Shri Ram Lal Choudhary, JODHPUR V. ITO, JODHPUR

CO 12/JODH/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9870 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 31-07-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 12-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Onus to prove
• Section: 143(3); 131; 6

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 176 /JODH/2014 (A.Y. 200 3 - 04 ) ITO, WARD - 1(4), JODHPUR. VS. SHRI RAMLAL CHOUDHARY HUF, 29, WEST PATEL NAGAR, NEAR AJIT BHAWAN, JODHPUR. (APPELLANT) PAN NO. AAFHR 8840 E (RESPONDENT) C.O. NO. 1 2 /JODH/2014 (A.Y. 200 3 - 04 ) SHRI RAMLAL CHOUDHARY HUF, 29, WEST PATEL NAGAR, NEAR AJIT BHAWAN, JODHPUR. VS. ITO, WARD - 1(4), JODHPUR. PAN NO. AAFHR 8840 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN & SHRI RAJENDRA JAIN. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 3 1 / 0 7 /201 4 . DATE OF PRONOUNCEMENT : 28 /0 8 /201 4 . O R D E R 2 PER N.K. SAINI, A.M TH E APPEAL BY THE D EPARTMENT AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 10 /0 1 /201 4 OF L D . CIT(A), J ODHPUR . IN THE DEPARTMENTAL APPEAL, T HE FOLLOWING GROUNDS HAVE BEEN RAISED: 1. THE LD. CIT(A) HAS ERRED IN FACTS AND THE CIRCUMSTANCES OF THE CASE IN DELETING ADDITION OF RS. 75,15,383/ - MADE ON ACCOUNT OF DIFFERENCE IN SALE CONSIDERATION. 2. THE LD. CIT(A) HAS ERRED IN FACTS AND THE CIRCUMSTANCES OF THE CASE IN DIRECTING THE A.O. TO CROSS EXAMINE THE DEPONENTS AGAIN, WHEN SPECIFICALLY THE DIFFERENCE IN SALE CONSIDERATION WAS ADMITTED BY THEM TWICE AT THE TIME OF ORIGINAL ASSESSMENT AND SET ASIDE ASSESSMENT IN COMPLIANCE TO THE DIRECTION OF THE HON'BLE ITAT. 3. THE APPELLANT CRAVES LEAVE TO ADD, AM END OR ALTER ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF APPEAL IS FINALLY HEARD FOR DISPOSAL. THE GROUNDS RAISED I N THE CROSS OBJECTION OF THE ASSESSEE READS AS UNDER: - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE QUASHED THE ORDER PASSED BY THE LD. A.O GIVING EFFECT TO THE ORDER OF HON'BLE ITAT, JODHPUR WHICH IS NOT ONLY BAD IN LAW AND BAD ON FACTS BUT ALSO AMOUNTS TO PERVERSE AS: - A) THAT THE LD. A.O. FAILED TO COMPLY WITH THE DIRECTION OF THE HON'BLE TRIBUNAL WI TH REGARD TO PROVIDING OF REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD. B) THAT THE LD. A.O FAILED TO SERVE ANY NOTICE U/S. 143(2) TO THE APPELLANT OR ANY PERSON AUTHORIZED TO RECEIVE SUCH NOTICE ON BEHALF OF THE APPELLANT. 3 C) THAT THE ISSUE WAS SET ASIDE AND RESTORED TO THE FILE OF THE A.O AS BACK AS ON 31/08/2008 AND FROM 01/09/2009 TO THE DATE OF SERVICE OF THE ORDER NO OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE AND THE ORDER GIVING APPEAL EFFECT WAS PASSED IN HASTE. D) THAT THE APPELLANT HUF NEVER PROVIDED ANY POWER OF ATTORNEY TO ANY PERSON TO REPRESENT IT IN THE SET ASIDE ASSESSMENT PROCEEDING AND AS SUCH THE SERV ICE OF NOTICE U/S. 143(2) AND SUBS EQUENT PROCEEDINGS ON THE BASIS OF SUCH NOTICE WAS INVALID AND VOID - AB - INITIO. 