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TMI Blog2022 (11) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... vert the aforesaid findings of the Coordinate Bench (supra). We find no reason to interfere in the said order of the Coordinate Bench, therefore, respectfully following the binding judgment of the Coordinate Bench, we dismiss the appeal of the Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the Valuation Report of the DVO was mere estimates on the basis of sale instances of the locality as per their Jantri Value without taking into consideration the incriminating and corroborative evidences in respect of the very land in question, found and seized during the course of search proceedings and the overall development of the area in which the land in question was situated which includes the Dream City project. 6. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in observing that an opportunity for cross examination was not granted to the assessee which is baseless as the assessee was granted ample opportunity by the Investigating Officer before preparation of appraisal report as also by the assessing officer during the course of assessment proceeding. The assessee, however, chose not to avail them for the reason best known to him thereby leading to the erroneous observation of the Ld. CIT(A) and eventually granting relief to the assessee by deleting the addition of Rs.41,67,45,000/- made in the assessment order. 7. On the facts and circumstance of the case and in law, the ld. CIT(A) has erred in not appreciating the fact that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of land, area of land, term & conditions for payment, signatures of seller & purchaser with date. The ITO (Inv.) Surat confronted Shri Manoj C. Patel regarding the notings found in the said page. Shri Manoj C. Patel as a partner of Hallmark tour admitted in the statement recorded on oath dated 28.06.2017 that this page no. 10 is regarding land situated at Survey No.203, Khajod, Surat admeasuring 9.45 Bigha, which is an agricultural land of "Juni Sharat". The decoded rate is written as 8.82 per Bigha which means Rs.8,82,00,000/- per Bigha. Therefore, the entire transaction amount of the land works out at Rs.83,34,90,000/- (8,82,00,000 x 9.45). Though location of the said piece of land, rate and other terms and conditions can be ascertained from plain reading of the said saudha chithi, however identity of buyers and sellers is not legible. 6. Shri Manoj C. Patel also admitted that this page was received on whatsapp from Shri Jayantibhai Babariya of 'Avadh Group', Surat i.e. the assessee. On conducting enquiries with the Dy. Mamlatdar, City Taluka, Surat to ascertain present status of land situated at Survey No. 203, Khajod, Surat, the ITO(Inv.), Surat found that the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er consideration is situated near to Surat Diamond Bourse (SDB), therefore the rates of the land are going to be higher in future. During the course of assessment proceedings, the assessee requested for cross-examination of Shri Manoj C. Patel, whose statement was recorded by the Authorized Officer but the Assessing Officer rejected the same by stating that the cross-examination dates were fixed by the Authorized Officer, however, the assessee sought adjournments. So now the request for cross-examination of Shri Manoj C. Patel was not justified, hence it was rejected. The Assessing Officer passed the assessment order on 28.12.2018 and made additions of Rs.41,67,45,000/- to the returned income considering unexplained investment under section 69 of the Act. 8. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has deleted the addition made by Assessing Officer, observing as follows: "….6.7 The submission of the assessee, facts mentioned in the assessment order, the statement recorded during the assessment & search proceedings, the report of District Valuation Officer and the assessment order for A.Y. 2018-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatsapp is not activated at all. Moreover, that mobile number has not been found registered in the name of the assessee. Statement of Shri Pravinchandra Dahyabhai Umrigar and other two co-owners of the land was recorded by the Assessing Officer on 14.12.2018, who confirmed their ownership in the land mentioned in the sauda chithi. He further stated that he had sold part of his share in the said land to Vasantrai Modi and Smt. Shilpa Patel for which he received advance amount and the same has been shown in his regular books of accounts. As the buyers have not paid full agreed consideration, he did not get registration made in the name of buyers. He did not name assessee as buyer/investor. He further stated that he has not entered in to any transactions as written in the said sauda chithi. He has also stated that the rate I written in the sauda chithi cannot be the price of the land mentioned, as it is too high keeping in view the prevailing market rates. Statement of Shri Prabodhchandra Jayantilal Patel was also recorded u/s. 131 of the Act by the Assessing Officer on 14.12.2018, in which he stated that he has not sold his share in the land written in the said sauda chithi to anyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer has passed the assessment order for A.Y.2018-19 in the case of the assessee vide order dated 07.05.2021 and the valuation made by the DVO has been accepted by the Assessing Officer. The Assessing Officer has made additions of Rs.3,28,68,000/- in the assessment order passed for A.Y.2018-19 and did not made the additions of Rs.41,67,45,000/- as made in the assessment order under consideration. These facts clearly prove that the additions made by the Assessing Officer only on the basis of sauda chithi are not justified. Hence, deserves to be deleted. The DVO's report further prove that the rate of per bigha mentioned in the said sauda chithi is about 12 times higher than the value determined by the DVO which prove that the contents of the said sauda chithi are not reliable. On this basis too, the additions made by the Assessing Officer are found unjustified and hence deserves to be deleted….." 9. Aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us. 10. Learned DR for the Revenue pleads that decision of the Ld. C.I.T.