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TMI Blog2020 (8) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee of returning the amount through cheque can be easily verified from the assessee s bank statement and the same cannot be manipulated, however, the same has not been verified either during the assessment or during the appellate stage. The affidavit of the buyer even though executed subsequent to the close of the assessment proceedings, however, where the transactions are reflected in the assessee s bank account, the same cannot be manipulated subsequently and can be easily verifiable directly from the Bank. During the course of hearing, the ld AR has also submitted that the assessee has been able to obtain the original sale agreement which could not be produced earlier as the same was with the buyers and has also submitted the source of repayments which also require proper verification. We therefore believe that the matter requires fresh examination taking into consideration the aforesaid aspects and the matter is accordingly set-aside to the file of the AO to examine the same a fresh after providing reasonable opportunity to the assessee. In the result, the ground is allowed for statistical purposes. - ITA No. 1357/JP/2019 - - - Dated:- 17-8-2020 - Shri Vijay P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts of the case in charging interest u/s 234 A.B.C and the appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full. 2. Ground no. 1 is general in nature and doesn t require any separate adjudication. 3. In ground no. 2, the assessee has challenged the action of the ld CIT(A) in sustaining the trading addition of ₹ 39,722/-. 4. Heard both the parties and purused the material available on record. The books of accounts have rightly been rejected u/s 145(3) and thereafter, net profit has been estimated @ 15% as against 14.23% declared by the assessee. Nothing has been brought to our notice in terms of prior settled history of the assessee or comparative third party data. In the facts and circumstances of the case, we therefore upheld the order of the ld CIT(A) and the ground of appeal is hereby dismissed. 5. In Ground No. 3, the assessee has challenged the action of ld. CIT(A) in sustaining the addition of ₹ 25,00,000/- made by the Assessing Officer on account of cash deposited in the bank account maintained with SBI, Tonk Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch date the case is finally posted for hearing. In case of non-compliance, the case will be decided on merits without further reference to you. Ensure compliance. 7. In response, the assessee vide letter dated 14.02.2014 submitted that the amount has since been returned back to Mr. Rajaram Gurjar and Mr. Devesh Kumar Gurgar as per the following details: Date Amount Returned Remarks 18/03/2011 10,00,000/- 8,00,000/- by cheque No. 827715 SBI Bank (photocopy of pass book attached) 2,00,000/- cash withdraw from SBI bank on 01/02/2011 by cheque No. 834385. 13/09/2011 10,00,000/- Cheque No. 625784 of SBI Bank received from Kinjal. (Photocopy of passbook attached) 18/01/2014 4,00,000/- Withdrawn from PNB pension A/c (cash) Photocopy of pass book attached. 8. Thereafter, the Assessing Officer for reasons given at pages 7 to 11 of the assessment order held that the assessee has failed to produce alleged purchasers for personal examination in order to verify the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion are mentioned in these affidavits. The remaining amount of ₹ 9.50 lacs is mentioned by both parties to be given at the time of registration whereas as per lkrarnama dated 25.01.2011 witnessed by them balance amount of ₹ 10,34,000/-was to be paid at the time of registration. They have not mentioned about the cancellation of this transaction in their affidavits. Hence, the said additional evidence is proved to be an another after thought attempt by the assesee to hide his unexplained cash deposits. In this connection, it is submitted that during the assessment proceedings, the AO required the assessee to establish the genuineness of his claim of immediate source of cash deposits of ₹ 25 lacs made in his bank account. However, the assessee completely failed to produce the so called purchasers despite specific requirement and the so called purchasers also failed to turn up for verification during assessment proceedings and now by filing affidavit after completion of assessment of one party does not establish the genuineness of the claim of assessee for immediate source of cash deposits. All these facts indicates that the assessee has not come clean on the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n form of 2 cheques of ₹ 8,00,000/- and ₹ 10,00,000/- respectively. Besides, ₹ 7,00,000/- was received in cash on various dates in cash. Therefore, alternative ground of appeal is dismissed. Thus grounds of appeal are dismissed. 