2) THE PETITION ER PRAYS FOR JUSTICE & RELIEF. 2 FIRST WE WILL DEAL WITH THE APPEAL OF THE DEPARTMENT . THE ONLY GRIEVANCE IN THIS APPEAL RELATES TO THE DELETION OF RS. 75,15,383/ - . 3. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 28/11/2013 DECLARING AN INCOME OF RS. 35,73,280/ - . THE ASSESSMENT WAS COMPLETED ON 23/03/2006 AT AN INCOME OF RS. 1,12,89,660/ - . THE MAIN REASON FOR MAKING THE ADDITION WAS THAT THE ASSESSING OFFICER ISSUED SUMMONS / LETTERS TO 37 PURCHASERS OF THE PLOTS, BUT IN SOME CASES, THE SAME WERE RETURNED BACK BY THE POSTAL AUTHORITY AND THEREFORE, THE ASSESSING OFFICER COULD RECORD THE S TATEMENTS OF 12 PURCHASERS . APART FROM THREE PURCHASERS, ALL OTHERS OF THEM (9 PURCHASERS) ADMITTED OF HAVING MADE PAYMENT IN EXCESS OF WHAT HAD BEEN MENTIONED IN THE AGREEMENT TO SALE OF THEIR RESPECTIVE PLOTS. ON THE 4 BASIS OF SUCH STATEMENTS, THE ASSES SING OFFICER CONCLUDED THAT SALE CONSIDERATION IN THE PLOTS HAD BEEN UNDERSTATED @ 280 PER SQ.YARD WHICH WHEN APPLIED TO THE TOTAL AREA SOLD WORKED OUT TO RS. 74,54,720/ - WHICH WAS ADDED TO THE DECLARED SALE CONSIDERATION FOR COMPUTATION OF CAPITAL GAIN. ANOTHER ADDITION OF RS. 1 LAC WAS MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES. THE ASSESSEE PREFERRED AN APPEAL AGAINST THE ASSESSMENT ORDER WHICH WAS DECIDED BY THE LD. CIT(A) ON 27/09/2006. THE LD. CIT(A) DELETED THE ADDITIONS MADE ON ACCOUNT OF CAPITAL GAIN MAINLY ON THE GROUND THAT THE STATEMENTS DID NOT CONCLUSIVELY PROVE THAT AMOUNTS, OVER AND ABOVE AS RECORDED IN THE SALE AGREEMENT / REGISTRATION DEED ACTUALLY REACHED THE ASSESSEE AND AN OPPORTUNITY FOR CROSS - EXAMINATION O F THE PURCHASERS WAS NOT PROVIDED TO THE ASSESSEE THOUGH SPECIFICALLY REQUESTED FOR . AGAINST THE AFORESAID ORDER OF THE LD. CIT(A), THE DEPARTMENT MOVED AN APPEAL BEFORE THE ITAT IN I.T.A.NO 604/JU/2006 WHEREIN VIDE ORDER DATED 31/08/2009 THE MATTER WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH REGARD TO THE ADDITION OF RS. 74, 54,720/ - MADE ON ACCOUNT OF DIFFERENCE BETWEEN THE SALE CONSIDERATION SHOWN BY THE ASSESSEE AND ESTIMATED BY THE ASSESSING OFFICER. IN COMPLIANCE TO THE DIRECTION ISSUED BY THE ITAT, THE ASSESSING OFFICER MADE THE FRESH ASSESSMENT ON 29/11/2010 IN WHICH IT WAS 5 MENTIONED THAT INCOMPLIANCE TO THE SUMMONS ISSUED U/S. 131 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) , THE FOLLOWING PARTIES OR THEIR CLOSE RELATIVES ATTEN DED THE PROCEEDINGS: - A. SHRI BANSI JANGID S/O SHRI AMRA RAM JANGID B. SHRI AMRA RAM JANGID S/O SHRI BHARU RAM JANGID C. SHRI BANSI JANGID (BROTHER ON BEHALF OF SHRI GAJENDRA PRASAD S/O SHRI AMRA RAM) D. SHRI BANSI JANGID ON BEHALF OF SMT. HEMLATA W/O SHRI JAGENDRA