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TMI Blog2024 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. These factors pointed by Ld. AR certainly make a sense and dislodge the apprehensions made by authorities. Lower authorities have no basis or proof to establish that the assessee or his brother had made any cash payment to the sellers and subsequently recovered the same on clearance of cheques. Such a conclusion taken by authorities is merely based on apprehension, presumption or suspicion. It is an established judicial wisdom that presumption howsoever strong can never become an evidence. When we have two sets of evidence, one documentary evidence in the form of registered-deed and bank statement showing the factum of payment through post-dates cheques and other a mere presumption that cash mush have exchanged the hands, we must necessary give credence to the documentary evidences and should not be guided by mere presumption. Assessee appeal allowed. - SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER For the Appellant : Shri Rajesh Mehta, CA Shri Apurva Mehta, CA For the Respondent : Shri Ashish Porwal, Sr. DR ORDER Per B.M. Biyani, A.M.: Feeling aggrieved by appeal-order dated 26.04.2021 passed by learned Commissioner of Income-Tax (Appeals)-3 [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is an individual who derives rental income, share profit from partnership firm and agricultural income. For the relevant AY 2011-12, the assessee filed his return of income on 27.12.2012 declaring a total income at Rs. 1,52,250/- which was duly assessed. Subsequently, on receipt of information that the assessee alongwith his brother Mohd. Mustafa Kagdi had purchased an agricultural land situated at Ratlam and also made other investments, the AO re-opened assessment u/s 147 through notice u/s 148. In response, the assessee re- filed return repeating the same income of Rs. 1,52,250/-. Thereafter, the AO issued statutory notices u/s 143(2)/142(1) and show-caused assessee regarding sources of investments. The assessee filed replies which are noted by AO in assessment-order. Ultimately, the AO completed assessment at a total income of Rs. 48,73,210/- after making certain additions aggregating to Rs. 47,20,960/-. Aggrieved, the assessee filed first-appeal to CIT(A), Ahmedabad whereupon the CIT(A), vide impugned order dated 26.04.2021, deleted all additions except one addition of Rs. 37,75,000/- made by AO u/s 69 on account of 50% share in the purchase-consideration of Rs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above during period 07.01.2013 to 10.12.2013. Having shown thus, Ld. AR submitted that when the purchase-consideration was paid through cheques and those cheques were cleared in assessee s bank account subsequently on different dates, how can department say that the investment in purchase of land was made from unexplained or undisclosed sources during the financial year 2010-11 relevant to AY 2011-12 under consideration. Ld. AR submitted that the registered-deed was executed in AY 2011-12 but the purchase consideration was paid through cheques which had been subsequently cleared from assessee s regular bank a/c which is fully disclosed, then in such a situation where is the question of applying section 69 by authorities? 6. Ld. AR then carried us to para no. 5.7 of the order of first-appeal wherein the CIT(A) has rejected the assessee s claim by mentioning thus: 5.7 As to the addition of Rs. 37,75,000/- (as per para 3 of the assessment order), it has been submitted by the appellant that the copy of bank statement were filed on 14.12.2018 alongwith reply but the AO did not take the same into consideration. It is the case of the appellant that the (6) cheques were presented with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the human probability. He submitted that it is beyond conceivable thinking that any person who would sell land without taking a single penny and be ready to receive consideration after two years. Ld. DR submitted that the approximate interest of two years itself comes as high as Rs. 7 8 lakhs whereas the present deal is for Rs. 75,50,000/- only. He submitted that how can a person ignore the interest amount of Rs. 7 - 8 lakhs and make sale of land on such terms where he receives no interest at all? Ld. DR submitted that had it been a small gap of 2-3 months, it would have been acceptable but the gap of 2 years is so high that the assessee s claim cannot be accepted. He submitted that the Ld. CIT(A) is very logical in observing that the assessee might have paid consideration in cash and subsequently when the post-dated cheques were presented in bank, the cash must have been returned to assessee. With these submissions, Ld. DR strongly supported the orders of lower authorities and prayed to uphold the same. 9. In rejoinder, the Ld. AR submitted that it was a mutual understanding between the assessee and the seller to pay consideration through post-dated cheques and the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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