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TMI Blog2024 (10) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of cash payment made on purchase of land as unexplained investment u/s 69B of the Act. 3. It is therefore prayed that the additions made by Assessing Officer and confirmed by ld. CIT(A) may please be deleted. 4. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal." 2. Brief facts of the case are that the assessee is an individual, filed his return of income for A.Y. 2010-11 on 12/02/2011 declaring income of Rs. 16,88,300/-. The case of assessee was reopened under Section 147 of the Income Tax Act, 1961 (in short, the Act) on 30/12/2014. The assessment was reopened on the basis of information that a survey action under Section 133A of the Act was carried out in the office premises of Turnish B Kania, Advocate. During the course of survey proceedings, one C.D./Hard disc was impounded. On taking printout from said hard disc, documents containing Annexures- A-1 to A-4 was prepared which contained various Satakhat/sale and purchase agreement and Kabza receipt. One of the Satakhat, it was found that the assessee and Shri Rameshchandra Harjibhai Gondaliya jointly purchased a property from Babyben Budhiyabhai Pate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut actually he is a purchaser and he has not executed any Satakhat for sale of such land which is still held by him. Statement of Babyben Budhiyabhai Patel was also recorded on 23/03/2013 wherein she has disclosed that sale deed was prepared by Turnish B Kania but actually she is having only 3% share in the land. She also stated that she does not know about the impugned Satakhat. The assessee made a prayer for supply of printout of hard disc being Satakhat between the assessee and Babyben Budhiyabhai Patel, statement of Turnish B Kania, assessee and Babyben Budhiyabhai Patel, if recorded. The required document was supplied to the assessee. On receipt of such document, the assessee found that in the Satakhat, cash amount of Rs. 3.59 crores is mentioned, there is no date on the said document. Satakhat is not singed by the party nor it was found in the physical form. It was found from the office of third person. The assessee instructed only to prepare sale deed which was registered. The assessee never accepted the contents of Satakhat. The assessee also disputed other contents of show cause notice. 4. Reply of assessee was not accepted by Assessing Officer. The Assessing Officer reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are contrary to the facts. The unsigned Satakhat was obtained from a computer of Turnish B Kania in the course of survey action. Statement of Turnish B Kania and sale deed was recorded. In the objection, the assessee objected about the validity of reopening. In the objection, the assessee objected that the facts mentioned in the reasons recoded are contrary to the record/Satakhat found from Turnish B Kania. In the reasons recorded, the assessee has shown purchaser and as per impugned agreement to sale, the land is purchased at Rs. 3.59 crores which includes the cash and cheque payment and that the assessee has purchased land at Rs. 1.39 crore. However, in the alleged agreement to sell, the assessee was shown as seller and not as a purchaser, so there was no question of unexplained investment. No date of payment of Rs. 2.39 crore is mentioned. Satakhat/agreement to sell is undated and unsigned. As per the sale agreement, Babyben Budhiyabhai Patel was shown as purchaser but in the registered sale deed, the assessee is seller with 14 other co-owners. Thus, there is infirmity in the agreement/Satakhat vis a vis registered sale deed. The assessee is actually having 50% share in the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of reopening, held that the assessment was reopened on the basis of survey action on office premises of Turnish B Kania. The Investigation Wing impounded four files after taking printout from hard disc as Annexure-A-1 to A-4, which contains various Satakhat, copy of purchase and sale deed, Kabza receipt etc. One of the Satakhat is in the name of assessee, the assessee purchased land at village Sarsana for a consideration of Rs. 3.59 crores, out of which Rs. 2.39 crores were paid in cash. Such material disclosed that information received from the Investigation Wing cannot be denied that such report was prepared after survey action and collection of evidence. The expression "reason to believe" occurring in Section 147 would mean and include justification for such reopening and when the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can safely be inferred that he is said to have reason to believe that income had escaped assessment, when there is relevant material with a person of a reasonable prudence would have formed the believe of such escapement, it would suffice that the material is sufficient to arrive such conclusion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening which were based on survey action under Section 133A of the Act on Turnish B Kania on 27/12/2012 and on the basis of same C.D., the case of one Ripubhai Kanubhai Sheladiya his PAN No. ADZPS 8577 J was reopened and similar addition on account of unexplained investment was made. Against addition in similar case, the said Ripubhai Kanubhai Sheladiya filed appeal before the Tribunal vide ITA No. 288/Srt/2017 wherein reopening was held to be bad in law. The ld. AR of the assessee submits that in the said case, the Coordinate Bench of Tribunal held that there was no nexus between the statement of Turnish B Kania and the Satakhat so found in his computer as soft copy which does not bear the signature of parties and being a sample template in word format. It was further held that there was no live link or close nexus between the material before the Assessing Officer as there was any failure or omission to disclose fully and truly material facts which is missing in the present case. The ld. AR of the assessee submits that the reasons recorded in his case is similar to the case of Ripubhai Kanubhai Sheladiya (supra). Thus, the reasons were recorded is without application of mind as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. There is no allegation in the assessment order that the assessee has shown less consideration than the value of asset determined by the Stamp Valuation Authority. 9. On the other hand, the ld. Sr. DR for the revenue supported the orders of the lower authorities. With regard to ground No. 1 which relates to reopening of the case under Section 147 of the Act, the ld. Sr. DR for the revenue submits that for recording reasons and making belief that income has escaped assessment, the Assessing Officer was having tangible information in the form of report from Investigation Wing that in the survey action, certain incriminating material in the form of Satakhat was found. In one of the Satakhat, the assessee alongwith other persons/sellers have made an agreement to sell of a land for showing sale consideration of Rs. 3.59 crores. The ld. Sr. DR for the revenue submits that though in the Satakhat, the assessee has shown as a seller, in fact, the assessee is a purchaser, however, the fact remained the same, the particulars mentioned on the Satakhat and ultimate transaction of purchase of land are exactly matching with regard to size, location and situation of land in fact, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R of the assessee. Firstly, we are considering ground No. 2 of appeal which relates to addition of Rs. 1.19 crore. We find that the Assessing Officer made addition of Rs. 1.19 Crore by taking view that assessee has purchased the above land which is shown in the satakat found from the hard disc of Turnish Kania Advocate. Al the particulars mentioned on the impugned satakat are exactly matching with the ultimate sale deed of the land. It was held that it cannot be said that Satakhat has no evidentiary value which contained details of seller and buyer which are actually recorded in a reversed manner but other specification like measurement of land and location are as per registered sale deed. Registered sale deed is drafted by Turnish B Kania, denial is made with the intent of concealment of fact and unexplained investment. Ultimate sale deed dated 14/10/2009 and Satakhat has so many correlation/common fact. The Assessing Officer, thus treated the difference of Rs. 2.39 crores (Rs. 3.59-1.20 crore) as not recorded in the books of account. The assessee is having 50% share in the land, therefore, half of the impugned investment i.e. Rs. 1.19 crore was treated as undisclosed income and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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