PRASAD. E. SHRI TARA CHAND BANJARA (HUSBAND ON BEHALF OF SMT. NORTI DEVI) F. SHRI RAVINDRA KRISHAN VYAS S/O SHRI KRISHAN VYAS. G. SHRI BACHHAN MANU BHAI SOLANKI (FATHER ON BEHALF OF SMT. ASHIMA SONA) 4. THE ABOVE SAID PERSONS CONFIRMED THE STATEMENTS GIVEN EARLIER IN NOVEMBER , DECEMBER 2005. THE ASSESSING OFFICER MENTIONED THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE DID NOT APPEAR AT THE FIXED TIME ON 16/11/2010 AND AS SUCH HE RECORDED THE STATEMENTS OF THE AFORESAID PERSONS. ACCORD ING TO THE ASSESSING OFFICER, SINCE THE ASSESSEE FAILED TO TAKE OPPORTUNITY OF CROSS EXAMINATION AS DIRECTED BY THE ITAT, HE REPEATED THE ADDITION MADE EARLIER AND COMPUTED THE SAME INCOME AS ORIGINALLY ASSESSED AT RS. 111,88,663/ - . 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDER PASSED U/S. 143(3) / 6 254 OF THE ACT ON THE GROUND THAT THE ASSESSING OFFICER FAILED TO COMPLY WITH THE DIRECTIONS OF ITAT, JODHPUR BENCH, HOWEVER, THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE ASSESSING OFFICER HAD GIVEN VARIOUS OPPORTUNITIES TO THE ASSESSEE TO ARGUE THE CASE AND TO PRODUCE THE EVIDENCES IN SUPPORT OF HIS CLAIM . AS REGARDS TO THE ADDITION OF RS. 76,15,383/ - , THE ASSESSEE SUBMITTED THAT NO NOTICE U/S. 143(2) OF THE ACT OR INTIMATION FOR ATTENDANCE OF THE PARTIES WERE INTIMATED TO THE ASSESSEE OR HIS AUTHORIZED POWER OF ATTORNEY HOLDER AS THE KARTA OF THE ASSESSEE R ESIDES ABROAD . IT WAS FURTHER STATED THAT THE ASSESSEE HUF OR ITS POWER OF ATTORNEY HOLDER HAD NOT GIVEN FRESH POWER OF ATTORNEY TO SHRI SURESH GANG FCA AFTER ASSESSMENT ORDER WAS SET ASIDE BY THE TRIBUNAL , FOR REPRESENTING HIS CASE AS SUCH NOTICE ISSUED AND SERVED BY THE ASSESSING OFFICER ON SHRI SURESH GANG WAS INVALID AND ON THAT BASIS NO ORDER COULD HAVE BEEN PASSED BY THE ASSESSING OFFICER. IT WAS CONTENDED THAT NO NOTICE U/S. 143(2) OR INTIMATION ABOUT THE PRESENCE OF WITNESS E S WAS INTIMATED TO ITS POWER OF ATTORNEY HOLDER AND THAT THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS , FILED COPIES OF RECEIPTS SHOWING AMOUNTS RECEIVED IN ADVANCE, AGREEMENT TO SALE SHOWING AMOUNT PAID TO THE POWER OF ATTORNEY HOLDER AND THE S ALE DEED EXECUTED IN RESPECT OF 7 PLOTS SOLD TO THE RESPECTIVE PARTIES . IT WAS SUBMITTED THAT IN LIGHT OF DOCUMENTARY EVIDENCES ON RECORD THERE WAS NO BASIS TO ENHANCE SALE CONSIDERATION. IT WAS FURTHER STATED THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER EXAMINED FEW PERSONS OUT OF MORE THAN 100 PERSON TO WHOM THE PLOTS WERE SOLD AND OUT OF WHICH SEVERAL PERSONS HAVE ADMITTED THE SALE CONSIDERATION AS PER THE AGREEMENT TO SALE BUT FEW PERSONS FOR REASONS BEST KNOW N TO THE M STATED OTHERWISE AT THE BACK OF THE ASSESSEE AND IN A BSENCE OF CROSS EXAMINATION, THE SAME COULD NOT BE ADMITTED AS EVIDENCE. IT WAS ALSO STA T ED THAT THE SERVICE OF NOTICE TO THE