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TMI Blog2024 (8) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... reement to sell, found during the search which was not at all implemented. In view of the aforesaid factual and legal discussion, we do not find any reason to interfere with the order of ld. CIT(A) which we affirm with our additional observation. In the result, grounds of appeal raised by the revenue are dismissed. Unaccounted investment u/s. 69B - additions were made on the basis of incriminating documents extracted from digital devices - CIT(A) deleted addition - HELD THAT:- As in the search action no evidence of on money payment for purchase of impugned land was found. The assessee right from the beginning took his plea that the contents shown on the digital image found in the Pen drive was related with same land transaction which was never acted upon. Kedar Jagirdar was in fact not the owner nor having any relation with the original buyer. The father of assessee filed the settlement application before the Settlement Commission, Mumbai and offered 10% income of the figure mentioned on said Sauda Chithi which was accepted, copy of order of Settlement Commission was filed before the Assessing Officer as well as before the ld. CIT(A). We find that all such facts are not countered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the satakhat is a notarized document before the Registered Notary and the notary has clearly mentioned that one person was absent on the date of notarization of the document which is totally ignored by the ld. CIT(A) while deciding the issue. (iii) In addition to Ground No. 1 2, on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in not appreciating the fact that the land deal done on the basis of satakhat that to which is notarized is only registered in the name of end buyer/end user as per such buyer's/end user's convenience or sold further to another party. Ld. CIT(A) has completely ignored the ground realities and practices in land deals done through satakhat/sauda chitti. (iv) In addition and in alternate to grounds No. 1 to 3, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by the Assessing Officer ignoring the principles of Human Probability Test i.e. preponderance of probabilities which is applicable for Income Tax proceedings. (v) It is, therefore, prayed that the order of ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alubhai Laxmanbhai not signed the Satakhat nor the person mentioned at serial No. 9,10 and 13 have revenue stamp against their signature. Further public notice was to be given (published), which was not issued, as land deal not materialized. Further, father of assessee has also stated that his son (assessee) to explain the payment of cash mentioned on the Satakhat. The assessee was also confronted with the statement of his father and the contents of Satakhat. The assessee also explained that one of the seller has not signed the agreement so deal was not materialized. About the reference of payment of Rs. 4.12 crores shown to have paid on 01/03/2016 and Satakhat is dated 07/05/2016 which suggests that advance was paid much prior to drafting of Satakhat. In response to such question, the assessee explained that in the line of land business if anyone the seller did not sign, the deal does not materialize and is cancelled. The Assessing Officer was of the view that the contents of Satakhat disclosed the payment of Rs. 4.12 crores received in cash on 01/03/2016. Satakhat was duly attested by notary Dhiraj Rana on 12/05/2016. On the basis of such observation, the Assessing Officer so cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer on the basis of contents of Satakhat added Rs. 4.12 crores in the hands of assessee. 4. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee filed detailed written submission. The submission of assessee is recorded in para 6.1 of order of ld. CIT(A). The assessee in his submission, reiterated similar submission as has been explained in response to show cause notice before the Assessing Officer. The assessee in his without prejudice contention, submitted that before the Assessing Officer, he has explained the entire facts, even if it is assumed that the assessee has made payment of Rs. 4.12 crores, no addition could have been made as his father has already disclosed income of Rs. 22.09 crores before the Settlement Commission, Mumbai for A.Y. 2012-13 to A.Y. 2016-17 and furnished cash flow statement before the Settlement Commission, Mumbai and as per cash flow statement, there was availability of cash of Rs. 5.59 crores. Copy of statement of source and application of unaccounted cash transaction, which was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... village Jivav, Surat. As per details on Satakhat, it is clearly discernable that the assessee made payment of Rs. 4.12 crores in cash, which was 25% of total sale consideration. During the assessment, the assessee simply denied that no such payment was made. The ld. CIT(A) deleted the addition without appreciating the fact that the document was found and impounded from the residence of assessee. The ld. CIT(A) deleted the addition merely by accepting the submission of assessee as well as the assessee s