.K. Gupta, 1. The only ground taken in this departmental appeal is against deletion of addition of ₹ 1,85,00,000/- made by the assessing officer u/s 69. The assessee also has filed a cross objection bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... papers to purchase of said plot were found and impounded during the course of survey proceedings and the documents now produced by the assessee have never come to surface earlier nor even any submission was made by the assessee in this regard during the course of survey proceedings and afterwards also. The assessing officer also observed that the final agreement seemed non genuine as the same had not been made on proper stamp paper which was not possible to be arranged for back dates or for any earlier date. Accordingly, by not taking into consideration the final agreement and revised agreement and taking into consideration the papers found during survey of Gravita India Limited, the Assessing Officer concluded that the assessee had passed on a total consideration of ₹ 2,51,00,000/- for buying the captioned property of which a sum of ₹ 66,00,000/- has been shown from the regular sources and the balance amount of ₹ 1,85,00,000/- had been paid from unexplained sources. 3. The assessee preferred appeal before ld. CIT (A). 4. The ld. CIT (A) found that during the course of survey u/s 133A at the premises of M/s. Gravita India Ltd., a draft agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Even the verification from assessee was not sought with reference to this impounded document during the survey proceedings or post survey period. The seller has also not been examined by the AO. The ld. CIT (A) further found that though the draft agreement related to purchase of land at C-166, Tilak Nagar, Jaipur was found but ultimately the shares of M/s. Shah Buildcon Pvt. Ltd. were purchased by the family members of the assessee. It was further noted by ld. CIT (A) that during the course of assessment proceedings, the assessee had submitted to the AO that final agreement dated 2.01.2007 and revised agreement dated 14.03.2007 whereby shares of M/s. Shah Buildcon Pvt. Ltd. were purchased for an amount of ₹ 67 lacs including payment to discharge liabilities of that company. However, these documents were rejected by the AO being in the nature of an afterthought only. In the final agreement dated 2.1.2007, it was specifically mentioned that the seller will get necessary approval for conversion of plot for construction of group housing residential project and will construct approx 17000 sq. ft. in accordance with the approved map within 75 days from the date of agreement. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1 lakh to ₹ 10 lakhs which were assigned by Sh. Mahaveer Prasad Agrawal, father of the assessee on 02.08.2007 much prior to the date of survey. The same is the position in relation to return of income for AY 08-09. The annual returns of the company with ROC were also filed by the father of the assessee on 17.10.2008 28.10.2009. The explanation of the assessee cannot be brushed aside without proving otherwise. The issue in the matter boils down to the point as to whether any on-money over and above the agreement value was paid and if so, whether the materials available on record prove this fact or not. The ld. CIT(A) also held that as per the apex court in K.P. Varghese's case 131 ITR 597, the burden lies on the revenue to show that the assessee had actually paid more than what was actually recorded in the books of account which has not been discharged by the Revenue in the present case. The burden can be discharged by the Revenue by establishing the facts and circumstances from which reasonable inference can be drawn that the assessee had not correctly declared or disclosed the consideration received by him and there is understatement of consideration. It is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for convenience of the appellant. 6.1. However, ld. CIT(A) found that it is far from being true. According to him, the assessee has filed substantial evidence in the form of returns of income tax of M/s. Shah Buildcon Pvt. Ltd for A.Y. 07-08 and A.Y. 08-09 along with annual returns filed with Registrar of companies which prove that shares of said company were purchased by the family members of the assessee in the beginning of 2007 and survey took place at the premises of M/s. Gravita India Ltd. on 10.12.2009. He accordingly hold that the assessee could not have manipulated the transfer of shares so as to suit his interests. The return of income of M/s. Shah Buildcon Pvt. Ltd. for A.Y. 07-08 was filed on 8.10.07 and director's report and audited accounts were signed by Shri Mahavir Prasad Agarwal, father of the assessee on 2.8.2007. It would amply prove that the transaction of purchase of shares actually took place. Since the shares of M/s. Shah Buildcon Pvt. Ltd. were purchased by the family members of the assessee, the later agreements could not be found as the survey proceedings were carried out at the office premises of M/s. Gravita India Ltd. and not at the resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Shah Buildcon Private Limited was to transfer the said plot no. C-167 to the assessee as against which the shares of the company M/s. Shah Buildcon Private Limited have been purchased by the Shri M. P. Agrawal, Smt. Shashi Agrawal and Smt. Anchal Agrawal who are father, mother and wife of the assessee respectively. He therefore, submitted that the deal has not been materialize as per this document. He also drew our attention towards the final agreement dated 2nd January, 2007 placed in the paper book at page 14. This agreement was not found during survey but was submitted by the assessee during the course of assessment proceedings. The total consideration and the payment already made in advance as per this agreement were same but there were few changes in this agreement as compared to the draft unsigned agreement. This agreement was between the erstwhile shareholders/directors of the said company and the assessee for transfer of property or shares of the company by the seller parties to any of the persons named by the assessee. It contains a very important condition that the sellers are under obligation, firstly, to convert the plot use for construction of residential apartment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady made and to be made as per the said draft agreement and the final agreement, but the draft agreement did not contain the important conditions, non fulfillment of which has resulted into reduction in the amount to be paid for the deal. He requested for rejecting the ground of appeal taken by the department. 9. We have heard the rival parties and perused the material on record. We find that a loose paper and a draft agreement was found during the course of survey relating to the deal of purchase of plot no. C - 166 in Tilak Nagar owned by M/s. Shah Buildcon Private Limited. Mr. Sanjay Suri Mr. Rajendra Blana were the existing shareholder and directors of the company. The seller party in the draft agreement is M/s. Shah Buildcon Private Limited and the assessee is purchaser. As per these documents the assessee had paid a sum of ₹ 11,00,000/- as advance on 30.12.2006 against total consideration of ₹ 2,51,00,000/-. Out of balance amount, sum of ₹ 14,00,000/- lacs was to be paid by 20th of January, 2007 and the balance amount of ₹ 2,26,00,000/- has to be paid within 60 days. A perusal of the draft agreement show that there are number of cuttings, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee's statements were not recorded during the course of survey otherwise he could have explained the complete facts at that time itself. Further, these agreement are written on the stamp papers issued prior to the date of transactions. 9.1. Further, as apparent from the statutory records of the company M/s. Shah Buildcon Private Limited, the said deal was finally closed in the manner written in the revised agreement. No evidence is there on record showing the payment of sum of ₹ 1,85,00,000/- by the assessee or his family members. The amount remaining to be paid in terms of the draft agreement also remain payable in terms of the signed agreement but the terms were subsequently revised and payment was made as per the revised terms. Moreover, the final payments were made on 14th March, 2007 i.e. after 75 days in terms of signed agreement as against 60 days mentioned in the draft agreement. In view of these facts and circumstances of the case, we find that the ld. CIT(A) has given a well reasoned and well founded order after dealing with each and every aspect of the issue and we are in full agreement with the findings of the CIT(A) that the addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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