CHARTERED ACCOUNTANT AFTER COMPLETION OF THE ORIGINAL ASSESSMENT WAS BAD IN LAW. RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SHRI GIRDHARI LAL REPORTED AT 147 ITR 379 . THE LD. CIT(A) OBSERVED THAT BY CONSIDER ING THE FACTS OF THE CASE THAT NO PROPER OPPORTUNITY WAS GIVEN T O THE ASSESSEE FOR CROSS EXAMINATION , HIS PREDECESSOR DIRECTED THE ASSESSING OFFICER TO GIVE FRESH OPPORTUNITY OF CROSS EXAMI NA TION AND IN COMPLIANCE TO SUCH DIRECTION, THE ASSESSING OFFICER ISSUED SUMMONS U/S. 131 OF THE ACT TO THE FOLLOWING PARTIES FOR PROVIDING OPPORTUNITY OF CROSS EXAMINATION : - I. SHRI RAM DAS SHARMA 8 II SHRI BACHAN DAS III SHRI RUSTAM PAL SINGH CHOUHAN IV SMT. ASHIMA SOLANKI V . SMT. HEMLATA VI SHRI GAJENDRA PRASAD VII SHRI BANSI JANGID VIII SHRI AMRA RAM JANGID IX SHRI RAVINDRA KRISHAN VYAS X SMT. NORTI DEVI 6 . THE ASSESSING OFFICER IN HIS REPORT DATED 31/07/2013 SUBMITTED THAT NOTICES ISSUED U/S. 131 OF THE ACT TO THE PERSONS NAMED AT SERIAL N O. (I) TO (III) WERE RETURNED UNDELIVERED. HE FURTHER STATED THAT SHRI V.M. SOLANKI APPEARED ON BEHALF OF HIS DAUGHTER SMT. ASHIMA SOLANKI WHOSE STATEMENT WAS EARLIER RECORDED AND FILED A LETTER STATING THAT HIS DAUGHTER RESIDES AT PUNE AND SHOWED HIS INCOMPETENCE FOR CROSS - EXAMINATION. THE ASSESSING OFFICER IN HIS REPORT MENTIONED THAT THE PERSONS FROM SERIAL NO. 5 TO 10 APPEARED AND W ERE CROSS EXAMINED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. THE JCIT FORWARDED THE REPORT OF THE ASSESSING OFFICER ALONG WIT H COPIES OF STATEMENTS OF CROSS EXAMINATION OF SIX PERSONS TO THE OFFICE OF THE LD. CIT(A) ON 22/08/2013 WITH THE FOLLOWING REMARKS: - THE ITO IN HIS REPORT HAS MENTIONED THAT THE STATEMENTS GIVEN DURING THE COURSE OF ORIGINAL ASSESSMENT SEEMED CORRECT AND STATEMENTS GIV E N DURING THE COURSE OF EXAMINE ARE SEEMED AFTERTHOUGHT. FROM THE REPLIES GIVEN IN THE CROSS EXAMINATION IT APPEARS THAT THE REPLIES ARE GIVEN AFTER BEING 9 TUTORED BY SOMEONE. HENCE, THESE REPLIES ARE NOT RELIABLE BUT THE REPLIES GIVEN B EFORE THE INCOME TAX AUTHORITIES IN THE STATEMENTS ARE RELIABLE. 7 . THE LEARNED CIT(A), AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE AND THE REPORT OF THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION SOLD 156 PLO TS MEASURING 26624 SQ. YARDS THROUGH AGREEMENT TO SALE & RECEIPTS ISSUED TO THE PURCHASERS WERE ISSUED BY THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE AS THE KARTA OF THE ASSESSEE HUF RESIDES OUT OF INDIA. HE FURTHER OBSERVED THAT THE ASSESSEE HAD FILED COPIES OF RECEIPTS AND AGREEMENT TO SALE ISSUED TO EACH PURCHASER BEFORE THE ASSESSING OFFICER AND COPY OF THE SAME WAS FILED BEFORE HIM ALSO. THE LD. CIT(A) WAS OF THE VIEW THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, REC ORDED THE STATEMENT OF 12 PARTIES OUT OF WHICH THE 3 PARTIES NAMELY SHRI RAJU