(A), is not acceptable as in the assessment order, the AO has very well rebutted the points raised by the assessee during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 SC 109).In terms of Article 265 of Constitution of India, all Acts relating to the imposition of tax providing, inter alia for the point at which the tax is to be collected, the rate of tax as also the recovery must be carried out in accordance with law (Corporation Bank v. Saraswati Abharansala (2009) 1 SCC 540 15). If a tax has been paid in excess of the tax specified, save and except the cases involving the principle of 'unjust enrichment', the excess tax realized must be refunded to the assessee. The Hon'ble Supreme Court in ITO Vs. CH. Atchaiah (1996) 218 ITR 239 (SC) has held that the income should be assessed on the right person, right year and it should be on the right income. From the aforesaid decision of the Hon'ble Supreme Court only the right person and the right person alone is liable to be taxed and not the wrong person. We note that 'sauda chithi' does not pertain to the assesseee. The assessing officer made addition based on the said 'sauda chithi' which was found from third party, Shri Manoj C. Papel. The said 'sauda chithi' does not contain the name of the assessee. We note that Shri Manoj C. Patel did not say that said 'sauda chithi' pertains to assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer' in relation to a capital asset, which includes: sale, exchange, relinquishment, extinguishment, compulsory acquisition etc. In assessee`s case, the assessee is owner of the asset in the assessment year 2017-18, he did not sale his asset (land), hence, the Revenue does not have authority to collect the capital gain tax from the assessee. 16. At the cost of repetition we state that during the assessment proceedings, the Assessing Officer referred the matter to District Valuation Officer (DVO) to determine the fair agriculture land at Survey No. 203, Khajod, Surat vide letter dated 24.12.2018 u/s 55A of the Income Tax Act, 1961. As the valuation report from the DVO was pending, therefore, Assessing Officer made additions of Rs.13,86,85.279/- considering unexplained capital gain as mentioned in the 'sauda chitthi' found from the third party premises. The DVO, Surat has submitted his report dated 29.12.2018 which was received by the Assessing Officer on 31.12.2019, in which the total value of the land under consideration has been determined at Rs.6,57,36,000/- and the assessee's share i.e. 1/3rd in the above mentioned property was determined by the DVO at Rs.2,19,12,000/-. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions on the basis of documents found at third party premises cannot be sustained only on the basis of surmises and conjectures. The assessee further contended that the additions were made by the Assessing Officer before receipt of valuation report from the DVO. The DVO submitted his report on 29.12.2018, which was received by the Assessing Officer on 31.12.2019 and in the above mentioned valuation report, the DVO has valued the price of land at Rs.6,57,36,000/- instead of Rs.83,34,90,000/- as written in the 'sauda chithi,' which itself prove that the rate mentioned in the sauda chithi is not clear at all. The DVO has valued the property at about 8% of the price written in said 'sauda chithi'. Therefore, such 'sauda chithi' cannot be relied upon for making the additions in the assessee's case. 17. We note that ld Counsel also contended that cross-examination of Shri Manoj C. Patel and Shri Jayantibhai Babariya whose statements were recorded by the Investigation Wing and also by the Assessing Officer, was requested from the Assessing Officer. However, the same has been denied by the Assessing Officer stating that the request for cross-examination has been submitted at the fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by the assessing officer has rightly been deleted by ld CIT(A). Keeping-in view these binding judgments of the Hon'ble Supreme Court of India, the additions made by the Assessing Officer are not found justified on this ground too hence, we are of the view that ld CIT(A) has rightly deleted the addition. 18. The ld Counsel further contended that the additions has been made by the Assessing Officer in the A.Y. 2017-18 however, the land has not been sold till date as stated above and as per legally settled principle, the transfer of capital asset takes place in the year, in which the sale deed is registered, in this case, the sale deed has not been made till date and possession of the property is with the assessee. Therefore, additions are legally not justified on this count too. It is undisputed fact that additions have been made by the Assessing Officer on the basis of 'sauda chithi' found during the course of search on 18.03.2017 at the premises of M/s, Hallmark Tour after taking mirror images of Samsung mobile phone of Shri Manoj C. Patel. This mirror image was taken after few months of search and statement of Shri Manoj C. Patel was recorded on this issue f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 131 of the Act, who confirmed the 1/3rd ownership in the land written in the 'sauda chithi', but he stated that he is seeing this 'sauda chithi' first time and totally unaware about the other details written on the said 'sauda chithi'. Apart from these statement recorded by the Assessing Officer of all the related parties, Shri Manoj C. Patel from whose possession, the said 'sauda chithi' was found and seized, filed retraction on 13.12.2018 before the Assessing Officer which is notarized and on stamp paper stating that his statement about receipt of said 'sauda chithi' from Shri Jayantibhai Babariya on his mobile phone through whatsapp recorded on 18.06.2017 is not true and correct and thus, he is retracting from that statement. These facts clearly prove that the 'sauda chithi' is a dumb document as far as the assessee is concerned. Hence, the additions cannot be made on the basis of such dumb documents. The ld CIT(A) relied on the judgment of Hon'ble Supreme Court of India in the case of Common Cause (A Registered Society) & Others Vs. Union of India & Others (2017) 98 CCH 0028 (SC) and CBI Vs. V.C. Shiukla AIR 1998 SC 1406. As the additions has been made by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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