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TMI Blog2022 (9) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-01-2013. Accordingly, we find no infirmity in the order of Ld. CIT(Appeals) in restricting the addition on account of unexplained cash payments to the extent of schedule of payments till the date of search conducted at the premises of the assessee on 09-01-2013. Appeal of the Department is dismissed. - ITA No. 1632/Ahd/2017 And ITA No. 1633/Ahd/2017 - - - Dated:- 7-9-2022 - Shri P.M. Jagtap, Vice President And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri S.N. Soparkar, A.R. For the Revenue : Shri James Kurian, CIT-D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These two appeals filed by the Department are against the order of the ld. CIT(A)-12 Ahmedabad. in Appeal nos. CIT(A)-12/242/CC 2/Baroda/15- 16 CIT(A)-12/250/CC 2/Baroda/15-16 vide orders dated 22/02/2017 23/02/2017 passed for the assessment year 2013-14. Since common issues are involved in both the appeals and both appeals are arising out of additions made in respect of the same property held jointly by the appellants, we are disposing of both the appeals together. Shri Bankim V. Pandya in ITA No. 1633/Ahd/2017 2. Department has taken the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ahmedabad which was also rectified vide order u/s. 154 of the I. T. Act, 1961 received on 08.05.2017. [2] On the facts and in the circumstances of the case, the Ld. CIT (A) ought to have upheld the order of the Assessing Officer. [3] It is, therefore, prayed that the order of the CIT (A) may be set aside and that of Assessing Officer may be restored to the above extent. [4] The appellant craves to add, modify or alter any grounds during the course of appellate proceedings. 4. We shall first discuss the case of Shri Bankim Pandya, which shall serve as the lead case, and the ratio thereof shall also apply the case of Shri Ketan Pandya, since the additions/issues are emanating out of additions made in respect of common property jointly held by the two assessees. 5. The brief facts of the case are that that the search was conducted on the assessee on 09-01-2013. Accordingly, the case was selected for scrutiny as per provisions of section 153B(2) of the Act and accordingly notice under section 143(2) of the Act was served upon the assessee on 11-11-2014. During the course of search proceedings, various incriminating documents were found from the residential prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill such time the above TP scheme had come to be notified, only the proportionate amount of land in relation to total amount of ₹ 90,51,000/- which had been paid thus far would be transferred to the assessee and his brother, and the seller would not press for any further amount from the assessee or his brother. This is also for the reason that the seller was not in a financial position to refund the amount of ₹ 90,51,000/- which was received till date of TP notification to the assessee and his brother. The assessee submitted that the return deed was registered on 24-06-2013, as per which the assessee retained land of 2090 square metres (proportionate to the sum of Rs. 90,51,000/- paid to the seller) and the remaining land of 7420 square metres was returned back to the seller. Accordingly, no additional cash payment of ₹ 5,52,23,515/- is made in cash by the assessee, since as per the terms of return deed referred to above, the assessee got possession only of the amount of land proportionate to ₹ 90,51,000/- which was the only amount which was paid at the time of registration of sale deed and the balance amount of land was returned back to the seller (and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by cash and also in the absence of categorical evidence of actual cash payments over and above the amount mentioned in the Banakhat referred to above, it is not possible to conclude in law that the purchasers (Bankim and Ketan Pandya) were in possession of or had made payments of amounts scheduled to be paid in cash after the date of search. Accordingly, Ld. CIT(Appeals) restricted the addition to cash payments totaling to ₹ 140.23 lakhs which was scheduled to be made as per the registered Banakhat up to the date of search at the premises of the assessee on 09-01-2013. While passing the order, Ld. CIT(Appeals) made the following observations: I firstly note that the Banakhat dated 5/8/2012 is not only a registered document but has also been acted upon by both the parties thereto. Similarly, the other seized documents scanned and printed by the Ld. AO on page nos.17 to 21 of the assessment order undoubtedly and unequivocally evidence that investment by cheque of Rs.30 lakhs and investment by cash of the balance amount of Rs.93,28,500/- has been made jointly by the three co-investors. It is also equally true that neither the Banakhat dated 5/8/2012 nor other seized doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation deed, the transaction now has been reduced to 2090 sq. m in place of the originally agreed 9510 sq. m. also at a reduced rate of only Rs. 4331/- in place of Rs. 10016/- as per Banakhat. Considering all these factors, I am of the considered opinion that while on one hand, the Banakhat dated 5/8/2012 is firstly a prima facie (and also conclusive, if not cogently and successfully rebutted by appellant) evidence of total cash payment of Rs. 140.23 lakhs till the date of the search, secondly, as rightly observed by the AO, this independent and contemporaneous Banakhat executed by the appellant himself is also an irrefutable evidence of the rate of the underlying land agreed to by transacting parties, which, as per the said document is Rs. 10,016/- per sq. m. When seen in the totality of facts and circumstances and in the light of the partially acted upon seized Banakhat dated 5/8/2012, the AO's allegation that the cancellation deed dated 28/6/2013 has been executed as an afterthought to avoid being taxed on the whole proposed unaccounted cash payment of Rs.5.42 crores has also some merit. Similarly, the reason canvassed by the appellant before the AO and by the AR before me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h conducted on the assessee. The counsel for the assessee submitted that the registered sale deed itself contained details of cash payment (counsel for the assessee invited our attention to page 95 of the paper book), and there is no evidence with the Department to prove that any amount in cash was paid after the date of search. Accordingly, the additions made by the Ld. Assessing Officer are based only on presumptions. 10. We have heard the rival contentions and perused the material on record. We are in agreement with the observations of Ld. CIT (Appeals) that any additions made after the date of search on 09-01-2013 would be presumptuous, in absence of any tangible evidence with the Department that entire cash was paid by the assessee, at the time of entering into registered sale deed itself, when the original sale deed itself contains a schedule of cash payment. While we are in agreement with the observations made by the AO as well as Ld. CIT(Appeals) that the return deed subsequent to the date of search on 24-06-2013 seems to be an afterthought since no mention thereof was made at time of post search proceedings on 10-01-2013, however at the same time, it cannot be ignored t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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