SINGH, SHRI JETHMAL RATHI & SHRI RAJENDRA SINGH BHATI HAD STATED THE PAYMENT OF SALE CONSIDERATION WAS AS PER AGREEMENT TO SALE BUT 9 PARTIES HAD STATED TO HAVE PAID MORE SALE C ONSIDERATION THAN STATED IN THE SALE AGREEMENT. HE ALSO POINTED OUT THAT THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER DISBELIEVE D THE STATEMENTS OF 3 PERSONS, WHO STATED TO HAVE PAID THE SALE CONSIDERATION AS PER THE SALE AGREEMENT BUT RELIED ON THE STATEMENT OF OTHER PERSONS WHO HAVE STATED TO HAVE PAID MORE SALE 10 CONSIDERATION AND ACCORDINGLY THE ASSESSING OFFICER ESTIMATED THE SALE CONSIDERATION ON THE BASIS OF RATES STATED BY 9 PERSON IN RESPECT OF ALL T HE 156 PLOTS AND MADE THE ADDITION OF RS. 74,54,720/ - TO THE DECLARED SALE VALUE . THE LD. CIT(A) OBSERVED THAT IF A PARTY TO SALE AGREEMENT DULY WRITTEN, ATTESTED, NOTARIZED, CLAIMED THAT THE SALE CONSIDERATION WAS PAID OVER AND ABOVE THE AMOUNT DISCLOSED IN THE AGREEMENT THAN THE BURDEN TO PROVE THE CONTENTS LIES ON THE SAID PARTY AND THE TRUTH OF SUCH STATEMENT CAN ONLY BE EXAMINED BY CROSS EXAMINATION OF SUCH WITNESS AND WITHOUT CROSS EXAMINATION A TRUTH WOULD NOT COME OUT , AS SUCH THE BURDEN TO PROVE THAT SALE CONSIDERATION PAID WAS MORE THAN DISCLOSED IN THE AGREEMENT LIES ON THE PERSONS WHO ALLEGES THE SAME EITHER BY ADDUCING DOCUMENTARY EVIDENCE OR RELIABLE ORAL EVIDENCE. THE LD. CIT(A) PO INTED OUT THAT DURING THE CROSS EXAMINATION, 3 PERSONS HAD STATED TO HAVE PAID SALE CONSIDERATION AS MENTIONED IN THE AGREEMENT ONLY AND THEY WERE TAX PAYERS STATED TO HAVE DECLAR ED THE SAME AS INVEST MENT IN THEIR INCOME TAX RETURNS , FOR THIS PURPOSE , T HE LD. CIT(A) REFERRED THE CASE OF SHRI RAVINDRA KRISHAN. HE ALSO OBSERVED THAT OTHER PURCHASERS OF PLOTS WHO APPEARED FOR CROSS EXAMINATION ALSO DENIED TO HAVE PAID ANY AMOUNT OVER AND ABOVE T HAN DISCLOSED IN SALE AGREEMENT. THE LD. CIT(A) FURTHER OBSER VED THAT THOUGH THE JCIT WHILE FORWARDING THE REPORT OF 11 ASSESSING OFFICER HAD MENTIONED THAT THE STATEMENTS GIVEN DURING THE COURSE OF CROSS - EXAMINATION SEEMED TO BE AFTERTHOUGHT AND REPLIES APPEARED TO HAVE BEEN GIVEN AFTER BEING TUTORED BY SOMEONE , BUT HE HAD NOT GIVEN ANY BASIS FOR SUCH SUBJECTIVE OBSERVATIONS. THE LD. CIT(A) WAS OF THE VIEW THAT MERELY AN ALLEGATION THAT THOSE STATEMENTS WERE TUTORED DID NOT VITIATE THE VALIDITY OF CROSS EXAMINATION PARTICULARLY WHEN THE CROSS EXAMINATION WAS CARR IED OUT DURING NORMAL COURSE OF PROCEEDINGS . HE ALSO OBSERVED THAT ALLOWING THE OPPORTUNITY OF CROSS - EXAMINATION OF SUCH PERSONS WAS LEGAL REQUIREMENT TO ENSURE NATURAL JUSTICE AND IF SUCH CROSS EXAMINATION DID NOT SUPPORT THE STAND TAKEN BY THE ASSESSING OFFICER , THE SAME COULD NOT BE TERMED AS TUTORED OR RESULT OF AFTERTHOUGH T WITHOUT GIVING COGENT REASONS AND EVIDENCE TO PROVE THE INCORRECT NESS OF THE RESULTS AND