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TMI Blog2023 (9) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... ser. The entire evidence of the assessee clearly depicted that the agreement was duly executed by the purchaser and seller. Later the purchaser denied the agreement and rejected the argument for transfer of cash to the seller. During assessment, the ld. AO only relied on the statement of the purchaser Mr. Umed Singh Debas. No other circumstantial evidence is placed against the assessee by the revenue. AR fully relied on the order of Sh. Pappu Ram Saran, [ 2020 (9) TMI 228 - ITAT JAIPUR] and also relied on the order of Sh. Jagsir Singh[ 2022 (10) TMI 414 - ITAT AMRITSAR] - We also relied on the order of the same bench in case of Jagsir Singhand order of Coordinate Bench of ITAT, Jaipur. DR in argument was not able to adduce any contradictory fact against the submission of the ld. AR. In our considered view, the cash which was deposited in the bank account by the assessee was contemporaneous to sale of agricultural land and supported the agreement of sale. Accordingly, the addition amount is quashed. Assessee appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... k draft and through cash. Both the amount was deposited in bank account. The assessee relied on the copy of the agreement. But the purchaser denied the said agreement as it is own document of assessee. So, the ld. AO has treated the deposit of cash as unexplained money and added back with the total income of the assessee u/s 69A of the Act. Aggrieved assessee filed an appeal before the ld. CIT(A). After considering the submission of the assessee, the ld. CIT(A) upheld the order of the ld. AO. Being aggrieved, the assessee filed an appeal before us. 5. The ld. Counsel for the assessee Mr. Sudhir Sehgal, Advocate first placed that the appeal was filed both for legal grounds and grounds of fact. First, he agitated ground nos. 1, 2, and 3 during hearing. Ground Nos. 1, 2 and 3 6. In this point, the ld. AR placed that the recorded reason of the ld. AO was mechanical manner and without application of mind. The ld. AR invited our attention in the recorded reason of the ld. AO. He further placed that u/s 151, the ld. CIT had approved the recorded reason only to mention "Yes it is a fit case". 6.1 The ld. AR challenged the issue in which the entire reopening was in mechanical manner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the material. The information received could form the basis of reason to believe that income has escaped assessment and the re-opening is not on mere suspicion. Hence, the assumption of jurisdiction is in accordance with law." As per the observation of the Hon'ble Jurisdictional High Court the approval by the CIT for reopening is not a mere mechanical manner. The judgments which are riled by the assessee are clearly distinguishable and are not in similar factual matrix. We respectfully relied on the case Rakesh Gupta (supra). In our considered view the notice u/s 148 r.w.s. 151 is not illegal. We are not intervening in the order of the ld. CIT(A) in this ground. Accordingly, Ground Nos. 1, 2 and 3 are dismissed. Ground No. 4 9. The ld. AR argued the merit of the case related to addition amount of Rs. 39,05,000/-. The ld. AR further argued that during the course of assessment proceedings, statement of one of the buyer Sh. Umed Singh Debas was recorded on 04.12.2017 and the crux of his statement is as under: "a) He along with his wife Smt. Nirmala Debas and Son Sh. Arun Debas had purchased land from the assessee on 29.03.2010 for a consideration of Rs. 29.03.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. AO. Based on these two additional evidences, the case of the assessee was remanded back to the file of the AO. During the course of remand proceedings, the statement of Sh. UmedDebas (one of the buyers) was recorded once again, and he once again denied to have made any cash payment to the assessee on account of sale of land. The ld. AO did not try to cross verify the statement of other persons namely Sh. VirinderBidhan (agreement writer) and Sh. Dara Singh (witness to sale deed) and not even considered the reports of handwriting expert and merely relying upon the statement of Sh. UmedDebas, he concluded that the sources of cash deposits of the assessee have not been proved. 9.6. The ld. AR further argued that the matter was placed before the ld. CIT(A) and remand report was called for from the ld. AO. The ld. AO placed the observation before the ld. CIT(A) which is reproduced from the appeal order page nos. 7 to 8 are reproduced as below: "5.3 I have carefully gone through the assessment order as well as the submissions made by the appellant. It is an undisputed fact that large value of cash was found to be deposited in the bank account of the appellant. Both during the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is my true and correct statement. " The affidavits were also examined with reference to his statement recorded on 4.12.2017 wherein he has clearly stated that "No such agreement was made by me". In a question regarding payment made in cash amounting to Rs. 1,50 cores on 23.03.2010 after withdrawing from the then SBOP, Apollo Chowk, Narwana in the present of witness in the residential house of Sh.Karan Singh Teacher, he stated that he has not bank account in his name or in the name of his family members at Narwana. He has stated that he has not paid any such amount in cash. The copy of affidavit and statement dated 4.12.2017 are also enclosed herewith. The assessee was also confronted about al lathes facts as per this office letter dated 25.02.2019 whereby the assessee was required to furnish his explanation by 27.02.2019 but no such explanation has been received from the assessee. The copy of this letter is also enclosed herewith. 2.2 From the facts noted above, it is clear that the assessee has created documents to prove unexplained cash deposit and the same being self serving document, correctness thereof has been denied by the purchaser. Thus the genuineness of the "Ikarnam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & denial of cross verification of the evidences which are formed opinion related to addition of amount. The ld. counsel also respectfully referred the judgment of Hon'ble Supreme Court in the case of ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II, CIVIL APPEAL NO. 4228 OF 2006, Date of Order 02/09/2015. We find the gross violation of the natural justice during completion of the assessment order. The ld. AO without the reasons to believe and proper verification has passed the order u/s 148 of the Act. Considering the above submission, the notice u/s 148 is violation of legal statute and liable to be quashed. 8. We have heard the rival submissions and perused the material on record. We note that the impugned addition was made by the AO purely on suspicion and there was no effective material available on record to justify the same. The assessee cannot be kept in the dark. Adverse statements or materials cannot be kept away from his eyes. If the AO intends to use it to draw adverse inference/finding, the assessee should be provided the adverse material/statements in order to rebut/cross examine the provider/maker of the adverse material. Failure to do so is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord the relevant facts as well as nexus between transaction of sale and deposit in bank account then only inference can be drawn from these facts and circumstances of the case is that the source of deposit of Rs. 27,50,000/- is the sale consideration of the land. The Assessing Officer has not brought anything contrary on the record during the remand proceedings such as examination of the purchaser. Therefore, in the absence of any contrary material the explanation of the assessee regarding source of cash deposit in the bank account cannot be disputed. This Tribunal in case of M/s OM Plantation vs. ITO (supra) has considered an identical issue in para 6 as under:- "6. We have considered the rival submissions as well as the relevant material on record. The assessee purchased the land situated at Bhankrota, Jaipur vide two sale deeds both dated 11/8/2005 for a total consideration mentioned in the sale deeds at Rs. 1,76,34,000/-. However, the Assessing Officer received the report of the DDIT(Inv) a long with 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 @ Rs. 28, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not the issue of legal enforceability of the said agreement and the claim under the agreement but the contents of the agreement which are to the extent corroborated by the independent evidence being sale deeds and further the bank statements of the sellers cannot be denied on the technical ground of admissibility. Therefore, once the payment of cash is reflected from all these documents as well as statements of the parties then the technical objection raised by the assessee will not help the case of the assessee." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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