9911796707
TMI Blog2018 (10) TMI 1842X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. As regards the opportunity for cross examination, the ld CIT(A) called for a remand report from the Assessing Officer after allowing the opportunity of cross examination. Despite various opportunities given by the Assessing Officer, both the parties kept on seeking deferment of remand proceedings and finally the statements on behalf of the sellers were made that they stand by their statements made on the earlier occasions. Assessing Officer made sincere efforts for granting the opportunity to cross examine to the assessee, however, it appears that both the parties in collusion avoided the cross examination. Thus, the blame cannot be shifted on the Assessing Officer for non-cross examination if any. Addition made by the Assessing Officer in the hand of seller U/s 68 instead of capital gain would not affect the merits of the addition made in the hand of the assessee. Having analysed the entire facts, the relevant record including the evidence brought on record by the Assessing Officer, we do not find any error or illegality in the orders of the authorities below, hence uphold the order of the ld. CIT(A) qua this issue.- Decided against assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the addition made by the Assessing Officer on this account. 4. Before us, the ld AR of the assessee has submitted that the Assessing Officer has made addition on the basis of cash deposits in the bank accounts of the sellers and their relatives in the month of May and August, 2005. Whereas the assessee has purchased the lands in question vide two sale deeds dated 11/8/2005. The consideration thereof is clearly stated in the registered sale deeds, which was duly authenticated by the parties before the Sub-Registrar. The assessee has paid the consideration only in cheque as stated in the registered deed and no amount has been paid in cash. The Assessing Officer for making the addition, has relied upon a copy of the agreement for sale of land with Shri Bhagwata Meena in which the rate of sale of agricultural land is mentioned at ₹ 28,25,000/- per bigha and accordingly calculated the consideration over and above the amount shown in the sale deed and the differential amount of ₹ 2,23,10,000/- was added to the income of the assessee as unexplained investment U/s 69 of the Act. The alleged agreement is only a photo copy and does not bear the signature of the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall" and therefore, a discretion is conferred on the Assessing Officer in the matter of treating the source of investment which has not been satisfactory explained by the assessee as income of the assessee. The ITO is not obliged to treat such source of investment as income in every case where explanation offered by the assessee is not found to be satisfactory. The ld AR has thus, contended that when the assessee is having no source of income in the year under consideration then the addition U/s 68 of the Act cannot be made in the hands of the assessee. The ld AR has also relied upon the decision of the Coordinate Bench of this Tribunal in the case of M/s Kamakshi Hospitality Pvt. Ltd. Vs. DCIT in ITA No. 481/JP/2016 order dated 20/12/2017. 5. On the other hand, the ld DR has submitted that it is a full proof case made out by the Assessing Officer that on money of ₹ 2,23,10,000/- was paid by the assessee over and above the consideration shown in the sale deed for purchase of the lands. Even the statement of the Branch Manager of Jaipur Thar Gramin Bank was recorded wherein the cash deposited in the account of the owner of the land was confirmed as sale consideration receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ota, Jaipur vide two sale deeds both dated 11/8/2005 for a total consideration mentioned in the sale deeds at ₹ 1,76,34,000/-. However, the Assessing Officer received the report of the DDIT(Inv) alongwith the details of the cash deposits in the bank accounts of the sellers and their relatives and further an agreement to sell dated 11/5/2005 wherein the consideration @ ₹ 28,25,000/- per bigha was agreed upon between the parties and part consideration was stated to have been paid at the time of agreement in cash as well as in cheque. The Assessing Officer has computed the total purchase consideration by adopting the rate of ₹ 28,25,000/- per bigha as stated in the agreement to sell dated 11/5/2005. Though the said agreement is not signed by both the parties and it was signed only by the seller, however, we find that the details given in the agreement regarding the agricultural lands, its khasaras numbers as well as the part consideration of ₹ 15,50,000/- through a cheque No. 582863/- dated 10/6/2005 is not in dispute. The deailsof the said cheque also find place in the registered sale deed dated 11/8/2005. Thus, the contents of the agreement to the extent of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be drawn from the details of the bank accounts and particularly the deposits made on the particular dates which is just one day after the execution of the agreement to sell and sale deeds that the cash deposits in the bank accounts of the sellers and their relatives is only from the sale consideration received against the sale of agricultural lands in question. There is no other transaction either on those dates or in around those dates of deposits in the bank accounts other than the present transaction of sale of lands by the sellers. Further the Assessing Officer has reproduced the statements of the branch manager wherein the amounts were deposited as well as the relatives of the sellers who have confirmed the receipt of cash and deposit of the same in the bank account. Thus, we find that the assessment framed by the Assessing Officer is not solely based on the statements recorded by the Investigation Wing but there was tangible material in the shape of the bank accounts statements, agreement to sell and sale deeds which are of course not in dispute. The only dispute raised by the assessee is regarding the photo copy of the agreement and its evidentiary value, however, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution of the agreement as well as sale deeds and further the part consideration paid through cheque find mentioned in the agreement to sell as well as in sale deed established the fact of existence of the said agreement between the parties. The statements recorded by the Investigation Wing further corroborates the documentary evidence and hence it is not a case of addition based on mere statement of third party. Further the statements of the seller cannot be said to be the statement of the third party but they were very much party to the transaction of sale of the lands in question to the assessee. As regards the opportunity for cross examination, the ld CIT(A) called for a remand report from the Assessing Officer after allowing the opportunity of cross examination. The Assessing Officer in its remand report has stated that he has summoned both the parties for their presence and after giving 2-3 opportunities at last on 09/1/2017 one Smt. Malti Devi Meena, widow of Late Madan Lal Meena appeared before the Assessing Officer and confirmed the earlier statement made by her husband. The Assessing Officer again summoned the remaining parties for subsequent dates. We find that despite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank statement of the seller. Thus, the genuineness of the agreement cannot be doubted. During the course of appellate proceedings, the AO was directed to allow the appellant, the opportunity to cross examine the sellers. The AO in the remand report dated 19.09.2017 has mentioned that the appellant instead of cross examining the sellers took adjournment on one pretext or another and it chose not to cross examine any of the seller. Hence, in view of the facts discussed by the AO in the assessment order, specifically at para 5.4 and 5.5 (page no. 13 to 16) of the assessment order, I am of the considered view that the appellant did make payment of ₹ 2,23,10,000/- in cash over and above the sales consideration recorded in the sales deeds, source of which remained unexplained. Accordingly, the addition of ₹ 2,23,10,000/- made by the AO u/s 69 is hereby confirmed." Having analysed the entire facts, the relevant record including the evidence brought on record by the Assessing Officer, we do not find any error or illegality in the orders of the authorities below, hence uphold the order of the ld. CIT(A) qua this issue. 7. In the result, appeal of the assessee is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