CONTENTS OF CROSS - EXAMINATION . THE LD. CIT(A) OBSERVED THAT NO DOCUMENTARY EVIDENCE OR AN Y OTHER INDEPENDENT OR RELIABLE EVIDENCE WAS BROUGHT ON RECORD BY THE WITNESS AT ANY STAGE OF ENTIRE PROCEEDING TO PROVE THAT ANY AMOUNT OVER AND ABOVE THAN DISCLOSED IN THE AGREEMENT TO SALE WAS PAID TO THE ASSESSEE OR HIS POWER OF ATTORNEY HOLDER, RATHER THE WITNESSES ADMITTED THAT THEY PAID THE MONEY THROUGH THE BROKER. HE, THEREFORE, HELD THAT OBSERVATIONS OF THE J CIT THAT THE REPLIES WERE GIVEN AFTER BEING TUTORED BY SOMEONE DID NOT 12 HOLD GOOD AS THE WITNESSES THEMSELVES HAVE ADMITTED THAT THEY WERE ASSESSED TO TAX AND HAD DISCLOSED THE INVESTMENT IN THEIR INCOME TAX RETURNS A S PER THE SALE AGREEMENT AND NO AMOUNT WAS PROVED TO BE PAID OVER AND ABOVE THA N THE DISCLOSED IN THE RETURN OF INCOME. THE LD. CIT(A) ALSO OBSERVED THAT THERE WAS NO CONTRARY INDICATION THAT THOSE PURCHASERS HAD EITHER SUO - MOTU OR EVEN DUE TO INTERVENTION OF THE ASSESSING AUTHORITIES HAD DECLARED OR HAD BEEN ASSESSED FOR THE EXTRA PAYMENT NOT DISCLOSED IN THE AGREEMENT TO SALE RATHER THE Y HAD SAID THAT AMOUNT DISCLOSED IN THE AGREEMENT TO SALE WAS THE CORRECT AMOUNT OF CONSIDERATION PAID . THE LD. CIT(A) WAS OF THE VIEW THAT ONCE THE STAND TAKEN BY THE ASSESSING OFFICER WAS CONTRADICTED AS A RESULT OF CROSS - EXAMINATION , THE ONUS SHIFTED TO THE ASSESSING OFFICER TO SHOW THAT THERE WERE OTHER RELIABLE AND DOMINANT EVIDENCES TO COUNTER OR TO DISPROVE THE CONTENTS OF CROSS - EXAMINATION . ACCORDING TO HIM, THE ORAL EVIDENCE WHICH FORMED THE BASIS OF ADDITION DID NOT SURVIVE T HE LEGAL TEST OF CROSS - EXAMINATION AND BEYOND THAT THERE WAS NO OTHER RELIABLE DOCUMENTARY OR ORAL EVIDENCES TO SHOW THAT THE ASSESSEE RECEIVED MORE AMOUNT THAN THE CONSIDERATION SHOWN IN THE AGREEMENT FOR TRANSFER OF THE PLOTS. HE, ACCORDINGLY , DELETED THE ADDITION OF RS. 74,54,720/ - MADE BY THE ASSESSING OFFICER TO THE DECLARED SALE CONSIDERATION AND DIREC TED TO 13 ACCEPT THE SALE PROCEEDS ARISING ON SALE OF PLOTS AS DECLARED BY THE ASSESSEE . NOW THE DEPARTMENT IS IN APPEAL. 8 . LEARNED D.R. STR ONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND FURTHER SUBMITTED THAT THE ASSESSING OFFICER ALLOWED AN OPPORTUNITY OF CROSS - EXAMINATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS , BUT THAT WAS NOT AVAILED BY THE ASSESSEE, THEREFORE, THE ADDITION WAS RIGHTLY MADE ON THE BASIS OF THE STATEMENTS OF 9 PERSONS, WHO STATED THAT THEY HAVE PAID MORE AMOUNT THAN THE AMOUNT MENTIONED IN THE AGREEMENT TO SALE. IT WAS FURTHER STATED THAT LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. 