11. During the course of hearing, the ld. AR submitted that the appellant-assessee is a retired person from Indian Air Force. During the year, he has made an agreement to sale on 25.01.2011 of his agriculture land with Sh. Rajaram Gurjar and Devesh Gurjar both are brother and dealing in property business, for a consideration of ₹ 35,34,000/- out of that, sale consideration ₹ 25.00 lacs has been received in cash and the assessee has deposited this cash in his bank account on 28.01.2011 for safety. Admittedly in the said agreement, it was mentioned that if the registration is not executed within one month, the transaction shall be treated as cancelled vide sale agreement. Thereafter the assessee has also invested ₹ 11.00 lacs in the booking of new plot with M/s Kinzal Colonizers on 02.02.2011 out of the above payment and payment was made through RTGS from the very same bank A/c. The purchaser found that the rate of tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are not in the hands of the assessee. It is not case of the department that any statements have been recorded of Sh. Rajaram and he denied or has stated that he has not done any transaction with the assessee. Only for the reason that on the date he has not appeared, the true transaction supported with the vital evidences cannot be denied in absence of any contrary evidences. 14. It was further submitted that the contention made in the letter of affidavit should be accepted as truth unless rebutted. Because these affidavits have not been rebutted by lower authority by bring any contrary evidence or without examining. It is very settled legal position that in the cases where affidavit has been filed yet the contents thereof have not been rebutted by the AO/authority, the facts mentioned therein have to be read as the facts binding upon the Income Tax authorities. In the present case in support the assessee had filed the affidavit of purchaser and witness as an additional evidence before the ld. CIT(A) and the same have been sent to the AO for his comments and the ld. AO has not rebutted the contents of the affidavit nor examined it mean either he was satisfied or he has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r produced before your honor for your kind verification, thus now the issue of non-production of original agreement does not survive and assessee deserve to succeed the matter. 17. Regarding the allegation that nothing has been mentioned in the sale agreement that how much amount was paid by Sh. Rajaram and how much amount was paid by Sh. Devesh Kumar and how much amount was paid to Sh. Rajaram and Sh. Devesh Kumar by the assessee if the agreement is cancelled. In this regard, it was submitted that the assesse has submitted the full details of payment made through cheque and cash to the lower authorities, hence the allegation are wrong and liable to be quash. 18. It was further submitted that the assessee has booked a plot with Kinzal Colonizers and made payment of ₹ 11,00,000/- by RTGS on 02.02.2011. Since Sh. Rajaram has disagreed to purchase the land in that circumstances, assessee had been forced to cancel the plot booking and that is why M/s Kinjal Colonizers has made repayment of ₹ 11,00,000/- to the assessee on 10.09.2011 and same amount was paid to Devesh or Rajaram by cheque No. 625784/83 SBI Bank on 13.09.2011. The assessee has proved the utilization and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that even the assessee failed to explain the repayment and the affidavits filed by the witnesses to the so-called agreement are not reliable and self-servicing evidences in absence of corroborative evidences. It was accordingly submitted that there is no infirmity in the order of ld. CIT(A) and the same may be confirmed. 20. We have heard the rival contentions and purused the material available on record. The limited issue for consideration is whether the assessee has satisfactorily explained the nature and source of cash deposit of ₹ 25 lacs in his bank account maintained with SBI. The explanation furnished by the assessee is that the source of such deposit is advance received from the buyers of the plot of land where the assessee has agreed to sell vide agreement dated 25.01.2011 and to substantiate the same, copy of such agreement was filed during the course of assessment proceedings. On perusal of the said agreement, the AO had raised certain apprehension in terms of rate at which the land was agreed to be sold, how the parties have met and how the money was exchanged and whether the land was finally sold or cancelled and whether the money was repaid or not an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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