contention that there was availability of cash with his father. The ld. CIT-DR for the revenue submits that there is a presumption under Section 292C of the Act against the assessee about the evidence found during the course of search action. The ld. CIT-DR prayed for restoring the order of Assessing Officer by setting aside the order of ld. CIT(A) 7. On the other hand, the ld. AR of the assessee supported the order of ld. CIT(A). The ld. AR of the assessee submits that the impugned document, though, executed but never acted upon. The main person Balubhai Laxmanbhai who was the key person amongst the seller group neither signed the document nor agreed for sale of the land. The recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws: Common Cause Vs UOI (2017) 394 ITR 220 (SC) Sunil Kumar Sharma Vs DCIT (2022) 448 ITR 485 (Kar) Nishant Construction Pvt. Ltd. Vs ACIT ITA No. 1502/Ahd/2015 PCIT Vs Nishant Construction Pvt. Ltd. (2001) 101 taxmann.com 180 (SC) and 101 taxmann.com 179 (Guj) CIT Vs Maulik Kumar K Shah (2008) 307 ITR 137 (Guj) CIT Vs Ravi Kumar (2007) 294 ITR 78 (P H) Smt. Harmohinder Kaur Vs DCIT (2021) 187 ITD 289 (Amrt Trib) DCIT Vs Tulsibhai Mavjibhai Shankar (2010) 4 ITR (T) 670 (Ahd). 8. We have considered the submissions of both the parties and gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied by the ld. AR of the assessee. We find that the Assessing Officer made addition of Rs. 4.12 crores on the basis of his view as mentioned in the show cause notice dated 04/12/2021 which we have already referred in detail in para-3(supra). The Assessing Officer while making addition, solely relied upon the contents of Satakhat found during the course of search action. We find that before the Assessing Officer, the assessee explained that the said Satakhat impounded during the course of search action, was never materialized. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion could be made only on the basis of agreement to sell, found during the search which was not at all implemented. In view of the aforesaid factual and legal discussion, we do not find any reason to interfere with the order of ld. CIT(A) which we affirm with our additional observation. In the result, grounds of appeal raised by the revenue are dismissed. 10. In the result, this appeal of revenue is dismissed. ITA No. 323/Srt/2022 for the A.Y. 2020-21 11. In this appeal, the revenue has raised following grounds of appeal: (i) On the, facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 13,96,60,000/- made by the Assessing Officer on account of unaccounted investment u/s. 69B of the I.T. Act without appreciating the fact that the additions were made on the basis of incriminating documents extracted from digital devices. (ii) In addition to ground No.l, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. l3,96,60,000/- made by the Assessing Officer on the basis that no evidence was found during the course of search and that any on money was paid by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer on going through various details on the image, was of the view that the purchaser name is Shanker N. Uttamchandani and seller is Kedar Jagirdar. As per terms of payment, 33% was to be paid within 30 days of Satakhat, second 33% by 03/12/2014 and remaining 34% was to be paid by 03/04/2015. The said Sauda Chitthi was duly signed by seller and purchaser. The Assessing Officer further noted that on enquiry from the Gujarat Government website (AnyROR), it was seen that the land was sold to Nitin Chhagan Patel on 29/04/2016 for an amount of Rs. 59.00 lacs from Arunaben Dineshbhai Patel, Jasimatiben Shantilal Patel, Narendra Prabhubhai Patel, Animesh Rameshbhai Patel and others. Further Nitin Kumar Chhaganbhai Patel sold this land to assessee on 21/11/2019 on a sale consideration of Rs. 65 lacs. The area of land is admeasuring 23796 square meter = 28459 square yard. On the basis of such fact, the Assessing Officer was of the view that the land was purchased on the basis of Sauda Chithi made in the year 2014-15. The land was not purchased immediately, though purchased subsequently on payment of Rs. 65.00 lacs in F.Y. 2019-20. The Assessing Officer on the basis of afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther as stated in the show cause notice, as per Government Website, the said land, after cancellation of deal with my father, due to title issue, subsequently sold by original owner to Shri Nitinkumar Chhaganbhai Patel on 29/04/2016 and thus it is not the case that after cancellation of deal, my father either purchased the said land. The assessee has purchased the land after a gap of five years from the cancellation of deal in the intervening period, there was change of ownership and assessee purchased big land after change of scenario of real estate market in Surat. The assessee purchased the land when there was substantial changes and chance of development was extinguished as there was development of many legs of prawns and the farmers of Abhwa village raised objection before Surat Municipal Corporation for granting permission such prawn legs and local authority has not taken any appropriate action against their grievances. The allegation that the land was first sold out to him by Kedar Jagirdar and was registered in the name of Shri Nitinkumar Chhaganbhai Patel and then transferred in my name, such fact is absolutely baseless, there is no such evidence nor any statement of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .6 crores in 2014 and then how it could be sold merely for Rs. 65.00 lacs in 2019. The ld. CIT(A) recorded fivefold contention of assessee i.e. (i) original Sauda Chitthi between his father and Kedar Jagirdar not executed as Kedar Jagirdar was not the actual owner. The actual land owner was Mrs. Arunaben Patel and her family. The title of land was not clear, the assessee s father received back the advance of Rs. 10.90 crores to Kedar Jagirdar. The said amount of Rs. 10.90 crores was explained by his father before Settlement Commission, Mumbai and offered 10% profit thereon. (ii) The said land was purchased by Nitinkumar Chhaganbhai Patel from Mrs. Arunaben Patel and her family on 29/04/2016 for a consideration of Rs. 59.00 lacs. Nitinkumar Chhaganbhai Patel who purchased the land is not related with the assessee. The land was purchased by assessee from Nitinkumar Chhaganbhai Patel. (iii) The land was purchased by assessee from Nitinkumar Chhaganbhai Patel for a consideration of Rs. 65.00 lacs which was proved by Sub-Registrar after valuation by Deputy Collector of Stamp valuation dated 18/12/2019. The Deputy Collector, Stamp Duty valued the land at Rs. 65.00 lacs with detailed reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the facts and circumstances of the case clearly suggests that the assessee has purchased the same land for which father of assessee has entered into transaction. The assessee has not disputed that initially Sauda Chithi was executed. The assessee is taking shelter of proceeding before Settlement Commission that income on such undisclosed amount as per the contents of Sauda Chithi was offered and accepted by Settlement Commission. It is unbelievable fact that the same land was purchased by Nitinkumar Chhaganbhai Patel for Rs. 59.00 lacs in 2016 and thereafter the said land was again purchased by assessee at a consideration of Rs. 65.00 lacs only. The ld. CIT-DR for the revenue submits that when the title of land was not clear, the assessee has not explained as and when the tile became clear and the same land was purchased in an unbelievable price of Rs. 65.00 lacs. The Assessing Officer while passing the assessment order has rightly concluded that the assessee made unexplained investment in excess of sale consideration vis a vis the sale consideration shown on the Sauda Chithi. 18. On the other hand, the ld. AR of the assessee submits that in fact the said Sauda Chithi was a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions of both the parties and have gone through the orders of the lower authorities carefully. The assessing officer made addition by taking view that in the search action a pen drive was found at the residence of the assessee, which contained a Sauda Chitthi Sauda Chitthi dated 03/07/2014 for land bearing R.S. No. 506/68/6, Abhwa having area of 28000 Vaar. The rate of land is mentioned at Rs. 5220/-. The Assessing Officer was of the view that purchaser name is Shanker N. Uttamchandani (father of assessee) and seller is Kedar Jagirdar. As per details on the seized paper, the payment of 33% was to be paid within 30 days of Satakhat, second 33% by 03/12/2014 and remaining 34% was to be paid by 03/04/2015. Total sale consideration was agreed at Rs. 14.61 Crore. The said Sauda Chitthi was duly signed by seller and purchaser. The Assessing Officer on enquiry from the Gujarat Government website (AnyROR), noted that the land was sold to Nitin Chhagan Patel on 29/04/2016 for an amount of Rs. 59.00 lacs from Arunaben Dineshbhai Patel, Jasimatiben Shantilal Patel, Narendra Prabhubhai Patel, Animesh Rameshbhai Patel and others. Further Nitin Kumar Chhaganbhai Patel sold this land to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 65.00 lacs which was proved by Sub-Registrar after valuation by Deputy Collector of Stamp valuation dated 18/12/2019. The Deputy Collector, Stamp Duty valued the land at Rs. 65.00 lacs with detailed reasoning in his order which is a part of sale deed. (iv) The basic contention of assessee related to the issue is that the Assessing Officer relied upon the Sauda Chitthi and have not examined the parties related to the transactions. There is no evidence found during the search that on money was paid by assessee over and above Rs. 65.00 lacs. The addition of unexplained investment in A.Y. 2020-21 on the basis of Sauda Chithi executed in F.Y. 2015-16 is not justified, when Sauda Chithi in question is not entered with original owner which was cancelled due to title clearance and (v) the Deputy Collector, Stamp Valuation accepted the valuation of land at Rs. 65.00 lacs. The land is not coming in Surat Municipal Corporation and have no approached road and major operations of land would be acquired by corporation at the time of implementing the town planning scheme. No agricultural activity is possible. 21. The ld. CIT(A) concluded that the original Sauda Chithi dated 03/07/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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