9 . IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). IT WAS FURTHER STATED THAT DURING TH E COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER DENIED THE OPPORTUNITY OF CROSS - EXAMINATION, THEREFORE, THE LD. CIT(A) COULD HAVE ANNULLED ASSESSMENT ORDER AND DIRECTED THE ASSESSING OFFICER TO GIVE OPPORTUNITY TO THE ASSESSEE FOR CROSS - EXAMINATION. IT WAS ARGUED THAT ONLY ON THE DIRECTION OF THE ITAT , THE 14 ASSESSING OFFICER ISSUED SUMMONS U/S. 131 OF THE ACT TO THE PURCHASE R S OF THE PLOTS . IN RESPONSE TO WHICH, 6 PERSONS APPEARED FOR CROSS - EXAMINATION, WHO ADMITTED THAT NOTHING MORE THAN THE AMOUNT MENTIONED IN THE SALE OF AGREEMENT WAS PAID . THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT JUSTIFIED AND THE LD. CIT(A) RIGHTLY DELETED THE SAME. 10 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE THROUGH POWER OF ATTORNEY HOLDER SOLD 156 PLOTS TO VARIOUS PERSONS AND IN THE ORIGINAL ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER RECORDED THE STATEMENTS OF 12 PERSONS OUT OF WHICH 3 PERSONS ADMITTED THAT NOTHING MORE THAN THE AMOUNT MENTIONED IN SALE AGREEMENT WAS PAID, BUT ANOTHER 9 PERSONS STATED THA T THEY HAVE PAID MORE AMOUNT THAN THE AMOUNT MENTIONED IN AGREEMENT TO SALE. HOWEVER, NO OPPORTUNITY WAS GIVEN FOR CROSS EXAMINATION OF THOSE 9 PERSONS BY THE ASSESSING OFFICER . LATER ON, WHEN THE MATTER WAS SET ASIDE BY THE ITAT TO THE ASSESSING OFFICER , SUMMONS WERE ISSUED U/S. 131 OF THE ACT AND THE OPPORTUNITY WAS ALSO PROVIDED FOR CROSS - EXAMINATION. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CROSS - EXAMINED 6 PERSONS, WHO STATED THAT NOTHING OVER AND ABOVE THAN DISCLOSED IN THE SALE 15 AGREEMENT WAS PAID. REPORT OF THE ASSESSING OFFICER WAS FORWARDED BY THE JCIT TO THE LD. CIT(A) , ON THE BASIS OF THE SAID REPORT, THE LD. CIT(A) CAME TO THE CONCLUSION THAT NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE PERSONS WHO WERE CROSS EXAM INED WERE BEING TUTORED BY SOMEONE AND THERE WAS NO CONTRARY INDICATION THAT THOSE PURCHASERS HAD EITHER SUO - MOTU OR EVEN DUE TO INTERVENTION OF THE ASSESSING AUTHORITIES HAD DECLARED OR HAD BEEN ASSESSED FOR EXTRA PAYMENT NOT DISCLOSED IN THE AGREEMENT TO SALE , RATHER THEY HAD SAID THAT AMOUNT DISCLOSED IN THE AGREEMENT TO SALE WAS CORRECT AMOUNT OF CONSIDERATION PAID. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS ARE OF THE VIEW THAT THE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER TO THE SALE PROCEEDS ARISING ON SALE OF PLOTS. WE DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THE APPEAL OF THE DEPARTMENT. 11 . AS REGARDS TO THE CROSS OBJECTION, L EARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS INSTRUCTION NOT TO PRESS THE CROSS OBJECTION AND GAVE IN WRITING AS UNDER: - C.O. NOT PRESSED SD/ - X X X X 16 IN VIEW OF THE ABOVE, CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS NOT PRESSED . 12. IN THE RESULT, APPEAL OF THE DEPARTMENT AS WELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 28 TH AUGUST , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .